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13 November 2018 | Comment | Article by Roman Kubiak TEP

Court of Appeal decision in Simon v Byford & Ors [2014] EWCA 280 (Civ); capacity to comprehend or continuing confusion?

Leah considers the Court of Appeal decision in Simon v Byford and its potential impact on the law of testamentary capacity when seeking to contest a will.

On 13 March 2014 the Court of Appeal handed down judgment in the appeal of the case of Simon v Byford. A more in depth analysis of the facts and the decision of the court in the first instance can be found here but, briefly, are as follows.

In December 2005, Constance Rose Simon had celebrated her 88th birthday with a party for family and friends at her London home. It was accepted that, by her 88thbirthday Mrs Simon’s mental health had deteriorated, although the parties disputed the extent to which she suffered from confusion and symptoms of dementia.

Some time after that birthday party had ended, Mrs Simon, together with her son, daughter, son-in-law and their friends and associates, executed a home-made will leaving her estate equally between her three surviving children, and in trust for the benefit of the wife and children of a son, who had predeceased her

At the time of her death, Mrs Simon’s estate included her £1.75 million home in St John’s Wood, a flat in Westcliff-on-Sea valued in excess of £250,000, shares and savings in excess of £50,000 and the 16 shares in the family company which would permit or prevent a deadlock between the other shareholders and directors.

Mrs Simon’s son, Robert, brought the claim, arguing that his mother’s December 2005 will was invalid. The defendants comprised the other beneficiaries and the professional executor appointed by the 2005 will. The judge at first instance found in favour of the defendants, and that the will was valid.

The appeal, brought by Robert Simon, focused on three grounds, each regarding Mrs Simon’s health and capacity to make a will. These were that:

  1. the judge was wrong in his analysis and application of the third limb of the “Banks v Goodfellow” test for capacity;
  2. the judge was wrong to infer that Mrs Simon was capable of understanding the extent of her estate; and
  3. the judge set the requirements of establishing knowledge and approval of the contents of her will, too low.

The 1870 case of Banks v Goodfellow sets out the test for an individual’s capacity to make a will. The judgment states:

“It is essential that a testator shall understand [1] the nature of his act and its effects; [2] the extent of the property of which he is disposing; and [3] shall be able to comprehend and appreciate the claims to which he ought to give effect, and… that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.”

In the case of Simon v Byford at appeal, Lord Justice Lewison stated that Mrs Simon was ‘capable’ of remembering the extent of her estate (the second limb of the test above), partly through discussions with her family in the course of drafting her will. This finding was despite Mrs Simon apparently forgetting that she owned the £250,000 flat at Westcliff-on-Sea, and in the disappointed beneficiary’s argument, her inability to recall why she had previously drafted wills leaving the deciding shares in the company to him rather than leaving the shares equally between her children, which left the company at a deadlock.

The Court of Appeal went on to say that, when Mrs Simon had to be prompted to leave a gift to her close personal assistant Mrs Murray, this demonstrated her ability to ‘weigh up the claims upon her bounty’. This was despite the legacy to Mrs Murray having been consistent in Mrs Simon’s will instructions for a great number of years

Lord Justice Lewison quoted the judgment of Harwood v Baker(1840) 3 Moo PC 282:

“… [a Testator] he must also have capacity to comprehend the extent of his property, and the nature of the claims of others…(Emphasis added)”

Comparing the language of the judgment in Harwood v Baker and the test as set out in Banks v Goodfellow, ‘capacity to comprehend’ would seem to set a far lower test than ‘it is essential the testator shall understand’, but whether this amounts to a lowering of the standard is yet to be seen.

Further, Mrs Simon’s son, Robert, had argued that his mother did not have capacity to make this last will because she was unable to understand the extent of her property by failing to note the significance of the 16 shares in the company. The Court of Appeal rejected this argument, saying that the shares were of little significance by themselves, and that the significance was given by an appreciation of Robert’s own assets and shares in the company. Lord Justice Lewison continued:

“I do not think that any of the authorities requires as a condition of testamentary capacity that the testator should understand or remember the extent of anyone else’s property.”

In conclusion, the decision of the Court of Appeal in Simon v Byford may have substantial implications for claims relating to mental capacity moving forward. Whether this case is a lowering of the standard required to make a will will only become clear once further will dispute cases go to court. However, this case emphasises the problems which can arise from wills drafted under suspicious circumstances, particularly where the testator is from dementia and/or other mental health disorders.

The Court of Appeal accordingly dismissed the appeal. We will have to watch this space to see whether there will be a further exploration of this case at the Supreme Court.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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