If you make your will while under a mistake, will a testamentary slip up mean you do not have testamentary capacity?

Mistake and testamentary capacity

In the recent case of Ball v Ball the Claimants tried to argue that their mother’s will was invalid because she made a mistake – or rather that she made her will while under a mistaken belief, and lacked testamentary capacity as a result. The argument in this case failed – but it’s interesting to consider the question of whether a mistaken belief can invalidate a will.

A reminder about testamentary capacity

If the person making a will does not have ‘testamentary capacity’, the will is invalid. The test is set out in the case of Banks v Goodfellow. When making a will, the individual must

  • Understand the nature of making a will and the effect of doing so
  • Understand the extent of his (or her) property that his will covers
  • Understand claims that he should give effect to (those people – dependants – who should ordinarily be included in the will)
  • Not be suffering from any ‘disorder of the mind’ which has an impact on how his will is written

There are a number of safeguards that should be put in place by the professional will writer drawing up the will to check that their client does, in fact, have testamentary capacity.

Can a mistaken belief affect capacity?

There have been some cases in which a Testator or Testatrix has formed incorrect beliefs, mistaken beliefs about members of his or her family, and gone on to leave them out of the will. In Walters v Smee  [2008] EWHC 2029 (Ch) the Testatrix, Annie Latimer, died on 24th November 2004 leaving everything to her friends, Mr & Mrs Smee, in a will dated 21st October 2004. An earlier will dating back to 1998 had left a small legacy to a distant relative and had then left everything to Mr & Mrs Walters, the Claimants, who had been caring for Mrs Latimer for several years.

The judge in Walters v Smee was satisfied that the first 3 elements of the test in Banks v Goodfellow were satisfied. The question of testamentary capacity hinged on whether Mrs Latimer was suffering from a disorder of the mind which had an impact on how the will was written. In his own words, he had to be satisfied that “No disorder of the mind should have poisoned her affections, perverted her sense of right or prevented the exercise of her natural faculties; and no insane delusion should have influenced her will or poisoned her mind.” [para 7].

There was evidence that Mrs Latimer had, during the last months of her life, become confused, forgetful and easily distressed. Although it was not diagnosed, the judge accepted medical evidence that she was suffering from dementia, and the mistaken beliefs she had formed in respect of Mr Walters were as the result of the dementia.

Mistake symptomatic of underlying condition

Another case, which the judge in the Ball case came across after the first day of the Ball hearing is also relevant – that of Re Belliss (1929) 141 LT 245. A woman made a will leaving more to one daughter on the other on the basis that during her life she had given more assistance to the second daughter and wished to even things out. In fact, she was mistaken as to the extent of what she had done in respect of the second daughter while she was alive. The result was that the daughter provided for more generously in the will came out of it significantly better off.

In considering the arguments, the judge in Re Bellis made an important point

Mere mistake of fact as to persons or property would not stand in the way of probate

Essentially, the mistake by the woman would not be enough to challenge her capacity to make a will. The real question was whether there was an underlying condition that is evidenced by the mistake.

So, in the case of Walters v Smee – the mistaken beliefs Mrs Latimer had developed about Mr Walters leading to her changing her will were symptomatic of the undiagnosed dementia she was suffering from at the time she made her will.

It’s clear from these cases that a ‘mistaken belief’ won’t undermine someone’s capacity to make a will unless there is evidence of some other condition – insane delusion (mentioned in the Re Bellis case) or dementia, for example. Likewise, in an undue influence case, it would be necessary to show that the person making the will was operating under mistaken beliefs that had been created by the person accused of exercising undue influence.

If you have any questions about the validity of a will, get in touch. We are specialist lawyers handling all kinds of inheritance disputes and can usually do so under a ‘no win no fee arrangement’.