Will disputes on the rise - part 2

We listed the five grounds for challenging a will, namely: 

1. the lack of proper execution
2. the lack of mental capacity
3. the lack of proper understanding and approval of the content of the will
4. undue influence
5. forgery and fraud

and discussed the first ground in more detail. This month we will cover the next two grounds and how to protect against a challenge on these grounds.

Challenging a will on the grounds of the lack of mental capacity

A person who wants to challenge a will on this ground must raise "a real suspicion" or a "real doubt" that the deceased lacked capacity. If they can do this, the burden of proof (i.e. proving that the testator did have capacity) passes on to those who are seeking to propound the will (the legal term for submitting a will for probate). They will need to establish that the deceased did have capacity by whatever evidence they can muster. 

As can be imagined, there are numerous cases where a will has been challenged on this ground, often combined with a claim of undue influence. The key question in these cases is how the mental capacity is to be established.

The traditional test for such a case is that laid down in Banks v Goodfellow (1870) LR 5 QB 549 as follows:

"It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made." 

This test has been applied consistently in such cases well into the 21^st century, however with the introduction of the Mental Capacity Act 2005 (MCA) things became somewhat blurred. Indeed, there was a view that for wills made from 1 April 2007 (when the MCA came into effect), the MCA test superseded the test laid down in Banks v Goodfellow.  

The MCA introduced new provisions for the law of mental capacity in certain situations. 

Under the MCA, the initial presumption is that the person has capacity. A person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain. This is the test applied by the Court of Protection when determining capacity of a living patient. 

There were a number of cases involving will challenges on the grounds of the lack of capacity where judgments were based on one or the other principle. Some decisions claimed that the MCA tests superseded the common law test and others that MCA merely supplemented it. 

It was said that "It cannot be regarded as satisfactory that the Court of Protection applies a different test as to whether someone has testamentary capacity during [his] lifetime from the test applied by the court when looking back. Logically the test ought to be the “same”. It turned out that logic is not enough.

The most useful guidance on this point can be gleamed from the judgment in James v James, [2018] EWHC 43 (Ch).  The judge concluded that "the individual provisions of the MCA are concerned with assessing the mental capacity of living persons, and the manner of making decisions thereafter on their behalf when, judged by [its] terms, they lack such capacity. It is solely in pursuing that purpose that it deals with (amongst other things) the rising of the power of the court to make a will for a living person who has been found not to possess capacity. It does not follow from this that the test for judging capacity retrospectively in relation to a will already made must also be governed by the same principles. The two things are different, and the latter does not, obviously fall within the scope of the [MCA] as “expressed through its provisions". Indeed the 2005 Act sets out the test for mental capacity "for the purposes of this Act"

The judge  added that: If it wished to, Parliament could have said clearly that the Act was to apply to retrospective decisions on capacity too, but it did not ....Whilst it is a complication to have two tests for mental capacity in making wills, one prospective and the other retrospective, it is a complication created by the decision of Parliament to legislate as it has, a decision that the courts must respect.

So there you have it, the "old" Banks v Goodfellow test, albeit influenced over the years by contemporary attitudes, remains in force. 

So, how can the testator and the will beneficiaries protect themselves from challenges on the grounds of lack of mental capacity?  This is where the so called "Golden Rule" comes into play. 

The Golden Rule was first coined by Lord Templeman in the landmark case of Kenward v Adams [1975], where he stated:

'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…: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself with the capacity and understanding of the testator, and records and preserves his explanation and finding'.

Whilst the Golden Rule is a 'rule of solicitors' good practice' rather than of law, it is accepted that, if observed, it has the benefit of making it more difficult for the will to be challenged in due course on grounds of lack of testamentary capacity. The rule is also generally followed by will writers. Indeed, even where no solicitor or other professional is involved, although there is much to be said against  DIY wills, any testator would be well advised to at least obtain a letter from their GP confirming his/her capacity to make a will. When requesting such a letter, the GP should be told of the purpose of the letter. 

Challenging a will on the grounds of the lack of understanding and approval

Here, again, the person who wants to challenge a will must raise the court’s suspicion that the testator lacked understanding and approval. Then it will be up to those propounding the will   to prove that the deceased fully understood how it operated and approved its contents.

Often such a claim will be linked, or be an alternative, to a challenge on the grounds of capacity, however it would also include cases where the deceased was hard of hearing or visually impaired or was frail or had low level of literacy, as in the case discussed immediately below.

The case of Reeves v Drew & Others, [2022] EWHC 153 (Ch) which concerned a challenge to the validity of a will made by successful businessman Kevin Reeves, on the grounds of want of knowledge and approval and undue influence.

This involved a feud between the children and grandchildren of Mr Reeves and two wills that he had made. His estate was valued at around £100 million. According to the terms of the first will made in 2012, 80% of his residuary estate was to be divided among his three children in equal shares. His two grandchildren were to receive the remaining 20% of the estate in equal shares. Mr Reeves made another will in 2014 under which 80% of his residuary estate was to pass to his daughter, Louise, and the remaining 20% to his other daughter, thereby completely excluding his son Bill and his two grandchildren as beneficiaries, who challenged the 2014 will.

The court had to determine; (i) whether the deceased knew and approved the contents of the 2014 will; and (ii) whether the deceased executed the 2014 will as a result of undue influence, exercised by Louise.

Mr Reeves's literacy was a key issue in the proceedings and the judge considered the evidence from 49  witnesses to conclude that the deceased was illiterate. This was crucial to the judge’s findings as it related to whether the deceased knew and approved of the contents of the 2014 will. Interestingly, there was a solicitor involved in the preparation of the 2014 will, which just shows that even when a solicitor is involved, this does not prove that the will was prepared and executed correctly. This particular solicitor was criticised by the judge in the case stating that “the preparation of the 2014 will was not merely incompetent; it was reckless and quite possibly dishonest.”

The judge concluded that it was not proved that the deceased knew and approved the contents of the 2014 will, despite being of sound mind and the will having been duly executed. The 2014 will was therefore found to be invalid. In the judge’s view, the "dramatic change to the deceased’s testamentary intentions, together with the deep involvement of Louise with the solicitor tasked with implementing that change in Louise’s favour are circumstances that do very much excite the vigilance and suspicion of the court”.

Unusually, the judge also found that even though “one might have thought that the involvement of a solicitor would strengthen the presumption of validity”, in this case it was “quite the reverse”.

Another recent  "knowledge and approval" case is Skillet v Skillet [2022]EWHC 233(Ch)   although in this case "knowledge"  referred to knowing the value of a particular legacy, rather than the actual will provision. In this case, the testator's will made in 2011 left a smallholding worth £50,000 to one child and cash savings of £50,000 to each of the other three children, so that the inheritances would be equal in value. However,  the time of the testator's death in 2017, the smallholding was worth £110,000. One of the sons brought a claim for lack of knowledge and approval, on the basis that his father did not realise at the time of execution that the land's value was likely to increase before death. The judge found that the "lack of mathematical equality at the time of death did not undermine the rationality of the provisions of the Will": the testator knew what was in his Will and had approved it.

If the stated wish of the testator was, indeed,  to benefit his children equally, then one may perhaps respectfully disagree with the judgement, although one could also say that the testator should have been aware of the rising value of the smallholding and should have updated his will.  Certainly a lesson here for us all  to ensure that wills are reviewed periodically and kept up to date. 

Comment  

The risk of a will being contested on the above-mentioned grounds will be reduced if the "Golden Rule" is followed and, for all will challenges, by the testator giving reasons for the way they have made their will. Also by regularly reviewing their will provisions and updating as necessary. The cases mentioned above could be a good starting point to a conversation with a client about their will and, possibly, about their estate planning generally.

As for the last two grounds for challenging a will, as it happens, recently there have been several interesting cases involving will disputes on the grounds of forgery and/or fraud, with at least one surprising judgment. We will cover this topic in the final article in this series next month.