The Taylor&Emmet Blog

New court of appeal case on mental capacity to make wills

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 mental capacity required to make a valid will and the basis upon which a will can be overturned.

The appeal relates to the estate of Eva Burns who died in 2010.  In 2003, when she was 83 she made a Will which divided everything between her two sons, Anthony and Colin.  In 2005 she changed her Will to leave everything to Colin.

Medical expert evidence was given confirming that she was poorly orientated and had poor short term memory.  Only  2 months before the Will was made she had undertaken a Mental State test in which she was unable to state the date or year, nor was she able to recall three common objects mentioned to her by the nurse conducting the test only a few minutes earlier. She had also written a letter to the solicitor who prepared the Will dated 1944.

However, despite all of this, the Court of Appeal upheld the validity of the 2005 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 automatically mean that they can’t make a Will.

The number of Will disputes being dealt with by the court is increasing exponentially.  The case serves as a reminder that it is more important than ever to take specialised legal advice in this highly complex area of law before embarking on any such challenge. At Taylor&Emmet we have a dedicated team of experts who specialise exclusively in this area. Please contact our Head of inheritance and will disputes, Alex Watkinson on 0114 218 4000 or at if you have any queries or wish to discuss matters.

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