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When making a Will are capacity and knowledge different?

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Writing a Will can be a straight forward process, however more often than not there are factors that must be considered as part of that process.   It is self evident that a person wishing to make a Will must have the capacity to do so, however a recent case has also highlighted the need for knowledge and approval of its contents; a point that some may believe obvious but in this area, something that can be overlooked or misinterpreted.

In the case of Poole v Everall and White, David Poole died at the age of 46 in March 2013.  In 1985, Mr Poole had a motorcycle accident and suffered severe head injuries as well as reduced use of his limbs; he consequently received compensation to the value of over £1million.  Following some years in a mental health hospital, in 1994 he was discharged and placed under a scheme called “Home from Home”, living with Mr Everall until 2007 who acted as a ‘supporting landlord’. 

Mental capacity

A Will was drawn up in February 2012 by Mr Poole’s solicitor after a medical assessment had been conducted that showed that Mr Poole had capacity to do so.  This Will left 60% of Mr Poole’s estate to various charities as well as legacies for his girlfriend, two half-brothers and their children.  The solicitor at the time pointed out that Mr Everall had been paid for his care of Mr Poole and so questioned whether any further legacy should be left to him. 

The final Will before his death was drawn up by means of Mr Everall’s engagement of an online Will writing service in December 2012 after Mr Poole had been diagnosed with terminal cancer and moved back into Mr Everall’s property.  In his argument to the Court, Mr Everall claimed that Mr Poole was no longer content with leaving him out of his Will and so asked Mr Everall to draw up this new Will leaving 95% of his estate to him and 5% to his girlfriend.

Contesting the validity of a Will

Perhaps unsurprisingly, with Mr Everall being the principal named beneficiary in this Will, following his death in March 2013, the two half-brothers sought to contest the validity of the Will stating that it did not reflect their half-brothers true wishes, and that undue influence had been brought to bear.  During the proceedings Mr Everall produced a recording of a conversation that he had had with Mr Poole, citing it as evidence that Mr Poole had knowledge of, and approved, the Will. 

The Judge determined that Mr Poole had capacity but ruled in the favour of the half-brothers as he found the recording that Mr Everall produced did not prove that Mr Poole had knowledge of the contents of the Will because it had not been read it out to him in its entirety.  The burden of proving that Mr Poole knew and approved of the contents of the Will rested with Mr Everall, but the recording was held not to satisfy this. 

What to consider when drawing up a Will 

Kevin Horn, Private Client Lawyer, commented, “Due caution must be exercised where the main beneficiary Will has had a part to play in the drawing up of a Will and especially when the person is vulnerable and reliant on them for their day to day needs. If you are looking to draw up a Will for someone whose capacity could be called into question it’s imperative that you seek both a medical opinion and legal advice.  However this case goes further in so far as it confirms that even someone with capacity must be in full possession of the facts and consequences that will come from the Will.  The Court will refuse to pronounce in favour of a Will where there is evidence that the deceased did not truly know or approve the extent of the provision it made so it is essential these factors are addressed within the will-making process.”

If you or a loved one are considering making a Will, or you’d like more information about contesting a Will, then you can contact Kevin or the Private Client team on 01329 222075 or email


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.