Wills, Probate & LPA News & Insights

It is to state the blindingly obvious that a testator must be mentally capable of making a will. The time for satisfying the test of capacity is the time of execution of the will. However, under the principle in Parker v Felgate (1883), it suffices if the testator had capacity at the time when he gave instructions for his will, provided that:

Solicitors have for a long time warned against the dangers and misconceived cost savings in Clients utilising the services of unregulated will writing companies run by non-qualified individuals.

The testatrix died in April 2008. By a home-made will, she left her property to the claimant, who was also her executor. The testatrix’s residuary estate was to be divided equally ‘between her surviving relatives’. The claimant gave evidence that the only relatives that the testatrix had mentioned had been her first cousins on her mother’s side, A, F and P. Further, no mention had been made of another first cousin, E, who had not been seen since 1939, A or P’s families, nor any relative on the testatrix’s father’s side.

Section 18B [1] of the Wills Act 1837 contains new provisions with regard to the revocation of an existing Will by the formation of a Civil Partnership, in the same way that marriage automatically revokes an existing Will, UNLESS, in either Civil Partnership or Marriage cases:

Re Ritchie,Ritchie v Joslin [2009] The classic test for Testamentary Capacity was establish back in 1870 and has stood the test of time ever since! The principles laid down in Banks v Goodfellow [1870-71] state that the Testator (the deceased who made the Will):

Challenges to Wills are on the increase by some 200%. The problem? Farmers! Well actually, the problem is the rather tricky legal concept of Proprietory Estoppel. It just seems to be coincidence that Farmers, for some obscure reason, tend to land themselves “in it” on a regular basis.

A recent case of three families having to fight tooth and nail to reclaim the care home costs for relatives suffering Alzheimer’s and Parkinson’s will be greeted with incredulity. English law, as set out in a Court of Appeal ruling a decade ago, states that residential care costs of a chronically sick person should be paid by the state. It seems that this ruling is being regularly flouted by health trusts.

It is not uncommon for a terminally ill person (the Donor) to gift assets to a loved one in contemplation of their anticipated demise. Such “Death Bed” gifting, whilst not exactly a “lifetime gift”, is neither a “testamentary gift” (reserved for Wills). How does the LAW view such situations and can an aggrieved beneficiary under a Will challenge the gift if the effect is to have severely reduced the value of any remaining property passing under a Will?