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Disputed probate cases continue to cause many a headache for many families. A fascinating case recently came to light concerning two brothers and a certain ‘suspicious’ Will made by their elderly mother. The brothers, AB and CB, were arguing over whether their mother, Mrs Burns, had capacity to draft a valid Will in 2005.

Mrs Burns had made a Will in 2003 that left the main asset of her estate, her home, to one brother only – AB. The validity of this Will was never debated. However, in 2005, Mrs Burns made a new Will whereby it was declared that her estate would be divided equally between AB and CB. This Will was drafted in December 2004 but it wasn’t signed or witnessed until July 2015 during which time Mrs Burns mental capacity had begun to be diminished.

The case was taken to the Court of Appeal; if the court agreed that she did not have capacity then her estate would be distributed in accordance with the 2003 Will. At the trial, however, it was decided that the deceased did have capacity to make the 2005 Will.

Common legal questions for disputed cases

This case revisited common legal principles that are fundamental to disputed probate cases of this type:

  1. Did the deceased have capacity to make a Will either when drafting or executing it?
  2. Did the deceased know and approve the contents of the Will when executing it?
  3. The burden of proof is on the person seeking to rely on the Will (CB) to demonstrate that the deceased had capacity/knowledge and approval
  4. The court will look at evidence of friends and family
  5. The court will consider medical evidence of the GP and/or carer of the deceased
  6. Did the solicitor responsible for drafting the Will keep contemporaneous file notes of meetings/instructions and follow the ‘golden rule’ i.e. where a testator (the person making the Will) is elderly or ill, it ought to be witnessed/approved by a medical practitioner who is satisfied of the capacity and understanding of the deceased.

Why the result of this case was surprising

Taking into account the above legal principles, the outcome of Burns v Burns in the circumstances was surprising for the following reasons:

  • The deceased was in her 80s at the time and there had been an obvious decline in her mental health since first providing instructions to prepare the ‘new’ 2005 Will, which was executed some 8/9 months later;
  • Medical evidence introduced by CB to the Court had not been prepared specifically to establish capacity for the preparation and execution of the will, but for simply for determining her care needs;
  • Criticism was directed to the solicitor responsible for drafting the 2005 will, that he had not followed usual protocol, his file notes were ‘sketchy’ and he did not follow the ‘golden rule’;
  • There was a suspicion that the deceased may have been unduly influenced by CB when drafting the 2005 Will;
  • The court did not consider the evidence of family witnesses as it found them to be lacking in impartiality and objectivity.

Whilst this case highlights the risks of taking a matter to Court and the discretion of the Court to make its own decisions based on the facts before it, it also serves as a reminder that a good, reputable solicitor should be approached when seeking to have a Will drafted. It’s vital that the ‘golden rule’ is observed by a solicitor when meeting an elderly, vulnerable or infirm client and that good, accurate file notes are kept of all conversations.

To get in touch with our specialist Wills, Trusts & Probate team, give us a call on 0343 507 5151.