Assessing after their death whether an elderly testator had the capacity to make a Will is an evidential minefield.
It often falls to the Court to determine the matter on the strength and relevance of the sometimes partisan recollections of family members, or expert medical evidence after the event. These issues loomed large in the case of Simon v Byford, which in 2014 ended up in the Court of Appeal.
Simon v Byford
Case background
Constance Simon’s 88th birthday party in December 2005 will be remembered less for cake and champagne than the impromptu discussion about her Will and the resulting fall out.
Of her three surviving children, two were present at the party but notably one was not, Robert, who ran the family business and who was close to Mrs Simon. At the end of the party the subject of inheritance tax came up.
Mrs Simon’s assets were worth in excess of £2 million, which consisted of £1.75 million home in London, a flat worth £262,000, shares and savings in excess of £50,000 and crucially, 16 shares in the family company of R W Simon Limited, which she had retained to prevent a deadlock between her children who were the other shareholders and directors.
By a previous 1994 Will, the flat and the shares were bequeathed to Robert and everything else divided equally between the children.
The 2015 home-made Will was duly executed which, subject to a gift to her housekeeper, divided her Estate equally between the three surviving children and the child of the deceased fourth child.
The outcome was Robert would lose the flat and control of the company.
Legal proceedings
When he found out, Robert subsequently brought a claim arguing Mrs Simon’s Will was invalid because she was at the time of its making suffering from deteriorating mental health and had not satisfied the long established legal test for making a valid Will set down in Banks v Goodfellow [1870].
That test states the testator must understand:
- The nature of his act and its effects;
- The extent of the property of which he is disposing; and
- Shall be able to comprehend and appreciate the claims to which he ought to give effect, and… that no disorder of mind shall poison his affections, pervert his sense of right, or 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.
It was common ground from 2001 that Mrs Simon’s mental health deteriorated. The experts for the parties called before the first Judge agreed that by December 2005, when the disputed Will was made, Mrs Simon was suffering from mild to moderate dementia, to such a degree as to put her testamentary capacity in doubt.
But neither expert had examined her during her lifetime and neither was able to say with certainty whether she did or did not have testamentary capacity at that date.
The Judge therefore had to fall back on his own evaluation of those who knew her. He found that Mrs Simon did have capacity, after considering in detail the testimony of those who were present at the party when the discussion of the Will came up.
Appeal
Robert appealed and focussed on the second and third tests in Banks v Goodfellow:
- Did Mrs Simon understand the extent of the property of which she is disposing;
- Was she able to comprehend and appreciate the claims to which she ought to give effect.
Robert also raised the issue of whether the Judge set too low the requirements for Mrs Simon’s knowledge and approval of the Will.
It was submitted on behalf of Robert that Mrs Simon had not revisited her earlier reasoning or given any thought to the consequences of any equal division (particularly concerning the shareholding in R W Simon Limited) when she made her final Will, and this meant that she could not have had the requisite understanding of her property.
Alas for Robert, the Court of Appeal determined a testator does not have to recall the extent of their property but rather has the capacity to understand, and this was not to be equated with a test of memory. Forgetting does not mean a failure to comprehend.
Furthermore, the testator did not have to understand the consequences of their decision. Mrs Simon was capable of accessing and understanding the information but had chosen not to do so. It also held that there was no authority that required a testator to have an understanding of the Will’s consequences.
Yet again, a home-made Will was at the heart of this dispute. Any confusion or doubt as to her capacity would most likely have been avoided if Mrs Simon had consulted a solicitor. That way, the solicitor not only would have discussed the provisions of the previous Will and put into context the proposed changes and brought them clearly to Mrs Simon’s attention, they would also have made an independent assessment of her capacity.
It was clearly a matter of convenience that Mrs Simon insisted the home-made Will was prepared there and then despite the efforts of those present to persuade her to go and see a solicitor. But good advice is not always followed.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.