Sting in the tail: Testamentary capacity, knowledge and approval

A new approach to the law of negligence as applied to the drafting of wills means that all will draftsmen should be on their guard. Alastair Brierley considers some of the pitfalls highlighted by recent cases.

Lawrence Collins J recently reminded us that every unhappy family is unhappy in its own way, but “there is a depressing similarity between unhappy families when it comes to disputes over the assets of deceased persons,” (Re Loftus deceased [2005] 2 All ER 700, 702). This may, at first blush, be considered to be good news for lawyers, because probate disputes usually involve a number of parties, each of whom needs to be independently represented. Unfortunately, however, it is increasingly common for the will draftsman to face a claim in negligence once the substantive dispute between the parties has been determined. This article concentrates on cases where wills have been challenged on the basis of the testator’s lack of capacity, and/or his lack of knowledge and approval of the contents of the will.

The leading case on testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549, where the testator had made his will in 1863. In 1841, he
had been confined as a lunatic for some months; thereafter, he remained subject to delusions that he was being personally molested by a man who had long been dead, and believed that he was pursued by evil spirits whom he believed to be visibly present. His will was challenged by his heir at law, because he had left his entire estate to his niece. During the course of his judgment, Cockburn CJ set out the appropriate test (at p. 565):

“It is essential… that the testator shall understand the nature of the act and its effect, shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison
his affections, pervert his sense of right or prevent the exercise of the natural faculties…”

On the facts, the validity of the will was upheld because the delusions from which the testator suffered did not affect the disposition of his property.

Whether the testator has the capacity to make a will is distinct from the question of whether he knows and approves of the contents of the will he has made. A testator who lacks testamentary capacity is unable to make a will at all, because he cannot understand the nature and effect of a will, the extent of his property or the persons who have legitimate claims upon his bounty. But a testator who does have the requisite capacity may nevertheless make a will, the precise terms of which he does not understand. Although the burden of proving, on the balance of probabilities, that the testator did have capacity and did know and approve of the contents of his will rests on the person propounding the will, there is a rebuttable presumption that a will which is rational on its face is valid (Symes v Green (1859) 1 Sw. and Tr. 401; Hastilow v Stobie (1865) LR1 P and D 64). Nevertheless, the circumstances may be such as to cast doubt on the validity of the will – as in Banks v Goodfellow itself – in which case the propounder of the will must satisfy the court that the testator was capable of making a will and understood the contents of the actual will in dispute.

The role of the will draftsman

The will draftsman needs to be very careful in cases where he is taking instructions from someone who is old and infirm, particularly if the approach is made not by the testator himself but by someone purporting to act on the testator’s behalf. The advice of Templeman J in Re Simpson deceased (1977) 121 SJ 224 was that, in these circumstances, the testator’s will should be attested and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. Thankfully, this ‘golden rule’ has recently been held (by Sonia Proudman QC in Allen v Emery [2005] ALL ER (D) 175) to be no more than “prudent guidance for a solicitor”, thus enabling solicitors to exercise professional judgement. In Allen v Emery, the childless testatrix made a will in a hospice nine days before her death. She left her house to some neighbours who, following the death of her husband about ten years previously, had become her close friends; it was those neighbours who had contacted the solicitor about the will and upon whose instructions the will had been prepared. The solicitor was, however, with the testatrix when the will was executed and, because the neighbours were also present at that time, went back later in the day to see the testatrix on her own and to satisfy himself that she had capacity and knew what she was doing. The challenges to the will – on the grounds of lack of testamentary capacity, lack of knowledge and approval, and undue influence – all failed. The solicitor had, fortunately, made detailed and contemporaneous notes.

Contrast Allen v Emery with Reynolds v Reynolds [2005] EWHC 6 (Ch), where the elderly testatrix had made a new will shortly before her death in favour of one of her two sons, revoking an earlier will that had left her residuary estate in equal shares to her two sons and her granddaughter. Unbelievably, a retired solicitor had made the will without ever seeing the testatrix, acting on instructions from (guess who!) the sole residuary beneficiary. Not surprisingly, the will was challenged on the basis of both lack of testamentary capacity and lack of knowledge and approval (as well as lack of due execution/forgery). Leaving aside the disgraceful behaviour of the solicitor, this was a classic case of circumstances exciting the suspicion of the court, which has to be “vigilant and jealous” (per Parke B in Barry v Butlin (1838) 2 Moo PC 480) in assessing the evidence in support of the will, in whose favour it should not pronounce unless the suspicion is removed. The judge did not think that the son who had been instrumental in procuring the drafting and execution of the will had shown, on the balance of probabilities, that his mother knew and approved the contents of her last will, although he did consider that, notwithstanding episodes of confusion, the testatrix was not suffering from mental impairment sufficient to deprive her of the capacity to make a will. The grant of probate of the disputed will was revoked, and the judge pronounced in solemn form in favour of the earlier will.

The importance of surrounding circumstances

Testamentary capacity is capable of co-existing with mild to moderate dementia, as is demonstrated by McClintock v Calderwood LTL 26/4/2005. The claimant was the deceased’s brother, who alleged that the will leaving the entire estate to the deceased’s niece-in-law was invalid on the grounds of both lack of testamentary capacity and lack of knowledge and approval. The judge upheld this will, despite the fact that the deceased was suffering from a degree of cognitive impairment when he made it, and the fact that a consultant psychiatrist gave evidence that the deceased did not fulfil the criteria for testamentary capacity. It was significant, however, that the expert had not examined the deceased and was drawing inferences from medical records. The judge considered the totality of the evidence and was particularly impressed by the witnesses to the will, who worked at the care home where the deceased lived. Moreover, the beneficiary and her husband were the people closest to the deceased in his last years. All of this made the terms of the will less surprising.

By contrast, in Tchilingirian v Ouzonian [2003] WTLR 709, the testatrix was showing signs of confusion and dementia in everyday matters prior to the execution of three challenged wills, which significantly altered the devolution of her estate by benefiting only one of her three grandchildren. Coupled with this, the circumstances surrounding the execution of the contested wills were highly suspicious: the mother of the residuary beneficiary had made the arrangements for the making of the contested wills, and she was the one who had written out for the testatrix what she allegedly wanted the wills to contain. The burden of proof therefore shifted to the propounder of the will, who was unable to discharge it; so the grant of probate was revoked, and the court pronounced in solemn
form in favour of a will executed prior to the three challenged wills, which made equal provision for the testatrix’s three grandchildren.

A similar result was reached in Sharp v Adams LTL 28/4/2006, where the testator – without rational explanation and at a time when he was suffering from secondary multiple sclerosis – made a will disinheriting his daughters. The Court of Appeal, upholding the trial judge, decided that the testator lacked testamentary capacity – notwithstanding the direct evidence of numerous witnesses, including his solicitor and general medical practitioner, that the testator’s cognitive faculties were sufficiently unimpaired for testamentary purposes at the time he made his last will.

The risk of negligence

The case of Buckenham v Dickinson [2000] WTLR 1083 flags up very starkly the problems solicitors can face if they are not careful and meticulous when preparing wills for clients. The idea of making wills as ‘loss-leaders’ is nowadays wholly inappropriate and foolhardy, given the sea change that has occurred in the law of negligence relating to the drafting of wills in recent years. Long gone are the days when it could be said – as did Lord Campbell LC in Robertson v Fleming (1861) 4 Macq 167 – that to allow a disappointed legatee to sue the testator’s solicitor is “not the law of Scotland or of England and it can hardly be the law of any country where jurisprudence has been cultivated as a science.”

Mr Dickinson (a solicitor) had prepared a will for a client who was 93, very deaf, partially blind and suffering from hardening of the arteries. Because of the difficulty in obtaining instructions from the testator, Dickinson obtained them from the testator’s (second) wife and then put leading questions to the testator, who did not provide any reasoned answers. When the will was executed, the testator was periodically asked if he agreed, but he made no comment other than somewhat inarticulate affirmatives. The will left pecuniary legacies of £5,000 to each of the grandchildren – both the testator’s own, and his wife’s grandchildren. The testator’s surviving son challenged the will on the grounds of both lack of capacity, and lack of knowledge and approval; he failed on the first ground, but succeeded on the second.

The judge was critical of the conduct of the solicitor, who had failed to ensure that the instructions he was receiving came from the testator himself. While one can have a certain amount of sympathy for Dickinson in the circumstances – the testator’s numerous frailties made it extremely difficult to communicate with him – one cannot help feeling that he had (doubtless for the best of motives) brought the problem on himself, because he was not prepared to devote the time and attention to the task which the case demanded and yet was not prepared to decline the retainer.

Once the judge had decided that the last will was invalid, the issue of costs had to be dealt with. The claimant had won: and the usual order is that the successful party is entitled to have his costs paid by the losing party, in this case Dickinson. This is subject to the caveat that if the litigation has been caused by the fault of the testator, for example, because of the disorganised state in which he kept his papers, the costs of both parties will be ordered to be paid out of the estate. (For a recent example, see Rowe v Clarke LTL 10/5/2006.) A proving executor is, of course, normally entitled to his costs out of the estate; but as the will appointing Dickinson as executor had been held to be invalid, he was clearly not entitled to his costs. Dickinson had, in fact, caused the litigation because of his conduct both at the time when the will was made and subsequently when he had failed to provide the claimant with a statement setting out the circumstances in which the will had been made (presumably because, unlike the solicitor in Allen v Emery, he had failed to make detailed attendance notes) as is required in accordance with the decision of the Court of Appeal in Larke v Nugus [2000] WTLR 1033. Having considered the matter, the judge – much, no doubt, to Dickinson’s relief – decided to make no order as to costs, so that each party paid its own costs.

Dickinson was lucky. Other solicitors who find themselves in his predicament are not likely to be treated as generously as Dickinson was, for this case is clear authority on the extent of the duties owed by the will draftsman when asked to prepare a will for a ‘problem’ testator. One may also wonder whether Dickinson himself faced a professional negligence claim by Buckenham. Had it not been for Dickinson’s behaviour, the probate litigation would not have taken place and the beneficiaries under the true will would have received an estate undiminished by the costs of the litigation.

In Corbett v Newey [1998] Ch 57, the testatrix owned two farms and two cottages. By a will made in February, she left a farm each to her nephew and niece, with the residue passing to each of them jointly. Later, she made lifetime gifts of the farms to the nephew and the niece, and instructed her solicitors (Bond Pearce) to draw up a new will, leaving a cottage each to the nephew and niece, and the residuary estate to the niece’s two sons equally. When, in September, she executed the new will, the lifetime gifts had not been completed and the testatrix did not intend her new will to take effect until the lifetime gifts had been made. These gifts were completed in December, when the September will was dated.

The nephew challenged the validity of the September will: and the Court of Appeal, reversing Eben Hamilton QC, held that it was invalid because a will which is unconditional on its face must be executed with immediate testamentary effect. The pronouncement against the September will and in favour of the February will meant that the ‘wrong’ people, that is, the nephew and niece, inherited the residuary estate. The rightful beneficiaries, that is, the two great-nephews, then instituted professional negligence proceedings against Bond Pearce, relying on the House of Lords decision in White v Jones [1995] 2 AC 207. This claim was settled, with the great-nephews receiving £275,000, a sum representing the full amount of their claim and interest, calculated by reference to the notional net residuary estate under the September will undiminished by the cost of the probate proceedings. The nephew, suing as personal representative of the February will, also brought proceedings against Bond Pearce in negligence, seeking to recover the costs (some £150,000) which the Court of Appeal in Corbett v Newey had ordered to be paid out of the estate. In Corbett v Bond Pearce [2001] 3 All ER 769, the Court of Appeal dismissed this later claim, essentially on the basis that the testatrix had never intended the nephew and niece to inherit the residue at all. Accordingly, there had been no breach of a duty of care owed by Bond Pearce
to the testatrix.

It would seem to follow from the above that Buckenham would have been entitled to recover from Dickinson the costs of the probate claim, because the payment of these costs by the estate meant that the residuary estate was smaller than it should have been. Buckenham was not in exactly the same position as the great nephews in the Bond Pearce litigation – because the will under which he benefited was upheld – but he nevertheless received less than he should have done as a result of Dickinson’s conduct. The principle will apply in every case where the costs of probate litigation have reduced the size of the estate that would otherwise have been inherited by the beneficiaries.

Conclusion

Will draftsmen should not assume that they can safely make wills for everyone who appears to indicate that they want to make them. If a will draftsman decides to accept a retainer from a client, he needs to prepare the will promptly, lest he finds himself defending a professional negligence claim brought by one or more disappointed beneficiaries. But there is no rule obliging the draftsman to accept a retainer in every case, and this article has highlighted a number of circumstances where the draftsman would have been well advised to have declined instructions. If instructions are accepted, the draftsman needs to ensure that he receives them directly from the client and that he makes detailed, contemporaneous notes. In appropriate cases, he needs to adhere to the golden rule expounded in Simpson, however embarrassing that may be in practice. Some clients may well find the whole process of making a will rather morbid, difficult and unpleasant. But once the job is done, they can hope to die in peace. For the less than diligent will draftsman, however, the death may shatter his peace for many years to come.

A H R Brierley is a partner in Turnbull Garrard Shrewsbury and a part-time lecturer. He can be contacted at irena@turnbullgarrard.co.uk