The case of Watts v Davies [2024] EWHC 1177 Ch goes some way toward showing the importance of contemporaneous evidence about a person’s testamentary capacity.
Philip Price was 74 when he instructed a solicitor to draft his Will for him. He died three weeks later and was, the Judge concluded “very weak and very frail” when he saw the solicitor. His Will was challenged on the grounds of lack of testamentary capacity and want of knowledge and approval by Barbara Watts who discovered after his death that she was his half-sister.
If the Will was found to be invalid Barbara Watts stood to inherit the entire Estate under the intestacy provisions.
The Estate itself comprised a house in Wales and 74 acres of pasture land which Philip Price had owned all his life. When he died in January 2019 the Estate was valued at just over £800,000. The Estate was left to a close friend and appointed one of his cousins as Executor and Trustee.
In Court evidence showed that at the time Philip Price consulted his solicitor, Sian Morris, he was very ill having recently suffered with pneumonia and suspected sepsis for which a hospital admission had been required and for which he was prescribed opioids. He experienced delirium whilst in the hospital which continued on and off until he was discharged home.
The Will itself was a handwritten Will drafted by the solicitor and Sian Morris was said to have many years of experience in Wills and Probate matters. She gave evidence to confirm that she had no concerns about the testamentary capacity of Mr Price and that she had gone to some lengths to ensure that he understood the Will that was drafted. Her attendance note – made at the time she was instructed – provided assistance.
Medical experts for each side gave evidence as to whether the delirium Mr Price experienced in the hospital would have been continuing at the date he made the Will. For Barbara Watts the expert accepted that there was no medical evidence that the delirium had continued but thought it was possible and could have had an effect on testamentary capacity. For the Estate, a medical expert considered it was a possible but less likely scenario and suggested that even if delirium was present, it was more likely than not that this was mild and it was unlikely that this would have undermined testamentary capacity.
The solicitor, Sian Morris, gave evidence as did a number of Philip Price’s friends who had seen him frequently in the days leading up to his death and described him as mentally still very sharp.
The Judge held that Philip Price did have testamentary capacity at the date he made the Will and that he knew and understood the contents of it having provided information to Sian Morris about his assets and liabilities which she recorded in her attendance note. Further, the Will was not complex and was written clearly so the evidence supported the contention that Philip Price knew and approved the content of the Will.
This case demonstrates how important a contemporaneous note of a client’s instructions for a Will can be.Tick box forms don’t allow the same level of detail to be recorded and are unlikely to jog a Will writer’s memory some years later on if a challenge occurs. A good file note, written at the time instructions are taken can be crucial later on.
The case also demonstrates that there is a huge difference between being ill, old or frail and lacking testamentary capacity.
Each case will turn on its facts but it is important to look at all the circumstances in which a Will was made and consider the evidence carefully. Our expert team can help to obtain the file relating to the making of the Will so that the circumstances can be considered in more detail. The file notes made by the solicitor or Will writer can be made available and looked at in more detail.
Medical records can also be relevant but the starting point is usually the file of papers that relates to the Will instructions being given and the Will being signed.
If you are concerned about the validity of a Will and would like to talk to us please contact Jennifer Laskey ([javascript protected email address]) or Rachel Leatherland ([javascript protected email address]) and we will be happy to talk through your circumstances with you.
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