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Did the testator have testamentary capacity to execute a new will?
  • Jun 1, 2023
  • Latest News

by Sophie McDonnell, Dispute resolution - Boyes Turner

In order for a will to be valid as well as complying with the provisions of Section 9 of the Wills Act 1837, a testator must have testamentary capacity at the time of execution of the will and also have known and approved of its contents.  In the recent case of Boast v Ballardi and Others [2022] the court considered whether a testator had testamentary capacity of a second will made in 2013, which significantly altered the provisions of the testator’s previous will made in 2006.

Edward Henry Charles Smith (“the deceased”) died in January 2016. He had executed two wills, one dated 15 March 2006 (“the first will”) and the other dated 11 June 2013 (“the second will). Under the first will his great nephew, Gavin Boast (“Gavin”) was named as the sole executor and sole beneficiary of the deceased’s estate.  Under the second will, although Gavin remained the sole executor, the residuary estate was left to the deceased’s sisters with Gavin only receiving a legacy of £15,000.00.
The second will
The deceased contacted his solicitor numerous times between March 2012 and May 2013 indicating his desire to prepare a new will.  During May 2013 his solicitor took instructions for a new will.  In October 2012, the deceased had been diagnosed with memory loss and he was prescribed medication used in the treatment of dementia.  When his solicitor therefore wrote to him on 30 May 2013 enclosing a copy of his latest will, he made it clear that the deceased should obtain a medical opinion to ensure that he was “competent to change your will”.  The solicitor asked the deceased to discuss this with his doctor.  The solicitor did not, however, take steps to contact the deceased’s doctor himself or to seek any expert opinion as regards the question of whether or not the deceased had testamentary capacity from any medical practitioner himself.

On 14 June 2013, the solicitor attended the deceased’s home with a view to executing the second will. The solicitor’s records confirmed that the deceased informed him that he had seen his doctor earlier in the day and he had already executed the second will, which had also been witnessed by three witnesses.  Despite this, the solicitor expressed concern about the deceased’s mental state and the fact that he had made a significant change to his will, but the deceased assured him that he had no mental problems whatsoever and the solicitor accepted this without question.  Importantly, the solicitor did not follow the so-called rule known as “the Golden Rule”.

Whilst not a legally enforceable rule, the Golden Rule sets out best practice for practitioners when taking instructions for and arranging for the execution of a will for vulnerable clients, particularly those of more senior years and with known medical conditions. In such circumstances, the Golden Rule recognises that a solicitor should arrange for any will to be witnessed or approved by a medical practitioner who has satisfied himself of the testator’s capacity and understanding of the will.

The claim
Gavin and the deceased had always maintained a very close relationship until about November 2011 when the deceased’s health began to deteriorate. Given this, and the fact that the deceased had been diagnosed in May 2012 with potential signs of dementia, Gavin did not consider that the deceased had testamentary  capacity to execute the second will and following his death in January 2016 he therefore issued court proceedings seeking a declaration that the second will was not valid as the deceased lacked the requisite testamentary capacity to make it.

The Law
The law relating to the question of testamentary capacity dates back to the late 1800s and the case of Banks V Goodfellow [1870] wherein the court held that: “It is essential to the exercise of such a power that a  testator

1. Understand the nature of the act and its effects.

2. Shall understand the extent of the property of which he is disposing.

3. Shall be able to comprehend and appreciate the claims to which he ought to give effect; and

4. 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.”

What did the court decide?
Having regard to the medical evidence that was before the court, the judge was satisfied that the deceased lacked capacity as long ago as May 2012, when he had been unwell and had been diagnosed with memory loss.  There was no evidence before the court that his condition improved after that time and when he executed the second will in 2013. It was also apparent that the deceased’s solicitor had his own concerns as to whether the deceased had testamentary capacity and instead of taking steps to investigate the same further, he simply chose (wrongly) to take the deceased’s word for it that he had no mental illness.

What does this mean?
As a result of the findings of fact in relation to the deceased’s medical condition, the court held that the will was invalid and the first will was entered into probate.

The case is a stark reminder not only of the law regarding testamentary capacity but also highlights the importance of the role of the will writer when taking instructions for the preparation of new wills in circumstances where there is some doubt as regards whether or not a testator has the requisite testamentary capacity to execute a new will.  Had the solicitor correctly followed the principles of the Golden Rule it may well have been that a medical practitioner would have assessed the deceased as lacking testamentary capacity and the second will would not have been executed. This would have saved a considerable amount of heartache, not to mention costs, in avoiding the issue of the court proceedings.