Capacity to Make a Will

Important Lessons from the Recent Case of Margaret Baverstock

The recent case regarding the late Margaret Baverstock highlights the critical importance of adhering to the legal requirements when preparing and signing a Will. In this case, the Judge concluded the deceased lacked the required testamentary capacity, and that the Will signed just eight days before her passing was not validly executed, commenting as follows:

Comments Regarding Testamentary Capacity:

• “The deceased was also extremely frail and on her deathbed. In these circumstances, it was necessary to question Margaret to ensure her understanding.”
• “Merely reading out the document and asking if she understood it was not enough.”

Comments Regarding the Signing of the Will:

• “I am satisfied that the deceased had no idea what was going on. She was unable to act independently and, although she responded with a ‘yeah’ or even a grunt when addressed as mum, that was simply a response to being directly addressed and didn’t indicate consent to signing the Will or acknowledging its contents.”
• “She looked completely blank during the reading of the Will and on all, save one occasion, she only responded to her daughter.”
• “At no point did Margaret ask Lisa for help in signing the Will or direct her to sign the Will on her behalf. Nobody ensured that she understood what was happening by asking her questions about the contents of the Will or asking her to tell them her wishes, and she cannot fairly be said to have signed the Will.”

As there was no previous Will, the Judge confirmed that the Will was invalid and the intestacy rules applied, resulting in the estate being split equally between the deceased’s two children — one of whom would have received nothing if the Will had been upheld.

Key Points to Bear in Mind When Preparing and Signing Your Will

1. Capacity to Make a Will

• You must be at least 18 years old.
• You must be mentally sound and capable of understanding the nature of the Will, what it contains, and the consequences of making the Will. If there are any concerns, a capacity report will usually be requested by the Legal Advisor.
• The Legal Advisor will prepare a detailed note documenting the circumstances of the Will’s preparation, reasons for its form, and considerations regarding capacity — adding protection to your Will.

2. Signing the Will

• The Testator must sign the Will in the presence of two independent witnesses. Both witnesses must be present at the same time and watch the Will being signed.
• Witnesses cannot be beneficiaries (people who stand to inherit under the Will) or their spouses/civil partners, to avoid conflicts of interest.
• If you cannot physically sign the Will yourself, someone else can sign on your behalf in your presence, but additional legal requirements must be met depending on the circumstances.

3. Witnessing the Will

• After you sign the Will, your witnesses must sign it in your presence and in the presence of each other.
• Each witness should provide their full name, address, and occupation next to their signature.

4. Changes to the Will

• If you want to amend your Will, you can either create a codicil (a legal amendment) or make a new Will altogether. The same signing and witnessing rules apply.
• It’s advisable to keep your Will updated to reflect major life changes such as marriage, divorce, births, or deaths.

Here at Franklins Solicitors, we offer a comprehensive Will writing service.
For further advice and assistance, please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email [email protected].