In 2013, the courts have held in two different cases (both involving warring siblings contesting a deceased parent’s estate where one sibling had been cut out of the deceased parent’s last will) that there was insufficient evidence to declare a Will invalid on the ground that the testator lacked ‘testamentary capacity’. However, in both cases, the disputed Wills were declared invalid on the ground of ‘want of knowledge and approval’.

By way of background, a three part test for testamentary capacity was laid down in Banks v Goodfellow (1870), which sets out that a testator has capacity if (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property. Solicitors and Will writers should be asking the right questions of their clients when preparing Wills so that they can satisfy themselves that the test has been met.

Recent cases

The most high profile disputed Will case this year is Hawes v Burgess (2013), in which LJ Mummery said, in respect of testamentary capacity, that the court should be careful about accepting the evidence of a medical expert given after the event, where that expert did not meet or examine the testator. He also said that it had been a “very strong thing” for the trial judge to find that a testator did not have capacity to make a Will, when it had been prepared by an experienced and independent solicitor following a meeting with her, where that solicitor had read the Will back to her and considered (and had recorded in an attendance note) that she was capable of understanding the Will. He said that a Will so drafted by a solicitor “should only be set aside on the clearest evidence of lack of mental capacity”.

In spite of the conclusion that there was insufficient evidence that she lacked testamentary capacity, the Court of Appeal still held that the Will was invalid on the ground of ‘want of knowledge and approval’. The Court of Appeal considered all the circumstances, including (a) the testator had been close to the son that was cut out of the disputed Will until death; (b) the daughter seeking to rely on the disputed Will had played an instrumental role in the making of the Will; (c) the disputed Will was made at a time when these two siblings had fallen out; and (d) the solicitor did not send the testator a draft Will to check before attending the office to execute it.

Only last week, in Topciapski v Topciapski (2013), a court was again asked to consider a claim to declare a Will invalid, partly on the ground of testamentary capacity. The claimant relied on an expert report dealing with the testator’s capacity around the time that the disputed Will was executed, which in turn referred to another medical opinion.

In that case, although the expert’s report did not state that the testator lacked capacity, it was held that that his capacity was impaired on the basis of marked ‘generalised atrophic and ischaemic changes’, and those changes had impacted adversely on the testator’s capacity to know and approve of the contents of the disputed Will. The suspicious circumstances of the disputed Will; namely that there appeared to be no rational reason for the claimant to have been cut out from his father’s Will, which represented a departure from previous Wills; excited the vigilance and suspicion of the court; and therefore the Will was declared invalid on the ground of want of knowledge and approval.

Testamentary capacity versus want of knowledge and approval

The recent cases highlight that ‘want of knowledge and approval’ allegations can and will succeed in the absence of establishing that a testator lacked testamentary capacity, and that the courts will consider knowledge and approval as a single issue.

‘Want of knowledge and approval’ allegations are attractive to claimants because, provided there are suspicious circumstances about how the Will came to be made, the burden of proof will be shifted onto the party seeking to rely on the disputed Will to satisfy a court that the document represents the testamentary intentions of the testator.

In my previous blog, Suspicious Wills: the rise of ‘want of knowledge and approval’ claims, I highlighted 10 things to look out for which could be deemed suspicious in relation to a ‘want of knowledge and approval’ allegation. However, one of the interesting points about Hawes v Burgess is that it involved an independent, experienced solicitor, who met the testator, read the Will to her, kept a note and satisfied himself that she was capable of understanding it. It demonstrates that, if the court’s suspicion can be aroused, a want of knowledge and approval allegation is a good avenue for claimants to pursue.

In contrast, probate claims run purely on the basis of testamentary capacity are notoriously challenging for claimants. Medical experts will be appointed in the course of proceedings but any report is often limited by the fact that the expert has not been able assess the testator’s capacity at the time of making the Will. The expert will be able to review medical records and witness evidence, but it is quite unusual for the capacity position to be clear cut, especially if the witnesses to the Will give evidence, alongside a solicitor or professional Will writer.

In view of this, anyone contemplating challenging a Will should think carefully at the start of litigation about whether disputing the validity of a Will on the grounds of testamentary capacity really adds anything. It is prudent, where is a concern about capacity, to obtain copies of medical records and advice from medical experts. However, if the disputed Will is suspicious it will usually be more effective to bring a probate on the ground of ‘want of knowledge and approval’.