On 28th January 2016, the Court of Appeal delivered its judgement in the case of Burns V Burns which represents the latest statement from the court regarding the law on the mental capacity required to make a valid will and the basis upon which a will can be overturned.

The appeal related to the estate of  Mrs Burns who died in 2010.  In 2003 she made a Will which provided that a far larger share of her estate should be left to one son, Anthony, with a smaller proportion  going to her other son, Colin. In 2005 she amended her will and in effect left everything to be divided equally between both sons. Colin issued the original claim for the Court to approve the 2005 Will, which unsurprisingly was contested by his brother Anthony, who stood to gain far more from the earlier will.

Medical expert evidence was given confirming that Mrs Burns was poorly orientated and had poor short term memory.  In October 2003 she had undertaken a test in which she was unable to state the date or year, or to write a sentence.  It was noted that Mrs Burns suffered from moderate to severe dementia.

The Court however concluded that the 2005 will was valid. The Court considered that the will change was ‘rational’ and ‘simple’, and the medical evidence had been obtained in order to assess Mrs Burn’s care needs, not her testamentary capacity. Little weight was therefore attached to it. They concluded that Mrs Burns knew and approved the contents of her new will.

The decision re-affirms the long-held legal test for capacity to make a Will which was set down in the case of Banks v Goodfellow in 1870 and also confirms that just because a person has a failing memory, or some degree of mental impairment, does not necessarily mean that they can’t make a Will.

The number of Will and Probate disputes being dealt with by the court is increasing.  This case serves as another reminder that it is more important than ever to take specialised legal advice in this highly complex area of law.