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Intended with capacity, executed without

The Court of Appeal has made it clear that someone who has been clinically proven to lack capacity can make a valid will. What does this mean for the limits of testamentary capacity?

15 March 2016

The recent Court of Appeal judgment in Burns v Burns [2016] ECWA CIV 37 is the latest reiteration of the law relating to testamentary capacity, want of knowledge and approval of the contents of a will, and the rule in Parker v Felgate [1883]. It is also not just a salutary reminder as to the importance of following the 'golden rule' when taking instructions for a new will from an elderly testator (if disputes are to be avoided), but also a striking (possibly extremely surprising) example of how someone with a poor, failing memory can nevertheless make a valid will, particularly a simple one.

The matter related to the late Eva Burns and her last will dated July 2005 - she died aged 89 on 21 May 2010.

Mrs Burns had two sons, Colin and Anthony. She owned her home, the only asset of substance in her estate, 50/50 with Colin.

In her 2003 wi...

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