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Professionally Drafted Will Thrown Out by Court of Appeal
A legal battle which led to a six-day trial resulted in the Court of Appeal declaring that a will was invalid, even though it had been drafted by an experienced solicitor.
The case concerned a will that was written in 2007, the practical effect of which was to divide the estate of the woman who made it equally between her two daughters, whilst her son received nothing. One sister had fallen out with the brother, but there was no evidence that he was on bad terms with his mother and a change in the woman’s will was not to be expected. Two years after the will was made, the woman died, aged 80.
It was only after the woman’s death that her son and the second daughter learned of the new will, and its provisions constituted something of a bombshell. Despite the fact that she would be made less well off by so doing, the second daughter supported her brother in challenging the new will. They disputed its validity, claiming that their mother had lacked testamentary capacity – i.e. had not had the mental competence to execute a will – and also that it could not be demonstrated that there was sufficient evidence that she had ‘knowledge and approval’ of the contents of the will.
Both these arguments were accepted by the judge at the original hearing, which led to an appeal.
The Court of Appeal ruled that this was an instance in which sufficiently strong evidence that the woman had knowledge and approval of the terms and effect of the new will was lacking and the will was therefore invalid on those grounds. The Court declined to rule on whether or not the woman had testamentary capacity.
It is unusual for a will drafted by an experienced practitioner to be ruled invalid. However, challenges to wills are becoming more frequent and when a family dispute such as this is a possibility, extra precautions should be taken.
The victory for the sister and brother in this case was greatly diminished by the cost of the legal proceedings, in particular the cost of a long trial.