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Can your will be contested if you believe in aliens?
Earlier this month World UFO day was celebrated by enthusiasts of unidentified flying objects in commemoration of Kenneth Arnold’s report of the first sighting of a UFO in the USA. If you believe and see little green people, are you able to make a will?
The answer is “maybe”. Whether or not you are seeing little green people, the courts will look at a precedent established in 1870 in a landmark case called Banks v Goodfellow. That case laid down 4 hurdles that must be overcome for a person to have capacity to make a will, namely you must: -
- understand that a will is a document that disposes of your assets on your death;
- understand the extent of your assets (you do not need to be able to recall every single asset or their values, but should have a good idea of them);
- appreciate who would expect to benefit from your assets (i.e. your family, partner, close friends etc.);
- not have a “disorder of the mind” that influences how you make your will.
These factors were considered in the case of Mrs Harris who suffered from dementia as a result of which she reported that aliens or Saddam Hussein were poisoning her water supply and invading her house. During the time of her life when she was suffering from dementia, Mrs Harris made a will leaving her daughter £10,000 and the balance (worth £590,000) to her son and his wife. Mrs Harris’s daughter challenged the will on the basis that Mrs Harris lacked capacity.
It was held that whilst Mrs Harris was suffering from delusions, they did not have an influence on how she wished to leave her estate and she therefore had capacity to make a will.
Whilst the will was held to be valid, the court proceedings cost tens of thousands of pounds and left the family in disarray. That may have been avoided by following the “Golden Rule”, a set of principles established in the case of Re Simpson. It provides that where a person making a will is “aged”, seriously ill or vulnerable, the making of the will should be witnessed or approved by a medical practitioner who has satisfied themselves of the person’s capacity to make a will and records their findings. Whilst this will not guarantee no claims will be made, it makes it far less likely.
If it is established that a person does not have capacity to make a will, an application can be made to the court for a “statutory will”. This is the case whether or not the person has made an Enduring or Lasting Power of Attorney, or has a Deputy appointed because only the court has the power to make a will for someone who lacks capacity.
If someone has died and there are questions as to whether they had capacity when they made their Will, there is a presumption of capacity provided the will is rational. That presumption can be overturned where there is evidence of incapacity, in which case the people wanting the will to stand must show that the person who made the will had capacity at the time they made the will. Evidence can take the form of testimony from family, friends, a solicitor and medical records (amongst others).
If you want to ensure your will is not challenged, or if you would like the court to make a will for someone who lacks capacity, or if you would like to challenge a will, we can help. Please get in touch with one of our teams in Winchester, Alresford, Sunningdale or London.