Reasons to choose Wilson Browne
The recent case of James v James & Others  has provided a helpful re-stating of the tests for capacity when it comes to making a Will.
Charles James died in August 2012 leaving a wife, a son and two daughters. The background presented to the Court identified that from around 2004 until his death in 2012, Charles had given instructions for more than one Will and had divested himself of interests in land and bank accounts, either giving them to family or transferring them into joint names.
His final Will made no provision for his son, Sam, and following his father’s death, Sam brought two claims against the Estate:
- A proprietary estoppel claim; and
- A claim that Charles’ will was invalid because he did not have the requisite testamentary capacity when he signed it.
In relation to the proprietary estoppel claim, the Court found that the test upon which such a claim may be based is as is commonly understood. There are three elements to bringing such a claim successfully:-
- there must be a representation made to the person bringing the claim
- that person must rely upon the representation; and
- as a result of relying upon the representation, the person bringing the claim must suffer some detriment
If all three elements are met the Court may grant and order to fulfil the promise made to the claimant.
The Judge in James v James & Others added that the representation made must be sufficiently clear and unambiguous in the context. He said there:
“is a question as to how clear the assurance must be. In Thorner v Major itself, Lord Walker said:
“56. I would prefer to say (while conscious that it is a thoroughly question-begging formulation) that to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context. I respectfully concur in the way Hoffmann LJ put it in Walton v Walton  CA Transcript No 479 (in which the mother’s ‘stock phrase’ to her son, who had worked for low wages on her farm since he left school at 15, was ‘You can’t have more money and a farm one day’). Hoffmann LJ stated, at para 16:
‘The promise must be unambiguous and must appear to have been intended to be taken seriously. Taken in its context, it must have been a promise which one might reasonably expect to be relied upon by the person to whom it was made’.”
The test for testamentary capacity was established many years ago in the case of Banks v Goodfellow and remains the test today.
Under that test, the testator should understand:
- the nature of his act and its effect
- the extent of the property of which he is disposing; and
- the claims to which he ought to give effect.
The person making the Will must not have a disorder of the mind or insane delusion, which ultimately brings about a disposal of his property which he would not have made if he had been of sound mind.
The more recent Mental Capacity Act 2005 (MCA) sets out a different test for mental capacity and in James v James & Others it was argued that this more recent MCA test should be the one to be applied in deciding whether or not Charles James lacked testamentary capacity at the time he signed the will and that the will was accordingly invalid.
The Judge was clear that the MCA did not apply. He held that the test in Banks v Goodfellow was the only test of capacity for retrospectively deciding whether someone had capacity to make a will. There are two different tests for mental capacity in making wills, one for a living person and the other retrospective in relation to a will already made.
Importantly, the Judge also said that the most important evidence of capacity was that which supported what happened on the day the Will was signed. The will-writer was competent and experienced and, whilst she had not followed the ‘golden rule’ of obtaining a medical opinion, this was only indicative of good practice, not law.
The Judge held that Charles James had capacity to make the 2007 and 2009 transfers and that he also had capacity to execute his Will.
The fact that an experienced legal practitioner had drafted the Will, seen Charles James and his wife and attended when the Will was signed was vital in this case. The full and contemporaneous notes taken by the lawyer evidenced capacity and were relied upon by the Court.
With more and more people choosing to complete their own “kitchen table” Will this is another reminder of the importance of taking such an important document seriously and ensuring you seek proper legal advice before drafting or executing your Will.