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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hoff & Ors v Atherton  EWCA Civ 1554 (19 November 2004)
Cite as:  EWCA Civ 1554
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr. Nicholas Warren Q.C.
B e f o r e :
LORD JUSTICE CHADWICK
MR. JUSTICE LINDSAY
| FRANCIS RAY HOFF
|- and -
|PAULINE MARY ATHERTON
Miss Elizabeth Weaver (instructed by Messrs Fladgate Fielder of London W1) for the Respondent
Hearing dates : 14 and 15 October 2004
Crown Copyright ©
Lord Justice Peter Gibson:
"I want to change my Will. I want to leave £50,000 to Francis, £25,000 to Maxine, £25,000 to Gloria, £5,000 to you and £2,000 to Asthma Research. Everything else is to go to Mary [Atherton] because she has looked after me ever since Stan [Krol] died. If Mary dies first then it is to go to her two children, Andrew and Rosemary, in equal shares. I want to appoint the same executors as before.
Would you please prepare a new Will for me to sign."
"As requested, I have provided for the residue of your estate to go to Mary Atherton, or if she dies before you, for the residue to go equally between her son and daughter, or if either of them die before you, for the half share of the residue to go equally among his or her children.
This is, of course, a very generous gift to Mary. I do not know the precise value of your assets, but the residue after payment of inheritance tax is likely to be substantially in excess of £500,000."
He then referred to the arrangement for the Will to be signed at home and to be witnessed and he enclosed instructions for the execution of the Will.
"It is essential . that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he might give effect ."
"If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will."
See also the similar statements in Stevens v Vancleve 4 Washington at p. 267 ("was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?") and in Harwood v Baker 4 Moo. PC 282 at p. 291 ("a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others"), those statements being cited with approval by Cockburn CJ at pp. 568 and 569 respectively. If there is evidence of actual understanding, then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity. Such evidence may relate to the execution of the Will but it may also relate to prior or subsequent events. It would be absurd for the law to insist in every case on proof of actual understanding at the time of execution.
"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision and emphasis, relative weight, minor qualification and nuance (as Renan said, la vιritι est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved."
Further, in the present case, the judge's conclusion to a large extent did turn on the credibility of, and the impression made by, the witnesses and the weight which he attached to particular pieces of evidence.
"She was clearly aware of what she had done and its effect and I needed to discuss it with her in order to apportion the interest on the account between her and Mary. She was perfectly normal and business like about [sic]."
The latter sentence is obviously incomplete, but the clear inference is that Mrs. Willoughby needed to discuss the apportionment with Mrs. Krol and did so, and that in that discussion Mrs. Krol was normal and business-like. Mrs. Willoughby was cross-examined only on whether it was Mrs. Krol or Mrs. Atherton who had told Mrs. Willoughby about the account going into joint names. It was not put to her that para. 20 of the witness statement was otherwise incorrect. The judge was entitled to give weight to that evidence. He was also entitled to give weight to Mrs. Willoughby's evidence that Mrs. Krol was perfectly able to discuss her finances, and to the absence after December 1993, when Mrs. Willoughby last met Mrs. Krol and when, the judge found, Mrs. Krol had testamentary capacity, of further incidents which raised new and different doubts about Mrs. Krol's capacity.
Knowledge and approval
Lord Justice Chadwick:
"There may be a shifting burden since where a will is duly executed and appears rational, the court will presume capacity. But once a real doubt is raised about capacity, the burden is . . . on the propounder of the will to establish capacity."
"242. Faced with that, I do not propose to decide the scale of Mrs Krol's dementia. Instead, I go straight to the question which needs to be answered, that is to say whether Mrs Krol had testamentary capacity on 24 June 1994. I have to decide on the facts whether Mrs Krol did or did not lack capacity whatever may have been her state of dementia and in doing so must apply the tests and burden of proof which I have already mentioned (see 10 to 15 above).
243 In my judgment, a number of the incidents which I have noted . . . are indicative of dementia which, on any view, was at least mild to moderate by June 1994, and possibly more severe. . . . These incidents, and the fact of the dementia in June 1994, raise in my mind a real doubt about Mrs Krol's testamentary capacity.
244. The burden of proof is therefore on Mrs Atherton to establish that capacity. In my judgment the totality of the evidence is sufficient to displace that doubt so as to satisfy me that, on a balance of probabilities, Mrs Krol had testamentary capacity."
". . . in the present case, it may be that Mrs Krol was capable of understanding the effects of the dispositions of the 1994 Will but only if those effects were explained to her, which on one view, they were not. Further, she may have needed to have her memory jogged in relation to the claims of beneficiaries other than Mrs Atherton; and, at least at the meeting when the will was witnessed, there was no such reminder."
"It might be suggested that although Mrs Krol was capable of appreciating (i) the effect of the 1994 Will on her previous dispositions under her prior will or (ii) the extent of the property which she was disposing of (sic), she was not capable of doing so without explanation (and none was given)."
But he held that there was nothing in the evidence which would justify a finding, in this case, that the testatrix was capable of understanding those matters, but only if they were explained to her. As he put it (ibid):
"It seems to me that the evidence is either sufficient to establish testamentary capacity or it is not: there is no room for a half-way house."
"In a case of doubtful testamentary capacity (as this one was), in order to establish capacity, the person propounding the will must show that the testator actually recalled, understood and appreciated (amongst other things) [a] the nature and extent of his property and, [b] if the new will presents a significant change from the last will, that significant change - and there was no such proof in this case. . . . [I]n finding that the deceased had testamentary capacity, without any evidence that in June 1994 the deceased herself actually recalled, understood and appreciated the nature and extent of her property or that the 1994 Will represented a significant change in financial terms to the dispositions made by her previous will, or had the same explained to her the Deputy Judge applied the wrong test in law."
Mr. Justice Lindsay: