Case Study: Eva Burns
The recent case of Eva Burns highlights the importance of planning for later life when the Court Of Appeal upheld a High Court decision regarding the validity of a Will signed by a woman showing moderate to severe signs of dementia.
Widow Eva Burns passed away in May 2010 leaving her two sons, Anthony and Colin.
In 1982, Eva and her husband Leslie, who died in 1988, sold Colin one half of their house.
In May 2003 Eva made a Will bequeathing her half of the property to Anthony and the rest of her estate be split equally between her two sons leaving them both with 50%.
But in July 2005, Eva made a new Will stating that each son should receive half of her estate. Considering the transfer in 1982, this would leave Colin with 75% of the estate and Anthony with only 25%.
In September 2003, Eva was displaying a lack of memory and signs of confusion and Anthony was so concerned about his mother’s condition that he contacted social services for help with her care. In March 2004, she began attending a day centre for those living with dementia.
Eva was confused and was talking as though her late husband was still alive. The manager of the centre described her as showing signs of moderate to severe dementia, however in July 2004 her condition was improving.
When Eva began to make a new Will in November 2004, she asked the solicitors who had prepared her Will in 2003 to retrieve it.
She later wrote to them saying that she would like to leave her estate to her sons equally.
A month later, her solicitor replied with a draft Will for her to approve.
In a letter dated during the week 14/12/04 she approved the Will and agreed to have it signed in the New Year.
Eva’s mental state was reviewed once more in May 2005 and she was assessed as being poorly oriented, she had problems with analysis, recall and simple task planning and remained in that condition for three months.
When Eva went to sign the Will in 2005, the solicitor failed to test her mental capacity, failed to read the Will to her and made no reference to her previous Will when speaking to her.
Anthony challenged the validity of the Will on the grounds that his mother lacked the capacity at the time it was executed.
But despite her problems, the Judge sitting at the High Court found Eva to be of “independent mind” stating that she knew she had two sons and was aware of her assets. He was satisfied that when she wrote to the solicitors she knew what she was asking them to do.
The judge also found that the solicitor would have been alerted by their conversation on the day the Will was signed if there was a question about Eva’s capacity.
Anthony appealed this judgment on the grounds that his brother had not shown enough evidence to prove his mother was capable of making a Will, claiming the judge had largely ignored the assessments of Eva’s mental capacity.
The Court of Appeal upheld the decision of the High Court judge ruling that the steps Eva took to procure a new Will were sufficient to prove she had testamentary capacity at that time.
It found that the High Court judge had not ignored the psychiatric assessments as he had referred to them in his judgment and that although not thorough in testing Eva’s capacity, the solicitor was experienced enough to ascertain that she knew what she was doing.
Expert Opinion - Paula Myers, Partner
"Although the conclusion of the case may surprise some people, it shows the complexities and technicalities that litigants may face when challenging the validity of a Will.
"It is important to remember that each case is judged on its own merits and facts. Contesting a Will is a lengthy and often emotional process and litigants should consider their options very carefully before proceeding with this type of action."
Paula Myers, Partner
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