Challenges to Wills based on allegations of a lack of testamentary capacity by the testator are becoming more common with increased life expectancy and an increase in sufferers of dementia.
According to the Alzheimer’s Society almost 700,000 people in the UK suffer from dementia and they estimate that by 2050 there will be 1.7 million sufferers. In light of these alarming statistics the recent introduction of the Mental Capacity Act is designed to provide a statutory framework for assessing capacity and protecting those who cannot make decisions for themselves.
The test for undue influence is a difficult one to satisfy. The person making such allegations must prove that ‘overt acts of improper pressure or coercion such as unlawful threats’ were made to the testator (Royal Bank of Scotland v Etridge No 2 [2002]) which is additionally complicated by the fact that the main witness, the testator, is deceased.
The recent case of Edwards v Edwards & Ors [2007] may have created a turning point in cases where undue influence is claimed. In this case it was held that the Will of the testator was made under undue influence on the basis that the testator’s son, and sole beneficiary of his last Will, had poisoned his mother’s mind against the other two beneficiaries in the original Will (the testator’s other children) by making untruthful accusations.
After hearing all the evidence the judge concluded that the son was guilty of ‘fraudulent calumny’. He described this as a ‘species of fraud’ and explained that it arises where a person poisons a testators mind against someone who would be a natural beneficiary under the Will by making dishonest statements about their character.
The judge held that the son had deliberately poisoned his mother’s mind and, as a result, the deceased’s judgement had been overborne when she changed the Will to exclude other beneficiaries in favour of the son. The Will was set aside for undue influence.
All Will writers should be aware of danger signs to look out for when being asked to make amendments to a current Will. Particularly where a main beneficiary is involved in the process of instruction taking.
Suspicion should be further aroused by any radical departure from earlier Wills that cannot be explained satisfactorily.
In Killick v Pountney [1999] the solicitor was confident there was no ground for challenging the Will. What he did not know was that the defendant had exacted large amounts of money from the testator and threatened not to allow him back in his lodgings. The defendant had spoken to the solicitor as an intermediary and was present on the day the Will was executed. The Court declared the Will invalid.
