This recent case considered a challenge of the validity of a Will on the grounds that the testator lacked testamentary capacity when he signed the Will and that he did not have knowledge and approval of the contents of the Will.
The Claim
The testator, Philip Price, signed a handwritten Will on 14 December 2018 prepared by a senior solicitor Sian Morris. The Will was signed 24 hours after he was discharged from hospital following a series of many serious illness. More recently, he was being treated for pneumonia and sepsis and, due to the medication he was taking, was experiencing acute delirium.
His Will left his estate to his close friend Vanessa Davies, whom he had known for many years (25 years to be precise) and who was to inherit approximately £808,000 from his estate.
Philip Price died in January 2019, three weeks after his Will was made.
His Will was challenged by his half-sister, Barbara Watts, who argued that he did not have the capacity to make the will, nor did he know or approve the contents of his Will. It is relevant that she discovered she was his half-sister after his death. It is also relevant that if she could prove that he lacked capacity, his Will would be declared as invalid and under the laws of intestacy, she would be set to inherit the entire estate.
The Verdict
The case went to High Court where it was found that the testator did have testamentary capacity. Barbara’s objection was therefore dismissed, and the Will was admitted to probate.
The medical notes did not indicate that the delirium episodes the testator experienced were present when the Will was created. Therefore expert evidence was instructed on both sides. Both experts came to the decision that it was entirely possible that the testator experienced delirium at the time of the Will. Barbara’s expert also added that it could be argued that this could have undermined the testator’s testamentary capacity. However, the expert that was appointed by Vanessa Davies argued that even if delirium was present, this was mild and would not have affected the testator’s testamentary capacity in any way.
Witness evidence was sought as the expert reports were not conclusive. One of the witnesses called to provide evidence was the solicitor who created the Will. The solicitor had made an attendance note of the meeting. She stated that they spoke about many things during the meeting including his gun collection, his farm, horses and bank accounts. He had told her he had 45 cousins and that there would “be chaos” if he didn’t make a Will and had to share his estate between them. During cross-examination, it was noted that he only had 17 cousins, so this was clear that he could not remember. Her response was that he said this jokingly to her. When Mary Davies (cousin of the testator and executor of the Will) was asked how many cousins she had, the Judge stated that she “appeared to have trouble in recalling how many cousins there were”. I accept the evidence of Sian Morris thus far, including that he joked about the number of cousins. It is likely that he did so by way of emphasis as to how difficult his estate would be to administer if he did not make a will.”
The notes also set out that the testator was initially unsure about how to distribute his residuary estate. She had advised him that if he wanted to deal with everything in his Will, he would have to set out who got what, else there would be partial intestacy. He was clear he did not want his cousins to inherit his estate. She suggested that one idea was to give it to someone to distribute as they saw fit.
After the will was drafted, which was written in plain English, she went through the Will with him twice and gave it to him to read before he signed it.
When asked during cross-examination why she did not apply the golden rule and seek medical confirmation of his capacity, she explained that she did not feel his capacity was compromised in any way. Had she had any concerns at the time, she would have applied the golden rule. Other witnesses including friends gave “clear and straightforward evidence of capacity”.
The Judge further went on to add:
“It is not in dispute that two of the Shetland ponies mentioned in the will had been neglected and abandoned and were brought to the farm to be cared for. Whilst he had passports for the others under the Equine Identification (Wales) Regulations 2009, current at the time, there were no such passports held by him for these two ponies. Under the regulations, such a passport is required for the transfer of ownership of such ponies and penalties are imposed for failure to have one. There was no evidence before me whether passports for these ponies were ever in existence, but it was submitted that as a law abiding person Philip Price would not have claimed ownership of these two without a passport, and the fact he included them in his will shows a lack of capacity and/or want of knowledge or approval.
Given his physical illness, in my judgment this oversight is hardly surprising. In any event this is not sufficient to outweigh the clear and straightforward evidence of capacity which Vanessa Davies and her witnesses give and which I accept. Insofar as the evidence of Mary Davies and Janet Turner differ on these points, then I prefer the evidence of the former. The evidence of Mary Davies was less clear and less straightforward in the ways indicated above. The evidence of Janet Turner was far more remote.
Knowledge and approval
Accordingly in my judgment it has been clearly shown that Philip Price had testamentary capacity. That finding goes a long way in dealing also with the question of whether he knew and approved of the contents of his will. It was written in clear capital letters on one page. Its terms were not complex. I accept the evidence of Sian Morris that she went through its terms with him, probably twice, and then gave it to him to read, before it was executed. The phrase “retain or distribute” in respect of the residue was clearly written in plain language. In my judgment it is clear that he knew and approved of its contents.”
Points to Consider
This case demonstrates the importance of ensuring detailed notes are taken during the meeting in case they ever need to be referred to at a later date in case of a will dispute. The witness evidence of Philip’s friends indicated that he was mentally sharp even though he was frail. This, along with the attendance note taken by the solicitor, demonstrated the testator had the requisite capacity and understood the Will contents.
It also highlights the importance of ensuring your client has capacity before will instructions are taken and that where there are concerns over capacity, the golden rule should be applied.
