Following on from the first installment of the probate guide in which Aidan O’Brien’s guide to the formalities which must be complied with in order to ensure the formal validity of a will, this next article in the Probate Actions Guide series produced by Farrar’s Building considers two grounds of challenge to the substantial validity of a will:-
A person under the age of 18 is not capable of making a valid will unless they are privileged by virtue of being a soldier in actual military service, a member of the naval or marine forces in actual military service, or a mariner or seaman being at sea (s.7 and 11, Wills Act 1837 as amended, and Wills (Soldiers and Sailors) Act 1918). However, if the will was made prior to 1 January 1970 the age of capacity required is older, at 21 years.
The common law test
The testator must be mentally capable of making a will. That is to say, possessing the capacity to understand, rather than actual understanding of, the following concepts set out in Banks v Goodfellow (1870) 5 QB 549:-
“It is essential […] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—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. “
The separate requirements are therefore that the testator is capable of understanding:-
The law does not require a perfectly balanced mind. Capricious, frivolous or ill-intentioned motives do not invalidate a will.
The statutory test for mental capacity in the Mental Capacity Act 2005 (“MCA 2005”) does not replace that common law test (other than for the making of wills by the Court of Protection for persons lacking capacity), but s.3 of the MCA 2005 contains considerations which will be relevant to assessing a lack of testamentary capacity:-
3 (1) … a person is unable to make a decision for himself if he is unable–
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of–
(a) deciding one way or another, or
(b) failing to make the decision.
Time for satisfying the test
Ordinarily, the testator must have testamentary capacity at the time when he executes the will. However, if the testator deteriorates after giving instructions to a solicitor but before execution of the will, it remains valid if (1) the testator had capacity at the time when he gave instructions to the solicitor for the preparation of the will, (2) the will was prepared in accordance with his instruction, and (3) at the time of executing the will, he understands that he is executing a will for which he has given instructions (Parker v Felgate (1883) 8 P.D. 171, upheld in Perinns v Holland  EWCA Cov 840).
Challenge on the basis of incapacity
Challenges to the validity of a will based on the testators lack of testamentary capacity are common and increasing, due to factors such as ‘do-it-yourself’ wills, an ageing population with commensurate cognitive disabilities such as dementia, inflated real property values increasing the value of estates, etc.
Therefore in practice the golden rule
It is therefore particularly important where there is any doubt about testamentary capacity that solicitors ensure the will is approved or witnessed by a medical practitioner who satisfies themselves as to capacity, and who then records the examination (a ‘golden but tactless’ rule, derived from Kenward v Adams (1975) The Times, November 29, and Re Simpson (1977) 121 Sol Jo 224). Further, it is strongly advisable as a precaution that if there was an earlier will it should be examined and any proposed alterations should be discussed with the testator.
Should a will be challenged on the basis of lack of capacity, a failure to follow this best practice will expose a solicitor to allegations of negligence. The courts have nevertheless accepted that complying with the obligation will be subject to the particular circumstances of each case (for example, where the testator is close to death and a medical examination cannot be arranged, and capacity had been considered by a solicitor and recorded in a comprehensive note, Wharton v Bancroft  EWHC 3250 (Ch)).
The burden of proving capacity
The legal burden of proof rests with the person propounding the will to prove that the testator had the testamentary capacity at the relevant time (Barry v Butlin (1838) 2 Moo.P.C. 480, Waring v Waring (1848) 6 Moo.P.C. 341). However the evidential burden of proof may shift from one party to another. The fluctuating burden is described at paragraph 97 of the judgment of Briggs J in Key v Key  EWHC 408 (Ch):
“(i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity.”
A further rebuttable presumption is worthy of note: if at a period prior to the execution of the will the testator suffered from a serious mental illness, a presumption arises that it continued and that the testator lacked capacity (Bannatyne v Bannatyne (1852) 2 Rob. 472). The presumption may be rebutted by establishing that the testator made the will during a lucid interval or after full recovery.
Testamentary capacity requires proof of the capacity to understand certain important matters relating to the will, whereas demonstrating knowledge and approval relates to the specific contents of that will (Hoff v Atherton  EWCA Civ 1554), or put otherwise, “testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made” (per Lewison L.J. paragraph 47 Simon v Byford  EWCA Civ 280).
In Gill v Woodhall  Ch.380, the Court of Appeal confirmed the correct approach to considering knowledge and approval was to ask a single question: had the testator understood (a) what was in the will when she signed it; and (b) what its effect would be. The question should be considered in the light of all the available evidence, and the appropriate inferences to be drawn from that evidence.
Again, the legal burden of proof lies with the propounder of a will to prove that the testator knew and approved of the contents at the time of execution. This burden of proof can be discharged by proof of testamentary capacity and due execution.
On proof that the testator was of testamentary capacity and that he duly executed the will, in ordinary circumstances a rebuttable presumption arises that he knew and approved of its contents at the time of execution (Barry v Butlin (1838) 2 Moo.P.C. 480).
Affirmative proof of knowledge and approval may take any form. The fact that the deceased gave instructions for the will or that it was read over by him or to him is the most satisfactory proof. There must however be a proper and sufficient reading of the will. It might not be a proper reading of the will by the testator if he merely cast his eye over it (Garnett-Botfield v Garnett-Botfield  P.335).
It is not essential to prove that a will originated with the testator and, therefore, proof of instructions may be dispensed with, provided that it is proved that the testator completely understood, adopted and sanctioned the disposition proposed to him, and that the instrument itself embodied that disposition (Constable and Bailey v Tufnell and Mason (1833) 4 Hagg. Ecc. 465).
Importantly, if a will was prepared and executed in circumstances which lead to a valid suspicion that the will did not express the mind of the testator, that suspicion must be removed by affirmative proof of the testator’s knowledge and approval. Where circumstances excite the vigilance and suspicion of the court, a very high degree of proof may be required.
A common example of circumstances which will raise suspicion is where the will was prepared by a person who takes a substantial benefit under it. “If a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed” (Barry v Butlin). If the legacy is very small in relation to the size of the estate, such a suspicion may not arise.
A very high standard of conduct is required of the solicitor receiving a benefit in these circumstances, see Re a Solicitor  Q.B. 475 (a solicitor has now not merely to advise a client to obtain independent advice before making a will but to ensure that the client received that advice before he [the solicitor] took under the will). Where a solicitor drafted wills for his elderly aunts appointing himself executor and beneficiary of one-third of their estate, when both were in poor health and where one probably lacked testamentary capacity, it was held that the gravest suspicions were aroused! (Cushway v Harris  EWHC 2273 (Ch)).
Further commonly occurring suspicious circumstances are:-
When considering a challenge to the validity of a will, it is however important to bear in mind that the circumstances in issue can only raise a suspicion of lack of knowledge and approval if they are circumstances with some relevance to the preparation and execution of the will itself. Additionally, the court will not allow the rule in Barry v Butlin, Fulton v Andrew (1875) L.R. 7 H.L. 448 (that a party who writes or prepares a will under which he takes a benefit excites suspicion) to be used as a screen for allegations of fraud and dishonesty.
Challenges to a will on the basis of undue influence and / or fraud will be considered in further papers in the Farrar’s Building Probate Actions Guide series.