19 February 2014

Grief & Capacity to Make a Will

Was a husband’s grief following the death of his wife sufficient to invalidate his Will? This was the question asked of the High Court in the recent case of Dharamshi v Velji (2013).

Dharamshi & Others v Velji & Others [2013] EWHC 3917 (Ch)

Following his wife’s death in May 2003, a bereaved husband executed a Will the next month in which he left everything to his blood relatives and left nothing to his wife’s family. His previous Will, made earlier in 2003, had left everything to his wife, with the entire estate passing to his wife’s family in the event that she died before him.

His wife’s family, effectively disinherited under the new Will, sought to argue that the Will executed in June should be ruled invalid on the basis that the husband’s state of grief was so severe following his wife’s death that he lacked the mental capacity required to make a valid Will.

Whilst it is accepted that bereavement can affect a person’s decision making abilities to the extent that they are deemed to lack testamentary capacity (Key v Key (2010)) – in the present case the Court determined that the husband did in fact have the requisite capacity at the time he made the disputed Will – his behaviour (which included heavy drinking, unresponsiveness and neglecting personal hygiene) was within the scope of normal behaviours that could be expected in the circumstances.

A key distinction (no pun intended) between the present case and Key v Key, rests on the role of external influences. In Dharamshi v Velji, it was determined that the husband had selected the beneficiaries under the disputed Will with no undue pressure from other people, whereas in Key the deceased was found to be in a position of extreme vulnerability and suggestibility to his daughters, which created a hurdle they could not overcome to prove he did have capacity.

So, whilst it is possible for a Will to be overturned on the basis of intense grief on the part of the testator, this outcome is by no means certain. Where the bereavement reaction is within the parameters of a normal response it appears that, in the absence of other factors, this will not be sufficient to invalidate the Will.

A further point from the case which bears repeating is that the losing party were subject to costs sanctions for their refusal to participate in mediation. This was the case despite the fact that they were outside the UK at the relevant time. Courts expect parties to mediate and, as was considered in last month’s blog (Disputing a Will Through the Courts), this can be especially important in the context of a disputed Will – where legal costs can soon eclipse the value of the estate being fought over.

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About the Author
Tom Kirkhope, Senior Associate Solicitor
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