NOTE: This article was published in October 2015 and reflects the law as it stands on the date of publication and not at any later date. It is taken from a Fusion Legal Wills & Probate seminar presentation.

To download the original slideshow of this presentation please click this link.

TESTAMENTARY CAPACITY

• Test in Banks v Goodfellow (1870) LR 5 QB 549, at 565
• Test in Mental Capacity Act 2005
  • Presumption of capacity
• Re Walker [2015] WTLR 493
  • No presumption of capacity
  • Retrospective assessment of capacity
  • Legal burden on claimant

CAPACITY TO UNDERSTAND

• Simons v Byford [2014] EWCA Civ 280
• Capacity to understand
  • Not actual understanding
  • Nor test of memory
• No need to understand collateral consequences
• Brennan v Prior [2013] EWHC 2867 Ch
  • No need to understand every consequence of legal effect
• Incapable if cannot recall beneficiaries: Williams v Wilmot [2012] EWHC 2211

SOLICITOR’S OPINION ON CAPACITY

• Hawes v Burgess [2013] EWCA Civ 74
• Strong evidence of incapacity required
  • Experienced solicitor
  • Contemporaneous note confirming capacity
  • Will read and explained
  • Will not incapable or irrational
• Re Ashkettle [2013] EWHC 2125 (Ch)
  • No sound basis for solicitor’s view on capacity
  • Terms of will surprising

BEREAVEMENT/LACK OF WILLPOWER

• Key v Key [2010] 1 WLR 2020
  • Bereavement
  • Severe affective disorder
• Re Dharamsi [2013] EWHC 3917 (Ch)
  • Bereavement not necessarily disorder of mind
  • Testator acted of own volition
• Parker v Litchfield [2014] EWHC 1799 (Ch)
  • Physical problems
  • Mental energy to make decisions

KNOWLEDGE AND APPROVAL

• Gill v Woodall [2011] Ch 380
  • Grave and strong presumption
  • Knowledge and approval
  • Solicitor reads will
• Testatrix suffered from agoraphobia
  • Exceptional case
• Will not read in manageable chunks

PRECAUTIONS/IGNORANCE OF EFFECT

• Solicitor: need to take proper precautions
• Hawes v Burgess [2013] EWCA Civ 74
  • Beneficiary present
  • Draft not sent for prior approval
  • Golden rule not observed
• Brennan v Prior [2013] EWHC 2867 Ch
  • Ignorance of legal effect
  • Knowledge of contents
  • What giving and to whom

EVALUATION OF ALL EVIDENCE

• McCabe v McCabe [2015] EWHC 1591 (Ch)
  • Absence of reading over not fatal
  • Active instructions as to content
• Re Butcher [2015] EWHC 1240 (Ch)
  • Estate left to builder
  • Exclusion of beneficiaries under prior will
  • Easy will to understand

UNDUE INFLUENCE

• Hubbard v Scott [2012] WTLR 29
  • Estate to cleaner
  • Fascination of younger woman
  • Not coercion
• Schomberg v Taylor [2013] EWHC 2269 (Ch)
  • Cogent evidence
  • Persistent unwanted pressure
• Schrader v Schrader [2013] EWHC 466 (Ch)
  • Inferred undue influence
  • No good reason for change in will

FORGERY/DUE EXECUTION

• McCabe v McCabe [2015] EWHC 1591 (Ch)
  • Strong presumption of due execution
• Bhangal v Kaur, Lawtel, 15 Feb. 2014
  • Handwriting evidence inconclusive
  • Attesting witnesses not called
  • Finding of forgery

INHERITANCE ACT CLAIMS: ADULT CHILDREN

• Ilott v Mitson
  • Estranged adult child of deceased
  • Unreasonable to exclude?
  • Value judgment
• Quantum
  • Limited by expectation of benefit?
  • Relevance of state benefits: [2015] EWCA Civ 797
• Re Waters [2014] EWHC 3614
  • Conduct defeated claim
  • Adult estranged daughter

SPOUSES

• Dellal v Dellal [2015] W.T.L.R. 1137
  • Claim by widow
  • Dispositions intended to defeat applications for financial provision
  • Application to strike out/summary judgment failed
• Chekov v Fryer [2015] EWHC 1642 (Ch)
  • Claim by former spouse
  • S. 15 order that no claims against other’s estate
  • Claim as cohabitant

REMOVAL OF PRS/TRUSTEES

• Wilby v Rigby [2015] EWHC 2394 (Ch)
  • Removal of both executors
  • Could not work together
  • Independent solicitor appointed if no agreement
• Re Weetman [2015] EWHC 1166 (Ch)
  • Removal of trustees
  • Conflict of interest
  • Ownership of shares in company
  • Trustee a director
  • Appointment of family members as new trustees

MARLEY V RAWLINS

• Marley v Rawlins [2015] AC 129
  • Rectification of mirror wills
  • Signed by wrong spouse
  • Clerical error
  • Even if will formally invalid
• Marley v Rawlins (Costs) [2015] AC 157
  • Insurer of solicitor
  • Liable to pay costs of both parties