WillsCase Review – Davies v Watts 2024

This article will cover an overview of the recent case of Davies v Watts & Anor [2024] EWHC 1177 (Ch) which concerns a challenge of a will on the grounds of lack of testamentary capacity and lack of knowledge and approval.

Background – Testamentary Capacity and Knowledge and Approval

The test for capacity to execute a valid will is based on the test set out in Banks v Goodfellow (1870) LR 5 QB 549. Under this test, a testator must:

• Understand the nature of making a will and its effects – this being that the testator must know that he is making a Will to dispose of his assets AFTER he has died. In other words, the testator understands that the Will is to come into effect on their death and not before.
• Understand the extent of the property of which they are disposing – the testator does not need to know the exact value of everything they own but must know the extent of their wealth. For example, be able to give approximate figures of the assets which they own.
• Be able to comprehend and appreciate the claims to which they ought to give effect – they must know who might have first claim on their property. An example could be that the testator is married and therefore the spouse would have claim upon the estate.
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

When dealing with an elderly or ill testator, practitioners may also wish to follow the Golden Rule set out by Templeman J in the case of Kenward v Adams [1975] ChD 29. Under the Golden Rule, it is recommended that where a testator is elderly or seriously ill that a professional testamentary capacity assessment is sought.

A testator must have knowledge and approval of the contents of the will at the time of execution, in other words that must have understood the contents of the will. Where the testator has capacity and the will has been executed correctly, there is a presumption that the testator had knowledge and approval of the will. Rebutting this presumption will be on the party arguing the will is invalid.

Case Facts

The testator Philip Price made a handwritten will prepared by a solicitor in December 2018. The will was drafted in his presence by the solicitor.  This will left his estate to a Vanessa Davies, close friend of 25 years who regarded herself as his partner.

At the time of making his will, Price had several severe illnesses and spent some time in hospital. During his time in hospital he was given opioids which caused periods of delirium. Price died in January 2019.

The will was challenged by Barbara Watts, Price’s half-sister, on the grounds that he did not have testamentary capacity, or did not know or approve of the contents of the will.  Watts only found out she was the half-sister of Price after his death and would stand to inherit the estate worth £808,000 if the will was found to be invalid.

Case Decision

There was no indication in Price’s medical reports that he was experiencing delirium at the time of creating the will and so both sides obtained expert reports. Both experts agreed that it was possible that delirium was present at the time of the will. Watt’s expert argued that could have undermined testamentary capacity. Davies’ expert argued that if delirium was present, it was more likely than not that this was mild.

Witness evidence was required due to the inconclusiveness of the expert opinions. The solicitor who created the will provided evidence.

During her time with Price, the solicitor chatted about many things and details were provided about his gun collection, farm, horses and bank accounts. He also mentioned he had 45 cousins, in the context that there would be chaos if he did not make a will (noting Price was unaware that he had a half-sister). It was argued that Price only had 17 cousins so this shows he could not remember how many he had, but the solicitor argued this was said jokingly which the judge accepted.

The solicitor noted that Price was initially uncertain about what to do with his residue, and one idea was to give it to someone to distribute as they saw fit. After the solicitor drafted the will, which was not complex and was written in plain English and in clear capital letters on one page, she went through the will with him twice and gave it to him to read.

When asked why she hadn’t followed the Golden Rule, the solicitor stated that she did not feel his capacity was compromised, and “that it was a sort of sixth sense”. If she felt there was an issue with capacity she would have obtained a medical assessment but there was none here. Other witnesses gave “clear and straightforward evidence of capacity”.

Two further points relied on by Watts were Price’s knowledge of her existence and ownership of two Shetland ponies on the farm at the time of making the will. In relation to the first, the judge held that the fact they were siblings were rumours in the village and that Price was likely ignorant of the relationship. As Watts was until after his death. In relation to the latter, Price included these ponies in his will and they had been brought to his farm to be cared for but there was no evidence of correct paperwork for a transfer of ownership. The judge found that given Price’s illness, this oversight is hardly surprising and did not outweigh other evidence.

The judge found that Price had testamentary capacity and that this finding went a long way in dealing with the question of whether he knew and approved the contents of the will.

 

 

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