Challenging a will on the grounds of testamentary (mental) capacity

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The High Court recently handed down judgment in an interesting case on challenging a will on the grounds of testamentary capacity, sometimes referred to as mental capacity – White v Philips [2017] EWCH 386 (Ch).

The facts of the case

The testator, Raymond White, was diagnosed with terminal rectal cancer in July 2009, at which time he had been married to the claimant, Linda White, for over 20 years.  Both parties had been married before and each had three children from their respective previous marriages.  They had no children together.  The matrimonial home had been purchased by Mr White and the claimant as joint tenants and was mortgage-free.  On 28 May 2010 the testator gave instructions to a lawyer for a will to be prepared. It was drafted in accordance with his instructions and executed on 4 June 2010.  At the same time as giving instructions for his will, the testator signed a notice of severance of the joint tenancy, thus ensuring that the automatic right of survivorship, under which the property would have passed to the claimant as surviving joint tenant, did not apply. The terms of the testator’s last, and in fact only, will made provision for the claimant to live rent-free in the matrimonial home for the remainder of her life or until she cohabited with another person.  Once the claimant’s right to reside in the home had been extinguished, by death, cohabitation or voluntarily, the proceeds of sale attributable to the testator’s estate should be paid to the defendant (one of the testator’s daughters from his previous marriage) who also received the residuary estate.


Testamentary/mental capacity

The law surrounding testamentary capacity is well-established. The case of re Key Deceased [2010] EWHC 408 sets out the way in which the burden of proof in establishing mental capacity shifts from the person propounding the will, in this case the defendant, to the objector, in this case the claimant, in the absence of any evidence to rebut the presumption that a will (which is duly executed and which appears to be rational) has been executed by a testator with testamentary capacity.  The Banks v Goodfellow [1870] LR 5 QB common law test provides that when making a will, a testator must understand:

i) the nature of his act and its effects;

ii) the extent of his property;

iii) the nature and extent of any claims upon him in terms of those whom he is including and excluding from his will; and

iv) not be subject to any disorder of the mind which would “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”.

Parker v Felgate [1883] 8PD 171 provides authority that mental capacity need not necessarily be present at the time of execution of a will so long as the testator possesses capacity at the time he gives instructions for his will.


The issues in the case

The claimant contended that the testator lacked testamentary capacity when he gave instructions and executed his will. The defendant relied on evidence from, amongst others, a social worker and the lawyer who drafted the will.  Both parties relied on expert evidence from consultant psychiatrists.

Evidence was heard regarding the deterioration in the relationship between the claimant and the testator in the months leading up to the execution of the will, with concerns being raised as to the testator’s safety at home, ultimately resulting in the testator leaving the matrimonial home and moving in with his daughter two weeks before giving instructions for his new will. The testator was admitted to hospital the day before giving instructions for his new will, at which time the hospital notes query whether he was suffering from drug toxicity as a result of the “cocktail of drugs” he was taking at the time.  Medical notes made the following day confirm that the testator was not exhibiting features of dementia, with the drafting lawyer  noting that same day that there were no doubts as to the testator’s capacity when he gave his instructions.  Expert evidence based on the testator’s medical records was inconclusive, with even the claimant’s own expert not being prepared to state conclusively that the testator lacked capacity on the day he gave instructions for his will.


The court’s decision

HHJ Saffman ruled that the defendant had met the burden of establishing the four elements of the Banks v Goodfellow mental capacity test, both at the time the testator gave his instructions and when he executed the will.  Although the palliative drugs may have impaired the testator’s reasoning at times, this was not to such an extent that his testamentary capacity would have been affected.  Moreover, the terms of the testator’s will could not be considered irrational or unjust, giving the claimant a life interest in his half-share of the house and, therefore, the use of the bulk of the estate for her lifetime, before passing to one of his children from a previous marriage only after the claimant’s death.  Accordingly, he concluded that the challenge to the validity of the Will failed.


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