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Latest News [index] Testamentary Capacity
WHO KNOWS WHAT YOU HAD BEFORE YOU LOST IT?
A valid will requires compliance with the required legislated formality (Wills Act 2007, Wills Act 1837 (UK)). Although the will-maker must also possess the requisite mental capacity, this is prescribed by common law rather than legislation.
A grant of probate does not require proof of testamentary capacity in the first instance. Where a validly executed will appears rational on its face there is a rebuttable presumption of a will-maker's testamentary capacity. (In re White (dec'd) and Peters v Morris(CA 99/85, 19 May 1987)).
However, where there is evidence that brings capacity into question, the onus of proving capacity rests on the party seeking probate of the will (Public Trustee v Bick [1973] 1 NZLR 310; Peters v Morris).
"Once a doubt is raised as to the existence of testamentary capacity an onus rests on the person propounding the will to satisfy the Court that the testator retained his mental powers to the requisite extent; that in the end the tribunal must be able to declare that it is satisfied of the testator's competence at the relevant time, but that a will, will not be defeated merely because a residual doubt remains as to that matter (Peters v Morris at pp 24-25)"
As proof of testamentary capacity is generally required following death, any person taking will instructions should ensure not only that testamentary capacity is confirmed but that evidence of this confirmation is acquired and retained.
In this regard it is important to appreciate that testamentary capacity is not just a test of mental capacity simpliciter. Rather, the test of capacity in a testamentary context requires confirmation not just of mental acuity but also confirmation of an appreciation of the object of a will and the acquitting of moral obligation and duty.
Elements of testamentary capacity
The judgment in of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, which has endured the passage of time, remains the leading authority on testamentary capacity. The following statement from p. 567 of that judgment succinctly observes the elements of testamentary capacity:
"As to the testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms."
The elements of testamentary capacity as determined by Cockburn CJ have been confirmed and re-stated in the recent Court of Appeal decision in Woodward v Smith [2009] NZCA 215 at para. 19. Although lengthy, the propositions stated are worth restating in full as they provide useful guidance regarding the parameters of capacity.
"(1) Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will
(2) It is essential to the exercise of such a power that a testator:
[i] understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
[ii] is able to comprehend and appreciate the claims to which he ought to give effect;
[iii] be free of any disorder of the mind which would 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 about a disposal of it which, if the mind had been sound, would not have been made.
(3) Unsoundness of mind arising from want of intelligence caused by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement is equally cause of incapacity. But
[i] though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
[ii] It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
(4) It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
(5) In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(6) A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(7) Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all;
(8) Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.
(9) But if that standard is not met, he will lack capacity."
Further clarity on the application of these principles is provided by case law.
Moral responsibility
The history of moral responsibility in the context of a will-maker's obligations is well traversed in the context of proceedings brought under the Family Protection Act 1955. While any moral obligations are not limited to the context of parents and children the commentary relating to claims by adult children provides useful guidance regarding the context and concept of moral responsibility. See for example Flathaug v Weaver [2003] NZLR 730, where at para. 32 the Court notes that:
"The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives."
The contemporaneous quality of morality is confirmed by the Court of Appeal decision in Re Leonard [1985] 2 NZLR 88 where Richardson J states at 921 that:
"The question of whether the testator was in breach of his moral duty to his daughters as claimants on his bounty must be determined in the light of all the circumstances and against the social attitudes of the day. Mere unfairness is not sufficient and it must be shown that in a broad sense the applicant has a need of maintenance and support. But an applicant need not be in necessitous circumstances: the size of the estate and the existence of any other moral claims on the testator's bounty are highly relevant and due regard must be had to ethical and moral considerations and to contemporary social attitudes as to what should be expected of a wise and just testator in the particular circumstances."
Simply put, a will-maker requires an appreciation of the social expectation that the will-maker will provide for family in a considered manner. The moral duty does not require mathematical precision in the context of even-handedness. What is required appears to be the mental capacity to appreciate the accepted social mores, whether or not these are acted on.
As a general proposition the more conventional a will the more likely that the will-maker is accepted as having had sufficient testamentary capacity, if for no other reason than because in the context of an "ordinary will" capacity will not be called to be examined.
"Where property is disposed of fairly, and in accordance with moral dictates, then only a small amount of capacity is needed. But with abrupt and unfair changes, fuller and clearer evidence of capacity is required." (Mein-Smith v Wills and Foster (High court, Christchurch, M2/02, 24 September 2002, Young J).
Extent of property
In making a testamentary disposition the will-maker necessarily requires an appreciation of the property available for disposal. This test can be met where there is less than perfect recall of property available for disposition. However, where a will-maker has limited or incorrect recollection of property owned further advice should be sought to confirm capacity.
Diminution through time or illness
It is accepted that there is often a diminution of mental prowess over time. Such diminution does not of itself evidence a lack of capacity.
A person can have sufficient testamentary capacity even when seriously ill. This can be the case even if the will-maker is not aware or has not accepted the imminence of death. A refusal to accept that death will eventuate is not necessarily evidence of delusion such that the will-maker does not have testamentary capacity (Kaap v Wilson (unrep, CA 97/04, 14 June 2005)).
A delusion or partial unsoundness of mind that does not appear on reasonable grounds to affect decisions made with respect to any testamentary disposition is not of itself determinative of a lack of capacity (In re White (dec'd)). It is well accepted that a person can retain testamentary capacity while subject to delusion (Banks v Goodfellow). However, if the nature of the delusion is in respect of the property at the will-maker's disposal or relates to the potential beneficiaries the requisite testamentary capacity may not exist.
Fluctuating capacity
Where a will-maker has previously lacked testamentary capacity it is important to be able to demonstrate, if required, that the will was made during a lucid interval, as in this instance for the purposes of probate there will be a presumption against testamentary capacity, the more so if the will displays any lack of moral responsibility in the nature of the dispositions (4 Halsbury's Laws of England, vol 17 at para 904 and Squires v Squires & Public Trustee (unrep, HC, Auckland, CP 138-SD02, 1 October 2003, para 13; French v Public Trust (unrep, Auckland, M167/02, 29 October 2003)).