Testamentary capacity


R brought proceedings in the Chancery Division challenging a will made by his mother, C, at her 88th birthday party in 2005. C’s previous will, made in 1996, was more generous to R than his other three siblings in that, although the majority of her estate was split equally between them, R also received a flat owned by C and shares in the family company. R was not present at the birthday party but other members of the family were there, including his brother J and sister H. The will made by C at the birthday party provided for her assets (with the exception of a relatively small sum) to be divided between her children in equal parts. There was evidence that C was suffering from mild to moderate dementia at the time she made that will and R argued that she lacked testamentary capacity. This was rejected by J and H. C died in 2009.

Nicholas Strauss QC, sitting as a Deputy High Court Judge, held that although the differences in the evidence given by C’s family and friends could properly be characterised as very great, it was not impossible to reconcile them, essentially on the basis that C had some good days and some days. He found that C made the disputed will on one of her good days and that she understood that the effect of the will was to leave her property to its beneficiaries on her death, that it was her wish to leave her property (with a sole exception) to her children generally, that she was not improperly influenced or persuaded, that she had been taken carefully and conscientiously through the terms of the will and understood them, that she understood that by signing the will she revoked the previous will and that she refused to see a solicitor, although J pressed her to do so (at para 142). Mr N Strauss QC considered that although C would not have been able to remember the terms of her previous will, she would have been able to ask to see that will if she wished to do so, when she was told at the time of making the 2005 will that it did not (as she believed) leave her property to her children equally (at para 143).

The judge reviewed the law on testamentary capacity and set out the established common law principles in this area, extracted from Sharp v Adam [2006] EWCA Civ 449, noting that the MCA 2005 had not yet come into force at the time the will was made in December 2005. (For a discussion on the interplay between common law on testamentary capacity and the principles contained in the MCA 2005, see Alex’s recent paper on statutory wills and testamentary capacity). The dispute between the expert witnesses in the case was whether or not C “was able to comprehend and appreciate the claims to which [s]he ought to give effect”. R argued that it was not sufficient that C understood she was revoking her previous will; in order to meet this requirement C needed to be able to understand what was being revoked. The judge rejected this for three reasons:

156. [… ] First, it is clear from Banks v. Goodfellow and the earlier authorities, and from many subsequent decisions, that the law upholds the right of elderly people to leave their property as they choose, even if their mental faculties have declined considerably. This must include many cases in which they can no longer remember all the circumstances relevant to the division of their property between the people they wished to benefit; to make this a qualification for testamentary capacity would be inconsistent with the case law.

157. Secondly, while I think that there may be cases in which requirement (c) can only be met if the testator is capable of understanding, and possibly only if she does understand, the different provisions of an earlier will, this is not such a case. It must be a matter of degree, and in this case the previous will was 9 years earlier, and the differences were slight; the beneficiaries under both wills were the obvious ones, and all received substantial gifts under both wills. Nobody was omitted. It would be different if the testator was unable to remember the identity of the beneficiaries under a previous will, whom she would still be likely, if reminded, to wish to benefit: see Abbott v. Richardson [2006] EWHC 1291 (Ch) at paragraphs 187, 190.

158. Thirdly, I think that, in any event, on a proper analysis of the facts, [C] was capable of understanding the provisions of her previous will … “

The judge concluded that C knew and approved of the provisions of the will made in 2005 and that it was her last and valid will.


This case is highly fact-specific (the judgment running to some 79 pages) but is nonetheless of note for the consideration given to the question of the degree of knowledge required of the terms of a previous will as part of the assessment of testamentary capacity. In line with other recent decisions, most notably Hawes v Burgess [2013] EWCA Civ 74, it also reinforces the difficulty of challenging testamentary capacity many years after the relevant events took place.