How and when you see your client when taking instructions on their will may be important. Often, capacity can change significantly, even over a short period.

Case Study: Mrs. Keats' Will Revocation

This article concerns a case in which Deputy Master Linewood, in accepting the evidence of an experienced solicitor, Ms Webb, found that her client had the capacity when tearing up her will and asking Ms Webb to assist.

However, he went on to suggest that solicitors dealing with clients where their mental capacity could be challenged should record their meetings electronically.

By way of background, the now deceased Mrs Keats made six wills between 2005 and 2020 and contacted Ms Webb in 2021 as she wanted to make a further change.  She had fallen out with the claimants, who were the executors and two of the residual beneficiaries under the existing will.

Wills can be validly revoked if the person who made it decides to destroy it and Ms Webb advised Mrs Keats that if this was her wish she could do so meaning that her sister would inherit under the laws of intestacy.

Upon seeing that Mrs Keats was struggling with the tearing up of the original will, Ms Webb asked her if she required any help, to which Ms Keats responded with a nod.  Ms Webb in maintaining that Mrs Keats had capacity at this point proceeded to assist her and finish the task.

This nod was considered by Deputy Master Linewood as a positive communication and accepted Ms Webb’s evidence that her client had the capacity to revoke the original will.

Mental Capacity: A Critical Consideration

Although Ms Webb had kept an attendance note of her visit Deputy Master Linwood suggested that it may be appropriate for solicitors in such circumstances to record their attendance by video on a telephone or other electronic device.

This appears to be sound advice when meeting with clients where capacity could be in issue and would be a valuable aid in resolving disputes which may arise later.

This case has recently been heard by the Court and a judgment is expected in the coming months but undoubtedly it will bring some clarity to the law as to revocation of a will as set out in Section 20 of the Wills Act 1837.

Legal Framework: Wills Act 1837

States that a will can be deemed destroyed and made invalid by several means, including: “by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same”.

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Protecting Legal Interests: After The Event (ATE) Insurance

• Claims for Financial Provision
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• Forgery and Fraud
• Lack of Mental Capacity
• Undue Influence
• Rectification and Estoppel Claims

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If you’re a Probate Litigation Solicitor contact us for expert assistance

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• Phone: 0870 766 9997
• Email: info@boxlegal.co.uk

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