Challenging capacity in will disputes

Much of the time, disputes about the validity of a will involve an allegation that the person who made the will (the “testator” or “testatrix”) did not have the required mental capacity to do so. Such allegations often arise in cases where the testator is elderly and is (or is suspected to be) suffering from a progressive illness, like Alzheimer’s disease.

However, suffering from an illness like Alzheimer’s does not automatically mean that a testator does not have the capacity to make a valid will. In fact, in law, there is usually a positive presumption of capacity, until it is proven otherwise. This means that the burden of proving that the testator did not have the requisite capacity falls on the person who wants to challenge the will (usually a disappointed beneficiary). The burden of proof will only be shifted if it is possible to raise real doubt as to capacity. The doubt has to be supported by evidence and must relate to the testator’s cognitive abilities.

So how is capacity challenged in will disputes?

This blog looks at some of the key aspects to be aware of when considering whether a will might be invalid for lack of capacity.

What is the correct test for capacity?

The first thing to know is that the type of capacity that the courts consider when looking specifically at capacity to make a will is known as ‘testamentary capacity’. This is distinct from the test that is applied to assess capacity to make decisions generally, which is set out in the Mental Capacity Act 2005. When assessing testamentary capacity, the court will look at the test set out in the case of Banks v Goodfellow.

In brief, the Banks v Goodfellow test requires a testator to:

1. be able to understand the nature of making a will and its effect;
2. be able to understand the extent of the property of which he is disposing (in simple terms, what assets form part of his estate);
3. be able to understand and appreciate the claims to which he ought to give effect (that is, who are the people he should think about benefitting in the will); and
4. not be suffering from any “disorder of the mind” that results in property being disposed of in a way that it would not have been, if he had not been suffering from that disorder.

Even though the Banks test is now over 150 years old, recent cases such as Leonard v Leonard and Bond v Webster have confirmed that it remains good law and is to be followed when considering testamentary capacity.

The court is not concerned with looking at whether the terms of a particular will are fair; testamentary freedom in England & Wales allows a testator to leave their assets as they see fit, even if that seems unexpected or even improper. However, if the terms of a will are surprising or seemingly irrational, that might be material to the court’s assessment of capacity.

Furthermore, the courts have also made clear that the Banks test doesn’t require actual understanding but rather the ability to understand, and it is not a test of memory. When considering testamentary capacity, the court is concerned with the testator’s ability to make decisions, not merely the ability to understand a given transaction or particular choice.

But the Banks criteria can’t be considered in a vacuum. The Judge in Leonard v Leonard made clear that the Banks v Goodfellow criteria are “matters for common sense judicial judgment” which depend on “an analysis of the entirety of the evidence”. The Judge in Bond v Webster similarly said “there must be careful scrutiny of all the evidence that might relate to capacity, and a realistic view of such evidence taken”.

If a testator is suffering from dementia can they pass the Banks test and make a valid will?

According to information from the Alzheimer’s Society, dementia describes a set of symptoms which, over time, can affect memory, problem-solving, thinking skills, language and behaviour. It is because of this impact on a person’s cognitive abilities that capacity is often called into question in cases where there is evidence or suspicions that the testator was suffering from dementia at around the time the questioned will was made.

The diseases which cause dementia are physical progressive illnesses and they result in damage to a person’s brain. The disease can start many years before symptoms start to show. Symptoms of dementia can be mild, particularly in the early stages, and the condition can also fluctuate from day to day. It is therefore certainly not the case that a person suffering from dementia can’t make a valid will.

Testamentary capacity is time and task specific. The capacity of a person suffering from dementia can vary from day to day, or even hour to hour. This means that their ability to understand their will can depend on the severity and nature of their condition, as well as the extent to which they are affected at the particular time they are giving instructions for and/or executing their will. Other factors relevant to the assessment of testamentary capacity will include the complexity of the will they want to make, the complexity of their estate, the nature of the assets, and the number and identity of the beneficiaries.

This is positive for testators suffering even with advanced dementia because it means that they are potentially capable of having testamentary capacity one day, but not the next, but also vice versa.

What evidence is important when looking at capacity in the context of a will challenge?

Ideally, if a testator is known to be affected by dementia of any degree, it is advisable that a competent professional assists with the preparation of the will, and that they follow the “golden rule”. Put broadly, this means that a medical expert should assess and confirm the testator’s capacity to make the will, any earlier wills should be discussed with the testator (particularly if the testator is making significant changes) and instructions for the will should be taken independently from any of the proposed beneficiaries. 

However, compliance with the golden rule doesn’t operate as “a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity” (Key v Key). The court will want to hear the evidence of the professionals involved and will consider the particular facts and circumstances of the case before it. Yes, the courts ought to be cautious about accepting that a will which has been prepared by a solicitor, read out or properly explained to a testator and duly executed is open to challenge (see Bond v Webster). However, that does not mean that a will that has been prepared with the assistance of professionals can never be overturned. In several recent cases, professionally prepared wills have been found to be invalid by the court (for example in Reeves v Drew, Bond v Webster and Leonard v Leonard).

The court will also want to hear from medical experts to provide an opinion capacity; however experts are limited by the fact that they can only consider capacity retrospectively. Whilst an expert will be able to review medical records and witness evidence, they may be unable to give a firm view on whether the testator had testamentary capacity at the specific time when the will was made. The court recently made clear in Leonard v Leonard that “although expert evidence may be of assistance, the issue as to testamentary capacity is a decision for the court”. Expert evidence might be useful, but it is not determinative. The court may be more assisted by hearing expert evidence on how particular disorders and diseases could or would have impacted a testator’s mind generally which may help inform the court’s decision on capacity, which it must make taking into account all of the evidence and information before it.

Further information

If you have any questions regarding this blog, please contact Kate Salter in our Trust and Estate Disputes team.

About the author

Kate is a Senior Associate in the Trust and Estate Disputes team with a wide range of litigation experience, and with particular expertise in Wills, Trusts and Inheritance Disputes.