The Will That Was Filmed: Capacity, a Guided Hand and Baverstock v Baverstock

Most contested wills are fought over what people remember. This one was different. In Baverstock v Baverstock, the court could simply watch a video of the will being signed — filmed by the very person who stood to inherit everything. What it showed brought her case down.

A 76-year-old woman with advanced dementia signed a will eight days before she died, leaving her entire £700,000 estate to one of her two children. The court held the will invalid. Below we set out the facts, explain the law that governs a case like this, and show how that law applied to what the video revealed.

An important note before we begin. At the time of writing there is no publicly available written judgment in this case. It was a first-instance decision of a Circuit Judge and does not appear on the National Archives' Find Case Law service or on BAILII, and no neutral citation has been reported. The facts and the judge's remarks set out below therefore come from press and professional reports of the hearing, not from an approved transcript. The law we explain is taken from primary sources and is fully referenced at the end.

1. The Facts

Margaret Baverstock was diagnosed with dementia in 2014. She had two adult children: a son, John, and a daughter, Lisa.

In 2019 Lisa moved into her mother's home, on the footing that she was there to help as the dementia worsened. John continued to visit. After a family row in February 2021, Lisa barred her brother from the property.

Lisa then prepared a will for her mother. It appointed Lisa as sole executor and left her the entire estate — around £700,000 — cutting John out altogether. Margaret signed it in March 2021, reportedly just eight days before her death. She was by then suffering from advanced dementia, arthritis and suspected lung congestion. No solicitor was involved, and no medical assessment of her capacity was obtained.

The signing was filmed — and, remarkably, Lisa produced the video herself when the case came to court, where she represented herself. It reportedly showed Margaret barely responding to her daughter's questions, Lisa repeatedly trying to place a pen into her hand, and then Lisa holding her mother's hand and guiding it across the page. The resulting signature was said to bear no resemblance to Margaret's genuine signature from 2017.

John challenged the will. The case came before Her Honour Judge Jane Evans-Gordon, who held the will invalid.

2. The Law

A case like this engages several separate requirements. Each one is a hurdle in its own right: a will that fails any of them is invalid, however genuine its contents might look.

Did the testator actually sign? — section 9 of the Wills Act 1837

The starting point is the formal signing rule. Under section 9 of the Wills Act 1837, no will is valid unless "it is in writing, and signed by the testator, or by some other person in his presence and by his direction", and "it appears that the testator intended by his signature to give effect to the will" — with the signature made or acknowledged in front of two witnesses present at the same time, who each then sign.

Those words "or by some other person in his presence and by his direction" are what matter when someone else's hand is on the pen. The Court of Appeal explained what a "direction" requires in Barrett v Bem [2012] EWCA Civ 52. It is not enough that the testator failed to object. There must be "something of the testator which is positive and discernible and not just a matter of abstention" (at paragraph 33), and specifically a "positive and discernible communication (which may be verbal or non-verbal) by the testator that he wishes the will to be signed on his behalf" (at paragraph 36). A person who does not understand what is happening cannot give such a direction — and a hand that is merely being moved by somebody else has not signed anything.

Did the testator have capacity? — Banks v Goodfellow

To make a valid will, a person must have the mental capacity to do so. The test still comes from the Victorian case Banks v Goodfellow (1870) LR 5 QB 549, and the Court of Appeal confirmed as recently as Hughes v Pritchard [2022] EWCA Civ 386 that this "remains" the test (at paragraph 62) — not the Mental Capacity Act 2005. In the words the Court of Appeal quoted, the testator must:

"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 senses of right, or prevent the exercise of his natural faculties…"

Dementia does not automatically destroy capacity. But the further it advances, the harder that test becomes to meet.

Who has to prove what?

The burden of proof matters enormously in practice. Hughes v Pritchard sets out the sequence (at paragraph 64): the burden lies on the person putting the will forward; where a will is duly executed and looks rational on its face, the court will presume capacity; the objector must then raise "a real doubt" about it; and once a real doubt is raised, "the burden shifts back to the person propounding the will to establish capacity, nonetheless". In other words, once genuine doubt is in the air, it is for the person relying on the will to prove the testator was capable — not for the challenger to prove they were not.

Did the testator know and approve the contents? — Gill v Woodall

Separately from capacity, a testator must genuinely know and approve what the will says — which is simply "traditional language for saying that the will 'represented [one's] testamentary intentions'" (Gill v Woodall [2010] EWCA Civ 1430, at paragraph 14). Normally the court assumes this. But where the circumstances are suspicious — classically, where the person who benefits most was closely involved in producing the will — the assumption falls away. As the Court of Appeal put it, quoting the older case of Tyrrell v Painton, "it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document" (at paragraph 13).

The "golden rule" — and what happens when it is ignored

Where a will is made by someone who is elderly or seriously ill, long-standing good practice — the so-called "golden rule" — is to have their capacity assessed by a medical practitioner at the time, and to record it. Hughes v Pritchard confirms this is a rule of good practice rather than a rule of law, and that following it gives no "conclusive status" (at paragraph 85). But the reverse is the practical danger: where the rule is ignored, there is simply nothing on the record to answer the doubt when it is raised later.

What happens if the will fails? — the intestacy rules

If a will is invalid and there is no earlier valid will, the estate passes under the intestacy rules. Where someone dies leaving children but no surviving spouse or civil partner, section 46 of the Administration of Estates Act 1925 provides that "the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate" — which, in plain terms, means it is shared equally between the children.

3. Applying the Law to the Facts

Because there is no published judgment, we cannot quote the judge's reasoning paragraph by paragraph. What follows explains how the reported outcome maps onto the law set out above.

Capacity was the heart of it, and the video decided it. A dementia diagnosis dating back to 2014, a woman in the final days of her life, and footage of her barely able to respond to the questions being put to her: that is more than enough to raise the "real doubt" that shifts the burden under Hughes v Pritchard. At that point it fell to Lisa, as the person putting the will forward, to prove positively that her mother satisfied Banks v Goodfellow — that she understood she was making a will and what it would do, understood roughly what she owned, and could appreciate the claim of the son she was cutting out. Lisa had no solicitor's file, no capacity assessment and no medical evidence with which to do it. The judge's reported finding that Margaret "had no idea what was going on" is, in law, a finding that the very first limb of the test was not met.

Knowledge and approval failed on the same evidence. The circumstances here are about as suspicious as they come: the sole beneficiary drafted the will herself, had excluded the only rival claimant from the house weeks earlier, and produced a document handing herself everything. That squarely engages the principle in Gill v Woodall — it was for Lisa to remove that suspicion and prove affirmatively that her mother knew and approved the contents. A testator who cannot follow the questions being asked of her on camera cannot be shown to have known and approved anything.

And then there is the signature itself. This is the point that makes the case unusual. On the reports, Lisa physically guided her mother's hand, and the resulting mark bore no resemblance to Margaret's genuine 2017 signature. Measured against section 9 and Barrett v Bem, that document faces an impossible dilemma. Either the signature was Margaret's own — but a hand passively moved by another is not the "positive and discernible" act the law requires — or it was a signature made by another person, in which case it is only valid if Margaret directed it, and a woman who had no idea what was going on could not possibly have given that direction. On either analysis, the will was not signed as the law demands, quite independently of the question of capacity.

The result. The will was declared invalid. With no earlier will to fall back on, Margaret died intestate, and section 46 of the Administration of Estates Act 1925 divided her estate equally between her two children — so John, disinherited by the document, inherited half regardless. Lisa was ordered to pay his legal costs, reported at up to £80,000. The estate she had tried to take in full she now shares, minus a substantial costs bill.

What this means for you

The Baverstock case is a distressing family story, but its lessons are unusually clear:

• Filming the signing is not a safeguard. This is the striking lesson of the case: video evidence cuts both ways. A recording cannot manufacture capacity that is not there — it can only capture its absence. Lisa's own film was the single most damaging piece of evidence against her.
• Capacity must be assessed, not assumed. Where someone is elderly or seriously unwell, the "golden rule" — a contemporaneous medical opinion on capacity — is what protects the will from challenge years later. Its absence here left nothing to answer the doubt.
• A guided hand is not a signature. Helping someone steady the pen is one thing; moving their hand for them is another. If a person cannot physically sign, the law does allow someone else to sign on their behalf — but only on their clear direction, in their presence, and with the proper formalities observed.
• The person who benefits should never be the person who prepares the will. A beneficiary who drafts the document, arranges its signing and excludes the other family members has created exactly the "suspicious circumstances" that put the burden of proof on their own shoulders.
• An invalid will achieves the opposite of what was intended. Margaret's will was struck down entirely — so the estate passed under the intestacy rules, splitting it equally. A will that fails does not simply fall back on a compromise: it disappears.

At Make a Will, our process is built around exactly the safeguards this will lacked — proper instructions taken from the person making the will, a clear record of capacity where there is any question about it, correct execution, and a solicitor's check — so that your wishes are the ones that are actually carried out.

This article is for general information and is not legal advice. If you are concerned about a will made by someone who may have lacked capacity, or about how a will was signed, please get in touch for advice on your specific circumstances.

Sources

• Wills Act 1837, section 9 (signing and attestation) — legislation.gov.uk
• Administration of Estates Act 1925, section 46 (distribution on intestacy) — legislation.gov.uk
• Barrett v Bem [2012] EWCA Civ 52 — Find Case Law, The National Archives (also on BAILII)
• Hughes v Pritchard [2022] EWCA Civ 386 — Find Case Law, The National Archives (also on BAILII) — confirming the Banks v Goodfellow (1870) LR 5 QB 549 test and the burden of proof
• Gill v Woodall [2010] EWCA Civ 1430 — Find Case Law, The National Archives (also on BAILII)
• Son wins £700k will dispute after video shows sister forcing dying mother's hand — Today's Wills and Probate
• Baverstock v Baverstock: understanding capacity, coercion and financial abuse — Leeds Day LLP
• The importance of testamentary capacity: lessons from the Baverstock case — Ashfords
• Find Case Law — The National Archives

Note on sources: at the time of writing, no written judgment in Baverstock v Baverstock had been published on the National Archives' Find Case Law service or on BAILII, and no neutral citation has been reported. The account of the facts, the outcome and the judge's remarks is drawn from the press and professional reports listed above. The legislation and case law explained in this article are taken from the primary sources linked above. A neutral citation and direct link will be added if and when the judgment is reported.