Brothers asserting lack of testamentary capacity lose Will challenge

By Lenore Rice

Two brothers have failed in their efforts to contest a Will of their father which bequeathed half of his £250,000 fortune to their stepmother.

Richard and Jonathan Powell claimed that their father David lacked testamentary capacity to execute his last Will in 2009, as a result of his ongoing battle with Parkinson's Disease. They originally claimed that their father's Will from 2003 was his last true Will, and under it their stepmother Ailsa Williamson Powell stood to receive £2,000. The brothers then subsequently argued that a Will made 5 years later should be upheld - it provided that the estate should it be divided three ways.

The brothers contested the next, and last Will, which was written in 2009, saying their father would not have been of sound mind at the time of writing it as a result of his worsening condition. In that Will their stepmother was bequeathed half of the estate, with the two sons standing to receive one quarter. There were also gifts to a church, a Parkinson's charity and grandchildren to be taken from the estate before it was divided up. The brothers pointed to the gift to Ailsa's church as evidence that she was involved in the rewriting of the Will, as they described their father as not being religious.

The brothers' decision to challenge the Will had resulting in £200,000 in legal fees. The court did not agree with their grounds for contesting the Will, with Judge Dight saying that:

"Most of the symptoms of Parkinson’s Disease are physical and so would not have impacted on his understanding.

He went on to say that it was "plain" that the deceased understood "entirely what he was doing and that the will did reflect his instructions." He said therefore, that the brothers case that their father lacked testamentary capacity was "entirely without foundation."

The court must now consider whether the £200,000 legal costs should be borne entirely by Richard and Jonathan Powell, or whether they should be paid out of their father's estate.

The decision in this case illustrates that it is not sufficient to simply disagree with a Will in order to mount a successful challenge to it. A lack of testamentary capacity is a strong case against a Will, but it is necessary to prove that the person did not understand the consequences of their actions, and a serious illness is not automatic evidence of a lack of mental awareness.

If you require legal advice about contesting a Will, or writing or updating a Will, contact one of the Will writing experts at Wilson Nesbitt by clicking here.