The Court of Appeal contrasts Capacity when will instructions are given with Capacity when the will is executed.
The Court of Appeal has upheld the will of a Testator who had testamentary capacity at the time he gave instructions for his will, but had lost testamentary capacity by the time he executed it: Perrins v. Holland and others  EWCA Civ 840
The Claimant, David Perrins, was the son of the Testator, Robert Perrins. Robert gave instructions for his will on 5 April 2000 under which his carer, Anne Dooney, was the sole beneficiary. If that gift failed the will provided for the estate to be divided equally between the David and Robert’s brother.
Robert suffered from multiple sclerosis. At the time he gave instructions for his will he was confined to a wheelchair and unable to read or write. However, by 26 September 2001, when he executed the will, he was in the advanced stages of the disease. His health continued to deteriorate and he was admitted to hospital in April 2002, where he died on 31 January 2003.
Probate was granted to the executors on 24 June 2003. The main asset of the estate was a lease on Robert’s residence, which had a value of approximately £195,000.
David Perrins challenged the will on the grounds that his father did not have testamentary capacity either at the time he gave instructions for the will or when he executed it. He also argued that his father did not have knowledge and approval of the will at the time he executed it. David sought to propound an earlier will that his father had made in 1994, which was in his favour.
The Court of first instance concluded that Robert had testamentary capacity at the time he gave instructions for the will. Lewison J said that despite the long gap between instructions and execution, the Testator’s wishes remained the same and because the will prepared embodied those wishes, the Testator knew and approved the contents of it.
Accordingly, the Court upheld the will on the principle of Parker v. Felgate (1883) LR 8 PD 171.
David Perrins appealed on the grounds that the decision in Parker v. Felgate was wrong in principle and that Lewison J had also been wrong to find that his father knew and approved the contents of the will when he executed it as by that time he no longer had testamentary capacity.
The Court of Appeal upheld Parker v. Felgate as good law and cited several cases in which the principles have been applied. Sir Andrew Morritt C reasoned that testamentary capacity is not statutory; the Wills Act 1837 deals with the formalities of executing a will, not the mental capacity of the Testator at the time of executing it. The Court concluded that the law did not impose a requirement that the Testator have testamentary capacity at the time he executed his will, providing the will expressed the wishes of the Testator at the time he had testamentary capacity and that will had not been revoked. Sir Andrew Morritt C concluded that this should be so in order to uphold the principle of testamentary freedom and because practically, the will represented the last opportunity the Testator had to give effect to his wishes.
In relation to David’s argument of want of knowledge and approval, Sir Andrew Morritt C relied on Barry v. Butlin (1838) II Moore 480, stating that whilst testamentary capacity is a prerequisite to knowledge and approval (because if the former is not shown there is no need to look for the latter), it goes no further than that. He concluded that “the fact to be proved is knowledge and approval in the sense of acceptance of the contents” and that does not require full testamentary capacity. In other words, the invalidity of a will stems from lack of testamentary capacity, not want of knowledge and approval. Accordingly, providing the Testator believed the will gave effect to his instructions and it did so, it was not necessary to prove knowledge and approval of the will.
David had also argued that at the time his father gave instructions for the will, those instructions were not ‘settled’. However, Sir Andrew Morritt C relied on the principle in Parker v. Felgate. He affirmed that in the absence of any grounds being established to prove that the Testator’s wishes had changed between his giving instructions and executing his will, the will was valid.
Lord Justice Moore-Bick and Lord Justice Jackson agreed.
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