Analysis
Daphne Burgess, the deceased (D), died in May 2009 aged 80. She had three children: the appellant, Julia (J), and the respondents, Peter (P) and Libby (L). P and the deceased were very close. He organised her finances and in 2006 bought a bungalow for her to live in. It was to remain in his name, but subject to a lease to his mother to give her security. They agreed that she would pay £21,000 towards the cost of a new kitchen and bathroom that she wanted installed. J and P fell out for a number of reasons, mainly connected with the purchase of the bungalow and related arrangements affecting D.
In December 2006, J arranged for D to visit a local law firm about selling her existing house and making a new will. D had told J that she wished to change her will to include directions for her burial and arrangements for her funeral service. She was seen by a partner who had never met her before and had no independent recollection of the meetings to take instructions, or for the execution of the will. He was ‘an experienced solicitor in will matters, having been responsible for the preparation of about 50 wills a year’. Although his typed attendance note stated that the deceased was ‘entirely compos mentis‘ and that he had no hesitation in taking instructions from her, he did not carry out any formal assessment of her mental capacity and, indeed, had little opportunity to do so. He allowed J to remain in the room with D at both meetings and received information from J during the meetings. The attendance note referred to the deceased giving at least £40,000 to P in return for living in the bungalow and for improvements to that property. The will contained a clause stating that limited provision was being made for P because of ‘the substantial lifetime provision I have made or will shortly be making in his favour’.
Over Christmas and the New Year D stayed with P and suffered a fall, probably due to a drop in blood pressure. She then stayed with J from 5 January. On 12 January 2007 the 2007 will was executed in the offices of D’s solicitor. He had not sent the draft to D for her to read in advance, but read it over to D in the presence of J and explained the meaning of it.
P remained close to D, who discussed matters with him. Although she did not tell him about the 2007 will or how he was cut out from residue, she did tell him about writing cheques for £1,000 as presents to each of her daughters in May 2007, as P was wealthier than his two sisters.
D lived in the bungalow on her own. On 23 November 2007 she had a stroke. In August 2008 she was admitted to hospital for three weeks with liver disease. In March 2009 she was admitted to the Windsor Intermediate Care Unit, and in April she was transferred to hospital, where she died at the end of May 2009 without returning home.
P and L contested probate of the 2007 will on the grounds of (a) lack of testamentary capacity and (b) want of knowledge and approval, and petitioned for the validity of D’s earlier will dated 23 September 1996, which divided the residuary estate equally between all three children. They produced expert opinion that there was strong evidence that D suffered from cerebrovascular disease, which amounted to dementia of modest severity.
The trial judge declared the 2007 will invalid and made the following findings:
- J was ‘the controlling force’ in the giving of the instructions for the will. She was present in the room and gave the solicitor inaccurate information.
- It was difficult for the solicitor to assess D’s testamentary capacity, as he did not have the medical qualifications or the opportunity to make an independent formal assessment. He did not send a draft of the will to D for her to read before she attended his office to execute it.
- There were mistakes in the 2007 will (about P’s middle name, wrong numbering of clause 22 and substantive incorrectness), none of which were picked up by D at execution.
She accepted the expert’s evidence that, if D omitted P from the residuary gift on erroneous grounds, it was more likely than not as a result of her vascular dementia. That meant D lacked testamentary capacity, since she had failed to comprehend and appreciate the claims to which she ought to give effect, as required by limb 3 of the test in Banks v Goodfellow (1869-70) LR 5 QB 549. The judge also found that D had not known and approved the contents of the will.
J appealed on the grounds that:
- the facts found did not support the judge’s conclusion that, at the time of giving the instructions for the 2007 will and at the time of its execution, D lacked the necessary degree of understanding to comprehend and appreciate the claims to which she ought to give effect. The judge had concluded that D was able to understand sufficiently (a) the general nature and consequences of making the 2007 will and (b) the extent of her estate.
- the judge was wrong to conclude that D did not know and approve the contents of the 2007 will without giving reasons for, or stating any evidential basis for, displacing the strong presumption of validity in favour of a will executed at the offices of an independent and experienced solicitor after he had read out the document drafted by him on instructions and explained its contents to her.
Held (appeal dismissed [65, 67 and 70]):
- (1) There were considerable doubts as to whether the judge’s findings on lack of capacity were justified. It was a very strong thing for the judge to find that D was not mentally capable of making the 2007 will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational [57, 69]. A judge should also be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepted that the testatrix understood that she was making a will and also understood the extent of her property. This was a difficult point but, in view of the conclusion reached on the issue of want of knowledge and approval, it was unnecessary to express a concluded view on this ground of appeal [61].
- (2) The circumstances in which the will was made justified the court insisting on positive proof of knowledge and approval: P and D remained close until her death, yet she cut him out of her will and never told him about it, even though she did tell him about making gifts to her daughters. D had told J that she wanted to revise her will with regard to burial and funeral arrangements, but no mention was made of cutting P out of the residuary gift. J was instrumental in making the arrangements to see the solicitor and in relation to instructions given for the contents of the will; she remained in the room throughout the discussions. The new will was made without the knowledge of her siblings at a time when there was a rift between P and J. The solicitor did not send the deceased a draft to check before attending at the office to execute it. These particular factors, in addition to the judge’s findings on the deteriorating state of D’s physical health, her mental state and her diminishing capacity, were sufficient to support the judge’s overall conclusion on D’s want of knowledge and approval of the contents of the 2007 will [64].
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