How grief can make a will invalid

The effect of grief on the validity a will

People, including lawyers, often overlook the fact that grief can make a will invalid. For guidance on the validity of a will made in grief call our free legal helpline on 0808 139 1599 or send us an email.

The Banks v Goodfellow test for mental capacity to make a will

The legal test for testamentary capacity, i.e. the capacity to make a valid will, comes from the Victorian case of Banks v Goodfellow. The test is:

“It is essential to the exercise of such a power (to make a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, 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 out a disposal of it which, if the mind had been sound, would not have been made.” 

Four key parts arise from that quotation, which are:

(i) understanding the nature of making a will and its effects;

(ii) understanding the extent of the property of which they are disposing;

(iii) being able to comprehend and appreciate the claims to which they ought to give effect; and

(iv) having no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

That case is now 150 years old. Lawyers have repeatedly called for the legal test to be updated, arguing that the meaning of the Victorian language used, is unclear and doesn’t reflect the advancements in modern medicine.

The Mental Capacity Act

There was great debate when the Mental Capacity Act 2005 (“MCA”) was enacted as to whether that Act supplanted the Banks v Goodfellow test.  When the Act was being drafted, the aim was to incorporate up to date medical thinking and provide new clarity. The Act sets introduced a two-tier test for capacity. The first stage is to find a diagnosis or a medical condition that might amount to an incapacity in decision making. The second stage is to then consider whether the diagnosis or condition itself is such that it interferes with the function of the mind. The approach is widely applied in many contexts, including decisions relating to property and financial affairs, as well as health and welfare issues. 

However, some legal experts believe that a more functional test (i.e. not relying upon medical diagnoses) is to be preferred when it comes to considering the validity of a will. The Banks v Goodfellow test is, primarily, a functional test. The testator must understand (i) the nature of making a will, (ii) the extent of their property, and (iii) the moral claims which they should consider. If there is evidence that the testator’s ability to do this was impaired, then the court should consider if there is any disorder of the mind, which poisons or perverts their sense of right, or impedes their thinking.

How grief can make a will invalid

The cases of Walker (2014) and James v James (2018) confirmed that the Banks v Goodfellow test remained the correct test when determining testamentary capacity. While not dismissing the MCA test, it was decided that the Banks v Goodfellow test should be applied. But despite those rulings, some tension still persisted as to the correct legal test to be applied.

The recent case of Clitheroe v Bond  (2020) is interesting in that it highlights the difference between the two approaches, as well as developments in psychiatry, particularly in relation to the effect of grief. The Judge took a MCA approach to see whether there was a medical diagnosis that could impair the testator’s reasoning to the extent that it might render her incapable. However, there had been no lifetime diagnosis. At the trial, two medical experts gave evidence, Dr Series and Professor Jacoby, both of whom took different views on the diagnosis.

Dr Series noted that there had been no formal diagnosis of any psychiatric condition while the testator was alive. In fact, there had been a formal assessment carried out which concluded that the testator was not suffering from any mental illness. Professor Jacoby’s opinion, on the other hand, was that the Testator had an affective grief disorder.

In comparing the two tests, Banks v Goodfellow refers to a “disorder of the mind”, while the MCA refers to a medical diagnosis. The Victorian terminology used in Banks v Goodfellow  is such that it could not have been referring to relatively modern issues such as personality disorders. However, as psychiatry was just evolving at the time, they were more prone to describe disorders rather than mental illnesses. Coincidently, within modern psychiatry there is a growing tendency to do the same. Many find it more useful to refer to disorders that are descriptions of a behaviour that the patient cannot control, rather than a clinical diagnosis. The return to Victorian terminology is perhaps reflective of a deeper understanding of the complexity of mental health.

The Judge initially looked for a medical diagnosis but could not find one. As he couldn’t choose between the views put forward by Dr Series and Professor Jacoby, he then turned to look at the burden of proof. There is a well established legal principle that a person is presumed to have capacity, though that presumption can be rebutted by evidence to the contrary. Where doubt is cast upon a person’s capacity, then it is up to the person seeking to establish that the will is valid to show that the maker of the will had the necessary testamentary capacity when it was made.

The judge felt that as there was no clear medical diagnosis, the grief disorder diagnosis made by Professor Jacoby must apply and was sufficient to cast doubt on the testator’s capacity to make a will. this moved the burden of proof on to the person arguing that the will was valid. Ultimately, that burden could not be met and the judge therefore concluded that the testator lacked testamentary capacity and her will was therefore invalid.

Grief disorder

Grief disorder is a relatively new diagnosis in this field of medicine. The case of Key v Key in 2010 appears to be the first reported judgment involving a bereavement disorder, leading to a finding of incapacity. However, that involved a will made very soon after the bereavement, whereas the cause of grief in the case of Clitheroe v Bond was four years before the disputed will was made. 

It is unclear whether the case of Clitheroe v Bond is an exception to the rule or whether it is an indication of a move towards a change of approach by the courts to the question of testamentary capacity. Whatever it means for the test to be applied, it clearly underlines the fact that grief can make a will invalid. Furthermore, that grief does not have to relate to a bereavement that was suffered proximate to the making of the will.

If you are involved in a dispute relating to the validity of a will based on a challenge to testamentary capacity, or if you require guidance on how grief can make a will invalid, then please contact our team of specialist lawyers on 0808 139 1599 for a free case assessment or send an email to us at [email protected]

How grief can make a will invalid