Testamentary Capacity

The leading case on testamentary capacity is Banks v Goodfellow (1869–70) LR 5 QB 549. John Banks lived with his teenage niece, Margaret Goodfellow. He had paranoid schizophrenia; he believed that a grocer, long since dead, was pursuing and persecuting him and that he was being chased by evil spirits. He left his entire estate of fifteen properties to his niece. On his death, his testamentary capacity was challenged. The court recognised that where a testator is deluded ‘a will should be regarded with great distrust, and every presumption should in the first instance be made against it’, a presumption which ‘becomes additionally strong when the will is … one in which the natural affection and the claims of near relationship have been disregarded’. However, it was held that, as there was no connection between his delusions and the disposition of his property, he was not incapable of validly disposing of his property by will:

By contrast, in Smee v Smee [1879] LR 5 PD 84, where the testator wrongly believed that he was the son of George IV, who had built Brighton Pavilion, and therefore left a reversionary interest in his estate to fund a free library for the people of Brighton, it was held that his delusion had drastically affected his testamentary wishes and his will was pronounced invalid.

The threshold for testamentary capacity has been and remains low (James). In Sharp v Adam [2006] EWCA Civ 449, the court quoted with approval Den v Vancleve (1819) 2 Southard, and upon which Banks had relied: ‘By the terms “a sound and disposing memory” it has not been understood that a testator must possess these qualities of mind in highest degree.’ In Banks, the court recognised that ‘want of intelligence occasioned by defective organisation, or by a supervening physical infirmity or the decay of advancing age’ resulting in ‘the mental power [being] reduced below the ordinary standard’ might not be sufficient to prevent the understanding and appreciation of ‘the testamentary act in all its different bearings’. Furthermore, ‘[t]he simpler the estate and the fewer the claimants, the less difficult it is to dispose of, and accordingly the less acute the faculties required to do so successfully’ (James).

Assessment should address the ability of the testator to understand the nature of a will – that is, that they will die, that the will will come into operation on their death, but not before, and that they can change or revoke it at any time subject to having the capacity to do so. They must understand the effects of making a will and making choices with regard to: who the executors should be and, perhaps also, why they should be appointed; who gets what; whether a beneficiary’s gift is outright or conditional, such as the right to occupy a property only during their lifetime; that if they spend their money or dispose of their properties, the beneficiaries might lose out; a beneficiary might die before them; and whether they have already made a will, in which case they need to understand how the new one differs from the old one.

The testator must comprehend broadly the extent of their property (that is, what the will will ‘bite’ on) and so must the expert. Actual knowledge of a value is unnecessary (Blackman v Man [2007] EWCA 3162 (Ch)); the value of property can change – rapidly in unstable economic times and in the lifetime of the testator. It is not ‘a requirement that a person actually understand the extent of his property, only that he have the capacity to do so’ (Simon v Byford [2014] EWCA Civ 280).

There may be property that is jointly owned and will pass to the joint owner irrespective of anything that is said in the will. There may be benefits payable, such as pension rights, that the will cannot determine. There may be debts and the testator should understand how these are to be paid.

In order to understand the claims to which the testator ought to give effect, you need to know who the testator’s family members are, along with others who might have a claim on the estate. ‘A testator with a complex estate and many potential beneficiaries may need a greater degree of cognitive ability than one with a simple estate and few claimants’ (Parker v Felgate and Tilly (1883) 8 PD 171). The testator should be able to take into account the extent to which possible beneficiaries may already have received adequate provision, be better off financially than others, have been more attentive and caring or may be in greater need of assistance according to their particular circumstances. You need to be informed about such matters by the instructing solicitors.

Sometimes, incapacity supervenes after a will has been made and before it is executed. Then, three questions have to be answered (Parker):

As these questions have to be answered in order and a positive response to any of them indicates that the will is valid, the bottom line is that the testator should understand that she is executing a will for which she had previously given her solicitors instructions. This is important where there has clearly been a deterioration in the testator’s condition between giving their instructions and signing the will. Perrins v Holland has established that no more is required than that the testator believes that it gives effect to their instructions and that they continue to represent their wishes.

Bear in mind that a testator can still act in an unorthodox way: ‘But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous or even bad motives’ (Boughton v Knight [1873] LR 3 PD 64). The testator does not have to behave ‘in such a manner as to deserve approbation from the prudent, the wise or the good’ (Bird v Luckie (1850) 8 Hare 301).

In Ireland, however, where a spouse or civil partner has statutory rights to a share of the estate, there is a limit to the extent to which an otherwise ‘perverse’ will can be made. Where a court considers that the testator failed in his moral duty to make proper provision for a child in accordance with his means, whether by his will or otherwise, it may order that such provision be made out of the estate. The court considers the application from the point of view of a prudent and just parent, taking into account, inter alia, the position of each of the children of the testator and any other circumstances in arriving at a decision that will be as fair as possible to the child in question and to the other children (Succession Act 1965, s 117).

In Kostic v Chaplin [2007] EWHC 2909 (Ch), Zoran Kostic’s father left most of his £8.2 million estate to the Conservative Party. Zoran Kostic’s challenge to the two wills made by his father was on the basis that he suffered from an undiagnosed and untreated mental illness which had resulted in a delusional belief that there was a worldwide conspiracy of dark forces and he was included in the conspiracy. In pronouncing against the wills, the court held that, as a result of his mental illness, Kostic was unable to appreciate his son’s claims on the estate. In Ritchie v National Osteoporosis Society [2009] EWHC 709, the testator left nothing to her children on the basis of their maltreatment of her. The court found that these allegations were untrue and as the medical evidence suggested that she may have omitted her children from her will on account of ‘paranoid delusions’, her will was declared invalid. In Walters v Smee [2008] EWHC 2029 (Ch), the court found that the dispositions of the testatrix in her 2004 will, made a month before she died, were motivated largely, if not wholly, by ‘misapprehensions’ that were the result of her dementia and its effect on her cognitive faculties.

Undue Influence

Related to testamentary capacity is ‘undue influence’. Wingrove v Wingrove (1885) 11 PD 81 established that in law ‘under influence’ could be summed up in one word – ‘coercion’ and: ‘The coercion may … be of different kinds … (a) person in the last days of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result.’ It is for the court, not the expert, to decide if undue influence was brought, but expertise may be needed to identify the nature and cause of a state rendering the testator vulnerable or susceptible to coercion and as to the likelihood of the undue influence alleged being sufficient coercion in the circumstances revealed in the lay witness evidence. In Gill v Woodall [2009] EWHC 3778 (Ch), where the issue was the undue influence of the deceased’s husband, the court had regard to the fact that the testator was a shy and timid person who suffered from agoraphobia and was very, and unusually, dependent on her husband and concerned not to lose his support. The diagnosis of agoraphobia, of which there was no evidence in medical records, was based on the evidence of the lay witnesses. It is dementia which is more often identified as increasing vulnerability to the influence of others.

Burden of Proof

Although there is a rebuttable presumption in favour of the testamentary capacity of a testator whose will is duly executed, where a claimant raises a real doubt as to testamentary capacity, the burden of proof shifts to the propounder of the will to prove, on a balance of probabilities, that the testator did in fact have testamentary capacity (Key (Deceased) [2010] EWHC 408 (Ch)), but with a degree of flexibility appropriate to the seriousness of the case (Borman v Lel [2001] 6 WLUK 189). So, the psychiatrist instructed by those acting for the party challenging the will needs to analyse the evidence to see if it casts real doubt on the testator’s testamentary capacity; the psychiatrist instructed by those acting for the party propounding the will needs to carry out the analysis to see if, on a balance of probability, the testator possessed testamentary capacity.

Investigation of the Case

You should be provided with the disputed will and any relevant earlier wills. If it has not been provided, you should ask if there is a Larke v Nugus letter and its response. This is a letter to the solicitors responsible for drafting the will and sent in response to enquiries about the circumstances surrounding its drafting and execution pursuant to the principles set out in the case of Larke v Nugus (1979) 123 SJ 327. It may reveal whether a testamentary capacity assessment was undertaken and, if so, by whom; if there were concerns on the part of the will drafter, how they dealt with them; and whether ‘the golden rule’ was followed, that is, did a medical professional act as a witness to the testator’s signature. The information provided should extend to the preparation of the will and the circumstances in which it was executed. It may be accompanied by copies of the will drafter’s notes, including a copy of any telephone notes or attendance notes made by the will writer. These should reveal the instructions that were given, the advice that was provided and how the final will came to be as drafted. You will also need a family dramatis personae so that you can understand the potential claims on the testator’s estate.

The starting point in a retrospective assessment of capacity is a chronology. It may include entries in medical or care home records that refer to the mental state of the testator, medication prescribed, side effects, illnesses that cause pain, distress or agitation that may affect cognitive functioning, results of cognitive tests, observations of family and friends and references to other decisions that have been made. Evidence as to mental state before and after the drafting and execution of the will can be used to form an opinion as to the mental state at the time it was drafted and/or executed. In Bishop v Bishop [2009] 4 WLUK 329, the issue was whether the testator lacked testamentary capacity as a result of alcoholic dementia when he executed his will on 3 November 1995. On 9 and 22 November 2005, the testator was assessed by a consultant physician who assessed his cognition on a 10-point scale, finding that it increased from 2–3 out of 10 to 8–9 out of 10. The court found that these results and the physician’s evidence were ‘“fatal” to the dementia view’ as ‘it would not have been possible for [the testator] to obtain the test score of 9/10 on 22nd November 2005 if he had dementia’.