Testatrix considered to have capacity to make Will

Nick Palmer4

By Nick Palmer

The Court of Appeal has found that a testatrix is considered to have had sufficient capacity to make a Will despite a marked decline in her mental health.

The case concerned a Mrs Burns who had two sons. She and her late husband had sold one half of their home to one son (Colin). In 2003 she made a Will leaving the other half to her other son (Anthony) and the rest of her estate between both sons equally. In 2005, she changed her Will to divide the whole of the estate (including her half of the house) between Anthony and Colin equally.

Anthony challenged the Will on the basis that his mother lacked sufficient mental capacity to make that 2005 Will. He produced considerable evidence in support, including: evidence from the local authority and care home, and low mini-mental state examination results. There was evidence that Mrs Burns had poor short term memory and believed her husband was still alive. Nevertheless, the Court of Appeal decided she did have sufficient mental capacity to make the Will, which was therefore valid. This was in part due to the simplicity of the Will. The Court stated that she may not have had sufficient capacity to make a more complicated Will.

Not everyone has the necessary mental capacity to make a Will. This case shows how those who might otherwise appear to lack that capacity, can still make a valid Will.

Nick Palmer is a solicitor in the Private Client team at Barker Gotelee.

Solicitors Ipswich Suffolk – for more information on our range of legal services, please call the team on 01473 611211 or email bg@barkergotelee.co.uk