Testamentary Capacity of 91 year old to make a Will excluding family
By Caroline Browne, Partner
PETRUS COUWENBERGH v BILYANA ANGELOVA VALKOVA (2008)
This is a recent English Case that focused on the testamentary capacity Mrs Adam at the time she made her Will.
Mrs Adam died on the 10th October 1991 aged 91. She made her Will on the 24th October 1990 and in the Will she excluded her family, namely her brother and two nephews, who had been beneficiaries under an earlier will made in 1978 in favour of Dr. Valkova. Mrs Adams main asset was her house in London. Her brother had assisted her in the purchase of this property, where she lived for the last 37 years of her life. She was divorced and had no children. Dr Valkova, who was unrelated to Mrs Adams came to live in the upstairs part of the house in 1984 and did not pay rent. In 1986, Mrs Adam signed a general power of attorney in Dr. Valkova favour.
It was contended that at the time Mrs Adam made her Will in October 1990 that she was suffering from dementia to such a degree that she lacked the necessary testamentary capacity to make a Will. Dr. Valkova submitted that Mrs Adams was of sound mind and had the testamentary capacity to make a Will, and had executed a new Will because of the breakdown in the relationship with her brother and his family.
Two Wills were executed by Mrs Adams in October 1990, at this time Mrs Adam was 90. Both Wills left her entire estate to Dr Valkova and appointed her sole executrix. Two Wills were executed at the time, as the solicitor involved had concerns about one of the witnesses’ signatures on the first Will, dated 19 October, as a result an identical Will was prepared and dated 24 October, and witnessed by Dr Valkovas two brothers. Mrs Adam did not attend with the solicitor to execute either Will.
HELD:
- The 1990 wills were, on their face, duly executed and contained standard attestation clauses. The two brothers who had signed the Will dated 24 October Will as witnesses were Italian and could hardly speak or understand English. Their evidence was that at the time they did not know they were witnessing a will and did not recall that Mrs Adams signed the Will in their presence.Despite the witnesses’ evidence about the execution of the Will raising doubts about what happened, the court held it was not sufficient to rebut the presumption that the will was duly executed.
- In relation to Mrs Adams testamentary capacity to make a Will, expert medical evidence showed that Mrs Adams at the time she executed her Will had moderate to severe dementia. Evidence showed that she did not have the testamentary capacity, namely the ability to recall the people who should be considered as possible beneficiaries.
Therefore the two 1990 wills were found not to be valid and the 1978 will was valid and in force.
Related links:
What is required to make a valid Will
