The Vegetarian Society & Anor v Scott

Testamentary freedom permits a person to leave property in an unexpected, inexplicable, unfair or hurtful way, provided the testator has testamentary capacity. Capacity is assessed at the time of the particular act and task. The testator must understand the nature and effect of making a will, the extent of the property, and the claims to which effect should be given, and must not be prevented by mental disorder or delusion from exercising the relevant faculties.

Schizophrenia, severe thought disorder, unconventional behaviour or an apparently irrational disposition do not automatically establish incapacity. The court must assess the evidence in context, including whether the testator could give coherent instructions and organise his affairs for the purpose of making the will.

John McKeen made five wills between 1994 and 2006. The claimants, residuary legatees under the 2006 will, sought to establish its validity. The defendant, Mr McKeen’s sister, challenged his testamentary capacity, principally in respect of the 2003 and 2006 wills, relying on schizophrenia, severe logical thought disorder, irrational behaviour and alleged delusional beliefs concerning his family.

The psychiatric experts agreed that Mr McKeen suffered from schizophrenia and severe thought disorder but disagreed about its effect on his capacity. The central issues were the applicable test for testamentary capacity, the burden of proof, and whether the evidence showed that Mr McKeen could understand and rationally undertake the task of making the 2006 will.

1. Applicable principles. The general principle of testamentary freedom permits dispositions which are unexpected, inexplicable, unfair, surprising, vindictive or hurtful: Gill v Woodall [2011] Ch 380 and Hawes v Burgess [2013] EWCA Civ 94. That freedom is subject to testamentary capacity.
2. The governing test was that stated in Banks v Goodfellow [1870] Law Reports 5QB 549. The testator must understand the nature and effect of the act, the extent of the property, and the claims to which effect should be given. No disorder of the mind or insane delusion must poison the testator’s affections, pervert the sense of right, prevent the exercise of natural faculties, or influence the disposition. Capacity is time- and task-specific.
3. The burden initially lies on the party propounding the will. If the will is rational on its face, the burden shifts to the challenger to raise a real doubt as to capacity. If a real doubt is raised, the burden reverts to the propounder. The 2006 will was regular on its face, the defendant had raised a real doubt, and the burden therefore lay on the claimants.
4. The judge rejected the proposition that Mr McKeen’s schizophrenia and thought disorder rendered him incapable of making a will at all material times. The expert evidence and the evidence of his instructions for property transactions and wills showed that he could gather his thoughts and engage in coherent, goal-directed activity. Professional witnesses also regarded him as able to understand and give clear instructions.
5. The apparently unusual dispositions did not themselves establish incapacity. The relevant question was whether Mr McKeen had reasons for his dispositions in the context of his family relationships and other relationships, and whether he understood the composition of his estate and the intended beneficiaries. The evidence showed that he did.
6. The claimants therefore proved that the will dated 10 August 2006 was valid. The court upheld the will and rejected the defendant’s challenge.

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