The tests of testamentary capacity are generally well understood and the standard has been static for many decades.  However, what level of capacity is required to make an inter vivos gift?  This was considered in Re Estate Joyce where it was held that the test remains that of Re Beaney, which requires:

• a high level of understanding that a gift is being made
• the nature of the gift, and
• the consequences.

The quantum of the gift is also relevant and the where the transaction is significant – these require a more considered approach to determine that the requisite capacity existed at the time of the gift.

Where a gift is unwise, the gift will not be found to be invalid only because the gift was unwise, provided that the other tests are satisfied.  This can be considered alongside the common law regarding testamentary capacity where a testator’s inability to understand the consequence’s of a will does not invalidate it (Simon v Byford).

References:

• Re Estate Joyce [2014] EWHC 3926 (Ch)
• Re Beaney [19778] 1 WLR 770
• Simon v Byford [2014] EWCA Civ 280

Capacity checklist

While not essential, prudent practice can be to follow the checklist in the Assessment of Mental Capacity: A practical guide for doctors and lawyers published by the British Medical Association (BMA). See  the Hong Kong decision in Choy Po Chun v Au Wing Lun  [2018] HKCA 210 where the Court noted the failure to follow the BMA checklist.  Also see Mok HIng Chung v Wong Kwong Yiu [2019] HKCA 452 for a contemporary consideration of testamentary capacity.

Application in solemn form

Where an executor has concern as to a will-maker’s capacity, the appropriate course of action is to seek probate in solemn form.  Public Trust v The Cancer Society of New Zealand, Otago and Southland Division Incorporated provides a useful example of the importance of contemporary evidence of capacity (where incapacity was not identified by the person taking will instructions).  In this case the question of capacity arose post death due to the death certificate referenced Alzheimer’s Disease as one of the causes of death.   A subsequent retrospective assessment of capacity concluded that the will-maker did not have capacity at the time of his last will.   However, the view taken by the court was that the contemporary observations regarding capacity were sufficient for the court to find that the will-maker had sufficient testamentary capacity such that probate was granted in solemn form.  See [28] to [33]:

[28] In my view, the best sources of information upon which to most accurately gauge Mr Clarkson’s capacity in August 2018 are the two persons who dealt directly with Mr Clarkson at that time. They are his doctor, Dr Keat, and Ms Nicol, who worked for Public Trust. She visited Mr Clarkson in his home on four occasions before taking his instructions on 13 July 2018, and then visited him again on
16 August, when Mr Clarkson signed his will.

[29] In addition to the medical notes kept by Dr Keat at the time, he was also contacted by Public Trust for the purposes of this application. I have set out in full Dr Keat’s responses to the particular enquiries made of him at [22]. Importantly, Dr Keat is of the opinion that Mr Clarkson would have clearly understood the nature and effect of signing a legal document about his property affairs when he saw him on 12 October for the purposes of determining whether he required an enduring power of attorney. At that time, two months after he had signed the will, Dr Keat was of the view that Mr Clarkson’s mental state would not have affected his decision as to whom to entrust with his property affairs.

[30] While Dr Keat was not directly asked for his opinion regarding Mr Clarkson’s will-making capacity back in August, it appears tolerably clear from his answers regarding his assessment of Mr Clarkson in October 2018 that he had a sufficient understanding of the nature and effect of signing a legal document about his affairs to cause Dr Keat to have no concerns in that regard. His mental state at the time is not believed to have been a factor influencing his decision at that time.

[31] Ms Nicol’s evidence I have already traversed. It is apparent she was alive to the issue of capacity when she met with Mr Clarkson on multiple occasions in 2018. By that time, she had been with Public Trust for some 10 years and appears to have had considerable experience in this area. She took the precaution of having one of Mr Clarkson’s social workers present when she visited him, and when taking his instructions. Notably, as was her practice, she confirmed she would have made
precautionary enquiries to satisfy herself the person with whom she was dealing had testamentary capacity. There is no reason to doubt Ms Nicol’s evidence that she took a cautious approach to that possible issue but did not, in the case of Mr Clarkson, feel the need to obtain medical advice.

[32] There is nothing on the face of Mr Clarkson’s will that gives rise to any particular concerns. He had no immediate family and was living alone in the small town of Palmerston. From what can be gleaned from the medical notes, his health and ability to look after himself was in decline during this period, but it is not apparent he had any family or other social support available to him, other than that provided by the local health authority. There is no evidence he had any contact with his cousins or half-cousins in the United Kingdom. Accordingly, his decision to bequest his estate to a charity is, on its face, unremarkable and, of itself, in the circumstances does not give rise to any apparent concerns.

[33] Accordingly, on balance, while there are contrary indicators, I am satisfied that as at the date Mr Clarkson signed his will, on 16 August 2018, he likely had testamentary capacity to do so. 

References:

• Public Trust v The Cancer Society of New Zealand, Otago and Southland Division Incorporated [2023] NZHC 2724