Conversely, how can you challenge a deceased person’s Will after death?
You can take a look at John’s first article, by reference to a recent case containing a ‘golden irony’, also discussed here.
There has been an unsurprising increase in demand for Wills of late; nothing focusses minds on our mortality like a pandemic. However, the difficulties in meeting clients, assessing capacity and having the Will witnessed before two independent persons (being themselves neither beneficiaries nor married to beneficiaries) will ensure a post-Coronavirus increase in litigation. It is therefore useful to consider what capacity to make a Will means, and how a Will could be challenged post-death by disappointed non-beneficiaries, whether or not a testator had Coronavirus when he made it.
A recent case provides a useful illustration.
It concerns an 88-year old man. He had recently lost his wife and was heartbroken. Nevertheless, he kept himself busy. He was an avid reader of both The Times and The Daily Telegraph. His interest in politics extended to reading Hansard and discussing its contents with a friend. While he could no longer remember full details of his own finances off the top of his head, when they are written down for him, he had no difficulty in understanding, recalled his PIN number and could use his cash cards. He never mastered use of the Sky control but enjoyed a game of Scrabble and was good at it. He was capable of taking both trains and international flights to stay with family or friends, with minimal assistance. When he received an invoice for a holiday and flights paid for on his credit card, he immediately (and correctly) recognised fraud as he had not booked the holiday.
Having decided that he wished to change his Will, he was able to make an appointment with his solicitor, provide clear instructions as to how he wished to leave his estate, consider the draft Will when he received it and remember to telephone to make a further appointment. His solicitor noted at the time that his thinking and logic concerning his intentions were faultless but that his short-term memory was not as good as it had been previously.
His general forgetfulness and repetitious conversation had been noticed by others and, years later, in evidence, an old-age psychiatrist said it was probable that he was, when he made his Will, in the very early stages of Alzheimer’s Disease.
Could such a man possibly lack the capacity to make a Will?
The man in question was a retired Law Lord (now referred to as a Justice of the Supreme Court), the highest rung of the judiciary. His name was Lord Templeman, a name familiar to generations of law students, solicitors, barristers and judges. He was involved in a number of the great decisions at the end of the last century, and was the author of the so—called ‘golden rule’ concerning the making of a Will by someone in precisely his circumstances:
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”. (Kenward v Adams, 1975).
Both regrettably and with sublime irony, Lord Templeman’s own solicitor did not apply the very rule his client had created, allowing his son to challenge the Will on the grounds of capacity and pray in aid the fact that Lord Templeman did not himself suggest that he be medically examined (Goss-Custard v Templeman).
Whatever the basis for questioning capacity the test is the same and it is derived from the 1869 case of Banks v Goodfellow. To make a valid Will, it is necessary:
“…that a testator ‘[a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] 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.”
In this case, heads (a) and (b) were not in dispute: Lord Templeman understood both the effects of the Will and what his estate comprised. The dispute concerned principally a property Lord Templeman had inherited from his wife. The effect of his previous Will was that, if he survived his wife and inherited the property – both of which happened – on his death it would pass to his grandchildren and to the residuary beneficiaries of his wife’s estate. In his disputed Will, he instead left it to his wife’s step-children absolutely, thus diminishing the residuary estate and everybody else’s inheritance.
Central to the case was the issue of whether Lord Templeman had forgotten his previous Will and why it was made as it was. The Judge held that he had testamentary capacity and that he had not forgotten the previous Will, but, importantly, the decision would have been the same anyway:
“Even if I had concluded that Lord Templeman had forgotten the terms of his [previous Will and its circumstances], I would still have held that he had testamentary capacity… Comprehension and appreciation of the calls on a testator’s bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. A testator does not have to have all the facts with which to make a correct or justifiable decision; he has to have the capacity to decide for himself between competing claims. That means that he must have the ability to inform himself about those claims, to the extent that he wishes to do so, but not that he must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances. Whether [his wife’s step-children] had a legitimate claim on him and if so to what extent, compared with his blood relations, was a matter for Lord Templeman as long as he had the capacity to weigh the rival claims.”
So, whether or not the circumstances have changed in the intervening period (as the Judge here decided they had) an inability to remember one’s previous Will does not serve to undermine the capacity of a person to decide between competing claims today. What matters is the ability to recognise the existence of rival claims and weigh them in one’s own mind, not the perceived unfairness of the outcome.
The case of Goss-Custard v Templeman may be read here.
Should you have any questions regarding the above, or need any contentious probate related legal advice, please contact John Melville-Smith, at [email protected], or 020 7725 8027