The successful challenge to Margaret Baverstock's will, by her son has been in the press over recent days, after a video, that was part of the evidence in the case, showed his sister holding and “propelling” their mother's hand as she signed a will that left her entire estate to her daughter.
As professionals we are always very aware of the importance of evidencing capacity when taking instructions for and when witnessing wills. When we are asked by relatives, to attend a client to take instructions in circumstances where capacity may be in question, such as in a care home or hospital, I have often thought that videoing the instructions or signing meeting would be the best evidence possible as to capacity.
This case may be a turning point in both clients and practitioners being comfortable that this is appropriate.
It still remains that the appropriate open questions need to be asked to assess capacity, as the case demonstrated yes or no answers by the testator to closed questions will in most circumstances have limited evidential value.
If the instructions for the will are likely to be seen as controversial by someone in the family, then professional advice and evidence of capacity is likely to be an investment well made, given in this case the estate was worth around £700,000 and costs of the litigation were reported to be in the region of £80,000 and were ordered to be paid by the deceased's daughter.
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