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    This case highlights the importance of assessing the capacity of a client and taking professional advice where necessary.

    Mr. Baker was terminally ill in hospital with liver disease when he executed a Will prepared by his brother, Richard. In the Will Richard was appointed executor and the estate was left entirely to his cohabitee Mrs Hazel, excluding his daughter. Mr. Baker explained to Richard that he did this on the condition that Mrs Hazel also executed a Will which left everything equally between his daughter and her own daughter. The couple had discussed this at length prior to the production of the Wills.

    Richard did not feel a professional was required to prepare the Wills and wrote them himself using a DIY kit purchased from a stationers. Mrs Hazel found the thought of preparing a Will too morbid and, despite Mr Baker being absolutely clear on his intentions, she did not execute her Will at the same time.

    In fact, her will was not executed until the week following Mr Baker’s death. The Will was found to be invalid for lack of testamentary capacity, partly based on medical evidence produced by Mr Baker’s consultant who had advised that Mr Baker lacked the capacity to deal with legal documents at the time the Will was executed.

    It was also considered significant that Mr Baker had not questioned whether Mrs Hazel had executed her Will as he had been so adamant previously. The judge took the view that this was so different from his attitude the day previously that it indicated a lack of capacity.

    Mrs Hazel made claims against the estate on the basis of proprietary estoppel and under the Inheritance (Provision for Family and Dependents) Act. The former because they had agreed to pool their resources and she had sold her own property to move in with the deceased. The court found that the necessary elements for a claim of this nature were not present.

    The claim under the Act succeeded in so far as she was granted a life interest in the property and its proceeds of sale.

    [Author’s comment: the decision made on capacity seems to go against previous cases where a Will was valid if the testator had capacity at the time instructions were taken and understood that he was signing a Will for which he had previously given instructions at the time of execution. This may be because of the conditions attached to the execution by Mr Baker himself and could open a new area of contention up to litigation.]

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    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

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