Re the estate of Eva Burns, Burns and Gramauskas v Burns [2016] EWCA Civ 37 (Court of Appeal (Longmore, Treacy and McCombe LJJ)

Mental capacity – Testamentary capacity


In this case the Court of Appeal dismissed an appeal against a district judge’s finding that the deceased had testamentary capacity and knew and approved of the contents of her last will.

The dispute was between two brothers, the children of the deceased. The deceased had made a will in 2003 that gave her half share in her home to brother A, brother B being already by an earlier transaction the owner of the other half share. The value of the dispute was £26,000.

In 2005 with brother B’s assistance (he accompanied her to the solicitor) the deceased made a new will that devised her half share equally between the two brothers.

In the context of care needs, the deceased had had two mini mental state examinations, one shortly before she made the 2005 will, together with a Cape Assessment by an occupational therapist. Evidence from a consultant geriatrician stated that the results from these tests showed that the deceased was poorly orientated as to where she was in time and place, had poor recall (short term memory) and that she had problems with analysis and simple task planning. Furthermore the deficits identified had persisted for a period of 3 months.

The district judge also heard from the solicitor who drafted the will. He gave evidence that he had interviewed the deceased alone, that he read the will over to her and that she understood it.

The Court of Appeal was clearly in some doubt that the result was right (see paragraph 57). Ultimately, however, the Court of Appeal held that the judge had applied the right tests, both as to capacity and knowledge and approval and come to a decision that was open to him.

What perhaps was critical was the fact that the will was a simple one in respect of which she had given instructions and the contents of which she had approved some months earlier (see paragraph 51).


The Court of Appeal was evidently concerned about the circumstances of the making of the will, not least because the solicitor involved had no knowledge of the Golden Rule as to what a solicitor should do when there are circumstances that give rise to a concern about a testator’s capacity. Namely that a solicitor who has such concerns must:

... have prior knowledge of the testator, should consider whether the will should be witnessed by an approved medical practitioner, examine any earlier will, discuss proposed departures from any earlier will with the testator, ask non-leading questions and ensure that the reading through of the will is not ‘an idle ceremony’: Buckenham v Dickenson [2000] WTLR 1083.

Critically, there appears to have been no discussion of the 2003 will and the reasons why that will had been made in that way and the reasons for the departure. That would give rise to the possibility that the deceased was not aware of the nature and extent of the claims on her (the third Banks v Goodfellow requirement).