Burden of proof in capacity cases – a reminder of where it lies

This case of Lonsdale v Teasdale & Ors illustrates the complexities in the area of capacity. A District Judge had erred in his finding that the burden was on the Appellant to prove that the deceased did not have testamentary capacity, as opposed to one where a real doubt had been shown as to capacity and where the burden was therefore on the Respondent to show that the deceased did have capacity.

Despite a letter of intent and rationality of the will, the Testator was considered to lack capacity, and in this case, grief appears to have also been a factor. The Testator was 82 when the will was executed, recently widowed, and his son had died 4 weeks previously. He had also failed a cognitive impairment test.

Inheritance Will writers should always consider a medical report in these circumstances, where the Testator is elderly, and/or is recently bereaved. In this case, there was a substantial change in the Testator’s intentions, disinheriting his daughter in substitute for a friend (who brought him to the solicitors office). Failure to follow the golden rule opens you up to a potential negligence claim. In this case the Court highlighted that a report should have been obtained.

Father Who Disinherited Daughter Lacked Capacity to Make a Valid Will
You are perfectly entitled to write your children or other close family members out of your will, but such a course can be an invitation to dispute after you are gone. That was certainly so in a High Court case concerning a man who left everything he owned to a close friend, thereby disinheriting his daughter.
The daughter would have been his principal beneficiary under a will he signed four years prior to his death, aged 86. However, a few months before he passed away, he executed a new will in his friend's favour.