Practitioners need to exercise diligence to ensure the client has capacity at the time of giving instructions and, of course when the will is executed – and to maintain good record-keeping in case the will is challenged. But they can only record what they know – and future contested wills cannot always be prevented.
It’s long since been confirmed that grief can be sufficiently acute to render a person mentally incapacitated for the purposes of making a will. A recent appeal ruling has settled (for the time being, at least) the pre-eminence of the long-established Banks v Goodfellow test for capacity, in a case where the solicitors were in the dark about a significant matter concerned their client.
Under the Banks test, a testator must, essentially, understand the nature and effects of the will, the extent of their estate and any potential claims they should account for. Further, they should have no “disorder of the mind” or “insane delusion” that would influence the will in a way that would not have happened if they were of sound mind.
Where there is a challenge, the burden of proof is on the other party to show the will-maker had no delusion influencing the will.
Under the Mental Capacity Act 2005, the test for capacity is different and focuses on the mental ability – temporary or otherwise - of the client to make decisions regarding the subject matter. But unlike Banks, the MCA test does not state that it includes decisions as to testamentary matters.
In Clitheroe1, the trial judge applied the Banks test, finding that the testatrix had been suffering from a complex grief reaction following the death of a child, as well as severe depression. She suffered to such an extent that she experienced delusions about sexual abuse allegations which affected her testamentary capacity - cutting her daughter out of the will. (The MCA test had not in fact been raised at trial.)
However, the solicitors had not been told about these allegations. This, said Falk J, was hardly surprising, “it was a highly private matter.”
On appeal, the Mrs Justice Falk make clear that the Banks test has withstood the test of time and “has not been swept away by the MCA”. Importantly, she agreed with prior authorities to the effect that the MCA was not intended to have retrospective effect.
In her second of two judgments in the appeal, she upheld the earlier decision that the testatrix’s beliefs about the allegations of abuse were insane delusions including the wills. The wills were therefore invalid.
These rulings are useful both for wills practitioners and for solicitors practicing in contested probate, examining the nature (and limits) of the tests for mental capacity and the burden of proof on the party seeking propoundment of the will.
The case is also a reminder for lawyers of the importance of ensuring that they keep full attendance notes and records and seek medical evidence relating to capacity if appropriate. That said, in this case the solicitors her drew up the wills had no knowledge – and no way of knowing – about the abuse issues as they were not mentioned.
Clitheroe v Bond  EWHC 2203;  EWHC 1102 (Ch)