Contesting a Will Article
01 October, 2018
The claimant had in this claim challenged the validity of the Will of his deceased father on the ground of lack of testamentary capacity, and brought a claim for proprietary estoppel. This summary will focus on the issue of capacity and the preparation of the Will.
The estate consisted of a large farming and haulage business with land. The Claimant had worked for the business for several years, living rent-free in a property which was owned by the Deceased. There were lifetime gifts of land by the Deceased to the claimant in 2009 and his daughter Karen in 2007.
The Deceased's Will was executed in 2010 which left the residuary estate to his daughters Karen and Serena, and his wife Sandra. The Claimant was not named as a beneficiary under the Will.
The claim proceeded to trial where various lay witnesses, the solicitor who drafted the Will, other professionals, and two expert witnesses provided evidence.
The judge at the first instance considered the well known test of testamentary capacity as set out in the case of Banks v Goodfellow (1870): -
"It is essential…that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; 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 the mind shall poison his affections, avert 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 which, if his mind had been sound, would not have been made."
In this case the expert evidence from each party agreed that the Deceased suffered from Alzheimer's resulting in moderate dementia. However, they differed in their opinion as to whether the Deceased had capacity to appreciate the claims of his children on his estate.
The evidence provided by the solicitor who drafted the Will confirmed that there were five conversations with the Deceased's wife rather than the Deceased directly in relation to the Will and the instructions.
Although no formal diagnosis was made it was clear from the witness evidence of family members that the Deceased suffered from confusion and memory loss from around 2004.
The solicitor did not appear to record any note of their consideration of the requirements set out in Banks v Goodfellow. No medical evidence was obtained by the solicitor to support the Deceased's capacity.
In this case the judge upheld the witness evidence of the solicitor who drafted the Will, who was an experienced private client solicitor, who was satisfied the Deceased had no issues of confusion or ill health.
The court found that the Deceased had capacity at the time of execution of the will and the will was valid. This case reiterated the fact that the test in Banks v Goodfellow is the proper test when the question of capacity had arisen after a testator had made a will and died.
Courts are reluctant to over turn the terms of a will, however this litigation could possibly have been avoided had the drafting solicitor taken instructions from the Deceased direct, and made contemporaneous file notes.
A private client lawyer's file should contain detailed notes of attendance and a continual assessment of capacity, and if required medical evidence as to the testator's capacity in order to avoid a validity challenge.