Contested will addresses mental capacity concerns

30 April 2010



Questions have been raised during a recent court case over how mental capacity should be taken into account when a bereaved individual decides to change their will. In the case of Key v Key, the two sons of an 89-year-old man claimed that his decisions had been marred by the death of his wife when he opted to change his will.

They believe that his judgement was clouded due to bereavement and that the wishes expressed in the document should not be taken into account. The sons believe their father lacked the mental ability to be able to make sound decisions.

Lord Justice Briggs, who oversaw proceedings, said the solicitor of Mr Key had received instructions from his client without taking into account his testamentary capacity. He noted how the 1870 case of Banks v Goodfellow - which is often perceived as a test case on the subject - could now be further clarified due to the advancements of modern medicine and psychiatry.

Camilla James, elder law specialist at B P Collins, comments: "With the introduction of the Mental Capacity Act which has as its starting point that everyone is deemed to be mentally capable until proven otherwise, it can still be important to ask for further evidence of capacity - such as a doctor's certificate - particularly if a testator is vulnerable through age, illness, grief etc. While it can sometimes upset a testator to be asked for this (it is not called the golden but tactless rule for nothing), given the increase in contentious probate, it is always better to be 'safe than sorry'."

If you require legal advice, for either your private affairs or organisation, please call Buckinghamshire based B P Collins Solicitors on 01753 889995, complete the online enquiry form or email enquiries@bpcollins.co.uk.

Posted by Camilla James

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