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Principles and Recent Cases

Mental capacity continues to be a major issue for practitioners andLesley King examines
the issue in the light of some of the recent cases
(taken from Issue No 21  – October 2002


The test of testamentary capacity is relatively easy to state but far from easy to apply. The number of very elderly people with substantial assets increases all the time and inevitably disappointed beneficiaries seek grounds on which to challenge the wills. Lack of testamentary capacity is a common choice. It will normally be linked with allegations of lack of knowledge and approval and often of undue influence too. However, in the interests of brevity this article is confined to the question of testamentary capacity.

The Legal Principles

[a] Discrete Tests
There is no one test of capacity. The test varies depending on the type of task involved. In the Australian case Gibbons v Wright
1 the court held:

`The mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected… and may be described as the capacity to understand the nature of that transaction when it is explained.`

It is important, therefore, that lawyers instructing medical practitioners to give an opinion on a person’s capacity, give sufficient guidance as to what is legally required for the particular task in hand. In general terms the lawyer should explain to the practitioner the nature of the task and the legal test to be satisfied and should give a description of the complexity of the individual’s affairs.

A common problem for solicitors is the recalcitrant client who refuses to agree to a medical examination at all. In an interesting article in Trusts and Estates Law Journal September 2002 Penelope Reed considered what solicitor should do in such circumstances.

There are cases2 suggesting that a solicitor may be liable for the costs of a successful challenge to a will where they have not obtained medical advice. However, Penelope Reed points out that in those cases the solicitor gave no attention to the question of capacity at all. She suggests that, where there is a danger of challenge, the solicitor should give clear advice to the client of the danger, make a clear file note together with a full note of the solicitor’s impression of the client’s capacity and then go ahead to make the will.

Penelope Reed cites two useful New Zealand decisions. In Public Trustee v Till3 a solicitor was held to be in breach of duty where he drew up the will of an elderly client who was later found to lack testamentary capacity. The judge said that a solicitor has a duty to consider and advise on the question of capacity but this is circumscribed by his retainer and that the solicitor cannot make enquiries unless authorised by the client.

In Ryan v Public Trustee4 the Public Trustee was sued successfully for failing to prepare a will for an elderly testatrix whose capacity was in doubt.

In the same issue of Trusts and Estates Law Journal an article by Suzana Povovic-Montag underlines the problems solicitors face. She reviews some Canadian cases which `illustrate the creativity of a court’s analysis depending upon whether it wants to impose liability to disappointed beneficiaries or not.`

[b] Capacity to make a Will
The test
The test of capacity is set out in Banks v Goodfellow

`It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing; and 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 mind shall poison his affections, pervert his sense of right, or his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made`

The relevant time
If a testator lacks testamentary capacity at the time the will is executed the will is invalid. The only exception is the rule in Parker v Felgate
6 applied by the Privy Council in Perera v Perera7. Under this rule a will may be valid even though the condition of a testator has deteriorated between giving instructions and execution to such an extent that testamentary capacity is absent at the time the will is executed. The following conditions must be met.

The deceased must:

  • have had capacity when he gave instructions and
  • remember giving them and believe that the will has been prepared in accordance with those instructions.

If these conditions are met, it does not matter that the testator was not capable of understanding each clause.

The burden of proof
The person putting forward the will has the legal burden of proof that the testator was capable but there are rebuttable presumptions of capacity and continuance.

The presumption of capacity
A person is presumed to be capable of doing something until the contrary is proved by acceptable evidence. This was an important element in the recent decision of Martin Masterman Lister v Jewell & Home Counties Dairies and Brutton & Co.

The presumption of continuance
Once incapacity has been established, it is presumed to continue until the contrary is proved by acceptable evidence.

Recent Cases

The importance of the burden of proof

Vaughan v Vaughan9
Gladys Vaughan died, aged 82. She was in poor health having had several strokes and had difficulty in speaking. She had four surviving children. Between February 1999 and her death she made three wills, each of which was prepared by the family solicitor, Miss Scott.

Miss Scott eventually became so concerned by the behaviour of the children that she refused to prepare any further wills without medical evidence. She said that Mrs Vaughan seemed to be acting under the influence of the last person to speak to her.

Four days before she died, Mrs Vaughan executed a further will. This will was prepared by a different solicitor on the instructions of one of her sons, John. It gave John substantial benefits. The other three children challenged this will on various grounds including lack of testamentary capacity.

Behrens J said that a testator must satisfy the Banks v Goodfellow test. He made the point that the testator need not have `a perfectly balanced mind`; testamentary capacity calls for particular mental characteristics. A man may have the mental capacity to marry but not to make a will.

He considered the burden of proof as set out in Williams, Mortimer & Sunnucks at page 177.

`Those propounding the will must satisfy the court that the testator was of sound disposition. If the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce it presuming the testator to be mentally competent. When the whole of the evidence is before the court, the decision must be against the validity of the will unless it is affirmatively established that he deceased was of sound mind when he executed it. Where grave suspicion of incapacity arises in the case of those propounding the will, they must dispel that suspicion by proving testamentary capacity.` (emphasis added)

Behrens J found that there was grave suspicion of incapacity in the present case. He accepted that there was some evidence on both sides. However, it was for John to prove capacity and he had not done so.

`I do not know if [Mrs Vaughan] had the capacity to make the will. In the circumstances of this case the burden of proving testamentary capacity or on removing my suspicions remains with John Vaughan. In my judgment, John Vaughan does not come within a measurable distance of satisfying me of the righteousness of the transactions and removing those suspicions, or indeed of establishing testamentary capacity.`

Richards v Allan10
The testatrix, who was 84, was admitted to hospital suffering from uncontrolled diabetes and dehydration. Her medical notes indicated that she was very confused. Her physical and mental condition remained poor even after her discharge.

Shortly after leaving hospital, and at the suggestion of the defendant (‘A’), she gave instructions for a will appointing A to be her sole executrix and beneficiary. A’s brother-in-law, a solicitor, prepared the will on the basis of instructions relayed by A (not, of course, best practice)..

A arranged for the testatrix to sign the will at a time when the testatrix’s sister (who shared the house) was absent. The testatrix was visited by her doctor in the morning and by a friend in the evening. Both said that they found her confused. A contended that the will had been validly executed between the two visits and indeed the two witnesses said that they had observed nothing strange in the testatrix’s behaviour.

The will was found invalid on the basis of lack of capacity and lack of knowledge and approval. The court referred to the presumption that mental states continue. The testatrix’s confusion was a serious and continuing problem resulting from the diabetes and her medication. It was not credible that the will had been executed in a lucid interval between two periods of confusion.

Brown v Deacy11
The testatrix executed a will at the offices of a solicitor in August 1978. The will left her major asset, her house, to one of her daughters and residue to her son and another daughter. She stated in the will that she was making no provision for a third daughter who had already received some money.

Her solicitor had written a contemporaneous note at the time of first meeting her (in connection with her husband’s estate) stating that `her mind wandered a little` but that she seemed lucid. However, he asked her GP to give an opinion. The GP said that her mental condition was `not altogether satisfactory`. A consultant in geriatric medicine visited her in February 1979 and formed the view that there had been a progressive decline in memory and general capabilities over the preceding 12 months. However, as he only saw the testator six months after she signed the will, he felt unable to give a firm opinion.

There was evidence that the testator had become confused on a number of occasions and wandered off several times. She forgot on a number of occasions that her husband was dead.

The solicitor who prepared the will said in evidence that he thought that the testator had lucid intervals.

Kim Lewison QC (sitting as a deputy judge) referred to the statement in Williams, Mortimer & Sunnucks at p174 that `convincing proof` of a lucid interval is required because a sufferer from mental illness may `in many situations, on many occasions and to many people, give every appearance of normality`.

Kim Lewison QC said `I have firmly in mind that the burden lies on [those propounding] the will to satisfy me that [the testatrix] had testamentary capacity.` That burden had not been discharged.

Capacity need not be perfect
Barrett v Kaspryyk
T was admitted to hospital on 11th November 1998 and remained there until her death on 16th January 1999. On 11th January 1999 she gave instructions for a will to a legal executive. The will left everything to her brother. T signed the will on 14 January, slightly misspelling her name. The defendant (her son) contended that, as a result of the cocktail of drugs she was taking, she lacked capacity.

Park J rejected the son’s claim. There was strong medical evidence from those who had attended T in hospital and from the `very experienced legal executive` who had taken instructions that T had not lost her capacity. The son’s own expert admitted that it was not a ` foregone conclusion` that T would have been incapable.

Ewing v Bennet13
The testatrix went to see a solicitor, Mr S, in October to make a new will leaving virtually her whole estate to one daughter, Nancy, to the exclusion of her other daughter, June. Her reason was that June had had various loans from her which she had never repaid. Mr S foresaw that such instructions would lead to trouble after her death and had two meetings with the testatrix at which the provision for June was discussed. She came to his office in November and executed the Will.

When the testatrix died June claimed that she lacked testamentary capacity. There was evidence:

  • from the manageress of the sheltered accommodation where the testatrix lived that she was forgetful and confused but not seriously affected by senile dementia;
  • from the testatrix’s GP that by December she was deteriorating mentally and physically and was in the early stages of dementia;
  • from daughter, June, and her family that over the Christmas period, when the testatrix stayed with them, she was extremely confused, wandering at night, removing her clothes inappropriately and incontinent;
  • from two psychiatrists who agreed that she was suffering from early dementia but disagreed as to whether or not she had capacity when she executed the will;
  • from the solicitor who had very full attendance notes and was described as `disinterested`.

The Court of Appeal agreed with Rimer J. The evidence was conflicting; the burden of proof was on those putting forward the will. It appeared that the testatrix’s capacity was impaired to some extent at the time she executed the will. However, she retained testamentary capacity.

Ewing v Bennet and Barrett v Kaspryyk show that a testator need not have unclouded mental faculties. The question is `Did the testator fulfil the Banks v Goodfellow test?` In both cases the court attached weight to the evidence of the solicitor and legal executive who had taken instructions. Both had clear, contemporaneous attendance notes.

The importance of evidence
It goes without saying that evidence in cases of alleged lack of testamentary capacity is crucial. There are different types. Close members of the family have the best opportunities to observe the deceased but their evidence is often partial and far from disinterested. The solicitor can be a powerful witness as in Ewing v Bennett but only where he or she has explored the testator’s state of mind and taken an adequate contemporaneous note. Medical evidence can be compelling but only where the medical practitioner has had an opportunity to examine the testator.

In the Estate of Ellen Wilkes deceased14
In 1985 the testatrix made a will in which she left her property equally to her five children with a gift of her personal possessions to her only daughter, Maureen. In 1992 she had two strokes.. The effect of the two strokes was to leave her physically wholly dependant on others. She required 24 hour care. She received care from her children until1993 when local authority funding became available. One son, George, continued to see his mother frequently, and relieved her carers when they went on holiday or were off duty. George took over control of the testatrix’s finances, which had previously been handled by Maureen. Relations between George and Maureen deteriorated. Maureen saw her mother less frequently. In December 1994 George took his mother to make a new will leaving everything to him. In April 1995 the testatrix executed it.

There was an abundance of evidence both general and medical. A consultant physician specialising in the care of the elderly gave expert evidence based on the medical records of the testatrix although he never met her. Terence Etherton QC sitting as a deputy judge said that he found the evidence `measured, objective and very helpful`.

The consultant warned against the acceptance at face value of statements, whether by medical practitioners or others, indicating that the testatrix was mentally well at the relevant times, without some form of objective diagnostic analysis of her mental ability. A Mini Mental State Examination is an example of such a diagnostic instrument.

In the absence of such a test, comments about the testatrix’s apparent mental ability are purely subjective. They should be viewed with caution since a person may appear to have intact mental functions despite severe deficits in reality. It is common to encounter elderly people who seem quite well, but do badly in simple objective tests. In the case of the Mini Mental State Examination, he would expect at least 25 out of 30 points for a person with capacity to make a will, but it would be perfectly possible to have a good interaction with a person who only scored 10 points.

The consultant concluded that the testatrix was probably incapable of making her will for three reasons:

  • there was evidence of widespread brain damage in the form of cerebral vascular disease;
  • the testatrix suffered from Parkinson’s disease which, in forty per cent of cases, is associated with a dementia process;
  • her auditory impairment and extreme age were likely further to impair mental function.

Although the judge placed great weight on this warning of the dangers of accepting the subjective views of others, he felt that there was a considerable body of evidence given by independent witnesses. Given the clear evidence of independent witnesses as to the testatrix’s mental capacity, George had discharged the burden of establishing that the testatrix had testamentary capacity.

The court is most likely to value medical evidence from a doctor who knows the client well and which is contemporaneous.

In Re W15 a GP wrote a letter a fortnight before the execution of an enduring power of attorney as follows:

`I can confirm that I saw her recently with her daughter and found her to be suffering from a degree of memory impairment. However, in my opinion, she still has the necessary mental capacity to sign a power of attorney. I would add that her mental abilities are best in the early part of the day and tend to deteriorate as the day goes by.`

By the time of the hearing, the doctor was (understandably) unable to record what tests, if any, he had performed before reaching his conclusion. The opponents of the enduring power obtained a report from a clinical psychologist before the hearing but some months after the grant of the power.

Even though the GP’s letter was limited, the trial judge preferred it because it was contemporaneous saying:

`It would take a very strong opinion given as a result of an examination some five months later to persuade me positively that the patient did not have the necessary capacity.`

The Court of Appeal agreed.


1.     Once capacity is in issue, the burden of proof is on the person seeking to prove the will.
2.     Establishing that a will was made in a lucid interval is a difficult task.
3.     The best proof of capacity is an objective medical test taken at or about the time the will is executed.

Professor Lesley King
College of Law

1 (1954) 91 CLR 423 applied in Re Beaney, deceased [1978] 2 All ER 595
2 Re Simpson (1977) 121 Sol Jo 224, Re Morris [2001] WTLR 1137, Worby v Rosser [1999] Lloyds Rep PN 972
3 [2002] WTLR 1169
4 [2000] 1 NZLR 700
5 [1870] LR 5 QB 549.
6 (1883) 8 PD 1171
7 [1901] AC 354
8 [2002] WTLR 563 (but currently subject to appeal).
9 [2002] EWHC 699
10 [2001] WTLR 1031
11 [2002] WTLR 781
12 LTL 3/7/2000
13 [2001] WTLR 249
14 8th June 2000
15 [2000] 1 All ER 175 affirmed [2001] 4 All ER 88