Testamentary Capacity In Will Disputes

A Will validity claim concerning an elderly testator has recently made the news, but this time perhaps with a surprising outcome.

Burns v Burns [2016]

Background

This case concerned the Will of Eva Burns and was a dispute between her two sons, Anthony and Colin Burns. This case would eventually make it to the Court of Appeal and amply demonstrates some of the difficulties inherent in any Will validity claim, when each side seeks to persuade the Court whether or not the deceased had testamentary capacity.

Eva, a widow, died in 2010. She made a Will in 2003 when she was 83 which left her share of her house, which she co-owned with Colin, to Anthony. A later Will was prepared in 2005 which divided her estate equally between Colin and Anthony.

Anthony alleged the 2005 Will was invalid on the grounds that Eva did not have testamentary capacity at the time of its making and did not know or approve of its contents, so the 2003 Will should stand in its place.

Testamentary capacity

For claims concerning testamentary capacity, the long-established test in Banks v Goodfellow [1870] applies, so the Court had to consider:

• Did Eva understand the nature of her act (of making a Will) and its effects?
• Did Eva understand the extent of the property in her estate?
• Was Eva able to comprehend and appreciate the claims to which she ought to give effect?
• Was Eva free of a disorder of her mind that would poison her affections, pervert her sense of right or her Will in disposing of her property?

In assessing whether Eva had testamentary capacity, both sides sought to rely upon family witnesses.  However, the judge at the first trial decided those witnesses were lacking in impartiality and objectivity and therefore placed little weight on their evidence.

But Anthony had what he thought was a series of aces up his sleeve, namely contemporaneous evidence in the form of medical notes concerning Eva’s mental capacity at the material time.

Medical tests

From 2003 onwards, Eva had undergone a number of Mini-Mental State Examinations (MMSE) carried out by medical professionals to assess among other things orientation and language. There were also further medical assessments.

Eva did not score particularly highly in the MMSEs, which it was argued clearly placed her testamentary capacity in doubt, and in 2004 began to attend a daycare centre for those suffering from dementia and failing memory.

At the end of 2004, Eva gave instructions by letter to a solicitor for her new Will, after collecting the original 2003 Will from her previous solicitors.

The solicitor who would draft the 2005 Will received criticism from the judge given that he had not taken the opportunity to obtain instructions directly from Eva at a face-to-face meeting but rather from the letter she had written to him.  The only opportunity he had to assess her testamentary capacity was the first and only time he met her when she came into execute it, accompanied by Colin in July 2005.

Furthermore, the solicitor did not appear to appreciate there is a ‘golden rule’ that when an elderly person is giving instructions for a Will, the solicitor must carefully consider the testamentary capacity and if necessary obtain appropriate medical guidance.

Although he went through the 2005 Will and read it to her prior to execution, the solicitor had no idea about the 2003 Will and therefore could not consequently make any enquiry as to the proposed changes.

Surprising judgment

Given the failings of the solicitor and the helpful contemporaneous medical evidence in Anthony’s possession, it was surprising the Judge found that the 2005 Will was nevertheless valid.

The Judge took the view the MMSEs and other medical assessments were of limited value as they did not have at their core the purpose of establishing whether or not Eva had testamentary capacity.  These assessments were designed to assess her for ongoing care needs only.  The written instructions from Eva to her solicitor were coherent and reasonable and she had taken steps to obtain her previous 2003 Will.

The Judge also felt the failings of the solicitor were on balance not enough to disturb his general finding that Eva had testamentary capacity.  Although she may not have had testamentary capacity at the time she executed the Will, she did when she gave written instructions some months earlier and appreciated at the time of execution the 2005 Will embodied her previous instructions. Alternatively, the Judge found she did have the testamentary capacity in July 2005.

Court of Appeal

Surprised and unhappy, Anthony headed to the Court of the Appeal, arguing the Judge below did not give due weight to the medical reports and failed to appreciate the failings of the solicitor.

Alas for him, the Court of Appeal did not come to Anthony’s rescue.  It found that whereas there had been some doubt as to the Judge’s conclusions, particularly regarding the weight of the medical evidence and the conduct of the solicitor, he was on balance entitled to make the findings he did.  It could not be said the first Judge’s findings of fact were unjustified.

This case underlines the importance of the role of the solicitor when it comes to Will making, and the fundamental duty owed by the solicitor to carry out a proper investigation and assessment and to record those findings carefully.

Medical records unconnected with the assessment of testamentary capacity might only go so far and a failing memory may not be fatal to its validity at the time of the execution of a Will.

Comment

The case of Burns v Burns provides a telling reminder of some of the difficulties of Will challenges. Here, Anthony, backed by significant objective evidence in his favour and a drafting solicitor who failed in his duties to adhere to the golden rule, lost in the first instance and on appeal. It highlights the attractiveness of avoiding this litigation risk by using alternative methods to resolve the dispute, most notably mediation.

There has been significant criticism of the trial Judge, and the decision at first instance has surprised many practitioners. From the evidence discussed, Anthony would certainly have been entitled to feel confident in his case.

The issue in the appeal was whether the Court of Appeal test would be too high a bar for Anthony’s legal team to overcome, which did of course prove the case.

Whilst the reasoning and conclusions of the trial Judge may have been flawed, it was not so bad as to be unjustifiable.