The last litigation

The basic law on the validity of wills was established in the nineteenth century. The Wills Act 1837 dealt with the formalities, and testamentary capacity was summarised in the judgment of Cockburn CJ in Banks v Goodfellow (1870): a will is valid if the testator knows that he is making a will, the extent of his estate and those who have moral claims upon him.

But, nearly two centuries on, the issue of testamentary capacity still occupies the courts. Whether the testator had mental capacity in particular remains a regular ground for challenges to wills.

The daughters of Farmer Key

The case of In the Estate of Key [2010] EWHC 408 is an apt illustration of the need to for contemporaneous evidence of the deceased's mental state.

George Key was a farmer with four children. In 2001 he made a will favouring his farming sons over his daughters. His wife died in 2006 after 65 years of marriage. George was devastated to the extent that he was unable to attend his wife's funeral. When seen by his GP shortly after his wife's death, he was described as being 'at high risk as he was so dependent on his wife'. The doctor was not at that time asked to make an assessment of testamentary capacity.

Between his wife's death and her funeral, one of George's daughters came to stay. She was a strong-willed woman who arranged for the family solicitor to visit George, resulting in the making of a new will which favoured the daughters at the expense of the sons. The will was witnessed by the solicitor and executed between the wife's death and her funeral.

Evidence from family, friends and experts established that George was showing signs of diminished mental capacity and that, when seen by his GP four months later, he did not have testamentary capacity. Unfortunately the solicitor failed to obtain any contemporaneous medical opinion as recommended by Templeman J in the case of Kenward v Adams. The solicitor was criticised for the lack of a comprehensive attendance note and for his failure to ask any questions designed to probe George's testamentary capacity. He admitted that it never occurred to him to do so.

After commenting on the evidential burden, the judge concluded that George lacked testamentary capacity. He summarised the position by saying: 'Mr Key was simply unable during the week following his wife's death to exercise the decision-making powers required of a testator.' He added: 'To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine.' Merely adopting the suggestions of others is insufficient to satisfy the test of testamentary capacity.

The need to obtain contemporaneous evidence of testamentary capacity cannot be over-emphasised. The failure to do so resulted in expensive litigation and family fall-out between George's children.

Ethel, Mabel and the hairdresser

Evidence '“ or lack of it '“ was also at the centre of the mutual wills case of Charles & Ors v Fraser [2010] EWHC 2154, first reported on solicitorsjournal.com on 17 August.

Mutual wills arise when two or more testators make wills usually in similar terms pursuant to a contract that such wills are to be irrevocable. If such an agreement is established, equity imposes a constructive trust on the subject matter of the agreement. Evidence of the agreement must be established on the balance of probabilities, although there is no requirement for the agreement to be evidenced in writing.

The case involved the estates of two widowed sisters, Mabel and Ethel. Following the deaths of their husbands, they bought a house together and made reciprocal wills in 1991 leaving their estates to the survivor absolutely; but, on the death of the second sister, half would go to friends or relatives of each side of the family. The wills were not expressed to be mutual although many witnesses gave evidence that the sisters frequently referred to 'the will' and one beneficiary was told 'when the second of us dies, you will have a lovely surprise'.

Mabel died in 1995. Thereafter Ethel continued to refer to 'the will', but in 2003 and 2004 Ethel made further wills which did little more than amend 'the will' to take account of deceased beneficiaries.

By August 2006, Ethel's health was deteriorating and she relied heavily on the defendant, Jill Fraser, who took her on shopping trips and for meals out. Ethel asked Jill to arrange a home visit from the solicitor who had made the 2003 and 2004 wills, but who had not made 'the will'. The solicitor concluded that Ethel was 'severely losing her memory' during a conversation in which she had difficulty in recalling the names of her relatives. He nevertheless felt that Ethel had testamentary capacity but asked her GP for his opinion. The GP did not assist and so the solicitor arranged for Ethel to be examined by a consultant psychiatrist. He recorded that Ethel was probably suffering from mild vascular dementia but she still had testamentary capacity.

The solicitor then drafted a further will which Ethel signed in September 2006, leaving everything to Jill. Ethel died in November 2006. The judge, Jonathan Gaunt QC, reviewed the evidence before deciding that the sisters had agreed that their wills were mutual.

The evidential point in this case related to the intention to make the agreement irrevocable. The solicitor making the 1991 wills should have included a provision to this effect and retained a full attendance note. The judge referred to Ethel 'seriously losing her grip'. The judge may have had reservations over the evidence of the psychiatrist but had no contrary expert evidence to challenge it. Indeed the solicitor should be commended for his efforts to secure contemporaneous evidence of Ethel's testamentary capacity in contrast to the situation in Key.

Perrins on Parker

Even trickier capacity issues were considered by the Court of Appeal in Perrins v Holland & Ors [2010] EWCA Civ 840, where the court re-examined the rule in Parker v Felgate (1883) LR8 PD1 (Solicitors Journal 154/29, 27 July 2010). That case decided that, inter alia, provided a testator had Banks capacity when instructions were given and the will accurately reflected those instructions, then the will would be valid even if the testator no longer had testamentary capacity when he executed the will, as long as he knew he was signing a will based on his earlier instructions.

Robert Perrins died in 2003 having suffered from a progressive form of multiple sclerosis. In 1994 he made a will that benefited his son David. In 1995 he met Anne Dooney who became his domestic partner. His medical condition restricted not only his mobility and ability to communicate but resulted in a gradual deterioration of his mental capacity. In April 2000 Robert gave instructions for a new will, giving everything to Anne if she survived him. This will was executed in September 2001 in the solicitors' car park.

At first instance (reported at [2009] EWHC 1945) Lewison J accepted that the 2001 will was summarised to Robert immediately before it was executed and that Robert signifies his consent to its terms. He concluded that Robert possessed testamentary capacity when he gave instructions, although he did not when the will was executed. The will was therefore valid.

David appealed, suggesting that Parker was wrong. The court, however, held that far from coming 'out of the blue', Parker accurately reflected the law when it was decided. The chancellor added that even if a strong persuasive authority of the Privy Council were ignored, and if he thought that Parker had been wrongly decided (which he did not), the fact that the principle had been applied by the courts and relied upon for over 250 years pointed strongly against the Court of Appeal departing from the first instance decision in Parker.

David also argued that the requirement for knowledge and approval necessarily implied that Robert needed testamentary capacity at the time of execution. While proof that the will was read over before execution would provide compelling evidence, this was not essential. The chancellor concluded that knowledge and approval required only evidence of acceptance of the contents of the will when executed rather than testamentary capacity. Moore-Bick LJ concurred discussing the difference between 'testamentary capacity' and 'knowledge and approval'. He concluded that 'testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made'.

A total wreck

So, Parker lives on, possibly renamed as 'The rule in Perrins v Holland'. The decision supports the distribution of an estate in accordance with the testator's last known wishes to avoid intestacy. While those with declining mental capacity may need to be protected from exploitation in matters of contract, the same considerations will not apply when a will is made.

Incidentally the Mental Capacity Act 2005 does not alter the situation. The decision reflects its issue-based philosophy. It is entirely logical that a testator making the decision merely to execute a will prepared in accordance with prior instructions will require less analytical ability than when giving the original instructions.

In Perrins the combined costs of the parties exceeded the value of the estate. In the words of the chancellor: 'The wreck of the testator's estate is already total, there can be nothing left in it for anyone.' Perhaps I should add 'unless the Legal Services Commission, which financed David's case, foots the bill'.

These recent cases show not much has changed since Banks. The principles governing testamentary capacity have remained largely unaltered for the last 140 years. It is regrettable that the later zeal of litigators in obtaining witness statements detailing testators' bizarre behaviour has been often lacking from those taking instructions. Too many still fail to apply the Law Society's guidelines and learn the lessons of decided cases with ruinous consequences to those affected.