Sharp & Anor v Adam & Ors

Testamentary capacity remains governed by the test in Banks v Goodfellow (1870) L.R. 5 QB 549. A testator may make an irrational or unfair will, but only if capable of making a rational, fair and just one. Where mental disorder may have affected that capacity, the court may examine an unexplained disinheritance as evidence of impaired judgment or poisoned affections. The inquiry must address soundness of mind, rather than the court’s view of morality.

Compliance with the professional “golden rule” for wills made by old or infirm testators is not conclusive. Properly informed and contemporaneously recorded professional conclusions nevertheless require very persuasive evidence to displace. An appellate court should interfere cautiously with a trial judge’s evaluative decision on capacity.

A testator suffering from advanced secondary progressive multiple sclerosis executed a will leaving his residuary estate to two longstanding employees and nothing to his daughters. A solicitor prepared and supervised the will with exceptional care. A general practitioner and another solicitor attended its execution and considered that the testator understood what he was doing.

A deputy High Court judge held that the testator lacked testamentary capacity and pronounced against the will: [2005] EWHC 1806 (Ch). Although the testator understood the nature and effect of the will, his property and the claims upon him, the judge found that mental disorder had probably impaired his rational judgment or poisoned his natural affection for his daughters.

The principal beneficiaries appealed. The central issues were whether the judge had misapplied the Banks v Goodfellow test, whether the expert evidence supported his finding, and whether the Court of Appeal could properly interfere with that evaluative decision.

1. Appeal dismissed. May LJ delivered the judgment of the court. The deputy judge had neither misunderstood nor changed the law governing testamentary capacity. His decision was a factual evaluation supported, albeit narrowly, by evidence capable of sustaining it.

2. The governing test remained Banks v Goodfellow (1870) L.R. 5 QB 549. A testator must understand the nature and effect of making a will, understand the extent of the property, and comprehend and appreciate the claims upon him. No disorder of mind may poison his affections, pervert his sense of right, prevent the exercise of his natural faculties, or bring about a disposition through an insane delusion.

3. A testator has freedom to make an irrational, unjust or unfair will. Such a will is valid if the testator had capacity to make a rational, just and fair one. Where disease of the mind may explain the disinheritance of children, the court may inquire into the reason for that decision. The inquiry must address the testator’s soundness of mind and must not become an assessment of general morality.

4. The deputy judge had found that the first three elements of the Banks v Goodfellow test were satisfied. Professor Ron’s opinion had principally concerned cognitive impairment and did not address poisoned affections or perverted moral judgment. Much of the factual foundation for her opinion had also been rejected. Dr Hawkes’s evidence nevertheless provided some expert support for the conclusion that the unexplained disinheritance, viewed with the progressive disease, medication and cognitive decline, could indicate impaired judgment.

5. The “golden rule” for wills made by old and infirm testators is a rule of solicitors’ good practice, not a rule of law. Even exemplary compliance does not make professional evidence conclusive. Where contemporaneous professional observations are careful, properly informed and recorded, however, very persuasive evidence is required to displace them.

6. Under the applicable appellate standard, the court reviewed the deputy judge’s evaluative decision and could allow the appeal only if satisfied that he was wrong. Despite the strength of the contemporary evidence and the finely balanced nature of the case, the court was not so satisfied.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the finding that the 2001 will was invalid for want of testamentary capacity: [2006] EWCA Civ 449.
2. High Court, Chancery Division: A deputy judge held that the testator lacked testamentary capacity, pronounced against the 2001 will and held that the 1997 will was the last valid will: [2005] EWHC 1806 (Ch).