The validity of wills is often a source of argument in the courts. In a recent case, a woman with Alzheimer’s disease, in which periods of confusion can alternate with periods of lucidity, made a new will.
The woman had been estranged from one of her children, but went to stay with her and her husband. While there, she revoked a power of attorney she had previously given to her brother-in-law and created a new will which gave her entire estate to her previously-estranged daughter to distribute according to a ‘secret codicil’. The will was written on a standard form bought at a stationer’s shop. The woman’s earlier will had left bequests to several people with whom she had long-standing relationships and was utterly different, in effect, from the new will.
The new will was contested by the woman’s brother-in- law. The question before the court was whether, on the balance of probabilities, the woman had testamentary capacity when she signed the will. This means whether she knew the contents of the will and understood the effect of it on the day that she signed it.
The High Court judged that it would be unsafe to conclude on the balance of probabilities that the woman had testamentary capacity when she made the will and accordingly the earlier will stood.
It is sensible to write your will at a time when your mental capacity cannot be doubted. If there is likely to be any challenge to the will, it is important to obtain evidence that you are mentally capable when it is drafted. It is important to take legal advice, which will also ensure that the will is properly drafted and does not fail because of a technical defect.