Growing strong

Introductory conversation

When a practitioner meets a client for the first time, it will often be useful to begin by asking for an existing family tree or for help in drawing one up. Besides showing an interest in a client and their family, this serves as a preliminary way to ask probing questions in a discreet, polite way. Conversations about the weather or travel to the office are unlikely to be sufficient in determining a client’s mental acuity, but asking questions about a family dynamic may well be.

The Banks v Goodfellow test

In many jurisdictions, the Banks v Goodfellow test is the classic test of establishing whether a client has capacity to make a will.1 To have testamentary capacity, a testator shall:

• understand the nature of the act and its effects (the making of the will);
• understand the extent of the property of which they are disposing;
• be able to comprehend and appreciate the claims to which they ought to give effect; and
• be free from any disorder of the mind that may poison their affections, pervert their sense of right or prevent the exercise of their natural faculties.

In many disputes about the validity of a will, the first two limbs of the test are relatively easy to satisfy. The purpose of a will is well-known and most people are able to understand the extent of their property, at least in general terms.

It is the third limb that is often most contentious: a disappointed beneficiary may claim that the testator had forgotten about them or did not appreciate the extent of the claims to which they ought to give effect. Against that background, a family tree is particularly helpful to understand the capacity of a testator. A question such as ‘can you help me draw a family tree’ is so much more than superficial conversation, as it requires comprehension and understanding on the part of the testator. Sadly, many clients with serious dementia, for example, are often unable to remember whether their parents are alive or dead and how many children or grandchildren they have. Testators with dementia are often unable to differentiate between children and grandchildren, or can forget some individuals completely. It is, therefore, worth repeating that asking a client to help compile a family tree in anything but the most straightforward cases is a useful way of seeking to begin to establish whether a client has capacity.

Generations of families with the same name

Some families seem to delight in maintaining a family tradition by using the same family name throughout the generations. This may be illustrated by a recent dispute concerning one ‘John Wright’, who was to receive the testator’s bounty. Sadly, the practitioner had not realised that there were four generations in the family, all called John Wright, and differing generations came forward to make their own claims to the family farm. Admittedly, there was a slight twist because the youngest member of the family was actually called ‘Jon’ rather than ‘John’, but it is a relatively easy step for young Jon to argue that the will preparer must have misunderstood the instructions to leave the bequest to ‘John’.

If the will preparer had taken the trouble to draw up a family tree and place it on the file (and not then destroyed the file before the testator died) then a long, protracted and expensive dispute about the identity of this beneficiary would not have arisen.

Identifying beneficiaries

Wales v Dixon is a recent English and Welsh case,2 but the issues could have arisen anywhere.

A widower without children, Peter Wales died in February 2015 having made a will in December 2008. By clause seven of that will, he gave his residuary estate to ‘such all of my nephews’ and nieces’ children’. At the date of his death, he had two blood nephews and two blood nieces. He also had three nephews by marriage and one niece by marriage, and a further nephew by marriage died in 1992, leaving a son.

The issue for determination in this case is whether the deceased’s residuary estate fell to be divided just between the seven defendants who were children of his nephews and nieces by blood, or whether it fell to be divided between them and the other eight defendants, who were children of the deceased’s nephews and nieces by marriage. This was important because a one-seventh share of the residuary estate was worth just over GBP89,000 and a one-fifteenth share was worth just over GBP41,000. This was an English and Welsh construction case relating to s.21 of the Administration of Justice Act 1982; interpretation of wills. The judge felt bound to consider ‘the context and circumstances of the case’ when seeking to determine whether the residuary estate was to be divided between seven or 15 beneficiaries. In the view of the judge, the prior wills made by the deceased and his wife were relevant because they showed the deceased’s intention. In fact, the judge in this case decided that the estate was to be divided between all 15 children. Of particular relevance were comments made by the judge about the will preparer:

‘the striking feature of the communication between the deceased (and the will preparer) is the lack of any focus by the deceased on Clause 7 and the complete lack of any attempt to establish by name or parent who was intended to receive a share of residue. This illustrates graphically the dangers of taking instructions by telephone from an elderly widower without sight of his prior will or knowledge of his family tree’.

It is plain that had the will preparer gone to the basic trouble of asking the testator to identify the beneficiaries, by means of naming the parents of the children or by preparing a family tree, then this problem would not have arisen.

Summary

The authors hope that the above demonstrates positive reasons why family trees should be prepared. Adopting this practice will help ensure that will preparers continue to remain trusted advisors to their clients and preclude misunderstandings about a testator’s wishes after death.

• 1Banks v Goodfellow (1870) LR 5 QB 549
• 2[2020] EWHC 1979 (Ch)