Video evidence in will challenges - a cautionary tale

The case of Baverstock v Baverstock concerned the validity of a homemade will created by Margaret Baverstock on her deathbed, which her daughter, Lisa, guided her hand to sign.

The background

In this case, a brother took his sister to court, claiming that she had forced their mother to change her will on her deathbed.

The will in question was prepared by the daughter, Lisa, using an online template. It named Lisa as the sole beneficiary and executor of her mother Margaret's estate. This was done, reportedly, just eight days before Margaret's death, at a time when she was suffering from advanced dementia, arthritis and suspected lung congestion.

Following Margaret's death, her son, John, challenged the validity of the will, arguing that its signing was “not the independent act of the deceased”, but a physical manipulation of the deceased's hand to execute a document that she did not understand.

The video evidence

This case involved video evidence which was put to the court to help it determine Margaret's capacity to make her will.

A key part in Lisa's defence was a video of the will's signing, which showed her balancing a pen in her mother's hand and physically moving it to mark the will, whilst asking, "Do you agree to this?"

But rather than strengthening her case, the evidence undermined it. Indeed, in the video, Margaret was barely able to hold the pen, and the judge noted that she could hardly "flicker an eyelid".

The court ultimately found that Margaret did not have the necessary capacity to execute the will and did not know and approve its contents. The will was declared invalid and, as no former will was known to exist, Margaret's estate would be divided equally between John and Lisa under the intestacy rules.

The legal test for capacity

To make a valid will, the person making it must have what is known as testamentary capacity. This was established in the case, Banks v Goodfellow and requires the person to:

• Understand the nature of the act and its effects (that they are making a will, and what wills do)
• Understand the extent of their property
• Understand the claims which they ought to consider, even if they do not give benefit to those claim
• Not suffer from a mental disorder which could affect their ability to make decisions about their estate.

The court in Baverstock v Baverstock found that Margaret did not have the necessary testamentary capacity.

What does this tell us?

This cautionary tale highlights the risks of a costly dispute arising from a DIY will, especially where the person making their will is elderly or vulnerable. Even with video evidence, if the individual lacks capacity or appears to be influenced, the will can be challenged and ultimately declared invalid.

It is a sensible step to seek the help and advice of a specialist solicitor if you wish to change your will or make a new one to protect your own interests and to minimise the risks of a will dispute arising in the future.

Do you need advice or are you concerned about a will?

If you're worried about the validity of a will or are considering challenging one, our team is here to help. Please get in touch with Fiona Lawrence in our Personal Legal service team to arrange a conversation.