Scammell & Anor v Farmer

Testamentary capacity is governed by the common-law test in Banks v Goodfellow, including the ability to understand the nature and effect of making a will, the extent of the property, and the claims to which effect should be given. Imperfect memory or mild dementia does not necessarily prevent capacity.

Where circumstances excite suspicion, the party propounding a will must provide more than proof of capacity and due execution to establish knowledge and approval. Undue influence requires coercion which overbears the testator’s free will; persuasion, even strong or morally questionable persuasion, is insufficient. The so-called golden rule is prudent professional guidance, not a test of validity.

The claimants challenged their grandmother’s 2003 will, under which the defendant, her daughter, received almost the whole estate. The claimants alleged that the testator lacked testamentary capacity, lacked knowledge and approval of the will’s contents, and acted under the defendant’s undue influence.

The testator had Alzheimer’s disease and short-term memory impairment. The defendant had been closely involved in preparing the will, was present at the solicitor’s meetings, paid the solicitor’s bill and was the principal beneficiary. The court therefore considered whether those circumstances generated suspicion, and whether the applicable tests were affected by the Mental Capacity Act 2005 or by the professional guidance known as the golden rule.

1. Applicable law. The court held that the Mental Capacity Act 2005 did not govern the assessment of testamentary capacity in this case. The relevant events pre-dated the Act’s general commencement, and applying it would give the Act retrospective effect. The claim was therefore decided under common-law principles.
2. Capacity. The governing test was that stated in Banks v Goodfellow. The testator must understand the nature and effect of the will, the extent of the property disposed of, and the claims of those whom the testator ought to consider. Mental faculties need not be possessed in the highest degree. Imperfect memory and mild dementia are not equivalent to incapacity.
3. The medical evidence principally concerned memory and did not establish an inability to understand the estate, family relationships or the proposed dispositions. The testator’s deliberations, consultation with her sister, conduct, and the evidence of the solicitor supported the conclusion that she had testamentary capacity when the will was executed.
4. Knowledge and approval. The circumstances of preparation generated suspicion because of the defendant’s extensive involvement and benefit. The burden therefore required more than proof of capacity and due execution. It was nevertheless discharged: the testator’s intention had been formed before the solicitor’s first meeting, the dispositions were simple, the will was read and confirmed, and the solicitor had performed his duty to ascertain understanding.
5. Undue influence. The claimants bore the burden of proof. Persuasion or appeals to family feeling are legitimate unless coercion overbears the testator’s free will. The evidence did not establish that the testator had been driven or coerced into making the will.
6. Golden rule. The recommendation that an aged or infirm testator’s will be witnessed or approved by a medical practitioner is prudent guidance for avoiding disputes. It is neither a touchstone of validity nor a substitute for the established tests of capacity and knowledge and approval. The claim was dismissed.

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