More than meets the eye

It is almost 140 years since the test for testamentary capacity was outlined by the courts in the leading case of Banks v Goodfellow (1870) LR 5 QB 54.

Banks involved a testator who suffered from paranoid delusions. Despite the fact that he believed that someone who had died was harassing him (and that he was also being chased by evil spirits), the court actually found that there was no connection between these delusions and the contents of his will. The disputed will was therefore upheld.

The test in Banks (often quoted by probate and contentious probate practitioners alike) is outlined the judgment of Cockburn C.J. It demands that a testator:

1. understands the size and nature of their potential estate;

2. understands the nature of the act of making a will and its effects; and

3. is able to comprehend and appreciate any claims to which they ought to give effect.

In respect of point 3, Cockburn C.J. added that 'no disorder of the mind shall poison his affections, pervert his sense 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'.

Shortly after Banks, the court dealt with the subject of paranoid delusions again. In Smee & Ors v Smee and the Corporation of Brighton [1879] LR 5 PD 84, the testator (wrongly) believed that he was the son of George IV. In light of this and the fact that George IV had built Brighton Pavilion, he left a reversionary interest in his estate to fund a free library for the people of Brighton. It was held that this delusion had drastically affected his testamentary wishes and the court therefore pronounced against his will.

A key point arising from these cases is whether or not the paranoid delusions suffered by the testators actually affected the dispositions in their wills.

Practitioners are also sometimes instructed by a testator who wishes to dispose of their estate in an unorthodox way. Eccentricity is not an automatic indication of a lack of testamentary capacity. In Boughton v Knight [1873] LR 3 PD 64, the witty judgment of Sir J Hannen states that the words 'of sound mind' 'do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives.'

However, in the 1800's when the above cases were reported, statistics showed that average standards of literacy, healthcare, life expectancy and levels of household income were way below those which we would expect today. Is the test in Banks therefore as relevant today?

In 2009, because of an increasingly older and wealthier average UK population, the issue of testamentary capacity may appear more complex. Save for during the recent downturn, there has been a general trend of increasingly larger estates and our knowledge of the issues affecting testamentary capacity has also evolved.

For example, advances in medicine mean that there is now a far greater understanding of capacity in degenerative conditions, such as dementia, and in learning disabilities, such as Down's Syndrome, than there was 140 years ago. Coupled with this is the advent of the Mental Capacity Act 2005, which has changed the way in which an individual's capacity to make a particular decision is contemplated.

Yet, Banks created an enduring benchmark, against which courts today still examine cases involving testamentary capacity.

'Poisoning of affections'

Recently, there have been a number of high-profile cases where this has occurred, such as Kostic v Chaplin [2007] EWHC 2909 and Ritchie, Ritchie and others v National Osteoporosis Society & Ors [2009] EWHC 709. These cases also dealt with issues including paranoid delusions and the 'poisoning of affections'.

Kostic was widely reported, possibly for two reasons. First, it involved a claim by the testator's son, Zoran Kostic, in relation to his father's £8.2m estate. Secondly, the main beneficiary under the will was the Conservative Party Association. Zoran Kostic challenged two wills made by his father on the ground of lack of testamentary capacity.

The testator suffered from an undiagnosed (and therefore untreated) mental illness and believed there was a worldwide conspiracy of 'dark forces', which involved professionals, his friends and close family members.

Zoran Kostic appeared to be included in the conspiracy and therefore the testator's natural affection for his son had been poisoned by the delusion. The court pronounced against the wills and held that, because of his mental illness, the testator was unable to appreciate Zoran's claims on the estate. An earlier will, executed in 1974, was subsequently admitted to probate.

The experts in Kostic agreed that it was also 'possible for him [Mr Kostic] to hold ordinary conversations with people unaffected by the delusional system and to have ordinary relationships with them without his delusions becoming apparent'. This is another vital point for practitioners to note.

Similarly, in Ritchie, the deceased left nothing to her children on the basis of her alleged maltreatment by them. The children claimed lack of testamentary capacity, on the basis that their mother's affection for them had been poisoned by some disorder of the mind. The court held that the allegations were untrue. The medical evidence suggested that Mrs Ritchie may have been paranoid. Her delusions had therefore caused her to omit her children from her will and it wasdeclared invalid.

Heightened public awareness and changing social dynamics

Today, there may more opportunities than in 1870 for someone to make a will. Regular advertising campaigns could also mean that there is a heightened public awareness of the benefits involved.

However, the recent surge in will validity cases may also indicate that disappointed beneficiaries are equally aware of the grounds to challenge the validity of a will (perhaps through the ease of obtaining information from the internet). Changing social dynamics might further contribute towards this trend, as testators are now just as likely to leave their estate to carers, friends or charities as they are to relatives.

One example is the recent dispute involving the estate of Joyce Gill (see Solicitors Journal 153/39, 20 October 2009). Under her will, Mrs Gill left her entire £2.3m estate to the RSPCA and nothing to her daughter, Dr Christine Gill. Although it appears that there were no allegations that Mrs Gill lacked testamentary capacity, it was claimed that she was vulnerable at the time when the will was executed. Dr Gill's claim was successful but the RSPCA may now appeal.

Another example of a case which involved issues of both testamentary capacity and non-family beneficiaries is Walters v Smee [2008] EWHC 2029. The testatrix died in 2004, a month after executing her last will '“ which left her entire estate to Mr and Mrs Smee (who were old friends). Under an earlier 1998 will, she had left the majority of her estate to Mr and Mrs Walters who had cared for her for several years. Mr and Mrs Walters challenged the 2004 will on several grounds, one of which was lack of testamentary capacity. The testatrix had moderate dementia and various allegations were made with regard to Mr and Mrs Walters' conduct. The court pronounced against the 2004 will and upheld the earlier will, saying that the production of the 2004 will 'was motivated by factors which were the product largely (if not wholly) of misapprehensions. These misapprehensions were the result of her dementia and the effect of it upon her cognitive faculties. In short, she reached false conclusions concerning the Walters' behaviour, which led to her disillusionment with them at the time of the will. These false conclusions were ones which I find she would not have reached but for her impaired mental state.'

Another current case is Re D (deceased) [2009] EWHC 1951 (Ch). The medical evidence suggested that the testator, Mrs Devas, had vascular dementia and she had also suffered from a series of strokes. By a homemade 2005 will (and without the benefit of legal advice), Mrs Devas left her entire estate to estate to her carer's son.

The carer, Zandra Mackay, had been employed three years prior to her death had witnessed the 2005 will. She and Mrs Devas' secretary, Deborah Atkinson (the second witness to the will), had access to Mrs Devas' bank account from which large amounts were withdrawn. In three years these withdrawals apparently amounted to around £405,000. The test in Banks was considered and the court found that there was no evidence that Mrs Devas had testamentary capacity when the will was executed. An earlier will, executed in 2002, was admitted to probate.

Rising number of claims

If the current pattern of will validity cases continues, cases involving allegations of lack of testamentary capacity and disinherited relatives may become increasingly common.

The overwhelming message to come out of most of these cases is that a testator who appears to have testamentary capacity may not and vice versa.