How do you know if an elderly person has capacity to make a new will?

In this article, we look at whether an elderly person has capacity to make a new will – such as in the case of Boast v Ballardi and others [2022].

Background

The deceased, Edward Henry Charles Smith (Edward) died on 24 January 2016, aged 97. He was unmarried and had no children.

During his life, Edward made two wills. The first, which was made in 2006 (the 2006 will), appointed his great nephew Gavin Boast (Gavin) as the sole Executor and beneficiary. Subsequently, Edward made a new will in 2013 (the 2013 will) which appointed Gavin as the Executor but, other than a cash legacy to Gavin, left everything to his two elderly sisters and, if they predeceased him, the gift went to their children equally.

After Edward’s death Gavin issued proceedings for the 2013 will to be set aside on the grounds that Edward lacked the mental capacity to make the 2013 will.

The law

When drafting a will for an elderly testator, solicitors are advised to follow the ‘Golden Rule’. The Golden Rule was first set out in the case of Kenward v Adams [1975]. It provides that best practice for solicitors is to obtain the opinion of a medical professional regarding an elderly testator’s capacity to make a will, before drafting their will for them.

In Boast v Ballardi the solicitors drafting the 2013 will did follow the ‘Golden Rule,’ at least in part. They obtained the opinion of Edward’s GP who confirmed that he did not think Edward had the mental capacity to make a new will. Despite the opinion of the GP the solicitor went ahead and prepared the 2013 will for Edward in any event.

Solicitors drafting wills should not only consider the Golden Rule but should also apply the longstanding test for testamentary capacity as set out in the case of Banks v Goodfellow [1869], which says that a testator must:

1. understand the nature of their proposed will and its effect;
2. have some understanding of the extent of the property of which they are disposing under the will;
3. be aware of the persons for whom they would usually be expected to provide; and
4. be free from any delusion of the mind that would affect their dispositions to those people.

It is important that a solicitor responsible for drafting a will asks the right questions to the testator to ensure they have all the information to satisfy the test in Banks v Goodfellow. The solicitors in Boast v Ballardi were criticised by the Judge for failing to take any steps to understand what Edward thought his property comprised of. They were also criticised for failing to investigate comments made by Edward during the taking of instructions. During their meeting with Edward, Edward commented that a ‘foreign lady’ was taking money from his family. This ought to have raised concerns with the solicitors. In their attendance note the solicitors recorded that Edward did not like foreigners. It transpired that the ‘foreign lady’ Edward was referring to was a family member and that his delusions about her effected his testamentary capacity.

Outcome

The Judge set aside the 2013 will and pronounced in favour of the 2006 will.

There are valuable lessons to take away from Boast v Ballardi. It is clear that where there is any doubt about testamentary capacity, or you are acting for an elderly testator it is important to apply the Golden Rule. Once you have advice from a medical professional, follow that advice.

It is also important to go through the test in Banks v Goodfellow in detail and not to just pay lip service to the test. On the face of it there was nothing unbelievable about Edward’s comments that a lady was taking money from the family, however, any allegations being made must be considered carefully. They could be a result of delusions of the mind caused by dementia or other medical ailments. The solicitor ought to always investigate these further.

For more information on this topic, see our guide to wills and will writing in the UK and our guide to contesting a will in the UK.