In August 2005 the testator executed a will in which he left his shares in the family company to the claimant, his first son, and to the first defendant, his daughter, equally and his farmland to his second son. His three children also shared the residuary estate equally. His bungalow and garden and his personal effects were left to the first defendant. All other freehold and leasehold land was bequeathed to his second son and a pecuniary legacy of £2,000 was given to each of his grandchildren. In September 2015, his second son committed suicide, which had a devastating effect on the testator, who was hospitalised for two days in December 2015, as a result of gastrointestinal bleeding. He became confused and his doctor referred him to a psychiatrist, who concluded that he had a moderately severe degree of mental impairment. Nevertheless he realised that he needed to make a new will in the light of his son’s death. His solicitor, having expressed concerns about the deceased’s capacity to her colleagues, wrote to the deceased’s general medical practitioner on 25 May 2016, asking him to carry out a capacity assessment before the new will was executed. On 14 June 2016, the doctor visited the testator, taking the draft will with him and concluded that there were no issues regarding his capacity to change the will, recording that he had clear understanding of the nature of the will and the process of changing it, that he understood the extent of his property and that the changes to the will were due to circumstances within the family. On 7 July 2016 the deceased executed the new will, which was witnessed by the solicitor and the doctor. The main differences from the 2005 will were that part of the farmland which under the 2005 will was to have been left to the second son was to be left to the claimant, the remainder of the farmland to be held in trust for the second son’s widow for life and then to her sons equally; and the grandchildren, instead of a legacy of £2000 were to inherit his residuary estate in equal shares. Both the shares in the company and the testator’s cash fell into residue. Less than two weeks later, the doctor referred the testator to a community psychiatric nurse stating that he had mixed type dementia which was deteriorating quite rapidly. The testator died in March 2017, aged 84, as a result of dementia-related complications. The claimant sought a grant of probate in solemn form in relation to the 2016 will. The judge dismissed the claim on the ground that the 2016 will was invalid due to the deceased’s lack of testamentary capacity, and admitted the 2005 will to probate. The claimant appealed, contending that the judge wrongly discounted the evidence of the testator’s solicitor and the medical practitioner on the question of testamentary capacity, and instead preferring the evidence of other witnesses relating to the testator’s conduct and conversations before and after the 2016 will was executed. In particular, the judge was wrong to ignore the very strong presumption that a will that had been drafted by an experienced independent lawyer should only be set aside on the clearest evidence of lack of mental capacity, which in this case had not been shown.
On the appeal—
Held, appeal allowed. (1) Where the will was explicable and rational on its face, the conclusion reached by an independent lawyer who was aware of the relevant surrounding circumstances, had taken instructions for the will and produced a draft, had met with the testator, was fully aware of the requirements of the law in relation to testamentary capacity and had discussed the draft and read it over to the testator, was likely to be of considerable importance when determining whether a testator had testamentary capacity. That did not amount to a true presumption but was rather a statement of the obvious. It was a very strong thing to find that such a testator was not mentally capable of making a will. Such evidence was of considerable importance, particularly in comparison with evidence from a medical expert who did not meet the testator and arrived at his conclusions on the basis of the papers only. However, the evidence of the solicitor would not be definitive, and although it was of very considerable importance and should be given due weight, the judge had to evaluate all of the relevant evidence in relation to capacity. There might be clear evidence contrary to that of the solicitor. Furthermore, it should be borne in mind that the weight to be given to the conclusions reached by the lawyer drafting the would depended on the circumstances. In the present case where the solicitor had kept meticulous attendance notes, had taken instructions and drafted the new will, which was rational and explicable on its face, and had discussed it with the testator on a number of occasions and read it over to him, there were no circumstances requiring less reliance to be placed on the evidence of the solicitor (paras 79–82, 126, 126, 127).
(2) Although it might be prudent for a solicitor and for that matter, for a medical practitioner whose attention had been drawn to significant changes in testamentary intentions, to ask the testator about those changes, there was no rule to that effect. Reference to the terms of a previous will might be a helpful safeguard when seeking to confirm that the testator was aware of those who had a call upon his or her bounty, but it was no more than that. It was a helpful tool when seeking to confirm that the test for whether a testator had testamentary capacity was satisfied, and in particular the limb of the test which considered whether the testator was able to comprehend and appreciate the claims to which he ought to give effect. Reference to changes from provisions of a previous will, although a prudent step, should not be elevated into a requirement either for the drafting solicitor or the medical practitioner before their evidence in relation to capacity could be accepted. Furthermore, the relevance of those changes and therefore, of any enquiry about them would depend on the circumstances of the case. Neither should the testator be required to justify any changes in testamentary dispositions whether to his solicitor or his medical practitioner in order to prove that he had testamentary capacity. He did not have to give reasons. Subject to the provisions of the Inheritance (Provision for Family and Dependants) Act 1975, a testator was entitled to leave his estate as he chose, however capricious that choice might be and however ungrateful or unfair the terms might be to those whose expectations of testamentary benefit were disappointed. Testamentary capacity did not require a testator to recall the terms of a past will they had made, or the reasons why it provided as it did, as long as they were capable of accessing the information, if needed, and of understanding it once reminded of it. Of course, if the terms of the will were inexplicable or irrational, it was likely that there would be serious doubt as to capacity. That was not so in the present case. The nature of all of the dispositions contained in the 2016 will were described to the medical practitioner by the testator and were discussed with the solicitor and ultimately approved by the testator. It followed that the judge had erred in giving very little weight to the evidence of the solicitor and the medical practitioner. Accordingly, his conclusion was not open to him on the evidence and his order that the new will was invalid for want of testamentary capacity would be set aside (paras 89, 94–95, 96, 99, 102, 125, 126, 127).
Penelope Reed QC and Elis Gomer (instructed by Allington Hughes Law, Chester) for the claimant.
Alex Troup (instructed by Hugh James Solicitors) for the second and third defendants.
The first defendant did not attend and was not represented.