Two recent cases indicate a trend towards the Courts finding it difficult to declare a Will invalid due to the deceased lacking testamentary capacity but declaring them invalid under another ground of ‘want of knowledge and approval.’
The three limb test for testamentary capacity is set down in Banks-v- Goodfellow; the testator must
- Understand the nature of making a Will and its effects;
- Understand the extent of the property of which he is disposing and
- Be able to comprehend and appreciate claims to which he ought to give effect and is not affected by any disorder of the mind that influences his Will in disposing of his property.
The case for lack of testamentary capacity is difficult to establish as it usually relies on expert evidence after the event, where the expert did not meet or examine the deceased.
There will also be evidence from others including the person who took the deceased’s instructions and drafted the Will.
In the first of the two 2013 cases, the Will had been prepared by an experienced and independent solicitor following a meeting with the deceased, where that solicitor had read the Will back to her and considered (and had recorded in an attendance note) that she was capable of understanding the Will.
The Judge concluded that a Will drafted in these circumstances “should only be set aside on the clearest evidence of lack of mental capacity.”
Nevertheless, the Court of Appeal still held that the Will was invalid on the ground of ‘want of knowledge and approval’ and highlighted the following circumstances as relevant to ‘provoke suspicion’:
- the deceased had been close to the disinherited son;
- the daughter played an instrumental role in the making of the Will;
- the disputed Will was made at a time when the two siblings had fallen out, without the knowledge of the disinherited son, and
- the solicitor did not send the deceased a draft Will to check before signing it.
These circumstances together were sufficient to displace the presumption of validity where a Will has been signed by the deceased.
In the second case, the suspicious circumstances of the disputed Will extended to there being no rational explanation for disinheriting the claimant which represented a significant departure from previous Wills.
One for advisers to note as well as any potential claimants.