The Case

This case involved a gentleman (the deceased) who died in August 2012 aged 81. The deceased had been a successful businessman; but one who was reluctant to consider the wealth he was to leave behind until later in his life when his cognitive well-being had been in decline for some time.

The claimant was one of the deceased’s three children who inherited a farm, £200,000, the haulage business, vehicles and a license to use ‘Pennymore’ – a plot of land used to operate the haulage business. However, the claimant had been led to believe that he would inherit Pennymore outright which led him to challenge the Will on the grounds that his father lacked mental capacity.

The deceased had been diagnosed with moderate dementia with frontal lobe impairment in 2011 and the Will had been signed in September 2010, which was close to the time that the deceased had been assessed as being unable to make decisions about his health care, finances or where he lived.

The High Court’s conclusion

However, the High Court held that the deceased did have capacity to make his Will and that the common law test for assessing capacity should be the one set out in Banks v Goodfellow [1870], rather than the statutory test set out in the Mental Capacity Act 2005. In Banks v Goodfellow, the test provides that the testator (the person making the Will) should have understood:

  • The nature of entering into the Will and its effects
  • Any claims to which he ought to give effect (be aware of the people for whom he would usually be expected to provide for).
  • The extent of the property of which he was disposing (an understanding of the assets he owns)

In addition, Banks v Goodfellow requires that the testator has... “no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.

There has been speculation over the years as to whether the Mental Capacity Act replaced the common law test in Banks v Goodfellow and therefore the case of James v James is significant as it underpins the continued importance of the test.

Practical Measures

Legal practitioners like myself are regularly faced with the question of testamentary capacity. In some cases capacity is clear, some it is obviously absent and in others there can be uncertainty. In these cases, it is imperative for the legal practitioner to seek a full and detailed medical capacity report from a medical professional before the Will is signed and the report should cover all of the above points. Ideally, the medical professional should have a sound knowledge of assessing mental capacity and they should be familiar with the client. Unfortunately, these reports can often be quite expensive and can take some time to obtain which may be problematic if the client’s capacity is declining rapidly.

The Golden Rule

There is also a special rule known as the ‘Golden Rule’ which developed following the case of Kenward v Adams [1975]. In this case it was held that:

“In the case of an aged testator or a testator who has suffered a serious illness; there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a Will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding”.

This is not a legal rule, but a rule of good practice. And one that should be followed where the client is merely ‘aged’ or has suffered a serious illness.

Legal practitioners will regularly come into contact with clients who are well into their 80's and 90's, but have clear and concise instructions for their Will. It takes an experienced legal practitioner to explain to the client why such precautions need to be taken in determining capacity.

Conclusion

If you have not yet made your Will or you have one but it needs reviewing then please contact me on 01332 364436 or e-mail me at j.robinson@timms-law.com.

Don’t leave it too late,  or until capacity to become an issue!