Acting to stop harm: the FCA and Appointed Representatives
In the case of Catling and others v Catling and another ( EWHC 180 (Ch)), a Will was declared invalid because the testatrix had not had mental capacity when she made it.
The testatrix was 82 when she died and had suffered from dementia for some years.
She had eight children and made a Will in 2004 dividing her estate roughly equally between them. The Court allowed this Will to be admitted to probate on the basis of medical evidence and also because it was not a ‘radical departure’ from her previous Will. It would therefore have been easier for the testatrix to understand the effects of her actions.
She made another Will in 2007 leaving everything to her youngest child. This Will failed for lack of capacity. This was based on medical evidence. The Court held that the testatrix would not have had the necessary capacity to understand the ‘radical changes’ the new Will was making.
Much was made of the fact that the person drawing up the Will (who was a paid professional but not a solicitor) had not followed the so-called ‘golden rule’ and asked a medical practitioner to act as witness.
Although it might seem unfair to single out elderly people, it is particularly important to think about the golden rule when preparing Wills for these clients. It is not about implying that they do not know what they are doing – it is about making sure that that their Will is less likely to be challenged after their death. This is particularly important if the Will is likely to upset anybody, for example if a close relative is left out.
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