Determining capacity when making a Will

In a recent case, Leonard v Leonard, Mrs Justice Joanna Smith DBE upheld the claim that the deceased, Dr Leonard, neither had capacity to execute his purported Will in October 2015, nor knew of and approved of its contents.

Dr Leonard’s children from his first marriage invited the Court to pronounce against a Will signed by him at home in October 2015 (the 2015 Will) without any professional supervision, and instead admit to probate an earlier will executed in 2007 (the 2007 Will). Whilst there are a number of important differences between the two Wills, the main difference is that under the terms of the 2015 Will, Dr Leonard had bequeathed a significant portion of his estate to his second wife, her step-children and step-grandchildren leaving his children from his first marriage worse off financially.

The Will was prepared by a chartered tax adviser who did not take steps to ensure that Dr Leonard had capacity and that he understood the Will that he was signing. She did not see or speak to him prior to execution of the Will, despite receiving a change of instructions and clear warning signs surrounding his cognitive faculties. The 2015 Will went through a number of drafts and took up to two years to finalise.

The judgement sheds light on crucial aspects of Will making and testamentary capacity and the ruling offers invaluable insights for both litigators and private client practitioners in the field.

The cornerstone of the judgement rests on the relevance of the Banks v Goodfellow test. This test established in 1870 continues to guide Courts in assessing testamentary capacity. The Judge’s analysis reaffirmed the test’s significance, emphasising the need for a comprehensive understanding of the testator’s cognitive abilities and awareness of the Will’s provisions. It is worth noting that in July 2015, 3 months before executing his later Will, Dr Leonard had presented at his GP surgery in a confused state and following investigations at hospital, “clear impairment of cognitive function” was identified.

The judgement clarifies that a testator’s comprehension of the specific provisions within the Will under consideration is paramount, not just the mere understanding of the effect of a Will in the abstract. The 2015 Will was more complex, a significant factor in considering Dr Leonard’s capacity at the time he signed the Will. This interpretation as outlined in the judgement and underscores the importance of considering the complexity of the testamentary document when evaluating capacity and the issue of knowledge and approval of its contents.

Moreover, the judgment’s acknowledgement of the impact of conditions like dementia on a testator’s cognitive faculties represents a significant stride towards aligning legal standards with medical developments.

The role of expert evidence?
In navigating cases involving testamentary capacity, the role of expert medical evidence is of critical importance. The Judge’s analysis on the limitations of expert opinions underscores the need for a holistic approach, incorporating diverse sources of evidence to inform judicial decisions.

The Golden Rule?
The Golden Rule sets out that when a solicitor is instructed to prepare a Will for an aged testator, or for someone who has been seriously ill, they should arrange for a medical practitioner first to satisfy themselves as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings.

The scrutiny of professional conduct in Will drafting in this particular case emphasises the importance of the rule. The failure to adhere to this principle as evidenced in Leonard v Leonard not only undermines the credibility of professional opinions but also exposes vulnerable testators to potential exploitation.
The courts unequivocal stance serves as a stark reminder to legal practitioners of the utmost importance of upholding ethical standards particularly when dealing with elderly or vulnerable clients.

The issue of liability for the costs of the litigation will be determined in April 2024.

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