Contested Will on the grounds of capacity and undue influence

Mr B came to see us following the death of an elderly friend, Mr W, whom he had been living with and caring for in the 2 years before Mr W’s death.

Mr B produced a Will that Mr W had made 6 months before his death, leaving his estate to him. Mr W had made this Will by using the services of a professional Will writer, which was arranged by Mr B.  By the time Mr B had provided us with papers and instructions, we discovered that Mr W’s nephew had already obtained a grant of probate in respect of a Will that Mr W had made in his nephew’s favour several years earlier (Mr W had no other relatives). This led to Mr B issuing proceedings for the earlier Will to be revoked and a grant of probate made in his favour in respect of the later Will. Mr W’s nephew defended those proceedings on the basis that when Mr W made his latest Will he lacked the necessary mental capacity and/or that he was unduly influenced by Mr B.

In order for Mr B to prove that Mr W had capacity to execute the will in his favour, we needed to show that Mr W understood the nature of making the Will and its effects; understood the extent of his assets; and understood the consequences for others. We were able to prove that Mr W did have capacity at the time of making his Will because of evidence from those who witnessed him signing it; by obtaining and producing Mr W’s medical records; by obtaining a statement from the Will writer, and by ultimately obtaining an independent report from a medical expert. The outcome may have been different if Mr W’s will had been more complex. It was relevant that his assets were quite straightforward (e.g. a property and some savings accounts) and that he did not have many potential beneficiaries whom he had to consider. 

Mr W’s nephew was also unable to prove the allegation that Mr B unduly influenced (i.e. coerced) Mr W into making the Will in his favour. Mr W’s nephew was able to produce some evidence of Mr B being rude and aggressive. However, Mr W’s nephew was wrong to think that such behaviour by Mr B was evidence of undue influence. The bigger concern for Mr B’s case was that Mr W had become very reliant on Mr B to care for him. In spite of this reliance, Mr W’s nephew was not able to produce enough evidence of Mr B controlling Mr W and so Mr B succeeded in his claim and the court ordered that a grant of probate should be made in his favour. 

In reality, this case would not have made it to court if Mr B had ensured that there was a greater distance between himself and Mr W when the Will was made. It would have made more sense for Mr W to have instructed a firm of solicitors without any involvement from Mr B so that his solicitor could have independently asked Mr W the appropriate questions to ensure that Mr W knew and understood what he wanted to do with his estate and to ensure that he was not being coerced into making the Will by Mr B.

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