Peter Wilkinson & Ors v Jessica Hicken

For testamentary capacity, the court applies the Banks v Goodfellow test to the particular transaction, including its nature and complexity. A duly executed will that appears rational on its face gives rise to a presumption of capacity, although a real doubt may shift the evidential burden back to the person propounding it.

Knowledge and approval concerns understanding and approving provisions already made. Proper execution of a will prepared by a solicitor and read over to the testator strongly supports that requirement. A will is not irrational merely because it is unfair or departs from earlier dispositions, where the change is explicable by the testator’s circumstances, personality and intentions.

The claimants, trustees of the Norman Gill Charitable Trust, sought a declaration in solemn form that Norman Walter Gill’s will dated 15 February 2018 was valid. Jessica Hicken defended and counterclaimed on the basis that Norman lacked testamentary capacity and did not know or approve the will, relying on his age, illnesses, medication, personality, family estrangement and the alleged irrationality of the dispositions.

Following a settlement, Jessica irrevocably accepted the will’s validity, subject to the court propounding it in solemn form. The trial proceeded on written evidence. The central issues were whether the evidence established testamentary capacity, knowledge and approval, and whether there were circumstances requiring the claimants positively to allay suspicion.

1. Declaration. The court declared in solemn form that the will dated 15 February 2018 was valid.
2. Testamentary capacity. The governing test was that in Banks v Goodfellow (1870) LR 5 QB 549. Norman had to understand the nature and effect of making the will, the extent of the property disposed of, and the claims to which he ought to give effect. He also had to be free from a disorder of the mind that poisoned his affections, perverted his sense of right or caused an insane delusion to influence the disposition. Capacity was assessed in relation to the particular transaction, including its nature and complexity.
3. Because the will was duly executed and rational on its face, capacity was presumed. The evidential burden therefore shifted to Jessica to raise a real doubt. If such a doubt had been raised, the burden would have returned to the claimants. The medical and factual evidence did not establish such a doubt. A personality disorder, even if present, would not necessarily involve loss of testamentary capacity.
4. Knowledge and approval. This required understanding and approval of the choices already made: Gill v Woodall [2011] Ch 380. The will was prepared by Norman’s longstanding solicitor, explained to him in detail and duly executed. Those circumstances provided a very strong presumption that it expressed his intentions, consistent with Fuller v Strum [2002] 1 WLR 1097 and Gill v Woodall.
5. The court accepted that Norman’s treatment of his children could be viewed as unfair, but held that the dispositions were not irrational. His decision was explicable by the longstanding breakdown in family relationships, his unchanged personality traits, his inability to accept responsibility for the breakdown, and his considered pursuit of an alternative charitable legacy. No circumstances excited suspicion that the will failed to represent his intentions.