Markou & Anor v Goodwin & Ors

Testamentary capacity requires more than an understanding that a will is being made and that it disposes of property. The testator must understand the nature and effect of the act, the extent of the property, and the claims that ought to be considered, without cognitive disorder preventing proper judgment. Where a duly executed will appears rational but evidence raises a real doubt about capacity, the evidential burden returns to its propounder. Under the third limb of Parker v Felgate, a testator who gave valid instructions may execute the will later only if capable of understanding that the document implements those instructions. Knowledge and approval may exist despite incapacity, but the requirements of capacity and knowledge and approval remain distinct.

This was a probate action concerning two wills made by Mrs Eileen Nora Rand. The claimants propounded a will dated 25 June 2007, executed on 20 June 2007, which benefited a close friend and carer and appointed new executors. The defendants relied on an earlier will dated 8 September 1969.

The issues were whether the 2007 will was validly executed, whether Mrs Rand had testamentary capacity when she gave instructions and executed it, and whether she knew and approved its contents. Execution was not challenged. The court therefore had to determine whether the 2007 will revoked the earlier will.

1. Disposition. The claimants failed to establish the validity of the 2007 will. The court pronounced against it and admitted the 1969 will to probate in solemn form.
2. Testamentary capacity. The governing formulation remained that in Banks v Goodfellow (1870) LR 5 QB 549, recently approved in Sharp v Adam [2006] EWCA Civ 449. Mrs Rand had to understand the nature and effect of making a will, the extent of her property, and the claims to which she ought to give effect. Her cognitive impairment had to be such that it prevented the exercise of her natural faculties. The court found that she understood the first two matters, but had not shown the capacity required for the third and fourth.
3. Burden of proof. The court applied the approach stated in Re Key Deceased [2010] EWHC 408 (Ch). Although the will appeared rational and had been duly executed, the medical evidence and surrounding circumstances raised a real doubt. The burden therefore rested on the claimants to establish capacity.
4. Instructions and execution. The rule in Parker v Felgate (1883) 8 PD 171, approved in Perrins v Holland [2010] EWCA Civ 840, required proof that Mrs Rand had capacity when instructions were given and, at execution, understood that she was executing the will for which those instructions had been given. The evidence did not establish either capacity on 15 June or the necessary understanding on 20 June.
5. Application. Mrs Rand’s forgetfulness, acute confusional states, underlying dementing illness, and the unexplained or inaccurate exclusions in the side letter showed that she could not adequately comprehend and appreciate the relevant claims. The witnesses to execution had not discussed the will’s contents with her, and their evidence did not prove the Parker v Felgate requirements.
6. Knowledge and approval. It was unnecessary to decide this issue. The court nevertheless observed, applying Fuller v Strong [2001] EWCA Civ 1879 and Perrins v Holland, that knowledge and approval may be established at the date of instructions even where capacity is absent at execution.