With its wealthy ageing population, Hong Kong is seeing an increasing number of issues arising from failing mental capacity.  A recent case from England, The Vegetarian Society and Scott, provides helpful insights into this increasingly complex area.  The case concerned the estate of the late John McKeen, which was valued at over GBP 1m.  It was accepted by all parties that Mr. McKeen had been suffering from schizophrenia, but did that mean his last Will was invalid?

Mr McKeen made five Wills during his lifetime, all with the assistance of solicitors.  Under the first three Wills, family members received significant bequests.  Under the last two Wills, they only received a fraction of his estate.  Indeed, under the last Will, the lion’s share of the estate would go to two vegetarian organisations.  This “raised eyebrows”, as the deceased had no connection to either organisation and was neither a vegan nor a vegetarian.

In general, the deceased exhibited very unusual behaviour.  For example, he used to enter and exit his house via the first floor bathroom window.  He also left numerous incoherent and rambling writings.  Indeed, the experts on both sides agreed that Mr McKeen suffered from thought disorder and schizophrenia.  Despite this, his Wills were upheld.  Why?

The case demonstrates that simply suffering from a mental illness will not automatically invalidate a Will.  The effect of that illness on mental capacity is the key issue.  It was decided that Mr McKeen’s mental illness did not prevent him from having rational thoughts and that he could gather his thoughts for “goal directed activity” (schizophrenia being time and task specific).  In addition, the judge found that there was a good reason why the deceased did what he did: “Mr McKeen did not feel the natural bond of love and affection with his blood family that usually exists” and thus “he consciously decided to leave his estate elsewhere.”  For all his eccentricities and obvious mental illness, he was able to give coherent and logical instructions and there seemed to be rational reasons for his approach.

Another key lesson from the proceedings is to choose your expert well.  The expert for the family member trying to overturn Mr McKeen’s last Will appears to have had his evidence largely disregarded for two reasons: (i) he was not able adequately to reconcile some of the unusual factual features in the case; and (ii) he was unfamiliar with the elements of testamentary capacity.  Perhaps unsurprisingly the judge therefore found his evidence to be of limited assistance.