Leonard v Leonard [2024] 321 (ChD)
Background
Dr Jack Leonard (Jack) signed a Will in October 2015 at home without any professional supervision. He was 83 years of age and in July 2015 had been diagnosed with diffuse cerebrovascular disease with identified clear impairment of cognitive function and received a further diagnosis of vascular dementia in March 2016.
Jack had been a successful businessman, and his estate was reported to value at £5.4m.
Jack had 4 biological children (Claimants) and from his second marriage 2 stepchildren and 3 step grandchildren (Defendants, plus Margaret his second wife).
Jack had made an earlier Will in 2007 which benefitted his children and Margaret. The 2015 Will provided for Margaret and her family at the expense of his own children. The claimants maintained that this departure from the 2007 Will showed a marked deviation from his strong sense of moral responsibility towards his own children.
Jack’s estate was complex it contained two different properties, one with default beneficiaries and one with subject to a right to occupy, each with different beneficiaries, and a life interest trust of the residue with a power to apply capital to Margaret. It also contained three hotchpot provisions. It included the express exclusion and non-revocation of any previous Will relating to US and French assets.
Furthermore, the complexity of Jack’s situation was added to by the number of “moral claims” from members of his own family, including his children (in particular his son Andrew, who had been largely dependent upon him financially, including the provision of a home, for many years), Margaret, his sister-in-law, Marjorie, and her daughter, Susan.
Banks v Goodfellow
It is common ground that the Banks v Goodfellow test remains the correct legal test for assessing retrospective testamentary capacity.
A testator:
- shall understand the nature of the 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(iii), that no disorder of the mind shall poison his affections, pervert 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 the mind had been sound, would not have been made.
The judgement in Leonard
The judge gave a useful summary of the points to consider when assessing the arms of the Banks test. Below are the key points to be kept at the forefront of our minds.
1. Freedom of testamentary capacity will sometimes produce Wills that can be unexpected, inexplicable, and unfair. However, such Wills raise the question of whether the testator had the capacity to know and approve the terms of the Will.
2. The law does not presume that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity.
3. The question is, is the mind so unsound that the testator cannot understand what he is about to do /or is he unable to make a rational decision.
4. The Banks test concerns the ability or capacity to understand the matters identified in the specific circumstances. It does not require actual understanding or recollection and it is not a test of memory.
5. There is no need for the testator to be able to compile a mental inventory or valuation of all his assets disposed of by his Will, but merely to have “a general idea” of those assets.
6. A testator does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property.
7. There is no need for knowledge of the actual value of assets.
8. If there is evidence of actual understanding and recall, then that would be proof of requisite capacity.
9. If there is no such evidence, all the evidence must be considered for inferences to prove capacity. Relevant evidence may relate to the execution of the Will or prior or subsequent events.
10. The ability to make decisions is key, not just the ability to understand a given transaction, or a particular choice that has already been made, these are issues to be considered under “knowledge and approval”.
11. Reference to the terms of a previous Will may be helpful but any changes or enquiries about them will depend on the facts of the case.
12. A testator who forgets family names will not necessarily lack testamentary capacity,
13. A testator is not required to be able to recall the terms of a past Will, or the reasons why it provided as it did, providing he is capable of accessing that information if needed and understanding it if reminded.
14. The fact that a testator forgets a promise previously made about the disposition of his estate does not mean that he does not have capacity to appreciate moral claims on his estate.
15. There is no requirement that the testator should understand or remember the extent of anyone else’s property or the significance of his assets to other people.
Comment
The arms of the Banks test are not matters that are directly medical questions, but are matters for common sense judgment depending, upon an analysis of the entirety of the evidence, including, the complexity of the relevant Will.
The Court also gave a view on the importance of expert evidence in that whilst it can be useful, it was considered that placing too much weight on it should be done with caution.
This judgment is a brilliant analysis of the Banks test and is useful for practitioners and anyone finding themselves a party in a disputed and/or contested Will claim.
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