Analysis
The deceased passed away aged 97 on 21 January 2022. On 1 May 2020 he had purported to execute a will. At that time there were extant proceedings before the Court of Protection seeking an assessment of his capacity to manage his own affairs and expressing concern that he was being exploited by two of his children (the first and second defendants). On 24 April 2020 the Court of Protection made a declaration that there was reason to believe he lacked capacity to manage his own affairs and ordered an assessment.
The claimant was another of the deceased’s children and had been expressly excluded from benefitting under the disputed will. The will stated that he had not been a good son, was not an honest person, and had received substantial sums from properties previously owned by the deceased.
The disputed will was purportedly executed by the deceased at the offices of a notary in Central London. The notary did not give evidence but had stated he had read over the will to the deceased in the presence of the witnesses. The first and second defendants had not been present.
The will had been prepared by the seventh defendant, an American attorney with offices in Washington. He had filed a defence form stating that he had begun preparing the will as early as 2016, sending drafts to the deceased in 2017, and the will that was finally executed in 2020. There was no suggestion he ever met the deceased. A request for a Larke v Nugus statement had not been met. Neither the notary or the seventh defendant gave evidence and none of the defendants participated in the proceedings.
The earliest draft wills had disinherited the claimant. The 2020 drafts then disinherited all of the deceased’s other children save for the second defendant. The purported will also expressly dealt with a key bank account which had a balance of $13.2m at the time. Following execution of the purported will nearly all those monies were withdrawn, of which $11.25m was paid to the fourth defendant.
The claimant alleged that the first and second defendants had obstructed access to the deceased. The last time he had seen him was December 2019 when the first defendant had refused him access to the deceased’s home.
Dr Barker had also experienced difficulties in seeing the deceased to perform his assessment. An application was made for the first defendant’s committal. Before the application was determined an assessment of the deceased took place on 24 August 2020. The deceased reported that the claimant had threatened to kill him.
Dr Barker prepared three reports. All concluded the deceased lacked capacity. The third report went specifically to the question of testamentary capacity. Dr Barker concluded that the deceased lacked the capacity to both understand the extent of his estate and the moral claims upon it. He also concluded that that it was unlikely that the deceased’s mental state would have been significantly different at the time of execution of the will.
Held:
The effect of the Mental Capacity Act 2005 was to afford a test, or tests, for capacity in respect of transactions effected, or to be effected, by living persons. In contrast the Banks v Goodfellow (1870) test was applicable for the retrospective determination of capacity in respect of a specific transaction, namely a will.
While the decision as to testamentary capacity was a matter for the court, the court must give full weight to the views of a highly qualified expert, particularly where they had the opportunity to make an assessment of the testator over a few months after the making of the will in question.
The court was satisfied that the deceased lacked testamentary capacity at the date of the purported execution of the will and that it was therefore invalid. The deceased had been unable to understand the extent of his estate or the moral claims on it. In addition, the deceased held an entirely unfounded, and therefore irrational, belief as to the conduct of the claimant.
In respect of knowledge and approval, the suspicion of the court arose in an extreme form. The will purportedly dealt specifically with monies in the key bank account when the deceased had no knowledge of the account, the monies in it or the source of those monies. The only way of allaying those suspicions would be affirmative and persuasive evidence that, notwithstanding the deceased’s lack of understanding of his affairs, he had nonetheless been fully aware of his true financial position and, in particular, the monies in the key bank account. No such evidence existed.
Although the notary had read over the will in this case, the impact or effect of that reading had to be evaluated in the context of the deceased’s mental and physical state at the time. He had severely impaired vision and would not have gained any understanding from reading the will. He would not have been able to retain the contents as they were read out to him, such that he would not have been aware of them when he came to execute the will. The deceased did not know and approve of the contents of his will when it was executed.
In testamentary undue influence the core question was whether the testator’s own will had been overborne by the conduct of others. Recognising the high burden to be met, even to the civil standard of proof, in establishing undue influence, the facts established must be consistent only with the exercise of undue influence. The court was completely satisfied that the deceased was not, in any sense, acting on his own volition. In consideration of his mental state and understanding of his own affairs, no other conclusion was possible.
The claim of fraudulent calumny was not made out. The origin of the untrue allegation that the claimant had been taking money out of his joint property venture with the deceased had emanated with the seventh defendant. The allegation that the claimant had threatened to kill the deceased had arisen when Dr Barker assessed the deceased. There was no evidence that this had been ‘fed’ to the deceased by the first or second defendants, as opposed to simply an unfounded allegation from someone suffering from dementia.
JUDGMENT DEPUTY MASTER BOWLES: [1] Abdul Razagh Biria (Mr Biria) died on 21 January 2022. He was 97 years of age. He had been born in Iraq and had lived in England since about 1980. On 1 May 2020, when he was 95 years of age, he, purportedly, executed a will (the will). [2] At …Continue reading "Biria v Biria & ors [2024] WTLR 785"