It is to state the blindingly obvious that a testator must be mentally capable of making a will. The time for satisfying the test of capacity is the time of execution of the will. However, under the principle in Parker v Felgate (1883), it suffices if the testator had capacity at the time when he gave instructions for his will, provided that:
- it is prepared in accordance with his instructions; and
- at the time of its execution, he is capable of understanding, and does understand, that he is executing a will for which he had given instructions.
In Parker v Felgate, the testatrix had given instructions for her will in July 1882. In August, she fell into a coma, from which she could be roused to answer questions. She executed her will on 29 August. She neither remembered nor understood the instructions she had given, but she was capable of understanding, and did understand, that she was engaged in executing the will for which she had given instructions. Based on these findings, the court approved the will.
The modern case of Re Perrins concerned a challenge to a will of Robert Perrins by his son, David, on the ground that Robert lacked testamentary capacity.
In 1991, Robert was diagnosed as having multiple sclerosis. In 1994, he had made a will leaving his estate to David. The timetable of events was then as follows:
- On 5 April 2000, a legal executive with 40 years experience in dealing with wills and probate, attended upon Robert at his home. He had been asked to do so as Robert wanted to make a will and to execute an enduring power of attorney (EPA). Although communication was not easy, Robert was able to make his wishes clear: he wanted to leave his estate to Anne (whom he described as his carer) or, if she should predecease him, to David and Robert’s brother.
- On 12 April 2000, draft will and EPA sent to Robert.
- On 31 May 2000, a further copy of the draft will was sent out. Robert did not reply.
- On 29 June 2000, a home visit by another member of the Law firm raised issues about possible amendments to the draft Will.
- On 6 July 2000, further chaser was sent to Robert.
- On 25 June 2001, a letter was sent to Robert stating that it was assumed that he did not want to proceed with the will. This prompted a telephone call from Anne on the following day. A fresh copy of the will and EPA were sent out
- On 26 September (some 18 months later!)- The will was executed by Robert in the car park of the Solicitor’s office.
Robert died on 31 January 2003. His estate consisted mainly of his bungalow.
David challenged the will on the grounds of capacity. He submitted that its contents demonstrated a lack of capacity: it was accepted that there had been no estrangement between Robert and David and, accordingly, the latter submitted that it was irrational for his father to have left him nothing.
The relationship between Anne and Robert was a physical and loving one (and more than just “carer”).The only asset of any significance was the bungalow. In order to make any provision for David, the bungalow would have to have been sold. Given the nature of Robert’s relationship with Anne, it was not irrational for him to have wanted to provide her with a roof over her head. “On the contrary, the rationality of Robert’s dispositions is a pointer towards testamentary capacity at the time when he gave instructions”, said the judge.
Following Parker v Felgate, what is necessary is that the testator knows that he is making a will and believes that it is the will for which he has previously given instructions.
After assessing the evidence on capacity, Justice Lewison was satisfied that Robert had testamentary capacity on 5 April 2000, when he gave instructions for the will, but was not satisfied that he still had such capacity on 26 September 2001, when he executed the will. Therefore, but for the principle in Parker v Felgate, he would have pronounced against the will.
When he executed the will, Justice Lewison held that Robert understood that he was executing a will. Although he could not recall the instructions given in April 2000, he did find that:
- Robert had testamentary capacity when he gave instructions for the will;
- that the will reflected those instructions;
- that his instructions remained unchanged at the date the Will was executed; and
- that he knew and approved the contents of the will that he executed.
The Will was accordingly admitted to Probate, Anne inherited the Estate (and retained the roof over her head) and the son David took nothing
The lesson, if there is one to be learned, is to appreciate that medical conditions can offer a disgruntled beneficiary the opportunity to challenge a Will upon the grounds of lack of testamentary capacity. Excessive delays only help to play into the hand of a challenger. The emotional burden faced by people with serious long term illness’s and the pressure shouldered by careers cannot be over-stated. However, it is essential to prioritise the successful completion of legal documentation in order to ensure that clear wishes for the benefit of loved ones are fulfilled in a manner that cannot raise doubt or challenge. It really is a case of strike whilst the “iron is hot”. All too often the “to do list” is put to one side due to daily practical problems. We have all been there, but you could possibly “miss the boat” at your peril and be faced with the prospect of raising ancient case law to win the day,