Problems with making a will

The recent court case between the Conservative Party and the family of a businessman who left the party £8.3m in his will when he died in 2005, at the age of 80, highlights the need to take legal advice when drawing up wills says a leading lawyer.

London's High Court heard that Branislav Kostic was "deluded and insane" when he made his wills in 1988 and 1989 leaving his estate to the Conservative Party.  The judge found that Mr Kostic did not have testamentary capacity to execute the Wills in 1988 and 1989 and found in favour of the 1974 will which gifted the entire estate to his son and was made at a time when capacity was not in dispute.

Will Dispute Solicitor

Adam Draper, of the specialist Wills and Trusts Disputes team at national law firm Irwin Mitchell, based at its offices in Sheffield's Riverside, says this case highlights how arguments over estates can tear families apart.

Mr Draper explained: "Mr Kostic could have made as many wills in his lifetime as he wanted, but, all things being equal, it is his final valid one which will decide how his estate is divided-up."

"In order to execute a Will a testator must have the requisite mental capacity to make a Will."

As a result the person making the Will:-

• (i) Must understand he is making a Will
• (ii) Understand that the effect of the Will is to dispose of his assets after his death
• (iii) Understand (in a broad sense) what assets are disposed by the Will
• (iv) Must be able to review the beneficiaries who may have a claim on his estate
• (v) Must not be suffering from a mental illness which affects his ability to decide the destination of the estate
• (vi) Must not suffer from a delusional mental illness which has the effect that the disposal would not have been made but for the delusion

If it can be shown that the deceased failed to satisfy any of the above elements of the Will, the will, will be invalid for lack of capacity. It is therefore important to look at a testator's capacity at the time they provided instructions with regard to the Will.

As a matter of good practice, courts recommended that wills drawn up for old or seriously ill people were witnessed by doctors, who ought to record their examinations and findings.

Where a testator is very old or ill, relatives should consult a solicitor in advance about formalities for executing the will and obtaining medical evidence.

Ensure that witnesses to a will are reliable, competent and likely to live longer than the testator. If there is a dispute, they may be required to confirm their opinion of the testator's capacity.

If you marry, seek legal advice about a will, as marriage automatically revokes an earlier will.

Consult a solicitor if you doubt the deceased's capacity or are suspicious about the circumstances surrounding a will's execution.