An England and Wales High Court (EWHC) case in which it was decided that a woman who partially tore up her will on her deathbed had intended to revoke the document and thus prevent her extended family inheriting her £800K estate.

In this case, Crew & Anor v Oakley & Ors [2024] EWHC 2847 (Ch), Carry Keats was 92 when she died in February 2022.

She had made six wills in all, her first being a mutual will with Ron in 2003, by Kirklands Solicitors, who prepared all of her wills. By her second will, in 2013, drafted by Mrs Haffwen Webb, she appointed David and partners from Kirklands as her executors. A third one in identical terms (the second was invalid) was made in April 2013, and then a fourth in February 2016. Mrs Webb became a partner in Kirklands in February 2022. Ms Keats became Mrs Webb’s client as, at some point, Mr Michael Joy, a partner in Kirklands, handed her matters over to her. Mrs Webb also prepared the fifth will in August 2018. In September 2019, Ms Keats appointed her cousins (once removed) Angela and David Crew as her Attorneys under a Lasting Power of Attorney.

In July 2020 Ms Keats instructed Mrs Webb again, with regard to what became her sixth and final will. Instructions were taken by telephone due to the pandemic. The Crews were to be executors. They were also given a caravan and 25% each of the residuary estate with the balance to Kevin Whitehorn (25%) and Jason and Leon Whitehorn (12.5% each), Ms Keats’ cousins twice removed. Ms Keats was driven to Kirkland’s car park by the Crews who, at Mrs Webb’s request, went for a walk. Then Mrs Webb went through the terms with Ms Keats who executed that will in the car on 21 September 2020.There appears to be no question of testamentary capacity at the time of this will’s execution.

On the 16 November 2021, Ms Keats explained to her solicitor how she had fallen out with David and Angela as they indicated they would put her in a nursing home if she had another fall. She was, in Mrs Webb’s word, adamant that she wanted to revoke her 21 September 2020 will as she did not want the Crews to benefit. Nor were they to be her executors.

On 6 January 2022, Josephine Oakley called Mrs Webb and told her that Ms Keats was in hospital.

On 9 January 2022, a Mental Capacity Assessment completed by an Occupational Therapist for discharge noted that Ms Keats could not retain information long enough to make a decision nor could she weigh up the information. On 17 January 2022, in response to a question on a form “Does the patient have capacity? (informal assessment)” the “No” box was ticked. The hospital records then state, on 21January 2022, “Patient confused”. Under Nursing Notes it records that the staff declined to witness Ms Keats signing some documents produced by Josephine due to “…Carry’s fluctuating capacity. Unclear if she signed whilst we were not present”.

Mrs Webb telephoned the hospital on 25 January. The ward staff told her no visits were allowed due to the pandemic but on hearing she was a solicitor and it was to finalise Ms Keats’ will she was told a formal attendance was permissible. Mrs Webb tried to call Ms Keats. Amazingly, as she put it, Ms Keats answered but had little idea how to hold the ‘phone and was: “…very disorientated…didn’t give clear instructions about being to update her Will. She was very muddled. HW [the solicitor] uncertain if Carry would be able to give instructions. However, Carry confirmed that she would like HW to go and see her and to attend tomorrow.”

The dispute arose from events that occurred on 26 January 2022, when the solicitor visited Ms Keats in hospital. A detailed attendance note made by the solicitor set out the course of these events. Ms Keats had had a serious falling-out with Angela and David Crew about their alleged plans to move her into a nursing home and, while in the hospital, she wanted to make a new will leaving her estate to her sister Josephine Oakley. The solicitor had no doubts about Ms Keats’ testamentary capacity at that meeting, despite the earlier notes made by hospital staff which had described her as confused and not having capacity.

The solicitor told Ms Keats that, if she was adamant that she did not want Angela and David Crew to deal with the administration and to inherit from her estate, she could tear up the original of her existing will, which the solicitor had brought with her. According to the solicitor’s attendance notes, ‘…Carry was happy to do this. Carry was able to tear around three quarters of the way through and then HW [the solicitor] helped her tear up the rest of it.’ The solicitor had also brought a new draft will with her, but Ms Keats was not able to execute it as she was falling asleep due to some pain medication she had been given.

Ms Keats died on 15 February 2022, never having executed the new draft will. However, her destruction of the old will, if valid, meant she died intestate. In that case, her sister Josephine would inherit the majority of her estate. Josephine Oakley duly applied for letters of administration. Angela and David Crew challenged this, and proceedings then commenced on 23 June 2023.

The agreed points of issue were: whether the will was sufficiently destroyed to amount to revocation; whether Ms Keats had authorised her solicitor to complete its destruction; and whether Ms Keats had the requisite intention and mental capacity to destroy the will.

The case came before the EWHC, which found that Ms Keats did sufficiently destroy the will as it was entirely torn in half as she intended. Moreover, she had properly authorised her solicitor to complete the destruction of the will by a nod of the head, that was not a mere acquiescence but a ‘positive and discernible’ non-verbal communication. Further, the evidence of the solicitor showed there was sufficient intent on the part of Ms Keats to destroy the will, because the solicitor had just specifically advised her of how destruction would remove Angela and David Crew from the will. This accorded with the draft will that the solicitor prepared in accordance with Ms Keats’ instructions at a previous meeting, which she never countermanded.

The most difficult issue was that of capacity, given that medical evidence showed that Ms Keats had had several episodes of delirium while in hospital. Ultimately, the EWHC found the solicitor’s evidence as to the bed side meeting recorded in her attendance note so convincing that it was clear that Ms Keats had met the Banks v Goodfellow test, Goodfellow (1870) LR 5 QB 549, and therefore had the requisite mental capacity to revoke her will. In that case, Cockburn CJ stated that to establish capacity it was essential:

“…that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The EWCH found that Ms Keats had ‘a sufficiently lucid interval during which the revocation took place’. Ms Keats therefore had the requisite mental capacity to revoke her will.

The EWHC concluded that the will had been validly revoked and Ms Keats died intestate. It accordingly dismissed Angela and David Crew’s arguments and found for the sister’s counterclaim.

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