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Making a will: take advice before a river becomes an ocean!

View profile for Lisa Cox
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I was saddened to read last month that there is doubt as to whether George Michael had sufficient capacity to make his last will.

He made the will in 2013, and it has been called into question on the basis of his possible consumption of drugs and alcohol. Questions have also been raised over the beneficiaries of George Michael’s will, particularly due to the fact that most of them were predominant in his life during his heyday in the eighties.

The test for testamentary capacity is commonly misunderstood to be the same as that under the Mental Capacity Act 2005. This has in fact been long established, in the case of Banks v Goodfellows, which requires a testator to:

  1. Understand the nature of the act of making a will and its effects.
  2. Have a general understanding of the extent of their assets which will be disposed of by their will, for example, whether they own property, have any savings and a general understanding of their extent.
  3. Have a general understanding of the people who have some moral claim to their estate, for example their children.
  4. Must not be suffering from any delusions or defect of the mind, which prevents them from acting as they normally would.

Further, in order for a will to be valid, the testator must know and approve of its contents.

The conclusion that a will made by a drug addict or alcoholic is not valid is an easy one to jump to, but is not necessarily correct.

When reading the George Michael article, I couldn’t help but draw some comparison to the case of Edkins v Hopkins and others [2016], in which the court considered the capacity of Philip Hopkins and his understanding of the contents of his will. Philip was suffering from conditions relating to alcoholism and evidence suggested he had consumed some gin before signing his will. Whilst this case was distinct in its own facts, the judge placed heavy weight on the solicitor’s evidence in upholding Philip’s will and finding that he had understood the effect of this and its contents.

Sadly, we live in a day and age where we are quick to make assumptions about one another, especially where someone has previously suffered from addiction. This is why it is important for expert advice to be taken by a solicitor when drafting a will. Taking advice will help protect it from claims against its validity and to help ensure that wishes are followed and not cast aside by virtue of past mistakes.

If you would like to know more about testmentary capacity, or want to talk to someone about making a will, please contact our specialist wills solicitors. If you would like to dispute a will, our team of expert will disputes lawyers can help. I am based in our Chelmsford office and can be contacted on 01206 217307 or lisa.cox@birkettlong.co.uk.

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