Old age and capacity: how to protect your will from challenge


Posted on 18 September 2019


Making a will is an important piece of life admin.  Making a will is the only way to make sure that your wishes are carried out when you die: whether that is to ensure that your spouse and children are looked after, to leave a gift to people or charities closest to you, to ensure that your estate is split fairly bearing in mind gifts you’ve made during your lifetime, or to disinherit someone that might otherwise get a share of your estate, but whom you do not want to benefit from your wealth after you’ve died.

However, there are lots of ways that a will can be challenged by someone who feels that they’ve been left out unfairly, or if a gift (e.g. to a close friend or charity) is a surprise or somehow offends the other beneficiaries.  When this happens, a jilted beneficiary can apply to the courts to ask for a share of your estate, even if you didn’t want that to happen.  One of the most common challenges is by saying that you didn’t have “Mental Capacity” to understand what you were doing when you wrote the will.  Mental Capacity is a fairly nebulous phrase, and it is not clearly defined at law.  It does not, for example, follow the statutory definition set out in the Mental Capacity Act of 2005, or any of the other pieces of mental health legislation.

Kissing Couple by Esther Ann

Photo credit: Esther Ann

When it comes to making a will, courts will look at all sorts of things over and above any diagnosis of any degenerative disease or mental health issues.  It is perfectly possible for a will of someone with a diagnosis of e.g. Alzheimer’s Disease to be deemed to be valid by the courts.  Likewise, someone with a clean bill of health could have their will successfully challenged by someone written out of their will. 

What do the courts look at?

The courts will weigh the facts available to them and come to a decision.  The good news is that the principle that someone should have the right to determine their own affairs as they see fit is given a lot of weight.  The courts recognise that in a world where the elderly can be side-lined and be left without power or influence, the exercise of discretion when making a will can be one of the few areas where influence can be exerted. 

A court will want to be reasonably satisfied of of the following (from the case “Banks v Goodfellow”):

  1. That the person making the will understood they were making a will;
  2. They know (roughly) what assets form their estate (property, investments, cash etc);
  3. They know who might expect to inherit (even if they don’t all make it into the will);
  4. There is no “…disorder of the mind or insane delusions”.

The final point in particular can be open to interpretation.  It does not follow statutory guidance – rather – it is intended to reflect the reality of the situation.  If someone suffers from a mentally degenerative disease, you might think that they can’t make a will.  However, it is often the case that someone can have “good days” and “bad days”.  A will made on a good day can be perfectly well executed.  The steps you can take to protect the will maker’s wishes can be found below.

The second set of rules that the courts follow (from the case Parker v Felgate) are:

  1. The person had testamentary capacity when they gave instructions; and
  2. They remember giving instructions and understand that the will has been drafted in accordance with their instructions.

This could be seen to be re-stating the rule in Banks v Goodfellow, but it gives rise to subtly different tests. 

What can I do/ The Golden Rule.

The above two cases give indications of what you can do to protect the wishes in your will, especially when making a will face to face with a solicitor.  You should make sure that your advisor takes detailed notes of your wishes (or you keep a diary setting out all of the necessary information, that can be shown to be contemporaneous with your will). 

However, above all, the best thing you can do is follow the “Golden Rule” as set out in Kenward v Adams.  This says that:

“…in the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding…

To recap:

In order to best protect your wishes in a will, do the following:

(a)    Make a will in front of a qualified solicitor, or, if this is not possible – make sure you keep a clear note showing that you know the tests in Banks v Goodfellow, i.e.

  1. You understand you are making a will;
  2. You know (roughly) what assets form your estate (property, investments, cash etc);
  3. You know who might expect to inherit (even if they don’t all make it into your will);
  4. You have no “…disorder of the mind or insane delusions” (see the Golden Rule for this).

(b)    Make it clear that you have given the instructions yourself and you know the legal effect of a will; and

(c)     Make sure a doctor or other qualified medical practitioner is a witness to your will, and also make sure they take a contemporaneous note saying that you had testamentary capacity and keep that with their professional files (and let you have a copy).

Be aware, however, that no approach is bulletproof.  A court can hold a will to be valid even if none of the above steps were taken.  Likewise, you could have done everything perfectly, and the courts could hold your will invalid.  The courts jealously guard their powers of discretion.  However, by doing everything right as set out above, you reduce the chance of a successful challenge.  You can only ever control the controllable – and give your wishes the very best chance.

 


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