‘Testamentary Capacity’

In Leonard v Leonard (2024 EWHC 321 Ch) [149] to [157] Mrs Justice Joanna Smith provided a useful summary of the key legal principles:

(i)          It is not the law that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity.
(ii)         The enquiry is whether, the deceased testator’s [‘T‘s’] mind is so unsound that [T] ‘cannot understand what he is about … or his ability to make a rational decision is absent’ (Gardiner v Tabet [2021]).
(iii)       The Banks test concerns the ability or capacity to understand the matters identified therein. It does not require actual understanding or recollection and it is not to be equated with a test of memory.
(iv)       There is no requirement that T actually remembers the extent of his property & deficiencies of memory are not the equivalent of incapacity.
(v)        When considering testamentary capacity, the court is concerned with the ability to make decisions, not merely the ability to understand a given transaction, or a particular choice that has already been made, which are issues to be considered under ‘knowledge and approval’ (Perrins v Holland & Simon v Byford [2014].
(vi)       When evaluating limb 2 of the Banks test, there is no need for T to be able to compile a mental inventory or valuation of all his assets disposed of by his will, but merely to have ‘a general idea’ of those assets (Todd v Parsons [2019].
(vii)     T does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property (Minns v Foster Ch, 13 December 2002 (unreported)).
(viii)    Furthermore, there is no need for knowledge of the actual value of assets (Blackman v Man & Schrader v Schrader [2013]).
(ix)       When evaluating limb 3 of the Banks test, T must have capacity to comprehend the nature of the claims of others, whom by his will he is excluding from all participation in his property.
(x)    The question with which the court is concerned when considering the Banks test is transaction and issue specific. T must have the mental capacity (with the assistance of such explanation as he may have been given) to understand ‘the particular transaction and its nature and complexity’ (Hoff v Atherton & Hughes v Pritchard). This would appear to encompass not only the complexities in the will itself (limb 1), but also the complexity of T‘s property (limb 2) and of the moral claims on his estate (limb 3).
(xi)  The 4th limb is a separate element.
(xii) In Sharp v Adam, the Court of Appeal observed that, with reference to the 4th limb, the judge could have asked ‘whether [T’s] human instincts and affections, or his moral sense, had been perverted by mental disease,’ & observed that the 4th limb is ‘concerned as much with mood as with cognition’. It is in this way that it is to be distinguished from the previous 3 limbs, which are purely concerned with cognition.

I will of course discuss this case along with recent cases about Undue Influence and Lack of Knowledge and Approval, in Chapter 3 – ‘Probate Claims’ of my forthcoming book for the Law Society – the 2nd Edition of the Contentious Probate Handbook. This will be my 8th book. I am going offline from LinkedIn for the next 3 months, to focus of completing the writing of the 1st complete draft of what is looking like a 400 page book. Ellen Radley – who is one of the world’s leading forensic document advisors, and Dr Hugh Series (Oxford University) – who in my opinion is the UK’s foremost expert on testamentary capacity, are each kindly contributing Practice Notes which will appear as Appendices about: (i) Forensic Examination of Handwriting; and (ii) Mental Disorders, respectively. By the end of this week I will have completed the writing of around 50% of the book. So, it is now time for me to return to life as a hermit – well at least until mid-July!