In a recent blog post, we covered the case of The Vegetarian Society and Scott, where mental illness did not invalidate a Will on the grounds of mental capacity. In this post, we look at another case of a contested Will where the testator was undisputedly suffering from a mental illness.
The case concerned the estate of the late Mrs Joyce Catling, and pitted her youngest son and his friend against her seven other children. Mrs Catling made a Will in 2004 which essentially divided her estate equally between her eight children; a 2005 codicil confirmed the 2004 Will with minor changes. Both the Will and codicil were made with the assistance of solicitors.
After the death of her husband in 2005, Mrs Catling moved in with her youngest son Kevin and his wife. Relations between Kevin and his siblings deteriorated, brought on by general distrust and the fact that Kevin cut off contact between them and their mother. Mrs Catling then allegedly made a new Will in 2007, drafted by Kevin’s friend, in which she left her estate almost entirely to Kevin and named the friend as sole executor. Kevin’s friend stood to benefit considerably if the 2007 Will had been proved by reason of a widely drafted clause permitting him remuneration as executor. The friend was subsequently found to have made dishonest and fraudulent misrepresentations that he was a barrister.
The judge ruled that Mrs Catling had mental capacity to make the 2004 Will and 2005 codicil; he then considered whether she had capacity to make the Will in 2007. Unchallenged medical evidence suggested that Mrs Catling suffered from severe dementia by 2007 and the judge ruled that she had no capacity at the time. In making the decision, the judge took into account the fact that 2004 will and 2005 codicil did not represent “a radical departure” from the Will made in 1999, but that the 2007 Will did; he also pointed out that Kevin and his friend failed to have a doctor confirm that Mrs Catling had mental capacity when the 2007 Will was made.
The judge took note of the Parker v Felgate principle which provides that it is unnecessary for a testator to have the capacity to understand every clause, or even the general direction of the Will, at the time the Will is executed. Instead, it is enough that he understands that he is executing a Will for which he has previously given instructions (and had mental capacity at the time of giving those instructions). Although Kevin’s friend claimed to have received instructions to draft the 2007 Will as early as a year before, the judge found that neither he nor Kevin produced any credible evidence of Mrs Catling’s intention to draft a new Will on the terms of the 2007 Will. Therefore, the judge granted probate of the 2004 Will and the 2005 codicil.
In short, the judge found against Kevin and his friend on almost all issues: it seemed that they had failed to take any reasonable measures to ensure they could prove testamentary capacity in relation to the 2007 Will. Nevertheless, the decision provides some key reminders when drafting and executing a Will:
- Wills executed by aged or seriously ill individuals should be witnessed or approved by an appropriately qualified medical practitioner, who should be satisfied that the testator has mental capacity to make the Will and then record that view;
- Wills which are significantly different from the previous ones are likely to be subject to a higher level of scrutiny in court where mental illness or testamentary capacity is an issue; in particular the Court will question whether the testator would have understood the major differences between the Will in question and its predecessor(s);
- to give a party the best chance to rely on the Parker v Felgate principle, relevant tests should be undertaken and robust contemporaneous records taken when the testator gives instructions relating to his Will;
- failure to do any of the above may raise serious doubts about a will and may result in the court refusing to grant probate for the will.