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Dementia no bar to establishing testamentary capacity

Posted on 10 March 2016 by David Hickmott

Dementia no bar to establishing testamentary capacity - the "golden rule" not to be seen as a "rule of law"

Earlier this year, the Court of Appeal ruled that a will executed by an 83 year old woman who was suffering from dementia, was valid in The Matter of the Estate of Eva Burns, (1) Steven Anthony Burns (2) Laura Olivia Gramauskas v Colin Leslie Burns.

The dispute concerned the estate of the late Eva Burns who died aged 89 on 21 May 2010. Ms Burns was survived by two sons, Anthony and Colin. In July 2005 Ms Burns changed her previous will made in 2003 (which had left her principal asset, her share of her home, to Anthony) to divide her entire estate equally between her sons.

Colin brought a claim to prove the 2005 will (which was more favourable to him). Anthony sought to challenge the validity of the 2005 will on the grounds that (1) his mother lacked testamentary capacity and (2) she did not have knowledge and approval of the contents of the will.

The judge of first instance found in favour of Colin and this decision was subsequently appealed.

The test for capacity as set down in Banks v Goodfellow[1] was considered by the court of first instance and the Court of Appeal.

Ms Burns suffered from dementia and Anthony sought to rely on contemporaneous mental capacity tests (known as Mini Mental State Examinations or "MMSEs") and notes from the deputy manager of the day care centre Ms Burns attended to show she lacked capacity. In short, this evidence suggested that in around October 2003 and in May 2005, Ms Burns had virtually no short-term memory and was highly disorientated - being unable in 2003 to state the date, year, season, day or month.

Often when considering the mental capacity of a testator, the court will consider evidence from the solicitor who drafted the will. Where a testator is elderly or ill, solicitors are generally expected to follow the "golden rule" and ensure that the making of the will is witnessed and approved by a medical practitioner. In this case, the "golden rule" was not followed. The drafting solicitor also admitted that he was not familiar with the precise test in Banks v Goodfellow.

Despite this, the Court of Appeal found that the judge was correct in finding that Ms Burns did have the requisite testamentary capacity. Significant weight was given to the evidence of the drafting solicitor who, despite the deficiencies in evidence, was said to be highly experienced and therefore someone who would have been alive to signs of a lack of capacity. The Court of Appeal noted that the "golden rule" was not "a rule of law".

In relation to her knowledge and approval of the contents of the will, it was important that Ms Burns gave instructions for the drafting of the 2005 will in writing. She wrote letters to her solicitor in November and December 2004 which, importantly, were not challenged. The court was able to rely on the rule in Parker v Felgate[2] which states that where a testator has knowledge and approval at the time of instruction, at execution they need only understand that they are executing a will for which they have given (and which reflects) those instructions.

As with all cases concerning mental capacity, this case turned on its facts. However, the court's reliance on the drafting solicitor's evidence arguably goes some way to dilute the importance of following the "golden rule" for an experienced estate practitioner. That said, in different circumstances, the solicitor's lack of awareness of the complex issues surrounding mental capacity could have been a fatal flaw and so the importance of best practice in will drafting and estate planning remains paramount.

[1] (1870) LR 5 QB 549

[2] (1883) 8 P.D. 171

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