A different view on dementia and will-making

I want to offer an alternative view to that presented by Anthony Grant in his article A demented person makes a valid will (LawNews 14 June).


Andrew Steele

The subject-matter of both articles is how the test for testamentary capacity was applied by Justice Simon France in Public Trust v Dollimore [2018] NZHC 3316.

Grant asks: “How did the High Court judge say Ms Dollimore had capacity to make her will?” Before supplying a possible answer, I review the judgment more generally.

The key facts in the case are:

The late Ms Dollimore (at death aged 74) executed a will in January 2010, replacing her earlier will of February 2009. The Public Trust prepared both wills. Its employee Mr Strange took Dollimore’s instructions for the final will, but not the earlier one.

After Dollimore’s death in 2015, the Public Trust came to doubt she had testamentary capacity in 2010, so it issued proceedings seeking a declaration that the 2010 will was invalid and to have the earlier 2009 will admitted to probate.

The judge referred to the well-known ‘guiding principles’ on testamentary capacity from Woodward v Smith [2009] NZCA 215 [para 7].

The overarching test for capacity is that the will maker:

  • understands the nature of the act and its effects, and also the extent of the property he or she is disposing of;
  • can comprehend and appreciate the claims to which he or she ought to give effect;
  • be free of any disorder of the mind which would poison his or her affections, pervert his or her sense of right, or prevent the exercise of his or her natural faculties; that no insane delusion shall influence his or her will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

Woodward provides the following explanatory refinements:

  • Though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.
  • It is enough if the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.
  • It is not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
  • His capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
  • Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all.

Critically, in Dollimore the medical experts agreed there was no formal comprehensive medical assessment of testamentary capacity as or around the signing of the will [para 57].

Forced to make a retrospective assessment, the experts were uncertain as to capacity, the key difference between them lying in the extent to which each accepted the possibility of fluctuation of mental capacity and the scale of such fluctuation [para 60].

The inconclusive medical opinions obliged the judge to scrutinise the facts for signs or pointers to the state of Dollimore’s mental capacity at the critical times.

Justice France’s approach is not novel.

In Banks v Goodfellow (1870) LR 5 QB 549, perhaps one of the most influential judgments on testamentary capacity, the court found Banks, who had spent time in the ‘county lunatic asylum’ as having at former times an ‘unsound mind’ had, and remained subject to, fixed delusions including that “… he was pursued and molested by devils or evil spirits whom he believed to be visibly present” (page 551). On the other hand, Banks managed his own money and took steps to rent out his cottage.

The court stated:

We must also take it that no delusion manifested itself at the time of making the will. On the other hand, there is ample proof that the delusions existed in the interval between making the will and the death of the testator, as they had done before. See page 555.

In Dollimore, Justice France was influenced by the fact that:

  • The will-maker had signed enduring powers of attorney in the beginning of December 2009 (nearly 2 two months before executing her will), and the lawyer attending was apparently satisfied about the will-maker’s mental capacity [para 28].
  • The will -maker had been interested in changing her will from early on, that is, from at least in November 2009 [para 40].
  • The will was rational and logical [para 122]. There was no one to whom Dollimore owed moral duties [para 66] and of the three wills available to the court, the legatees comprised a mix of family and non-family members – mostly nieces and nephews. The impugned will represented a ‘generational shift’ away from the immediately prior will [para 71], that is, away from grand-nieces and nephews and towards the will-maker’s siblings, although Mrs Sowman for the first time received 50% of the estate.

The judge stated:

On its face, the 2010 will represents a significant change but not anything inexplicable. It is a move back in generations, an abandoning of any specific gifts including one to a Parish Ms Dollimore has now left, and within the beneficiaries a weighting in favour of the niece [Sowman] who has assumed her day to day care, and is undoubtedly now the closest person in her life. [para 73]

  • The Public Trust employee who prepared the will was ‘very experienced’ (37 years of experience). He spent time alone with the will-maker on 22 January, taking her will instructions and discussing the will and her property with her. He knew what he was doing and what was required. Despite all this, he was oblivious to her underlying dementia and plainly saw no reasons for concern about the will-maker’s mental capacity on the day the instructions were taken. [para.s 65, 84, 93, 115 & 120]

One learned commentator asks: How did the High Court judge say Dollimore had capacity to make her will? Perhaps the answer is that:

  • in the absence of medical evidence excluding mental capacity, and
  • because the will was rational and logical;
  • and in light of the evidence of Strange and Sowman about Dollimore’s apparent rationality;

the court was entitled to determine that testamentary capacity subsisted at the critical time.

The issue is not whether (or not) Strange or Sowman could detect Dollimore’s dementia or were themselves qualified or capable of making an assessment of her testamentary capacity.

Their value comes from the fact that they could provide critical first-hand observational evidence about Dollimore’s functioning, and hence mental faculty, from which the court could draw inferences about capacity.

The same commentator asserts there is an inconsistency between the approach/outcome in Dollimore as compared with Loosley v Powell [2018] NZCA 3.

In particular, he contends the ‘larger point’ made by the High Court and Court of Appeal in Loosley is that:

… a will should not be upheld where there is no rational basis for the change in provision from the provisions that were made in earlier wills – see 2 NZLR [2018] page 618 para 36

Paragraph 36 from the Court of Appeal’s judgment in Loosley, relied on for the above proposition/presumption of law, states:

On our analysis Courtney J did not elevate the issue of the will-maker’s rationale for the change to an addition to the Banks v Goodfellow criteria. In her discussion she was doing no more than recognising that a change that appeared to have no rational basis by an extremely unwell willmaker was indicative, in terms of the Banks v Goodfellow criteria, of a lack of understanding and an inability to comprehend and appreciate the claims which ought to be given effect.

I suggest one is unable to conclude that:

“… a will should not be upheld where there is no rational basis for the change in provision from the provisions that were made in earlier wills”;

when the Court of Appeal simply stated:

“… a change that appeared to have no rational basis by an extremely unwell will-maker was indicative … of a lack of understanding and an inability to comprehend and appreciate the claims which ought to be given effect”.

On appeal in Loosley, it was contended the High Court created a new legal requirement that a deathbed will-maker must be asked to provide an explanation as to the reasons for significant change to a will, and if this was not provided, indicated a lack of testamentary capacity– para [26]. The Court of Appeal replied:

We do not interpret this as elevating the existence of an explanation for changes to a will to the status of an additional requirement for establishing testamentary capacity. [The High Court’s] approach was to consider, when assessing testamentary capacity, all matters indicative of capacity, including the rationale (or lack thereof) behind any significant changes. Para [30].

Justice France’s approach in Dollimore receives support from Hammond J in Re Rhodes who stated:

Where property is disposed of fairly, and in accordance with moral dictates, then only a very small amount of capacity is needed. But with abrupt and unfair changes, fuller and clearer evidence of capacity is required.

The Court of Appeal in Loosley indicates there is no requirement that a Banks v Goodfellow assessment involves an inquiry into why a will-maker has made a significant change at the time the will is executed and capacity will not be denied because of a solicitor’s failure to so inquire.

Justice France was entitled, if not obliged, to take into account a wide range of factors in assessing capacity, including evidence of lucidity and mental command, available medical assessments and third party observations of behaviour.

One such factor is the extent of changes between wills and the reasons, if any, expressed for them. It is all part of the relevant factual matrix for assessing capacity.

That Dollimore wasn’t asked for an explanation for the changes to her dispositions is simply one more factor that the court may take into account.

In summary, I suggest France J’s judgment in Public Trust v Dollimore is a routine application of the principles in Banks v Goodfellow and Woodward v Smith and is entirely consistent with the principles applied in Loosley v Powell.

Andrew Steele is a partner at Martelli McKegg

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