Testamentary Capacity: An Update

The High Court recently considered testamentary capacity in Raymond Allen James v. Karen James & others [2018] EWHC 43 (Ch).

Charles James died on 27 August 2012 leaving a Will dated 16 September 2010. He had a wife (Sandra), a son (Sam) and two daughters (Karen and Serena). No provision was made for Sam in Charles' will and he therefore brought two claims in relation to Charles' estate:

A proprietary estoppel claim; and A claim that Charles' will was invalid because he did not have the requisite testamentary capacity when he signed it. Commentary on Sam's proprietary estoppel claim will follow in the second of this two part series.

Key events

The key sequence of events of the matter was as follows:

2004 - Charles instructed solicitors to gift Pennymore Pitt Farm to Sam. Sandra became aware of this and, after challenging Charles, he did not sign the will. 2007 - Charles gifted three parcels of land to Karen and transferred bank accounts into his and Sandra's joint names. March 2009 - Charles gifted a parcel of land and his haulage business to Sam. The partnership was dissolved. October 2009 - Charles was described as suffering from short term memory loss and "spells of quite profound confusion". November 2009 - Sandra suggested that Charles meet with a solicitor to transfer Pennymore Pitt Farm into his and Sandra's joint names. The solicitor had some concerns as to whether Charles was completing the transfer of his own volition, but the transfer was made notwithstanding this. A nurse confirmed Charles' memory problems and confirmed that they dated back to 2006. Charles could no longer manage the farm or drive a car. January 2010 - Charles' medical notes referred to him as having dementia/Alzheimer's. May 2010 - a new solicitor prepared wills for Charles and Sandra. Sandra met with the solicitor without Charles to discuss how she could ensure that her share of Pennymore Pitt Farm passed to Serena. A 'severance of the joint tenancy' was required. The solicitor was confident Charles understood everything at the first meeting but thought that he might be under Sam's influence. Sandra and the solicitor spoke on the telephone five times to finalise the wills. Charles was not involved in this process. No references were made to Charles' capacity. September 2010 - The solicitor saw Charles and Sandra separately. Charles was reluctant to sign his will as he considered it was pointless to do so. The solicitor then met with Charles and Sandra together...

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