Will – Testator – Testamentary capacity

Hearing Date

27 November 2013


Chancery Division


Nugee J (judgment delivered extempore)


Susan Brown for the claimants. Simon Redmayne for the defendants.


Will – Testator. The issue in the case was whether a deceased, aged 79, who suffered from an underlying dementing illness had had testamentary capacity to execute a will (the 2007 will) made in favour of, amongst others, the third claimant, who was not a relative of the deceased. The defendants, who included the deceased’s brother and step-daughter, were beneficiaries under an earlier will. The claimants sought pronouncement in favour of the 2007 will. The Chancery Division pronounced against the 2007 will, having found that the test for testamentary capacity in Parker v Felgate 8 PD 171 had not been satisfied.


The deceased died in November 2007, aged 79. The main property of the estate was a house (the property), which she had inherited from her late husband. The proceedings concerned two wills made by the deceased: a will which was executed in 1969 (the 1969 will); and a will made in 2007 (the 2007 will). The deceased’s brother, B, had been a beneficiary under the 1969 will, which provided that, if B pre-deceased the deceased, the estate would go to her other brother, the first defendant, D. The second defendant, S, was the daughter of the deceased’s late husband, and a beneficiary under the 1969 will. The third defendant, SM, was S’s daughter and also a beneficiary under the 1969 will. There was evidence that the deceased had promised her late husband that she would take care of S and SM. The first and second claimants (M and A) were executors to the 2007 will. The third claimant was A’s wife, who was a beneficiary under the 2007 will. She was the deceased’s neighbour and helper. The claimants contended that, after the death of B, the deceased had become fond of A’s wife and that she had indicated that she wanted to make a new will and she contacted M, who ran a legal services company. M had taken instructions from the deceased on 15 June 2007 and had prepared the 2007 will, which had been signed by the deceased on 20 June. The 2007 will had been executed within two months of the death of B and shortly after the deceased, who suffered from Type 2 diabetes, had been discharged from hospital and the day before she was to be re-admitted. On her admission to hospital on 23 May, she was noted to be suffering from hypoglycaemia and acute confusion. Thereafter, the deceased’s Abbreviated Mental Test Score (AMTS or MTS) was 2 out of 10, and it was reported in her medical notes that she had been forgetful for the last three months. On 30 May, she scored 13 out of 30 in a standardised mini mental test and her notes referred to her being confused. On a later admission to hospital, the deceased scored 3 out of 10 on the AMTS. On 3 July, a doctor noted that she was suffering from cognitive impairment. The medical notes stated that the deceased had referred to her parents as though they were alive. There was evidence from M’s notes of the deceased’s instructions for the 2007 will (the side letter) that the deceased wanted to leave S £10 and that she did not want to leave anything for other family members because they had allegedly not kept in touch with her, which was disputed. Following the death of the deceased, D took out letters of administration and the property was sold and the proceeds distributed pursuant to the 1969 will. The claimants sought the pronouncement of the 2007 will in their favour. The defendants sought the pronouncement against the 2007 will, which they contended was invalid.

The issue for consideration was whether the 2007 will was valid, namely whether the deceased had had testamentary capacity at the time she had executed it. The defendants contended that, when giving instructions on 15 June and when executing the disputed will dated 20 June, the deceased neither had a sufficiently sound disposing mind; nor sufficiently knew and approved the contents of that will. The will had been made when the deceased had been mentally and physically fragile; she had been seriously unwell, confused and suffering from a disorder of the mind, namely dementia, likely to be Alzheimer’s disease, alternatively, delirium. Further, by reason of her confusion and dementia; her age and physical infirmity; the fact that the making of the will had been procured by A, by herself and/or her husband, N, who substantially benefited thereunder, the onus was firmly placed on the claimants to establish that the deceased was of a sound mind at the time of the giving of instructions for, and the signing of, the will. Further, the circumstances of the making of the will, and its contents, and the deceased’s purported explanations as to its contents, orally to M, and in the side letter were such as to ‘excite the suspicion of the court’. Consideration was given to the principles in Parker v Felgate 8 PD 171 and Banks v Goodfellow [1861-73] All ER Rep 47.

The court ruled:

The test of testamentary capacity was found in Banks v Goodfellow. It was essential that a testator (i) understood the nature of his act, namely making a will and its effects; (ii) understood the extent of the property of which he was disposing; (iii) comprehended and appreciated the claims to which he might give effect; and (iv) had not been subject to any disorder of the mind as should ‘poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties’. While the burden of establishing testamentary capacity started with the propounder of a will, where the will was duly executed and appeared rational on its face, then the court would presume capacity. In such a case, the evidential burden then shifted to the objector to raise a real doubt about capacity. If a real doubt was raised, the evidential burden shifted back to the propounder to establish capacity. The essential question was whether the court was satisfied that the contents of the will truly represented the testator’s testamentary intentions. It was settled law that it had to be shown that no mental disorder prevented the settlor from having in mind all conditions he should have had in mind. As with testamentary capacity, due execution of an apparently rational and fair will, would ordinarily satisfy the burden of proof on the propounder, unless there were circumstances which excited the suspicion of the court. A will which had been drawn up in accordance with instructions given by a testator at a time when he had had full testamentary capacity but executed at a time when he no longer had such capacity would nevertheless be valid provided that the testator had known that the document he was signing conformed with the instructions he had given to the draftsman and approved it by executing it in those terms. The invalidity of a will arose from the lack of testamentary capacity, not any want of knowledge and approval. In the light of authority, it was clear that the fact to be proved was knowledge and approval in the sense of acceptance of the contents. That did not require full testamentary capacity. A will was intended to give effect to the intention of the testator or testatrix. In cases which excited the suspicion of the court, the court was required to be satisfied that the will reflected, genuinely, the intention of the testator.

In the instant case, the court was not persuaded on the balance of probabilities that there had been no mental disorder that prevented the deceased from having in mind all the conditions she should have had in mind. The requirements of Parker v Felgate had not been made out. The court was satisfied that the deceased had been suffering from an underlying dementing illness prior to the hospital admissions. At the time of her admission to hospital on the two occasions, it was accepted that the deceased had been suffering from acute confused state. In the light of the totality of the evidence, the deceased had been forgetful at the stage of her admissions to hospital. In all the circumstances, and applying settled law to the facts, it followed that the deceased did not have testamentary capacity on 15 June or on 20 June.

A pronouncement would be made against the 2007 will.

Parker v Felgate 8 PD 171 applied; Banks v Goodfellow [1861-73] All ER Rep 47 applied; Fuller v Strum [2002] 2 All ER 87 applied; Sharp v Adam [2006] All ER (D) 277 (Apr) applied; Key v Key [2010] All ER (D) 155 (Apr) applied; Perrins v Holland [2011] 2 All ER 174 applied; Hansen v Barker-Benfield [2006] All ER (D) 253 (May) applied; Harwood v Baker 3 Moo PCC 282 applied.

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