The recent Court of Appeal judgement in Burns v. Burns  represents the latest statement of the law with regard to mental capacity required to make a valid Will – and is a striking example of how a valid legal document can be made by a person with a failing memory or some degree of mental impairment.
The Will of the late Mrs Eva Burns, dated 2005, was challenged following claims that Mrs Burns had made her Will in 2003, just two months after taking two Mini Mental State Examination (MMSE) tests, both of which put Mrs. Burns’ mental capacity in doubt.
At trial, the expert evidence from a consultant geriatrician was that the MMSE tests provided good evidence that Mrs. Burns was poorly orientated as to where she was in time and place and had poor short term memory. Just two months before she made her Will, Mrs Burns had taken an MMSE test in which she was unable to state the date or year, nor was she able to recall three common objects mentioned to her by the nurse conducting the test only a few minutes earlier.
Mrs. Burns met a solicitor to make a Will in July 2005. She had corresponded with him at the turn of the year, but had not met him to give her instructions. This solicitor was unaware that Mrs Burns had made a previous Will in 2003, and did not ask her to explain the changes proposed by the new Will.
The solicitor in question had a general discussion with Mrs Burns, passed the time of day, spoke about the weather and asked how she was, but had not asked any open questions which would have tested the faculty of Mrs Burns. The Will was therefore read, Mrs Burns said she understood it, and it was executed.
The use of open rather than closed questions in such a situation is considered to be an essential minimum of good practice, and something that the Courts had warned about in earlier cases such as Buckenham v. Dickenson . The Judge ruled that the challenged 2005 Will was valid on the basis that the will was drawn in accordance with instructions given by Mrs Burns when she had full capacity, and executed when she lacked it, but in circumstances where she still appreciated she was signing a document embodying her previous instructions. Alternatively the Judge found that Mrs. Burns had testamentary capacity to execute her simple Will in July 2005.
The Court of Appeal ultimately upheld the decision of the Judge and held that Mrs Burns’ 2005 Will was valid. In doing so the Court restated the tests for testamentary capacity, knowledge and approval, and the rule in Parker v. Felgate. It also confirms that just because a person has a failing memory or some degree of mental impairment does not automatically mean that they can’t make a Will.
Disputing a will is a complex area of the law and it is essential that you consult a solicitor with experience in this area.To speak to a solicitor who specialises in will disputes, please call Farleys on 0845 287 0939 or contact us today.