Making a Will is a sensible approach to organising your affairs and something that almost everyone should do. As clients get older the destination of their assets when they are no longer here to enjoy them will often become a more pressing consideration.
To make a valid Will, however, certain conditions must be met. One of those is that the person making the Will – the testator – must have testamentary capacity.
The test to establish whether a person has testamentary capacity to make a will is set out in a case dating back to 1870. In Banks v Goodfellow the Court identifies that, for a Will to be valid, the person making it must
It is usually the case that where a testator is elderly or vulnerable they will be best advised to ensure that the Will is witnessed by a doctor or that there is a capacity report prepared confirming that they have capacity to make the Will. This is often referred to as “the Golden Rule”.
The particular nature of the coronavirus pandemic that has swept the world has been its impact on people indiscriminately. It is not just the elderly and vulnerable who have been struck down or who have faced needing significant medical intervention.
When considering whether someone who has made a Will during the pandemic had the testamentary capacity to do so it will be important to look at all the circumstances in which the Will was made. Some of the impacts of Covid may have affected the testator’s capacity in ways that are not always clear at first glance.
During the pandemic various national lockdowns were imposed, resulting in social isolation, boredom and worry for many hundreds of thousands of people. Additionally, the loss of loved ones during pandemic – whether as a direct result of Covid 19 or by other causes but in circumstances where family support had to be at a distance – exacerbated the grief caused to families and friends of those who died.
In 2010 the impact of bereavement on capacity was considered in the case of Key v Key. In that case George Key made a new Will just one week after his wife Sybil’s sudden death. George was aged 89 and had been entirely dependent upon his wife prior to her death. It was established that George suffered such grief following his wife’s death that he was suggestible and lacked the capacity to make his own decisions.
Bereavement and depression can be affective disorders and so will be taken into account when considering testamentary capacity under the Banks v Goodfellow test. Although the starting point is a presumption of capacity, this can be rebutted if there is “real doubt” about capacity and the burden of proof will fall on those seeking to rely on the Will to show that it is valid.
In the more recent case of Hughes v Hughes (decided in 2021) the Court founds that the testator was “deteriorating fast” following the death of his son and that his grief had accelerated the rate of the decline. Ultimately the Court held that Evan Hughes had lacked testamentary capacity on the basis that it had been declining due to vascular dementia already but had been diminished further following his son’s death.
Grief will not always lead to the conclusion that a Will is invalid. In Dharamshi [2013] a new Will was made by the testator just two months after his wife’s death and he was described as “seriously distressed”. Nevertheless, the Court found that the testator had chosen to engage solicitors and given clear instructions to change his Will. The changes themselves were not irrational and there was no evidence that the testator was confused so the Will was upheld.
In other circumstances, grief has not been sufficient to remove testamentary capacity. In Dharamshi [2013] EWHC 3917 (Ch) the testator made a new will only two months after his wife’s death. He was described as “seriously distressed” by her death but engaged a solicitor of his own volition and gave clear instructions to change his will. The change itself was also not irrational – his previous will left everything to his wife’s family but the change left everything to his own – and as there was no evidence that the testator was muddle or disjointed. The will was therefore valid notwithstanding his recent loss.
In the same way as grief may affect capacity, so depression must also be considered as a possible affective disorder. Again, Courts will look at evidence from sources other than medical staff when assessing whether a person with a diagnosis of depression was incapable of giving instructions to make a valid Will.
Merely taking anti-depressants will not of itself leave a person without the requisite testamentary capacity. There needs to be evidence – medical and otherwise – that someone is suffering a depression so significant that it raises a real doubt as to capacity.
Patients suffering with Covid itself will often have compromised breathing. The impact of the virus on respiratory systems is well documented and – in the worst cases – results in patients needing ventilation.
Even patients who do not require ventilation and appear unwell but “coping” can experience low oxygen saturation levels as a result of Covid-19. A reduction in the level of oxygen saturation in the blood affects the oxygen concentration in the body’s tissues, organs and muscles. This is known as hypoxia and will often result in confusion in a patient – a situation that may well result in a lack of testamentary capacity. Normal blood oxygen levels are considered to be 95 to 100 percent. A level that falls below 88 percent is real cause for concern. Patients with Covid experiencing reduced blood oxygen saturation may not have capacity to make a valid Will.
If someone has made a Will during a period of depression, grief or whilst suffering from Covid this does not automatically mean the Will is invalid. The presumption is that – in the absence of evidence to the contrary – the testator had the requisite testamentary capacity and that the Will itself is valid.
Looking at the full circumstances in which the Will was made, considering any pre-existing cognitive impairment of the testator and looking at evidence from a wide range of sources will inform the decision about whether the terms of a Will can stand. If a person is found to have lacked capacity this automatically leads to the conclusion that they did not know and approve of the content of the Will and it will fail.
The Courts are not looking to find that a Will is invalid and will endeavour to preserve the testamentary freedom of an individual.
Where there is clear evidence of an affective disorder or lack of capacity for other reasons, a Will may be found to be invalid.
In such cases the Courts will look to any previous valid Will or to the Intestacy Rules which set out the strict order of precedence in which an Estate will be distributed if there is no valid Will.
For information, please contact Jennifer Laskey on 01908 247546 or email [javascript protected email address].
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