A Brilliant Analysis Of The Law On Testamentary Capacity And Knowledge And Approval

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider Leonard v Leonard and its brilliant analysis of the law on testamentary capacity and knowledge and approval

Leonard v Leonard [2024] EWHC 321 (ChD)

This is a brilliant decision (for practitioners) dealing with disputed and/or contested Wills in relation to three key areas:

  • legal testamentary capacity
  • the rule in Parker v Felgate
  • knowledge and approval

For previous blogs on some of these refer to
What Is the Test for Legal Testamentary Capacity – Will Claim Solicitors
Can Someone With No or Insufficient Mental Capacity Make a Valid Will? – Will Claim Solicitors
The importance of knowledge and approval – Will Claim Solicitors

Each on their own can lead to a finding that a Will isn’t legally valid. What is missing in the legal jigsaw are:

  • claims for undue influence
  • claims that a Will didn’t comply with s. 9 of the Wills Act 1837 (and/or associated claim(s) of fraud and/or forgery). These then can be parked in the context of this decision.

A summary of the main findings in the context of Will dispute, Will contest and general Wills claims against the legal validity of a deceased’s last Will

The tests for legal testamentary capacity

  • the correct legal test for capacity is set out in Banks v Goodfellow (1870) LR 5 QB 549 per Cockburn CJ which was recently applied by the Court of Appeal in Hughes v Pritchard by Asplin LJ who summarised it as follows:
  1. Was “xxx” able to understand the nature of the act of making the Will and its effect?
  2. Was he able to understand the extent of the property of which he was disposing?
  3. Was he able to comprehend and appreciate the claims to which he ought to give effect?
  4. [associated as much with mood as cognition] whether the testator’s human instincts and affections or his moral sense had been perverted by mental disease?
  • a valid Will can be “unexpected, inexplicable, unfair and even improper”
  • however if the provisions of a Will and its outome are surprising, inexplicable or irrational that my be relevant to the court’s assessment of capacity
  • a person with reduced cognitive abilities owing to a mental illness (dementia/Alzheimer’s) can have capacity
  • actual understanding or recollection (for example there is no need to retain a complete schedule of all property and assets and/or of their values) is not required; rather the ability or capacity to understand (is required)
  • the Court is also concerned with the ability to make decisions not merely the ability to understand a given transaction or a particular choice (dealt with via knowledge and approval)
  • whilst the testator must have the capacity to comprehend the claims of others (whom he is excluding), failure to recall a previous Will [or promise] is not necessarily conclusive and/or forgetting the names of family members
  • there is no need for a testator to understand the collateral consequences of his disposition

Knowledge and approval

The testator must understand both what he is doing and its effect – “Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made” [Simon v Byfield 2014 EWCA Civ 280 Lewison LJ]

The onus (to prove knowledge and approval) is on the Will propounder; but where there is nothing to excite the suspicion of the Court, knowledge and approval will be inferred from proof of execution and testamentary capacity.

Parker v Felgate

This has been summarised by Asplin LJ in Hughes v Pritchard (at para 69) with reference to Perrins v Holland [2011] Ch 270 (CA) in the following terms:

The rule in Parker v Felgate 8 PD 171, was summarised by Asplin LJ in Hughes v Pritchard at [69] with reference to Perrins v Holland [2011] Ch 270 (CA), in the following terms: “…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 will is prepared so as to give effect to the instructions; the will continues to reflect the testator’s intentions; and at the time of execution, the testator is capable of understanding, and does understand, that he is executing a will for which he has given instructions”.

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