The court has to focus on the testator mental capacity at the time of making his will, since a man diminished in physical and even mental strength may nevertheless make a valid will, provided that he was in possession of his full capacity at the precise time of the writing of the will. In order to determine if Mr Watson lacked testamentary capacity at the time of the November will, both parties named a different expect to assess on that matter. Bearing in mind that none of the experts had seen Mr Watson as a patient during his life time, they concluded that at the time of the November will he was only affected with "mild dementia". The diagnosis of mild or even moderate dementia is not itself an obstacle to satisfy the requirement of testamentary capacity. Therefore, none of the experts could assure that John Watson lacked testamentary capacity the day he made the will.
[...] I did not form that impression of her at all. I found her to be an honest and reliable witness Ms Webb described the occasion when she came to take instructions for the November will in some detail. She recalled that she had not seen John Watson for some 18 months or so. This was because she had been acting for the partnership in connection with the terms on which John Watson should leave it. When she came in to the room he was fully awake, dressed and seated upright. [...]
[...] In my judgment, based on the evidence of Mrs Watson and the contemporary documents, it is more likely that Dr Chapman expressed the view that the matter needed to be further investigated In summary therefore, Mr Harvey had suggested obtaining a medical opinion so as to remove a “question mark” over John Watson's capacity to make the March will. The medical practitioner diagnosed mild dementia, but, without expressing a final view, considered that the view of a consultant psychiatrist should be sought. That was not done. The November 2000 will 63. The November 2000 will was drawn up by Carole Webb. Ms Webb had been a friend of John Watson for many years, and been named as the recipient of a small bequest in previous wills, including the 1998 and March 2000 wills. [...]
[...] He conducted tests on the testator which resulted in him thinking that Mr Watson lacked testamentary capacity to sign a will on 14th March 2000. There were no medical reports attesting this medical opinion, and the only tangible proofs were contrasting recollections from Mr Harvey's phone conversation with Dr Chapman, and Mrs Watson's recollection of her husband's interview with the doctor. In summary, the medical practitioner diagnosed mild dementia and strongly advised that Mr Watson should go and see a psychiatrist, but that was never done, thus it is concluded that Mr Watson's testamentary capacity in March 2000 was still present. [...]
[...] But the exercise was not one of contrasting the former person with his state in executing his will: despite the decline, he may still enjoy the necessary degree of memory and understanding to meet the law's standard for testamentary capacity. Moreover, like the testator's delusionary state in Banks v Goodfellow, testamentary capacity may come and go. In such cases it is all the more important to focus on the question of whether he possessed the necessary capacity at the relevant time It is, of course, the testator's mental state which is of importance. [...]
[...] Catherine admited that she lost her temper, something which the rest of her family described as a very rare event. I think this showed that Janet and Catherine considered that their father was responsible for his actions. Moreover it was some evidence that John Watson's short term memory was not much compromised, as the argument of the previous day was carried forward. I rejected the suggestion that Margot had somehow reminded him of it. In fact Margot was one of those who tried to persuade him to stop arguing. [...]
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