Analysis
Mrs Blofield (D) was in her 80’s and owned her own home worth around £140,000. Her only son (R) was an alcoholic and seriously ill. He moved into her house in 2002 and remained there until he died, intestate, on 5 August 2006. He had fathered several children. One was adopted and others taken into care but they paid no part in his life or that of his mother, D. He did, however, have a legitimate daughter, the claimant, Mrs Leigh Cowderoy, (C) who inherited his estate. Relations between C and R were strained and there was very little contact between C and D because of this although C had asked social services to visit D in 2003. They found D to be capable and alert. Likewise, in 2004 D’s doctor, while noting her to be a moderate drinker, saw no cause for concern. D did not consider that R would have wanted C to inherit and decided to make her own will. She had no family apart from C and decided to benefit Mr Lionel Cranfield (L), a friend of R’s who she knew and who had been a neighbour. She also considered benefitting Mr Nicholas (N) a close friend of both R and L but he was an alcoholic and she thought he would waste any gift. She did not however inform him of this decision. Initially she asked L to contact a firm of solicitors and it was arranged that they would attend on her at her home on 20 October 2006. On the day L and two representatives of the solicitors were present. It appeared to them that D was muddled and they considered L might be unduly influencing her. L also thought there was something wrong with D that day. On 26 October 2006 D informed the solicitors that she did not wish to proceed because of the requirement that she would have to see a doctor. D had difficulty getting some of her words out during these conversations. On 27 October another firm of solicitors was found and their representative Mr Jones (J) arranged to visit D on 31 October. Prior to that appointment he phoned her asking her to provide a passport and utility bill and discussing where he might park. She was alone when he arrived. She told him that she wished L to be her executor and sole beneficiary, but if he did not survive N was to be the sole beneficiary and executor. She explained that she had no blood relatives other than C who she did not wish to benefit as she had already benefited from R’s death and never visited. She felt it was unjust that C had inherited. On 13 November J and a legal secretary attended D. The draft was read to her and the main provisions summarised. She then looked over the will and signed it in the presence of J and the secretary as witnesses. In the following two years D’s health declined. Her GP visited on 6 February 2007 recording that her memory was fine but that she had difficulty with certain words and denied drinking heavily. He was concerned about a cancerous growth on her forehead. Subsequently, on 20 February he visited and noted that D was generally well ‘though seems to get a bit confused’. He was not, however, overly concerned about her mental capacity so did not look into it further. She had been taking nitrazepam and co-codamol for a considerable period and if taken in excess or with alcohol she could become disorientated, confused or have a lack of concentration. He referred her for plastic surgery. In early 2008 D had a fall and her doctor found her to have markedly deteriorated. She had a further fall in March. On 15 April she had deteriorated to the extent that she was hospitalised against her wishes. From there she went to a residential care home where she died on 19 October 2008.
L was granted probate of the disputed will on 7 May 2009. C issued proceedings contesting probate on the grounds:
- (1) D did not have testamentary capacity to make the disputed will on 13 November 2006;
- (2) D did not know and approve the contents of the disputed will; and
- (3) the disputed will was procured by the undue influence L.
Expert psychiatric evidence was obtained for both parties. D’s cognitive mpairment could vary significantly from day to day depending upon her consumption of alcohol operating in conjunction with her medication. There was also a difference between any impairment in D’s ability to express herself as distinct from a lack of impairment in relation to her ability to understand language.
Held
The will of 13 November 2006 was valid and effective and rightly admitted to probate [148].
D had testamentary capacity when she gave instructions for her will on 31 October 2006 and when she executed her will on 13 November 2006. She understood the extent of the property of which she was disposing and was able to comprehend and appreciate the claims to which she felt she ought to give effect. She was not suffering from any disorder of the mind when she made her will. She had good days and bad days. The evidence as to D’s condition on 20 October 2006 did not raise any real doubt as to the findings in relation to 31 October and 13 November 2006. Her condition fluctuated principally as a result of the combined effect of her medication and the consumption of alcohol [145].
D knew and approved the terms of the will that she made on 13 November 2006. It was not necessary, or appropriate, to ask whether the terms of the will excited suspicion. A clear decision could be reached based on all the evidence so that this case did not turn upon questions as to the burden of proof [146].
There was no arguable case of undue influence. There was no evidence that L ever tried to persuade, or otherwise influence, D to make a will in his favour. D made a will in the terms of the will of 13 November 2006 because that is what she independently wanted. She wanted to make a will so that C would not inherit her estate on an intestacy. Having decided that much, D then had to consider who should benefit. She freely chose L [147].
JUDGMENT MR JUSTICE MORGAN: Introduction [1] This case concerns a disputed will made on 13 November 2006 by a Mrs Helen Imrie Blofield. Mrs Blofield died on the 19 October 2008. By the disputed will, if valid, and in the events which have happened, Mrs Blofield appointed Mr Lionel Cranfield as her sole executor and …
Continue reading "Cowderoy v Cranfield [2011] EWHC 1616 (Ch)"