Duncan Bailey and Imogen Trafford discuss best practice to guard against undue influence claims
T died in 2009, aged 96 years, leaving two adult children, her son, who was the claimant (C), and her daughter, who was the third defendant (D3). By a will document dated 25 September 2008, T appointed the first defendant (D1) and the second defendant (D2) as her executors...
The parable of the prodigal son has resonance in modern probate disputes. Alex Troup discusses
Laura Abbott sets out what needs to be considered when challenging the validity of a will prepared by a professional
Stephen Lawson evaluates the case for formal supported will-making
Sheila Rusike and Jo Summers examine worldwide precedents for accepting unconventional wills
The deceased, Raymond Ian White, died on 22 July 2010, a year after he was diagnosed with terminal cancer. On 28 May 2010 he gave instructions for a will to a legal executive at a local law firm; this will was executed on 4 June 2010.
The claimant, Linda White, was the deceased’s widow...
The deceased was a self-made man who had operated a farming business and a haulage company in partnership with his wife (the third defendant) and his son (the claimant). Over the course of his life, he purchased a number of parcels of agricultural land in Dorset...
Kevin Kennedy and Andrew Walls report on the test in Banks v Goodfellow
Charitable legacies can be a poisoned chalice in instances where testamentary capacity is an issue as a number of recent cases have shown. This useful article discusses recent cases and the impact on charities.
In Ritchie , for instance, the two issues were whether the deceased’s statements about her disinherited children were true, and whether if they were not true, whether or not she believed them. The bulk of her £2.5m estate was left to charity. However, the judge set aside her will, having found that the allegations she had made were not true, and expert evidence suggested she was suffering from paranoia and believed them to be true. Given that the delusions caused her to disinherit her children, the will was invalid for lack of capacity.
The author reminds practitioners that the starting position for any claim is the presumption that a person is competent to make their will and there is a continuance of that capacity. It is for the claimant disputing validity to prove lack of capacity. Doubt as to capacity must be real and supported by appropriate evidence. The party must satisfy the Banks test, setting out four key tests for determining capacity. Regard must be had to:
- the nature of the act and its effects;
- the extent of the property;
- the claims to which the client ought to give effect;
- whether T’s mind was affected by any disorder or delusion which was active in bringing about a disposal which s/he otherwise would not have made?
Dementia and Alzheimer’s are the two most common grounds on which wills are challenged, and delusions and bereavement can also render an individual incapacitated for the purposes of making a valid will. Challenges to wills are increasing and practitioners are cautioned to tread carefully, particularly with a view to achieving an early resolution or settlement. Ritchie & ors v Joslin & ors  EWHC 709 (Ch); Banks v Goodfellow  LR 5 QB 549. Source:  SJ October, Private Client Focus.