The case of a cleaner who has mounted a legal challenge against a retired barrister in an attempt to secure a share of her later employer’s Will shows the need for people to demonstrate their mental capacity when preparing or changing their Will, according to a City solicitor.
Neil Acheson-Gray, Head of the Private Client department at Carter Lemon Camerons LLP, says that with increasing public awareness of the fact a Will can be challenged it is now more important to take steps to minimise the chances of a Will being challenged.
Cleaner, Leonora Da Costa is seeking £415,000 from the estate of her former employer, Harold Tickner, a former Head Waiter at the Savoy Hotel, after he made a new Will two weeks before his death in June 2015 that left her with nothing. His previous Will, made in 2014, would have left her with the £415,000 sum.
Mrs Da Costa alleges that Mr Tickner did not have the capacity to make the 2015 Will and that she should receive the £415,000 share of the estate specified in the 2014 Will.
Mr Tickner’s nephew, retired barrister, Dennis Richard Germain, was the biggest beneficiary of the 2015 Will, inheriting Mr Tickner’s £500,000 home. Mr Germain argues that the 2015 Will should stand.
Neil Acheson-Gray said: “The contrast between the parties’ backgrounds has captured the imagination of the press but the facts are simple and not unfamiliar to those engaged in the increasingly common battles over the estates of the elderly.
“The argument is over whether or not Mr Tickner had capacity. If he did, he was able to change his Will. If he did not, then the new Will would be invalid and the earlier Will, under which Mrs Da Costa was to benefit would be revived.
“The circumstances under which the new Will was drawn up will be considered in depth and anything which arouses the suspicion of the Court will be investigated before the issue is decided.
“How likely is it that Mr Tickner would have made major changes to the disposition of his estate so as to benefit relatives from whom he was allegedly estranged is what will have to be decided.”
“One of the main reasons for leaving a Will is to determine how your estate is distributed after your death and that those you name actually get to receive what you intend,” said Neil. “This means that it is important to be confident that the Will is going to be adhered to without leading to costly and damaging court cases.”
To help people achieve this, Neil has identified six steps to follow:
- Instruct an experienced solicitor to prepare what is one of the more important documents you will ever sign.
- Make sure he or she keeps a detailed note of the points discussed.
- Do not be offended if there is any discussion about capacity or a suggestion of a second opinion – this is being done for your protection.
- Ensure that the original Will is kept under lock and key, preferably by the solicitor who drafted it and keep it under review.
- Develop a relationship with your solicitor so that he or she is aware of your circumstances and priorities and can provide answers to any questions that arise when the Will is put into effect – or challenged.
- Keep any copy of your Will confidential and avoid discussing it, even with those who stand to benefit under it. It is a private document and should remain so in your lifetime.