The recently decided appeal in Burns v Burns [2016] EWCA Civ 37 bears a resemblance to my successful 2015 case McCabe v McCabe.

In both cases, the will of an elderly testatrix was challenged. In McCabe the Judge found that there was good evidence of testamentary capacity to uphold the will because the testatrix had seen a doctor on the day she signed it, and had given coherent instructions to her solicitor who met with her alone.  

In Burns the testatrix executed her will in July 2005. She had given instructions for her will in late 2004. She saw a doctor in October 2003 and again in May 2005. The doctor carried out mini-mental state examinations (MMSE), commonly used to test capacity in elderly patients. The doctor found that she was "poorly orientated as to where she was in time and place, had poor recall ... and ... had problems with analysis and simple task planning", but the trial Judge concluded that in the “crucial parts of her life" the testatrix had capacity to determine the issues that mattered to her, including who she left her estate to. The trial judge upheld the will and the grandchildren of the testatrix appealed the decision.

The appeal judge agreed with the trial judge and dismissed the appeal. The court had to look at the testatrix’s capacity when she gave instructions for the will in late 2004 (Parker v Felgate followed). The court found that she understood, in late 2004, that she was asking her solicitor to make a will. Though the solicitor had not complied with the “golden rule” in July 2005 when he met with her to sign it, he was an experienced solicitor and would have been alerted to any serious questions of her capacity. Further, the testatrix understood that the document she was signing in July 2005 was the will she had given instructions for in late 2004.

In McCabe and Burns the capacity tests carried out by the doctors and lawyers were not perfect, but were extremely persuasive. In McCabe the doctor’s MMSE scoring method was challenged. And Mrs McCabe’s solicitor did not strictly follow the golden rule because he did not instruct the doctor about the legal test of capacity set out in Banks v Goodfellow. In Burns the MMSE scores had not been obtained to test testamentary capacity, but rather as part of a social services care assessment. And the solicitor had not referred the testatrix to the doctor again in July 2005 when she signed the will.

However, in both cases the courts upheld the wills. MMSE testing and compliance with the “golden rule” are not components of capacity. They are guidance only. The cases show that lapses in best practice by experienced professionals are unlikely to be enough to interfere with the fundamental principle of testamentary freedom or provide the very strong evidence that is required to rebut the presumption of capacity. The opinion of an experienced solicitor or doctor should not be treated lightly by one attempting to challenge a will.