McClintock & Anor v Calderwood

Testamentary capacity requires proof that the testator understood the nature and effect of making a will, the extent of the property disposed of, and the claims to which effect might appropriately be given. The will’s contents may assist in assessing capacity.

Where suspicious circumstances relate to the preparation or execution of a will, knowledge and approval cannot ordinarily be inferred merely from execution. Positive evidence is required. The circumstances must themselves be relevant to the will’s preparation or execution. Capacity and knowledge and approval are related but distinct issues, each decided on the balance of probabilities.

Dr Joseph McClintock executed two wills in January 1999 while resident in a care home. Both left his estate principally to the defendant, his niece-in-law. The first will had been admitted to probate.

The claimant sought revocation of that grant and challenged both wills on the grounds of want of testamentary capacity and want of knowledge and approval. The defendant sought probate of the second will in solemn form, or alternatively of the first will. The central issues were whether Dr McClintock had capacity when the wills were made and whether he knew and approved their contents.

1. Disposition. The court was satisfied that Dr McClintock had testamentary capacity when he gave instructions for and executed both wills, and that he knew and approved their contents. The second will, being the last will, was admitted to probate in solemn form, and probate of the first will was revoked.
2. Testamentary capacity. The applicable test required proof that Dr McClintock understood the nature and effect of making a will, the extent of the property of which he was disposing, and the claims to which he might appropriately give effect. The contents of a will could be relevant to capacity. Mild or early dementia did not necessarily deprive a person of testamentary capacity.
3. Knowledge and approval. In the absence of suspicious circumstances, execution of a duly executed will may establish knowledge and approval, and those matters will ordinarily be conclusively proved if the will was read to or by the testator or otherwise brought to his knowledge. Where suspicious circumstances exist, such as involvement by a beneficiary in preparation of the will, positive evidence of knowledge and approval is required. The suspicious circumstances must relate to the preparation or execution of the will itself.
4. The circumstances required closer scrutiny because Dr McClintock was frail, cognitively impaired to some degree, dependent on care, and the wills had been prepared by care-home staff. However, the principal beneficiary had not instigated or prepared the wills, and the staff involved did not benefit. These matters were relevant but did not determine the issues.
5. The court accepted evidence that Dr McClintock gave instructions, read both wills before execution, understood the successive gifts, and agreed that the principal beneficiary should be executor under the second will. The unusual nature of the dispositions did not establish incapacity or lack of approval. Both issues were factual questions determined on the balance of probabilities.

First instance decision. No prior appellate history is stated in the judgment.