Hawes v Burgess – A Reminder Of The Dos And Don'ts For Ensuring Wills Are Upheld

The case of Hawes v Burgess and another [2013] EWCA Civ 74 is recent Court of Appeal decision reminding Probate practitioners of what steps must be taken to ensure that Wills they draft are upheld.

The Court of Appeal agreed with the Chancery Division of the High Court that the Will was invalid on the basis that the testatrix (will maker) did not know or approve of the contents of her Will but disagreed with the finding that she had insufficient mental capacity to make the Will. It took the view that the evidence of an experienced independent solicitor who assessed her at the time she made the Will has greater weight than a medical expert who never met her.

Background

Daphne Burgess had three children, Peter, Libby and Julia between whom she divided her estate equally under her 1996 Will. Her health began to fail in the summer of 2006 with ailments including memory impairment, increased vagueness and difficulties in recognising people she had known for a long time. At the time the Will was changed, Peter and Julia had fallen out, partially in relation to the bungalow, and it was believed at the time that this fallout was permanent.

In 2007, Mrs Burgess expressed a wish to amend her Will so that she could make particular provisions in relation to her burial service.

Her daughter, Julia, brought her to see an independent solicitor who took instructions from Mrs Burgess while Julia was present. This 2007 Will left her estate equally to her two daughters and excluded Peter. The reason given to the solicitor by Julia was that Peter had received a substantial lifetime gift of £40,000 and that a further lifetime provision would be made for him, both of which were untrue. Peter was wealthy and purchased a bungalow in his name for his mother to live in for her lifetime. His mother wanted to make adaptations to the house to the value of £21,000 and she wanted to pay for these. Peter did not receive any lifetime gifts from his mother before she passed.

The Will was not sent out to Mrs Burgess to read in advance of her executing it. There were some small errors in the Will including Peter's middle name being incorrect and these probably would have been picked up on had she read it.

On the day the Will was executed, Julia was present in the room while the Will was read back to Mrs Burgess by the solicitor. The solicitor was experienced at drafting Wills as he did so on a weekly basis throughout his extensive career. In his typed attendance notes, he...