Carr & Ors v Beaven & Ors

Testamentary capacity depends on whether the testator understood the nature and effect of the will, the extent of the property disposed of, and the moral claims requiring consideration. The assessment is specific to the time when instructions are given and the will is executed. Dementia, physical decline or mental illness does not itself establish incapacity if the required understanding and judgment remain. Capacity may fluctuate. The solicitor’s so-called golden rule is sound professional advice, but it is not a legal test or a condition of validity. The burden rests on the party asserting capacity.

The claimants, executors and beneficiaries under the deceased’s November 2000 will, sought probate. The deceased’s children contested that will and an earlier March 2000 will on the ground of lack of testamentary capacity, and counterclaimed for probate of a 1998 will. The dispute concerned the deceased’s understanding of the wills, his dementia and fluctuating mental condition, the exclusion of his children, and the removal of a proposed lease for a cottage occupant. The court also considered whether the 2004 codicil was valid.

1. Applicable test. The court applied the requirements stated in Banks v Goodfellow LR 5 QB 549. The testator must understand the nature and effect of making a will, the extent of the property disposed of, and the claims which ought to be considered. No disorder of mind must poison the testator’s affections, pervert his sense of right or influence the dispositions through an insane delusion.
2. The assessment is specific to the relevant occasions. Capacity must exist when instructions are given and when the will is executed, subject to the rule in Parker v Felgate (1883) 8P & D 171. Capacity may fluctuate. Physical decline and a diagnosis of mild or moderate dementia do not, without more, establish incapacity.
3. The golden rule is excellent advice to solicitors dealing with elderly or infirm testators, since medical evidence may help prevent later disputes. It is not a touchstone of validity and cannot replace the established legal test, as stated in Cattermole v Prisk.
4. The claimants bore the burden of proving testamentary capacity. The court was satisfied that the deceased understood that he was making a will and understood its consequences and the extent of his property. He was also capable of weighing the claims of his wife, children and the cottage occupant. The dispositions were not irrational merely because the evidence did not establish substantial wrongdoing by the excluded persons.
5. The court therefore pronounced in favour of the November 2000 will. It considered it improbable, however, that the deceased possessed testamentary capacity when he executed the 2004 codicil.

Not stated in the judgment.