White v Philips

Testamentary capacity is assessed at the time instructions are given and, ordinarily, when the will is executed. A duly executed and facially rational will attracts a rebuttable presumption of capacity, but a real doubt shifts the evidential burden back to the propounder. The court must apply the four-part test in Banks v Goodfellow and must decide the issue itself, using expert evidence as an aid rather than delegating the decision. Capacity at execution may be sufficient where the conditions in Parker v Felgate are met. Testamentary capacity is distinct from knowledge and approval. An apparently irrational or unfavourable disposition does not necessarily demonstrate incapacity or an insane delusion.

Raymond White died after making a will which gave his widow a right to occupy their former matrimonial home but left the substantial remainder of his estate principally to one daughter. His widow challenged the will, alleging that he lacked testamentary capacity when he instructed a legal executive to prepare it and when he executed it. The allegation of undue influence was abandoned. The central issue was whether the defendant, as executrix and propounder, had established testamentary capacity and knowledge and approval of the will’s contents.

1. The court found that the claimant had raised a sufficient doubt about capacity to shift the evidential burden to the defendant. The defendant nevertheless established, on the balance of probabilities, that Mr White had testamentary capacity both when instructions were given on 28 May 2010 and when the will was executed on 4 June 2010.
2. The court applied the four requirements in Banks v Goodfellow. Mr White understood the nature and effect of making a will, understood the extent of his property, appreciated the claims of those included and excluded, and was not shown to suffer from a disorder of mind which influenced the disposition.
3. The evidence of drug toxicity, tremors, confusion and deterioration created a legitimate issue but did not establish incapacity at the material times. The legal executive’s evidence, the contemporaneous professional evidence, the coherent nature of the instructions and the relatively uncomplicated will supported capacity. The court remained responsible for deciding capacity; the experts’ knowledge and experience were valuable tools but did not determine the issue.
4. Under Parker v Felgate, capacity at execution was not indispensable if capacity existed when instructions were given, the will followed those instructions, and the testator remembered giving them and believed the document reflected them. Those conditions were satisfied.
5. Knowledge and approval was a separate inquiry. Applying the distinction explained in Perrins v Holland and Others, the court was satisfied that the will reflected Mr White’s continuing intentions and that he understood the juristic act of execution.
6. The will was not irrational, unfair or unjust merely because it favoured one daughter over the claimant. It preserved the claimant’s substantial use and benefit of the home and estate. The will was propounded in its favour.