The rules of testamentary capacity, in the context of executing a Will, that are set out in Banks v Goodfellow (1869-70) LR 5 QB 549 are often discussed, as they form the basis of the working day for many private client and Will, trust and estate disputes solicitors. But what is less discussed are the exceptions to the rule.
One such exception is found in the case of Parker v Felgate (1883) 8PD 171, and deals with a situation in which the testator loses capacity after giving instructions, but before executing the Will.
What does Parker v Felgate tell us?
Parker v Felgate states that a testator who lacks testamentary capacity at the time of execution may make a valid Will if:
- They had testamentary capacity at the time they gave instructions to a solicitor for the preparation of the Will;
- The Will was prepared to give effect to their instructions;
- The Will continued to reflect the testator’s intentions; and
- At the time of execution, the testator was capable of understanding, and did understand, that they were executing a Will for which they had given instructions.
When to use Parker v Felgate?
Take a situation in which an elderly client instructs a solicitor to prepare a Will. It’s a straightforward Will, leaving everything to be split equally between the testator’s stepchildren, as the testator has no biological children and their spouse predeceased them. At the time the instructions are given, the client has mild dementia. There is then, unfortunately, a delay before the client can execute the Will, during which their dementia progresses to the point that they no longer satisfy the Banks v Goodfellow test.
However, the client does retain enough capacity to understand that they had previously instructed the solicitor, and that the document they are executing is a Will that reflects those instructions. How should the solicitor proceed?
This is, of course, a fact-specific question. For instance, is the testator’s relationship with the stepchildren still the same? Is the size of the estate unchanged? Is there someone new in the testator’s life who might expect to benefit, such as an estranged sibling who is now providing 24-hour care and support to the testator?
The consequences
A solicitor may well be reticent to allow a Will to be executed in these circumstances, even if there had not been a change in the testator’s circumstances. But consider the consequences of not doing so.
If no Will is executed, the stepchildren would receive nothing under the intestacy rules.
If the Will is executed, it is liable to be challenged by an aggrieved relative, potentially putting the estate at risk of incurring significant legal costs.
A sensible solution would be to instruct a medical expert to assess the testator in line with both Banks v Goodfellow and Parker v Felgate. However, in practice, I have never seen that done.
It therefore normally falls to the Will, trust and estate disputes solicitor to assess the situation after the event, and after that decision has already been taken. How many Wills, however, remain unexecuted because of a reluctance to consider whether the criteria in Parker and Felgate could be applied?
How TWM can help you
At TWM, our experienced Will, Trust and Estate Disputes team of solicitors are well-versed in assisting clients in navigating such complex scenarios.
For further information or guidance, please contact us today for a no-obligation meeting.