Testamentary capacity: When capacity fluctuates

Conclusions for practitioners: Hughes v Pritchard & ors [2021] WTLR 893

The judgment serves as a reminder of a number of key issues common to many probate claims, and particularly those where an elderly testator may appear to have fluctuating capacity:

• A diagnosis of moderately severe dementia is not, in itself, enough to prove that a testator did not have the requisite testamentary capacity to execute a will. Capacity can fluctuate, and must be assessed at the relevant time in relation to the specific decision the individual is making. Such a diagnosis may provide strong evidence, but (even coupled with bereavement after the loss of a beloved son) is not in itself
  sufficient.
  
  
• When drafting a will for an elderly or vulnerable individual, always follow the golden rule, and ensure that the medical professional carrying out the assessment understands the terms of both the proposed and the previous wills. Failure to take into account the change between the two could reduce the weight afforded to the assessment itself, and the opinions of other important professional witnesses which are founded on this.
  
  
• Especially where the estate comprises a substantial landholding, it is important that the testator is able to remember the scope of this land (particularly where they, for example, suffer from a visual impairment which means they are not able to use a map as a reminder). This is crucial to prove the testator understands the extent of the property of which they are disposing, in line with the second limb of Banks v Goodfellow.
  
  
• It is tempting to look at a case like this in the round, and to assume that if one paints a clear enough picture of failing capacity to the judge then this will be sufficient. Although it is of course important to weave a convincing narrative, it is also key that you specifically link the evidence back to the Banks v Goodfellow test, as failure to make out anyone limb must inevitably lead to a finding of lack of testamentary capacity.
  
  
• Promises made to potential beneficiaries, and the detriment they suffered in reliance on these promises, are relevant not just to an alternative claim for proprietary estoppel, but also in establishing testamentary capacity. Failure by the testator to appreciate the scope of promises made may undermine the terms of any new will which does not take these promises into account.

Please note this content was originally published in Trusts and Estates Law & Tax Journal, October 2021 edition.

The full article can be accessed here.

If you require further information about anything covered in this briefing, please contact Rowan Cope your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2021