Why writing wills can be a dog's life

  • To understand the legal issues around wills and probate.
  • To learn what sort of legal challenges could present your clients with problems.
  • To understand the complexities relating to a person's capacity.
  • To understand the legal issues around wills and probate.
  • To learn what sort of legal challenges could present your clients with problems.
  • To understand the complexities relating to a person's capacity.
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Why writing wills can be a dog's life

The Judge said: “It is admitted that from time to time the testator was so insane that he was incapable of making a will. The question is whether, on 2nd December 1863… the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property and act upon it.”

As a matter of fact, John Banks had spent several periods in a lunatic asylum but on appeal the Court upheld the jury’s decision that despite his history of mental health problems he did have the testamentary capacity. The Court held that a testator must have sufficient mental capacity: “To comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding."

Against that background there has been a startling increase in the number of High Court challenges to wills which were up by more than 80 per cent between 2013 and 2014. That is likely to be a result of several factors. 

First, the increase in our life expectancy means that many more people live to an age where they will suffer from dementia. By way of example the number of people living worldwide with dementia in 2015 was estimated to be 47m. That figure is set to rise to more than 75m by 2030 with one new case diagnosed every 3.2 seconds. 

Second, the increase in property prices means that even those estates which comprise only a family property (like Tracey Leaning’s) are now sufficiently valuable to be worth arguing about.

Third, the historically low interest rates mean that many of the older generation have been able to pay off mortgages so any real property is not mortgaged at the time of death so the value to the beneficiaries is much increased.

Fourth, the increasing life expectation offers greater opportunity for couples to break up, find new life partners and then have second families.  A larger number of dependants is likely to lead to greater friction and more testamentary challenges. 

At present I’m dealing with a claim involving the estate of a 97 year old man who, at the age of 92, divorced his wife of more than 60 years and moved countries to be with a woman he had first married and then divorced in the 1940s. Strange times indeed.

Assessments of capacity: That all emphasises the need to focus very clearly on capacity at the time of making a will.  The golden rule is that capacity should be  confirmed by the solicitor when preparing a will. 

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