An elderly woman knew what she doing when she drew up a new will, even though she was suffering from some mental impairment at the time.
That was the decision of the Court of Appeal in a case involving a family dispute between the woman’s grandchildren and their uncle.
The court heard that in 2003, the elderly woman had made a will leaving the majority of her estate to her elder son and the rest to her younger son. In 2005, she made a new will leaving them both equal shares.
Following the woman’s death, the elder son’s children challenged the will, saying she lacked testamentary capacity in 2005 and didn’t fully understand what she was doing.
The High Court heard that the in 2003, the woman was 83 years old and her mental condition was causing such concern that social services arranged for medical assessments to be carried out. A geriatrician concluded that the woman was “poorly orientated as to where she was in time and place, had poor recall and had problems with analysis and simple task planning”.
Nevertheless, the judge concluded that she did understand what she was doing when she changed her will in 2005. He said the evidence in late 2004, when she gave written instructions to her solicitor, showed that she could still determine “crucial parts of her life”.
She was still essentially independent of mind on issues that were important to her; she understood what she was asking her solicitor to do.
The Court of Appeal has upheld that ruling. It said that the woman’s decision to divide her estate equally between her two sons was both rational and simple for her to comprehend.
She attended the offices of her solicitors in person to collect documents to achieve such an end. Her actions and the unchallenged letters that she wrote and signed provided enough evidence to conclude that she did have sufficient mental capacity at the time she changed her will.
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 EWCA Civ 37
IN RE THE ESTATE OF EVA BURNS (DECEASED) sub nom (1) STEVEN ANTHONY BURNS (2) LAURA OLIVIA GRAMAUSKAS (APPOINTED BY ORDER TO REPRESENT IN THESE PROCEEDINGS THE ESTATE OF ANTHONY BURNS (DECEASED)) v COLIN LESLIE BURNS