Testamentary Capacity in Wills: Boast v Ballardi & Ors Case Update
Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid will. The importance of determining testamentary capacity when writing a will has been highlighted in a recent court case, Boast v Ballardi & Ors. This case also sheds light on the burden of proof in establishing said capacity, as well as the resulting implications for executors and objectors.
Boast v Ballardi & Ors:
Edward Smith was unmarried and had no children. In 2006, Edward made a will leaving his entire estate to his nephew, Gavin. In 2013, he made a new will in which he gave Gavin a gift of £15,000 and left the rest of his estate to his two sisters. The sisters died before him and so the beneficiaries would have been Edward’s nieces and nephews under the intestacy rules.
Edward had become unwell in the latter years of his life and in 2012, his GP noted that he was suffering from confusion and paranoia. Edward contacted a solicitor to draw up a new will and the doctor wrote to the solicitor with his opinion that Edward did not have the capacity to make a will. The solicitor initially suggested that Edward be seen by a doctor to provide a medical opinion as to whether Edward was competent to change his will.
It appears that a doctor did see Edward on the day he signed his will. The solicitor carried out a home visit and Edward had already signed the draft will in front of witnesses. Edward told the solicitor that his medical problems were physical, rather than mental and made complaints about his treatment at the hands of a ‘foreign lady’.
It does not seem that the doctor had provided any first-hand report to the solicitor. A year later, Edward was found to lack the capacity to make a decision about his attorney.
The burden of proof in establishing testamentary capacity:
This judgment reminds us that it is for the person seeking to establish the will (usually the executor) to prove that the person had the testamentary capacity to make the will. There is a presumption of capacity if the will is rational. Any objector must raise a real doubt as to capacity and the burden is then on the executor to establish capacity.
Gavin, as the objector, was able to raise a real doubt as to Edward’s testamentary capacity. This is not surprising given that a doctor had said that Edward did not have capacity a year earlier. Whilst the solicitor thought that Edward did have the capacity, he did not make sure that an up-to-date opinion was obtained and, therefore, the court was not satisfied that Edward had the capacity to make the will but that the comments about the ‘foreign lady’ did affect the decision to change the amount of the gift to Gavin.
Implications for Executors and Objectors:
The Boast v Ballardi & Ors case shows that executors and objectors need to be aware of their responsibilities in proving or challenging the testamentary capacity of the deceased. Executors need to establish the capacity to defend the will, while objectors need to raise real doubts about the capacity. It is crucial to obtain medical records and a statement from the solicitor who drafted the will to support or challenge the will’s validity.
When faced with such instructions, we invariably take two steps. The first is to obtain the deceased’s medical records and the second is to send what is called a Larke v Nugus letter to the solicitor who drafted the will requesting a statement setting out the circumstances in which the will was prepared and for a copy of their file.
We can then consider whether there are grounds to raise a real doubt or to prove capacity on the balance of probabilities. It may be necessary to obtain a post-death medical report but in Edward’s case, the evidence in the medical records was clear.
In conclusion:
In conclusion, the Boast v Ballardi & Ors case highlights the importance of establishing testamentary capacity in writing a will. The burden of proof lies with the executor to prove that the person had the capacity to make a will, and any objector needs to raise a real doubt about the capacity. Executors and objectors need to be aware of their responsibilities and obtain medical records and statements from the solicitor to support or challenge the will’s validity.
If you would like advice about challenging a will, please contact me directly by emailing Matthew.Ellis@GASolicitors.com or call 01752 203500.
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