Michael Gwilliam, the divorced father of adult daughters, died in 2022 having always stated to numerous people that he wanted to die intestate, so his estate went to his four daughters.
However, on his death it transpired that he had made a will in 2014, which left 75% of his estate to his partner and her son, with only 25% for his own children.
Delusions of harassment
The daughters had good relations with their father until late 2013, when he put his farm up for sale due to money concerns. Unfortunately, the sale fell through, whereupon Michael began to believe he was being harassed by his neighbours and ex-wife with banging on windows, revving engines and lights. He continued to believe people were on his land even when CCTV installed by a daughter showed there was no one there.
His daughter Helen was training to be (and is now) a registered mental health nurse and was concerned. She contacted Michael’s GP and he was then sectioned and diagnosed with Persistent Delusional Disorder (PDD), and mild cognitive impairment. After he was discharged, Michael maintained his belief that his daughters, particularly Helen, wanted to steal his property.
Capacity assessments
The 2014 will was written by an experienced paralegal who was aware that Michael had been sectioned. Also present was a mental health nurse, but he was there to check Michael’s medications and had no idea that a will was being written, so did not make a capacity assessment.
When questioned later in court, the nurse said he felt Michael knew he was making a will and could manage his affairs but his judgment was impacted and that his delusions were extreme. He had also heard Michael’s partner and sister encouraging his delusions.
The paralegal did not know Michael and did not obtain a capacity assessment, despite being aware that Michael was varying from the ‘norm’ in his will, had been sectioned very recently, and was on medication. Also present whilst the will instructions were given was Michael’s partner and sister who both benefited significantly from the new will.
The case law tests
The case of Banks v Goodfellow (1870) sets out the 4-part test for testamentary capacity. The testator must:
- understand the nature of the act (making a will) and its effects.
- comprehend the extent of the property they are disposing of.
- recognise the moral claims of potential beneficiaries (family/dependents).
- be free from any “disorder of the mind” or “insane delusion” that influences the disposal of assets.
With various requirements of the fourth rule having been evidenced, it was recognised that a capacity report should have been obtained from a medical professional (the Golden Rule), particularly given that the paralegal was on notice of the sectioning. Consequently, the Judge gave “little weight” to the evidence of the will writer.
Outcomes and key takeaways
The Court found that Michael falsely believed his daughters were actively stealing from him and trying to have him sectioned for gain. These delusions directly poisoned his mind and influenced his will and therefore he failed the fourth limb of Banks v Goodfellow.
The big takeaways from this case for me are:
- When there are warning signs and doubts about a testator’s capacity, an independent medical assessment of testamentary capacity must be obtained – particularly if there is no urgency for the will to be prepared.
- A detailed file note must be prepared setting out the will instructions and make sure to ask lots of open questions and go over ground again. Ask for motivations. If it is a particularly sensitive meeting, I take another person along to make notes and I will ask if I can record the meeting.
- Make sure you see the client on their own. If the client is nervous, I let the friend or family member stay in for a while to get them comfortable with me whilst making small talk, and then I see the client on their own. Make sure the family member doesn’t have their ear glued to the door!
If you would like advice about making (or contesting) a will, then please get in touch with Miriam Spero at ms@branchaustinmccormick.com or call our office on +44 (0)20 7851 0100.