Jonathan Forrester (pictured), director at Cleaver Fulton Rankin, writes below.

The Dispute Resolution Team at Cleaver Fulton Rankin regularly acts for charities and individuals who are the beneficiaries of a Will which is the subject of a challenge by a disappointed family member who claims that the Deceased did enjoy testamentary capacity.

One issue which was recently explored by the High Court of England and Wales in the case of Lloyd v Jones & Ors EWHC 1308 was the effect of delusions upon a person’s capacity to execute a Will. The Court made it clear that there needs to be a direct causative link between the delusion and the gifts made, if a challenge to the validity of the Will is to be successful.

In this case, the Judge confirmed that he was satisfied that the Deceased had been suffering from Dementia since 2004 and that she had experienced delusions. However, neither of these factors meant that the Testatrix lacked testamentary capacity, nor were they directly relevant to the gifts that she made in her Will. The delusions suffered by the Testatrix were indeed “bizarre” and included the belief that aliens had landed at her farm, poisoned the water supply and further, that Saddam Hussein himself had broken into the farm.

Despite all of this, the Judge held that the Testatrix passed the common law test of testamentary capacity, which was established in the well known case of Banks v Goodfellow. Under the test, the Testatrix must:

It must be remembered that the test set out in Banks v Goodfellow is a legal test, not a medical test. That is not to say that medical evidence of delusions is not relevant to an assessment of testamentary capacity but there must be a link between those delusions and the testamentary dispositions of the Deceased.

There are, of course, cases where an individual’s testamentary dispositions are influenced by delusions and general mental decline. In such circumstances, where the delusions have poisoned the mind or affections of the Testatrix against potential beneficiaries and as a direct result, there has been a change to her testamentary intentions, it may well be held by a Court that the Testatrix lacked testamentary capacity and the Will should be set aside.

Given the increased life expectancy of this generation, together with the increase in Dementia related conditions, there can be no doubt that in the coming years there will be a greater number of challenges to the validity of Wills on the ground of lack of testamentary capacity.

In that regard, if there is any suspicion or concern about the testamentary capacity of the Testatrix, the Solicitor who executes the Will has a duty, at least to the intended beneficiaries of the Will, to ensure that there is as little doubt as possible regarding the validity of the Will. When preparing a Will, a Solicitor offers no warranty that the Testatrix has testamentary capacity but he can implement safeguards to ensure that the Will is properly executed and seek to discourage a disappointed family member from embarking upon hostile and costly litigation. For example, the Solicitor can follow the so called “Golden Rule” by seeking a medical opinion on the general mental capacity of the Testatrix. Such a step can assist in defending any future challenge to the Will on the grounds of lack of capacity, want of knowledge and approval and/or undue influence.