The question of whether or not a testator had testamentary capacity to execute their will is a question that the courts are often asked to consider but how do they go about making a decision, particularly in cases where the testator was suffering from some form of illness that affects the mind? This was the question which the court had to consider in the recent case of Re estate of Charles Skillett, deceased (probate); Skillettt v Skillett .
The testator, Charles Skillett (“Charles”) was born on 26 February 1933. He died on 18 July 2017 at the age of 84. His wife, Joyce, had died just over a month earlier. They left four children, Stephen Skillett who was the claimant in the proceedings, Gary who was the defendant in the proceedings and two daughters, Jane and Lisa.
In 1972 Charles bought a smallholding in Upper Ruckinge. In December 2010 a surveyor, Mr Hirst valued the smallholding on an informal basis at £50,000.00.
By February 2002 Charles had developed idiophathic Parkinson’s disease. In February 2008 he was admitted to hospital after a minor heart attack. At the beginning of January 2011 Charles was advised by his doctor that he was in the “terminal phase” of his illness.
On 19 September 2013, for the first time, Charles’ medical notes recorded a diagnosis of Alzheimer’s disease. In November 2013 he was moved to a nursing home where he stayed until his death in 2017.
On 19 May 2011 Charles and Joyce both executed new wills in the presence of their solicitor. These wills were “mirror” wills in the sense that each set out the same provisions, namely that:
(a) On the death of the first spouse, the surviving spouse would take everything absolutely.
(b) On the death of the surviving spouse:
(i) The smallholding would be given to Stephen;
(ii) The remaining three children would each receive £50,000.00 each;
(iii) The remainder of the estate would be divided equally between the four children.
(c) If Stephen, Jane or Lisa should die before the surviving spouse, their interest would go to their living children in equal shares. However, Gary’s children would not take their father’s share if he predeceased the surviving spouse.
Stephen issued proceedings asking the court to propound in solemn form Charles’ will executed in May 2011. Gary objected on the grounds that his father lacked testamentary capacity and/or did not know and approve the contents of the will at the time of its execution. Stephen and Gary both gave evidence to the court as did their respective wives. Jane and Lisa filed witness statements on behalf of Gary but did not attend the trial in person.
Evidence of the making of the will
The court also heard evidence from Charles & Joyce’s solicitor, Jonathan Hudson (“Jonathan”) who met with the couple at their home on 5 May 2011. In evidence, Jonathan stated that Charles and Joyce had made previous wills with his firm in 1994. He went on to say that when he met the couple he recorded instructions received in a contemporaneous note which was before the court.
On the basis of these instructions he prepared two mirror wills, and drafts were sent by post to the couple for their approval on 12 May 2011 and he then had another meeting with them at their house on 19 May 2011. Again he recorded that meeting in a contemporaneous note which read “they both checked through these [wills], and confirmed that they were perfectly happy with them”.
Jonathan told the court that Joyce then arranged for a neighbour to come into the house to witness the wills. His attendance note went on to record that “Mr Skillett apologised for the state of his signature, but he explained that he is suffering from Parkinson’s Disease. Mr and Mrs Skillett thanked JDH for his assistance.”. Jonathan said that Charles spoke quite lucidly at the two meetings and his impression was that both he and Joyce had capacity to make a will. If he had been in any doubt at the first meeting he would have asked for medical advice on capacity.
However, Jonathan did not follow the “Golden Rule” as set out by Templeman J (as he was then) in Re Simpson  which Gary submitted he should have done. The Golden Rule as set out by Templeman J is:
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnesses or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and finding.
There are other precautions which should be taken. If a testator has made an earlier will this should be discussed by the legal and medical advisers of the testator, and if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator. These are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined and great expense and misery may be unnecessarily caused.”.
Notwithstanding Jonathan’s failure to follow the Golden Rule, the court accepted his evidence as to the way in which he received his instructions. The court did not consider that Charles’ age alone called for the observation of the Golden Rule but that coupled with his illness might well have made it advisable and may have avoided this litigation. But, said the court, the Golden Rule is not a rule of law and Jonathan’s omission to follow it did not help the court to decide the issues in the case. Compliance with the Golden Rule is not proof of capacity nor is non-compliance proof of incapacity. It simply means that the observations at the time were the observations of a layman, who may have missed matters which would have been apparent to a medical expert.
The law – testamentary capacity
The test of testamentary capacity derives from the judgment of Lord Cockburn CJ in the case of Banks v Goodfellow , the test being that the testator must have understood the nature of his act and its broad effects, the extent of his property (without necessarily recollecting every item), any moral claims he ought to have considered and not be suffering from any disorder of the mind which shall have perverted his sense of right or prevented the exercise of his natural facilities.
By an order of the court a single joint expert was instructed to consider Charles’ medical records and other evidence and to provide an opinion on testamentary capacity. That expert was Dr Hugh Series. He concluded that although hallucinations were a very marked feature of Charles’ illness there was nothing to suggest that they affected the testamentary disposition. They were unpleasant and intrusive and at times they produced aggressive behaviour towards those close to him but their content did not appear to have driven his decisions about the will. At times it was obvious that he was hallucinating but there was nothing in the solicitors’ attendance note to suggest that this was happening when he signed the will and by their nature hallucinations are intermittent phenomena, not present all the time.
In conclusion, Dr Series said that in his opinion although Charles had a cognitive impairment at the time he signed the will which by then was probably moderate, this was not sufficient to have undermined his testamentary capacity at the time of the 2011 will. Dr Series therefore concluded that, on the balance of probabilities, he had testamentary capacity when he signed the 2011 will.
The court’s findings on testamentary capacity
The court concluded that Charles did have testamentary capacity at the time he executed his will in 2011. It reached this conclusion for various reasons including: (1) the fact that Jonathan was an experienced solicitor and there was no reason to doubt his capacity, (2) that Charles’ medical records showed the hallucinations had reduced with changes in medication, and (3) that Charles had understood what his GP, Dr Jacobs had told him in January 2011 as regards his entering a terminal phase of his illness.
In addition, Joyce had spoken to Gary, Jane and Lisa about the making of the new will which the court considered would have been an odd thing to do if she had felt Charles no longer had capacity and there was no suggestion from the children that they challenged their father’s testamentary capacity at the time.
Lastly, the court felt that Dr Series’ opinion must carry significant weight given his great experience in this area, albeit that it was not determinative.
The law – knowledge and approval
Knowledge and approval of a will is to be clearly distinguished from testamentary capacity, albeit if a testator lacks testamentary capacity he will generally be unable to know and approve the contents of a will. But there may be other cases where a testator with capacity is sufficiently unaware of the contents of the will that they cannot by their signature be taken to have approved it. In normal circumstances, knowledge and approval is assumed where there is testamentary capacity and due execution of the will.
In the Court of Appeal decision of Gill v Woodall  the court identified questions to be asked when considering knowledge and approval. They are whether the testator understood (a) what was in the will when it was signed and (b) what its effect would be. Lord Neuberger MR (as he then was) said that where a will has been professionally prepared by a solicitor, a very strong presumption arises that the will represents the testator’s intentions at the relevant time, although this is not conclusive.
He went on to say that “there is also a policy argument … which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that such evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.”.
The court’s findings in relation to knowledge and approval
Gary’s case in this regard took as its starting point the apparent inequality of the testamentary provisions as they appear at the date of Charles’ death. He argued that his father would not have wanted this to happen and therefore he cannot have understood the provisions of his will sufficiently to be said to have knowledge and approval. He contended that the will was a complex will but the court found that in legal terms it is not, although it may appear so to a layman.
Charles and Joyce provided Jonathan with instructions in respect of the wills. Those instructed would have been explained in simple everyday terms. The terms are not difficult to understand and have been converted by Jonathan into legal language in the will. What Charles signed represented what he, and Joyce, instructed Jonathan to include in their wills.
The court accepted that it was correct to point out the apparent mathematical equality in the provisions at the time of making of the will no longer existed at the time of Charles’ death nor were they likely to remain equal but there are any many possible reasons for the lack of any provision for this eventuality. It could have been that Charles thought his death would come quite soon given that he had recently been diagnosed as in the terminal phase of his illness or he may simply have overlooked the probability of an increase in the value of the smallholding. However, the court does not have to resolve this question to be able to decide on knowledge and approval. The only question that has to be decided is whether Charles knew and approved the provisions which were in his will.
In the court’s judgment he did. The lack of mathematical equality at the time of death does nothing to undermine the rationality of the provisions which Jonathan was instructed to incorporate at the time of making the will.
An oversight or a change in circumstances following the making of a will would not be enough to invalidate the will. He knew what was in his will and approved it. The fact that its consequences following his death may not have been as he had expected them to be does not undermine that knowledge and approval.
In the circumstances, Stephen’s claim was successful and Charles’ will was propounded into probate.
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