An Update on Disputed Wills
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Litigation surrounding Wills is steadily on the increase. In particular, issues of disputed testamentary capacity are becoming more frequent and as such, attorneys must be extremely cautious when taking Will instructions from individuals. What does this mean? Disputes involving lack of testamentary capacity refer to those that have to do with the determination of the mental state of the testator. When an attorney drafts a Will, he or she has the duty to be aware of the client’s competency, to ascertain whether the client is being subjected to undue influence and to make a reasonable assessment of the mental capacity of the client. An attorney should not draft a Will for a client unless the attorney believes that the client has testamentary capacity and a full comprehension of the nature and extent of the estate that he or she is distributing.
It has been reassuring for the practising attorney to note the recent UK cases of Hawes v Burgess  EWCA Civ 74 and Greaves v Stolkin  EWHC 1140 (Ch). In both cases the testamentary capacity of the person making the Will wascontested by family members. In the case of Hawes v Burgess the testator’s son contested the Will due to the fact that he had been excluded from it while his two sisters were bequeathed the estate in equal shares. He challenged the Will on the grounds that his mother lacked testamentary capacity at the time of making and signing the document, however, the Court of Appeal upheld that she did in fact have testamentary capacity. Lord Justice Mummery commented on the case; “My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a Will that has been drafted by an experienced, independent lawyer.”
In the case of Greaves v Stolkin 2013 the testator’s son also contested the contents of his father’s Codicil – a document that amends, rather than replaces, a previously executed Will – due to the fact that his father, just a few weeks prior to his death, had amended the terms of his Will by way of a Codicil. In the Will his father had bequeathed his entire estate to his son whereas the Codicil to his Will made additional provisions for his partner of 12 years. The Codicil was contested on the grounds of lack of capacity due to the fact that the testator’s physical and mental condition had declined whilst he was in hospital at the time of making the Codicil. Mr Justice Newey gave judgment that the Codicil was valid and upheld that it should be admitted to Probate. Thus he agreed with LJ Mummery’s comments in Hawes v Burgess that the court should be reluctant to dispute the capacity of a testator when an experienced lawyer has drawn up the Will or Codicil.
These two recent UK cases speak to an attorney’s professional experience and their judgment of the client’s capacity at the time of instruction and execution of the Will. They also emphasize the importance of having an attorney draw up your Will should the content be potentially contentious. In practice, if an attorney does become aware of a capacity issue then basic safeguards, such as seeking a medical opinion from the testator’s Doctor, should be taken.