Many legal actions involving wills are based on the claim that the person making the will (the ‘testator’ or ‘testatrix’ in legal terminology) was not competent to execute it or on the allegation that that they were under the undue influence of someone else when it was written.

It is unusual for a case to be brought on both bases, but a recent case saw a will challenged on the grounds that the testatrix, who was the grandmother of the claimants, was under the undue influence of another family member and was not mentally competent when her final will was executed.

The facts were that the grandmother had made an earlier will whereby the property in which she lived was left in equal shares to her granddaughters and the rest of her estate was divided equally between their aunt and another person. The testatrix was later diagnosed with Alzheimer’s disease. The aunt exchanged correspondence with the testatrix over the terms of the will (of which she was aware) and subsequently she and the testatrix visited the family solicitor who drew up a new will which gave the bulk of the estate to the aunt.

On becoming aware of the new will, after the aunt was granted probate of the estate in September 2003, the granddaughters challenged it.

The court found that although the grandmother suffered short-term memory loss, this could not be considered to constitute lack of testamentary capacity. The questions then remaining were whether the will was executed with her knowledge and approval and whether undue influence was applied. The evidence was that she had thought about her will for some months, discussed it with her sister and visited her solicitor twice. She had also examined a draft of the will and confirmed it was as she wished. The challenge to the will therefore failed.