Testamentary capacity and the long-term effects of a debilitating terminal illness, are central to a case where despite numerous witness accounts and medico-legal opinion, the power to reach an exacting judgment remained elusive to the end.
Having been diagnosed with multiple sclerosis in 1980, an equine stud owner and racehorse trainer was left with virtually no direct means of communication at the time his revised will underwent drafting and execution. This change in disposition was such that precluded his two daughters from inheritance, and which led to costly litigation in contention of a perceived rejection.
During the twenty-so years of his decline, the testator had been supported by a number of close friends and acquaintances through employment, legal services, medical assistance, 24-hr care and lifelong companionship. At the outset of his condition, the testator was able to communicate without detriment, yet as the years passed, his only means of dialogue was through mechanical devices, gestures and blinking.
This resulted by extension of the crippling effects of the disease, which according to medical data, was accompanied by progressive weakening of the cognitive faculties, as often found in cases similar to this. While the original will dated February 1997 made arrangements for his two daughters to benefit from his £1m estate, he decided in 2001, to revise the will in favour of his two primary employees, who had both remained loyal to him for a period of over twenty-five years.
This came at a time when those closest had begun to voice concerns as to his mental state, along with his long-standing reliance upon medication to accommodate the increasingly painful symptoms. After a number of consultations with his trusted solicitor, doctor and friends, the revised will was drafted and executed in full accordance with legal procedures, and on the understanding that while the removal of his daughters from the will was prima facie absolute and seemingly out of character, there was simply no evidence to suggest the testator was anything less than lucid and of sound mind.
Upon his death, the matter was brought before the court, whereupon the daughters claimed their father lacked testamentary capacity at the time the new will was drafted, and that under the principles used in the Banks v Goodfellow test which reads:
“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
The will was void, therefore the 1997 will must stand. Having presented the evidence to a discerning jury, the case was made using expert testimony from both a Professor of Neuropsychiatry and a highly qualified Neurologist, who between them argued both for and against the testator’s capacity to instruct and bequeath his estate. Despite the compulsion of the two professional reports, neither party had met the deceased, nor been present when the revised will was prepared. This mitigating element was contributive to the granting of an appeal after the jury decided against the 2001 will, whereupon it was presented again to the Supreme Court.
While the previous judge had found himself contradicting the viewpoint of the Professor on a number of points, the Court chose to rely upon the argument that in keeping with medical expectations, the deterioration of brain function within multiple sclerosis cases would be representative of a man unable to hold himself fully accountable when preparing a will at the stage the testator had reached when doing the same; while emphasis was also placed upon the long-term drug usage of the deceased, which had incidentally ceased sometime before the revision occurred.
It was this, along with the sudden reversal of fortune for the testator’s employees, that solidified the verdict to dismiss the appeal before noting that while subjective opinion of those witness to testator requests frequently conflict with that of medical data, the words of Lord Cranworth in Boyse v Rossborough remind us all that:
“There is no possibility of mistaking midnight from noon, but at what precise moment twilight becomes darkness is hard to determine.”