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For a Will to be valid there are a number of criteria which the Testator must meet, the Testator being the maker of the Will. This includes age, knowledge of all the facts and approval.
Firstly, the Testator must be over the age of 18 years and the formalities of s9 Wills Act 1837 must have been followed.The Testator must also know and approve the contents of their Will. They need to have an understanding of the extent of their property and assets of which they are disposing as well as the claims which could arise by those dispositions.
These issues have arisen recently in a case heard in the High Court in February 2019 in the matter of Freda Burgess, who died in February 2016 aged 90.She was a widow with an estate worth in excess of £1.5m. She had a valid Will drawn up in 2012 in which she left her estate as follows: 40% to each of her two daughters and 20% to her son.Her son was wealthy in his own right.
Freda's husband, a former Lawyer and Judge, died in October 2012 aged 88. Her son took over the running of her finances, with her approval, according to her son. Although frail due to age and health, Freda was said to be an independent lady of sound mind. Freda is alleged to have informed her GP that her son had taken over her finances, but her son confirmed that he was carrying out his mother's wishes at her request. Freda's son and his wife took care of her during this time.
Freda suffered a fall in 2013 and it is alleged that the she approached her son with a request that she wished to change her 2012 Will 9 days after her fall and that the residue was now to be split equally between her three children and not as previously stated in her 2012 Will. This new Will was made in 2013. Freda's son explained that his mother wanted the children to be treated equally and at that time, his sisters had not objected to an equal division of the estate.
However, his two sisters now allege that Freda was too frail and vulnerable after the fall when she made her 2013 Will and she would not have realised the implications of her actions, nor would she have been capable of giving knowledge and approval to the later Will. They asked the Judge to rule in favour of the earlier 2012 Will, instead of the 2013 version.
At Court, the Testator's son explained that he was surprised by his mother's change of mind but that neither sibling had objected to the change of Will at that time. The sisters also claim the new Will was not validly executed.
Judge Catherine Newman QC has reserved her decision in the case following the conclusion of the evidence from the parties.
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