15 July 2022

Will deemed invalid by Judge after solicitor failed to recognise testator lacked capacity


Edward Smith died on 24 January 2016, aged 97, leaving a Will dated 11 June 2013 (‘the 2013 Will’).

Edward’s estate comprised a cottage in Suffolk and savings of around £140,000.

The 2013 Will appointed Gavin Boast as Executor and left him a £15,000 legacy. The remaining estate was left equally between Edward’s two sisters.  By the time Edward died in 2016, both sisters had passed away and so their shares passed to their children.

Edward had made a previous Will in 2006 (‘the 2006 Will’), which left everything to Gavin.

In 2019, Gavin issued a probate claim to overturn the 2013 Will on the basis Edward lacked capacity to make it.

If successful, the 2006 Will would stand as Edward’s last Will meaning Gavin would inherit the entire estate, rather than the £15,000 he was left under the 2013 Will.


On 27 February 2012, Edward was visited by his GP at home. The notes from the meeting record that Edward was staying with family because he was not coping at home. He was described by his GP as ‘increasingly confused, paranoid ideas … lucid but disorientated in time and space. Fixed ideas about people preventing him having tablets’.

On 9 March 2012, Edward phoned his solicitor, Jonathan Margarson, to explain he wanted to make a new Will benefiting his two sisters. Mr Margarson was aware of Edward’s diagnosis of dementia and so wrote to his GP seeking some advice. 

On 15 May 2012, Edward’s GP reviewed Edward again and wrote a letter dated 16 May 2012 to Mr Margarson which stated, ‘his capacity to make decisions around his finances is already significantly impaired… I would have similar concerns about his testamentary capacity… he continues to maintain various persecutory delusions that could influence his decisions about how he disposes of his property in his Will… I do not believe that he has testamentary capacity and I think it is extremely unlikely that he would ever regain that testamentary capacity.’

A letter was later received by Mr Margarson’s firm on 13 August 2012 from Edward, stating he would like to leave his sisters £8,000 in his Will. The letter went on to say ‘my personal files have been removed from my care. I do not appear to be a free person and I don’t know why?’

On 15 October 2012, Edward was seen by the mental health trust in their memory clinic and diagnosed with memory loss.

Edward wrote to Mr Margarson again in April 2013 stating ‘The last (present) will made by myself does not reflect my wishes and I am desirous of making a new will. I wish now, after my adverse experience at this Hell Hole, to change my will as at present, and make my 2 surviving sisters and their prodgny (sic) the sole recipients’.

Mr Margarson replied suggesting that Edward be assessed by his GP and asking him whether he agreed.

Edward replied on 21 May 2013, saying ‘I am OK mentally, it is physical, I am a bit doddery (sic)’. His letter also said ‘there is no doubt that this Industrial Park is a shambles. My nephew has given over the whole enterprise to an Asian immigrant, Ms Selathemic. Who runs everybody and everything. By hypnotism (mass) she is extremely wealthy and, I fear, will disappear one day with all the assets, including mine if I do not remove them from her domain. She is an Asian immigrant from Laos and could disappear at any moment with all the cash she can lay her hands on. I am anxious to avoid this in my case, but my relatives are blind and deaf in this case, but I am not concerned with their fate. I wish my 2 sisters to have what I own legally (sic)’.

On 29 May 2013, Edward wrote to Mr Margarson again in fairly similar terms.

On 30 May 2013, Mr Margarson replied explaining that Edward was to receive a visit from his GP on 7 June 2013 and stating, ‘you will appreciate that for your protection (and mine) I feel it essential that we should have a medical opinion that you are competent to change your Will. Please discuss this with the doctor when you see him’. He concluded by enclosing a ‘fresh Will’ which was drafted in the terms requested by Edward.

On 14 June 2013, Mr Margarson attended a meeting with Edward at his home. He was told that a doctor had seen him earlier that day. Edward had already signed the draft Will that was sent to him, with three attesting witnesses also having signed it.

At the meeting, Mr Margarson expressed concern about Edward’s mental state, however Edward assured him that he had no mental problems whatsoever and that all his problems were physical. The Judge said that Mr Margarson seems to have accepted this without question.

The Judge went on to say Mr Margarson did not take any steps to find out whether the deceased understood what his property comprised. He also does not appear to have appreciated that…the deceased’s delusions…were capable of affecting his testamentary intentions’.


The Judge decided the evidence showed Edward lacked capacity to make the 2013 Will.

This was based on the fact that Edward’s correspondence with Mr Margarson demonstrated intensely irrational persecutory delusions which were causative of his decision to exclude Gavin from receiving all but £15,000 under the 2013 Will.

The most surprising thing in this case is that Mr Margarson did contemplate the issue of capacity and does seem to have considered that Edward should be assessed by a medical practitioner before making the 2013 Will.  However, for reasons which are not entirely clear, he did not ensure this was carried out.

The Judge deemed the 2013 Will invalid and found that the 2006 Will was Edward’s last Will. Gavin will therefore receive the entire estate.


Failure by a solicitor to make a proper capacity assessment or take the appropriate steps can lead to disputes after death and can result in significant legal costs being incurred by a number of parties. This could in turn lead to a negligence claim against the solicitor for the wasted costs.

For advice on Will disputes and other inheritance disputes, please contact a member of our Disputed Wills and Trusts team.

To view the judgment please click here. 



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