Capacity
Whether we are now living in the compensation culture, as certain elements of the press would have us believe, is something of a moot point. Ambrose Bierce was and is absolutely right when he said "Death is not the End. There remains the litigation over the estate." The professional world in which we all work is continuing to be increasingly litigious.
You cannot fail to have missed the string of stories in the press about successful challenges to Wills over the last couple of years. But, beyond these more high profile cases, the fact cannot be ignored that there are an increasing number of law firms with dedicated and growing contentious probate departments reflecting an upturn in this area of law.
Over the next couple of weeks, we will produce a series of articles outlining some of the ways in which Wills that you have drafted could be challenged and how seeking to minimise that risk may stop your clients of today from being all over the press, for the wrong reasons, in the future! As well as protecting your reputation, the articles may help you to consider how to protect your insurance premiums and avoid potential negligence claims by disappointed beneficiaries of failed Wills. There will be one continuing theme in every article which will be the critical importance of your file attendance notes!
In this first article, we will consider some of the ways in which a Will can be challenged.
A favourite battleground of challengers of Wills is the mind of the late testator - namely a challenge to a Will based on an allegation of a lack of testamentary capacity and want of knowledge and approval.
The test for whether a testator has the requisite capacity has long been established and was set out in the case of Banks v Goodfellow (1870) - a test that will be engraved on the hearts of professionals who write Wills!
Testamentary capacity is not simply whether the Testator has the mental capacity to make a Will - it also encompasses whether at the time of execution the testator knew and approved the contents of the Will and for there to be no undue influence.
Undue influence or fraud are however questions of knowledge and approval rather than mental capacity.
So, if a client declares in no uncertain terms that they wish to make a Will, and presents you with a detailed breakdown and analysis of their large asset portfolio but earnestly declares themselves a life long bachelor completely forgetting their wife or children at home, then it is likely that they lack mental capacity in the eyes of the law.
In Battan Singh v Amirchand (1948) the testator made a Will in which he declared that he had no relatives and left his property to two friends. He was in the last stages of tuberculosis, and died the following day. His statement that he had no relatives was incorrect since he had four nephews to whom he had left his property in a Will five weeks earlier. The Court found against the last Will since it was "the product of a man so enfeebled by disease as to be without sound mind or memory at the time of execution and that the disposition of his property under it was the outcome of the delusions touching his nephews' existence".
A further case with regard to the testator lacking mental capacity is that of Sharp v Adam (2006). In this case, the testator, in the final stages of severely debilitating progressive multiple sclerosis, had "crossed an imprecise divide". He lacked the capacity to arrive at a rational judgement and there had been an inexplicable poisoning of his affection for his daughters.
It is in the nature of writing Wills that clients are regularly older people, some of whom might be somewhat infirm and perhaps reasonably frail. Some of them may wish to exclude certain family members from their Wills for perfectly valid reasons.
Clearly, just because they are older, or possibly ill, this does not mean that they do not have the mental capacity to make such a decision nor, indeed, that they should they be denied the right to do so.
Do not doubt for a second, however, that when that testator dies any disappointed beneficiary will be digging around in the circumstances surrounding the preparation of the Will including the medical records and, more importantly from the perspective of the professional writing the Will, the file attendance note(s).
So, attendance notes may prove to be critical; they might even determine ultimately whether a Will stands or fails. It is obviously, therefore, crucial that file attendance notes are thorough, accurate and unambiguous. It is deemed best practice to explicitly consider the various strands of the Banks v Goodfellow test and confirm in the attendance note that they have been fulfilled.
The Mental Capacity Act 2005 formalises the definition of lack of mental capacity and it may be that new case law will develop following the passing of the Act, but Banks v Goodfellow still remains good law and has been applied in the well publicised case of Kostic v Chaplin and Others (2007).
If the professional has any concerns whatsoever then they should strongly consider suggesting to their client that a report is obtained from a specialist consultant or their GP (if the GP has a longstanding relationship with the testator), as to their opinion on the testator's mental capacity. However, bear in mind recent discussions and articles on this subject as the medical profession is as mired in litigation as the legal sector. I will later consider an alternative approach.
Bear in mind the "golden rule" (Re Simpson (1977)), which states that best practice requires that a medical report should be obtained on every occasion of an elderly or infirm testator making a Will. Rather than take offence at this, most clients, once the rationale behind the suggestion is explained to them, are reassured that the step is being taken.
In a recent case of Key v Key (2010), a solicitor took instructions from an 89 year old testator whose wife of 65 years' standing had been dead for only a week, without taking any proper steps to satisfy himself of Mr Key's testamentary capacity, and without even making an attendance note of his meeting. The solicitor had seen the testator only a few months earlier in relation to the dissolution of his farming partnership and saw no reason to question his client's capacity. The reason given for changing the Will appeared entirely rational.
The judge in this case criticised the solicitor for failing to comply with the golden rule as it had "greatly increased the difficulties to which this dispute has given rise".
Whilst obtaining a medical report is not a guarantee that a Will will be upheld, it is certainly extremely helpful for your file to contain objective third party professional evidence, should a challenge to the validity of the Will arise upon the testator's death. As the judge pointed out in the case of Key "The issue as to testamentary capacity is, from first to last, for the decision of the Court. It is not to be delegated to experts, however eminent," therefore implying, that any issue as to capacity ultimately rests with the professional advising on the preparation of the Will, not on the medical practitioner.
In summary, it is highly important that file attendance note(s) are contemporaneously written and, should any concerns be later raised regarding the circumstances surrounding the preparation of the Will, then the person with those concerns is entitled to request a statement from the professional who drafted the Will and also to see a copy of any attendance note(s) to justify the actions taken.
The courts have approved this practice in the case of Larke v Nugus (2000) and it is accepted practice amongst contentious probate solicitors. Refusal from you to release those papers is likely to result in you ending up on the wrong end of a specific disclosure application with implications as to costs and the lack of any attendance note(s) will increase the risk that your clients of today may be all over the press in the future!
Posted Date: 26th Oct 2010