Litigation involving wills and deceased estates has been rising in recent years, reflecting both a greater sense of entitlement and a greater willingness to take legal action against others.
The wills, probate and trusts lawyers at Bahamas law firm ParrisWhittaker are increasingly instructed to act for clients involved in contested wills, probate and trusts. These areas are becoming increasingly dynamic, with the developing case law giving welcome clarity as to how the law is interpreted by the courts.
Wills and probate
In The Bahamas, wills, probate and trusts law operate largely as in the UK, with its legal system being based on English common law. Case law emanating from the UK courts has persuasive effect in The Bahamas and is normally followed (in the absence of domestic judicial authority or legislation).
On the death of an individual, the estate must be distributed in accordance with the law, whether that is under the last valid will of the deceased or, in the absence of a will, under the statutory rules of intestacy set out in The Inheritance Act 2002. The issue of whether the deceased’s last will was, in fact, valid is the crux of many cases brought before the courts in recent times.
Developments in testamentary capacity
Testamentary capacity is a hugely subjective issue which is somewhat of a testing area for private clients and the courts alike. Practitioners are professionally obligated to remain vigilant as to issues pertaining to mental capacity from the moment they first see the client.
Any concerns as to lack of capacity arising, for instance, out of illness, effects of drugs, bereavement and so on should put the practitioner on alert. They must take appropriate action, whether this is talking sensitively with the client or obtaining a doctor’s report. It is by taking necessary precautions that the risk of later disputes after the death of the testator can be minimized. This is vital given that a growing number of people are taking action to claim an inheritance (or an increased sum) from deceased estates on the grounds that the testator lacked the required testamentary capacity to make a valid will.
So far as the case law is concerned, the test for whether a testator has capacity to make a will is set out in Banks v Goodfellow (1870) LR 5QB 549. The testator must be able to understand the nature of the act of making a will, and its effects; to understand the extent of the property of which he or she is disposing; and to comprehend and appreciate the claims to which he or she ought to give effect. The testator must not be subject to any disorder of mind as shall “poison [her] affections, pervert [her] sense of right, or prevent the exercise of [her] natural faculties”.
Recent important rulings demonstrate the issues practitioners need to be watchful for, particularly given that the courts are willing to declare a will invalid on the basis of ‘want of knowledge and approval’ – even where there is insufficient proof of lack of testamentary capacity.
Hawes v Burgess1
In Hawes v Burgess, the testator did not know of or approve the contents of the will, even though it was drafted by an experienced solicitor. Although she executed the will, she did not have opportunity to check and approve its contents first. Critically, the will was based on inaccurate information supplied by one of her daughters – a residuary beneficiary of the estate. However, the testator’s son had been excluded from the will.
The client’s lawyer was an experienced wills solicitor, and his “near contemporaneous attendance notes” (as described by the judge) were clear about his views on the capacity of the testator to make the will. The solicitor found her to be compos mentis and able to give instructions for a will at the relevant time. However, expert medical evidence was later taken from a doctor who never actually saw the testator. This expert said there was strong evidence that the she suffered from cerebrovascular disease which, in the light of evidence given by other witnesses and accepted by the trial judge, amounted to dementia of modest severity. The Court of Appeal said, however, that this fell short of what was required to show dementia and lack of mental capacity.
Critically, the daughter had played a major role during the will-making process, being the ‘controlling force’ who had even been present at the time the will was executed. Although the UK’s Court of Appeal ruled that although lack of testamentary capacity had not been conclusively proved – there was want of knowledge and approval and the will was therefore invalid.
So whose evidence did the court prefer? That of the solicitor who had actually met his client, and not that of the medical expert who had not met her. As Mummery LJ stated:
“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, the experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in the circumstances where that expert accepts that the testatrix understood that she was making a will and also understood the extend of her property”.
This represents highly useful guidance for practitioners – both wills and probate lawyers and litigators.
Topciapski
The subsequent case of Topciapski v Topciapski2 takes a similar theme. The claimant, one of the testator’s sons who was excluded from the will in question, argued that the testator neither knew nor approved the contents of the will, and that the other son exerted undue influence on the testator. He relied on expert medical evidence that referred to a further medical report questioning the testator’ capacity on the basis of marked ‘generalised atrophic and ischaemic changes’ which impacted adversely on the testator’s capacity to know and approve of the contents of the will, and there seemed to be no rational reason for the claimant son to have been disinherited. In this case, the Will was declared invalid on the ground of want of knowledge and approval.
Turner v Phythian
In a further case3, the court found that the testator’s will was invalid both for lack of testamentary capacity and for want of knowledge and approval. The testator was a lady whose mental state was fragile throughout her adult life and, at the time the will was made, she was strongly bereaved and taking antidepressants.
The first defendant was the sole executor and also involved in the will drafting; the other beneficiary was his wife. The court found there was no evidence from anyone other than the first defendant that the testator had ever read the will or, indeed, had the will read out to her; nor had there been any discussion or explanation as to its content in the presence of the witnesses prior to the execution of the will. She had had no independent legal advice.
The will was declared invalid on grounds that the testator did not have mental capacity to make the will, and she did not know or approve its contents.
Sharp v Hutchins
In this 2015 case, testamentary capacity was not in dispute: the claimant (the sole executor and beneficiary) asked the court to pronounce a will as valid, but the defendants challenged the will on the grounds of want of knowledge and approval on the part of the testator. The judge ruled in favour of the claimant and found on the facts that “any degree of suspicion was relatively low because it was not a case where the 2013 Will was procured by the person benefitting under it”.
The High Court ruled that the testator understood what was in the will when he signed it and what its effect would be, and accordingly pronounced for that will.
What do practitioners need to know?
There are a number of salutary lessons for private client lawyers:
- The courts may resist declaring a will invalid for lack of testamentary capacity, but still find it is invalid for want of knowledge and approval (as the above cases show).
- There is a presumption that the testator knew of and approved the contents of a will if the will is formally executed in accordance with the required legal formalities. This presumption may be rebutted where there are factual circumstances that “excite the suspicion of the Court”. Where there are such circumstances, the court will scrutinize them and consider the evidence before deciding if a will fails for want of knowledge and approval.
- In such cases, the burden of proof is on the individual relying on the disputed will itself to prove to the court that the will reflects the testator’s wishes.
- Where testamentary capacity and execution of the will are undisputed, where a claimant cannot sufficiently satisfy the court that the circumstances around the will are “suspicious”, a ‘want of knowledge and approval’ will not succeed. The testator’s knowledge and approval are “presumptuously established”.
As Mummery LJ stated in Hawes v Burgess, the cost of contesting the will was a calamity for the family in every way. Lawyers should always be mindful of their duty to their clients to minimize the risk of potential – and calamitous – legal action further down the line by taking appropriate steps if they have any concerns as to the testator’s testamentary capacity and or knowledge and approval of the will’s contents.
Trusts: Revocable Living Trusts
Setting up a Revocable Living Trust can lessen the risks of potential disputes involving a deceased after an individual dies (although trusts disputes can, of course, arise at some point). While a Revocable Trust can be contested, the procedure for doing so is much more difficult than it is to contest a will.
A Revocable Living Trust offers trustees a number of benefits well worth consideration. A Revocable Living Trust (sometimes called a ‘Living Trust’) is set up by an individual for the purposes of holding their own assets in trust. These, in turn, are invested and spent for that individual – who is also the beneficiary. In other words, the trustmaker, trustee and beneficiary are generally the same person. It will govern what happens when the trustmaker is alive, if and when he or she becomes mentally incapable, and finally on death.
One of the biggest advantages of a revocable living trust is avoiding probate because it can spare beneficiaries the cost and stress of a potentially lengthy probate process. Avoiding the public probate process also ensures greater privacy in disbursing the assets of an estate to the beneficiaries. In addition, the process of setting up a revocable living trust can be a good incentive for individuals to deal with the important issues relating to their assets, and the potential ways of looking after them effectively.
Clients for which a revocable living trust could be advantageous need to balance the administrative and legal costs of setting one up against the cost benefits of having the trust in place. Importantly, the clients will still need to have a will in place to cover property and assets outside of the trust.
Parris Whittaker: Biography
Parris Whittaker is an award-winning Bahamas law firm with expertise across the full range of legal practice. The firm combines an international reach with a firm grounding in the Bahamas region, and close working partnerships with important bodies such as the Bahamas Port Authority. It was founded in 2011 by partners Arthur K. Parris, Jr, one of the most senior leading legal authorities in the region, and Jacy Whittaker, a seasoned litigator who is very active in the Bahamian business community. Partner Kenra Parris-Whittaker is an award-winning lawyer who recently secured a significant victory in maritime law at the Appeal Court.
1 Hawes v Burgess [2013] EWCA Civ 94
2 Topciapski v Topciapski (2013) Ch 20 March 2013
3 Turner v Phythian [2013] EWHC 499
4 Sharp v Hutchins [2015] EWHC 1240 (Ch)
5 King v King [2014] EWHC 2827 Ch
Jacy A. J. Whittaker
Email: [email protected]
Tel: +242 352 6112
Jacy enrolled in law school (University of Buckingham, and later Inns of Court School of Law), then joined Callenders & Co., where he worked side-by-side with a legendary Queens Counsel on multiple matters—including one of the Bahamas’ most monumental matters. Six years later, he and partner Arthur K. Parris, Jr. left to form ParrisWhittaker.
Jacy has since added commercial transactions, probate law, admiralty law, and corporate structuring, re-structuring, and formation to his list of capabilities. He acts as local counsel for a handful of international companies.
