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High Court upholds that dying patient did have sufficient capacity to execute a codicil to his Will

View profile for Andrew Leakey
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The High Court has recently handed down judgment in the case of Greaves V Stolkin and H Montlake & Co [2013] EWCH 1140 (CH), where they had been asked to determine whether a dying testator has sufficient mental capacity to make alterations to his Will just a few weeks before his death

Mr Leslie Stolkin died aged 75 on the 24th September 2009. He made a Will on the 3rd December 2001. This Will had left the majority of his estate to his son Gary, who was the defendant in the proceedings. Leslie was in a relationship with Pauline Greaves for around 12 years prior to his death. When his Will was made in 2001, the relationship was therefore still fairly new, and he did not make any provision for her in the Will.

A few years later, he wrote two notes which gave instructions to give some money and assets to Pauline after his death. The notes were not formal legal documents, and therefore were not valid. This was brought to Leslie’s attention just prior to his death, and he was advised to make a formal addition to his Will, which is referred to as a codicil. Codicils are often executed in addition to an earlier Will, making any minor changes or alterations, instead of having to re-draft the whole Will.

The codicil was prepared by solicitors, and provided that Pauline would be able to stay in Leslie’s home, or an alternative property of her choice bought from the sale proceeds, for the rest of her life. In addition it provided that his estate would pay her £1,000 per month for the rest of her life, unless she cohabited with someone else. Leslie was in hospital when the Codicil was prepared, and signed it whilst he was in there.

Leslie’s son Gary tried to challenge the validity of the codicil on the basis that his father lacked sufficient mental capacity to execute, or that he lack want of knowledge and approval of the contents of it. Pauline was therefore forced to issue a claim in the High Court, asking the Court to make a determination in relation to the validity of the Will.

Mr Justice Newey sitting in the High Court in London found that the factual evidence did not support Gary’s proposition that Leslie was seriously confused on the day he executed the codicil. On the contrary, the evidence was compelling that he did have testamentary capacity when he executed it. Further, it was not irrational that he would want to have provided for Pauline, and was reflected in the two written notes that he had made a few years earlier.

The Court was also satisfied that Leslie’s solicitors had properly read out the codicil to him, and had made sure that it was his wishes, free from any influence from others.

The cost of making a Will with a solicitor if very small, and little in comparison to the legal costs that can be incurred when everything goes wrong, as happened in this case. In this case, had solicitors not been instructed to make this codicil, the Court could have made a very different decision.

As a solicitor specialising in inheritance disputes and also as a registered member of the Association of Contentious Trusts and Probate Specialists (ACTAPS), I recognise that it is important that the cost implications of cases like this are considered from the outset.

By Wills, trusts and estate disputes solicitor, Heather Korwin-Szymanowska

Anyone facing this kind of inheritance dispute, or wishing to contest a will for any other reason, should always seek specialist legal advice at the earliest opportunity. For a fixed fee of £49.95, you can have a 30 minute appointment with either Heather, or another solicitor who specialises in your kind of case. The appointment can be either on the telephone, or face to face, depending on your preference.  We will take some details from you before the appointment, and then the solicitor will discuss your case with you, and what your options are.  If your case is something that we can then help you further with, we can then discuss your funding options with you.

 

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