In our previous blog, we discussed the Banks v Goodfellow [1870] LR 5 QB 549 test for testamentary capacity. Any Will executed by a testator who failed to satisfy the test set out in the Banks case would be considered invalid.
An exception to this rule is that a Will can be valid if the testator had capacity when he/she gave instructions for the Will even if he/she lost capacity by the time the Will was executed (Parker v Felgate [1883] 8 PD 171). This exception did not apply to the case of Biria v Biria and Others [2024] EWHC 121 (Ch), especially given that the lawyer who prepared the Will declined to answer a Larke v Nugus request, which was discussed in our previous blog, and he did not appear to be taking direct instructions from the testator but via his two children.
Biria v Biria and Others [2024] EWHC 121 (Ch)
Background
In May 2020, the testator purportedly executed a Will, which was prepared by an American lawyer, at the age of 95. At that time, there were already proceedings in the Court of Protection seeking an assessment of the testator’s capacity to manage his own affairs and expressing a concern that the testator was exploited by his two children.
In April 2020, the Court of Protection made a declaration that there was a reason to believe that the testator lacked the capacity to consent to an assessment of his capacity to manage his own affairs and directed his two children to use their best endeavours to make him available for an assessment of his capacity. A psychiatrist concluded that the testator lacked the capacity to manage his property and affairs and that he was unable to understand, retain, use, or weigh up relevant information.
The testator passed away in 2022. The Claimant, who was the testator’s son and was left out in the Will, contested the Will arguing that:
(1) the testator did not have the testamentary capacity to make a valid Will in 2020;
(2) two of his siblings had exerted undue influence over the testator to leave the Claimant out of the Will; and
(3) the two siblings poisoned the testator’s mind resulting in him falsely believing that the Claimant was a bad and dangerous person in his later years.
Decision
None of the Defendants engaged with the legal process or attended trial, which was fairly exceptional, so the result was based solely on the Claimant’s evidence.
The Court found that:
(1) the testator did not have the necessary testamentary capacity to understand and approve the contents of the Will;
(2) the two siblings’ behaviour amounted to actual undue influence and the Will was orchestrated and controlled by them; and
(3) there was no fraudulent calumny as the allegations were created in the head by the testator who was already suffering from dementia.
Comment
It was not surprising that, with the result of the Court of Protection proceedings, the Court reached the conclusion above. This case acts as a reminder that:
1. Even though a home-made Will can still be valid due to all of the legal requirements being fulfilled, when it comes to a large and complicated estate like the one in the case of Biria v Biria and Others [2024] EWHC 121 (Ch), it is always better to instruct a solicitor who practises in England and Wales to prepare the Will;
2. In order to avoid any dispute, instructions should always be taken from the testator directly so that his mental capacity can be observed by the Will writer; and
3. If a testator is mentally incapable of giving instructions to make a valid Will, a statutory Will, which was discussed in our previous blog, may be made on his/her behalf under the Mental Capacity Act 2005.
How can Nelsons help
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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