Elderly Man Lacked Capacity to Make Final Will

The High Court recently upheld a claim that an elderly man's final will was invalid on the grounds that he lacked testamentary capacity.

The man and his wife had made mirror wills in 1985. After their eldest son sadly died in 2007, they made new mirror wills with substantially the same terms as the earlier wills, leaving their estate to their other five children equally after the death of the surviving spouse. The man's wife died in 2014, and in 2015 he made a further will leaving his estate into trust, with his eldest surviving son as the principal beneficiary and one of the trustees. His other surviving children received nothing as of right. He died in 2018 at the age of 86.

His daughter argued that the 2015 will was invalid on the grounds that it had not been validly made under Section 9 of the Wills Act 1837, that the man did not have sufficient capacity to make it and that it was procured by either undue influence or fraudulent calumny. She claimed that the 2009 will should be admitted to probate instead. She and one of her brothers also brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate, on the basis that the 2015 will made no such provision.

The Court found that, after his wife's death, the man had become almost completely dependent on his eldest surviving son. The son had been convinced that two of his brothers had defrauded the family business, and appeared to have persuaded his father of this also. The solicitor who drafted the 2015 will and the man's GP had both been of the opinion that he had testamentary capacity, but no cognitive assessment had been carried out.

The Court noted that the 2015 will appeared to have been properly signed by the man and the two witnesses to it, and contained a testimonium clause stating that this had occurred. It was therefore presumed to have been duly executed. A note on the GP file appeared to suggest that the will had not been signed by both witnesses on the same date, but the presumption of due execution could only be rebutted by 'the strongest evidence' that what was stated in the testimonium clause had not in fact happened.

However, the Court found that the man had not had testamentary capacity when the 2015 will was signed. He had been unable properly to weigh relevant information, and he understood everything through his eldest surviving son's point of view. He had suffered from a number of health conditions that significantly reduced his executive functioning. His false beliefs that two of his sons had defrauded the family business had persisted even after explanations from its own accountant. The Court also found that, even if it was wrong about the man's capacity to make the 2015 will, the will would be tainted by undue influence and would have to be set aside.

The Court declared the 2015 will invalid and ordered the 2009 will to be admitted to probate. As such, it was not necessary to consider the claims under the 1975 Act.