Hoff & Ors v Atherton

Testamentary capacity requires an ability to understand the nature and effect of making a will, the extent of the property disposed of, and the claims which the testator ought to consider. Proof of actual understanding at execution is not invariably required. Capacity may be inferred from the whole of the evidence.

Capacity and knowledge and approval are distinct requirements. Where suspicious circumstances exist, including a beneficiary’s involvement in preparing the will, the court must determine what evidence is needed to establish knowledge and approval. There is no universal rule requiring proof that the testator recalled the dispositions in an earlier will or appreciated every change from them.

The claimants were residuary beneficiaries under Mrs Krol’s 1987 will. They challenged her 1994 will, under which Mrs Atherton, a close friend and neighbour, became residuary legatee. They alleged that Mrs Krol lacked testamentary capacity and did not know and approve the will’s contents. Undue influence was not alleged.

A deputy High Court judge found that dementia raised a real doubt about capacity but held that Mrs Atherton had displaced that doubt. He also found that Mrs Krol knew and approved the contents of the 1994 will. The judge pronounced for the 1994 will and against the 1987 will and its codicils.

The appeal concerned whether doubtful capacity required proof of actual understanding and whether knowledge and approval required proof that the change from the earlier will had been brought home to the testatrix.

1. Appeal dismissed. Peter Gibson LJ held that the judge had applied the correct legal principles and was entitled to find both testamentary capacity and knowledge and approval. Chadwick LJ agreed and gave additional reasons. Lindsay J agreed with both judgments.

2. Testamentary capacity and knowledge and approval are conceptually distinct. Capacity concerns the ability to understand the nature and effect of making a will, the extent of the property disposed of, and the claims which the testator ought to consider. Knowledge and approval concern the testator’s actual understanding and acceptance of the will’s contents.

3. The language of Banks v Goodfellow did not impose a universal requirement for direct proof of actual understanding whenever capacity was doubtful. Evidence of actual understanding proves capacity, but it will often be unavailable. The court may infer capacity from the whole of the evidence, including events before, during and after execution.

4. Capacity is specific to the transaction and its nature and complexity. Some testators can understand a transaction only with an explanation or reminder. The judge was nevertheless entitled to find that this testatrix could understand the straightforward will, her property and the relevant claims without further explanation. Her dementia did not necessarily remove testamentary capacity.

5. Once a real doubt about capacity arose, the burden rested on the person propounding the will. The totality of the evidence entitled the judge to find that the doubt had been displaced on the balance of probabilities. The appellate court would not undertake a fresh evaluation of a fact-sensitive conclusion substantially dependent on credibility, weight and the trial judge’s overall impression.

6. A beneficiary’s involvement in preparing a will may arouse suspicion and require affirmative proof of knowledge and approval. The degree of suspicion and the evidence required depend on the circumstances. There is no universal rule that the testator must be shown to have recalled the earlier will or appreciated in financial terms every alteration made by the later will.

7. The 1994 will was read to Mrs Krol, implemented her instructions, and was confirmed by her as expressing her intentions. Its straightforward and rational dispositions recognised the existing objects of her bounty and reflected her close friendship with Mrs Atherton. The judge was therefore right to find knowledge and approval.

1. Court of Appeal (Civil Division): The appeal was dismissed. The findings that the 1994 will was valid and that the 1987 will and its codicils were invalid were upheld: [2003] EWCA Civ 1554.
2. High Court, Chancery Division: Mr Nicholas Warren QC, sitting as a deputy judge, pronounced for the force and validity of the 1994 will and against the 1987 will and its codicils. No neutral citation is stated.