Testamentary Capacity: the Golden Rule

Whilst not a true presumption, where a Will drafted by  an experienced independent lawyer was explicable and rational on its face, it should be set aside only on the clearest evidence of lack of mental capacity.[1] That was no more than a statement of the obvious.

Important issues were considered by the Court of Appeal about the proper weight to be given to the drafting solicitor’s evidence and a medical practitioner’s assessment of a testator’s testamentary capacity: Hughes v Pritchard & Ors [2022] EWCA Civ 386: Moylan, Asplin, Elisabeth Laing LJJ

The drafting solicitor was eight years’ qualified and kept what appeared to be meticulous attendance notes.  She took instructions, drafted the Will, which was rational and explicable on its face, discussed it with the Deceased on a number of occasions and read it over to him. She had been informed by him of his previous Will and that he wanted to make changes in the light of the death of his son, and there was also mention of the fact that his Company was being dissolved.

The solicitor described the Deceased as being “distant” at their first meeting and, having met him again 19 days later, had concerns about his capacity, amongst other things, and sought the advice of senior colleagues.

As a result a doctor’s assessment of the Deceased’s capacity was obtained, and the solicitor made an attendance note later that she had no issues whatever with the Deceased’s testamentary capacity.

It was well-known that a golden rule of practice had long been established that when making the Will of an aged testator or a testator who had suffered a serious illness, it should be witnessed and approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator and recorded and preserved his findings.[2]

Although the evidence of a general practitioner who assessed a testator was not definitive and the matter was for the court, it was clear that, in principle, the medical evidence of a practitioner who assessed capacity, having met a testator, should be given considerable weight when determining whether that testator had testamentary capacity.

The test for whether a testator had sufficient testamentary capacity to execute a Will remained that set out in Banks v Goodfellow[3]:

It is essential … that a testator shall 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, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

On the basis of that test, there were three relevant questions to ask:

• Was the Deceased able to understand the nature of the act of making the Will and its effect?
• Was the Deceased able to understand the extent of the property of which he was disposing?
• Was the Deceased able to comprehend and appreciate the claims to which he ought to give effect?

Reference to changes from provisions of a previous Will, although a prudent step, should not be elevated into a requirement either for a drafting solicitor or the medical practitioner before their evidence in relation to capacity could be accepted.

Furthermore, the relevance of those changes and, therefore, of any enquiry about them would depend on the circumstances of the case.

Neither should the testator be required to  justify any changes in testamentary dispositions whether to his solicitor of his general practitioner in order to prove that he had testamentary capacity. He did not have to give reasons.

Subject to the provisions of the Inheritance (Provisions for Family and Dependants) Act 1975, a testator was entitled to leave his estate as he chose, however capricious that choice may be, and however ungrateful or unfair the terms may be to those whose expectations of testamentary benefit were disappointed. Of course, if the terms were inexplicable or irrational, it was likely that there would be serious doubt as to capacity.

In the present case the judge’s evaluation was outside the reasonable conclusions which he could have reached on the evidence before him. Although the hurdle was high, it was one that had been surmounted.

The appeal was allowed, the judge’s order that the Will was invalid for testamentary capacity was set aside and an order made that it be admitted to probate forthwith.

[1] Hawes v Burgess [2013] EWCA Civ 74

[2] Kenward v Adams (The Times Law Reports, 29 November 1975)

[3] (1869-70) LR QB 549 per Cockburn CJ at 549