Can Someone With No or Insufficient Mental Capacity Make a Valid Will?

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether an individual with no or insufficient mental capacity can make a valid Will

What degree of mental capacity is required to make a valid Will?

This is very often the key issue in Will dispute and Will contest claims, in particular in relation to elderly relatives, many of whom, seem particularly keen to rewrite their Wills in the last phase of their lives. One is often told that such and such (relative) was certainly confused and/or may have been suffering from dementia, only to find that Solicitors who prepared and arranged the execution of the Will under consideration, found that he/she had sufficient legal testamentary capacity to make a valid Will. Whilst the potential claimant in the Will dispute and/or Will contest claim often puts this apparent discrepancy down to dishonesty on the part of the legal professional; what they often don’t understand is that the degree of competency necessary to make a valid last Will and testament is actually relatively limited so that, for example, an individual with a mild degree of cognitive impairment could, depending on the circumstances, make a valid Will.

We provide information about the actual capacity test in a number of blogs, one of which is as follows:

The existing capacity test laid down in the very old case of Banks v Goodfellow QBD 1870

This has been upheld in a number of recent decisions, notwithstanding the introduction of the Mental Capacity Act in 2005. It was further considered recently in John Keith Clitheroe v Susan Jane Bond 2021 EWHC 1102 (Ch), by Mrs Justice Falk:

She found that the Mental Capacity Act 2005 had not in fact overridden the established test in Banks:

  1. Mr Sachdeva alternatively submitted that, as a decision of the High Court, I am not strictly bound by Banks, and that whilst the test has been considered by the Court of Appeal there is no decision that binds this court to apply it. He submitted that, even if the Banks test has not been overridden by the MCA, the only rational course for the common law is to adopt the MCA approach.
  2. I disagree. The Banks test is very well settled and has proved sufficiently flexible to take account of developments, in particular developments in medical understanding. Key v Key provides an illustration of this. Banks was also a decision of the full court, on appeal from a trial by jury, and was decided before the Court of Appeal was established in 1875. I received no submissions about the effect of those features on its status. Further, as explained in James v James at [86] the basic test was not new when Banks was decided, there being case law going back for the best part of three centuries beforehand, case law which was also not the subject of submissions to me. I have also so far identified six relatively recent Court of Appeal decisions in which it has been considered, namely Sharp v Adam, Hoff v Atherton [2004] EWCA Civ 1554, Perrins v Holland [2011] Ch 270, Simon v Byford [2014] EWCA Civ 280, Hawes v Burgess and Burns v Burns [2016] EWCA Civ 37. I note that in both Hawes v Burgess and Burns v Burns the testators died after the MCA came into force. Finally, I note that in Sharp v Adam some doubt was expressed at [82] about whether the Court of Appeal would have been able to depart from Banks. In my view I should certainly not attempt it.
  3. In summary, the Banks test has not been overridden by the MCA. Further, there is no sufficiently good reason to depart from well-established case law, and I also have significant doubt as to whether it would be possible for this court to do so even if it were so minded.

What happens in Will dispute and Will contest cases where the person making the Will lacks capacity on the date he actually executes it

What we are considering here is a scenario where a person might execute a Will when he/she has insufficient capacity which was actually made by a legal professional following instructions from that same person given previously and at a time when he/she had capacity.
We can provide an example from a recent case of our own. We acted for two children of the deceased who provided instructions to make a Will in a particular form some 3 months before his death and which was subsequently executed (signed in front of two witnesses) only a day or so before he passed away. Naturally our clients were contesting the legal validity of the Will on the basis (amongst other contentions) that their father didn’t have sufficient mental capacity to make his Will (which we call “legal testamentary capacity”) when he signed it in front of two witnesses.
The defence was as follows; he had capacity when he provided his instructions to the legal professional some 3 months before and the Will was drafted to accord with those instructions so it didn’t matter that his mental capacity was diminished when he eventually signed it a few days before he died. We had some difficulty with the above, not least because:
• The medical records appeared to indicate he was unconscious as did one of the Will witnesses (who subsequently retracted her evidence on this point)
• The Will appeared to differ in a number of key respects from that which he originally instructed the legal professional to draft
• He didn’t sign it (not surprisingly as he seemed to be unconscious); rather it was signed on his behalf.

It is possible to make a valid Will without sufficient mental capacity in law

Notwithstanding the matters we mention above in relation to our own recent case, it is recognised law that an individual can make a valid Will without sufficient capacity – provided it accords with the instructions he/she provided previously when he/she had capacity and his/her testamentary wishes remained the same. This is often referred to as the rule in Parker v Felgate (1883) 8 PD 171. It was upheld by the Court of Appeal in Perrins v Holland and others (2010) EWCA Civ 840 (see for example the following):

The Judgment confirms the principles of Parker v Felgate as per the following:

  1. Miss Reed submitted, however, that even if Parker v Felgate is good law, it is necessary for the testator to have given settled instructions in relation to his property at a time when he had testamentary capacity and that Robert had not done so in the present case, as evidenced by the fact that following his receipt of the draft will Anne told his solicitors that there were some matters that were not clear or satisfactory and by his failure to take any further steps in relation to the execution of the will for over a year. Her argument, which was based on the third of the three situations envisaged by Sir James Hannen in Parker v Felgate, was that in the absence of settled instructions one cannot be satisfied that the will as executed reflected the deceased’s intentions.
  2. In my view that overlooks the fact that in order to bring the case within the principles applied in Parker v Felgate it is necessary to show that the will as executed conforms to the instructions given to the draftsman and that the deceased understood that to be the case. In order to be able to invoke the principle, therefore, it must be possible to establish the testator’s original intentions in a form sufficiently certain to be capable of being embodied in a draft and of being compared with the document which is said to carry them into effect. Provided the deceased was capable at the time of execution of understanding that he had given instructions and intended to implement them, changes of mind in the meantime do not matter. Moreover, in the first and second situations described by Sir James Hannen the testator is capable of understanding the contents of the will and approving them. In such cases any need for settled instructions at an earlier date is overtaken by the deceased’s intention to execute a will which contains the provisions read over or summarised to him.
  3. That, indeed, is what occurred in this case. The judge found that the will was summarised to Robert immediately before he executed it, that he was capable of understanding its provisions (which were simple and straightforward) and that he assented to them. In those circumstances, despite the long delay (of which he was very conscious) the judge was entitled to find that the will continued to represent Robert’s testamentary wishes, whether or not the instructions he had given some 15 months earlier could be described as settled and despite the lapse of time and the obvious opportunity for a change of mind. Miss Reed submitted that the judge was not entitled to find that Robert knew and approved the contents of the will because by that time he no longer had testamentary capacity, that being necessary in order to understand and approve the will. However, for the reasons given earlier, I am unable to accept that submission.
  4. In my view the judge’s findings are not open to challenge and in the light of them he was right to pronounce in favour of the will, applying the principles in Parker v Felgate. For these reasons I too would dismiss the appeal.
    Lord Justice Jackson
  5. I agree that this appeal should be dismissed for the reasons stated by the Chancellor.

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