Analysis
The appeal dealt with the issue of whether the late Constance Simon (1) had testamentary capacity and (2) knew and approved her will she executed at or immediately after her 88th birthday party on 18 December 2005. The judge below answered the questions in the affirmative, on of Mrs Simon’s sons, Robert Simon appealed.
Mrs Simon had originally had four children, who each owned 24.99% of the shareholding in a family company. Mrs Simon owned the other 0.04% of the shares. Robert was the managing director. Her sons Hilary and Johnathan did not play a part in the business. David had died in 2004. Mrs Simon also had a long standing housekeeper called Mary Murray.
Mrs Simon owned a house, a flat, savings and investments, and her shares in the family company. Mrs Simon had made a number of wills before the disputed will. Her latest will, made in 1996 was largely the same as one made in 1994. It had left her property her children in equal shares apart from the family company shares and her flat, which she left to a trust for Robert. The trust rather than an absolute gift had been interposed by codicil in 1999 when Johnathan was in financial difficulties.
The judge made two findings about Mrs Simon’s attitude to her assets. The first was that she was insistent on treating her children equally. The second was that the favour that Robert was shown in the 1994 and 1996 wills was owing to the help he had given her.
It was common ground that Mrs Simon suffered from mild to moderate dementia at the time of the disputed will, such as to put her testamentary capacity in doubt. The judge below considered that the most important evidence of capacity was the non-medical evidence of the people present when the will was prepared.
On the day of the will’s execution Mrs Simon had a birthday party at her house. By 6pm the only people left were Hilary and her husband, Professor Woolley; a friend of Hillary’s Anne Schlachter, who had been a legal secretary; Johnathan; a friend of Johnathan’s called Derek Basten, and Mrs Murray.
In response to a comment about inheritance tax, Mrs Simon became determined that she wished to enter into a deed of gift there and then. Mrs Simon wanted to give her assets to the four children equally. A deed of gift was drafted using a precedent found on the internet by Ms Schlachter. The deed mentioned the house, the shares in the company, although the wrong number was given and some land in Malta. The deed did not comply with the formalities but nobody knew that at the time.
Later on Mrs Simon said that she was pleased to have dealt with the inheritance tax and that the equal division would go with her will. One of the children explained that in fact her will favoured Robert and did not direct an equal division. At this point the judge below found that Mrs Simon became adamant that she wanted to do a will there and then that achieved equal division. One was made with the help of a will form CD provided by Professor Woolley. Ms Schlachter prepared the will and it was accepted by the judge below that (1) the draft will was read to Mrs Simon in the presence of her family, (2) it was read to her again with the family out of the room, and (3) once it had been amended and printed off, it was read to her a third time in the presence of the family before she signed it. In addition she read it herself before signing.
The judge found that Mrs Simon understood the effect of will; that it was her wish to leave her property equally to her children subject to a gift to Mrs Murray; that she was not influence or persuaded except legitimately in a gift to Mrs Murray; that Ms Schlachter took her carefully through the will’s terms; that she was pressed to see a solicitor but she refused; that she understood that she revoked her previous will; that she knew that her previous will had benefited Robert in some way. In addition, the judge found that it was unlikely that Mrs Simon was able to remember how and why she had previously benefited Robert but that she did have capacity to have asked to see a copy of her previous will, if she had wanted to do so, however, she did not.
With regard to the Banks v Goodfellow test, the judge below had found that (a) Mrs Simon was capable of understanding and did understand the nature and effect of her simple will; (b) that Mrs Simon was capable of understanding and did understand the broad extent of the property that she was disposing of; and (c) that the requirement that Mrs Simon comprehend and appreciate the claims to which she ought to give effect did not, in this case, require her to be capable of understanding or actually to understand the provisions of an earlier will. However, he found that Mrs Simon was capable of understanding the provisions of her earlier will and could have asked to see it to remind herself of them, albeit that he found that she was not capable of remembering why she had favoured Robert earlier.
The judge below accordingly found that Mrs Simon had testamentary capacity and knew and approved her will’s contents.
The grounds of appeal were that (1) the judge was wrong in his analysis of requirement (c); the judge was wrong to infer that Mrs Simon was capable of understanding the extent of her estate; and (3) the judge set the requirements of establishing knowledge and approval too low.
The court considered the law on testamentary capacity. The court noted that capacity depends on the potential to understand and is not to be equated with a test of memory.
Held:
- 1) The argument that Mrs Simon was incapable of going through the thought process that led her to leave an increased gift to Robert in the earlier will was akin to a requirement of actual memory. No such requirement is necessary. The judge had not erred in his evaluation of requirement (c);
- 2) For similar reasons, even if the fact that the flat was not included on the deed meant that Mrs Simon had forgotten its existence, it did not mean that she was incapable of understanding her estate. She had merely forgotten the specific asset. There was no reason to suppose that with a prompt Mrs Simon would not have been capable of understanding her estate;
- 3) There was no requirement to understand not merely the assets at the testatrix’s disposal and the various claims on those assets, but also the collateral consequences of disposing of them in a particular way. Hence, a failure to appreciate the potential for an equal gift of the family company shares to create deadlock did not lead to a finding of a lack of capacity;
- 4) With regard to knowledge and approval, normally proof of instructions and of reading over will suffice. In the present case the judge below had started from a point of initial suspicion given the lack of a solicitor or medical examiner. However, the judge concluded that the suspicion was dispelled by the evidence, particularly that of the reading over of the will. Given the finding of testamentary capacity and the relatively simple will, the judge’s finding of knowledge and approval was unassailable.
- 5) The appeal was dismissed.
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