Will – Testator – Testamentary capacity

Alternative Citations

[2014] EWHC 180 (Ch)

Hearing Date

4 February 2014


Chancery Division


Mr D Halpern QC (Sitting as a Judge of the Chancery Division)


Edward Hicks (instructed b Pictons LP) for the claimants.

The defendants appeared in person.


Will – testator. The Chancery Division considered the validity of two wills made by an elderly woman who had suffered from dementia and blindness. It held it would pronounce in favour of her first will, made in 2004, but would pronounce against her second will, which had been made in 2007, on the grounds that she had lacked the capacity to understand the changes that it contained.


The judgment is available at: [2014] EWHC 180 (Ch)

The proceedings related to the estate of JB. She had eight children. The seven older children were the claimants in the proceedings. In August 2004, JB made a will, followed by a codicil in 2005, which divided her estate equally between her children. That will was not greatly different to an earlier will made in 1999. In 2007, she made a second will, which gave the estate almost entirely to the eighth child, K, who was the first defendant. The second defendant was W, who had been paid to help draft the 2007 will. As JB became older, she became blind and suffered increasingly from. Tension occurred within the family between, on one side, the older children and, on the other, K and his wife. JB died in April 2008, aged 82. A dispute arose as to which will should be considered binding.

The principal issue for consideration was the testamentary capacity of JB in 2004/2005, concerning the first will, and in 2007, with regard to the second will. It was common ground between the parties that JB had had testamentary capacity at the time of the first will and its codicil, but it was still necessary for the court to be satisfied of that fact before the 2004 will could be admitted to probate. Expert evidence was considered as to the mental condition of JB at the time of making the wills. The expert stated that, by 2005, cognitive impairment had been established, and that by November 2006, the evidence had suggested that she had suffered from mild dementia. He stated that, by May 2007, JB had been suffering from dementia of at least moderate degree and that, between November 2006 and November 2007, her dementia had moved from mild to severe. The claimants submitted, and W accepted, that he had not followed the ‘golden rule’ in dealing with JB that was to be followed by solicitors dealing with aged or seriously ill testators: namely, that it was best practice for the will to be witnessed or approved by a medical practitioner who ought to record his examination. W accepted that, although he was not a solicitor, the golden rule was good practice, but submitted that he had regarded it as unnecessary, since he had relied on the fact that JB’s doctors had known her mental state.

The claim would be allowed.

(1) Having regard to the evidence, and given that the 2004 will and its codicil did not represent a radical departure from the 1999 will, JB had had capacity to make the 2004 will, and it would be admitted to probate (see [65] of the judgment).

Parker v Felgate (1883) 32 WR 186 applied; Larke v Nugus (1979) 123 Sol Jo 337 applied; H (minors) (sexual abuse: standard of proof), Re [1996] 1 All ER 1 considered; B (children) (sexual abuse: standard of proof), Re [2008] 4 All ER 1 considered.

(2) In the light of the expert evidence, and of the factual evidence on which it was based, JB had not had testamentary capacity in May 2007, and she certainly had not had the capacity to understand the radical changes made by the 2007 will. That conclusion was reinforced by the defendants’ failure to follow the golden rule (see [66] of the judgment).

The court would pronounce against the 2007 will, and in favour of the 2004 will and its codicil (see [71] of the judgment).

Parker v Felgate 32 WR 186 applied.

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