James v James [2018]: A lesson in avoiding litigation

Late last year a case was brought in front of a Judge by a recently deceased father’s son. The son (‘Claimant’) had presented a view that his father’s (the ‘Deceased’) Will was invalid due to lack of testamentary (mental) capacity.

The Claimant had worked on the Deceased’s large estate which comprised of farming and hauling services. The claimant had resided on the estate rent-free and in 2009 claimed to have been gifted the estate by the Deceased, who had also in 2007 gifted his daughter Karen the land.

In 2010 the Deceased’s Will was executed by the beneficiaries, his wife and daughter. To the Claimant’s shock he was not a beneficiary under the Will and was not granted any part of land as he had been gifted in 2009. The claim progressed, and character witnesses were submitted to the courts including the witness of the solicitor who drafted the Will.

An expert witness from each party had testified that the father had suffered from Alzheimer’s which had caused moderate dementia. However, they disagreed as to the effect, if any, on the Deceased’s ability to appreciate the claims he had made to his children.

It was found that the solicitor who had drafted the Will had not spoken to the Deceased during the drafting. Instead, the wife had held up to 5 known conversations with the solicitor who drafted the Will on this basis. It was noted from several family members witness statements that the father had indeed suffered from confusion and memory loss in 2004, however no formal diagnosis was made.

The Judge ruled in favour of the deceased’s wife and daughter. He had taken the view that the solicitor who had drafted the will was an experienced solicitor who was satisfied about the deceased’s mental capacity and therefore had no reason to seek medical evidence to the contrary.


From the judgement passed its clear that Courts are reluctant to overturn the terms of a drafted Will unless there are exceptional circumstances. The process could have been entirely avoided had the solicitor spoken directly to the Deceased and confirmed his mental capacity and therefore could have provided comprehensive notes on that interaction.

At Carter Bond Wills, Will writers will only take instructions from the client directly. To avoid any doubt of mental capacity our experienced private client writers will use their sound judgement and may ask to seek confirmation of any medical issues to avoid future litigation.

To speak to one of our advisors call 020 3745 7271 or email info@carterbondwills.co.uk


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