Ask Ollie – In Trust Winter 2018/2019

28 / 12 / 2018

My mother and my father made wills around ten years ago leaving everything to the surviving spouse and then equally to me, my brother and my sister on the second death. My father has since died and my mother wished to change her will to leave her estate 3/4 to me and 1/4 to my siblings. My mother is 95, I am concerned about her mental state and I question whether a new will would be valid?

Your mother’s mental state is a valid concern, particularly as your siblings stand to lose out under the new Will. The legal test for capacity to make a Will requires your mother to understand that she is making a Will, the extent of the property which she is giving away and appreciate the claims on her estate; there must also be no ‘disorder of the mind’ which ‘shall poison her affections or pervert her sense of right’.

If your mother makes a new Will which is challenged by your siblings after her death and it is found that she did not have the requisite testamentary capacity, the new Will will be ruled invalid and your mother’s estate will pass under her previous Will. There would also be considerable legal costs and this would, no doubt, create animosity between you and your siblings.

If your mother’s capacity is in doubt, it would be a good idea for her to instruct a competent solicitor who has experience of mental capacity issues before she makes a new Will. That solicitor should follow the ‘golden rule’ that provides that a medical practitioner (ideally a psychiatrist) should advise on your mother’s capacity and witness the Will if satisified that she is legally able to make it. The solicitor should also discuss the previous Will with your mother and keep a written note of why she is changing it, taking instructions from your mother in the absence of you and your siblings. If the ‘golden rule’ is followed, this should be persuasive to a court if your siblings try to challenge the new Will.