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Will Dispute Ruling Puts Capacity And ‘Social Facade’ In Spotlight

Lessons For Public And Professionals To Learn From High Court Decision


By Rob Dixon

The importance of seeking quality advice from specialist legal professionals when drafting a will has been emphasised by a dispute case, which called into question the actions of the will writer involved, according to a lawyer who specialises in contesting wills.

A recent case heard at the High Court related to the validity of a will prepared for Louisa Ann Ashkettle in 1999, which overturned a previous will from 1986 that left her estate to her two sons and daughter and instead left it solely to the latter.

While the brothers and daughter locked in the dispute over the will agreed Mrs Ashkettle suffered from dementia but may have had capacity to understand the nature of making a will, they disagreed on whether she understood the extent of her estate or the implications of changing the existing document.

Ruling that the 1999 will was invalid, Christopher Pymont QC stated that evidence had shown that by the time it was drafted Mrs Ashkettle had lost capacity and added that the terms of the new will did not make sense and “irrational” in the context of her family life.

He added she may have retained a ‘social facade’ to mask her deteriorating mental state, something that is not contradicted by evidence provided by the solicitor who drew up the wills.

Commenting on the ruling, Adam Draper, a Partner and specialist in will disputes at Irwin Mitchell’s Sheffield office, said the case raised a number of important issues for legal professionals and the general public alike.

He outlined: “Will disputes related to the issue of capacity are not uncommon, but there is plenty to be learned from this ruling regarding the conclusions made regarding whether enough was done to properly assess the mother’s full understanding of the importance of making the new will.

“For legal professionals, this is a clear warning that they need to ensure enough is being done to assess the capacity of those drafting such documents.

“The flipside for the public is to ensure they are getting quality legal advice from a professional who will be trained to get to the heart of the matter and ask the rights questions, which may break through any ‘facade’ which has developed.”

Adam added: “We see a lot of cases which have emerged as a result of an elderly person with declining mental health being taken to a will writer, often due to the idea being that their presence gives the will a kind of legitimacy.

“As a case like this demonstrates, the courts carefully assess all aspects of such cases to ensure the right decisions are always made about an estate.

“However, we would also urge people to remember the importance of preparing a comprehensive, clear will at the earliest opportunity, as well as to sit down with friends and family to discuss the decisions which have been made.

“Such action should hopefully make your wishes completely transparent and hopefully avoid any disputes if you do become unable to make decisions regarding your estate in the future.”

Read more about Irwin Mitchell's expertise in relation to Testamentary Capacity