Known as Testamentary Freedom, a person making their will (a testator) can decide to make provision and leave gifts to family, friends and/or charity on their death – and also to exclude people from benefiting. The law will only step in to deal with the distribution of a person's estate if they have chosen not to make a will.

Testamentary Freedom has once again hit the headlines this week with reports in both the Daily Mail and the Telegraph that, following a loss of capacity due to dementia, a testator (Michael Collins) was prevented from amending his will due to a lack of capacity. Reports state that this is despite the Court accepting that Mr Collins had a substantial ‘change of heart’ as to who he wanted his estate was to pass to on his death.

Details of the case

It appears that following a deterioration in his health and the death of his wife, Christine, Mr Collins has now moved into a nursing home. Before Christine’s death, both Mr and Mrs Collins had made wills gifting their estates to each other and then, on second death, to The National Trust. Sadly, it is reported that they had lost faith and trust in the charity's work due to a dispute over the construction of a bird hide on the boundary of their property, which adjoined National Trust land.

An application was before the court with Judge Jeremy Cousins ruling that it was not possible for the terms of the will to be altered, despite apparently accepting the change of heart of Mr and Mrs Collins, before she died and his loss of capacity.

At present, the nature of the application before the Court is unclear, but it appears to have been put forward by Mrs Collins's executors, potentially with a view to altering the entirety of her estate passing to Mr Collins and then through his estate to the charity.

The Law

The law recognises that only those people who meet the necessary legal tests for Testamentary Capacity[1] can make or amend a will. This test is designed to ensure that people's wishes are respected and promoted as far as they can be, but also weighs in the balance the need to protect vulnerable people.

An application to the court for a statutory will can be considered if somebody lacks testament capacity when a court can determine somebody's best interests. It appears from the reports in the newspaper that the application before the court was not for a statutory will but rather a different sort of application, which appears to have been made on behalf of the estate of the late Mrs Collins’ rather than on behalf of the incapacitous Mr Collins – further details will be available in due course as the case is published.

Conclusions

This case, and its attention-grabbing headline, is a salutary lesson for people to keep their wills up-to-date and, if they have a change of heart as to the identity of their beneficiaries, to take action at the earliest opportunity to ensure their wishes are carried through – not least to ensure that the people and causes they no longer wish to inherit their wealth do not do so.

A loss of capacity could strike any of us at any time. Ensuring that action is taken to amend your wills at the earliest opportunity if you change your mind about the identity of your beneficiaries is therefore key.

Where people have lost capacity, and an amendment to their will is in their best interests, an application for a statutory will can be made to the Court of Protection (see our recent article). It appears that this is not the application that was the instant matter before the Court but it was the subject of an earlier application that was not permitted – further information as to the reasons for this will no doubt also be available in due course. As the executors of Mrs Collins have found out to their disappointment and chagrin, seeking to amend the testator's wishes after death, when the intended beneficiary has lost capacity, is rather difficult.

Early action to keep your will up-to-date is so important.

Further information

To discuss your will or any other issues discussed in this article, please contact Donna Holmes or you can visit our website for more details.



[1] Testamentary Capacity is the test as to whether someone can make or amend their Will. Determined in accordance with the case of Banks v Goodfellows, Testamentary Capacity requires a person to 1. Understands nature and act of making a Will i.e. it will only come into force on death, 2. Understands the extent of their estate i.e. what they own and what debts they have; 3. Understands any claims others may have or moral obligations they may have; and 4. Is not under any undue influence or delusion.

Is £400m enough?
Is £400m enough?

The government announced on 16 May that it will provide a fund of £400m to cover the costs of removal and replacement of cladding to high rise residential blocks which have failed tests.

The problems with co-owned properties and attorneys
The problems with co-owned properties and attorneys

Whilst some people are under the impression that preparing a Lasting Power of Attorney (LPA) is simply a case of completing a form and ticking a few boxes, it is about far more than this.

What's mine is (not) yours!
What's mine is (not) yours!

A big fear for some people facing divorce and the inevitable carving up of the matrimonial assets. They seek assurances that such assets will be “ring-fenced” and retained for them.

How to avoid the PET trap
How to avoid the PET trap

When an individual is thinking about making a gift to another individual, consideration needs to be given to the Potentially Exempt Transfer (PET) trap.

Fictitious divorces
Fictitious divorces

Arising from the recent Family Division announcement, people who think they are legally divorced may in fact still be married.