In the recent case of Burns v Burns (2016) the Court of Appeal upheld a finding that a testator had testamentary capacity notwithstanding a significant decline in her mental health prior to the execution of her will.
Mrs. Burns executed a will in July 2005 at the age of 85, leaving her estate to her two sons, Anthony and Colin. When she died, this was challenged by Anthony on the basis that she lacked testamentary capacity and did not know or approve the contents of the will. If the challenge was successful then the will would have been set aside and, pursuant to an earlier will, Anthony would receive a greater proportion of the estate.
‘Mini Mental State Examinations,’ occupational therapy assessments, evidence from a day care centre, anecdotal evidence, a geriatrician’s opinion and evidence to show weaknesses in the will drafting solicitor’s interviews were all used, by Anthony, to try to undermine the 2005 will.
At first instance, the District Judge found there to be insufficient evidence to set the 2005 will aside. An assessment of Mrs. Burns’ mental state, despite evidencing memory problems, was not designed to assess her ability to understand a will. Furthermore, the court found that anecdotal evidence was tempered by vested interests. Beyond that, Mrs. Burns had given coherent written instructions to write the 2005 will at the end of 2004, she understood that she was signing a will she had given instructions for in late 2004, and, whilst the solicitor who drafted the 2005 will did not follow the ‘golden rule’, he would have been aware of any serious capacity issues. Accordingly, the District Judge pronounced in solemn form the 2005 will.
On appeal, Anthony sought to argue that the District Judge had not appreciated the significance of the medical assessments and the failure of the solicitor to ensure capacity and understanding.
Despite the doubts around the 2005 will, the Court of Appeal found ‘that the evidence did entitle [the District Judge] to make the findings that he did’ (McCombe LJ). The Appeal Judges recognised that the District Judge had adequately considered Mrs. Banks’ testamentary capacity in light of previous case law. In particular, the Deceased had ‘capacity to recognise that what she was signing in July 2005 was a will… that she had instructed in the previous year’ and her actions of late 2004 evidenced that she intended to revoke her previous will dated 2003 and divide her estate equally. The fact that she simply wanted to split her estate to her sons offered further evidence that she understood her actions.
Armed with medical opinions, contemporaneous notes and the fact that the drafting solicitor may have not properly considered the testator’s capacity when taking will instructions, the failure of Anthony’s claim demonstrates the difficulty of challenging a will through the courts.
By Scott Taylor
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