Will Dispute Case Update – Hawes v Burgess (2013)

18 April, 2013

by: Cripps Pemberton Greenish

This Will dispute case involves a situation that our specialist Will disputes team are commonly asked to advise upon. Specifically, a parent making a Will which excludes one or more of her children.

The facts of this case are as follows. In 1996 the deceased made a Will under which her estate was divided equally between her three children.

In 2007 one of her children made an appointment for her to attend a solicitor and the deceased made a new Will dividing her estate equally between two of her children.

The deceased’s health at the time was declining. However, the solicitor was independent and his attendance note confirmed he believed the deceased had mental capacity.

The solicitor explained the contents of the Will to the deceased before the Will was executed, but she had not considered it in advance. The child involved in making the appointment remained in the room during meetings.

It was found during the trial that inaccurate information had been provided to the solicitor about lifetime provisions made to the excluded child.

The judge held that the child involved in the arrangements for making the new Will was a ‘controlling force’. Nothwithstanding the involvement of a solicitor, it was therefore found that the deceased lacked “knowledge and approval” of the contents of the Will and it was invalid.

The judge also found that the deceased lacked testamentary capacity according to the test established by the case of Banks v Goodfellow and that the Will was also invalid on this ground.

An appeal was lodged but dismissed.

This case highlights the risks invovled in making Wills excluding close family members, particularly if made late in life with the assistance of someone who stands to benefit. Legal advice from a specialist firm should always be sought before the Will is prepared.

The full judgment can be read : here