Will Dispute Case Update – Williams v Wilmot (2012) EWHC 221 (Ch)

28 December, 2012
by: Cripps Pemberton Greenish

In the recent Will dispute case of Williams v Wilmot (2012) EWHC 221 a Will challenge was made by the Claimant (“C”) in respect of a Will made in 2007 on grounds that Dr Monk, the person who made the disptued Will, lacked testamentary capacity.

This is an interesting Will dispute case because the Court rejected medical evidence obtained at the time that the disputed Will was prepared and, as a consequence, pronounced in favour of the previous Will made in 2003.

The facts were as follows.

Dr Monk made a Will in December 2003 (“the 2003 Will”). Thereafter, in December 2006, the Local Authority wrote to Dr Monk’s solicitor requesting a report from his GP due to their concerns over his mental health.

This report recorded a score of zero for recall and a low score for attention. A further examination was carried out on 7 February 2007 by a consultant psychiatrist, who found that Dr Monk was suffering from dementia.

However, by this point Dr Monk had made a new Will (“the 2007 Will”) and a new Enduring Power of Attorney, which were in favour of his carer, the Defendant (“D).

The solicitors who prepared the 2007 Will were not Dr Monk’s normal solicitors or local to him. Although they obtained a doctor’s report, this was not by Dr Monk’s usual GP but by someone who lived some way away.

That doctor carried out a mental state examination and an assessment of cognitive function on 5 January 2007 and, in his opinion, Dr Monk did not suffer from any significant depressive or dementing illness.

In the meantime, Dr Monk’s normal solicitor, who was aware of his declining mental state, sought to register the original EPA, which happened on 26 March 2007.

Following Dr Monk’s death, C contested the 2007 Will and sought an order granting probate of the 2003 Will on the grounds that Dr Monk lacked capacity and/or was not sufficiently or at all aware of or approved the contents of the 2007 Will.

It was held that, despite the contemporaneous medical evidence obtained by D, the medical evidence overall was sufficient to show that, on the balance of probabilities, Dr Monk did not have capacity at the time he gave instructions for the preparation of the 2007 Will or at the time it was executed.

The Will challenge was therefore successful.

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