Can a testator have cognitive impairment yet still have testamentary capacity?

 In Wills

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Mental Illness Markou v GoodwinTestamentary Capacity and mental illness – Markou & Another v Goodwin & Others [2013] EWHC 4570 (Ch)

In this sad case, there was no question of a carer taking advantage of the testator. The testator was found to have an underlying cognitive impairment which meant that although she appeared to the Will drafter to have capacity, her seemingly rational statements about her family were actually untrue and were evidence of such cognitive impairment.  On the facts the testator did not have capacity at the time she gave instructions for the Will benefitting the carer and so the principle from Parker v Felgate could not assist.

The facts

Mrs Eileen Rand died on 4 November 2007 aged 79.  Her last Will was dated 20 June 2007 and was executed in the two week gap when she returned home from her first hospital admission for a fall and before her second hospital admission for acute renal failure.  Following her second discharge from hospital she was discharged to a nursing home where she died.

Androulla Efthymiou was a neighbour of Eileen’s and had become a close friend. She also became her carer in the three or four years preceding her death.

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On 15 June 2007 Markos Markou took instructions for her 2007 Will which Eileen executed on 20 June 2007.  Under the 2007 Will, Markos and Nicholas Efthymiou (Androulla’s husband) were appointed as the executors and she left everything between her brother, Derek Goodwin, and her friend and carer, Androulla.

Androulla gave evidence that Eileen said for some time that she wanted to leave her something. When she said it was half the house Androulla had found this embarrassing. She did however mention it to her husband, who had asked around for a recommendation for someone to write the Will. Markos had been recommended to him.

Markos was not a solicitor but had some experience of writing Wills. Markos had taken a contemporaneous note of the meeting on 15 June 2007 when he had visited Eileen and she had given her instructions for her new Will.  Nicholas had been in the house at the time, but was not present in the room.  Markos tested her capacity by asking her the name of the current Prime Minister and the date and time.  Eileen answered these questions without difficulty.

Markos drafted the Will and a side letter promptly and put both through Eileen’s door for her to review.  Nicholas then arranged for close friends of his and his wife to act as witnesses when Eileen signed the Will and side letter on 20 June 2007.  No evidence was given that the Will was read by Eileen or to her before it was signed.

Her previous Will was dated 18 December 1969 and had been made shortly after the sudden death of her husband.  By it she appointed her brothers, Bill and Derek, as her executors (Bill pre-deceased her) and left the house which she had recently inherited from her late husband as to: half between her step daughter Sheila, Sheila’s husband David (who died in 2008) and Sheila’s daughter Sharon; with the other half between such of her brothers as survived her.  She left the residue to such of her brothers as survived her.

Following Eileen’s death, Derek had first taken out letters of administration stating that Eileen had died intestate, but then on discovery of the 1969 Will this had been revoked and he obtained a grant of probate of the 1969 Will.  Derek then sold the house and distributed the proceeds in accordance with the terms of the 1969 Will i.e. to himself, Sheila and Sharon. Derek did this on the basis that he had clear evidence of Eileen’s incapacity in June 2007.

Markos and Nicholas sought to prove the 2007 Will and for the grant of probate of the 1969 Will to be revoked.

Derek, Sheila (via her litigation friend Sharon, as she had by then lost capacity herself) and Sharon defended the action and claimed that the 2007 Will was invalid so the 1969 Will was the correct Will to be proved.

The law

The legal principles from Banks v Goodfellow (1870) LR 5 QB 549 applied and provide that:

It is essential that a testator shall:

  • understand the nature of the act and its effects;
  • understand the extent of the property of which he is disposing; and
  • be able to comprehend and appreciate the claims to which he should give effect.
  • not be suffering from a disorder of the mind or insane delusion  which influences his Will disposition.

The legal principle from Parker v Felgate (1880) 8 PD 171 also applied. It provides that if the Testator has capacity at the time of giving their instructions and the Will is prepared in accordance with those instructions, if they no longer have capacity at the time of executing that Will but remember that they gave instructions and understand that they are signing a Will which gives effect to those instructions, then the Will will be valid.  This was approved in Perrins v Holland [2010] EWCA Civ 840.

The burden of proof for mental capacity was summarised by Briggs J in Re Key [2010] EWHC 408:

(i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then a court will presume capacity.

(ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.

(iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.

The decision

Nugee J found that Eileen had always had a very close relationship with both her brothers and their families.  Although Sheila gave written evidence that she had initially found it difficult to accept Eileen’s marriage to her father (due in part to her father being much older than Eileen so there was only 7 years between herself and Eileen) she then became reconciled to the relationship and was on good (albeit not close) terms with Eileen, keeping in touch to a limited extent.

The judge found that Eileen had become close to Androulla and her family, having real affection for them all and accepted her evidence that Eileen appreciated the care Androulla had willingly given to her.

There was no challenge to the execution of the 2007 Will, but the defendants had challenged it on the basis of lack of capacity and want of knowledge and approval of its contents.  Despite the Will appearing rational on the face of it, sufficient doubt as to Eileen’s mental capacity was raised by the defendants so the burden was transferred to the claimants to prove her capacity: “[Eileen] being both aged and, as I will come to, in psychiatric terms infirm. It is not sufficient to discharge that burden to point to the fact that the will by itself appears to be rational on its face.”

Until her fall on 23 May 2007 Eileen’s medical records showed no evidence of any cognitive impairment. However, on admission to hospital on 23 May 2007 she had raised sugar levels and only scored 2 out of 10 in the ‘Abbreviated Mental Test’ (AMT). She was diagnosed with hyperglycaemia which the judge accepted caused her confusion.  She was already known to have diabetes and the hospital notes record that she was said to have been forgetful for the last three months.  Androulla denied that it could have been her that said this when she accompanied Eileen to hospital, but the judge found that it must have been her as the information could not have come from anywhere else.  Despite her blood sugar levels being brought under control the notes showed that she remained confused and she only scored 13 out of 30 in a ‘Mini Mental State Examination’ (MMSE) on 30 May.  The resulting CT scan showed atrophic change which the experts agreed was consistent with dementia.

Eileen was only discharged on 7 June when a care package of three daily visits had been put in place.  Her GP visited her at home on 19 June (the day before Eileen signed her Will) and diagnosed her as having a urinary tract infection which is commonly accepted as causing a confused state. On 21 June Eileen was rushed to hospital with very low blood sugar levels causing her to be seriously ill and she was not alert enough to be tested on the AMT.  The notes record that on admission Androulla said she had mild dementia, but again she denied saying this.  Eileen recovered enough to be moved out of the ICU but was consistently confused and by 3 July scored only 3 out of 10 in the AMT and on 14 August 1 out of 10 and was diagnosed as no longer having capacity.  On 18 July the further MMSE performed gave a score of 13 out of 30 (the same score as on the first MMSE test).

Both experts agreed that the MMSE score of 13 on both occasions showed moderate cognitive impairment but they disagreed on the explanation for the results.  The defendants’ expert, Dr Aziz, is the consultant physician in acute medicine for the elderly who had attended Eileen on her second hospital admission and he based his opinion of her capacity to sign her Will on her medical records as he had not met her by that stage.  The claimants’ expert, Professor Hodkinson, is an emeritus professor of geriatric medicine who had not met Eileen and based his opinion solely on her medical records.  Dr Aziz concluded that the two MMSE scores being the same despite her reasons for admission being different on each occasion meant that she was at her “base level” and had a dementing illness.  In contrast, Professor Hodkinson thought that the low scores were caused by the underlying blood sugar level issues causing confusion.

The judge found both experts to be impressive witnesses and “what their evidence, taken together, shows is how difficult it is on the basis of isolated tests and notes alone to be sure about the underlying causes of cognitive impairment.”  He reconciled the evidence as showing that although the low score on 30 May could have been caused by the high blood sugar level, this was not the only reason and found that “she did have a dementing illness prior to [first] admission” taking lay evidence into her mental state into account also.

Looking then at whether the claimants had proved that Eileen had capacity on 20 June; or, in accordance with Parker v Felgate, she had capacity on 15 June with sufficient capacity on 20 June to satisfy the Parker v Felgate test; he found that the medical evidence showed she did not have full capacity on 20 June. He found that the medical evidence could not show what her capacity was on 15 June as she had not been examined on that day.  Other evidence would be needed to determine this issue and the judge referred to evidence from the family of a slow and general loss of capacity from 2006 onwards which was in conflict with evidence from Androulla that there had been no signs of forgetfulness before her first hospital admission.  He preferred the evidence of the family, putting Androulla’s recollections down to the passage of time blurring her memory.

He found that Eileen had had some degree of memory on 15 June despite her underlying dementing illness so had been able to give instructions and fairly accurate background information to Markos. “I also accept, and again it is not disputed, that, on the face of it, it is not irrational for an elderly woman to wish to leave property to a close and supportive friend and carer, and the reasons given, that she and her husband were good friends, are, on their face, entirely rational. But there are, nevertheless, certain matters which do, on investigation, seem slightly odd.”

These included Eileen thinking £10 was a meaningful amount to leave Sheila but then dropping the gift when she couldn’t find her address, giving a very old address for her brother Derek, saying in the side letter that she was not close to her brother Bill’s family when she had been very close to Bill and his wife (they did not have children) and also saying in that side letter that Sheila had not kept in touch with her when she had.  These were all indicative of her dementing illness affecting her on 15 June.  The judge accepted that Eileen would have seemed to Markos to have had capacity on 15 June but he held that she was suffering from a cognitive impairment and she failed limb (c) of the Banks v Goodfellow test.

“I should record that this does not mean that [Eileen] did not wish to leave property to [Androulla]. I accept, as I have already said, that she was a close friend. I accept that she did wish to benefit her. I think she was deeply appreciative of the close and regular support that [Androulla] gave her, and she was genuinely fond of her and her family. If it is suggested, indeed I am not sure that it has been, that Androulla was taking advantage of [Eileen], I entirely reject it. However, for a will to be upheld it is established in the authorities that it is not enough to show that the testator or testatrix wished to benefit the person who was in fact benefited. It must also be shown that no mental disorder or, in modern language, as I have said, cognitive impairment, prevented her from having in mind all the other claims and considerations which she should properly have in mind. This does not just mean recording who else might be potential beneficiaries, but the nature of their claims. For the reasons I have given, I am not persuaded, on the balance of probabilities, that this is the case. I therefore find that she did not have testamentary capacity on 15 June.”

Although it was unnecessary to consider matters further (as he had found lack of capacity on 15 June), the judge stated that in considering whether the principle from Parker v Felgate could have been successfully relied upon it would have been necessary to show that Eileen not only knew that she was signing a Will, but that she must also have known she was signing a Will which gave effect to instructions she had given previously. “If [she] cannot remember giving instructions at all, that will not, in my judgment, be enough.”

He commented that the claimants had not proved that the Parker v Felgate test had been satisfied on 20 June.  There was no evidence that Eileen had read the Will she signed, nor that she remembered giving instructions for a Will. On the balance of probabilities there was no evidence that she even knew she was signing a Will.

The 2007 Will was pronounced against and the 1969 Will admitted to probate.

Practice points

  1. Try and get behind a ‘social façade’ by asking open and detailed questions so you can form a proper opinion on capacity yourself in the first place.
  2. With elderly clients, remember the golden rule and consider quickly whether to obtain a medical report on their capacity before proceeding, but don’t forget to chase this report up!
  3. If time is of the essence, consider proceeding without a medical report, but properly satisfy yourself as to capacity.
  4. Remember to consider if the principle from Parker v Felgate could assist in upholding a Will if the testator did not have capacity at the time of signing the Will.


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