When is a Will invalid? This is a question that perennially comes before the courts.
The Case
In the recent case of Copley v Winter [2023], the High Court in England had to decide whether the deceased had made a new Will shortly before she passed away in 2019.
In this case, a friend of the deceased the “Defendant” who had benefited under a previous Will made by the deceased in 2017 challenged the validity of the Will that the deceased had made in 2019. The Defendant did this by claiming the deceased (1) did not have the capacity to make the 2019 Will and (2) did not make the 2019 Will of her own free will, i.e. she had been pressurised to make the 2019 Will by the “Claimant” in this case. The Defendant’s case was that the 2019 Will was invalid.
If the 2019 Will was invalid, then the earlier 2017 Will would become the deceased’s last known Will which would have benefited the Defendant and excluded the Claimant.
After a hard fought trial that saw many witnesses give evidence, it was the evidence of the deceased’s solicitor who had prepared the 2019 Will and who was present when it was signed that became the crucial evidence that persuaded the court that the 2019 Will was valid.
It has long been the law in England that a Will can be invalid if the person who makes it either does not have the necessary mental capacity to make it (known as testamentary capacity) at the time it was made, or if he or she did not act of their own free will when making their Will, for example where coercion causes a person to make a Will not by choice but because they were forced to do so.
Testamentary capacity
In this case, the Defendant argued that when the deceased changed her Will in 2019 she did not have the capacity to do so because at the time she had been taking the drug Oramorph which could cause euphoria or sleepiness.
Relying upon the evidence of the deceased’s solicitor who had prepared the 2019 Will that the deceased had known precisely what she was doing in a meeting on the 17 January 2019 when the Will was signed, the judge decided that the deceased had the necessary testamentary capacity when she made the 2019 Will.
The Defendant’s claim that the 2019 Will was invalid because the deceased did not have testamentary capacity therefore failed.
Undue influence
Separately the Defendant also claimed that the 2019 Will had been obtained by the assertion of undue influence by the Claimant who stood to benefit from the 2019 Will.
The court had to decide whether or not the deceased was acting of her own free will when she made her 2019 Will. Again, the crucial evidence that persuaded the court in reaching its decision that the deceased had most likely not been under pressure came from the deceased’s solicitor who gave evidence that there had been no appearance of any pressure on the deceased when the deceased gave instructions to prepare the 2019 Will or at the meeting when the Will was executed on 17 January 2019.
The court therefore decided that the deceased had not been subjected to undue influence by the Claimant when making her 2019 Will and it was therefore a valid Will.
Practical points
No new law was created in this case, but the case highlights the importance of having your Will professionally drafted and ensuring that your solicitor keeps a full and accurate record of the preparation and execution of the Will.
