1. Introduction
It is, I think, well-known that delusions can invalidate a will if they influence the testator in disposing of his property. This is clear from the locus classicus on testamentary capacity, Banks v Goodfellow,[1] which English and common law courts have consistently followed and which remains the authority that the courts follow. In it, Chief Justice Cockburn described the test as follows:[2]
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall 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.
The testator suffered from a number of delusions. He had a violent aversion to a man named Featherstone Alexander and, even though this person had died some years ago, he continued to believe that Alexander still pursued and molested him. He also believed that he was being persecuted by devils and evil spirits and thought them to be physically present. His physician and minister testified about his general incapacity. However, he managed his money and affairs competently, and various lay persons testified that he was capable when he executed his will. The will, which revoked a former will that left his estate to his sister who predeceased him, left his entire estate to his niece, Margaret Goodfellow. She survived him but died shortly afterwards, leaving the defendant as her heir at law. The court held that the testator had capacity and that the will was valid. Although he suffered from delusions, they did not have any influence on the provisions of the will and were not capable of having such influence. Besides, the will was a rational one since it left all to the testator’s niece, who lived with him and who was the object of his affections.
Thus Banks stands for the proposition that if a delusion is one that can influence the dispositions in the will, even if it was not manifest when the will was made but was latent, the will may be held invalid, but only if the delusion in fact affected the dispositions made in it.[3]
This is the law the court addressed in a recent English case, Boast v Ballardi.[4]
2. Facts
The testator, Mr Edward Henry Charles Smith (‘Mr Smith’), died in 2016 at age 97. He was unmarried and had no children. He made a will in 2006 in which he named his great nephew, Gavin Boast (‘Gavin’), his sole executor and sole beneficiary. He was close to Gavin and trusted him until he became ill. On the same date, Mr Smith executed an enduring power of attorney (‘the EPA’) in favour of Gavin. But in 2013 Mr Smith made a new will. It also named Gavin as the sole executor. However, this will gave him a legacy of only £15,000, a legacy of £3,000 to another beneficiary, and the residue equally to the testator’s two surviving sisters. The firm of solicitors, Cross Ram & Co, prepared both wills.
Both sisters predeceased the testator, so if the will was valid, there would be a partial intestacy and the persons entitled on the intestacy were the testator’s nephews and nieces. Gavin brought a claim in which he sought an order pronouncing against the 2013 will and pronouncing in favour of the 2006 will. The matter was tried on the written evidence, which consisted of affidavits by Gavin and the witnesses to the 2006 will, as well as other written evidence, including the file of the testator’s solicitors. In addition there were letters from a consulting psychiatrist, Dr Ashford, to the testator’s general practitioner (‘GP’), a letter by Dr Ashford to the testator’s solicitors, Cross Ram & Co, two letters from another consulting psychiatrist, and a letter from the testator’s GP to Gavin’s solicitors.
3. The Evidence
Master Clark reviewed the evidence in great detail, and I summarize the evidence below in some detail as well. I don’t apologize for the length of my summary because my view this is important to understand the decision, which was based entirely on this evidence. I also believe that the evidence serves as a useful aide memoire for solicitors when dealing with a delusional putative testator.
Mr Smith lived in his own home until 2011 and Dr Ashford described him in his letter dated 6 March 2012, as coping fairly well until about mid 2011. He came to live with Terrance Boast (‘Terry’), one of his nephews, and Terry’s partner, Sila Holland, in late 2011 or early 2012 at Boast House, Boasts Industrial Park.
On 27 February 2012 his GP visited him at home. His notes recorded that Mr Smith lived with family because he was unable to cope in his own home. The GP described Mr Smith as ‘increasingly confused, paranoid ideas … lucid but disoriented in time and space. Fixed ideas about people preventing him having tablets’.
Dr Ashford saw Mr Smith on 6 March 2012. He described Mr Smith as having various paranoid delusions and having become less compliant with care. He continued:
Since staying with his family the persecutory delusions have mainly been directed at Terence’s partner, thinking that she is out to harm him in various ways. He thinks that she is a professional hypnotist and that he is therefore completely under her power as are various other people. … He has also expressed a lot of other rather odd or eccentric ideas about his own history, some of which were certainly news to his Great Nephew [Gavin] and sounded unbelievable to anyone. … He talked about being an expert hypnotist himself and using this to treat victims of shell shock during the War.
With respect to Mr Smith’s mental state, Dr Ashford said that while he examined him, Mr Smith was calm, pleasant, and cooperative, ‘but did express a few eccentric and possibly delusional ideas, including some rather grandiose ones’.
On 9 March 2012 Mr Smith phoned Jonathan Margarson of Cross Ram and told him that he wanted to cancel the EPA and make a new will benefiting his sisters. Mr Margarson was aware of Mr Smith’s dementia and wrote to Dr Ashford for advice.
On 15 May 2012 Dr Ashford Smith reviewed what he knew about Mr Smith and wrote to Cross Ram about his review. In the letter, he said that in his opinion Mr Smith’s capacity to make decisions about his finances were already significant impaired when he saw him in March of 2012 and that he had concerns about Mr Smith’s testamentary capacity, because he is confused about the amount of his savings. Then he went on to say:
More importantly he continues to maintain various persecutory delusions that could influence his decisions about how he disposes of his property in the will. For this reason, I do not believe that he has testamentary capacity.
In August 2012 Mr Smith wrote another letter to Cross Ram. The first part of the letter was rational. In it he said that he had learnt that his sisters had suffered strokes and were in straightened circumstances, so wanted to leave each of them £8,000 in his will. However, then the letter went on to say that his personal files had been taken away since he moved into Boast House, and that he did not appear to be a free person and did not know why.
In April 2013 he wrote again to Mr Margarson. He told him that his present will did not reflect his wishes and he wanted to make a new one. He said, ‘after my adverse experience at this Hell Hole’ he wanted to change his will and make his two surviving sisters and their offspring his sole beneficiaries. When Mr Margarson suggested that he should be assessed by a doctor, he wrote again, saying that he did not have a specific doctor and wondered if Mr Margarson could provide one. Then he continued and said:
There is no doubt that this Industrial Park is a shambles. My nephew has given over the whole enterprise to an Asian immigrant, Ms Selathemic. Who runs everybody and everything. By hypnotism (mass) she is extremely wealthy and, I fear, will disappear one day with all the assets, including mine if I do not remove her from my domain. She is an Asian immigrant from Laos and could disappear at any moment with all the cash she can lay her hands on. I am anxious to avoid that in my case, but my relatives are blind and deaf in this case, but I am not concerned with their fate. I wish my 2 sisters to have what I own legally.
On 29 May he wrote another letter to Mr Margarson which contained similar views about the ‘Asian female’. Mr Margarson replied on 30 May. In it he told Mr Smith that he would receive a visit from his GP on 7 June for a medical opinion whether he was competent to change his will. He enclosed a copy of the new will.
Mr Smith sent a further letter, which Cross Ram received on 13 June 2013. It contained similar diatribes about the ‘greedy female from Asia’. It also mentioned that he had some evidence that Gavin planned to make him a ward of the court.
On 14 June Mr Margarson visited Mr Smith at his home. He was told that the doctor had seem him earlier that day. Mr Smith had already signed the will and it was attested by three witnesses. Mr Margarson expressed concern that the will left nothing to Gavin, but Mr Smith said that was appropriate because he wanted to provide for his sisters. He also told Mr Margarson that he had no mental problems, and all his problems were physical. As the Master notes in para 50, ‘Mr Margarson apparently accepted this statement without question’. Mr Margarson’s notes of the meeting indicate that Mr Smith had fixed views about foreign immigrants and probably ‘coloured’ people, and that he felt that the industrial site was owned by a foreign lady who was making money from everyone, but this did not alter his judgment on other matters. He went on to say that if a doctor had not cast doubts about Mr Smith’s capacity about two years ago, he would have felt that Mr Smith was sufficiently competent to make a will. Mr Smith’s stories about his family were perfectly rational, apart from his fixation about the foreign lady.
Finally, on 3 July Mr Smith again wrote to Mr Margarson asking for his bill and continued that he did not want to involve Gavin unnecessarily. ‘I am not sure whose side he is on. The Asian female has got everybody Done and Dusted, including Gavin but he is unaware of it but I find evidence that she is planning to flit in the near future, leaving a possible collapse of the whole outfit’.
4. The Decision
Master Clark had already noted earlier (para 52) the Mr Margarson did not take any steps to find out whether Mr Smith knew the extent of his property. And, more significantly, ‘He also does not appear to have appreciated that the “foreign lady” was Terry’s partner, and that the deceased’s delusions about her were capable of affecting his testamentary intentions’. The Master had also noted (para 54) that the letter received by Cross Ram on 13 June 2013 was clear evidence and that Mr Margarson should have appreciated that Mr Smith’s paranoid delusions about Sila extended to and affected his relationship with Gavin.
The Master had also summarized the burden of proof as follows in para 29:
(1) The burden is on the person seeking to establish the will (‘the propounder’) to establish capacity;
(2) Where a will is duly executed and appears rational on its face, then the court will presume capacity;
(3) An evidential burden then lies on the objector to raise a real doubt as to capacity;
(4) Once a real doubt arises there is a positive burden on the propounder to establish capacity.
Master Clark was satisfied on all the evidence that Gavin had raised a real doubt about Mr Smith’s testamentary capacity when he executed the 2013 will. And indeed the evidence showed that he lacked capacity. Dr Ashford had already concluded in May 2012 that Mr Smith lacked capacity and there was no evidence that he recovered capacity since. The evidence also showed the Mr Smith’s correspondence demonstrated ‘intense irrational persecutory delusions about Ms Holland, which extended to Gavin’. He found that these caused the decision to exclude Gavin from receiving all of Mr Smith’s property other than the £15,000. The only evidence to the contrary was Mr Margarson’s attendance note of 14 June 2013, in which he stated his view that Mr Smith had capacity.
The Master noted again that Mr Margarson failed to take steps to make sure that Mr Smith knew the extent of his property, even though Dr Ashford found that he did not. And significantly, although Mr Margarson was aware of Mr Smith’s paranoid delusions, he did not investigate whether they were capable of affecting his testamentary decisions. He also did not ensure that Mr Smith was assessed by a qualified medical practitioner before he executed the 2013 will.
Consequently, the Master pronounced against the 2013 Will, and pronounced in favour of the 2006 will. It was duly executed and was rational on its face. Moreover, both witnesses gave affidavit evidence about its due execution.
—
[1] (1870), LR 5 QB 549.
[2] Ibid., pp 565-66, emphasis supplied.
[3] See, e.g., O’Neill v Royal Trust Co, 1946 CarswellBC 127, [1946] SCR 622.
[4] [2022] EWHC 1533 (Ch), a decision of Master Clark.
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Written by: Albert Oosterhoff
Posted on: November 11, 2022
Categories: Commentary
1. Introduction
It is, I think, well-known that delusions can invalidate a will if they influence the testator in disposing of his property. This is clear from the locus classicus on testamentary capacity, Banks v Goodfellow,[1] which English and common law courts have consistently followed and which remains the authority that the courts follow. In it, Chief Justice Cockburn described the test as follows:[2]
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall 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.
The testator suffered from a number of delusions. He had a violent aversion to a man named Featherstone Alexander and, even though this person had died some years ago, he continued to believe that Alexander still pursued and molested him. He also believed that he was being persecuted by devils and evil spirits and thought them to be physically present. His physician and minister testified about his general incapacity. However, he managed his money and affairs competently, and various lay persons testified that he was capable when he executed his will. The will, which revoked a former will that left his estate to his sister who predeceased him, left his entire estate to his niece, Margaret Goodfellow. She survived him but died shortly afterwards, leaving the defendant as her heir at law. The court held that the testator had capacity and that the will was valid. Although he suffered from delusions, they did not have any influence on the provisions of the will and were not capable of having such influence. Besides, the will was a rational one since it left all to the testator’s niece, who lived with him and who was the object of his affections.
Thus Banks stands for the proposition that if a delusion is one that can influence the dispositions in the will, even if it was not manifest when the will was made but was latent, the will may be held invalid, but only if the delusion in fact affected the dispositions made in it.[3]
This is the law the court addressed in a recent English case, Boast v Ballardi.[4]
2. Facts
The testator, Mr Edward Henry Charles Smith (‘Mr Smith’), died in 2016 at age 97. He was unmarried and had no children. He made a will in 2006 in which he named his great nephew, Gavin Boast (‘Gavin’), his sole executor and sole beneficiary. He was close to Gavin and trusted him until he became ill. On the same date, Mr Smith executed an enduring power of attorney (‘the EPA’) in favour of Gavin. But in 2013 Mr Smith made a new will. It also named Gavin as the sole executor. However, this will gave him a legacy of only £15,000, a legacy of £3,000 to another beneficiary, and the residue equally to the testator’s two surviving sisters. The firm of solicitors, Cross Ram & Co, prepared both wills.
Both sisters predeceased the testator, so if the will was valid, there would be a partial intestacy and the persons entitled on the intestacy were the testator’s nephews and nieces. Gavin brought a claim in which he sought an order pronouncing against the 2013 will and pronouncing in favour of the 2006 will. The matter was tried on the written evidence, which consisted of affidavits by Gavin and the witnesses to the 2006 will, as well as other written evidence, including the file of the testator’s solicitors. In addition there were letters from a consulting psychiatrist, Dr Ashford, to the testator’s general practitioner (‘GP’), a letter by Dr Ashford to the testator’s solicitors, Cross Ram & Co, two letters from another consulting psychiatrist, and a letter from the testator’s GP to Gavin’s solicitors.
3. The Evidence
Master Clark reviewed the evidence in great detail, and I summarize the evidence below in some detail as well. I don’t apologize for the length of my summary because my view this is important to understand the decision, which was based entirely on this evidence. I also believe that the evidence serves as a useful aide memoire for solicitors when dealing with a delusional putative testator.
Mr Smith lived in his own home until 2011 and Dr Ashford described him in his letter dated 6 March 2012, as coping fairly well until about mid 2011. He came to live with Terrance Boast (‘Terry’), one of his nephews, and Terry’s partner, Sila Holland, in late 2011 or early 2012 at Boast House, Boasts Industrial Park.
On 27 February 2012 his GP visited him at home. His notes recorded that Mr Smith lived with family because he was unable to cope in his own home. The GP described Mr Smith as ‘increasingly confused, paranoid ideas … lucid but disoriented in time and space. Fixed ideas about people preventing him having tablets’.
Dr Ashford saw Mr Smith on 6 March 2012. He described Mr Smith as having various paranoid delusions and having become less compliant with care. He continued:
Since staying with his family the persecutory delusions have mainly been directed at Terence’s partner, thinking that she is out to harm him in various ways. He thinks that she is a professional hypnotist and that he is therefore completely under her power as are various other people. … He has also expressed a lot of other rather odd or eccentric ideas about his own history, some of which were certainly news to his Great Nephew [Gavin] and sounded unbelievable to anyone. … He talked about being an expert hypnotist himself and using this to treat victims of shell shock during the War.
With respect to Mr Smith’s mental state, Dr Ashford said that while he examined him, Mr Smith was calm, pleasant, and cooperative, ‘but did express a few eccentric and possibly delusional ideas, including some rather grandiose ones’.
On 9 March 2012 Mr Smith phoned Jonathan Margarson of Cross Ram and told him that he wanted to cancel the EPA and make a new will benefiting his sisters. Mr Margarson was aware of Mr Smith’s dementia and wrote to Dr Ashford for advice.
On 15 May 2012 Dr Ashford Smith reviewed what he knew about Mr Smith and wrote to Cross Ram about his review. In the letter, he said that in his opinion Mr Smith’s capacity to make decisions about his finances were already significant impaired when he saw him in March of 2012 and that he had concerns about Mr Smith’s testamentary capacity, because he is confused about the amount of his savings. Then he went on to say:
More importantly he continues to maintain various persecutory delusions that could influence his decisions about how he disposes of his property in the will. For this reason, I do not believe that he has testamentary capacity.
In August 2012 Mr Smith wrote another letter to Cross Ram. The first part of the letter was rational. In it he said that he had learnt that his sisters had suffered strokes and were in straightened circumstances, so wanted to leave each of them £8,000 in his will. However, then the letter went on to say that his personal files had been taken away since he moved into Boast House, and that he did not appear to be a free person and did not know why.
In April 2013 he wrote again to Mr Margarson. He told him that his present will did not reflect his wishes and he wanted to make a new one. He said, ‘after my adverse experience at this Hell Hole’ he wanted to change his will and make his two surviving sisters and their offspring his sole beneficiaries. When Mr Margarson suggested that he should be assessed by a doctor, he wrote again, saying that he did not have a specific doctor and wondered if Mr Margarson could provide one. Then he continued and said:
There is no doubt that this Industrial Park is a shambles. My nephew has given over the whole enterprise to an Asian immigrant, Ms Selathemic. Who runs everybody and everything. By hypnotism (mass) she is extremely wealthy and, I fear, will disappear one day with all the assets, including mine if I do not remove her from my domain. She is an Asian immigrant from Laos and could disappear at any moment with all the cash she can lay her hands on. I am anxious to avoid that in my case, but my relatives are blind and deaf in this case, but I am not concerned with their fate. I wish my 2 sisters to have what I own legally.
On 29 May he wrote another letter to Mr Margarson which contained similar views about the ‘Asian female’. Mr Margarson replied on 30 May. In it he told Mr Smith that he would receive a visit from his GP on 7 June for a medical opinion whether he was competent to change his will. He enclosed a copy of the new will.
Mr Smith sent a further letter, which Cross Ram received on 13 June 2013. It contained similar diatribes about the ‘greedy female from Asia’. It also mentioned that he had some evidence that Gavin planned to make him a ward of the court.
On 14 June Mr Margarson visited Mr Smith at his home. He was told that the doctor had seem him earlier that day. Mr Smith had already signed the will and it was attested by three witnesses. Mr Margarson expressed concern that the will left nothing to Gavin, but Mr Smith said that was appropriate because he wanted to provide for his sisters. He also told Mr Margarson that he had no mental problems, and all his problems were physical. As the Master notes in para 50, ‘Mr Margarson apparently accepted this statement without question’. Mr Margarson’s notes of the meeting indicate that Mr Smith had fixed views about foreign immigrants and probably ‘coloured’ people, and that he felt that the industrial site was owned by a foreign lady who was making money from everyone, but this did not alter his judgment on other matters. He went on to say that if a doctor had not cast doubts about Mr Smith’s capacity about two years ago, he would have felt that Mr Smith was sufficiently competent to make a will. Mr Smith’s stories about his family were perfectly rational, apart from his fixation about the foreign lady.
Finally, on 3 July Mr Smith again wrote to Mr Margarson asking for his bill and continued that he did not want to involve Gavin unnecessarily. ‘I am not sure whose side he is on. The Asian female has got everybody Done and Dusted, including Gavin but he is unaware of it but I find evidence that she is planning to flit in the near future, leaving a possible collapse of the whole outfit’.
4. The Decision
Master Clark had already noted earlier (para 52) the Mr Margarson did not take any steps to find out whether Mr Smith knew the extent of his property. And, more significantly, ‘He also does not appear to have appreciated that the “foreign lady” was Terry’s partner, and that the deceased’s delusions about her were capable of affecting his testamentary intentions’. The Master had also noted (para 54) that the letter received by Cross Ram on 13 June 2013 was clear evidence and that Mr Margarson should have appreciated that Mr Smith’s paranoid delusions about Sila extended to and affected his relationship with Gavin.
The Master had also summarized the burden of proof as follows in para 29:
(1) The burden is on the person seeking to establish the will (‘the propounder’) to establish capacity;
(2) Where a will is duly executed and appears rational on its face, then the court will presume capacity;
(3) An evidential burden then lies on the objector to raise a real doubt as to capacity;
(4) Once a real doubt arises there is a positive burden on the propounder to establish capacity.
Master Clark was satisfied on all the evidence that Gavin had raised a real doubt about Mr Smith’s testamentary capacity when he executed the 2013 will. And indeed the evidence showed that he lacked capacity. Dr Ashford had already concluded in May 2012 that Mr Smith lacked capacity and there was no evidence that he recovered capacity since. The evidence also showed the Mr Smith’s correspondence demonstrated ‘intense irrational persecutory delusions about Ms Holland, which extended to Gavin’. He found that these caused the decision to exclude Gavin from receiving all of Mr Smith’s property other than the £15,000. The only evidence to the contrary was Mr Margarson’s attendance note of 14 June 2013, in which he stated his view that Mr Smith had capacity.
The Master noted again that Mr Margarson failed to take steps to make sure that Mr Smith knew the extent of his property, even though Dr Ashford found that he did not. And significantly, although Mr Margarson was aware of Mr Smith’s paranoid delusions, he did not investigate whether they were capable of affecting his testamentary decisions. He also did not ensure that Mr Smith was assessed by a qualified medical practitioner before he executed the 2013 will.
Consequently, the Master pronounced against the 2013 Will, and pronounced in favour of the 2006 will. It was duly executed and was rational on its face. Moreover, both witnesses gave affidavit evidence about its due execution.
—
[1] (1870), LR 5 QB 549.
[2] Ibid., pp 565-66, emphasis supplied.
[3] See, e.g., O’Neill v Royal Trust Co, 1946 CarswellBC 127, [1946] SCR 622.
[4] [2022] EWHC 1533 (Ch), a decision of Master Clark.
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