Fischer v Diffley & anr [2013] EWHC 4567 (Ch)

Analysis

The claimants were the representatives of Louise Beck (Louise)’s family in Germany. Louise died on 17 January 2011 and the claimants sought a declaration that Louise had died intestate and that the two wills which she had executed on 1 March 2009 (the first will) and 2 May 2010 (the second will) were invalid.

Louise held substantial assets in both England and Germany, mainly comprising real estate and cash. The wills purported to deal with all of her assets in both jurisdictions. If the wills were found to be invalid then the English estate would pass to her surviving nieces and nephews in Germany and the estate in Germany would pass under the laws of that country.

The claimants submitted that at the date of execution of the wills, Louise was suffering from dementia to the extent that:

1. a) she lacked testamentary capacity; and
2. b) there was a want of knowledge and approval.

The defendants (who acted in person) were the former tenants and neighbours of Louise and they, by their counterclaim, asked the court to pronounce the wills in solemn form. Under the wills the defendants stood to receive a life interest in either the whole or part of Louise’s estate.

Under the first will the remainder passed to Battersea Dogs Home and under the second will this was amended to Louise’s family in Germany.

The two wills had been prepared by Mr Petts who had been a longstanding friend and advisor to Louise. He passed away in January 2013 and so could not provide oral evidence. Mr Petts had claimed that the two wills were part of a ‘scheme’ designed to discourage Louise’s family in Germany from challenging the terms of the second will. The available evidence suggested that this was a scheme which Louise would not have been able to design or comprehend. No evidence was available to demonstrate that Louise had received any legal advice prior to making the wills or that she had given any instructions as to their content to Mr Petts.

Extensive and conflicting witness evidence was submitted as to Louise’s mental health at the relevant times. Three experts provided medical evidence which concluded that it was highly unlikely that Louise would have had capacity to make either of the wills.

Held:

1. 1) Banks v Goodfellow (1870) is the starting point in matters of testamentary capacity but the provisions of the Mental Capacity Act 2005 need to be considered alongside this classic test. As to knowledge and approval, the authorities to be applied are Hawes v Burgess [2013] WTLR 453 and Greaves v Stolkin [2013] WTLR 1793. The burden of proof was on the defendants to discharge.
2. 2) In applying the capacity tests to the second will, it was apparent that while Louise may have understood that she was signing an important document, given medical opinion and the other available evidence, it was highly unlikely that Louise understood what her assets were or that she was able to appreciate the potential claims by family members to those assets. Louise did not, therefore, have capacity to execute the second will.
3. 3) In respect of Louise knowing and approving the contents of the second will, the defendants had not discharged the burden of proof placed on them. Twelve factors militated towards that conclusion, including the fact that the will was not prepared by a solicitor, there were no professional witnesses, there were misspellings in Louise’s name and the terms of the will were complicated and difficult to understand.
4. 4) As to the first will, this was slightly harder to determine. However, the medical evidence supported a lack of capacity and again, on applying the test in Banks, Louise was highly unlikely to have understood the matters she was required to and therefore lacked testamentary capacity to execute the first will.
5. 5) So far as knowledge and approval of the first will was concerned, the defendants had again failed to discharge the burden on them. Sixteen reasons resulted in this decision. These included many of the reasons which applied to the second will, as well as the fact that the will was deliberately concealed by Mr Petts and the fact that the defendants were not advised about the will despite being significant beneficiaries.
6. 6) The declaration sought by the claimants was granted: Louise Beck died intestate.

JUDGMENT HHJ DIGHT: [1] The claimants, who are the representatives of the family in Germany of Louise Beck, whom I will refer to as the deceased, who died on the 17 January 2011 aged 83, seek a declaration that she died intestate and that the two wills executed by her and respectively dated 1 March …

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