Probate case study

Following Mr Grantham’s passing, his family discovered that he had written a will leaving his entire estate to Battersea Dogs Home. The will was only written a few months before his death and, since Mr Grantham suffered from dementia, his family suspected that he did not have the mental capacity to make a will at that time. Mr Grantham was a spontaneous man and had also made an earlier will on the back of napkin in a restaurant, witnessed by two of the waiters. This earlier will split his estate between his wife, Christie, and his elder son, Andrew. His younger son, Stephen, has been estranged from his father for a number of years, but is eager to inherit the family home and wishes to challenge this earlier will’s validity.

Legal analysis
Mr Grantham’s family have a potential challenge to the later will on the ground that Mr Grantham lacked the requisite mental capacity to make it. The law does not require that Mr Grantham had perfect mental functioning, but he must have understood the nature and effect of a will and the extent of his assets, as well as knowing and recognising the people intended to benefit from the will (Banks v Goodfellow). If Mr Grantham made his later will with a solicitor, that solicitor should have referred him to a medical professional if there was any doubt as to his capacity (Kenward v Adams).

If the family’s challenge to the later will is successful, Mr Grantham’s estate will be distributed between his wife and elder son, according to his earlier will. However, his younger son, Stephen, may be able to challenge the validity of this earlier will if he has reason to believe that Mr Grantham did not comply with all the formalities under the Wills Act 1837. In order to be legally valid, a will must be made in writing by a person 18 years old or over (‘the testator’) and signed in the presence of two witnesses. The witnesses must also be aged 18 or over and must sign the will or acknowledge the testator’s signature.

If the waiters in question cannot be traced to provide an affidavit confirming the circumstances in which the will was signed, the earlier will may also be declared invalid and Mr Grantham will die intestate. This means that his estate will pass in accordance with the rules of intestacy under section 46 of the Administration of Estates Act 1925. According to these provisions, Mr Grantham’s wife, Christie, will only inherit his personal possessions (‘chattels’) along with the first £250,000 of the rest of his estate. The rest will be split between Christie (50 per cent), Andrew (25 per cent) and Stephen (25 per cent), although Christie’s share of this residual amount will eventually pass on to her sons rather than in accordance with her will. Stephen may therefore gain a share in the family home. However, if Christie owned the family home as a joint tenant with her husband, it will not be considered part of Mr Grantham’s estate and she will inherit the entire property under the right of survivorship.

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