• 01616 966 229
  • Request a callback
Stephensons Solicitors LLP Banner Image

News and Events

Mental capacity - a case law review - Hawes v Burgess

View profile for Jordan Davies
  • Posted
  • Author
Disputing a Will - practical considerations

This week we are considering another case where the courts considered the mental capacity of a testator. We have also considered the case of Banks v Goodfellow where the court provided us with the golden rule. We will now be considering the case of Hawes v Burgess where the court considered mental capacity, the intentions of the testator and therein the validity of the testator’s Will.

Burgess v Hawes

In this case, Mrs Burgess made a Will in 1996 leaving her estate to her three children in equal shares. In 2007, nearly 20 years later, one of her daughters made an appointment for her to attend a solicitor to make a new Will, excluding one of the siblings. After Mrs Burgess died, two of the children sought to challenge the validity of the will, stating that their mother did not have the necessary mental capacity nor the requisite knowledge and understanding.

The judge found that when Mrs Burgess was making her second Will, she was suffering from poor health and it was concluded that, following provision of expert evidence, she had been suffering from modest dementia.

The 2007 Will had been drafted by an experienced solicitor who had met with Mrs Burgess on two occasions. The solicitor confirmed that he had no concern as to Mrs Burgess’ mental capacity, though he had not carried out any formal assessment. At both of these appointments, the sibling who had arranged the appointments remained present throughout each meeting.

The judge noted that the 2007 Will had not been sent over to Mrs Burgess prior to their meeting, for her to read over in advance. This was deemed to be poor practice. At the meeting, the solicitor read the contents of the Will to Mrs Burgess, in the presence of her daughter.

It was found that there were mistakes in the draft Will, some of which had originated from the daughter’s involvement and none of these mistakes were detected by Mrs Burgess prior to her executing the Will.

The judge concluded that, when considering the expert evidence, if Mrs Burgess had excluded one of her children from her Will, it was more than likely that this had been done as a result of the vascular dementia that she was suffering at the time, and that it was not her true intention.

The judge concluded by stating that people can make a valid Will, even if they are old or infirm or if they are in receipt of help from others, and even if the terms of the will are hurtful or unfair to some people. However, a person must be mentally capable of understanding what they are doing when they make their Will and that what is in their Will truly reflects what they freely wish to be done with their estate upon their death.


Where a Will has been drafted by an experienced solicitor, the court will always look to uphold that the Will is valid. However, in this case, although Mrs Burgess’ mental capacity was in question, the key component behind declaring the Will invalid was the involvement of Mrs Burgess’ daughter, who seemed to be the driving force behind the 2007 Will, therein depriving Mrs Burgess of her due knowledge and approval of her own Will, as it did not reflect her true wishes.

When looking to prove a document as valid, also referred to as propounding a document, the person seeking to propound the document must be able to show that at the time that the document was executed, the testator knew and approved of its contents. This must be proven on the balance of probabilities. In the case of Fuller v Strum [2001] it was stated that in circumstances where the suspicion of the court has been aroused, the law places the burden of proof on the propounding party of the Will, to prove that the deceased knew and approved of the Will that was being executed. The evidence required to do so will vary between each case and the extent of evidence provided will be proportionate to the level of suspicion aroused.

It can be helpful for a testator to execute a letter of wishes or letter of intention alongside their Will. This document will allow the testator to further support the decision made in the Will and provide explanation as to their reasoning. This can, at times, assist in defending a claim challenging the validity of a Will.

If you think that you may want to challenge the validity of a Will, please get in touch with us and we will be happy to discuss your matter further, call us on 0161 696 6178 or complete our online enquiry form.