In the recent case of Boast v Ballardi & Ors [2022] EWHC 1533 (Ch), the High Court upheld a challenge to the validity of a professionally prepared will on the grounds that the testator did not have testamentary capacity.
The court strongly criticised the will drafting solicitors, who, despite having concerns regarding the testator’s capacity, failed to properly investigate the situation. The Judge noted the will drafter did not take any steps to check whether the deceased understood the extent of his property, and despite being aware of the deceased’s paranoid delusions, did not investigate whether those delusions were capable of affecting his testamentary decisions, either by asking further questions or by instructing a qualified medical practitioner to assess this.
To make a valid will, a person must have testamentary capacity. They must therefore: (1) know what a will is and its effect (2) know broadly the extent of their property (3) recognise the identity of those who others would most expect to benefit and (4) not suffer from delusions which may poison their affections for such people (Banks v Goodfellow [1870]).
The ‘Golden Rule’ in regard to testamentary capacity is attributed to the case of Kenwood v Adams [1975]. The “rule” is that, in all cases where there is an elderly testator or one who is suffering from (or has recently suffered from) a serious illness, the making of their will should be witnessed or approved by a medical practitioner who satisfies themselves of the testator's testamentary capacity and who records their assessment and findings. Ideally, the medical expert should also be asked to witness the will.
Boast v Ballardi & Ors [2022] reiterates the importance of will drafters investigating any concerns they may have regarding a testator’s capacity before agreeing to prepare their will. The will drafter is not expected to make a medical assessment but they are expected to properly apply the test set out in Banks v Goodfellow [1870]. If they are in any doubt, they should investigate the position and if still in doubt refer the matter to a medical professional before making the will.
If they fail to do so they are likely to have failed to discharge their duty to their client and they expose themselves to a risk of a claim being brought against them by the disappointed beneficiaries. They will also potentially increase the risk of disputes amongst the beneficiaries after death which could result in significant legal costs being incurred all round.
A link to the judgment can be found here.
For more information on this article, please contact Rebecca Milton or Robert Horsey.
