Lesley King discusses Ramsay v Ramsey  All ER (D) 32 (Sep), the latest in a long line of wills made by elderly people that has been challenged by one or more of their children on the basis of lack of testamentary capacity.
The testatrix, Mrs Ramsay, made a will in 2008 after she had suffered a stroke. Her son, Roynal, had been living with her as a carer, but relations between the two had deteriorated. In her will, which was drafted by a solicitor, she gave 50% to one daughter, Ericka, whom she described as the most caring of her seven children. The rest was divided between the other six: Roynal received a very small share, as did one of the daughters, Lova.
The will gave reasons for this treatment: Roynal had ‘bullied and harassed me and attempted to steal from me to the extent that the police have an Order that he is not to approach me again on pain of arrest’. Lova had ‘made provision for herself from my money in the past’.
The judge applied the Banks v Goodfellow test. The case 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’.
Mrs Ramsay explained her reasons for discriminating between her children very clearly, but were they delusions that had arisen as a consequence of the impairments of her memory and understanding produced by her dementia?
It was accepted on the basis of the evidence of the solicitor who prepared the will and another who attended execution as a witness that the other three elements of the test – understanding of the nature of the act, the extent of the property and the claims that ought to be considered – were present.
Whether or not the client is suffering from an insane delusion is the hardest element for a solicitor to cross-check. Mrs Ramsay explained her reasons for discriminating between her children very clearly, but were they delusions that had arisen as a consequence of the impairments of her memory and understanding produced by her dementia?
The expert medical evidence was that Mrs Ramsay would have been ‘vulnerable to the development of false and unshakeable ideas about people’. The judge accepted this. The expert went on to say that: ‘If these beliefs are found to be untrue, then it would be my opinion that they probably constituted insane delusions that arose in Mrs Ramsay as a consequence of the impairments … produced by her dementia.’ The judge said that the question of whether or not the beliefs were true was a mixed question of fact and opinion, which would be determined by the court.
The judge decided that there was sufficient evidence to suggest that there was a rational basis for the testatrix’s beliefs, even if she might have placed too much weight on certain incidents.
Points for practitioners
1. Courts do not require capacity to be perfect. In 2007, Mrs Ramsay scored 12 out of 28 in a mini-mental state test and the judge accepted that she was suffering from moderate to severe dementia. This did not necessarily mean that she lacked capacity.
The judge quoted from two later passages in Banks v Goodfellow. The first states that the first three elements of the 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 second deals with memory. While ‘a man in whom the faculty is totally extinguished can not be said to possess understanding to any degree whatever … memory may be very imperfect; it may be greatly impaired by age or disease … and yet his understanding may be sufficiently sound for many of the ordinary transactions of life … To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?’ One must not set the bar too high.
2. The solicitor did not arrange for a medical opinion, but was not criticised by the court. However, he was unaware that Mrs Ramsay was suffering from dementia. He accepted in general terms that he might have acted differently if he had been aware of this. A direct question on this point would have been helpful.