Mental capacity and wills

In the case of Perrins v Holland, Mr Perrins lost mental capacity between the time of giving instructions to his lawyers as to the contents of his will and actually executing it.  The Court of Appeal found that, despite this loss of capacity, the will correctly implemented Mr Perrins’ instructions.  These had not changed when he executed it and he had understood a summary of its contents at that time.  Therefore, the will was valid. 

Whilst this might seem surprising, this decision is actually based on case decided 127 years ago (Parker v Felgate). The court also confirmed that a testator can know and approve the contents of his will without having what is known as testamentary capacity.

The test for capacity for making a will can be summarised as:

• He understands the nature of making a will and its effects.
• He understands the extent of the property of which he is disposing.
• He is able to comprehend and appreciate the claims to which he ought to give  effect.
• For this last purpose, no disorder of the mind poisons his affections, perverts his sense of right or prevents the exercise of his natural faculties – no insane delusion influences his will in disposing of his property.

It is likely that the Mental Capacity Act 2005 may influence the Courts’ interpretation of the above test in the future.

Does capacity matter any more?

In short, yes.  For one thing, the testator needs to understand their instructions as to how their will is drafted.

Which is why, for many, this will seem a surprising decision.  However, it follows the tradition of testamentary freedom in English law.  In essence, the court prefers to give effect to decisions that the testator made when he did have testamentary capacity, provided that the testator himself intended to do this.

In practice if one uses a responsible solicitor to draft their will, they will ensure that they are satisfied of the testator’s capacity and ability to understand the consequences of what they are doing.  If there is doubt, their solicitor should obtain medical evidence of testamentary capacity, often from the testator’s GP.  This usually avoids cases such as this making it to court with the associated financial and emotional costs of doing so.

In cases where there is genuine doubt as to whether a testator has lost capacity before they sign a will, it will now be very important for their legal advisers to take full consideration of the facts of this case before suggesting a proper course of action.