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Making a Will - Difficulties in Assessing Mental Capacity

Making a Will - Difficulties in Assessing Mental Capacity

Published: 9 June 2016

You may know that a short time ago was Dementia Awareness Week. In the light of this it will, perhaps, be useful to consider some of the difficulties that arise when assessing a person’s testamentary capacity for the purpose of making a Will. How do the Courts view this and what are the consequences for the family involved?

The recent case of Burns v Burns [2016] EWCA Civ 37 provides the latest statement from the Courts regarding the law on testamentary capacity and the basis upon which a Will can be overturned (or not as the case may be) for lack of capacity or want of knowledge and approval. In this case the England and Wales Court of Appeal upheld the Will of an elderly woman, despite clear evidence of a decline in her mental capacity at the time the Will was executed.

The facts of the case

The testatrix, Mrs Eva Burns, was a widow with two sons, Anthony and Colin. Mrs Burns died aged 89 in May 2010. By her Will dated May 2003 (the "2003 Will"), Mrs Burns provided that her 50% share in her only property was to be left entirely to her son, Anthony. Colin already owned the other half of the property, pursuant to an earlier transfer. The rest of her estate was to be divided between her two sons equally.

However, a year and a half later, in November 2004, Mrs Burns instructed a solicitor to prepare a new Will, which she executed some time later in July 2005 (the "2005 Will"). The 2005 Will instead left her whole estate to be divided equally between her two sons. This meant that Colin would end up with a 75% share in the family home, and Anthony only 25%.

There was clear evidence that Mrs Burns' mental health had declined prior to her instructions for, and her execution of, the 2005 Will. In October 2003 a "Mini Mental State Examination" revealed that Mrs Burns was not able to state the date (day, month, season or year) nor was she able to write a sentence or recall three common objects mentioned to her by the nurse only a few minutes earlier. Further, tests carried out in May 2005 and July 2005 produced similar results.

The manager of the day care centre Mrs Burns attended in 2004 gave evidence that at that time Mrs Burns was suffering moderate to severe dementia and could not recall the manager's name.

It also became apparent from the evidence that the solicitor who prepared the 2005 Will could have done a little better when taking steps to evaluate her mental capacity at the relevant time.

In light of this evidence, Anthony, understandably, challenged the 2005 Will. He argued that the 2005 Will was invalid on the basis that his mother lacked mental capacity at the date of its purported execution, and on the basis that she did not understand or approve the contents. There was no dispute as to the validity of the 2003 Will and therefore, if the 2005 Will was found to be invalid, the 2003 Will would be declared as the last Will and be admitted to probate.

The decision of the judge at first instance

By his judgment on 12 March 2014, the trial judge, although he was not happy with the way Mrs Burns’ solicitor dealt with the matter, found the 2005 Will valid. The trial judge took the view that, even though the solicitor did not take certain steps to ascertain Mrs Burns’ mental capacity, nevertheless he was persuaded to make a finding that the Will was valid, simply because it appeared rational and simple on the face of it.

The Appeal

Anthony appealed, asserting, amongst other things, that the judge did not give due weight to the evidence, but his appeal was unsuccessful.

While it was noted that the evidence clearly raised doubts as to Mrs Burns' capacity, the Court of Appeal found that the judge at first instance was entitled to make the findings he did and concluded, amongst other things, that the dispositions set out in the 2005 Will were rational and simple and therefore it was more likely than not that Mrs Burns at least had capacity to recognise that what she was signing was a Will in the form she had instructed.

What conclusions do we draw from this?

This case will be a cautionary note for anyone who is considering making a claim of lack of capacity or want of knowledge and approval. It would appear that this case may well make lack of capacity claims difficult to succeed where the Will is simple and appears rational, even though there may be strong evidence of mental impairment.

For further information and assistance regarding mental capacity and the creation of Wills please contact Howard Sykes on 0207 632 0089 or email howard@fletcherday.co.uk

By Howard Sykes