A dying woman who nodded to her solicitor to complete the tearing up of her will had sufficient capacity at the time to make such a call, a court has ruled.

In Crew & Anor v Oakley & Ors Deputy Master Linwood found that client Carry Keats had wanted to destroy her existing will and authorised her solicitor on her deathbed to help complete that task.

The solicitor, Haffwen Webb, a partner with Hampshire firm Kirklands who had worked with Keats before, had seen her client tear about three quarters of the most recent document leaving her estate to her cousins.

But Keats, then 92, had struggled to complete the task, so when Webb asked if she needed help tearing the last part, the client made eye contact with her and nodded. The solicitor said she had ‘no shadow of a doubt’ that Keats had the capacity to give instructions and was adamant that it should be torn up. The result was that Keats’ estate passed by intestacy to her younger sister.

The judge said: ‘I find there was a positive communication and not mere acquiescence, as Carry looked at Mrs Webb and responded to her direct offer with a physical command or instruction reflecting her wish that Mrs Webb should actively assist her to complete the tearing in half of the will.’

Webb said in a statement that her client ‘could be quite a challenge to manage as she was stubborn and had very old-fashioned views’. She would reward people who were in her favour and the decision to change her will had followed a pattern of doing similar things before. Webb added: ‘I did not once consider that she had issues of capacity, rather her wish to change her will was down to her personality.’

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As recently as October 2020, Keats had phoned her solicitor and said her sister’s attitude had annoyed her and that she would make no provision for her in her will.

But there was then a serious falling out between Keats and her extended family over what she saw as plans to put her into a home. She was then reconciled with her sister and in August 2021 she called the solicitor to make an appointment to change her will again.

Webb saw her client in January 2022 and treated the visit as if for a deathbed will. The solicitor advised that if she was adamant about changing her old will then she could tear it up there and then.

Webb was questioned as to how she had concluded Keats had capacity. She said of her client that ‘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’.

The judge said Webb had been a convincing witness who did her best to assist the court and was honest throughout. He accepted that that with hindsight certain extra details could have been included in the attendance note but was satisfied that she did not embellish or develop her oral evidence, and her conduct had repeatedly been ‘professional and practical’.

The judge added: ‘Mrs Webb is an impartial witness who I am sure would not have let the revocation proceed if she had any doubts.’

The court found that Keats had capacity in a narrow window when she decided to tear up the will. She intended to do so and revoked it by destruction in accordance with section 20 of the Wills Act 1837. The judge dismissed the cousins’ claim to her estate.

 

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