With individuals living longer but with deteriorating mental faculties, it is perhaps unsurprising that Contentious Probate practitioners are seeing an increase in the amount of enquiries about the validity of a deceased person’s Will. This is particularly the case when the Will was made in the latter years of their life when they are seriously unwell or under the influence of powerful drugs.
The recent case of White v Philips  EWHC 386 (Ch) is another case that highlights that someone can be terminally ill, suffer from confusion and have deteriorating mental faculties but still be able to execute a valid Will.
The case of White v Philips concerned an elderly testator who was diagnosed with terminal cancer in 2009. He had been married to his second wife for 20 years and had an adult daughter from his first marriage. In May 2010, the testator left his second wife to live with his adult daughter. Later the same month, whilst in hospital, he made a new Will with the assistance of a legal executive. In that Will, he gave his wife a life interest in his share of the matrimonial home but left the rest of his estate to his daughter. He died less than two months later. His widow advanced a claim that the Will was invalid on the ground that he lacked testamentary capacity to change his Will in May 2010 due to his terminal cancer and the treatment that he was receiving for that which could cause confusion, delusion and aggression.
“A Will can be challenged on four grounds. Challenging a Will on the basis that the testator lacked testamentary capacity is probably the most common challenge that I see advanced in my day to day professional life. Often, disappointed beneficiaries think that evidence of confusion or a diagnosis of dementia is sufficient to set aside a Will. It is not. The test for testamentary capacity specifically asks whether the testator was suffering from a disorder of the mind and, if so, whether it actually affected the contents of their Will. Therefore, there has to be a causal link. Someone could, in theory, have a very serious disorder of the mind but still be able to draft a valid Will if the disorder of the mind did not actually affect the contents of the Will.”
In White, there was contemporaneous medical evidence that on 27 May 2010, when he was admitted to hospital, the testator was suffering from drug toxicity. On 28 May though, when the legal executive attended the testator to take the Will instructions, she found him to be coherent and rational. Also, he provided a full explanation as to why he wanted to change his Will.
“White is a very useful, modern case on capacity. The circumstances surrounding the creation of the Will were unusual and there were several risk factors for the legal executive to assess. The testator had a terminal illness, had been admitted to hospital the day before, was on potent medication and had recently left his wife of 20 years. As a result, the Court agreed that there was sufficient doubt as to the testator’s capacity to shift the evidential burden to the daughter to show that her father did, in fact, retain testamentary capacity. She discharged this burden. Both the legal executive who prepared the Will and the daughter’s medical expert who examined the testator’s medical records concluded that the testator had capacity. This was crucial evidence for the Court and enabled it to uphold the validity of the Will. This just goes to show that even where the testator is seriously ill, in hospital and under the influence of powerful medication, he or she may still be able to prepare a valid Will.
In English law, testators can change their Wills however many times they like. The starting point is that they have complete discretion to leave their estate to whomever they choose as long as they have sufficient testamentary capacity to make those decisions. Confusion, irrationality, aggression and poor memory may all be symptoms of someone lacking testamentary capacity. However, they are neither necessary nor sufficient symptoms. Someone who lacks testamentary capacity may suffer from none of these symptoms but someone who suffers from all of them may retain testamentary capacity. Disappointed beneficiaries should obtain as much information as possible from the testator’s medical records and the person who drafted the Will about the testator’s state of mind at the relevant time and obtain objective, specialist advice on that evidence.”
The Contentious Probate Team at The Wilkes Partnership advises executors and beneficiaries faced with an uncertain or ambiguous Will. If you wish to discuss any aspect of Will drafting or interpretation issues please get in touch with Kevin Lynch on 0121 233 4333 or via email on [email protected].