This is the Society of Will Writers CPD notes from November 2014 which I passed, the notes are aimed at Will Writers but they also make good reading if you need to know more about the subject as a lay-person thinking about your will.
Capacity? What should you be thinking about?
This month we take a detailed look at mental capacity as presented by a prospective testator – what concerns should be taken into account by a Will Writer, what to do about those concerns, action confirming that proper testamentary capacity is present and information that a Will Writer should record in his attendance notes to deal with a future challenge.
In the recent case Feltham v Freer Bouskell  WTLR 1363 the court held that “where a (will writer) is instructed to prepare and execute a will for a client, if the client does not have capacity, he has no client and cannot accept instructions”. This is the clearest statement so far made by a court in England and Wales that the draftsman must ascertain that his client has capacity. The court goes on to say that “if he has any concerns as to mental capacity, he must either refuse the instructions, making the position (why) clear to the client, or take steps to satisfy himself as to his client’s capacity promptly”. Hollander QC sitting as deputy judge made clear a comment obiter that the draftsman takes instructions “subject to the requirement to satisfy himself that (the testatrix) had sufficient mental capacity to alter her will”.
The requirement to act “promptly” has been much discussed by the court and the well-known decision in White v Jones  1 All ER 91 should not be news to the will writer. More recently there has been judicial discussion concerning the continuing relevance of the common law test for capacity as expounded in Banks v Goodfellow (1870) LR5 QB 549 and the effect of developments in psychiatric practice and the juxtaposition between the test in Banks v Goodfellow and the statutory requirements of the Mental Capacity Act 2005.
This paper pulls together a number of strands concerning issues of capacity that SWW members should be considering on each and every occasion when they arrange to take testamentary instructions from a client.
What is capacity?
It is a matter of trite law that the testator must have full testamentary capacity AND must know and approve of the contents of the will at the time of giving instructions for its drafting and when it is executed according to s9 Wills Act 1837, see Guardhouse v Blackburn (1866) 1 All ER 552. It is suggested that it is a dangerous proposition for every draftsman to assume automatically a full and thorough appreciation and understanding of the concerns regarding capacity when taking new instructions, drafting and executing the will writing.
Wills are ambulatory in nature; that is it is the will that is in existence at the date of death that is examined and brought into probate by the executors. Much may have happened in the intervening period since the will was executed? Families can go to war for a multitude of reasons often without giving warning to their professional advisers and if this should happen after a death – there can be no knowing what issues might arise. These unpalatable thoughts have special import and potential consequences for the will draftsman. Especially if they occur post-mortem when what has taken place during life is no longer possible to unpick easily.
In the unhappy circumstances of a post-mortem challenge fortunate is the will writer who has a fully informed file available for close inspection if necessary. In our profession there is possibly not a more difficult matter to deal with than a challenge to a will that the testator lacked capacity when the will was written.
What constitutes capacity – or conversely and perhaps better, when can a testator be said NOT to have capacity? Our starting point is the seminal and familiar case of Banks v Goodfellow. The judgement of Cockburn CJ is in 4 parts. His lordship posited the following 4 rules:
“A testator shall understand the nature of the act and its effects”
144 years on it is widely appreciated that society is ageing markedly by comparison with late 19th century Britain. Many activities including preparations and directions for the distribution of a person’s estate are being left much longer than even 10/20 years ago, let alone when the instant case was decided. The legal proposition is that the testator does not need to understand the precise legal machinery but must be understanding of making a will and its broad effects, that is must have a sound mind.
“A testator shall understand the extent of the property which he is disposing”
Crucially the testator must be aware of his situation, what does he own, how does he own the asset(s) and their form? The testator should be able to catalogue his significant assets including those particular assets that he wants to make the subject of a legacy. Without full details a lack of certainty potentially sets in with consequent problems for executors and so on for beneficiaries. The administration of an estate is undoubtedly simpler if detailed information about testamentary gifts is available.
“A testator shall be able to comprehend and appreciate the claims to which he ought to give effect”
Under this leg the testator is required to be aware of any personal obligations that he has regarding the disposal of his estate. Where the testator fails to take account of all the persons that might expect to be considered, the will may be (successfully) challenged as it was in Re Loxton deceased, Abbott v Richardson  WTLR 1567. The court held that the testator lacked capacity as she should have made a rational decision as to who should receive her bounty. However a will is not to be held invalid because the testator is motivated by foolish motives or spite; but there is potentially a fine line and what passes for eccentricity in one person may amount to incapacity in another, see Mudway v Croft (1843) 3 Curt 671. The person taking instructions needs to be aware that such arguments have been aired in court and to act carefully, recording any instances where the testator shows less than a completely clear (sound) mind regarding their testamentary intentions. If on the other hand the testator completely forgets about including persons who have a perfectly valid moral claim to his bounty, see Battan Singh v Amirchand  1 All ER 1525 the court is likely, as it was in this case, to decide that the testator lacked necessary testamentary capacity.
“With a view to the third leg of the decision (above), that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”
It is this last leg of the judgement handed down by his Cockburn CJ that has given draftsmen and the courts the greatest difficulty. In a nutshell how does a draftsman make the distinction between a person with a sound mind and one that lacks capacity? In Re Key, Key v Key  WTLR 623 a will was executed within a very few days of the testator’s wife’s death. In his judgement Briggs J relied on the test in Banks v Goodfellow, while recognising that “psychiatric medicine had come a long way since 1870”. It should be recognised that many circumstances could give rise to the risk of mental disorder depriving the testator from the power to make rational decisions, quite apart from old age and infirmity. Mr Key’s wife had died a few days earlier and the suspicion of medical attendants was that the testator was suffering depression as a result of his bereavement. In Re Wilson, Turner v Pythian  WTLR 899 although the evidence presented was held to be of correct execution by Mr Pythian, the decision of the court was against capacity. The judge relied upon and followed the decision in Re Key, Key v Key in that taking the evidence as a whole the testator “was simply unable during the week following his wife’s death to exercise the decision-making powers of a testator”. The judge opined that such a conclusion develops the Banks v Goodfellow test of comprehension to include “decision-making powers”. Could this be a reference to statutory provisions? When faced with a testator who has experienced a very recent bereavement perhaps it may be wiser for the instruction taker to consider whether the testator has sufficient capacity. Some doctors will even go so far as to suggest that a bereaved person should not take major decisions until at least 3/6 months after the bereavement.
What is the draftsman’s duty regarding a will?
We have seen that the draftsman is required to satisfy himself that the testator does not suffer from insane delusions that will affect his ability to make testamentary decisions. In Re Ashkettle  WTLR 1331 the court held that a will drafted by an experienced independent lawyer who has formed the opinion that the testator knows what he is doing, should not be set aside for want of capacity unless the clearest evidence of incapacity is presented. Where the court is satisfied that the evidence confirms that the will has been properly and formally executed it is for the person claiming lack of capacity to present evidence of that fact.
However the considerable number of cases where the court has found wills to be invalid for want of capacity has been suggested as clear evidence that lay persons (who are not medically qualified) do not generally have the skills to detect mental incapacity, per Theobalds on Wills (Sweet & Maxwell 2013).
Where a challenge is made as to the validity of a will on the grounds of capacity, the view of the person making the will must be based on a proper assessment and supported by accurate information or risk being treated as “worthless”, see Re Ashkettle. Thus the first and essential step that should be taken by will draftsmen is to create a “picture” of the testator at the instruction-taking meeting recording for the benefit of all (future) interested parties the exact nature and content of the meeting. Brief or inadequate notes will not help the draftsman if the case is required to be examined; so that conclusions about capacity can be drawn.
The will should appear rational on its face so that capacity is presumed. Provided that there is clear evidence that the testator had capacity the rule in Parker v Felgate (1883) 8 PD 171 may be applied to the execution process. The rule states that a will may be valid even though the testator has lost capacity by the time the will is executed. The conditions under which the rule takes affect are:
The testator had capacity at the time that he gave the instructions
The will was drafted in accordance with those instructions, and
At the time of execution the testator remembers giving the instructions and believes that the will has been prepared according to those instructions.
In the case of Clancy v Clancy (2003) EQHC 1885 the rule in Parker v Felgate was referred to and confirmed as good law.
What to do if the draftsman has doubts as to capacity;
Where the draftsman has doubts the draftsman should take steps to deal with those doubts as they relate to the capacity of the testator to make a will. If there is such doubt, per Templeman J in Kenward v Adams ]1975] The Times, 29 November a medical practitioner should be asked to examine the testator, preferably at the time the will made and either to witness the will or make a statement as to the testator’s mental condition. The step of making a referral to a medical practitioner is referred to as the “golden rule”.
Again in Re Simpson (1977) 121 SJ 224 Templeman J held that if the testator is ill or elderly and infirm the following precautions should be considered:
a) Obtain a written medical opinion to attach to the probate documentation or have a medical practitioner present.
b) If the will has to be read over and/or signed on behalf of the testator, a special attestation clause must be included.
In Key, Key v Key Briggs J concluded that the will writer taking instructions in 2006 from Mr Key, who was 89 and died 2 months short of his 91st birthday, did not take any proper steps to satisfy himself about Mr Key’s testamentary capacity. The will was challenged for lack of capacity and want of knowledge and approval. The Judge’s decision is a warning that the “Golden Rule” is abandoned at the peril of the draftsman. In a September 2010 article in the STEP Journal Stephen Lawson TEP a solicitor questions whether this statement in its unqualified form is helpful. The writer comments that the cause of the problem may not be the failure by the draftsman to make a referral to a medical practitioner, but that his fundamental failure is to address his client’s capacity and to make clear detailed attendance notes.
The first line of defence for the draftsman in the event of a challenge is his attendance notes. Without a full set of notes the will writer has only his memory to fall back on. Memory is a poor shield against hostile cross-examination.
In situations where the draftsman has doubts about capacity reliance upon the “Golden Rule” may not settle the matter without further questions. The “Golden Rule” is not a rule of law, but it is worth noting that ignoring the “Golden Rule” may cause more difficulties, whenever a doubt about capacity exists, compared with the difficulties of complying with it. Judicial opinion has recorded that “a medical practitioner’s opinion, like the material on which it is founded, is simply evidence.
It is not always reliable. Capacity is not purely a medical question”, per Norris J writing in the Association of Contentious Trust and Probate Specialists Newsletter in January 2007. It seems that doctors can be wrong!
The Mental Capacity Act 2005 (MCA):
The Act came into force on 1 October 2007, introducing 5 statutory principles, which aim to protect people who lack capacity and to help them take part in decisions that affect them. The principles aim to assist people to make particular decisions, not to restrict or control their lives. The underlying philosophy of the Act is to ensure that any decision made, or taken, on behalf of someone who lacks capacity to make the decision or to act for themselves should be made in their best interests.
Section 42 of the Act explains the purpose of the MCA Code of Practice (the MCA Code), which is to assist specific persons in specific circumstances. The MCA Code should be referred to whenever considering the effect of the MCA.
In section 1 of the Act the 5 “statutory principles” are set out. These are the fundamental principles presenting the philosophy that underlines the Act. The principles must be considered whenever capacity is considered as an issue. They are:
1: A person must be assumed to have capacity unless it is established that they lack capacity.
2: A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3: A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4: An act done, or decision made, under this act for or on behalf of a person who lacks capacity must be done, or made in his best interests.
5: Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
It is important to realise that when the Act refers to a person’s capacity (or lack of capacity) the Act refers specifically to the capacity to make a particular decision at the time that it needs to be made.
The MCA Code includes detailed guidance on how the 5 statutory principles should be applied, including detailed commentary on how to assess a person’s capacity by reference to the MCA and what to do if circumstances require consideration that a person lacks the specific capacity to act.
The MCA and the common law test of capacity:
The question of whether the provisions of and the law as set out in the MCA has had an effect on the common law test of Banks v Goodfellow, is considered by the court in Fischer v Diffley  EWHC 4567 (Ch). Dight J held that the starting point to determine capacity was the MCA and not Banks v Goodfellow.
The case was argued by defendants in person and not by lawyers. The judicial remarks, made obiter, do not align with other decisions which have held that the common law test of Banks v Goodfellow has not been replaced by the MCA, see Munby J in Re MM, Local Authority x v MM (an adult)  EWHC 2003 (Fam) and also in Scammell v Farmer  WTLR 1261.
The comments of Judge Dight in Fischer v Diffley may however stand on their own facts and therefore potentially not bound to be followed in future cases; they may be obiter and not form part of the ratio decidendi. In the instant case the presumption of capacity, as applied by the judge, was that the testator had to be treated as having sufficient capacity following s1(1) MCA in that a person is assumed to have capacity, to make a decision or take an act, unless it is established that he lacks capacity. But and it is a significant “but”, the MCA makes clear that its provisions are imposed for matters related to the Act itself, that is “for the purposes of the Act”. The difficulty becomes that if the presumption using s1(1) MCA is to be upheld and applied in preference to the established common law of Banks v Goodfellow then the presumption of capacity will always fall in favour of the person propounding the will. The MCA Code states that the MCA’s new definition of capacity is in line with the existing common law tests for capacity and that the MCA does not replace them. The Code names the common law test in Banks v Goodfellow.
The MCA Code observes that judges can adopt the new definition if they think it appropriate, as Dight J may have decided in Fischer v Diffley. The danger is that by so doing the judge may have tipped the balance of proving capacity too far in favour of the propounder of the will to the detriment of fairness.
Further legal argument will be required to settle whether the MCA or the common law test should be ascendant. Until that happens the will writer who assumes, without more, that the testator has the capacity to give instructions following the provisions of the MCA, may find that the court is not
swayed preferring the application of the established common law test in Banks v Goodfellow whenever sufficient evidence to rebut the presumption of capacity is presented.
What is good practice where there are concerns about capacity today?
All or some of the following may apply:
Write full and detailed, contemporaneous attendance note2s;
Ask open questions that confirm the 4 legs of the Banks v Goodfellow common law test;
Try to establish whether the testator can use the information he supplies to make his decisions;
Consider obtaining the view of a medical practitioner (the “Golden Rule”);
Look for a lucid moment at a later time or date;
Set out a detailed record of your actions AND reasons in clear unequivocal attendance notes.
Where the testator’s capacity does give rise to concerns and it is necessary to take some or all of the above considerations into account the will writer may want to prepare a report to place on the paper file along the lines of the information as suggested in Larke v Nugus  WTLR 1033.