Wills - capacity - elderly testatrix prone to periods of confusion - lack of knowledge and capacity

O died on July 31, 1995. On May 13, 1994, she signed a will appointing A as her sole executrix, which was subsequently challenged by those who would have been entitled on an intestacy. At the time of the execution, O was 84 years old, prone to periods of confusion and in poor health due to non insulin dependent diabetes. A had suggested that O should make a will and had approached T, her solicitor brother in law, who drew up the will for O.

Held, declaring the will to be invalid, that A had failed to discharge the burden of proving that O had the requisite capacity to execute a will, Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 applied. It was particularly important for A to prove that O had given the requisite knowledge and approval, given the circumstances surrounding the drawing up and execution of the will and her position as sole beneficiary under it. O's condition meant that she had moments of lucidity, interspersed between periods of confusion and although she had appeared to understand what she was doing when the will was executed, her GP had found her to be confused earlier in the day. Following the execution, she was subsequently admitted to hospital having been found in a collapsed state and in hospital it was noted that O was confused for part of the time.

RICHARDS v. ALLAN [2001] W.T.L.R. 1031, Anthony Mann Q.C., Ch D.

"Current Law" January 2002