Even experienced solicitors must take instructions with real care to ensure the validity of a will when capacity issues are involved
The recent High Court judgment in Ashkettle v Gwinnett  EWHC 2125 (Ch) is a stark reminder to the profession that a will is not guaranteed to stand up in court simply because a solicitor is involved in its preparation. Holding that the deceased was ‘unable to communicate in any meaningful way’, the court found that she ‘may have retained a sufficient “social facade” to mask her deterioration from an incurious interlocutor’. In Ashkettle, this was the solicitor himself.
To make a valid will, a person must have testamentary capacity, which means knowing what a will is and its effect, knowing broadly of what one’s estate comprises, knowing and recognising the identity of those who others would most expect you to wish to benefit, and not suffering from delusions which may poison your affections for such people.
It is essential that the ‘golden rule’ be applied, as described by Mr Justice Templeman in Kenward v Adams, to ensure that this burden is met. When a testator is elderly or has been ill, the making of a will ought to be witnessed or approved by a medical practitioner who is satisfied of the capacity and understanding of the testator, and then goes on to record this examination and finding. It may seem difficult or tactless to suggest to an elderly person that a doctor be instructed to check their capacity before their will is made, but it is incredibly important from a legal standpoint. While this also provides no guarantee against the will being challenged successfully, those challenging it will face an uphill struggle to overturn it. This is perhaps the best way of explaining the reason to the elderly person concerned.
This judgment is a stark reminder that even experienced solicitors must take instructions with real care to ensure the validity of a will when capacity issues are involved.
John Melville-Smith, Seddons, Portman Square, London W1