In cases where a deceased's Will is challenged on the grounds of lack of mental capacity there is an emerging trend for the Courts to prefer the contemporaneous evidence of an experienced probate solicitor to retrospective evidence provided by a medical expert. This is illustrated by the recent Court of Appeal decision in Hawes v Burgess.

Mrs Burgess' 1996 Will left her estate equally between her three children, Peter, Libby and Julia. By 2006 Mrs Burgess' health was beginning to deteriorate. She instructed Mr Webster, an experienced probate solicitor, to draw up a new Will for her. Mrs Burgess met Mr Webster on 20 December 2006 to give instructions for her Will and they met again on 12 January 2007, when the Will was executed. Julia was present at each meeting. Mr Webster's typed attendance note stated that Mrs Burgess was "entirely compos mentis" and that he had no hesitation in taking instructions from her. However, he did not carry out a formal assessment of her capacity and his attendance note referred to information given to him by Julia which later transpired to be inaccurate. Mrs Burgess died on 30 May 2009 aged 80 and her Will was challenged by Peter and Libby on two grounds:

  1. That she lacked testamentary capacity and
  2. That she did not fully know and approve the contents.

Peter and Libby were successful at first instance and the Judge concluded that Julia was the controlling force in the instructions given for the drafting of the Will. Julia appealed and argued that the Judge's findings did not support either ground of invalidity. The Court of Appeal dismissed the appeal and upheld the previous decision on the basis that Mrs Burgess did not know and approve the contents of her Will.

Although the appeal Judges did not express a concluded view on whether or not Mrs Burgess lacked testamentary capacity Lord Justice Mummery and Sir Scott Baker both commented on the relative strengths of the evidence of, on the one hand, the solicitor who took instructions from Mrs Burgess and was present when she executed her Will and, on the other, an Emeritus Professor of Old Age Psychiatry who had never met or medically examined her.

In giving his judgment Lord Justice Mummery said " is, in my opinion, a very strong thing for the Judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after her solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational".

He went on to say "… the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer…. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property".

For practitioners, these comments are important because they support the argument that an assessment of a testator's capacity by an experienced lawyer can carry as much weight (if not more) as an assessment made by a doctor, particularly where the doctor is called upon to provide a report "after the event". Although a post-death challenge may still be raised clients can take some comfort from the remarks of Sir Scott Baker in Hawes v Burgess that "Where a will is drafted by an experienced solicitor who oversees its execution and records at or close to the time that the testatrix was compos mentis and able to give instructions persuasive evidence to the contrary is required".

This article first appeared in the Boodle Hatfield Contentious Trust & Estates adn Family Newsletter in April 2013.