At what point is mental capacity required when making a Will?
The Court of Appeal contrasts someone’s mental capacity when Will instructions are given with their mental capacity when the Will is executed
The Court of Appeal has upheld a Will made by someone who had testamentary capacity at the time he gave instructions for his Will, but who had lost testamentary capacity by the time he executed it: Perrins v. Holland and others.
Background to making the Will
The Claimant, David Perrins, was the son of the Testator, Robert Perrins. Robert gave instructions for his will on 5 April 2000 under which his carer, Anne Dooney, was the sole beneficiary. If that gift failed the Will provided for the estate to be divided equally between the David and Robert’s brother.
Robert suffered from multiple sclerosis. At the time he gave instructions for his Will he was confined to a wheelchair and unable to read or write. However, by 26 September 2001, when he executed the will, he was in the advanced stages of the disease. His health continued to deteriorate and he was admitted to hospital in April 2002, where he died on 31 January 2003.
Probate was granted to the executors on 24 June 2003. The main asset of the estate was a lease on Robert’s residence, which had a value of approximately £195,000.
Challenge to the Will on the grounds of mental capacity
David Perrins challenged the Will on the grounds that his father did not have testamentary capacity either at the time he gave instructions for the Will or when he executed it. He also argued that his father did not have knowledge and approval of the Will at the time he executed it. David wanted to propound an earlier Will that his father had made which was in his favour.
The Court initially concluded that Robert had mental capacity at the time he gave instructions for the Will. The judge said that despite the long gap between instructions and execution, the Testator’s wishes remained the same and because the Will embodied those wishes, the Testator knew and approved the contents of it. Accordingly, the Court upheld the Will.
David Perrins appealed on the grounds that the decision was wrong and that his father did not know and approve the contents of the Will when he executed it as by that time he no longer had mental capacity.
The Court of Appeal reasoned that mental capacity is not statutory; the Wills Act 1837 deals with the formalities of executing a will, not the mental capacity of the Testator at the time of executing it. The Court concluded that the law did not impose a requirement that the Testator must have testamentary capacity at the time he executed his Will, providing the Will expressed the wishes of the Testator at the time he had testamentary capacity and that Will had not been revoked. The Court wished to uphold the principle of testamentary freedom and because practically, the Will represented the last opportunity the Testator had to give effect to his wishes.
In relation to David’s argument of want of knowledge and approval, the Court concluded that whilst testamentary capacity is a prerequisite for knowledge and approval, it goes no further than that. Providing the Testator believed the Will gave effect to his instructions and it did so, it was not necessary to prove knowledge and approval of the Will.
David had also argued that at the time his father gave instructions for the Will, those instructions were not ‘settled’. However, the Court confirmed that in the absence of any grounds being established to prove that the Testator’s wishes had changed between his giving instructions and executing his Will, the Will was valid.
How we can help
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