Challenging Wills

17th Dec 2019

In order for an individual to make a valid Will they must have what is known as “testamentary capacity”.  The test for testamentary capacity is set out in the case of Banks v Goodfellow (1870 LR 5QB 549).   The test has three limbs, as follows:


  1. The testator must understand that they are making a Will and the effect of making a Will. In other words, they must understand that their Will has the effect of providing what is to happen to their assets and estate after their death.


  1. The testator must understand the extent of their Estate. In other words, they should be aware what assets they have and the extent of them. However, capacity is not a memory test. If testator, for example, cannot remember they have a significant shareholding, this does not mean they do not have capacity. However, for example, if the testator was informed they had a shareholding, but did not understand what a shareholding was, or that it had value, then this may be grounds to challenge capacity on the basis of this limb.


  1. The testator must understand that certain other individuals may expect to receive money or property from their Estate and appreciate they might bring a claim in respect of the same. In other words, if the testator has three children and leaves their estate to one, they should be able to understand that the other two children may bring a claim.


In addition, although not usually considered in the three-limbed test, the individual must not be influenced by any “insane delusion”. Interestingly, the test to determine capacity during life (pursuant to sections 2 and 3 of the Mental Capacity Act 2005) is different to the test of testamentary capacity, which is applied after death, as above.  During life, an individual is not be considered to have capacity if, they suffered from an impairment of, or disturbance in functioning of the mind or brain and as a result of which rendered them unable to understand relevant information, retain that information, use or weigh that information or communicate their decision.

The test which is applied during somebody’s lifetime is perhaps more rigorous because it will affect that individual’s life. Whereas, when considering an individual’s capacity after death, it simply affects how much money other’s money or property others may receive.


The inconsistency between the two tests is somewhat controversial. Recently, a group of barristers was asked if they could improve on the test in Banks v Goodfellow; they could not. It is well established case law that the fact somebody is being treated for a terminal illness does not mean that they lacked capacity. That somebody was suffering as such would be the starting point to an enquiry as to whether they did have capacity. In terms of determining capacity after death or during life, there is an assumption that the individual had capacity and it is for a claimant to prove otherwise.


The main problem with establishing that somebody did not have capacity, after death, is the inability to have them assessed contemporaneously by an expert. Instead, the direct evidence of non-experts in the field, usually solicitors and family members, must be relied upon. The courts formally place more reliance upon retrospective expert evidence. The expert evidence, in such cases, is formed by reviewing medical records and accounts of individuals who knew the deceased.


The courts have, relatively recently, shifted away from relying upon expert evidence and placing more reliance on the contemporaneous notes of experienced solicitors. The case of Burgess v Hawes (2013) EWCA 794 confirmed that caution should be exercised in acting on the basis of expert evidence, particularly when the expert had neither met nor medically examined the individual. The burden of proof is on the claimant challenging the validity of the Will. In the event, therefore, that there is a lack of evidence to establish the individual lacked capacity then they are unlikely to succeed.


In the case of all the Ball v Ball [2017] EWHC1750 (CH) a mother disinherited her three children. She did so because the children had accused their father of historical sexual abuse. Despite the father pleading guilty to some charges, the mother blamed the children for the father’s subsequent incarceration and disinherited them. The children brought a claim against their mother alleging she lacked capacity. The children were unsuccessful. The court found that there was a distinction to be drawn from the fact that the mother had clearly deceived herself as to her children’s blameworthiness, but this in itself did not mean she had a mental illness and the claim failed.


It is well established law that an individual who has the early stages or middle stages of dementia may well have capacity. As with an individual who is diagnosed with a life-threatening illness, dementia does not establish capacity but, rather, it is the first fact which should give rise to an enquiry as to whether the individual had capacity. If there are any questions as to an individual’s capacity. The solicitor drawing up the Will when they have concerns about someone’s capacity advise them that an expert should be instructed as and informed of the entire history of the individual, examine them and ask the proper questions as the proper test.

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