21st May 2024, by Anna Mottram
A dispute over the contents of a loved one’s will can make an already difficult time for families even more fraught. In a legal system that champions an individual’s right to testamentary freedom, it is important to plan ahead and consider the potential consequences of making or changing a Will.
The recent case of Leonard & Ors -v- Leonard & Ors [2024] EWHC 321 (ChD) is an important decision relating to three key areas of probate law:
- Legal testamentary capacity;
- The rule in Paker -v- Felgate
- Knowledge and approval.
The legal test for testamentary capacity was established long ago in the case of Banks -v- Goodfellow (1870) and has been recently applied in the Court of Appeal[1]. It can be summarised by asking four fundamental questions of the Testator:
- Were they able to understand the nature of the act of making the will and its effect?
- Were they able to understand the extent of the property of which they were disposing?
- Were they able to comprehend and appreciate the claims to which they ought to give effect?
- Had their human instincts and affections or their moral sense been perverted by a mental disease?
A will may still be valid even where its contents are considered “unexpected, inexplicable, unfair and even improper”. However, if the provisions of a will or the outcome of those provisions are surprising or irrational, it may be relevant to a Court’s assessment of whether the testator had capacity at the time it was executed.
Perhaps surprisingly, a person with reduced cognitive abilities owing to a mental illness or impairment can have the capacity for the purposes of making a will. It is not actual understanding or recollection of the will that is important, but the ability to understand or recollect. A court will be concerned with whether a testator has the ability to make decisions regarding the disposal of their estate, not merely if they can understand the consequences of any particular transaction. Further, while a testator must have the capacity to comprehend the potential claim of others, there is no need for a testator to understand the consequences of the dispositions in the will.
The Leonard case was concerned with whether a 2015 Will had been validly executed due to the testator’s mental capacity at the time or whether a previous 2007 Will should be admitted to probate instead. The claim was brought by the children of the testator (Dr. Leonard) against the beneficiaries of the 2015 Will, who were Dr Leonard’s second wife, two of her three children and three of her grandchildren.
Dr Leonard married his second wife in 1999, following the death of his first wife. It was common ground between the parties that it was a happy marriage, and Dr Leonard was close to his step-children and step-grandchildren.
The extent of Dr Leonard’s estate was somewhat complex, having owned multiple businesses and properties in the UK, USA and France. It was, in part, due to these complexities that questions over Dr Leonard’s ability to understand the effects of the 2015 will were raised.
Dr Leonard first made plans to change his will back in 2013. At the time, he was 82 years of age. Crucially, rather than instruct solicitors to assist with the drafting of the will, Dr Leonard consulted with a Chartered Tax Advisor who failed to take into account any potential issues relating to capacity.
Both parties instructed expert witnesses who specialised in the field of geriatric psychiatry to comment on whether they considered Dr. Leonard to have the necessary capacity at the time that the will was executed. Neither specialist had met Dr Leonard, and they were, therefore, required to base their assessments on contemporaneous evidence provided to them. In this case, both experts agreed that Dr Leonard was likely suffering from Dementia at the time that he gave instructions for his will due to a combination of both Alzheimer’s disease and Vascular Dementia.
The presence of Dementia, however, does not automatically mean that a testator does not possess the necessary capacity to execute a valid will. The Court referred to the case of Parker v Felgate, where it was said that “a testator who lacks testamentary capacity at the time of the execution of the will may make a valid will, nevertheless, if: he or she had testamentary capacity at the time when he/she gave instructions to a solicitor for the preparation of the will.”
The number of elements at play emphasises the importance of obtaining professional advice when considering how best to leave your estate to your relatives. Private Client Solicitors are experienced in dealing with issues of capacity, and they know the warning signs to look out for as well as the legal tests that need to be met.
Testamentary capacity does not concern itself with whether the effects or contents of a will are fair; after all, the law in England permits people to leave their assets however they see fit, and the 2023 case of Kaur v Singh[2] highlighted whether these laws are still compatible with society’s modern standards of morals (in that case the husband wanted to leave his entire estate to the male line of his family, excluding his wife of 66 years from inheriting anything).
In the Leonard case, the Court found that Dr. Leonard did not possess the testamentary capacity to understand the complex nature of the will instruments and held that the 2007 will should be admitted to probate. The Judge did, however, comment that it had not been a straightforward or easy decision based on the evidence put before them.
RJS’ private client department are experienced in advising on many aspects of wills and estate planning, and our litigation department is on hand to assist should any potential disputes arise.
[1] Hughes v. Pritchard and Others [2023] EWHC 1382 (Ch)
[2] Kaur v The Estate of Karnail Singh and Others [2023] EWHC 304 (Fam)