Myranna Boult v Monica Rees

A testator has testamentary capacity where they can understand the nature and effect of making a will, the extent of the property disposed of, and the claims to which they ought to give effect. Capacity depends on the potential to understand, rather than memory alone. Mild cognitive impairment does not necessarily prevent capacity, particularly where the estate and testamentary dispositions are simple.

Where a duly executed will appears rational on its face, capacity is presumed. The evidential burden initially shifts to the challenger to raise a real doubt. If that occurs, the propounder must establish capacity on the balance of probabilities, considering all evidence available at trial.

Tilly Clarke made a will in 2013 appointing her son Roger as sole beneficiary, with a substitute gift to Danny Rees and Monica Rees if Roger predeceased her. Tilly later died with severe vascular dementia. Myranna Boult, a relative, challenged the will on the ground that Tilly lacked testamentary capacity. Monica Rees defended the will.

The evidence included limited medical records, expert psychiatric evidence, the evidence of the solicitor who prepared the will, and evidence from relatives. The central issues were whether the will was rational on its face, whether the evidence raised a real doubt about capacity, and whether Tilly had capacity when she executed the will.

1. Capacity test. The court applied the test in Banks v Goodfellow (1870) LR 5 QB 549. Tilly had to understand the nature and effect of the will, the extent of her property, and the claims to which she ought to give effect. The issue concerned the first three elements; no delusion was alleged.
2. Burden of proof. Because the will was professionally prepared, duly executed and rational on its face, capacity was presumed. Myranna therefore had to raise a real doubt. Although there was some doubt, it was insufficient to shift the evidential burden. In any event, Monica established capacity on the balance of probabilities.
3. Evidence. Capacity is concerned with the potential to understand and is not equivalent to memory: Simon v Byford [2014] EWCA Civ 280. The medical evidence indicated mild cognitive impairment in February 2013. The simplicity of the estate and dispositions meant that only a limited level of understanding was required. The expert evidence supported the conclusion that a person with mild impairment could make a will, although it could not itself determine the issue.
4. The evidence from the claimant’s relatives did not reliably address Tilly’s condition at the relevant time. The evidence from Monica and Sian was given little weight. The solicitor’s evidence provided limited support because he had not made an attendance note or taken steps under the golden rule to satisfy himself as to capacity.
5. The court found that Tilly understood the nature and effect of the will, the extent of her property, and the relevant claims on her estate. It pronounced for the 2013 Will in solemn form.
6. The claimant’s application to reopen the trial to adduce birth certificates was refused. The evidence was peripheral, could have been obtained earlier, was not directly relevant to any issue, and finality in litigation was important.

First-instance decision. No earlier judgment or appeal is stated in the judgment.