Cases: Mental Capacity

Too late to fix it

When the testator made his or her will, was he or she of sound mind?

If any doubt, did a doctor see the testator?

Was the will simple or complex, and what were the circumstances in which it was made?

Did anyone unduly influence the testator?

Did the testator, solicitor or doctor review earlier wills to learn about previous beneficiaries?

This page should be read along with mental capacity and oldies.

The court cases summarised below highlight the various complications that can arise with wills made by old or ailing individuals. Most cases involve several fundamentals: mental capacity; knowledge and approval; and proper execution.

Jean Gorjat 2010 Jean Gorjat, a successful electronics engineer who lived in northeast London, transferred £1.8 from his personal account into a joint account he held with his wife Lucrecia. Nothing unusual about that except that he died later that year, aged 77, and the money was subsequently transferred into an account controlled solely by Lucrecia.

His three children from his previous marriage argued in the High Court that he transferred the money because he was mentally incapacitated and under the undue influence of his wife. The judge found the evidence of the children unconvincing, and also concluded that Jean was a strong-willed man who had mental capacity when he transferred the money.

The children had also filed criminal chargesagainst Lucrecia in Switzerland, where the bank accounts were located. This case was dropped.

Key v Key 2010 Farmer George Key had four children: two sons, who worked on the family farm, and two daughters, who married and moved away. In several old wills, Mr Key left the bulk of his estate to his sons. In his final will, he left most of his estate to his daughters.

Why the change?

George made his new will only a few days after the death of his wife. He was 89, they had been married for 65 years, and her death had left him devastated.

In addition, he drafted his new will with the help of his daughters but not his sons. Judge Briggs declared this final will invalid, citing George's intense bereavement and the circumstances in which the new will was drafted.

Christopher Ward 2009 Christopher Ward's 2002 will left everything to his brother and sister.

He made a new will in 2006 which left everything to his fiancee. But he was seriously ill with brain cancer when he made his new will - so ill that he died only a week later. His sister argued that his illness rendered him incapable of making a valid will.

High Court Judge John Behrens disagreed: "I do not think that the brain lesion poisoned his mind or his sense of right or affected his natural faculties to an extent necessary to invalidate the will. Christopher Ward chose to leave his main asset - his house - to his fiancee. To my mind there is nothing suspicious about that."

The estate was worth only £137,000, and the judge ordered Christopher's sister to pay most of the estimated £30,000 costs.

Sharp v Adam 2006 The owner of a stud farm left his estate to the managers of his business, disinheriting his daughters in the process. But the testator had multiple sclerosis and was paralysed and incapable of speech. Although his solicitor had arranged for a medical practitioner to see the testator, a judge ruled the will invalid, and the Court of Appeal upheld this decision.

Abbott v Richardson 2006 An elderly woman made a new will in 2003 in favour of her carer, but the testatrix had not considered or been reminded of the details of her 1990 will. The new will was declared invalid. One unfortunate consequence is that the testatrix genuinely and legitimately wanted to give a gift to the carer but, as the will was not valid, the gift failed.

Reynolds v Reynolds 2005 An elderly woman of sound mind made a validly executed will. What's the problem? Only that the judge concluded that the draftsman who prepared the will had taken instructions from the beneficiary, not from the testatrix. The judge held that the woman did not know and approve the contents of her will.

Rowinska 2005 An elderly woman with limited English left everything to a beneficiary who, the court decided, had actually prepared the will and arranged for friends to be witnesses. The judge held that the woman did not know and approve the contents of her will.

Barret v Kasprzyck 2000 An elderly woman left her entire estate to her brother, not her son. The son argued in court that the powerful drugs his mother was taking had rendered her mentally incapable. But the judge declared the will valid.

Re Morris 2000 An elderly woman was very generous to the two people who were caring for her. She sold her house to them for a mere £50 and gave them other gifts. Suddenly she had no more to give. Her assets was reduced to almost zero. She was 84 years old and suffering from senile dementia. The solicitor who drafted her will also conveyed her home to the buyers. A court found that the solicitor erred by not obtaining medical advice regarding her mental capacity.

re Park's Estate (1954) Marriage revokes previous wills (unless the will is made in contemplation of an upcoming marriage to a particular person). A widower who had suffered a stroke and was frail mentally as well as physically nevertheless got married and, later that same happy day, make a new will. It was a fairly complex document that was generous to his new bride.

Alas, he also died later that day.

His family successfully challenged the will. The court held that he had the capacity to make a simple but not a complicated will.