Ali Biria v Hamid Biria & Ors

Testamentary capacity is determined retrospectively by the Banks v Goodfellow test. The Mental Capacity Act 2005 does not replace that test for a deceased person’s will. A court must consider whether the testator understood the extent of the estate, appreciated the claims of potential beneficiaries and was free from relevant mental disorder affecting those matters.

The usual presumption of knowledge and approval arising from proper execution and reading over of a will applies only where the testator is competent or capable. Actual undue influence requires proof that coercion overbore the testator’s will, so that the document was not made voluntarily. Fraudulent calumny requires dishonest aspersions known to be false or made recklessly.

Abdul Razagh Biria purportedly executed a will on 1 May 2020, shortly after Court of Protection proceedings had begun concerning his capacity to manage his affairs. The will excluded his eldest son, Ali, made specific provision for funds in a United States bank account, and substantially benefited other family members.

Ali claimed that the will was invalid for lack of testamentary capacity, want of knowledge and approval, undue influence, and fraudulent calumny. The defendants did not participate in the proceedings. The central issues were whether Mr Biria understood the extent of his estate and the claims of potential beneficiaries, whether he knew and approved the will’s contents, and whether the will was procured by coercion or dishonest aspersions.

1. Testamentary capacity. The court applied the Banks v Goodfellow test and held that the Mental Capacity Act 2005 had not superseded it for retrospective assessment of testamentary capacity. Mr Biria’s dementia meant that he could not understand the extent of his estate or properly appreciate the claims of potential beneficiaries. The court gave substantial weight to Dr Barker’s expert evidence, while recognising that the ultimate decision was judicial.
2. Knowledge and approval. Knowledge and approval is distinct from capacity. Although a properly executed will read over to a testator may ordinarily attract a strong presumption of knowledge and approval, the authorities confined that presumption to a competent or capable testator. Mr Biria’s lack of capacity, severe visual impairment and inability to retain the contents of the will meant that no such presumption arose. He neither knew nor approved the contents.
3. Undue influence. In the context of a will, the issue is actual, not presumed, undue influence. The question is whether coercion overbore the testator’s will so that the will was not made voluntarily. The court found that Mr Biria was wholly dependent on Hamid and Nasrin, had no understanding of the principal assets dealt with by the will, and acted at their direction. The will therefore failed for actual undue influence.
4. Fraudulent calumny. The pleaded allegation was not proved. Although the allegations against Ali were unfounded and contributed to the finding of incapacity, there was insufficient evidence that Hamid or Nasrin made or supplied them, or knew them to be false.
5. The court declared the will invalid for lack of testamentary capacity, want of knowledge and approval, and undue influence, but not for fraudulent calumny.