Difference In Memory And Capacity Addressed In Will Dispute Case

Court Of Appeal Relates To Understanding The Consequences Of A Will


The difference between a person’s capacity to make a will and their memory of drafting such a document has been highlighted by the Court of Appeal, following the recent case of Simon v Byford and others [2014] EWCA Civ 280.

The case related to an elderly lady whose mental health was deteriorating when she made a will in 2005.

A previous will had divided her property equally, except for her shareholding in a family company which was to go to one of her sons. Each of her children already had an equal shareholding and the effect of her shares going to one of them would give that person a controlling interest, preventing there from being a deadlock in the event of disagreement.

However, in the new will the lady shared out her shareholding equally between her children. The result was that there could be a deadlock if the shareholders disagreed.

The son who would have received the controlling interest under the earlier will challenged the 2005 will, stating his mother had forgotten why the earlier will was framed as it was and suggesting she did not appreciate the consequences of the change. Therefore, he said, she lacked capacity.

However, the Court of Appeal disagreed with him and found that it was not necessary for a testator to actually remember the extent of their property.

According to the 1870 case of Banks v Goodfellow, which applied since the will was made before the Mental Capacity act came into force, a person making a will has capacity to do so if they:

  • Understand the nature of making a will and its effects
  • Understand the extent of the property of which they are disposing
  • Are able to comprehend and appreciate the claims to which they ought to give effect
  • Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties to dispose of their property.

They must also know and approve the contents of their will for it to be valid.

However, it also means that a testator does not have to understand the collateral consequences of a disposition as opposed to its direct consequences.

Expert Opinion
This case makes it clear that whilst it is essential that the person making a will understands what they are doing and the immediate consequences of their actions, they do not have to remember every detail about matters beyond their own assets.

"It was not necessary for the elderly lady in this case to remember the position of any of the other shareholders – she only needed to understand the extent of her own property.

"It did not matter that the testator had forgotten the terms of and reasons for her earlier wills. She was capable of accessing and understanding the relevant information but she chose not to, and that was enough for her to have the requisite capacity for the will to be valid.

"However, another key issue that this case highlights is why it can be hugely beneficial for people to sit down with their loved ones to discuss the terms of the will and why such decision have been made.

"Challenging a will can be a difficult step to take and the process can cause a great deal of stress and expense to friends and family. Taking expert legal advice and carefully considering all the options at an early stage can help to minimise that, while speaking to friends and family should help to keep them informed of what you hope to happen when you pass away."
Paula Myers, Partner