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Rachael Morley

Posted 14 March 2016
by Rachael Morley

Will declared valid despite testator’s waning mental capacity



Burns v Burns (2016)

Court of Appeal recently upheld the will of an 83-year-old woman despite documented concerns over her mental health at the time the Will was executed.

The testator had instructed her solicitor to draft a new Will for her in late 2004, however, by the time she signed the Will in July 2005 her mental health had considerably declined.

In order for the Will to be found valid, the Court of Appeal had to be satisfied that Ms Burns knew and approved of the contents of the Will at the time of execution. It held that Ms Burns had sufficient mental capacity when she instructed the solicitor in late 2004 and her 2005 Will was therefore valid, despite the decline in her mental health.

This case should serve as a reminder of the Court’s potentially stringent approach where a claimant seeks to prove lack of capacity to execute a Will.  In the Court’s view, the testator still had capacity to understand and execute a Will despite the “deficits” in her memory. However, as the Will in question was in a relatively simple format, it remains to be seen whether the same decision would have been reached had the testamentary intentions been more complex.

This should also act as a reminder to us all that the safest route when preparing a new Will is usually to ensure that the document is finalised and executed in a timely fashion.

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About the author

Rachael Morley

Rachael Morley

Associate

Associate in the wealth management team