When is a will not a will?

This post has been contributed by Amanda Taylor, University of London Teaching Fellow for Equity and Trusts.

One of the criteria for a valid will is that the testator has understood the will he is going to sign or has already signed.

There are four main issues that have to be verified to conclude if the will is valid:

• Formalities
• Capacity
• Intention
• Undue Influence

Let’s look in more detail at Mental Capacity:

The leading case is Banks v Goodfellow (1870) LR 5 QB 549, which sets out the following requirements:

• The testator needs to have the capacity to understand that he is making a will, and that it will have the effect of carrying out his wishes on death;
• He must be able to understand the extent of the property he is disposing of (though not necessarily recall every item of property);
• He must recall those who have claims on him and understand the nature of those claims so that he can both include and exclude beneficiaries from the will;
• And, the testator should not be suffering from a disorder of the mind.

In October 2023 a case was heard in the High Court concerning a person called Kenneth Grizzle who was illiterate. He had left a will in which the three (now adult) children from his marriage had been excluded from the will. The three children disputed the will on the basis that their father could not read and therefore how was he able to understand what was written in the will. No proof existed that he had had the will read to him and nothing was provided to prove that he understood he had excluded his children from his marriage. Mr Grizzle had never divorced the mother of the three children who were disputing the will, but had lived in his house with his new partner and their two children along with a child of the partner. In his will he left the house to the two children he had with his partner and the child of his partner, all of whom lived with him, and he gave his partner the right to remain in the house for life.

The judge ruled that the three children from the marriage and the two children from his relationship with his partner should share in the property. The judge did not allow his partner’s child  to inherit anything.

This shows that even if one presumes a will is valid there might be a claim from those who have been disinherited.

This is a cautionary tale to all students. In the Equity and Trusts module we deal with many wills. We look at the basics of the formalities but it’s important to realise there is far more to making the will valid. Without a valid will one runs the risk of dying intestate which, of course, may have far-reaching consequences and  be completely different to the wishes of the testator.