Testamentary capacity and the effects of medication
In the recent case of White v Philips  EWHC 386 (Ch), the High Court had to consider the effects of medication on a Testator’s testamentary capacity
As we’ve mentioned before, one of the grounds for challenging a will is to argue that the Testator, the person making the will, did not have the necessary capacity to do so. In many cases, the challenge will be made in respect of the testator’s deteriorating mental condition – often accompanied with a diagnosis, or at least a suspicion, of Alzheimers, some other form of dementia or evidence of failing memory and confusion. Another possibility is to argue that the Testator’s testamentary capacity has been impacted through medication.
The facts in White v Philips
Mr Raymond White and his wife Linda married in 1988. They had no children as a couple but each had 3 children from previous relationships. They owned a house as joint tenants. Mr White was diagnosed with terminal cancer in July 2009. From around April 2010 his relationship with his wife deteriorated sharply. Mr White left the house to live with his daughter, the defendant, on 15th May 2010. Whilst in hospital, on 28th May 2010, Mr White gave instructions for his will, including the severance of the joint tenancy so he could leave his share of the house to his daughter, the defendant, although his wife was to be able to reside in the house until her death or she began cohabiting with someone else. The will was executed on 4th June and Mr White passed away on 22 July 2010.
Mrs White brought the claim, challenging the will on the grounds that her husband lacked testamentary capacity as a result of the medication he was taking. Mr White’s daughters, argued that it was as the result of Mrs White’s abusive behaviour towards Mr White. Having heard evidence from a number of people, including expert psychiatric witnesses for both claimant and defendant, the judge found
- There was sufficient concern about the Testator’s capacity to shift the burden of proof on to the defendant to prove that the Testator did indeed have the necessary testamentary capacity.
- However, in the judge’s decision, the defendant was able to prove that the testator did have the requisite capacity both when he gave instructions and when he executed the will, in accordance with the 4 stage test in Banks v Goodfellow
- Finally, the judge concluded that even if there was some ‘disturbance of the mind’, the contents of the will demonstrated that it was not enough to “…poison his affections or prevent his sense of right or … otherwise … influence Mr White in the distribution of his estate.” (paragraph 68 of the decision)
Shifting the burden of proof
There was no suggestion that Mr White’s will had not been properly executed or was irrational on the face of it, so it was up to Mrs White to raise real doubts as her husband’s testamentary capacity as the result of the medication he was taking, in order to shift the burden of proof onto the defendant daughter to show that he did in fact have capacity. Shifting the burden of proof where the will appears to be properly executed is not straightforward. As the court said in Hawes v Burgess “… if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed”.
In this case, there was enough evidence for the judge to find that there was ‘real doubt’ over the Testator’s mental capacity when he gave instructions and when he executed the will. The burden of proof shifted, but the daughter was able to show that the test in Banks v Goodfellow was satisfied. The Testator had capacity and the will should stand. However, in the face of more compelling evidence about the effects of the drugs a Testator was taking, a judge could well have decided differently.
If you have any concerns about the capacity of a Testator and the contents of his or her will, get in touch. We regularly help people who have been disappointed by a will and take legal action to challenge it.