The Importance of Capacity When Making a Will

Mental Capacity

For a Will to be a valid document the person signing the will (‘the Testator or Testarix’) must have capacity. Capacity can be assessed by looking at the testator’s decision making abilities and understanding on the date the document was signed. There is a presumption that a properly executed Will is made by a person with capacity. However this can be challenged with evidence.

The Testator must understand what he or she is doing. Any Will entered into where it can be shown that the Testator did not understand will be void. Key elements of this are;

  1. The Testator must understand the information relevant to the decision.
  2. The Testator must be able to use or weigh up any information when making any decisions in relation to the Will. So the Testator should understand what might happen as a consequence one way or another.
  3. The Testator must be able to communicate their decision. Communication can be verbal, using sign language, writing information down or any other means.
  4. A Testator will likely lack capacity if they suffer from a disorder of the mind. A disorder of the mind would cover any mental disorder that alters the Testator’s ability to make a decision or comprehend their decisions.

Please bear in mind that a person will not to be treated as unable to make a decision merely because they make an unwise decision.

If you have reasonable grounds to believe that your loved one lacked capacity when signing their will and you would like some advice please contact Sharon Matchwick on 01992 558 411

or click here: http://www.breezeandwyles.co.uk/index.php/form-wills/

NOTE:

This article deals only with capacity and does not cover other options that may be available if you have reasonable grounds to challenge the validity of a Will.


Property prices help fuel family inheritance court battles

Rising property prices are helping to fuel increased numbers of inheritance disputes reaching the courts, with second marriages another major contributory factor.

Such challenges are no longer the preserve of the wealthy, although they continue to feature highly. Recent cases hitting the headlines have included the family fall-out following the death of the billionaire owner of Sotheby’s, Alfred Tauber, through to a court case over a £600,000 estate destined for good causes, where the will was unclear.

The trend towards higher numbers of inheritance disputes has been attributed to a number of factors.

As in the case of the billionaire Alfred Tauber, who died earlier this year, the rise in divorce and second marriages is behind a growing number of children and step-children, and first and second spouses, warring over estates.  For the second Mrs Tauber, a marriage lasting over 30 years was not enough to protect her from a lock-out of her apartment in London’s Mayfair, as the children of the property tycoon’s first marriage took action to remove valuable artworks from the flat.

And the rise in property prices has meant there is often more at stake, and families are more inclined to take the costly step of litigation and get the matters before the courts, if they feel they have been unfairly treated.

Earlier this year, estranged daughter Heather Ilott won a share of her late mother’s estate in a landmark ruling.  Her mother expressly excluded her daughter, choosing to leave her £500,000 estate to animal charities.  An eight-year court battle saw the daughter, who had run away from home to get married at 17, finally win a one-third share of the estate, on the grounds that her mother had not made adequate provision for her, as her circumstances were such that she would be in a position of poverty, reliant upon state benefits.

The ruling focused on the lack of connection between the late Mrs Jackson and the animal charities named, as she had not been a regular supporter or shown interest in such causes during her lifetime.  Said wills and trusts expert Patrice Lawrence :  “The implications of the ruling are that it may prove harder for parents to disinherit children in future, unless they have strong grounds for doing so, and strong links to the alternative beneficiaries.  It has long been the case that a spouse or financially-supported child could challenge the will if they were excluded, but this ruling, and the sum awarded to the daughter, suggests a shift in approach by the courts.”

Another factor contributing to the rise in inheritance disputes is the rise of online and ready-made wills, as well as clerical errors in word-processed documents, leading to challenges on the grounds of lack of clarity of intention.  The sort of difficulties that can arise were highlighted in the recent High Court ruling in the case of the late Mrs Harte, whose will was unclear as to the charities she intended to benefit from her estate and how exactly it was to be divided. The causes were identified by recognised registered charity numbers, but the names did not match up, and the way the estate should be divided and distributed was described in different ways, with different terms being used interchangeably adding to the confusion.

A similar case reached the Supreme Court recently, when Alfred and Maureen Rawlings inadvertently signed each other’s will, but the error didn’t come to light until after they had both died.   The wills were identical, so-called mirror wills, leaving all to each other and to the same beneficiaries if their spouse died before them, but with the respective names changed to suit.   When Mrs Rawlings died, as property and assets were owned jointly they simply transferred to Mr Rawlings as the survivor, so the problem did not come to light until he died.   The Supreme Court decided that the wills could be rectified to reflect the intentions of the couple, and should stand as though they had each signed the correct will.

The ruling broadened the idea of what constitutes ‘clerical error’ meaning more such errors may be able to be corrected in future and was a landmark in how the Courts will interpret wills, making a shift towards that applied in commercial contracts, by trying to identify the intention of the person who made the will.

International mobility is also playing a part in the complexity of managing estates, where people have lived abroad during their career, or in retirement, as they may have assets which could be subject to the jurisdiction of the country where they are located. If that’s not been addressed in estate planning, it can give rise to outcomes that were not anticipated, such as where a country’s laws may insist on property passing down to family members in a particular way.

She added:  “In many cases the problem lies in lack of planning.  The number of instances where an off-the-shelf, pre-packed will is appropriate are few and far between.  It’s always going to be worth checking with a specialist to make sure that what you plan is right for your own unique circumstances.  Also, importantly, there will be corroborative evidence of your intentions that will be recorded and held by the professional drawing up the will, which can provide vital evidence if a case should reach the courts.”

To make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, a claim must be made within six months from the date of the grant of probate. For cohabitees, they need to show they were living with their partner throughout the two year period before they died, in the manner of a spouse or civil partner.

ENDS

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Harte, Re [2015] EWHC 2351 (Ch) (15 July 2015)  http://www.bailii.org/ew/cases/EWHC/Ch/2015/2351.html

Taubman news coverage

http://www.telegraph.co.uk/news/uknews/11863818/Widow-of-Sothebys-billionaire-locked-out-of-flat-by-stepchildren-in-inheritance-row.html

Ilott v Mitson Michael Peter Lane (Personal Representatives of Melita Jackson Deceased) the Blue Cross Animal Welfare Charity Royal Society for the Protection of Birds Royal Society for the Prevention of Cruelty To Animals [2015] EWCA Civ 797 (27 July 2015)

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2015/797.html&query=melita+and+jackson&method=Boolean

UK Supreme Court : Marley v Rawlings and Anor [2014] UKSC 2

http://www.bailii.org/uk/cases/UKSC/2014/2.html