Testamentary Capacity
| Author | Nasreen Pearce |
| Pages | 41-62 |
Chapter 4
Testamentary Capacity
4.1 INTRODUCTION
For a will to be valid, the testator/testatrix must be a person who is aged 18 or over (or who is making a privileged will; see para 2.2) and have the mental capacity to make the will. Claims contesting the validity of wills, particularly of those who are elderly or are mentally disabled, have been and are likely to remain an increasing source of litigation. They are the most difficult mainly because it is not always clear whether the person had capacity when instructions were first taken and, if he/she had capacity at that time, whether it persisted. The issue of testamentary capacity is also intertwined with the principle that it is essential to the validity of a will that the testator/testatrix should have knowledge of and approve the contents of his/her will. In challenging the validity of a will on the basis of lack of testamentary capacity, it is essential to draw a distinction between the ability to understand, which is the test of capacity, and actual understanding, which is not. (The subject of knowledge and approval is considered in Chapter 5.) It is, therefore, not surprising that when a will is challenged on the basis of lack of testamentary capacity, it is also claimed that the testator/testatrix did not know, understand and approve the contents of the will, and also that due to his/her vulnerability undue influence was exerted on him/her (see Chapter 6). Failure to ascertain whether the testator/testatrix has the appropriate capacity to give instructions and to understand the nature of the act of making a will is an invitation for litigation and a claim for professional negligence and costs. In the majority of cases where the validity of the will is challenged on the ground of lack of testamentary capacity, the observation made by Briggs J (as he then was) in Re Key (Deceased); Key and Another v Key and Others [2010] EWHC 408 (Ch) at
[6] applies, that the significant element or responsibility for the situation which arose in that tragic case was due to the failure of the solicitors to comply with the Golden Rule and the guidance given by the Law Society (see para 4.3) which led to the increased difficulties and aggravated the ‘depths of mistrust’. Although the Golden Rule is not a rule of law, it is good practice to follow the guidance. The difficulties which may arise are avoidable by ensuring that the basic rules are followed and consideration is given to the impact of provisions set out in the
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Mental Capacity Act 2005 (MCA 2005). The factors which need to be established to challenge lack of testamentary capacity are considered below.
4.2 TEST OF TESTAMENTARY CAPACITY UNDER COMMON LAW
The test for testamentary capacity under common law was set out in Banks v Goodfellow (1870) LR 5 QB 549, in which Cockburn CJ referred to it as follows (at 565):
It is essential that a testator shall understand the nature of his act and its effects; 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 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 his mind had been sound, would not have been made.
However, a will cannot be invalidated simply because the testator/testatrix was moved ‘by capricious, frivolous, mean or even bad motives’.
There are thus four key factors which must be met to establish testamentary capacity. They are that the testator/testatrix must understand:
(a) the nature of the act of making a will;
(b) the effect of making a will;
(c) the nature and extent of the property of which he/she is disposing;
(d) the claims on his/her estate of those whom he/she is benefiting and also of those whom he/she is excluding, and in relation to the latter, see Banks v Goodfellow (1870) LR 5 QB 549 at 565:
no disorder of 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 his mind had been sound, would not have been made.
4.2.1 Nature of the act of making a will
Those taking instructions must ensure that the person giving instructions for the making of his/her will has a broad understanding of the process of making a will, such as that the will comes into effect only on death; that until death occurs, ownership of the property remains with him/her; and that he/she has the right at any time before his/her death to revoke or vary his/her wishes and thus the will.
4.2.2 Effect of making a will
Care must be taken to establish that the person giving the instructions for the making of his/her will understands the ambulatory nature of a will and that although he/she might wish to bequeath a certain property to a named beneficiary, circumstances may change between the making of the will and date of death, in that the property may not be in existence at the date of death, its value may have increased or decreased or the beneficiary may predecease him/her, in which case the gift will fail. He/she should be able to consider alternative options.
4.2.3 Nature and extent of the property being disposed of
This means that the client should be able to understand and have knowledge or recollection of the property he/she owns, for example his/her legal title to the property and whether he/she is the sole owner of the property or whether it is jointly owned with another, and if the latter the legal implications of ownership by survivorship. He/she should be able to identify other interests that he/she may have such as pension rights, rights under insurance policies, shares, etc. The case of Pearce v Beverley [2013] EW Misc 10 (CC) is an example where the facts raised doubts as to whether the testator understood the extent of his property and whether he had an understanding of the claims of his daughter and his grandchildren on his estate. The testator in that case was suffering from mental and physical problems, he was unable to speak when the will was drawn and executed, and the instructions were given by the defendant. The evidence also indicated that he denied he had a daughter, which was inexplicable given his good relationship with her. This raised doubts about whether the testator had the mental capacity to make a will and whether, when the will was executed, he had knowledge of what he was doing and was able to approve this (see Chapter 5). It was also found on the facts that he was the subject of undue influence by the defendant.
4.2.4 Claims on the estate
This involves the testator/testatrix understanding and appreciating his/her moral responsibilities and obligations which he/she has towards others; the ability of distinguishing between the needs of those for whom he/she is responsible and assessing their needs and being able to balance the competing interests of others. If he/she chooses to ignore, exclude or differentiate between such potential beneficiaries, he/she should have the capacity to give his/her reasons for so doing. This has been referred to as being able to consider the moral claims of persons ‘who are fitting objects of the testator’s bounty’ (see Broughton v Knight; sub nom Boughton v Knight (1873) LR 3 P & D 64, 37 JP 598, 647, 42 LJP & M 25,
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Ct of Prob), but as long as he/she is capable of considering these moral claims, there is no legal obligation for him/her to leave any property to these persons. There is no need for any testator/testatrix to act ‘in such a manner as to deserve approbation from the prudent the wise and the good’ (see Bird v Luckie (1850) 8 Hare 301). A testator/testatrix has the freedom to leave his/her assets to whomsoever he/she pleases. However, the fact that he/she disregarded such moral obligations may raise doubts on whether he/she indeed had capacity (see Battan Singh v Amirchand [1948] AC 161 where, although the testator had three nephews to whom he was close, he claimed he had no living relatives and left his assets to creditors). In Pearce v Beverley [2013] EW Misc 10 (CC), the testator denied he had a daughter and excluded her from his will without any explanation. His action on the facts was found to be irrational. More recently, in Lonsdale v Teasdale and Others [2021] EWHC 2342 (Ch), the testator had excluded his only surviving child and grandchild. He gave his reasons for so doing in a letter of intent, stating that he had done so because ‘neither of them make any effort to have or maintain a relationship with me’, whereas the evidence indicated that he was a vulnerable person who had suffered the loss of his wife and his son within months before he changed his original will; he had substantially failed a well-regarded screening test for cognitive impairment and was noted in the GP record as lacking insight; he was reeling with anger at his daughter informing the DVLA of his condition, and he had an irrational and wrongly held belief that she was breaking into his house and moving things and had misappropriated or misspent monies. On appeal, it was held these facts clearly raised doubts about the testator’s capacity, shifting the burden on the person propounding the will to establish that the testator had capacity.
4.2.5 Capricious, frivolous, mean or even bad motives
A will cannot be invalidated simply because the testator/testatrix makes an unwise decision. For a will to be valid, the law does not require that the testator/testatrix should have a perfectly balanced mind or that he/she should be motivated to please or do good. Where the will is rational on its face and duly executed, it will be presumed that the...
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