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Willpower: Mind Over Matter

View profile for Richard Howells
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For a will to be valid, the person making the will, known as “the Testator” must have sufficient mental capacity to execute the will at the time the will was signed and witnessed.  The test for testamentary capacity has long been established from the case of Banks v Goodfellow [1870]. The Testator must be free of any disorder of the mind which would poison his affections, his sense of right or his natural faculties. 

The disorder cannot have a delusional influence which brings about the disposal of his estate in a way which would not have occurred if he was of sound mind.  The Testator must understand the nature of making a will, have a general idea of what they possess, and know who are members of the immediate family or other natural objects of their estate.

The test of testamentary capacity is relatively easy to state but far from easy to apply.  The recent case of Vegetarian Society v Scott [2013] has highlighted how far the law is willing to go to protect those with disorders of the mind in order to respect their requests.

In this case, the deceased, who was schizophrenic, left his estate worth £1,000,000 to the Vegetarian Society charity.  There was no dispute about the fact that the deceased had a disorder of the mind when he gave instructions for drafting the will.  The main question for the court was whether the deceased’s schizophrenia symptoms indicated testamentary incapacity.

The judge held that despite the deceased’s often “bizarre” behaviour due to his schizophrenia, the deceased had shown that he had been capable of rational thinking during various stages of his life.  The judge rejected the claim that his thoughts were so severely disordered that at all times he was incapable of making a valid will.  This ruling was given notwithstanding that deceased had no affiliation with the charity nor was he a vegan or vegetarian. 

This case highlights the dangers of the interpretation of “disorder of the mind.”  It is not necessary that the Testator is free from any mental difficulties or deterioration.  It is possible that the Testator may have testamentary capacity but not have capacity in other areas of their affairs.

Richard is a Partner at JCP, specialising in disputes involving Wills, Estates & Trusts and Property. Richard acts for a range of clients across both England and Wales, in contentious probate and property dispute matters. Richard is a full Member of the Association of Contentious Trust & Probate Specialists (ACTAPS).

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