A TALE OF TWO CAPACITIES
| Author | TAN Kah Wai1 LLM (International Business Law) (King's College London), LLB (First Class Honours) (National University of Singapore); Advocate and Solicitor (Singapore); Associate, Shook Lin & Bok LLP. |
| Publication year | 2022 |
| Published date | 01 March 2022 |
| Date | 01 March 2022 |
1 The elderly patriarch of a family has died, leaving behind an enormous estate. His children gather around the family home, eagerly waiting for the solicitor to read the deceased's will, with the high hopes of getting their fair share of the estate. But fate has dealt them a cruel twist. The patriarch's will leaves them with absolutely nothing. In fact, some stranger gets to inherit the entire estate. The shell-shocked family members now wish to challenge the will. The first legal question to arise is this — was the old man of unsound mind when he executed this will?
2 The question of testamentary capacity is not simply a matter of probate litigation but also a question of professional ethics. For probate
3 How do we assess testamentary capacity? For more than a century, legal and medical practitioners applied the Banks v Goodfellow test.4 However, new questions have emerged since the introduction of the Mental Capacity Act in Singapore5 and the UK.6 First, is the Mental Capacity Act test the same as the Banks v Goodfellow test? Second, has the Banks v Goodfellow test been replaced by the Mental Capacity Act's test for mental capacity? Third, if the Banks v Goodfellow test was not replaced, which test should the courts apply? This article seeks to address these pertinent questions, with specific references to the jurisprudence in Singapore and the UK, two jurisdictions that have adopted the Mental Capacity Act.
4 In this article, I will be focusing on the legal aspects of the issue of testamentary capacity.7 The article is divided into the following parts. First, it examines the current law on testamentary capacity, with reference to various jurisdictions. Second, we consider how the courts viewed testamentary capacity in light of the Mental Capacity Act's enactment. In the third and final part of this article, we will ask what the law ought to be in relation to testamentary capacity, in particular, whether the vintage Banks v Goodfellow test deserves a modern restatement or even codification.
5 For a court to be satisfied that the testator's will is legally valid, the proponent of the will must prove the following three elements on a balance of probabilities. First, that the will was duly executed in accordance with the formalities as prescribed by the Wills Act.8 Second, the testator possessed testamentary capacity when executing this will. Third, that the testator must have had actual knowledge and approval of the will and its contents.9 In this paper, we are concerned with the second limb of this inquiry — whether the testator possesses the testamentary capacity to make a will.
6 No one is capable of making a will if he is found to be of unsound mind, memory and understanding.10 At the common law, there is the general principle that the courts will uphold a testator's decision to leave his assets to those who survive him as they see fit, “but only if the testator had the capacity when he exercised his testamentary freedom”.11
7 In determining the difficult question of testamentary capacity, the courts not only have to grapple with the evidential problems that are commonplace in such cases,12 they also need to be aware of the tensions between upholding this principle of testamentary freedom and the legal consequences of finding someone lacking mental capacity (namely, that the document cannot be admitted to probate). As Purser observed, an assessment of legal capacity is an invasive process whereby a third person potentially relies on biased information from individuals to reach a verdict that an individual is no longer capable of making his decision.13 Hence the courts always approach allegations of lack of testamentary capacity with a good degree of caution.14
8 It is more likely than not that given the rise in awareness over mental capacity issues, that the testator's testamentary capacity would be more heavily disputed in the near future. In this section, we now consider how the courts have generally applied the law on testamentary capacity, especially its application of the requirements in Banks v Goodfellow.15
9 The court's function in respect of disputes on a person's testamentary capacity is to decide whether they had such capacity at the relevant time of executing the will. This involves making a finding of a fact by applying the legal principles in Banks v Goodfellow16 to the evidence. In matters involving special knowledge, such as mental disorders like schizophrenia, the court has to rely on expert evidence but is not bound to accept any medical opinion if it is not supported by the objective evidence.17
10 It is trite law that the propounder of the will has the legal burden of proving that the testator possessed testamentary capacity when executing the will.18 However, the propounder may not even need to prove that he satisfies the four elements stated in Banks v Goodfellow.19 This is because the courts have stated that there is a prima facie evidential presumption that the requirements have been established if the will was executed in ordinary circumstances and the testator was not known to be suffering from any kind of mental disability.20 A relevant indicator is whether the will appears to be rational having regard to its terms and identities of the beneficiaries.21
11 What if one wishes to challenge the will? They will need to adduce evidence to the contrary, such as evidence that the testator suffers from a mental illness that is serious enough for the court to find that he lacks testamentary capacity.22 Such evidence can either be medical expert
12 The starting point for any discussion on testamentary capacity is the locus classicus of Banks v Goodfellow,25 which has been widely adopted across the courts of the Commonwealth, including Australia, New Zealand,26 Malaysia27 and Singapore.28 In that case, Sir Alexander Cockburn CJ stated the essential elements of testamentary capacity as follows:29
It is essential … that a testator shall understand the nature of his 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 his mind had been sound, would not have been made.
13 It should be noted that there are jurisdictions that have applied more modern restatements of the Banks v Goodfellow test, with Australia and New Zealand adopting a more particularised formulation towards it.30 That being said, the general principles of the Banks v Goodfellow test remain intact, and it remains useful for us to discuss the elements using the traditional tests as applied in Singapore and the UK.
14 In Singapore, the Banks v Goodfellow requirements were restated by Chan Sek Keong CJ in the High Court's decision of George Abraham Vadakathu v Jacob George (“George Abraham”) as follows:31
(a) the testator understands the nature of the act and what its consequences are;
(b) he knows the extent of his property of which he is disposing;
(c) he knows who his beneficiaries are and can appreciate their claims to his property; and
(d) he is free from an abnormal state of mind (eg, delusions) that might distort feelings or judgments relevant to making the will.
15 For starters, the Banks v Goodfellow test is not a medical test for capacity. It is a judicial formulation of the necessary level of a testator's understanding for his will to be valid.32
16 In assessing the ability of comprehension, the courts will take judicial notice that many wills are made by persons of advanced years where persons are rarely free from illness or infirmities.33 Hence, a draftsman should form a judgment of his client against the level of understanding that is not necessarily as high as a person free from the infirmities of illness or old age.
17 For the first element, what does it mean by the testator understanding the nature of the act and its consequences? For starters, what is required is not the testator's actual understanding of the matters referred to but whether he has the capacity or potential to understand.34
18 It is also clear that in proving this element, it is unnecessary for a testator to view his will with the eyes of a lawyer and comprehend all its provisions in their legal form.35 In the Singapore High Court's more recent decision of ULV v ULW, Tan Puay Boon JC explained that it would suffice if he could understand the elements of which it is composed and the disposition of his property in its simple form.36
19 It is submitted that Tan JC's formulation in ULV v ULW37 is more desirable than the ambiguous language in Banks v Goodfellow.38 However, even so, the courts did not specify what it means by certain important matters relating to the will, though this was helpfully expanded upon by Frost, Lawson and Jacoby. The issue...
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