High Court Judgment ‘Demonstrates Importance Of Quality Advice On Wills’

Case Puts Disputed Wills And Mental Capacity In Spotlight

10.05.2013

By Rob Dixon

A High Court judgment in relation to a will dispute has highlighted the emphasis that the courts place on wills which are drafted with an experienced, qualified solicitor who specialises in such work, according to a legal specialist at Irwin Mitchell.

The court recently upheld amendments made to a will – in the form of a codicil – which saw motor neurone disease sufferer Leslie Stolkin leave an annuity, car and an interest in his home to a cohabitant just weeks before he passed away.

Mr Stolkin’s original will, executed in 2001, stated that his entire estate should be left to his eldest son who was also named executor and trustee. However, while hospitalised in the final weeks before his death, he chose to amend the will with the assistance of solicitors to ensure his partner Pauline Greaves would receive financial provision.

The son, Gary, attempted to contest the codicil on the grounds of want of capacity, as well as want of knowledge and approval. However, following evidence from medical experts, Mr Justice Newey followed a precedent set in the case of Hawes v Burgess and declared the codicil as valid.

Commenting on the case, Julia Burns, a specialist in will disputes at Irwin Mitchell, said: “This case reflects the difficulty of mounting a challenge to a will that has been prepared by a professional solicitor. 

“The recent case of Hawes v Burgess stated that if a solicitor had formed a view that the testator had mental capacity and understood the terms of his will, then it should only be set aside on the clearest evidence of mental capacity or lack of knowledge and approval.  

“This means that contemporaneous evidence from a solicitor who drafted the will or medical practitioners who saw the deceased at the time may well trump the evidence of a person who did not meet the deceased.

“It therefore follows that where these procedures have not been followed – eg.  a will has been prepared by a family member or by a will-drafting company not employing qualified solicitors – it will be easier to prove lack of knowledge and approval.

Julia added: “This case demonstrates the huge importance that the courts place on a will which has been prepared with a qualified and experienced solicitor and we would always encourage people to ensure they have always sought expert advice from the outset.

“Through our work, we have seen numerous instances when a failure to get quality support has meant friends and relatives have ended up facing long and costly legal disputes in order to get access to the inheritance they are entitled to.

“We would urge people planning for the future to always get quality advice and also sit down with their loved ones to explain the decisions they have made. This can prevent much heartache and difficulty in the future.

“It is also worth bearing in mind that if people have concerns over the mental capacity of a testator and whether they understood the contents of their will, they should seek advice on the validity of such documents.

“The issue of will disputes is not black and white and, despite the lessons learned from this case, people should not be put off seeking justice if they feel they have a genuine claim to an estate – even if a will is drafted by a professional solicitor.”

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