The government is introducing legislation to allow people to use video-conferencing for the witnessing of wills being made. Check out my previous post on this here.

With this legislation imminent, it raises a few challenges. For the most part, the focus has been on the formalities of executing Wills i.e. a witness needing to have a clear line of sight of the Will being signed etc. Now that commentary has largely passed, the changes pose further challenges for practitioners assessing the testamentary capacity of those making their Wills and protecting such Wills from challenge.

The key case for testamentary capacity is that of Banks v Goodfellow. This is often referred to as the “Banks v Goodfellow test”. To make a valid Will, a testator has to:

• Understand the nature of making a Will and its effects
• Understand the extent of the property of which they’re disposing
• Be able to comprehend and appreciate the claims which they ought to give effect; and
• Have no disorder of the mind that prevents their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

When assessing whether a testator passes the Banks v Goodfellow test, various assessments and steps have to be made. It is largely dependent on such things as the complexity of the Will itself, the age of the testator, their level of assets and any potential claims against their estate.

The above test was later strengthened by guidance from Lord Templeman, who established “the golden rule” in the 1975 case of Kenward v Adams that, for elderly testators or those suffering serious illness, their Wills should be witnessed and approved by a medical practitioner who has satisfied themselves that the testator has capacity and understanding of the contents of their Will, their reasons for making the Will in the way they have done and the extent of their assets. What is interesting is that the creator of the “golden rule” himself did not follow his own rule! Lord Templeman’s Will was challenged upon the basis that he had started suffering from Alzheimer’s disease at the time he changed his Will at the age of 88 but had not instructed a medical practitioner to witness the execution of his Will. The challenge was ultimately unsuccessful and his Will was declared valid despite the failure to follow the golden rule (Templeman v Goss-Custard).  As such, whilst it is not the be-all and end-all if the rule is not followed, the Will may still be upheld but not after much stress, time and money is spent. Therefore, it is always best to follow it.

The impact of Covid-19 has meant that at times, it is proving harder for solicitors to obtain assessments from medical practitioners with the strain on the NHS and the need to keep to social distancing rules. It is of upmost importance therefore for solicitors to maintain thorough and detailed contemporaneous notes of their assessment of the testator’s capacity to guard against any claims being made in future.

There are other things that solicitors have to consider, including ensuring the testator isn’t being unduly influenced or coerced into making the Will. It is undoubtedly harder to check for this where the taking of instructions and witnessing is via video link. You simply never know if there is someone just outside the room or just out of the video’s frame.

Our Litigation team deals with defending and also bringing invalidity of Will actions. There are a number of other reasons why the validity of a Will can be questioned .If you require our advice on bringing or defending a claim against a Deceased’s Estate, get in touch with us now on 0800 389 7093 or contact us via our online form.