In order to make a Will, a person must be mentally capable.  This means that he or she must understand what a Will is and what it does, what assets he or she has to leave and people he or she should consider benefitting.  If a person signs a Will but lacks capacity, the Will is invalid.

A recent case demonstrates how a Will can be challenged in these circumstances. 

A married couple, Patrick and Carol Storey, had been caring for their elderly neighbour, William Bates, for many years.  In 2000, he had recognised their support by making a Will which left his whole estate to them. 

In February 2007, Mr Bates signed a new Will which left everything to other neighbours, Angela Fusco and Derek Taylor.  When he died in August 2007, Mr and Mrs Storey challenged this later Will claiming that Mr Bates, then aged 91, had been suffering from dementia and was mentally incapable when he signed it.

The High Court considered evidence from Mr Bates’ doctor and solicitor and decided that Mr Bates did not have capacity to make a valid Will.  The Court heard that the new Will had been drawn up by Ms Fusco and, around the time it was signed, Mr Bates had been unable to remember the Queen’s name, could not count down from 20 and had been using his crockery as a chamber pot.  Whilst this indicated a lack of capacity, what was crucial was his inability to understand what a Will was and his failure to consider benefitting Mr and Mrs Storey.

The judge said: “In the circumstances, the Will of 2007 clearly cannot stand”.  Mr Bates’ ‘last Will’ was therefore the one written in 2000 and his six figure estate passed to Mr and Mrs Storey.

Hutchinson Thomas’ Wills, Trusts and Probate department is experienced at dealing with and advising on issues of capacity.  The firm also has expertise at dealing with contentious probate cases and advising whether a claim could be made.