It is no secret that lockdown has been hard for many people. A BMJ report estimated that for every COVID-19 death, nine people are affected by bereavement. To date, with over 130,000 COVID-deaths in the UK there has been what is described as a “tsunami of grief”.
The impact of lockdown has also seen a dramatic increase in other health issues. The Office for National Statistics reported that 21 per cent of adults experienced some form of depression in the first quarter of 2021 (this figure had doubled since before the pandemic). Last year the British Liver Trust reported a 500 per cent increase in calls to its helpline since the start of the pandemic; deaths from mental and behavioural disorders due to alcohol increased by 10.8 per cent between 2019 and 2020, but with hospital admissions falling. The isolation caused by lockdown can mean also that many people are suffering without others knowing.
These issues are also likely to create problems down the line when “lockdown wills” come under scrutiny. During lockdown it has become more common for instructions and the signing of wills to take place without any face-to-face meetings and sometimes, due to the generational issues with technology, with more passive impetus from the will maker (the “testator”) especially where they are elderly. This method of will making, combined with health issues caused by the strain of lockdown, can create a perfect storm for disappointed beneficiaries to challenge wills on the basis that the testator lacked testamentary capacity. Added to which, we have seen a noticeable increase in cases involving testators who died young with wills subject to challenge due to drugs and alcohol dependency or depression.
In this article we look at where the court has found that affective disorders such as bereavement, depression and addictions resulted in the testator lacking testamentary capacity, and what steps can be taken to minimise the risk of a challenge being made.
Test for capacity when making a will
The test for testamentary capacity was set out in the 1870 case of Banks v Goodfellow where the court held that for a testator to have capacity to make a will, he must:
- Understand the nature of the act, ie that he is making a will, and its effects.
- Understand the extent of the property of which he is disposing.
- Be able to comprehend and appreciate the claims to which he ought to give effect.
- No disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties in disposing of his property by will.
It has been said this test is outdated, particularly given its tension with the Mental Capacity Act 2005 which governs the test for capacity for various other during life decisions. However, in the recent case of Clitheroe v Bond  EWHC 1102 (Ch) the court applied the Banks v Goodfellow test and so this remains the standard of mental capacity required to make a valid will for now.
Challenges to wills on the ground of lack of capacity are always highly fact specific and the court will look at all factors in the round when making a decision. This is particularly the case where there is no, or little, medical evidence available. The court considers evidence not just relating directly to the testator’s state of mind but also the circumstances in which the will was made.
How can a testator’s mind be disordered?
Typically, practitioners are used to considering issues of testamentary capacity with older clients who may suffer from memory loss or some form of dementia. Issues will also arise for people with severe mental impairments or learning disabilities which mean they cannot weigh information and make decisions.
However, in the last twenty years the courts have started to recognise that other states of mind, known as affective disorders, that can lead a person to lack testamentary capacity including depression, bereavement and the effects of drugs and alcohol.
The case of Key v Key  EWHC 408 (Ch) set out the key principles when looking at bereavement and capacity:
- Bereavement and depression can be an affective disorder and the Banks v Goodfellow test must be applied, so as to accommodate this factor as capable of impairing testamentary capacity.
- The court will presume that the testator has capacity if the will itself appears rational. That presumption can be rebutted if a “real doubt” about capacity is raised. If so, the burden of proof shifts to those propounding the will to provide sufficient evidence to establish capacity.
- The court must not delegate the decision about capacity to experts but, on the basis of the evidence available, make its own decision.
- In this case, there was not a single distinct limb of the Banks v Goodfellow test that was not satisfied but rather as a whole, the testator was not able to exercise the decision-making powers required of a testator.
- A conclusion that a testator lacks testamentary capacity necessarily compels a conclusion that he did not know and approve the contents of his will.
In this case, the will was executed in 2006 one week after the death of the testator’s wife, Sybil, when the testator, George Key, was 89. Sybil’s death was sudden and George was entirely dependent on her and unable to cope emotionally with attending her funeral.
George suffered from some early signs of a “dementing illness” including short-term memory loss but the experts and court agreed that this alone did not mean he lacked testamentary capacity. Instead, it was the medical evidence that George’s grief made him suggestible and therefore unable to make his own decisions which meant he lacked capacity.
This combination of dementia and grief was also considered in the recent case of Hughes v Hughes  EWHC 1580 (Ch) which examined the will of Evan Hughes made about six months after his son’s suicide.
The will was prepared by a solicitor and a doctor was present who assessed Evan as having testamentary capacity. However there was evidence that Evan was suffering some cognitive impairment, possibly vascular dementia and based on the additional evidence from lay witnesses, the court took its own view and disagreed with the contemporaneous assessment. Particular reliance was put on evidence that following his son’s death, Evan was “deteriorating fast”. In this case, it was found that grief played a part in accelerating a decline of testamentary capacity where it was already diminishing, rather than being the operative cause.
In the case of Re Wilson  EWHC 499 (Ch) grief was (as in Key v Key) seen as the operative reason that testamentary capacity was lacking – albeit amplified by the testator’s advanced age. In this case, there was no evidence of dementia although the testator, Iris, was elderly. Iris made a will that left her estate to a friend (who had helped prepare it) rather than her family.
Iris’ twin brother died in 2010. Her will was made only few months after his funeral where she was described as visibly frail, confused, and bewildered and she had to be physically supported by family members (with photographs produced to that effect).
The court had no contemporaneous medical evidence to consider and therefore had to rely on the witnesses and her past medical conditions. Iris had suffered through her life from serious grief reactions. In 1977 when her nephew was killed in a road accident, she was seen at an emergency psychiatric clinic where the doctor recorded that she was suffering a reactive depression. In 2007 Iris suffered a strong bereavement reaction to her husband’s death and was prescribed an anti-depressant drug.
An expert appointed to consider this past material along with lay witness evidence found it was “consistent with a severe, even psychotic depression or pathological bereavement reaction” and the evidence is certainly sufficient “to raise a real doubt as to capacity.”
Given that finding, the onus was on the friend who was seeking to prove the will to convince the court Iris did have capacity. He failed to do this and the judge concluded “that at the time the will was executed Iris was suffering from an affective disorder brought about by her deep grief at the death of her brother, combined with her continuing fragile mental state arising from her advanced age, her physical frailty and her continuing grief for her husband” and that she lacked capacity to make a will.
In other circumstances, grief has not been sufficient to remove testamentary capacity. In Dharamshi  EWHC 3917 (Ch) the testator made a new will only two months after his wife’s death. He was described as “seriously distressed” by her death but engaged a solicitor of his own volition and gave clear instructions to change his will. The change itself was also not irrational – his previous will left everything to his wife’s family but the change left everything to his own – and as there was no evidence that the testator was muddle or disjointed. The will was therefore valid notwithstanding his recent loss.
Although Key v Key concerned bereavement, the analogy between bereavement and depression has been developed in subsequent case law to consider whether depression as a standalone factor can cause a testator to lack capacity.
The case of Re Stolkin (Deceased)  EWHC 1140 (CH) dealt with a will made in 2001 by Leslie Stolkin and a codicil to that will made, in effect, on his deathbed in 2009. The codicil amended the will to make some provisions for his long-term partner.
The court was asked to consider whether the codicil was invalid on the grounds Leslie lacked capacity to make it. Two expert witnesses were instructed. They did not have the chance to examine Leslie himself but reviewed his medical notes. Their conclusions differed - one inferred Leslie was “clinically depressed” such that he lacked the mental energy to make a will; the other disagreed there was evidence of a man so “moribund that he could not raise the mental energy for normal interaction.”
Ultimately also taking into account lay witnesses describing their interactions with Leslie in the period before his death, the court preferred the view of the second expert, agreeing that considering all the evidence together, Leslie did have capacity to make a will.
In the case of Jeffery v Jeffery  EWHC 1942 (Ch), the court was asked to consider the will of a testatrix in her 70s, Daphne. The will disinherited one of her sons and he sought to suggest she lacked capacity to make it due to the antidepressants she was taking and what he said was “erratic” behaviour on her part.
The court heard from several lay witnesses – all of whom (other than the disinherited son) gave evidence that they had no concerns at all about Daphne’s capacity and she was generally fully engaged. An expert was also instructed to review Daphne’s records and concluded that there was no evidence she suffered any mental disorder that would have affected her soundness of mind – finding her mental health issues were merely mild.
Although the court considered whether, in principle, a testator could lack capacity if suffering from depression it ultimately concluded that the “occasional anxiety and mild depression” Daphne suffered was far from sufficient to render her unable to make a will.
In both these cases, there was limited evidence of the alleged depression. It is possible that if the illness had been more severe the outcomes could have been different. In addition, in both instances, the wills were prepared by solicitors after proper consultation. The solicitor in Re Stolkin was particularly praised for using “probing”, open questions to determine Leslie’s wishes.
Drugs and alcohol
In Chana v Chana  2 WLUK 322 the court was asked to consider whether a will made by an alcoholic testator was invalid for lack of capacity. The testator was an alcoholic and made a will one evening while in the hallway of his block of flats drinking with his friends. He died ten months later of an alcohol related illness.
In this instance, the court found (based on the evidence in front of it) that the testator was drinking but not drunk and as such had capacity. Had there been evidence that he was in fact drunk when the will was made the outcome could have been different but it is clear that merely being an alcoholic does not itself negate testamentary capacity.
Wharton v Bancroft  EWHC 3250 (Ch) and White v Philips  EWHC 386 (Ch) considered whether drug toxicity could lead to incapacity. In both cases, the testators were prescribed a variety of drugs to treat their illnesses. In both cases, the court found that at the time the wills were signed the testators were not confused or otherwise impaired by the drugs they were prescribed but, in principle, those drugs could produce such confusion that capacity would be lost while the effect lasted. A similar principle could likely be applied to non-prescription drugs or other prescribed drugs (such as anti-depressants) which produce the side-effects of confusion or disordered thinking.
Although a challenge on these grounds could be launched, there are likely to be evidential difficulties to know for certain how the testator’s mind was affected at the moment the will was signed because the effects of drugs and alcohol are (usually) temporary and can often be hidden (particularly if testators are giving instructions to prepare wills by email and signing with lay witness). Whereas illness such as dementia take root and are easier to track over weeks and months.
The law still has some way to go to catch up when it comes to recognising the impact of affective disorders on testamentary capacity. However, the reported cases show that progress is being made and clear trends are emerging on the court’s approach:
- A combination of pre-existing cognitive impairment, such as dementia (even if mild), and grief is more likely together to lead to a loss of capacity than merely a bereavement alone.
- A will properly prepared by a solicitor with instructions given by the testator themselves is more likely to indicate testamentary capacity (although that is not guaranteed).
- Both medical and lay evidence will be used by the court to determine if a testator lacked capacity. This must be linked to the moment in which the will was actually made and can be difficult to provide, particularly if testators are secretive or reclusive (or, these days, isolating at home).
Making a will can be a stressful and upsetting process for some people and they are often unaware of the potential damage capacity issues can cause. However, taking proper advice and planning for the future is the best way a testator can be sure that their wishes are carried out when they are gone. Much also depends on the skill of the practitioner taking instructions, explaining things clearly (without being alarmist) and having the foresight to probe further where necessary. It is also worth remembering the principles behind the Mental Capacity Act 2005, in particular that capacity can be fluctuating and decision specific when dealing with those with an affective disorder. Undertaking the process of making a Will properly, including clear Letters of Wishes, independent advice, a capacity assessment by a suitable expert, as well as good note taking, is absolutely key. Exploring capacity with elderly clients is common but our view is that this should also be considered with those suffering a recent bereavement, or from depression or drugs and alcohol use which can be harder to spot. Dealing with these issues in a sensitive yet robust manner can go a long way to mitigating challenges to Wills after death.
In this article, we focused on testamentary capacity, a topic that trustees and trust professionals should bear in mind wherever they have a client/beneficiary who wishes to make a will or where they may be the trustee to the will trust in question.
If you would like to learn more about other capacity issues, you might enjoy the short film we released during Mental Health Awareness Week in May, “Mental Capacity: the interplay between the law and medicine” which shows a discussion between Charlotte Fraser, Contentious Trust and Estates Partner at Farrer & Co and Dr James Warner, Consultant Psychiatrist, on this important issue.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2021