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    Wills made by a 90-year-old testatrix, by which she excluded her family who had been beneficiaries under an earlier will in favour of a woman who had power of attorney for her, were duly executed, but were invalid because she did not have testamentary capacity due to her moderate to severe dementia.

    The claimant (C) claimed that the two last wills of the deceased (D) had not been duly executed and that she had lacked testamentary capacity. The defendant (V) counterclaimed for probate in solemn form for one or other of those two wills.

    C was related to D by his marriage to D’s niece. D had made a will in 1978 under which she appointed C her executor and, after a legacy to her brother, left the remainder of her estate in equal shares to her brother’s two sons, his daughter and C. The validity of that will was not at issue.
    The two later wills were executed in October 1990, when D was 90. Both left her estate to V and appointed V executrix. Because the solicitor involved was concerned about one of the witnesses’ signatures on the first of them, dated October 19, an identical replacement was prepared. That one, dated October 24, was apparently witnessed by two brothers. The solicitor did not meet D and was not present at the execution of any will.
    D’s main asset was the house in London where she lived for the last 37 years of her life. She had no children and had been divorced since the 1930s. Her brother, his children and C all lived abroad. V, who was unrelated to D, had lived in the upstairs part of D’s house since 1984 or 1985, but did not pay rent.
    In 1986 D signed a general power of attorney in V’s favour. In 1990 she granted V and V’s sister an enduring power of attorney. She died in 1991.
    C contended that by October 1990 D was suffering from dementia to such a degree that she lacked the necessary capacity to make a will. V submitted that D was of sound mind and had executed new wills because of the hostility she had come to feel towards her brother and his family.

    HELD: (1) The 1990 wills were, on their face, duly executed and contained standard attestation clauses. The evidence of the one living witness of the October 19 will was contradictory and fell far short of being the “strongest evidence” that would be required to rebut the presumption of its due execution, Sherrington v Sherrington (2005) EWCA Civ 326, (2005) 3 FCR 538 applied.

    The two brothers who had signed the October 24 will as witnesses were Italian. At the time neither of them could read English, and one of them could hardly speak or understand it. Their evidence about the event, which was understandably vague, was that at the time they did not know they were witnessing a will, they did not recall seeing D’s signature or see her sign anything, and they did not sign in her presence.
    In all the circumstances, despite their evidence raising doubts about what happened it was not sufficient to rebut the presumption that the will was duly executed.
    (2) There was ample evidence before the court that credibly called into question D’s capacity to make a will. Therefore the burden shifted to V to show that D had the required mental capacity. This she had failed to do.
    The expert medical evidence was that D had moderate to severe dementia in October 1990. She did not recognise her brother and niece when they visited her in August 1990, which meant that she did not have an essential element of testamentary capacity, namely the ability to recall the people who should be considered as possible beneficiaries, Boughton v Knight (1872-75) LR 3 P & D 64 Ct of Probate applied.
    D’s resentment of her brother could not be explained rationally, and did not fit with the long history of closeness in her family. Rather, it reflected a disease of the mind that had operated to poison her affections towards him, which deprived her of the necessary capacity to make a will, Banks v Goodfellow (1869-70) LR 5 QB 549 QB applied.
    V’s own evidence that D remained in full command of her mental faculties at the time of the 1990 wills and until long afterwards was self-serving and quite contrary to the overwhelming weight of other evidence.
    (3) Therefore the 1990 wills were not valid and the 1978 will was valid and in force.

    Judgment for claimant

    Ch D (Blackburne J) 16/10/2008
    Lawtel 3.11.08