Simon v Byford demonstrates that the courts will not set aside lightly a will because the testator has failing cognitive faculties. Harriet Atkinson and Zahra Kanani analyse the case ‘The case highlights that for testamentary capacity to be present, the test in Banks v Goodfellow must be satisfied.’ There has been a sharp rise in …
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Wills & Trusts Law Reports | September 2013 #132The claimant sought probate of a will of Dr Cecil Monk (the deceased) dated 5 December 2003 by which the deceased left his entire estate to the claimant. The claimant also sought, in so far as it was necessary, an order that the deceased’s later will of 19 January 2007 be pronounced against on grounds of a lack of testamentary capacity and/or a lack of knowledge and approval.
The defendant, who did not appear and was not represented, was formerly engaged in caring for the deceased. He was an employee of a care agency to whom the relevant local authority had contracted out the care...
Wills & Trusts Law Reports | June 2013 #130The testatrix Iris Wilson (Iris) made a will dated 31 August 2010 and died on 6 October 2010. Her will appointed the first defendant Mr Phythian as the sole executor and left her personal effects and the residue of her estate to the second defendant Mrs Phythian and the property known as North Lodge in Yalding Kent in equal shares to Mr and Mrs Phythian.
Mrs Lynda Turner (the claimant) the niece of Iris challenged the will on three grounds:
- Lack of proper execution.
- Lack of mental capacity.
- Lack of knowledge and approval of the contents of the will.<...
Wills & Trusts Law Reports | May 2013 #129Jessica Schrader (the testatrix) died a widow aged 98. The testatrix’s two sons, the claimant (Nick) and the defendant (Bill), survived her.
By a will dated 1 October 1990 (the 1990 will), drafted by a firm of solicitors, the testatrix had made specific gifts of shares and savings bonds to her grandchildren and thereafter left her residue (on her husband having predeceased) to Nick and Bill in equal shares absolutely.
However, in or about May 2005, the testatrix suffered a fall and Nick moved into the testatrix’s property to act as her carer. On 12 April 2006, a further wil...
The Court of Appeal decision in Burgess v Hawes has muddied the waters on capacity, and want of knowledge and approval. Martyn Frost explains why The importance of the experienced practitioner’s evidence is going to be determined by what they did and what they know of what they should be doing. The recent judgment from …
Continue reading "Wills: Code of practice needed?"
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Wills & Trusts Law Reports | April 2013 #128Daphne Burgess, the deceased (D), died in May 2009 aged 80. She had three children: the appellant, Julia (J), and the respondents, Peter (P) and Libby (L). P and the deceased were very close. He organised her finances and in 2006 bought a bungalow for her to live in. It was to remain in his name, but subject to a lease to his mother to give her security. They agreed that she would pay £21,000 towards the cost of a new kitchen and bathroom that she wanted installed. J and P fell out for a number of reasons, mainly connected with the purchase of the bungalow and related arrangements affect...
Wills & Trusts Law Reports | April 2013 #128
>The defendant (Frank) obtained probate of his late mother’s will dated 26 July 2004 (Abbie and the 2004 will). The 2004 will appointed Frank sole executor of Abbie’s estate, which was bequeathed to Frank absolutely.
The claimants (Stephen and Victoria), Abbie’s other surviving children, challenged the validity of the 2004 will on the ground that their mother did not know and approve its contents. They sought revocation of the grant of probate made to Frank and a grant in solemn form of a will dated 24 January 1999 (the 1999 will), by which Abbie’s re...
Michael Waterworth analyses a case that has lessons for those litigating over the validity of wills ‘In the course of the trial in the case of Mrs Blofield it emerged that one view of the facts – a view favoured by the judge – was that she had used her will to encourage Mr Cranfield …
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