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Invalid will - testamentary capacity, knowledge and approval
16 July 2013

The recent Court of Appeal decision in Hawes v Burgess (2013) is an interesting decision in that it shows that, even where the court may not be satisfied that the testatrix lacked testamentary capacity, it may nonetheless be willing to find that she lacked sufficient knowledge and approval of the contents of the will, something which many might regard as an unusual conclusion.

In this case the deceased, Mrs Burgess, had three children, a son Peter and two daughters, Julia and Libby. The family had been close knit until about 2006 when Peter and Julia fell out with each other, although both continued to have a good relationship with their mother.

In 2007 Julia arranged for her mother to make a new will, using the services of an experienced independent probate solicitor. The solicitor satisfied himself that his client had sufficient mental capacity to give him instructions for the will, but telling factors in the subsequent High Court judgment were that Julia remained present at the initial meeting when instructions were given for the will and at the subsequent meeting with the solicitor when the will was executed, she gave him inaccurate information to the solicitor about relevant family circumstances, and the solicitor did not send a draft of the will to the deceased for her to consider before the second appointment. The major change brought about in the 2007 will was that Peter was cut out of any share of the residuary estate, whereas under the previous will it was to be shared equally between the three children.

Following a lengthy and expensive trial the trial judge ruled against Julia, finding the 2007 will invalid both on the grounds of lack of testamentary capacity and lack of sufficient knowledge and approval of the contents of the will. Julia appealed to the Court of Appeal. In the leading judgment Lord Justice Mummery expressed considerable reluctance to accept that the deceased lacked sufficient testamentary capacity, given the view on that issue expressed by the experienced solicitor who took instructions, but found it unnecessary to make a ruling on testamentary capacity, since he felt it reasonable for the trial judge to have concluded the will was invalid on the grounds of lack of sufficient knowledge and approval in view of the factual findings contained within the judgment.

The case is a useful reminder that an expensive legal dispute such as this could well be avoided if practitioners insist on taking instructions from their client alone without any potential beneficiaries in the room, and secondly where circumstances permit send out a draft of the will for their client to consider at their leisure before the will is executed. The amount of the estate was a fairly modest sum, and the likelihood is that the totality of the legal costs will have more than eclipsed the value of the estate. 

For more information about the issues raised in this article or to find out more about how the Dispute Resolution team can help you please contact Mike Robinson on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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