In a judgement that will be considered a welcome reassurance to estate planning lawyers, the High Court of Justice in Northern Ireland has rejected a disappointed son’s challenge to his father’s will, confirming that “intermittent confusion” does not equate to lack of testamentary capacity.
Mr McQuaid, the 73 year old testator, had been admitted to hospital when he executed a Will leaving the entirety of his estate to his wife. The Will was drafted by McQuaid’s solicitor and long-time friend, Mr Mallon.
McQuaid died a short time later, and his son brought a case against his mother and Mallon as executors of the estate, challenging his father’s testamentary capacity at the time the Will was executed and also arguing that he had been subject to undue influence.
The court heard evidence from medical experts along with close friends and family of the testator to determine whether he had testamentary capacity at the time.
Medical experts reviewed the testator’s medical notes and a number of occasions of intermittent confusion were indemnified during his hospital stay. One expert opined that the intermittent confusion was likely a result of the serious infection for which the testator was being treated around the time the Will was executed. This infection had the effect of the testator feeling confused one day and “as well as he had before” the next.
The legal test for testamentary capacity was considered and the court re-confirmed that three conditions must be met. The person making the Will must understand:
- The effect of his/her wishes being carried out at his death;
- The extent of the assets of which he/she is disposing by the Will; and
- The nature of the claims on his/her estate.
The court also considered the so-called “golden rule”, a concept originally referred to in Re Simpson and regularly invoked by lawyers ever since. The “golden rule” provides that an aged testator who has suffered a serious illness ought to have their capacity assessed by a medical practitioner before executing a Will. However, in this case, the court concurred with an earlier judgment by McBride J in McGarry v Murphy, in that this is not a rule to be slavishly followed, but merely guidance, and a solicitor must first and foremost exercise their own judgement according to the circumstances at hand. McBride J’s earlier judgment had also helpfully pointed out that the “rule” does not define “aged” and had made the valid point that “there are many nonagenarians who continue to act as leaders, mentors, and advisors. Most solicitors would find it very tricky if not downright insulting to require such a client to undertake a medical examination when it is clear that they have capacity”. Ultimately it is the duty of a lawyer to take reasonable steps satisfy himself that a client has sufficient capacity.
In this case, it was found that Mallon was an experienced solicitor who had known and acted for the testator for several decades, and was capable of exercising his own judgement regarding McQuaid’s capacity. He had kept a proper attendance note of the meeting no ‘red flags’ were raised to suggest any challenge to capacity at the time. The testator had discussed his wishes with family, his accountant and privately with his solicitor. He received advice regarding inheritance tax prior to making the Will, and was evidently content with his decision to leave his entire estate to his wife.
It was found that the deceased’s intermittent confusion was not a bar to testamentary capacity, and the court accepted medical expert opinion that this was due to an infection, and not an enduring condition such as dementia.
The judge accepted that there had been no requirement for a formal capacity report and rejected the plaintiff’s claim that the testator did not have capacity. The judge also rejected the claim of undue influence as “hopelessly misconceived”.
This case serves as an important reminder what that testamentary capacity must be judged on a case-by-case basis, taking into account all of the circumstances. Lawyers are not medical professionals and there is no doubt that formal capacity assessments will continue to form an important part of the Will-making process where there is a question mark over capacity. However it is not to be treated as a default requirement in every case concerning an older testator, even when he or she has experienced illness, and lawyers should exercise judgment in taking reasonable steps to satisfy themselves about capacity.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.