Loxston, Re

A testator must understand the nature and effect of making a will, the persons who may properly be considered as beneficiaries, and the property being disposed of. The testator must also be capable of weighing the relevant persons, property and circumstances and reaching a rational testamentary decision. Capacity is assessed at the time of execution and may depend on whether others have properly assisted the testator to focus on relevant considerations. Knowledge and approval are distinct from capacity. Undue influence requires improper pressure which overpowers the testator’s will and causes the gift. The 2003 will was invalid because the testator could not, without appropriate assistance, consider the wider range of beneficiaries and dispositions.

The claim concerned the estate of Dorothy Loxston, who died in 2003. The issue was whether her valid testamentary instrument was her 1990 will or a later will dated 30 January 2003. The later will left her house and contents to her carer, Mrs Richardson, gave her piano to a church, and divided the residue between members of her family.

The claimants alleged lack of testamentary capacity, want of knowledge and approval, and undue influence. The defendant relied on the evidence of the solicitor who took instructions and supervised execution. The central issues were whether Miss Loxston understood and could rationally evaluate the dispositions in the 2003 will, and whether the will resulted from improper pressure.

1. Capacity. The claim succeeded because the 2003 will was invalid for want of testamentary capacity. The applicable principles were drawn from Banks v Goodfellow (1870) LR 5 QB 549 and Harwood v Baker (1840) 3 Moore 282. The testator must understand the nature of the act and its effect, know the persons who should be considered as possible beneficiaries, understand the property being disposed of, be free from a disorder of mind affecting the decision, and have capacity to take the relevant persons, property and circumstances into account in reaching a rational, fair and just testament.
2. Capacity is assessed at the time of execution. It is not necessarily a permanent condition once lost. A testator may have sufficient capacity if appropriate assistance enables the testator to focus on all relevant considerations. Here, Miss Loxston understood that she was making a will and understood its expressed provisions. She knew that she owned the house and valuable shares. Those matters alone were insufficient. Her mental decline meant that, without assistance, she could not consider the friends, charities and other family members whom she would previously have wished to consider, or decide rationally how the estate should be divided.
3. The court distinguished capacity from knowledge and approval. Miss Loxston knew and understood the contents of the will and approved them, but lacked the capacity required to make it.
4. Undue influence. Applying Hall v Hall (1868) LR 1 P & D 481 and Wingrove v Wingrove (1885) 11 PD 81, undue influence required improper pressure which overpowered the testator’s will without convincing the judgment, and the gift had to result from that pressure. The burden lay on the party alleging it. The claimants did not establish undue influence. Mrs Richardson had encouraged the making of the will, but the court found that its dispositions represented what Miss Loxston wished to do.
5. The 2003 will was therefore declared invalid. The question whether Mrs Richardson would benefit under the earlier will was left to the beneficiaries’ discretion.

First instance decision. No earlier appellate decision is stated in the judgment.