Testamentary capacity: what is the test?

15th March 2019 Will Disputes

The son of a multi-millionaire has made the news this week in relation to a legal dispute with his stepmother regarding his father’s Will.

Richard Scott died in June 2018 aged 81. He was the owner of a large farm in Cheshire, where he ran the UK’s second largest car boot sale, and where ITV’s ‘Car Boot Challenge’ was filmed. Richard’s son, Adam, alleges that his father promised him that the farm would be left to him when Richard died.

However, Adam was written out of Richard’s Will and has inherited nothing from his father’s estimated £5million estate. Adam is now bringing a claim against his stepmother (who is younger than him and was 28 years younger than Richard), Jennifer Scott, who married Richard in 2016 and who has inherited the majority of Richard’s estate under his last Will. Interestingly, Jennifer’s own children were also named as beneficiaries.

Adam is bringing the claim on two fronts, firstly based on the promise made by his father to him on which he relied and secondly on the basis that his father was unable to make appropriate decisions when he was making his last two wills, due to a degenerative brain disorder, and that Richard therefore lacked testamentary capacity. Adam’s stepmother, Jennifer, disagrees and says that Mr Scott did not lack capacity when making his Will and that Adam had been excluded from inheriting any of the estate due to a breakdown in relations between Adam and his father.

How does the Court determine capacity and why is it relevant?

One of the requirements of a valid Will is that the person who makes the Will must have the requisite capacity. According to case law (the case of Banks v Goodfellow), a person making a Will is considered to have capacity if they:

  1. Understand the nature of making a Will and its consequences;
  2. Understand the extent of property which falls within their estate;
  3. Are able to understand and appreciate the claims to which they ought to give effect; and
  4. Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by a Will.

The level of understanding required by the person making the Will in order to satisfy the requirements above will vary according to the nature of the Will and the assets; therefore, for more complex wills involving high value assets, a higher level of understanding will need to be demonstrated.

How can capacity be established or challenged?

Proving that someone lacked testamentary capacity, as Adam Scott is seeking to do, can be difficult. In recent cases (such as Hawes v Burgess and Topciapski v Topciapski, both from 2013), expert reports have been produced to seek to demonstrate that the person making the Will lacked capacity at the time of making the Will. In Hawes, the Court decided that the expert report did not prove a lack of capacity, as the expert who produced the report had not met or ever examined the person making the Will. The Court will therefore take a cautious approach where expert reports are produced after death. The best approach would be for capacity to be formally assessed prior to execution of the Will, but often this is not considered by those drafting Wills. In Topciapski, medical evidence was also produced. In that case, the Court held that the testator’s capacity was impaired and that there was no rational reason for the Claimant to have been removed from his father’s Will. The Will was therefore declared to be invalid.

Adam Scott’s claim in relation to his father’s Will is scheduled to proceed to trial later this year; to succeed as regards capacity, he will need to overcome the hurdle of persuading the Court that his father lacked testamentary capacity when making his will, and that he did not meet the requirements set out above. It will also be interesting to watch the developments as regards the view taken on his reliance on his father’s promise that he would ultimately inherit the farm.

If you have a query in relation to a challenge to a will, please contact the team at JMW who will be able to assist.

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Alison Parry is a Partner located in Manchester in our Will and Trust Disputes department

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