Walker & anr v Badmin & ors claim no HC121304229

Analysis

Elizabeth Jane Walker (Mrs Walker) was born on 25 March 1956. She married John Walker in 1981, and with him she had two daughters, Jennifer and Alison. In 2007, she left her husband and began to live with Michael Badmin (Mr Badmin).

On 20 June 2009, Mrs Walker was diagnosed with a terminal, malignant brain tumour. Following the prescription of medication, she began to suffer from symptoms of psychosis. However, her condition gradually improved, and she was discharged from hospital on 20 July 2009. Mrs Walker’s health begun to deteriorate in Autumn 2009. By October, she was bed-bound. However, her medication was increased, and by the end of October her condition had once again improved.

On 10 November, Mr Badmin contacted a firm of solicitors (CWWS) about preparing mirror wills for himself and Mrs Walker. Instructions were taken over the course of November and December 2009. On 18 November, Mrs Walker and Mr Badmin spoke to CWWS over the telephone during which she gave instructions. Mrs Walker was asked three ‘superficial’ questions to ascertain capacity. No further enquiries were made, and no medical examination was suggested, despite the fact that CWWS had full knowledge of Mrs Walker’s diagnosis. A will was drafted and sent to Mrs Walker providing for Mr Badmin to inherit the whole estate and for a gift to the daughters in equal shares only if he predeceased her. However, further instructions were taken on 29 December, in which Mrs Badmin stated that she wanted her property to pass to Mr Badmin with the residue passing 50% to Michael, and 25% for each daughter. It was suggested that Mr Badmin should have a life interest in her matrimonial property, Denge Wood, and this proposal was accepted by Mrs Walker.

The will was sent to Mrs Walker shortly after. It was executed on the 3 January, and witnessed by two neighbours. Mrs Walker accompanied the will with a signed letter of wishes which described the provision she had made, and the considerations justifying it. At the time of execution, her assets comprised a 50% share of Denge Wood and her entitlement to a pension lump sum amounting to £45,643.12.

Mrs Walker died on 18 February 2010. The daughters subsequently brought a challenge to the will on the grounds of lack of testamentary capacity, and want of knowledge and approval. They relied upon an expert report of a consultant neuropsychiatrist, Professor David, who considered that she did not have capacity in June and July 2009 due to her florid psychosis, and that she lacked capacity when she gave instructions for, and executed her will between mid-November and 3 January 2010. The expert on behalf of Mr Badmin, Professor Martin agreed that she lacked capacity in June and July, and that she had suffered a degree of cognitive decline by the time she gave instructions for and executed her will. However, he considered that she retained testamentary capacity at that time.

Held:

1. 1) There were clear differences between the test in the Mental Capacity Act 2005 (the Act) and the common law test for testamentary capacity as set out in Banks v Goodfellow. It was therefore necessary to decide whether the law was as stated in Banks v Goodfellow or as stated in the Act.
2. 2) The provisions of the Act were inapt to describe a process of evaluating whether a past decision of a deceased person was one which he had capacity to take. The Act was about applying a structured decision making process which is in the best interests of a living person lacking capacity.
3. 3) There was nothing in the Act which explicitly or impliedly provided that one of its purposes was to govern or in any way affect the decision of a court, after his death, as to the validity of a will which had been executed by a testator himself.
4. 4) It was not right that there should be one consistent test for testamentary capacity. The two situations arose at different times and in different circumstances – one during a person’s lifetime, and one after the event. The nature of the decisions was also different: one was to decide whether the testator had capacity to make past dispositions and one was to decide whether a person has capacity with a view, if he does not, to make dispositions which are in his best interests.
5. 5) The threshold had to be kept fairly low, so as not to deprive elderly persons of the ability to make wills in their declining years.
6. 6) Applying Banks v Goodfellow to the facts, Mrs Walker had testamentary capacity at the requisite time. She had retained her mental powers until mid-November, as documented by her own emails and set out by witnesses of fact.
7. 7) There was nothing in the medical notes to suggest psychosis or confusion between early October and mid January, and the parties to the execution of the will showed that she had acted in a calm and collected rational way.
8. 8) The terms of the will were not irrational. Mr Badmin had been Mrs Walker’s partner for several years. They may have intended to marry, and he looked after her in an exemplary way. Irrationality was negated by the letter of wishes.
9. 9) Whilst Mrs Walker’s personality had been affected by her illness and her mental powers and energy had declined significantly by December, this was not so great as to impair her testamentary capacity.
10. 10) The approach of Professor Martin was based on a meticulous assessment of all the evidence available to him and was preferable to an approach more substantially based on a chronological assessment of the likely progress of mental decline.
11. 11) Mrs Walker understood the nature and effect of a will. She was well aware of the extent of her assets, and she appreciated the claims to which she had to give effect. To require testators to work out the best solution for difficulties in determining the possible consequences of a will would set far too high a standard of mental ability.
12. 12) She knew and approved the contents of the will. It was not likely that Mrs Walker would have signed her will without reading it and the Court found that she did. Mrs Walker understood what the provisions of her will were and she consciously decided to execute it.

JUDGMENT MR N STRAUSS QC Introduction [1] Elizabeth Jane Walker (Mrs Walker) was born on 25 March 1956. She was a landscape ecologist by profession and, by all accounts, a lively and determined person with strong views, especially on the environment. She was devoted to her daughters, the claimants in this case, and to her …

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