In England and Wales, it is not unusual for testators not to reveal the contents of their wills to their loved ones and so sometimes it comes as a surprise to beneficiaries and/or potential beneficiaries both as regards the contents of the will and the date on which it was executed. In this article, I look at the thorny question of testamentary capacity – what can you do if you think that the testator did not have testamentary capacity to make a will (or a codicil – the principles apply equally to both testamentary instruments)?
What is testamentary capacity?
Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a will.
For a will to be valid, as well as complying with the provisions of Section 9 of the Wills Act 1837 (“the Act”), as amended, a testator must have sufficient mental capacity at the time of execution of the will. If they lack testamentary capacity at the time of execution, then the will is invalid.
The test for testamentary capacity is based on case law and dates back to the 1800s and the case of Banks V Goodfellow  and is as follows:
A testator must:
Understand the nature of making a will and its effects;
Understand the extent of the property of which they are disposing;
Be able to comprehend and appreciate the claims to which they ought to give effect; and
Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
The Mental Capacity Act 2005
This came into effect on 1 October 2007 and provides a different test for mental capacity. Initially, there was some doubt as to whether the common law test in Banks V Goodfellow remained good law or if the statutory provision should apply. However, the position was finally clarified in Walker V Badmin  (and has been restated in later cases) wherein the court stated that the “correct and only test” for testamentary capacity is the one outlined in Banks V Goodfellow. The court concluded that the wording of the Mental Capacity Act was only ever intended to enable courts to make decisions for living, incapable persons, and not deceased testators.
Assessing testamentary capacity
Practitioners play an important part in assessing a testator’s capacity to make a will. Sometimes the question of capacity may not be obvious – for example, in an elderly client. However, just because a client is elderly does not necessarily mean that he or she will lack testamentary capacity. However, a greater care should be taken with more elderly clients as regards the question of capacity as should other vulnerable clients who may have physical or learning disabilities or where perhaps English is not their first language.
It is important for practitioners to take detailed instructions from testators and to ask pertinent questions regarding their estates and their family dynamic to be able to determine whether a testator has the necessary capacity. For this purpose, a detailed meeting should take place with the testator, preferably without any else being present, and practitioners should keep a detailed written note of their meeting when instructions are given for the execution of a will including, the questions asked, and the answers given. It is also good practice to ensure that these same questions are asked again at a further meeting when the will is executed to re-assess and/or re-affirm the question of capacity.
The Golden Rule
Inevitably, there will be some cases where a practitioner has cause to doubt whether a testator has testamentary capacity. In such cases, the practitioner should consider exercising the “Golden Rule”. The Golden Rule was set out in the judgment of Templeman J in Kenward V Adams  and is as follows:
“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 how 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 satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.”
The Golden Rule is a rule of good practice for practitioners and not a rule of law but it has been widely approved by the courts as having the potential to reduce the risk of a claim for lack of testamentary capacity – practitioners who fail to observe the rule in appropriate cases do so therefore at their peril!
What can you do if you think the deceased lacked testamentary capacity?
Each case will turn on its own individual facts so one size does not fit all but central to each claim will be the following features:
(a) Obtain the solicitors’ file – if the will was professionally prepared then the starting point will be to obtain a copy of the practitioner’s file so that an examination can be undertaken of any attendance note(s) of the solicitor taken in connection with the preparation and execution of the will.
(b) Investigate the position as regards previous wills – considering whether a testator has made a previous will or wills and reviewing the contents of any such wills can often assist in determining whether there may be doubt as to the testator’s testamentary capacity. One issue that may be particularly important is to the extent to which the will differs from any made previously, especially if the changes are substantial and could be considered irrational - if a testator had made a series of wills leaving all of his or her estate to his children and/or grandchildren but then made a new will leaving everything to a charity or a person who was not a relative, a court may be more likely to view the will as suspicious, especially if there is medical evidence which suggests that the testator may not have had the necessary capacity. Steps should therefore be taken to obtain copies of any previous wills and where those wills were professionally prepared the relevant solicitors’ files.
(c) Obtain the deceased’s medical records – if the Golden Rule was followed and the will has been witnessed by a medical practitioner it is going to be more difficult to succeed with a claim that the will is invalid because the testator lacked testamentary capacity. However, no claim will be possible at all without sight of the deceased’s medical records and so these should be obtained. These can be obtained by submitting a request under the Access to Health Records Act 1990.
(d) Obtain an expert’s report – if following a detailed review of the deceased’s medical records, there remains some doubt as to whether a testator may have had testamentary capacity, then you will almost certainly want/need to obtain a report from a medical practitioner seeking an expert opinion as to whether he or she considers the deceased had testamentary capacity. Sometimes a report from the deceased’s general practitioner will suffice but often it will be necessary to instruct an independent expert to provide a report based on the deceased’s medical records. It may be the expert will not have had any personal relationship with the deceased and/or any detailed knowledge of their medical history and any report will therefore be based on an assessment of the medical records only. Care should therefore be given as to the identity of a suitable expert who is a specialist practitioner in the medical area relevant to the deceased.
(e) Obtain witness evidence – evidence from family and friends can often be helpful when considering a claim for testamentary capacity. They may likely be able to give evidence on the deceased’s day to day living arrangements in the latter part of their lives and, depending on when the will was executed, may be able to assist with examples, if appropriate, of when the deceased may have become confused or forgotten important matters in their lives. This can be particularly helpful in cases of Alzheimer’s where capacity can fluctuate from day to day. In such cases, it is important to remember that a testator may have capacity on one day but not necessarily the next. They may also be able to give evidence of what the deceased told them as regards the contents of their will.
(f) Separately, witness statements should also be taken from the witnesses to the will seeking specific information about the circumstances surrounding the execution of the will including their views of the deceased’s state of mind at the time of execution and what, if anything, the deceased told them about the will and the contents thereof.
The burden of proof
It is important to remember that a testator will be presumed to have the requisite testamentary capacity if, as well as complying with the formalities under the Act, the will appears on its face to be rationale and contains no irregularities. Initially, the burden of proof therefore rests on the person asserting lack of capacity and not on the person seeking to propound the will. If, however, after a review of medical records and other evidence, there is sufficient doubt as regards the validity of the will then the burden of proof shifts back to the person propounding the will, most likely the executor(s).
The above steps will inevitably take some time to complete, and you may wish to ensure that the executor(s) do not take any steps to distribute the estate pending the outcome of your conclusions and, if appropriate, any court proceedings. Often, executors will agree voluntarily not to distribute the estate pending a resolution of the matter but if no agreement can be reached then consideration should be given regarding the lodging of a caveat at the Probate Registry. Lodging a caveat will prevent the executors from obtaining a grant of probate whilst the caveat remains in place and often will buy you the necessary time you need to investigate and/or conclude the claim. Any application does, however, need to be made swiftly as this is not a step that can be taken if a grant has already been issued.
Claims for lack of testamentary capacity are often difficult to prove, particularly if you need to rely on medical evidence from a practitioner who did not have any personal relationship with the deceased and especially if the Golden Rule has been followed. As a result, it is not unusual for dual claims to be brought including an additional and/or alternative claim that the will is invalid because the testator lacked the necessary want of knowledge and approval, a subject that I will be considering in more detail in my next article.