The paranoid delusions which affected an elderly man’s mental capacity to make a new Will were not properly investigated at the time, the High Court has ruled.
The solicitor who prepared the Will was aware of 94-year-old Edward Smith’s delusions and suggested that his client should be further assessed by a doctor – but failed to ensure this happened.
This was despite a psychiatrist’s report stating that Mr Smith ‘continues to maintain various persecutory delusions that could influence his decisions about how he disposes of his property in his Will.’
The case – which saw an earlier Will reinstated – shows the potential to successfully challenge a Will if the issue of testamentary capacity has not been properly addressed.
Mentally capable of changing his Will?
Edward Smith, who died in 2016, made a Will in 2006 leaving everything – a cottage in Suffolk and around £140,000 savings – to his great nephew, Gavin Boast.
However, in 2012 his relationship with his nephew deteriorated. His GP noted at the time that he had ‘increasingly confused, paranoid ideas…lucid but disorientated in space and time.’ He also had concerns that people were preventing him having his tablets.
Mr Smith contacted his solicitor, Johnathan Margarson, to change his Will, amending it to leave Mr Boast just £15,000 and almost all the rest to his two sisters.
Although expressing concerns about Mr Smith’s mental state, Mr Margarson appeared to accept his client’s assurances that he was mentally capable. This was despite what judge Master Julia Clark described as ‘clear evidence’ that his paranoid delusions were getting worse.
How did mental capacity affect the safety of this Will?
Master Clark pronounced in favour of the 2006 Will as the last valid Will, rejecting the one made in 2013.
She added: “Mr Margarson, having become aware of the deceased’s paranoid delusions, did not investigate whether they were capable of affecting his testamentary decisions, either by asking further questions, or by instructing a qualified medical practitioner to assess this.
“Indeed, although Mr Margarson seems to have considered that the deceased should be assessed by a qualified medical practitioner before making the 2013 will, he did not ensure this was done’.
How do you challenge a Will on the grounds of testamentary capacity?
A Will is a very important legal document and in order to be considered valid, it’s vital that the person who made it had full mental capacity at the time.
Lack of testamentary capacity – having the necessary clarity of mind to make or change a Will – is one of the most common grounds for challenging a Will.
Arguments are often based on allegations of poor mental health or a mental illness resulting in someone being unfairly left out of the Will.
Get in touch
The number of people disputing a loved one’s Will is rising fast.
If you would like to contest or defend a Will, the help of a specialist lawyer is vital as every case needs to be looked at on an individual basis. Time limits also apply.
For help and advice, please contact Wards Solicitors’ Contentious Trusts and Probate Team.
Our lawyers are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS), the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Law Society’s Probate Panel. All demand a high level of expertise and up to date knowledge from their members.
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