In one recent case, a husband and wife who had looked after their 91-year-old neighbour successfully showed that a final “will” leaving his six-figure estate to another couple, was not valid. A High Court judge stated that the deceased, William Bates, did not have the “testamentary capacity” to make a valid will and that the case had “aroused the suspicion of the court”. He agreed with the claimants' barrister, Alexander Learmonth, that the second couple “knew they were doing wrong, given the advice they had been given by Mr Bates's solicitor and doctor.” A will executed in 2000 was reinstated.

In a new case, two brothers are claiming that their sisters wrongly persuaded their father to sign a new will on the day before his wife's funeral at a time when he was bereft and distraught. The brothers say that 89-year-old George Key suffered from dementia, could not make decisions for himself or remember details about his family, and was wholly suggestible at his children's hands. They are asking the court to rule that the will, signed on 6 December 2006, is invalid, and to uphold a will made six years earlier in which they are the main beneficiaries. So it is timely to highlight points from a long Practice Note in the January/February edition of the Law Society of Ireland's Gazette— “Drafting Wills for the Elderly—Guidelines for Solicitors”—(with the permission of Gazette editor Mark McDermott).

“Only the testator is the client...Family or friends may feel they 'know what's best'. While the wishes of the testator will often coincide with the wishes of those who wish to assist in the preparation of a will, in many circumstances this will not be the case...

“The elderly person may have his/her own solicitor but may have been diverted to another solicitor to bypass advice already received…in such circumstances, full enquiries should be made and a solicitor should be slow to proceed.

“Testamentary capacity and mental capacity are not one and the same… Testamentary capacity requires a high level of capacity and assessment can be difficult. Eccentricity or capriciousness does not necessarily indicate a lack of testamentary capacity…Ensure that the nature and effect of the transaction is explained to the client in broad terms and simple language. After a reasonable time frame, establish whether the client can paraphrase in broad terms the explanation given earlier…Do not regard an individual as lacking capacity because of an apparently imprudent decision. Following the taking of instructions and the preparation of the attendance, solicitors should ensure that wills are drafted and executed promptly—particularly when clients are elderly or are known to be ill. Practitioners should also be aware of their duty of care to putative beneficiaries.”

There is an interesting guidance note from HMRC about Inheritance Tax (IHTM43003). Provided a polygamous marriage ceremony conducted abroad is legal in the overseas country, all the parties are treated as “spouses” for the purpose of transferring unused nil rate band. This comes in the wake of an unsuccessful 2002 appeal to the Special Commissioners of Income Tax by Mrs Holland, who was not (despite family's and friends' assumptions) married to Mr Holland, although she had lived with him for over 30 years.

Under the Inheritance Tax Act 1984 in England (though not Scotland) “spouse” means a person who is legally married. The Human Rights Act 1998 extends the meaning to Civil Partnerships—and to legal marriages in other countries. HMRC remain prudently silent on polyandrous unions practised in parts of Tibet, Nepal, Southern India and the Marquesan archipelago of French Polynesia.