The legal precedent and test for mental capacity dates back to 1870 (Banks –v- Goodfellow) and is based on three main concepts:
- Did the Testator understand that the document they were signing was a Will which would dispose of their assets upon their death?
- Did the Testator have knowledge of the assets that they had at the time of making the Will?
- Did the Testator appreciate and understand the effects of what they had put in the Will and what the effect was if someone was not included?
The above are not always clear and easy to identify, especially with medical conditions such as Alzheimers. Traditionally, where there is perhaps some doubt as to capacity, testators or family members might ask their Solicitor to act as another form of confirmation that they had the knowledge, capacity and understanding.
However, in many situations, Solicitors may feel that they are unable to assist as they are unsure themselves of the capacity of the Testator. When this happens a medical professional may be asked to provide a certificate of capacity, or to sit in on any interview where the Solicitor takes instructions.
Capacity challenge – who has the burden of proof?
Often those challenging a Will would need to show evidence of the Testator’s lack of mental capacity, thereby showing they could not have had the requisite knowledge, capacity and understanding. As a result the Will would be considered invalid. If this proof could not be brought, then the Will would often remain upheld.
Change to burden
However, in a recent Court of Appeal decision in the case of Hawes –v- Burgess , the Court ruled that, depending on the circumstances in which the Will was made, the Court may now insist on proof positive of knowledge and approval from those trying to uphold a Will, rather than placing the burden of proof on those challenging it.
In this case the deceased had written a new Will 2 years prior to her death in which she disinherited her son, notwithstanding the fact that they were very close and he had purchased the house in which she lived.
The deceased had told her daughter that she wished to change her Will to include directions for her burial and funeral service and her daughter arranged for them to see a Solicitor who had never met her before. The daughter was present throughout the instruction and had provided the Solicitors with inaccurate information.
The Solicitor who met with the deceased was experienced in taking Will instructions and noted in his attendance note that the Deceased was “entirely compos mentis”. However a medical expert confirmed that she had in fact been suffering from dementia of modest severity in the last years of her life.
The initial Trial Judge accepted that the deceased lacked capacity, as she had failed to comprehend and appreciate the effects of removing her son from her Will, thereby not passing the 3rd part of the test as set out in Bank –v- Goodfellow.
On appeal, Mummery LJ stated that he believed it was very difficult to argue that the deceased did not have capacity, especially as an experienced Solicitor had taken instructions from her and he believed she was capable of understanding the Will. However, when it came to the question of the deceased having the appropriate knowledge and approval the Court stated that the circumstances justified the need for proof positive that the deceased had the same.
In these circumstances the deceased cut out her son with whom she had a close relationship for no apparent reason. Her daughter, with whom the son had fallen out, made the arrangements to see the Solicitor and was present throughout the meeting, the other siblings did not know of the new Will at the time and the Solicitor had not sent the deceased a draft to consider before she went to their offices to execute it.
This case shows that the burden of evidential proof can in fact shift to the party attempting to uphold a Will if the circumstances are such where serious questions would be raised as to whether the deceased had the proper knowledge and approval of the contents of the Will.
If you are either an executor or beneficiary and need advice on challenging a will or any other issues surrounding wills, please get in touch with Laurence Ross for a free initial discussion.
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