Often a challenge to a will on the grounds of lack of testamentary capacity is brought at the same time as a proprietary estoppel claim. Such was the case in James v James, reported by some tabloid press as a case of a farmer’s son having been “completely cut out of his dementia sufferer father’s £3 million will” after his mother “intercepted” it and had his late father sign a different will.
“Testamentary capacity” means whether an individual has the specific mental capacity required to make a will. This is a different test from the Mental Capacity Act 2005 test, and instead arises from common law and is known as the “Banks v Goodfellow test”. To satisfy the Banks v Goodfellow test, the testator must:
- Understand of the nature and effect of making a will – i.e. that this is something that governs their property after death.
- Understand the extent of property – i.e. what do they own and are they disposing of it under the will?
- The testator must be able to comprehend and appreciate claims that others might have on their estate – i.e. are there children and will those children feel they have been appropriately provided for?
In this case, Dorset farmer Charles James was a self-made man, married to his wife Sandra with three children Sam, Karen and Serena. During his lifetime Charles built up a large farming and haulage business, along with various parcels of land. He also made various transfers during his lifetime: transfers of land to Karen and of the haulage business and land to Sam (the total assets received by Sam were valued at around £1.3m).
In 2010 Charles made a will leaving his estate to Sandra, Karen and Serena – but no further provision was made for his son over and above the lifetime gifts. Sam therefore challenged the will on two grounds – proprietary estoppel and lack of testamentary capacity. This overview just looks at the testamentary capacity challenge, as this cleared up some muddy legal waters.
The will drafter solicitor first met Charles and Sandra in May 2010 (when Charles was aged around 79 and Sandra around 77) to take initial instructions, and followed up with further meetings. The final meeting was on 16 September 2010 when the solicitor attended the farm to have Charles and Sandra sign their wills. During these interactions there were a number of potential warning signs:
- At the initial meeting, Sandra said that “[Charles’] short term memory is not very good”.
- Sandra told the solicitor to call her before posting the draft wills, so that Sandra could intercept them before Charles “filed them somewhere mysterious”.
- Sandra was out when the solicitor arrived for the will signing meeting. Charles was adamant he “didn’t want to sign anything” without her being there.
- It transpired that Charles did not want to sign his will as he thought that meant he would die.
Charles did (after being reminded of the need to redress the balance between his children) agree to sign his will and this was duly executed. However, the following year he was formally diagnosed with dementia and assessed as not having capacity to make financial decisions.
The solicitor didn’t follow the so called “golden rule” in Re Simpson: she did not obtain a medical opinion of Charles’ capacity. She also did not make reference in her first attendance note to having made her own assessment; although her attendance note of the second meeting mentioned that she was confident that Charles had understood everything at the end of their first meeting.
At trial, the solicitor pointed out that she had met with Charles three separate times and he had shown no signs of confusion or ill health. While his behaviour was somewhat irrational, she had seen previous examples of the phenomenon (the fear that signing his will would lead to his death) before. The solicitor was satisfied that Charles was happy with the terms of the will and that she did not need to seek a medical opinion.
The judge found that Charles did in fact in this case have testamentary capacity, and identified four particular factors in coming to that conclusion:
- The estate was (while large) relatively straightforward;
- Charles was survived by his wife;
- All children were financially independent adults; and
- At the moment of executing his will, Charles appreciated the need to redress the balance between his children.
The judge said it was highly regrettable the solicitor didn’t follow the Re Simpson golden rule as it would have saved everyone involved a lot of time if the court had had the medical opinion in front of it.
James v James confirms that the Banks v Goodfellow test is now the sole test for retrospectively assessing testamentary capacity. The judge also set out a general rule confirming that, “The simpler the estate and the fewer claimants, the less difficult it is to dispose of, and accordingly the less acute the faculties required to do so successfully.”
While it’s not essential to get a medical opinion, it can avoid problems later down the line. However, the mental capacity that a testator needs to demonstrate is not absolute – it will depend on the facts.
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All content on this page is correct as of May 14, 2018.