Date: 05/03/13 Author: Charles Wilson


Most people are aware of the basic formalities required for making a valid will e.g. signing a written will in the presence of two witnesses.  Most understand that a will maker (the testator) has to have mental capacity if they are to give instructions for the drafting of a will.  Surely then, if a will has been drafted by a solicitor who has many years’ experience of drafting wills, the testator’s mental capacity will have been correctly assessed and recorded.  Further, if the will is then signed and witnessed in the solicitor’s office then nothing can go wrong.  However, a recent Court of Appeal case details a family who faced such a situation – to their cost.

Facts of the case:

In 1996, Daphne Burgess made a will dividing her £200,000 estate equally between her two daughters and son.  However, in December 2006 daughter Julia made an appointment for Daphne, then aged 78, to attend a solicitor.  Julia attended the appointment with Daphne who gave instructions for a new will in which she disinherited her son Peter.  The rationale given was that Daphne had already given her son ‘at least £40,000’ therefore he had already received his entitlement.  In reality, in 2006 Peter had bought and paid for a bungalow for Daphne; who wanted a new kitchen and bathroom.  Daphne paid about £22,000 for this work and this payment appears to be at the heart of the problem.

The solicitor waited twenty-three days after the instructions were given to write up his attendance note.  Would you remember all the details after a busy 3 weeks? In the meantime, Daphne had an unexplained fall and suffered a head injury – it would appear from later evidence that this was as a result of a mini-stroke which preceded a later stroke.  In January 2007, Daphne’s will was signed and witnessed at the solicitor’s office without a reconsideration of her mental capacity or her understanding of her will.

Naturally, Julia’s siblings contested the validity of the 2007 will for two reasons: Daphne lacked mental capacity to make the 2007 will and she lacked ‘knowledge and approval’ of her will.  It is vital for anyone who signs a will that they know what their will does and they agree to the will’s clauses. 

The Court found that there was evidence proving that Daphne loved her three children equally.   If she had wanted to disinherit Peter, she would have told him.  This fact alone was legally sufficient to show that Daphne did not have mental capacity to give will instructions.  However, medical evidence also confirmed that there had been significant loss of mental capacity in the summer of 2006.  The Court reviewed the whole will-making process and concluded that the instructions were driven by Julia and not Daphne.  Therefore, Daphne did not have capacity at the time of giving instructions nor at the time of signing the will.

The validity of the will was further condemned by the Court’s finding that Daphne did not have ‘knowledge or approval’ of the contents of her will and it was therefore invalid.  It is common sense that even if all of the other requirements for a valid will were present, Daphne should have known what was in her will and that she gave approval of the contents.  Where suspicions are aroused the person seeking to prove the validity of the will (Julia) has the burden of proving that the testator knew the contents of the will and approved them.  Julia was not able to do so.

Points to note:-

  1. It is very difficult for solicitors to always accurately assess an elderly or ill person’s mental capacity.  Wills should be made before old age sets in and certainly as soon as possible after a life changing event – don’t leave it until you are struck down with a life-threatening illness. If you have a child or own property, then you need to make a will.  Find a solicitor who is approachable and smart. Examples of life changing events are divorce, marriage, births, and inheritance.
  2. Fighting over a disputed will is costly.  The legal costs of a dispute come out of the estate.  So this was a hollow victory for Peter and Libby as the entire estate was consumed by legal costs.
  3. When giving instructions for a will, expect to be seen on your own, unless you are making an identical will with your spouse.  Expect your solicitor to ask you all sorts of questions – you are paying them to ensure that your will is correct and appropriate.
  4. Insist that you are given a draft copy for your approval before you sign the will.  Read the draft and ask for an explanation if the clauses are unclear.  Remember, you are the customer and, if you are confused, the solicitor is not doing their job properly.
  5. Do not be tempted to draft your own will or get a family member to draft it for you.  The number of homemade wills which are declared invalid greatly outweigh the number of professionally drafted wills declared invalid.  If a solicitor makes a mistake in a will and as result you do not inherit what the testator planned, you may have a claim against the solicitor who drew it up.

Finally, if you don’t have a will, your estate will pass according to the 'Intestacy Rules'.  This may not be in accord with your wishes and could leave your loved ones with inadequate financial support, especially unmarried partners.

For further information, please contact Charles Wilson on 01524 405840 or chw@jwksolicitors.co.uk.



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