I have written recently on the question of whether suffering from dementia automatically means that a person does not have capacity to make a will.  It does not, and another recent case also confirms that suffering from other mental conditions will not automatically invalidate a will either.

The case of the Vegetarian Society v Scott [2013] EWHC 4097 (Ch), concerned the will of Mr John McKeen deceased.  It was agreed by all parties that Mr McKeen suffered from schizophrenia and logical thought disorder.  He had some unusual habits - for example, he would enter and exit his house via the first floor bathroom window, was unkempt, talked to himself and left illogical and rambling writings.  He made 5 wills during his lifetime (all with the aid of solicitors). 

The claimants in this matter were two vegetarian and vegan organisations who were the residuary legatees of his final will (dated 2006).  The deceased was neither a vegetarian or vegan and had no obvious ties with these groups.  The defendant was the deceased's sister, the person who would have inherited in the event of an intestacy and the mother of his three nephews who had previously stood to inherit the bulk of the estate but who had been left out of the final two wills (save for a very small gift in the final will). The estate was worth over £1 million.

The defendant argued that the final two wills were invalid because the deceased lacked testamentary capacity (which would have meant that her children would inherit the estate), or alternatively that all five wills were invalid (which would have meant that she would inherit the estate). She argued that Mr McKeen had been unable to comprehend the claims to which he should give effect, and so did not have capacity.  The claimants argued that Mr McKeen was able to undertake 'goal directed activity' such as making a will in 2006 (when he also undertook various property transactions).   The claimants had the burden of proving that Mr McKeen had capacity at the time when he made his final will.

As with all capacity claims, the Court was referred to the case of Banks v Goodfellow (1870) which sets out the test for capacity.  The judge found that the deceased did have capacity to make a will in 2006 - his mental illness did not prevent him from having rational thoughts, and he was able to comprehend what was required of him in order to make a will.  The court also found that the deceased did not recognise the usual ties of love and affection with his blood family, and so the fact that he had chosen to leave his estate elsewhere was not irrational.

The final will was upheld.

If you require advice about a will which may be invalid because the testator lacked capacity, please contact a member of our contentious probate team.

[A reminder of the test in Banks v  Goodfellow (1870) - in order to have capacity to make a will:

  1. the testator must understand the nature of his act and its effects;
  2. he must appreciate the extent of his estate;
  3. he should be able to comprehend and appreciate the claims which he should give effect to;
  4. in relation to (c), nothing shall poison his affections, pervert his sense of right or bring about a disposition that he would not have made had he been of sound mind.]