How can I help a loved one who may lack capacity?

Posted: 17/11/2021

The appeal decision earlier in the year in the case of Clitheroe v Bond [2021] EWHC 1102 (Ch) provoked great interest amongst lawyers about the test for testamentary capacity. While most of the judgment revolved around complex legal issues regarding the correct legal test for testamentary capacity, there were plenty of practical points for the layperson to take away from the judgment, particularly for those who are concerned about a loved one or relative who they suspect may not have the capacity to execute a will.

What happened in the case?

The facts of the case were fairly unusual. It involved the estate of a mother (the testatrix) who developed a severe grief disorder following the death of one of her daughters. This disorder gave rise to a number of strange beliefs about her surviving daughter that turned the testatrix against her. 

One such belief was that her remaining daughter was a shopaholic and that she would fritter away any inheritance she received. While the term ‘shopaholic’ is slightly ambiguous, there was little evidence to support this assertion. The more serious delusion was that the surviving daughter had lied about the sexual abuse she had suffered at the hands of her own father when she was young, even though there was overwhelming evidence that the abuse had taken place.

As a result of these beliefs, the testatrix largely excluded her remaining daughter in her penultimate will and completely cut her out of her final will, leaving the bulk of her estate to her son.

In May 2020, the will was found by the court to be invalid on the basis that the testatrix lacked testamentary capacity to execute her final two wills by reason of her grief disorder and resulting delusions against her surviving daughter. The son appealed this decision, which was heard in May 2021, and the original decision was upheld.

How do I know if I or a loved one has testamentary capacity?

The test for testamentary capacity was set out in Banks v Goodfellow (1870) LR 5 QB 549. 

In short, in order to satisfy the test for testamentary capacity, a testator must:

• understand the nature of making the will and its effects;
• understand the extent of the property of which they are disposing in the will;
• be able to understand and appreciate any claims against their estate; and
• have no mental disorder which poisons their affections or prevents them from exercising their natural faculties and which influences them to execute a will which they would not have done without that disorder.

Where the will is validly executed and appears to be rational, then a court will presume capacity. However, if a real doubt can be raised as to capacity, then the burden of proving capacity falls upon the person who is claiming that the testator did indeed have capacity.

The appellant in Clitheroe v Bond tried to argue that this was the incorrect test for capacity. However, this was dismissed by the appellant judge who reaffirmed Banks v Goodfellow as the correct test.

Of course, it will be difficult, if not impossible, for most people to make a capacity assessment of themselves before they make a will. However, it may be easier to determine that something is not right with a partner or loved one, and any solicitor who drafts your will should also be able to form an impartial view of both your and your loved one’s capacity.

There is much case law and commentary regarding each of the four limbs of the Bank v Goodfellow test set out above, but the Clitheroe v Bond decision was principally concerned with the fourth.

What constitutes a delusion?

The testatrix in Clitheroe v Bond was found to have suffered from a number of delusions. The principal delusions were the following:

• The testatrix split up with her husband in 1980 when she found that he had been abusing her daughter. There was clear evidence that the abuse took place, of which the testatrix was aware, including letters written by the father to the daughter setting out the details of his abuse. It was only just before the death of her daughter, almost thirty years later, that the testatrix changed her mind and decided that her surviving daughter had lied about the abuse.
• The testatrix in the instructions for her penultimate will stated that her surviving daughter was a shopaholic and would fritter away her inheritance. There was, however, no evidence for this.
• The testatrix believed her surviving daughter had stolen a number of items from her, including some Swarovski crystals, as well as from her deceased daughter.

It was held in the appeal that the correct test for a delusion was that it had to be irrational and fixed, as well as out of keeping with the testator’s background (ie not a conventional religious belief). A delusion therefore cannot merely be a mistake which could be corrected by presenting contrary evidence to them.

The line between a mistaken belief and delusion will not always be clear. However, the judge in Clitheroe v Bond identified some ways to establish whether a belief was delusional or not:

1. If the delusion is so extreme that it can only be a delusion.

For example, a case was cited in Clitheroe v Bond in which a testatrix believed that she was one of the Holy Trinity. This was, at face value, so extreme as to be self-evidently delusional.

2. If attempts have been made to reason the testator out of the belief but they were unsuccessful.

Of course, once the testator has died, such a test will not be of much use if no attempts were in fact made. However, if the testator is still alive and you have attempted to challenge their belief by reference to strong evidence to the contrary, a failure by them to change position or express doubt as to their belief may indicate a delusion for the purposes of testamentary capacity.  

3. The belief was formed and maintained in the face of clear evidence to the contrary of which the testator was aware.

This was closest to the approach taken by the judge in the Clitheroe v Bond case. There was clear evidence, which the deceased had previously accepted, that her surviving daughter had been abused by the deceased’s ex-husband. However, without any apparent justification, she changed her view in spite of the evidence and began to disbelieve her surviving daughter.

4. The testator has no basis on which they could rationally have formed or maintained the mistaken belief.

What are the warning signs for a lack of capacity?

There are many conditions which can result in a lack of testamentary capacity. Some of these conditions are not cognitive in origin but will have to cause some knock-on effect on cognitive functioning.

The condition most commonly associated with a lack of capacity is dementia. Therefore, particular signs of concern about capacity will be those common for dementia.  The Alzheimer’s Society lists the following as potential areas of concern for dementia:

• day-to-day memory: difficulty recalling events that happened recently
• concentrating, planning or organising: difficulties making decisions, solving problems or carrying out a sequence of tasks (such as cooking a meal)
• language: difficulties following a conversation or finding the right word for something
• visuospatial skills: problems judging distances (such as on stairs) and seeing objects in three dimensions
• orientation: losing track of the day or date, or becoming confused about their location.

In some cases, dementia can also result in people developing delusional beliefs.

I have an elderly relative who wants to make a will on the basis of a delusional belief. What should I do?

It is important that wills reflect the wishes of their testators and just because those wishes may be motivated by mean or frivolous motives, that does not mean that the testator is delusional.

You therefore do not have to do anything and should be wary of interfering just because you disagree with the motives or think that the testator is being unreasonable. However, if you care about the person and their wishes being implemented after they die, you may feel a moral obligation to ensure that they execute a valid will.

Even if you benefit from a will brought about by a delusional belief, it may also be in your interest to ensure that all steps are taken to ensure they have capacity. If a challenge is brought against the will, you may be drawn into legal proceedings and have to incur significant costs defending the will.

If you believe a relative or loved one intends to execute a will based on a delusional belief, you should first talk to them about it. Try to get a full understanding of why they believe what they believe. You may also wish to take a contemporaneous note of this. 

If the testator is intending to prepare their own will, it is important that you encourage them to go to a solicitor. Having a solicitor record their own view as to the testator’s capacity is strong evidence of the same.  

What other steps should I take if I think that an elderly relative lacks testamentary capacity?

In general, you should avoid becoming too involved in the preparation of another person’s will. This is especially the case if you stand to benefit from the will. Claims of undue influence often go hand in hand with capacity claims, particularly where claimants are alleging that the testator's lack of capacity made them more susceptible to influence from other individuals.

If the testator asks you to help them with their will, you should follow the guidelines below.

• Encourage them to book their own appointment with a solicitor. A booking from a third party may, in certain circumstances, appear that the third party is applying pressure to the testator to make a will. 
• Let the testator travel to the solicitor’s office alone. If this is not possible, you may take them to the solicitor’s office but you should allow the testator to see their solicitor alone, even if the testator wishes you to be present.
• If possible, avoid passing on instructions for the will via email or other written correspondence for the testator. The testator should correspond directly with their solicitor.
• If you have concerns regarding the testator’s capacity and do not believe that the solicitor has adequately dealt with them, you should raise them with the testator’s solicitor. You should simply make the solicitor aware of your concerns and not seek to gain information from the solicitor about what they have discussed with the deceased or the terms of any will.

Solicitors should pick up on most issues regarding capacity. However, instruction-taking is not always perfect, so it can be helpful to try to look at the situation in the way a court would in the event that something does go wrong. For example, capacity claims often involve detailed analysis of the deceased's medical records, so you should encourage your relative to see a doctor if you have concerns about their capacity.  

You may also encourage them to keep a diary as this can provide very useful contemporaneous evidence in tracking the testator’s thought process and capturing any cognitive decline.

Will grief rob a testator of capacity?

The delusions in the case of Clitheroe v Bond appeared to have been brought on principally by the death of the testatrix’s daughter. As the death of a loved one is a common time for individuals to re-evaluate the terms of their existing will, it is important that proper steps are taken to ensure that the testator has the capacity to prepare a new will.

Grief alone is not sufficient to rob a testator of capacity. Many people grieve for years after the death of a loved one but this does not of itself prevent them from thinking or behaving rationally.

It is only in extreme cases of grief that there may be questions as to the testator's capacity. In these cases, the symptoms of bereavement can be almost identical to those of severe depression and may be characterised as an 'affective disorder'.

The High Court decision in Key v Key [2010] EWHC 408 (Ch) also considered the effect of grief on testamentary capacity and highlighted that certain factors such as a recent bereavement, a long relationship between the testator and the person who died, and a high level of dependency by the deceased on them may point towards a higher likelihood of severe grief. 

The key is to look at the effect of the grief rather than the grief itself. If these effects prevent the testator from fulfilling any of the limbs of the Banks v Goodfellow test, then grief may indeed rob a testator of capacity.

Penningtons Manches Cooper is experienced in acting for individuals on all contentious matters relating to the validity of wills, including claims involving testamentary capacity. The firm also has many experienced solicitors who can advise those looking to make a will on the ways of minimising the chances of any future claim against the validity of the will. 

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