It is not uncommon for relatives to take an aged member of the family to a solicitor so that a new will can be executed. The Court of Appeal decision in Hawes v Burgess  EWCA Civ 73 demostrates the care that has to be exercised in such a situation. The relevant will was drafted by an independent solicitor who was experienced in drafting wills and who had explained its contents to the deceased before she executed it three weeks later. The trial Judge found that the deceased lacked the degree of understanding to comprehend and appreciate the claims to which she ought to have given effect. He also found that the deceased did not know and approve the contents of the contents of the will.
The Court of Appeal did not find it necessary to determine whether there the appeal on the incapacity point should succeed, although both Judges had grave doubts about the correctness of the trial judge’s conclusions on it – not least because the solicitor who oversaw its execution had recorded that the deceased had been compos mentis at the time. But they upheld the trial judge’s conclusion on want of knowledge and approval. The respondent strongly relied on Gill v Woodall  WTLR 251 in saying that, where a solicitor reads over a will and it is properly executed, there is a strong presumption that the will represents the wishes of the testatrix at the time. But the trial judge asserted that, whilst those circumstances should be given full weight, they are not conclusive and do not raise a presumption.
Factors which the Court took into account were the fact that the relative who made arrangements to see the solicitor and give information about the proposed contents was one of the beneficiaries. She took the deceased to the solicitor’s offices and remained in the room with the deceased throughout the discussions with the solicitor and whilst the will was executed. She was the controlling force behind the instructions. Furthermore the deceased’s physical health, mental state and diminishing capacity supported the trial judge’s conclusions.