W -v- P [2017] EWHC 386(ch) (27 February 2017)

Posted on Friday, April 28th, 2017

On 22 July 2010 the testator passed away having suffered terminal rectal cancer diagnosed in July 2009.

On 28 May 2010 the testator gave instructions for a will to a firm of solicitors and on 4 June 2010 he executed the will.

The Claimant was the testator’s widow and they had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contended that when the testator gave instructions/signed the will he lacked testamentary capacity with the result that the will was invalid and as there was no prior will, his estate therefore should be distributed in accordance with the rules relating to intestacy.

The Defendant, one of the testator’s daughters from his earlier marriage and executrix of the purported will denied that he lacked capacity. The will directed that the home the testator had shared with the Claimant and which was mortgage free should not be sold during the Claimant’s lifetime without her consent or unless she cohabited with another person. She should be entitled to live there rent free on the basis that she paid the other outgoings on the property, kept it insured and in good repair. The matrimonial home had been purchased by the testator and the Claimant as joint tenants. The Solicitor arranged for the testator to sign a notice of severance of the joint tenancy at her meeting with him on 28 May 2010 in order to make sure that the terms of the will were not frustrated by the automatic right of survivorship regarding property held as joint tenants.

The will also directed that on the ultimate sale of the matrimonial home, once the Claimant’s right to reside there had been extinguished, either voluntarily or by cohabitation or her death, the net proceeds of sale should be paid to the defendant and it also bequeathed to her the residuary estate. Specific bequests were made of the testator’s interest in some wall plaques and specific pieces of identified pottery. The recipients of those items were expressed to be the Defendant and her sister.

Following a full review of the evidence, HHJ S found in favour of the will.

The full judgment can be read here.

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