In his penultimate Will this property was to pass to his sons. After the death of his wife, his daughters cared for him. The testator executed a will 10 days after his wife’s death. The last will left the majority of his estate to the daughters.

Testamentary Capacity

The testator suffered from mild cognitive impairment. But the dominant feature impacting upon his testamentary capacity was his grief at the demise of his wife of 65 years. The medical experts confirmed that being grief stricken can amount to an affective disorder, adversely affecting attention and concentration. Briggs J concluded that impact of the affective disorder was such that the testator was:

“incompetent to the exertion required”, see Harwood v Baker (1840) 3 Moo PCC 282.

There was no one element of the Banks v Goodfellow test that the testator failed, rather he was simply unequal to the task that was asked of him; which was to express his testamentary wishes. Thus whilst his ability to comprehend may not have failed, his decision making powers were substantially impaired. Mr Key lacked the requisite testamentary capacity, and the last will was held to be invalid.

The Will making process

Briggs J was uncompromising in his criticism of the hapless solicitor called in by one of the daughters, (a principal beneficiary of the last will). The failures included the following:

• The paucity of the note taking “hastily scribbled” undermining the quality of the solicitor’s subsequent evidence
• A unsigned memorandum largely containing the solicitor’s observations
• The presence of the principal beneficiary

The golden if tactless rule

Briggs J laid much of the responsibility for the litigation at the door of the solicitor. He reviewed the case law exhorting the use a medical practitioner where the testator is aged and/or infirm. The rule emanates originally from Kenward v Adam TLR 28/11/75, and the judiciary repeatedly approve the adoption of the same, see the case of Scammell v Farmer [2008] EWHC 1100 (Ch). In Kenward it was suggested that the medic should examine the testator, and record his findings. Even an experienced probate solicitor should not set himself up as an amateur doctor. The testator may have a convincing veneer of competency, which when probed by the medical profession crumbles.

Protection afforded by the rule

The probate court jealously guards its position as the final arbiter of capacity. The purpose of the rule is not to provide a definitive and binding determination of capacity. Rather the function of the rule is to seek to avoid or minimize the prospect of a dispute arising on death. The purpose of the rule being to secure the disposition of the testator’s estate, in accordance with their wishes, and avoiding expensive litigation.

Costs risk for the will draftsmen

Adherence to the rule also affords some degree of protection to the will draftsman. In the cases of Worby v Rosser [1999] Lloyds Rep PN 814, and Corbett v Bond Pearce [2001] WTLR 419, it was recognised that where the solicitor’s negligence in regard to the preparation or execution of a will was the cause of expensive probate proceedings, this could give rise to a claim for damages. This is clearly so where the proceedings are brought on behalf of the estate. There are more complex arguments as to the duty of care owed to prospective beneficiaries etc.. .

The problems arising from the application of the rule

It is perhaps questionable as to how far the judiciary advocating strict adherence to the rule, fully understand the constraints (both as to time and costs) suffered by will draftsmen.

On close analysis it is clear that the rule throws up many problems:

• At what age or level of ill health does the rule kick in
• How does one best secure the compliance of the testator
• What if the testamentary disposition is simple, uncontroversial and the estate modest
• How does one ensure the GP has a clear understanding of capacity
• How long a delay is reasonable to accommodate access to the GP or Consultant

However given the recent repetition of the importance of adherence to the rule, the prudent practitioner should follow it. It is a valuable method of avoiding the risk of being embroiled in costs arguments after probate proceedings.

© Miranda Allardice - 3 Pump Court

September 2010

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Biography of Miranda Allardice

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