Understanding Capacity for the Creation of Wills, Coercion, Financial Abuse, and What You Can Do
Baverstock v Baverstock recently made headlines when the Court held that a Will allegedly signed by the late Margaret Baverstock eight days before her death in 2021 was invalid. The Court made this decision as Margaret was sadly diagnosed with dementia in 2014, and was patently incapable of understanding the Will which was presented to her by her daughter, Lisa Baverstock. The case highlights the dangers of coercion and financial abuse which elderly and vulnerable people face, but it also demonstrates what can be done to rectify the position.
The Facts
Margaret was diagnosed with dementia in 2014. Margaret had two adult children; John and Lisa. Lisa moved into her mother’s home in 2019, purportedly to help her cope with her worsening dementia.
John claimed that his sister became increasingly resentful of him after she moved into her mother’s home. He alleged that, despite him making the effort to visit weekly or fortnightly, Lisa deliberately sought to exclude him from his mother’s care. Lisa’s position was that John made no attempt to help her with her mother’s care, and that she begged him to provide her with some respite.
The acrimony between the two siblings culminated in a significant row in February 2021, where Lisa barred John from his mother’s property. She then prepared a Will for her mother. The Will appointed Lisa as the sole executor, and it also awarded her the entirety of her mother’s £700,000 estate.
Margaret sadly passed away in March 2021. John then contested the Will, as he believed that his mother was not capable of understanding the Will when it was signed due to her advanced dementia. Lisa’s case was that the Will represented her mother’s wishes.
Lisa represented herself in proceedings, and her case fell apart when she presented a video of the Will signing to the Court. The video showed Margaret barely responding to questioning by Lisa, and Lisa then holding her mother’s hand to guide her to sign the Will. Judge Jane Evans-Gordon ruled that Margaret clearly had no idea what was going on when the Will was signed, and therefore the document was deemed to be invalid. As there was no other known Will, the estate was split equally between John and Lisa (in accordance with the Intestacy Rules), and Lisa was liable for John’s costs for the claim.
Capacity for Wills
Whether or not a person is deemed to have sufficient capacity to prepare and sign a Will is governed by both a common law and statutory tests. If a testator does not have sufficient capacity to prepare a Will, then the Will is invalid.
The seminal case of Banks v Goodfellow [1870] LR 5 QB 549 is the standard of capacity to be applied. The test requires that the testator must:
· Understand the nature of making a Will and its effects (i.e. what is a Will, and what does it do).
· Understand the extent of the property of which they are disposing (i.e. how large is their estate, and roughly what does this comprise of).
· Understand and appreciate (although not necessarily give benefit to) the claims to which they ought to give effect (i.e. who might expect to benefit from their estate, even if the testator doesn’t want them to).
· Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will (i.e. not have their decision-making affected by a mental disorder).
In the Baverstock case, the Judge felt that Margaret could not have understood the nature of the Will at all, and so the validity of the Will failed on the first arm of the Banks v Goodfellow test.
The court will also consider the Mental Capacity Act [2005], and particularly section 3(1) of the Mental Capacity Act [2005], which sets out the tests for whether a person can make a decision (i.e. that they can understand information relevant to the decision, that they can retain that information, that they can use or weigh the information as part of the decision-making, and that they can communicate that decision). In James v James and others [2018] EWHC 43 (Ch), however, the High Court held that the Banks v Goodfellow test should be favoured.
Coercion and Financial Abuse
Sadly, vulnerable and elderly people can find themselves the target of financial abuse, or they may find that their relatives or friends attempt to coerce them to change their Wills or Lasting Powers of Attorney so that the person exerting the coercion can financially benefit.
It can be difficult to spot financial abuse, particularly where the person exerting the control over the vulnerable person is their family, as often families are required to have more involvement in their elderly relatives’ finances as they become less capable of managing their affairs personally.
Some signs of financial abuse are as follows:
· The abuser forces the vulnerable person to take out cash for them, or to get credit out in their name.
· The abuser makes the vulnerable person hand over their logins for their accounts or gets them to add their names to their accounts.
· They pressure the vulnerable person to change their Will in a way that they are not comfortable with.
· The abuser will isolate the vulnerable person from other family members or friends to prevent them seeing what is happening on the accounts.
· The abuser uses your money on items which have not been agreed or sets up direct debits for payment of their own debts.
· The abuser takes advantage of a person’s vulnerabilities to poison their mind against other family members or friends to destroy their trust in their support system.
Vigilance is needed to help vulnerable family members avoid becoming the subject of coercion and financial abuse.
What Can You Do?
To prevent becoming a victim of financial abuse personally, you can take certain steps with your estate planning to ensure that your affairs are in order before you lose the ability to make decisions for yourself. This can include:
· Ensuring that you have prepared and maintained up-to-date Lasting Powers of Attorney for both Property and Financial Affairs and Health and Welfare Decisions, and that these have been formally registered with the Office of the Public Guardian.
· If you are concerned about a particular individual, you can notify the Office of the Public Guardian of your concerns, and this will raise a flag if they later attempt to change your registered documents.
· Ensure that your financial asset holders have the details of your registered Lasting Powers of Attorney.
· Prepare a professional Will.
· Ensure that the people you appoint as your executors, trustees and attorneys are individuals who you trust to manage your finances and deal with your estate in accordance with your wishes.
· Appoint professional executors, attorneys, or trustees if you do not trust or feel that your family will be able to deal with your estate properly.
If you are concerned that a deceased loved one’s Will was prepared when they did not have capacity, or if they were coerced into preparing it in a certain way by another third party, then the Will could be invalid. Where you are concerned that a Will is invalid, you can prevent probate being granted by placing a caveat or, if probate has already been granted, then you may still bring a claim to invalidate the Will that has been proven at the Probate Registry.
Contact Leeds Day Today
Leeds Day LLP have teams of Private Client Specialists who can help you get your affairs in order with the preparation of Wills and Lasting Powers of Attorney. Our Dispute Resolution Team can also assist you with a claim regarding the validity of a deceased person’s Will. Contact the team today on 0333 577 2250 or email us at contact@leedsday.co.uk to discuss your needs.
If you are concerned that you or someone you care about may be the victim of financial abuse, then you can also obtain free advice from the Financial Support Line for Victims of Domestic Abuse on 0808 196 8845.