Will Stands Against Challenge

Posted: 3rd August 2011

A recent case illustrates how strong the evidence must be before the presumption that a person making a will has the mental capacity to so will be overturned.

It involved an elderly woman who died leaving an estate of a little under £150,000. Her only relative was her granddaughter. The woman had been looked after by a neighbour for some years and appointed him to be her executor and the beneficiary of her estate.
The woman’s granddaughter sought to have both the will and the man’s appointment as executor overturned, alleging that:
  • the woman lacked testamentary capacity (i.e. was not ‘of sound mind’ when she executed the will);
  • she did not know and approve of the contents of the will; and
  • the will was procured by undue influence.
It was in point that the woman had previously instructed a firm of solicitors to prepare her will, but had not proceeded with it. Evidence was given by the firm that they had reservations about her testamentary capacity when she instructed them.
The court ruled against the granddaughter. There was almost no evidence that she did not know and approve of the contents of the will or that it was procured by undue influence. As regards the issue of testamentary capacity, the judge considered that she had ‘good days and bad days’, and that she could therefore be presumed to be of sound mind.
Partner Note
Cowderoy v Cranfield 2011 EWHC 1616.