A recent case illustrates how strong the evidence must be before the presumption that a person making a will has the mental capacity to do so will be overturned.

It involved an elderly woman who died leaving an estate of a little under £150,000. Her only surviving relative was her granddaughter. The woman had been looked after by a neighbour for some years, and appointed him to be her executor and bequeathed him her entire estate.

The woman’s granddaughter sought to have both the will and the man’s appointment as executor overturned, alleging that:

• the woman lacked testamentary capacity (i.e. was not ‘of sound mind’ when she executed the will);
• she did not know and approve the contents of the will; and
• the will was procured by undue influence.

It was in point that the woman had previously instructed a firm of solicitors to prepare her will, but had not proceeded with it. Evidence was given by the firm that they had reservations about her testamentary capacity when she instructed them.

The court ruled against the granddaughter, however. There was almost no evidence that the woman did not know and approve the contents of the will or that it was procured by undue influence. As regards the issue of testamentary capacity, the judge considered that she had ‘good days and bad days’ and that she could therefore be presumed to be of sound mind.

Click here for further information on mental capacity.
Click here for information on undue influence.