Thursday 6th June 2019
Another day, another challenge to a Will, and this time a case which looks at the importance of testamentary capacity. Will drafters are often alert to the testator who gives 'bizarre' instructions or wants to change their Will in a manner that makes no sense as this can indicate lack of capacity. However, this case acts as a reminder that even an apparently logical decision to change a Will does not necessarily mean a person has the requisite capacity to put in place a valid Will.
This case involves the testator, Mr Tickner, who developed a close friendship with his cleaner, Mrs Da Costa, and decided to leave his residuary estate to her after a falling out with his nephew and not being particularly close to his daughter. He made a Will to this effect in 2014. Mrs Da Costa cared for Mr Tickner and spent a large amount of time looking after him and it seemed that they both considered each other to be family.
The following year, having reconciled with his nephew and after seeing more of his daughter, Mr Tickner made a new Will in favour of his daughter and made a gift of his property to his nephew. Mr Tickner was very poorly at this time and died a few days later. Mrs Da Costa challenged the validity of the new Will. Whilst the judge acknowledged that the change to the Will was understandable given the change in Mr Tickner's relationship with his family, medical expert evidence was clear that Mr Tickner did not have the necessary capacity to put in place a new Will and so the 2014 Will was the valid one.
Whether or not someone has testamentary capacity can be a minefield. Advanced age and/or serious illness does not necessarily mean someone lacks capacity but often there is a connection and a seemingly logical Will does not always mean the testator had capacity at the time the Will was made.
Refresh your mind on capacity issues and other Will drafting requirements on Central Law Training's popular Certificate in Will Drafting course.
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