Will – Testator – Testamentary capacity

Alternative Citations

[2014] EWCA Civ 280

Hearing Date

13 March 2014


Court of Appeal, Civil Division


Lord Justice Sullivan, Lord Justice McFarlane and Lord Justice Lewison


Penelope Reed QC and Sarah Haren (instructed by Lyons Davidson Ltd, Bristol) for the claimant.

Dennis Sharpe (instructed by Lindops, Southend-on-Sea) for the defendant.


The claimant’s mother had died and left her estate in equal shares to her four children. The claimant had challenged the will on the basis that the mother had not had testamentary capacity. The judge found that she had had capacity and had signed the will with actual knowledge and approval of its contents. The claimant appealed. The Court of Appeal, Civil Division, dismissed the appeal as, on the evidence that had been before him, the judge’s conclusions had been unassailable.


The judgment is available at: [2014] EWCA Civ 280

C had four children. Her late husband had founded a manufacturing company. Shares in that company were held equally by the children, who each held 14,997 shares. The remaining shares were held by C to prevent deadlock. Three of the four children (R, H and J) were directors of the company. R, the claimant in the instant proceedings, was the managing director whereas the other siblings played no active day to day role in the running of the company. C had made a number of wills, the last of which, made in 1996, bequeathed her shares in the company and a flat that she owned to R with the remainder of her property (other than a specific legacy to her housekeeper) being shared equally between the children. It was common ground that from 2001, when C was aged 83, her mental health began to deteriorate. On 18 December 2005, a birthday party was held to celebrate C’s 88th birthday. After most people had left, those that remained were H and her husband, J and his wife, a friend of H (S) and a friend of J. H brought up the subject of inheritance tax. It was suggested that C should make a deed of gift. S searched the internet for a suitable form of words to reflect what C wished to achieve, namely that everything be divided equally between the children without a payment of inheritance tax being made. The deed of gift made reference to the shares but did not mention the flat. Someone raised the question of the will and how it differed from the deed of gift in that it favoured R. C was upset that her will did not share her assets equally and was determined to rectify that situation immediately. S prepared a draft will on the computer and read it aloud to C, who then read it to herself once it was printed out. The defendant firm of solicitors was appointed as executor. C then executed the will which shared all of her assets equally between the four children with a legacy being made to the housekeeper. In 2009, C died. R challenged the will. The experts called before the judge, neither of whom had met C during her lifetime, agreed that by the date the disputed will had been made, C had been suffering mild to moderate dementia but neither was able to say with certainty whether she had or had not had testamentary capacity on that date. The judge made a number of findings of fact before concluding that: (i) C had been capable of understanding, and had understood, the nature of a will and the effect of the disputed will; (ii) C had been capable of understanding, and had understood, that her property had included the house in which she lived, the flat and shares in the company, and that she understood that she owned other money and investments but, on the balance of probabilities, had not been capable of remembering the details without being told; and (iii) while there might be cases where it was essential that the testator was capable of understanding, and possibly only if there was such an understanding, the different provisions of an earlier will, the instant had not, in the circumstances, been such a case. Accordingly, the judge pronounced in favour of the disputed will. R appealed.

The issues for determination were whether C: (i) had had testamentary capacity; and (ii) had known and approved the contents of her will when she had executed it at, or immediately after, her 88th birthday party.

The appeal would be dismissed.

(1) There had been clear evidence that C had had an ability to weigh up claims upon her bounty. The judge had not erred in his evaluation of the requirement, established by settled principles, that C should have been able to comprehend and appreciate the claims to which she ought to have given effect. The fact that C had forgotten that she owned the flat when the deed of gift had been drawn up had not meant that she had been incapable of understanding the extent of her estate; she had merely forgotten, as had H and J who had been present at that time. The judge had found as a fact that not only had C been capable of understanding, but that she had understood, that her property had included the flat. Previous authority did not go to the length of requiring an understanding of the collateral consequences of a disposition as opposed to the immediate consequences. The significance of C’s shares on their own had been slight. What had given them significance, at least to R, had been the fact that, when combined with his then existing shareholding, he would have had the power to avoid deadlock. However, that would have required C to have understood not only what her own estate had consisted of, but also what R’s assets had been. It was not a condition of testamentary capacity that the testator should understand or remember the extent of anyone else’s property (see [41], [42], [45], [46], [49], [50] of the judgment).

Banks v Goodfellow [1861-73] All ER Rep 47 applied; Hoff v Atherton [2004] All ER (D) 314 (Nov) applied; Harwood v Baker (1840) 3 Moo PCC 282 considered; Burgess v Hawes [2013] All ER (D) 220 (Feb) considered.

(2) The judge had found, on the evidence, that C had known that she was making a will, she had taken a conscious decision to make it and had approved its terms. That conclusion had been fully supported by the evidence that the judge had accepted. Given that the will had been relatively simple and that C had been found to have had testamentary capacity, the judge’s finding of knowledge and approval was unassailable.

Gill v Woodall [2010] All ER (D) 167 (Dec) applied; Perrins v Holland [2011] 2 All ER 174 applied.

Decision of Nicholas Strauss QC [2013] All ER (D) 321 (May) affirmed.

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