Will: Client authorised solicitor to help rip will in half
Solicitors dealing with clients where their mental capacity could be in question should record their meetings electronically, a judge has suggested in upholding the deathbed revocation of a will.
Deputy Master Linwood accepted the evidence of experienced solicitor Haffwen Webb in finding that her hospitalised client knew what she was doing when she tore most of her will in half and then asked Ms Webb to help her with the rest.
Ms Webb produced a detailed attendance note when she returned to the office but the judge said “it may be appropriate for solicitors in such circumstances to record their attendance by video on a telephone or other electronic device”.
Two of the beneficiaries of that will challenged Carry Keats’ capacity to revoke it.
Ms Webb, a partner in the Romsey office of Parker Bullen after it merged with her former firm, Kirkwoods, told the court that this was the fourth deathbed will she had been involved in – albeit one of the clients actually survived.
Ms Keats made six wills between 2005 and 2020 and then contacted Ms Webb in 2021 because she wanted to change it again. The solicitor said this reflected her personality, rather than raising any question of capacity.
The will Ms Webb drafted was not signed but she took it with her in January 2022 after learning that Ms Keats was in hospital. She died about three weeks later, aged 92.
Ms Keats had fallen out with the claimants, who were the executors and two of the residual beneficiaries under the existing will, which was why she had looked to write a new one.
Ms Webb told her that, if she was adamant that she did not want them to deal with the administration and to inherit, she could tear up her old will, meaning that her sister would inherit under the laws of intestacy.
The solicitor had the original with her and said Ms Keats was happy to do this and understood the consequences. She was able to tear around three-quarters of the way through.
The judge said: “Mrs Webb, seeing she was struggling, looked at Carry and asked if she would like her help to tear the remainder. Carry looking directly at Mrs Webb nodded. Mrs Webb placed her hands on top of Carry’s and helped her complete the tearing so destruction was complete.”
But as pain medication kicked in, Ms Webb found she was not unable to take instructions on the new will.
Asked on cross-examination as to how she had concluded her client had capacity to revoke the will, Ms Webb said: “Her character hadn’t changed. She was still the same old Carry. She knew who I was and why I was there so I came to the conclusion she had capacity.”
Deputy Master Linwood accepted all of Ms Webb’s evidence and said he was “sure” she would not have let the revocation proceed if she had any doubts.
He concluded that Ms Keats had the intention and capacity when she tore the will, and authorised Ms Webb to help her complete its destruction.
“I find there was a positive communication and not mere acquiescence… The communication must be positive and discernible, which I find the nod is in these factual circumstances and it may be non-verbal, as here.”
This meant the will was destroyed pursuant to section 20 of the Wills Act 1837.
While Ms Webb had left certain details out of her attendance note that she accepted in retrospect it would have been better to include – such as the way the ‘nod’ came about – this was because she was more focused on obtaining instructions for what the new beneficiaries were to inherit, the judge said.
“In other words, Mrs Webb was looking forward as a professional solicitor in the interests of her client in taking instructions as to what she now wanted, as a matter of fact, as opposed to contemplating how best prepare to give her evidence in a hypothetical appearance before this court.
“Having said that, it may be appropriate for solicitors in such circumstances to record their attendance by video on a telephone or other electronic device, subject to permission and the privacy of others who may be there.”
After dismissing the claim, the judge concluded by noting the “unseemly scrabble” for Ms Keats’ assets before and after her death, and how she like to reward people in her favour.
He quoted an 1821 decision, which said: “It is one of the painful consequences of extreme old age that it ceases to excite interest and is apt to be left solitary and neglected. The control which the law gives to a man to dispose of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities.”`
Deputy Master Linwood concluded: “Nothing in human nature has changed over the last 200 years since that was said nor I presume will it in the future.
“So these disputes will continue unless resolved by negotiation, which I can only urge future parties to engage in realistically and effectively.”
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