Testimentary Capacity Class Assigned English Cases

Banks v Goodfellow (1870) LR 5 QB 549

Facts
The case involved John Banks’ bequest, who left behind a sizable estate that included 15
cottages in the Lakes District. Mr Banks, on the 2nd of December 1863 decided to make a
new will which stated that his estate was to be left to his niece. Two years later, Mr Banks
passed away. Two years later after that, his niece passed away; her estate which included
the inheritance from Mr banks, went to her half-brother, who was not a member of Mr
Banks’ family.
Throughout Mr Banks’ life, he had seizures, delusions and had previously spent time in a
mental institution. In particular, Mr Banks claimed that he was constantly visited by devils or
other evil spirits and that a Mr Alexander was pursuing and harassing him. Even Mr
Alexanders death did not dissuade Mr Banks from holding those beliefs. In an effort to have
Mr Bank’s will invalidated due to lack of testamentary capacity, the son of Mr Banks half-
brother brought proceedings to the court.
Decision
The claim was dismissed, and it was determined that Mr Banks was mentally capable of
drafting his own will. Although Mr Banks’ delusions were obvious, they had no bearing on
the bequests he made in his will. It was established that the test to assess for testamentary
capacity, is that the testator must:
 Understands the nature of making the will and its effects – essentially the testators
must have the mental capacity to have awareness that the will disposes of their
assets upon their death.
 Comprehends the scope of the assets they are disposing of – the testator need not
know the exact value of their assets, but they must be aware of their level of wealth.
 Able to give consideration to any claims to their estate – in other words the testator
must know who might get first claim on their property, for example if they are
married it would be their spouse.
 Must not be impacted by a disorder of the mind or insane delusion – that alters their
sense of right and wrong or hinders them from using their natural abilities to wilfully
dispose of their assets.
The complexity of the will and the assets being distributed would determine the testator’s
level of knowledge.

Simon v Byford [2014] EWCA Civ 280, 17 ITELR 536

Background
The Deceased’s late husband founded a manufacturing company and shares in the company
were held equally by the children. The remaining shares were held by the Deceased to
prevent a deadlock. Three of the four children (R, H and J) were directors of the company.
R (Claimant) was the Managing Director who took an active day to day role in the running of
the company. In 1996, the Deceased made a Will leaving her shares in the company
together with a flat to R with the remainder of the estate being split between the children.

In 2001, the Deceased’s mental health began to deteriorate. In 2005, a birthday party was
held for the Deceased to celebrate her 88th birthday. At the party, the Deceased’s Will was
brought up. The Deceased became very upset that her Will did not share her assets equally
between her children and she therefore decided to rectify this immediately. The Deceased
at the party made a new Will, leaving her assets to her four children equally. In 2009, the
Deceased died. R challenged the Deceased’s Will claiming that she lacked the requisite
capacity when making the 2005 Will.
One of the points raised by R when challenging the Will was that the Deceased had not
appreciated the significance of her shares. Whilst alone they held no significance, they were
significant to R as when combined with his existing shareholding it gave him the power to
avoid deadlock.
What did the first instance Judge decide?
The Judge concluded that:
The Deceased had been capable of understanding and had understood the nature of the
Will and its effect;
The Deceased had been capable of understanding and had understood that her property
included the house she lived in, the flat and the shares in the company. She was, however,
not capable of remembering the exact details without being told; and
It was not necessary in the circumstances for the Deceased to know the different provisions
of her earlier Will. As a result of the above, the Judge decided that the 2005 Will was valid.
R decided to appeal this decision on the basis that it had been found that the Deceased was
not capable of remembering her reasons for favouring him in the earlier Will and, as such,
he believed that it should have been decided that the Deceased lacked testamentary
capacity.
Court of Appeal decision
The Court of Appeal upheld the decision of the first instance Judge.
To appreciate the significance of the shares held by the Deceased she would have needed to
have understood what her own estate consisted of and also what R’s assets had been. The
Court of Appeal clarified that it is not a condition of testamentary capacity that the testator
should understand or remember the extent of anyone else’s property.
On the evidence, it was decided that the Deceased had known that she was making a Will
and that she had taken a conscious decision to make it and to approve the terms of the Will.
Given that the Will had been relatively simple and the Deceased had been found to have
had testamentary capacity, it decided that she did have knowledge and approval of Will.
Comment
The decision in Simon v Byford is important when it comes to assessing whether someone
has testamentary capacity and highlights that the test for testamentary capacity is not a
memory test. The Deceased had forgotten that she had owned a flat, forgotten the impact
of her shareholding and had forgotten the contents of her previous Will. Notwithstanding
this, the Court came to the conclusion that she did have testamentary capacity. It is,
however, important to note that each case does turn on its own facts.
Hoff and others v Atherton
Appeals were made against pronouncements for the validity of a will and against the validity
of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested
an independent solicitor to see the testatrix and ensure that she understood it, and that it
represented her wishes. He then witnessed the will. The testatrix later came to suffer
dementia. The family sought to say that she lacked capacity. It was held that the test for
mental capacity is not monolithic, but is tailored to the task in hand.
The Court will accept that the testator was able to understand what he was doing and its
effect at the time when he signed the document but needs to be satisfied (by something
other than inference from the fact of capacity and due execution of the will) that he did in
fact know and approve the contents, i.e. understand what he was doing and its effect.
Proper procedures had been undertaken to ensure that the will was properly executed and
witnessed, and there was evidence that the testatrix had capacity. There was no suggestion
of any undue influence. The appeal failed.
Chadwick LJ said: ‘A testator cannot be said to know and approve the contents of his will
unless he is able to, and does, understand what he is doing and its effect. It is not enough
that he knows what is written in the document which he signs. But if testamentary capacity
– the ability to understand what is being done and its effect – is established, then it is open
to the court to infer that a testator who does know what is written in the document which
he signs does, in fact, understand what he is doing. And, where there is nothing to excite
suspicion, the court may infer (without more) that a testator who signs a document as his
will does know its contents. It would be surprising if he did not.’
and ‘Further, it may well be that where there is evidence of a failing mind – and, a fortiori ,
where evidence of a failing mind is coupled with the fact that the beneficiary has been
concerned in the instructions for the will – the court will require more than proof that the
testator knew the contents of the document which he signed. If the court is to be satisfied
that the testator did know and approve the contents of his will – that is to say, that he did
understand what he was doing and its effect – it may require evidence that the effect of the
document was explained, that the testator did know the extent of his property and that he
did comprehend and appreciate the claims on his bounty to which he ought to give effect.
But that is not because the court has doubts as to the testator’s capacity to make a will. It is
because the court accepts that the testator was able to understand what he was doing and
its effect at the time when he signed the document, but needs to be satisfied that he did, in
fact, know and approve the contents – in the wider sense to which I have referred.’