Simon v Byford & Ors

Testamentary capacity concerns a testator’s capacity to understand the essential matters governing a will. It does not require proof of actual understanding or memory at execution. Nor does it require understanding of collateral consequences of a disposition, such as the significance of an asset when combined with another person’s property.

Knowledge and approval instead require actual knowledge and approval of the will executed, rather than of alternative dispositions. Suspicious circumstances may be rebutted by reliable evidence that the testator gave instructions, had the will read over and understood and approved it.

Robert Simon appealed from the High Court decision of Mr Nicholas Strauss QC, sitting as a Deputy High Court Judge, which pronounced in favour of his mother’s 2005 will: [2013] EWHC 1490 (Ch).

The will replaced earlier provisions favouring Robert with an equal division of the estate, including shares in the family company and a flat, among the testatrix’s four children or the relevant family trust. She had mild to moderate dementia and the will was prepared without a solicitor or medical examination.

The appeal concerned whether she had testamentary capacity, particularly whether she could understand the competing claims on her estate and the significance of the shares, and whether she knew and approved the will’s contents.

Appeal dismissed. Lewison LJ, with whom McFarlane and Sullivan LJJ agreed, held that the judge was entitled to find both testamentary capacity and knowledge and approval.

1. The applicable common-law test was that in Banks v Goodfellow (1870) LR 5 QB 549. Testamentary capacity is a question of potential: the testator must be capable of understanding the nature and effect of a will, the extent of the property, and the claims on the estate. It is not a requirement that the testator actually remembers every relevant fact at execution. The distinction between capacity and actual knowledge and approval was supported by Hoff v Atherton [2004] EWCA Civ 1554.

2. The finding that the testatrix had forgotten the reasons for her earlier preference for Robert did not establish incapacity. She was capable of accessing and understanding information about the earlier will, but chose to make an equal distribution. Her consideration of the legacy to her housekeeper and of the choice of executors also supported the finding that she could weigh claims on her bounty.

3. Capacity did not require understanding the collateral commercial consequence that allocating the shares equally might affect control of the company. The testatrix understood that she owned shares, that her new will divided them equally, that this departed from her earlier will, and that the change disadvantaged Robert. The common-law test did not require her to understand the extent of Robert’s property or the combined effect of his and her shareholdings.

4. Knowledge and approval required actual understanding and approval of the executed will, not an ability to evaluate other possible dispositions. Although the circumstances initially called for care, the judge was entitled, on a holistic assessment, to find that the suspicion had been dispelled. The will was simple; it was read to the testatrix repeatedly, she read it herself, and she gave responses showing her understanding and approval. The Court of Appeal would not interfere with those factual findings.

• Court of Appeal (Civil Division) dismissed Robert Simon’s appeal and upheld the validity of the 2005 will: [2014] EWCA Civ 280 .
• High Court, Chancery Division Mr Nicholas Strauss QC, sitting as a Deputy High Court Judge, pronounced in favour of the will, finding testamentary capacity and knowledge and approval: [2013] EWHC 1490 (Ch).