Cases: Mental Capacity

Part I - Oldies and mental capacity

Part II - General

I - Oldies and mental capacity

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. Wills of elderly people are generally challenged on several grounds: undue influence, mental capacity; knowledge and approval; proper execution. Other factors can also be involved.

George Wharton (2011) When 78-year-old George Wharton received the news that he not only had cancer but would likely not live for more than a few days, he acted quickly. He left hospital, made a new will that same day, and married his girlfriend. He died three days later.

The daughters argued in the High Court that the new wife pressured their father to exclude them. However, the judge noted that Wharton and his new bride had been together for 32 years. In addition, he was estranged from two of his daughters and not close to the third. The judge saw nothing amiss in the marriage or the will.

Barrett v Bem (2011) In hospital in January 2004, a desperately ill but seemingly mentally competent Martin Lavin signed his will and died three hours later, aged 69. If his will was valid, his sister was his beneficiary. If invalid, other relatives had claims. A first trial declared the will invalid but, after new evidence emerge, a retrial before the same judge resulted in the decision being reversed. Much of the evidence revolved around the nature and degree of physical help he might have received in signing the will from his sister, who was also his sole beneficiary.

Devas v Mackay (2009) A former Second World War Wren and the widow of a professor, Catherine Devas needed full-time care after suffering several strokes in 1995, and later developing Alzheimer's Disease. She died in 2006, aged 83. Her assets totalled only £26,000, despite her being worth c1£m (£665,000 in investments, a home valued at £350,000) a few years earlier.

Where did all of that money go? Some money went to legitimate medical expenses. But Zandra Mackay, her former carer, and several accomplices helped themselves to Mrs Devas's bank account, withdrawing large sums which they used for expensive foreign shopping trips and lavish gifts - for themselves, not for Mrs Devas. They also forged her will, making themselves the beneficiaries. Three were convicted of fraud running to £500,000 and jailed. During this period of plunder, Mrs Devas' family was worried and suspicious but unable to penetrate the wall set up by the conmen.

Jean Gorjat (2010) Jean Gorjat, a successful electronics engineer who lived in northeast London, transferred £1.8m from his personal account into a joint account he held with his wife Lucrecia. Nothing unusual there 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 unduly influenced by his wife. The children failed to convinced the judge, who concluded that Jean was a strong-willed man with his wits about him when he transferred the money.

The children had also filed criminal charges against 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 devastated him.

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.

Perrins v Holland (2009) A man suffering from multiple sclerosis had testamentary capacity when he gave instructions for his will but not when he signed it. But the will in fact reflected his wishes, and at the time he signed, he believed that it did so. His estate came to c.£180,000 and costs to nearly that amount: c.£160,000.

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. Despite an examination of the testator by a medical practitioner, a judge ruled the will invalid, and the Court of Appeal upheld his 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. However, the judge found 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 that his mother had been mentally incapable due to the powerful drugs she had been taking. But the judge declared the will valid.

Re Morris (2000) An elderly woman was very generous to the two people who had been caring for her in her declining years. 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, made a new will. It was a fairly complex document that was generous to his new bride.

Alas, on the very same day, he also died. His family challenged the will, and his widow was in for a shock. The court ruled the new will invalid, holding that the infirm oldster had the capacity to make a simple but not a complicated will.

II - General

Ahluwalia v Singh (2011) In his will, Ranjit Singh left approximately £830,000 to his three sons, and £40,000 to his three daughters, one of whom was Balvinder Kaur Ahluwalia, a solicitor. She challenged the will, arguing that the two witnesses had not actually been present at the same time when her father signed his will. She won. The High Court judge declared the will invalid and the total estate - £870,000 - was equally divided among the six children.

Charles Napier (2010) Charles Napier either made no will at all or made one, possibly two, that never saw the light of day. One of these invisible wills left his estate to his girlfriend, Rowena Ferneley, and the other favoured his family. Each side claimed that the other side suppressed the will.

A will was found in which Mr Napier left his property to his girlfriend, but it was an earlier girlfriend, not Mrs Ferneley, and it was a draft, not a properly executed will. A High Court judge was not persuaded that the relatives had suppressed a will and ruled that Napier died intestate.

Charles v Fraser (2010) Two widowed sisters in their 70s, Ethel and Mabel, made mutual wills in 1991 specifying that when one died, the other would inherit the other's estate - and when the second died, the estate would be divided among 15 named individuals. As the wills were mutual, the survivor should not have changed her will, but she did, leaving a substantial gift to a friend. The court ruled the new will invalid, and the friend had to return the legacy.

Esson v Esson and Others (2010) A husband and wife each had three children from previous relationships but no children together. They made mirror wills pretty much providing for all of the children, but when the wife's mother died, she inherited cash that she wanted to leave to her grandchildren, not her step-children or their issue. To that end, she added a codicil to her will that she drafted herself. Her wishes seemed clear but her language left a big enough loophole for the other family to take the case to court. (Full story)