Articles about solicitors and legal services

Man’s will invalid because he lacked capacity following wife’s death

To make a valid will a person has to have testamentary capacity - that is, they must be of sound mind and have a full understanding of what they are doing.

Otherwise, their will could later be declared invalid by a court.

That is what happened in the case of a man who drew up a will at a time when he was devastated by the recent death of his wife.

Before his wife’s death and while he was in good health, the man had drawn up a will leaving most of his estate to his sons and some to his daughters. Then, just nine days after the death of his wife, he made a second will changing the balance so the bulk of his assets went to the daughters and the share going to the sons was reduced.

The sons sought a court declaration that this will was invalid because their father lacked testamentary capacity when he made it so soon after his wife’s death. Both the sons and the daughters agreed that their father had possibly been suffering from the early stages of dementia shortly before his wife died.

His subsequent bereavement triggered an affective disorder which occurred during the period when the second will was made.

The court held that the new will was very different to the original and represented a major change in his approach to the division of his estate. It was made a time when he was old and mentally infirm.

He had clearly been devastated by the death of his wife and this by itself may have been enough to deprive him of sufficient decision making powers to draw up a will that was a true reflection of his wishes.

In these circumstances, it was up to the daughters to show that he had testamentary capacity when he made the new will. They had not been able to do this.

The second will was declared invalid and the first will was reinstated.

Please contact us if you would like more information about wills and probate.

If you wish to make an appointment, or ask us a question please contact us.