Analysis
Mrs Eileen Rand died on 4 November 2007 aged 79 having executed two wills during her lifetime – one dated 20 June 2007 and the other 18 December 1969.
Mrs Rand had two siblings – Horace (known as Bill) and Derek. Bill married twice, the second time to Mrs Rand’s best friend since school Lillian (known as Pat).
In 1967 at the age of 38 Mrs Rand married for the first and only time to Edward Rand (known as Ted). Ted was already a widower and much older than Mrs Rand. Ted died after 18 months of marriage and left his entire estate including the martial home to Mrs Rand. Ted had one daughter from his first marriage – Shelia. Shelia married David and had one daughter Sharon. Several times during her life Mrs Rand told Pat and Derek that she had promised Ted that she would look after his family.
The 1969 will appointed Bill and Derek as her executors, left 50% of the marital home to Shelia, David and Sharon in equal shares and 50% to Bill and Derek. She left her residuary estate to Bill and Derek.
Pat and Derek gave detailed evidence of Mrs Rand’s failing memory in the last year of her life. She repeated herself, underwent a personality change and behaved erratically.
Mrs Rand met Mr and Mrs Efthymiou around 2004, they became close friends and they helped her with cooking, shopping and medical appointments. Mrs Efthymiou gave evidence that up until May 2007 Mrs Rand exhibited no signs of forgetfulness. However, the medical notes recorded that Mrs Efthymiou told doctors that Mrs Rand was forgetful and had dementia and memory issues on three separate occasions. Mrs Efthymiou denied ever making these statements.
On 27 April 2007 her brother Bill died. On 23 May 2007 she was hospitalised after a fall. She was diagnosed with hyperglycaemia which caused acute confusion. By this stage she was a diabetic and Mrs Efthymiou described her to the doctors as forgetful for the previous three months. On 30 May she scored 13 out of 30 in a test of mental ability.
She was discharged on 7 June 2007 with carers visiting three times a day. After her discharge from hospital Mrs Rand told Mrs Efthymiou that she wanted to leave her half the value of the property and so Mr Efthymiou arranged for a will writer, Mr Markou, to take instructions.
On 15 June 2007 Mr Markou took instructions from Mrs Rand for a will. The will appointed him executor along with Mr Efthymiou. She left her entire estate to her brother Derek and Mrs Efthymiou in equal shares.
Mr Markou asked Mrs Rand who the prime minister was and the date, year and time of the day and she answered those questions correctly.
Mrs Rand wished to leave £10 to Shelia. However, she could not find her address and so did not proceed with this legacy. Mrs Rand could not remember her brother Derek’s address. Mrs Rand gave instructions for a side letter stating she had left nothing to Bill’s family as she did not consider herself close to them and she had not been in touch with Ted’s daughter since he died.
On 20 June she signed the will but there was no discussion about the will and she merely signed her name.
On 21 June she was admitted to intensive care with acute renal failure. She recovered from this and on 18 July scored 3 out of 10 in a mini test of mental ability. By 14 August she thought her parents were alive and only scored 1 out of 10 in the same test.
She was discharged to a nursing home on 17 August 2007 and never returned home.
After Mrs Rand’s death Derek administered and distributed his sister’s estate on the basis of the 1969 will and obtained a common form probate grant to do so.
The claimants (Mr Markou, Mr Efthymiou and Mrs Efthymiou) applied for the grant of probate of the 1969 will to be revoked and probate granted for the 2007 will. The defendants (Derek, Pat, Shelia and Sharon) counterclaimed for an order pronouncing against the 2007 will and granting probate in solemn form of the 1969 will.
The two medical experts in the case differed markedly in their interpretation of the medical records. The claimant’s expert felt that the low test scores were the result of delirium caused by physical illness rather than dementia but with the evidence not excluding a mild underlying dementia. The expert also felt that Mrs Rand lacked testamentary capacity because of her acute confusional state on 20 June but could understand that she was signing a will for which she had previously given instructions.
The claimants argued that Mrs Rand had testamentary capacity on 20 June or failing that she knew she was executing a will for which she had given instructions on 15 June when she did have testamentary capacity.
Held (dismissing the claim):
- 1) Although the will may have been rational on its face the defendants raised sufficient doubt about her testamentary capacity to transfer the burden to the claimants as propounders of her will.
- 2) The medical experts demonstrate how difficult it is on the basis of isolated tests and notes to be sure about the underlying causes of cognitive impairment.
- 3) Mrs Rand was suffering from an underlying dementing illness prior to her illness in May 2007. Mrs Efthymiou did tell doctors that Mrs Rand has memory problems. Mrs Efthymiou is not being deliberately untruthful, but since six years has elapsed she has come to think of Mrs Rand being in a better state of mind at that time than the contemporaneous evidence shows.
- 4) It was not irrational for an elderly woman to wish to leave property to a close and supportive friend.
- 5) The £10 legacy to Shelia raises real doubts about her awareness of the value of money and casts some real doubt on her then state of mind. Mrs Rand obviously felt some moral obligation to her. The fact that she did not carry this through because of not being able to find the address indicates a lack of focus.
- 6) It was not irrational that she did not wish to leave Pat any money. However, the side letter stating she was not close to her is strongly indicative that her dementing illness or the acute confusional state that had been triggered on 23 May, or a combination of the two, was affecting her judgement. Pat was her best friend and nothing had changed that situation.
- 7) I accept that Mrs Rand presented to Mr Markou as rational. However, he might have paused to consider why she was thinking of leaving someone £10. It was not true that she had not seen Ted’s daughter since his funeral.
- 8) Her answers to the questions about the Prime Minister and the date do show a considerable degree of understanding but do not remove the effect of the oddities of her misrememberance of family relations.
- 9) Mrs Rand was not able to comprehend and appreciate the claims to which she ought to give effect and she had a disorder of the mind that prevented the exercise of her natural faculties.
- 10) I accept that Mrs Rand did wish to benefit Mrs Efthymiou and Mrs Efthymiou was not taking advantage of Mrs Rand. However, it is not enough to show that testator wished to benefit the person who in fact benefited. It must also be shown that no mental disorder prevented her from having in mind all the other claims and considerations which she should properly have in mind.
- 11) The evidence when the will was signed does not show that she knew she was signing a will and therefore she does not satisfy the requirements for Parker v Felgate.
- 12) Mrs Rand did have knowledge and approval of the will but this does not assist the claimants as she lacked testamentary capacity.
Continue reading "Markou & anr v Goodwin & ors [2013] EWHC 4570 (Ch)"