A solicitor’s duty to make enquiries where the testator’s capacity is in doubt

A lack of testamentary capacity is arguably the most commonly pleaded claim by disgruntled family members that are not happy with the contents of a deceased’s will. Charities named as beneficiaries in a will are often on the receiving end of such claims, but can also find themselves as being the one to make the claim in certain circumstances. The recent case of Feltham v Bouskell [2013] concerning that specific topic therefore makes for an interesting read.

In this case, the claimant, Lorraine, was the step-granddaughter of the testatrix, who was a wealthy elderly woman. The testatrix had made several wills in her lifetime, never naming Lorraine as a beneficiary in any of those wills. The testatrix’s solicitor received a call from Lorraine on 24 January 2006 saying that her grandmother wished to change her will leaving the bulk of her estate to Lorraine. Given the sudden departure from the wishes expressed in her previous wills, the solicitor in question decided he wished to instruct a doctor to ensure the testatrix had the requisite testamentary capacity…

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