DIY Wills, testamentary capacity and contemporaneous evidence

Background

The recent case, heard in the Central London County Court, concerning the estate of Margaret Baverstock has hit mainstream media headlines following the judgment by Judge Evans-Gordon. 

Margaret was aged 76 at the time of her death in March 2021 and suffered from arthritis and advanced dementia. 

Following her death, Margaret’s son, John, contested his late mother’s Will, the effect of which was to entirely disinherit him from her estate (valued at £700,000). Instead, the entirety of Margaret’s estate was left to her daughter, Lisa.

It's reported that the will was not prepared by solicitors, but instead had been produced from an online template which was amended by Lisa to name her as Margaret’s sole executor and beneficiary. The Will was executed only eight days prior to Margaret’s death. 

Video evidence played at the trial showed Lisa place the pen in her mother’s hand and then guide her to execute the Will. Judge Evans-Gordon noted the video showed Margaret provided minimal responses to Lisa’s questions during the signing of the Will, aside from the occasional “yeah” or murmuring sound.

The judgment

The judge concluded that the Will was not validly executed. The Judge also further concluded that Margaret didn't, in fact, have testamentary capacity and didn't “know and approve” of the contents of the Will. 
As a result, the judge determined that Margaret died intestate and, therefore, her estate should be divided equally between her two children.

The evidence in this case is certainly unusual; it's uncommon to have contemporaneous video evidence of the execution of a Will, which can then later be relied on as evidence in a challenge as to the Will’s validity. In some cases, video evidence can be very helpful in providing a contemporaneous record of the testator’s intentions and capacity. In this case, it isn't clear who videoed the signing of the Will or what they intended the video to prove, but ultimately it appears to have in fact provided conclusive proof that the Will was invalid.

What does this mean for you?

Specific requirements need to be met for a Will to be validly executed. Those preparing and executing a Will without specialist expertise can often inadvertently fall foul of these requirements.

A testator with dementia or other health conditions may still have capacity to execute a Will, but where their medical condition or family dynamics means that a challenge to their Will on the basis of lack of capacity or lack of knowledge and approval is likely, steps can be taken to reduce the likelihood of a challenge or assist in its swift resolution. Contemporaneous video evidence can, in the right circumstances, be valuable in swiftly resolving disputes. 

If the video evidence in this case is as described in the media, it also appears that Lisa, the defendant, would have benefitted from specialist advice as to resolving this dispute without it reaching trial. As it is, she has been left to pay the claimant’s costs, estimated to be £80,000. 

This case emphasises the benefits and ultimately cost savings in obtaining specialist advice both in the preparation and execution of a Will, and in resolving disputes if they do arise. 

If you're considering making a Will and the testator’s health or family dynamic means that a challenge may be on the cards, or a challenge has indeed arisen, our experienced private client team and specialist estate, trusts and wills disputes team can offer valuable advice. 

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