Those who delay making a will until they are at death’s door create a very real risk of conflict amongst their loved ones after they are gone. That was sadly so in the case, reviewed by Charlotte Ledson, of an elderly man who was in hospital, suffering from advanced bladder cancer, when he finally got round to instructing a solicitor.
By his will, which he signed less than two weeks before he died, the man left all that he owned to his wife. The document’s validity was challenged in court by his eldest son, who asserted that he was so confused at the time that he lacked the mental capacity required to make a legally enforceable will.
Ruling on the matter, the High Court noted that medical records in the days before he executed the will referred to him as confused and agitated. No medical opinion had been sought in relation to his capacity and understanding before he signed the document. One of his daughters testified that he had lost his mental acumen and that, in her opinion, he was in no fit state to make a will.
On the other hand, other members of his family who visited him in hospital had no doubt about his capacity. Expert evidence indicated that a change in medication had brought about a marked improvement in his condition by the time he signed the will. His accountant, who served as one of the witnesses to the will, had no concern at all that he was not fully aware of what he was doing.
The decisive evidence, however, came from the solicitor who drafted the will. He had known the man for over 40 years and had discussed the contents and implications of the will privately with him before he signed it. The document was read to him twice before he stated that it was exactly what he wanted. The Court rejected any suggestion that the solicitor had conducted himself unprofessionally.
Whilst the man was clearly unwell, the Court was entirely persuaded by the solicitor’s evidence that he had the required mental capacity to make a valid will. Rejecting the daughter’s evidence to the contrary, it found that she was motivated solely by the prospect of personal financial gain and not by any desire to tell the truth.
In upholding the will’s validity and admitting it to proof in solemn form, the Court was satisfied that the man knew and approved the contents of the document. His son’s further allegation that he had been subjected to undue influence was hopelessly misconceived in that it was supported by not one shred of evidence.
We Asked Solicitor Charlotte Ledson For Her Expert Insight
‘This case highlights 2 important points when it comes to Wills. Firstly, it is preferable to get a Will done when a person is in reasonably good health as otherwise questions can be raised by disappointed beneficiaries about the person’s mental capacity during poor health. Secondly, the importance of instructing a solicitor because should there ever be a dispute about capacity, as in this case, the solicitor’s evidence on their professional assessment of mental capacity can be key to a Judge’s decision’