Want of knowledge and approval
The elements of the Banks v Goodfellow test do not have to be possessed to the highest degree to ensure the validity of a will
The recent case of Ramsay v Ramsey  All ER (D) 32 illustrates the relevant weight the court places on different types of evidence in testamentary capacity cases, and reminds practitioners of the importance of the solicitor's record in cases concerning the validity of a will.
Mrs Ramsey died in November 2010. She executed a will in 2006, providing for her estate to be divided equally between her surviving children. This was consistent with earlier wills, with her son Roynel being appointed an executor.
In 2008, Mrs Ramsey made a new and final will, which materially altered the terms of the 2006 will. She appointed her daughter Ericka as the sole executrix, who received a 50 per cent share of the estate. The remaining 50 per cent of her estate was divided between the other children, with Roynel only receiving 2 per cent and the others receiving varying shares.
She explained the reason for the change in her will: that her son Roynel had bullied, harassed and tried to steal from her and that one of her daughters had already been provided for in her lifetime. Ericka had greater provision because she had cared for her over the past few years when the others had not.
The will had been prepared by an experienced solicitor who had attended Mrs Ramsey at home to take her instructions and arranged for her to execute the will. Indeed, Mrs Ramsey was very ill, and she could neither read nor write. Her solicitor executed the will on her behalf after he had explained the provisions to her several times.
Roynel (perhaps understandably) brought a claim challenging the validity of the will on grounds of testamentary capacity, as to whether his mother's understanding was affected by any insane delusion, and on the basis of lack of knowledge and approval, as to whether she was capable of understanding the various shares provided for in the will.
The contemporaneous medical evidence clearly showed that Mrs Ramsey suffered a considerable degree of incapacity. In 2007, i.e. just a year before her 2008 will was made, she scored 12 out of 28 in a mini-mental state examination (MMSE). The judge accepted that she was suffering from moderate to severe vascular dementia, but found nonetheless that this did not mean that she lacked capacity.
In particular, it was noted that the first three elements of the Banks v Goodfellow test 'do not have to be possessed in the highest degree, or even in as great a degree as the testator may formerly have done'. The case however turned on the fourth element: '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.'
While medical evidence (in the form of an expert report on capacity) had been produced to advance Roynel's claim, the court found that the issue of whether a person had testamentary capacity when the will was made was not one which could be decided on expert evidence alone.
In this case, the court noted that Mrs Ramsey did not have false beliefs about Roynel or her other children, and they were ones that a rational person could easily have formed. Mrs Ramsay explained her reasons for discriminating between her children very clearly (which were well founded on historical incidents and recorded by the solicitor) and the court's findings on the first three limbs of Banks supported this.
As to want of knowledge and approval, the court accepted that the solicitor had explained the will in terms that Mrs Ramsey could understand, and that he had done enough to satisfy himself that she understood the contents of the will.
Relevance for Practitioners
Ramsey illustrates that a testator does not need to have perfect capacity to make a will. However, where there is imperfect capacity, the drafting solicitor should take a clear note of the instructions, particularly where the testator is departing from an earlier will. The case also emphasises, as noted by the Court of Appeal in Hawes v Burgess  EWCA Civ 94, that in cases based on lack of testamentary capacity, the court is unlikely to go against the solicitor's assessment that the testator has capacity, where the will is drafted by an experienced solicitor, who oversees its execution and records the testator is compos mentis.
Lloyd Junor is a partner at Adams and Remers
He writes the regular in-practice article on wealth structuring for Private Client Adviser