One of the grounds for challenging a will is that the deceased did not have the requisite mental capacity when the will was made. Ultimately the focus of the court is to ensure that the will genuinely represents the deceased’s wishes.
The presumption is that where a will has been properly executed and is rational on its face it is valid. It is for those challenging the will to produce sufficient evidence to raise a suspicion as to its validity. If such suspicion is aroused, then the person propounding the will must satisfy the court that those suspicions are unfounded.
What capacity is required to make a will?
The relevant test is that set out in the case of Banks v Goodfellow in 1870 (as recently confirmed in the case of Clitheroe v Bond [2021]). The requirements are that the deceased:
- understood the nature of making a will and its effect;
- understood the extent of the property of which they were despising;
- was able to comprehend and appreciate those people that he/she would usually be expected to provide for (even if a decision was made not to make such provision);
- had no disorder of the mind that perverted their sense of right or prevented the exercise of their natural faculties when making the will.
A solicitor or legal advisor can only accept instructions from a fully competent adult. Where there is any question that the mental capacity of a person wishing to make a will is compromised then steps should be taken to establish the position before any will is made.
The Golden Rule
Where a person making a will is elderly or has been ill, best practice is for the will to be witnessed or approved by a medical practitioner who is satisfied that the testator has the required capacity and understanding. The practitioner should make a record of their examination of the person and findings.
Sometimes the necessity of adhering to the golden will is obvious. For example if a testator has dementia, has been found unable to manage their financial affairs or where the lawyer has doubts as to capacity. However, to avoid future uncertainty it is prudent to apply the golden rule to all clients who have a serious illness or are “aged“.
The golden rule is not a formal legal requirement but as mentioned above is good practice in seeking to protect a vulnerable testator and a factor which will be given significant weight by the court should any issue as to capacity subsequently arise.
If there is uncertainty as to whether someone making a will had sufficient capacity how is this approached by the Court?
Whilst it is for claimants and their professional advisors to obtain evidence to support a case, the question of mental capacity requires a medical assessment. The court will rely upon the opinion of a suitably qualified expert.
Mental capacity is date and issue specific. The expert will need to consider the medical records around the time when instructions for the will were given and when the document was executed, in order to form a retrospective opinion as to whether the deceased was likely to have had the required capacity. Clearly it follows that expert evidence is crucial when challenging the validity of a will. However, it is not the only evidence upon which the court will rely and is one piece of the jigsaw when it comes to assessing the circumstances of the preparation of the will.
In the case of Key v Key [2010] Briggs J stated:
“The issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skills and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of layman, including for that purpose, lawyers and in particular judges“
More recently in the case of Hawes v Burgess [2013] LJ Mummery said that the courts should exercise caution about accepting the evidence of an expert given after the event, where that expert did not have the opportunity of meeting or examining the testator at the relevant times. He commented that it was “a very strong thing“ to find that a person did not have capacity to make a will when it had been prepared by an experienced and independent solicitor (who had met with the testator), had read the will back to her and considered (as evidenced by her attendance note) that she was capable of understanding the will. His view was that a will prepared in such circumstances “should only be set aside on the clearest evidence of lack of mental capacity“.
Degenerative illnesses such as Alzheimers are known to cause fluctuations in mental capacity and as a result it is not unusual for there to be concern where a person suffering from such a condition makes a will which seems unusual or was not expected. The courts are known to give significant weight to the opinion of medically qualified persons who knew the deceased well and were in contact with them prior to and around the time the disputed will was made, such as the deceased’s GP. The importance of such contemporaneous evidence should not be underestimated.
Further the human element of litigation can additionally not be ignored. The weight to be attached to expert evidence is a matter for the trial judge. The court has a duty to consider the expert evidence in light of the facts and not in isolation from them. This means that where a case involves substantial elements of both expert opinion and factual evidence it is for the court to accord such weight to each as it sees fit.
Expert evidence
The requirements in relation to expert evidence are set out within Civil Procedural Rule 35. The overriding duty of the expert is to assist the court on matters within their expertise. This duty overrides any obligation to the person from whom an expert has received instructions or been paid by.
The expert’s report must comply with the requirements of Practice Direction 35. It is also imperative that the appointed expert has the specific knowledge and experience in order to address the issues in dispute.
Reliance on medical evidence is no guarantee of success. This was clearly demonstrated in the case of Hughes v Pritchard & Others [2021] where the Golden Rule was adhered to and the expert evidence was to the effect that the testator had the required capacity. However, at trial the expert informed the court that he had not appreciated how significantly different the final will of the deceased was to earlier wills he had made. The court, taking all relevant factors into account, found that the deceased had not been able to appreciate the understanding and promises he had with family members and how these were affected by the disputed will.
Conclusion
Challenging a will on the grounds of mental capacity is a complex process. Detailed investigations are required to be undertaken at the outset to acquire contemporaneous evidence of the will making process. Additionally the court will expect to be furnished with the expert opinion of a suitably qualified medical expert as to the question of capacity.
The court will consider all relevant evidence in order to form an understanding of the events which took place when the disputed will was made. Expert evidence is an important part of this process. It is also crucial that the expert has a clear understanding of all relevant matters. However, a case is unlikely to be won on the basis of expert evidence alone as it is only one part of the tangled web of evidence which the court will consider when making its decision.
