Written on November 30, 2012 – 8:31 am | by Laura West

A recent estate litigation that has been profiled in several international news publications provides some interesting lessons with respect to testamentary capacity and testamentary freedom. 

The headline in an online Telegraph article sets the stage quite well: “A rich but lonely old lady has left her entire estate, worth $12.5 million to her neighbour, who bought her bread and milk and helped her manage her daily chores.” 

The testatrix, Ms. Harris, who lived alone and was estranged from her relatives, revoked a will that left her estate to her niece and executed a will that left her estate to her neighbour, a Ms. Gray.  Ms. Harris’s niece challenged the Will on the basis that Ms. Harris lacked testamentary capacity but the court found that Ms. Harris, who had “some degree of cognitive impairment”, was still capable of signing a will and that the will leaving everything to her neighbour, Ms. Gray, was valid.

What this matter brings to mind is two aspects of testamentary capacity that is it important to remember.  First, the fact that an individual has been diagnosed with a mental illness or disease, or has certain physical or mental impairments, is not necessarily determinative of their testamentary capacity – they may still have the capacity to execute a will.  Second, if an individual satisfies the requirements of the legal test for testamentary capacity, the peculiarity or eccentricity of her Will should not be relevant. 

Of course the news stories documenting this litigation have also suggested other lessons this particular matter should teach us, namely that “you get what you give” or “it pays to be kind.”


Laura West

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