Headlines have been grabbed recently by a decision in the Supreme Court as to whether certain charities or an estranged daughter should fare better in the tug of war over the latter’s mother’s estate. The decision is notable, amongst other things, for highlighting the dynamics of the appeal process with the English legal system – with the Supreme Court rejecting the approach of the Court of Appeal and restoring the district judge’s original decision – and for criticisms of the unsatisfactory state of the law in providing guidance on the factors to be taken into account when deciding whether an adult child is deserving of reasonable maintenance.
It is therefore comforting this week to turn attention to legal principles which are more certain when it comes to the resolution of challenges to a will, albeit against the same backdrop of a family member disgruntled about the apparent effects of their close relative’s dying wishes. In particular, a recent High Court case has applied well-established principles to the question of whether someone had testamentary capacity.
The case concerns Mr White who, sadly, passed away in July 2010 after suffering with terminal cancer. Mr White was married and, whilst he had no children with his wife, both he and Mrs White had three children from their respective earlier marriages. Towards the very end of his life Mr White’s relationship with his wife had begun to break down and in April 2010 he had reported abusive conduct. His wife countered that his drug treatment had made him delusional and irrational. During a spell in hospital several weeks before his death, Mr White gave instructions to a local firm of solicitors and shortly afterwards executed the will that had been drawn up in accordance with those instructions, by which he left the bulk of his estate to one of his daughters from his previous marriage. Following his death, the validity of the will was challenged by his wife on the grounds that he lacked testamentary capacity.
The Court recited some of the long-standing principles in this area, namely that the burden of proof in establishing capacity is on the person propounding the will; that there is a rebuttable presumption that a will which is duly executed and which is rational on its face was executed by someone with capacity, thereby shifting the burden of proof onto the person challenging the will; and that if a real doubt about capacity is raised, the burden shifts back again.
The judge also set out the classic test as to testamentary capacity that the testator must understand the nature of his act; understand and recollect the extent of his property; understand the nature and extent of the claims of those whom he is including and those whom he is excluding from his will; and not be subject to any disorder of the mind as shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” Further, it is not necessary that an individual has capacity at the time that their will is executed, only that they have capacity at the time the instructions are given; that the will is prepared in accordance with those instructions; and that at the time the will is executed the testator remembers having given instructions and believes that the will was prepared in accordance with them.
Taking into account several factors and assisted by expert evidence of both medical and social care professionals, the judge was satisfied that whilst Mr White’s condition was such that a real doubt was raised about his capacity, thereby shifting the burden of proof on to his daughter, she had discharged that burden. The judge did not doubt that the drugs which Mr White was taking at the relevant times had an effect on his state of mind, but not sufficiently so as to rob him of capacity at the time that he gave his instructions. Even if by reason of a disorder of his mind Mr White had become unjustifiably antagonistic towards his wife, that did not “poison his affectations or prevent his sense of right or was otherwise a disorder of his mind that influenced Mr White in the distribution of his estate.”
The case serves as a useful reminder of a set of tried and tested general principles which, nonetheless, the courts are frequently required to apply in the fraught and emotional setting of disputes in this area.
For further information, please contact:
James Seed, associate, Commercial Dispute Resolution
T: 0161 836 7895
 Ilott v The Blue Cross and Others  UKSC 17
 White v Philips  EWHC 386 (Ch)