Westendorp & Anor v Warwick

Testamentary capacity and knowledge and approval are conceptually distinct requirements. Evidence that a testator appeared to understand what was happening does not necessarily establish testamentary capacity where medical evidence raises a real doubt, particularly when physical illness may have affected cognition. The court must also be satisfied that the testator understood and approved the will’s actual contents. Explanations which contradict or obscure the document, including assurances that undisclosed instructions will govern its effect, may prevent that requirement being met.

The claim concerned the validity of a manuscript will made by Marjorie Hodges shortly before her death. The will appointed her daughter and son-in-law as executors and left her estate to her daughter. It replaced an earlier will which made provision for other beneficiaries, including members of the defendant’s family.

The defendant challenged the will on the grounds that Marjorie lacked testamentary capacity and did not know and approve its contents. The issues required assessment of her longstanding cognitive difficulties, a serious chest infection at the date of execution, the circumstances in which the will was prepared, and the explanations given to her before signature.

1. The alleged will was invalid. The court pronounced against the will dated 31 August 2004.
2. Testamentary capacity and knowledge and approval are distinct requirements. The distinction was supported by Hoff v Atherton [2004] EWCA Civ 1554, at paragraphs 62–64.
3. On testamentary capacity, the medical evidence raised a real doubt about Marjorie’s cognitive condition. She had baseline memory difficulties and was suffering from a chest infection sufficiently serious to leave her confined to bed, tired and breathless. The evidence that she appeared to understand what was happening did not dispel that doubt.
4. The court was also not satisfied that Marjorie knew and approved the will’s contents. The will had been drafted by her son-in-law, shortly before execution, and the explanations given to her included assurances about a supposed secret codicil. Those assurances were potentially confusing and contradicted the terms of the document itself.
5. Even if Marjorie had possessed sufficient capacity to make a will in the simple terms of the document, the circumstances did not establish that she understood and approved its actual contents.

Not stated in the judgment.