88th Birthday Will Valid, Rules Court of Appeal

August 14, 2014

88th Birthday Will Valid, Rules Court of Appeal

A mother who decided to change her will at a birthday party attended by all her children except the one disadvantaged by the change had the mental capacity to do so, despite suffering from mild dementia, the Court of Appeal has ruled.

The woman had, over the years, written a number of wills. Her penultimate one, written three years before she died, had favoured her son. However, she changed her mind and signed a new will at her 88th birthday party. The new will divided her estate equally between all her children.

The new will was challenged by the woman's son on the basis that her dementia made her incapable of executing a valid will.

The Court of Appeal agreed with the lower court that the woman 'knew that she was making a will, took a conscious decision to make it and approved its terms'. Accordingly, she had the capacity to make it and the will was valid.

A number of cases have reached the courts in recent months in which the mental capacity of the person who has made a will has been disputed. This case is typical in that it shows that the courts require very solid evidence of the absence of mental capacity before they will order that a will is invalidated on these grounds.