Medical evidence is extremely important in Will challenge – testamentary capacity – cases. They can support/deny capacity in the deceased, but are not conclusive as facts and quality of the medical evidence are relevant too. In the recent case, the Court decided that the medical evidence on the deceased’s capacity, concluding that the deceased had capacity prior to execution of the Will was not sufficient because the medical practitioner did not follow the right procedure and there were doubts as to why she was chosen and what instructions were given to her at the time.
Background
The deceased passed away on 25 October 2014 with a Will dated 11 January 2013 (2013 Will). The 1st Defendant claimed that the 2013 Will was invalid due to the deceased’s lack of capacity, knowledge, and approval, and was unduly influenced by the Claimant. The Claimant argued that the deceased had testamentary capacity based on expert reports and the involvement of the solicitors in executing the 2013 Will. The 2nd Defendant was the executor appointed in the 2013 Will and remained neutral throughout the proceedings.
Decision
The Court found the expert evidence from both sides conclusive that the deceased lacked testamentary capacity when making the 2013 Will. The Court emphasised that the test of understanding competing claims was crucial in determining testamentary capacity:
‘… in order to constitute a sound disposing mind, [when executing the will] a testator must [be]… capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.’
The Court:
- Pronounced against the validity of the 2013 Will due to the deceased’s lack of testamentary capacity;
- Ordered the Claimant to pay the costs of the parties on the standard basis, but no order for costs against the Claimant for the period of reasonable investigation; and
- Ordered the 2nd Defendant to pay 25% of the costs of other parties for the application hearing.
Comment
In terms of costs, the starting point/general rule is that costs follow the event (i.e., loser pays a proportion of the winner’s costs). The Court in this case highlighted the two exceptions to this in probate cases:
- Whether the litigation was caused by the testator or a beneficiary. If so, the Court may order the unsuccessful party’s costs to be ordered out of the estate; and
- Whether the circumstances, including the knowledge and means of knowledge of the opposing party, led reasonably to an investigation of the matter. If so, the Court may make no order as to costs.
When considering the above exceptions, the Court will take the facts of the case into account. The unsuccessful litigant should be prepared to set out a very strong case on the facts if he/she is to get his/her costs out of the estate because the Court is aware of the consequences of making this order – there is danger of encouraging litigation and discouraging the settlement of doubtful claims at an early stage.
How can we 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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