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England and Wales High Court (Chancery Division) Decisions
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Cite as:  EWHC 1140 (Ch)
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IN THE MATTER OF THE ESTATE OF LESLIE STOLKIN DECEASED (PROBATE)
7 Rolls Buildings, Fetter Lane,
London, EC4A 1NL
B e f o r e :
| PAULINE GREAVES
Defendant to Counterclaim
|- and -
|GARY MATTHEW STOLKIN
||Claimant in Additional Claim against Third Party
|- and -
|H. MONTLAKE & CO
||Third Party Defendant to Additional Claim
Mr Stephen Innes (instructed by Plexus Law) for the Third Party Defendant
Hearing dates: 28-29 January & 18-22 & 25-27 March 2013
Crown Copyright ©
Mr Justice Newey :
i) Want of testamentary capacity; and
ii) Want of knowledge and approval.
"Give Pauline £150,000 + car + £900 per month until she dies or cohabits or marries?"
"This is a codicil to the will of Leslie Stolkin leaving his estate to Gary Stolkin
The transfer of the estate is subject to the following conditions [:]
(1) Mrs P. Greaves can remain at the above property [i.e. 14a Forest Terrace, where Leslie and Mrs Greaves were both living] for as long as she likes paying only the normal bills
(2) The estate of Gary Stolkin will pay Mrs P. Greaves £1000 (one thousand pounds) each month for as long as she lives on the 1st of each month
(3) If Mrs Greaves does not wish to remain in the house she shall give 3 months notice whereupon she can purchase an alternative property to the value of £375,000 in the name of Gary Stolkin and condition (1) will apply
(4) Mrs Greaves will retain the car she is driving at the time of death
(5) In the event of cohabitation by Mrs Greaves other than with her son or daughter this codicil is extinguished".
"Leslie spoke to me a number of times with regard to potentially going to Switzerland where voluntary euthanasia was legal. I spoke to Leslie with regard to this matter in detail and through discussion he decided he wanted to have a Living Will so that he wasn't resuscitated if he did have another cardiac arrest. I also discussed with him that there was the potential that he would become unable to administer his own affairs and that he should have a Power of Attorney created for someone. He wished for both to be carried out and I said to him that I would ask Michael Bonehill to do so which he was in agreement with. When discussing the Power of Attorney with [Gary] he was quite adamant that it should not be himself or I who had the control but somebody independent, which at the time I found somewhat strange. Subsequently when talking to Leslie about what [Gary] said and I told him everything i.e. that [Gary] did not want me to have to be the person with the Power of Attorney he said 'bollocks' you are to be the person with the Power of Attorney".
"I do recall a conversation with [Mrs Greaves] where she told me she was very worried about what would happen if and when Leslie died, and whether she was going to be okay, and she said to me that she had a handwritten letter [which] specified what should be done to look after her, and she was worried whether it would be legally enforceable or binding or not, and she wanted me to have a look at it".
"Perhaps you would contact me at the telephone to discuss the above and agree the way forward. I could prepare a properly worded Codicil covering the position but would need Leslie's instruction in that regard, together with a copy of Leslie's present Will".
"My decision to get involved was based on the fact that I thought my father had the right to know that what he signed wasn't legally enforceable and I felt that it was a conversation I could have with him because [of] the style of relationship we had; he would be open with me and would tell me no".
"12. I told my father that [Mrs Greaves] had given me a copy of the 2007 Codicil and that Michael Bonehill confirmed that this was invalid. I told my father that if he wished for his intentions to be documented properly he would need to instruct a solicitor to put matters in order.
13. At first my father was somewhat indifferent to properly documenting the Codicil and I made it clear if he wanted it to be legally enforceable he should rectify the matter, and if he didn't want the Codicil to be enforceable he should just forget the matter. After discussing the matter further he said that he didn't think the annual payment should be paid as [Mrs Greaves'] daughter had money and could support her. I made the point that I thought he had an obligation to [Mrs Greaves] after so many years but it was up to him to decide. He made no similar objection relating to [Mrs Greaves] staying in the house and I recall discussing that the 2007 Codicil had a reference to a replacement property of value £375,000. I made the point that if that element of the Codicil was to be effective in say 15 years time the figure would not reflect a proper value for a replacement property which he understood and agreed that the value of the house at the relevant time was more applicable in terms of a replacement.
14. I recall my father telling me at first to do whatever I wanted but I told him I would not do anything without his specific instructions. I had no knowledge of his financial affairs but did not consider the annual payment proposed to be significant and certainly did not think it would be a critical or major issue.
15. After our discussion, my father said I should contact Michael Bonehill so that he could prepare a Codicil putting into effect what was in the 2007 Codicil but in proper legal terms and addressing the house value issue. I recall my father being very clear. I have no doubt that my father fully understood what we were discussing and the effect of executing a new Codicil at the time we discussed the matter. However due to his state of health I am not sure how much importance he attributed to the matter".
"didn't see it as an issue, particularly, whether it was legally enforceable or not, what he'd written in [the Purported Codicil]".
"Once we have an agreed form of codicil I need you to go and see [Leslie] in an out of visiting hours appointment like we did before and you need to take Brian [Humphreys] with you as the second witness. If Leslie decides he does not want to sign it then so be it but I do not want to be in a position where he tells [Mrs Greaves] he has instructed a new codicil and we have not dealt with it or we will end up being sued by her. He is being as diffident about signing this as he was about signing the power of attorney and living will, which he signed easily when we saw him. Please ring me with any queries but obviously bearing in mind his state of health this needs to be dealt with with some urgency".
"I do not have any authority to instruct you further on this matter and you will have to talk to Leslie to make 100% sure he is ok with the suggested new legally binding codicil (albeit he did say I could have one drafted)".
Towards the end of the email, Mark said:
"I don't want to get too involved in this matter as I am neither a beneficiary or paying the annuity and I don't want anyone to suggest I had any motive except to ensure what Leslie intends to happen does so and is legally enforceable".
"The nursing staff advised at approximately 3:40pm that [Leslie] was now available to see us. [Leslie] was still sitting in a chair next to his bed and was in good humour. I clarified with [Leslie] the purpose of the visit, said that we had received instruction from his Son Mark to knock the hand-written Codicil into shape from a commercial point of view. I re-iterated to [Leslie] that he was certainly under no pressure to sign the Codicil (either at that point or indeed at all). [Leslie] responded that he was quite happy to sign a new Codicil albeit he thought it was not strictly necessary on the basis that his boys (Gary and Mark) would provide for and take care of [Mrs Greaves]. I mentioned to [Leslie] that legislation existed that at least potentially allowed [Mrs Greaves] to bring a claim against the Estate.
I then went through the aspects of the Codicil, paragraph by paragraph and [Leslie] approved the Codicil as prepared. [Leslie] was perfectly lucid throughout and provided meaningful responses. By way of example, as to the motor vehicle [Leslie] said it was a Mercedes Benz motor vehicle and that motor vehicle was unlikely to be replaced. As to the aspect of the house, [Leslie] said it was fine that we had provided for replacement on two occasions but insisted that [Mrs Greaves] would not wish to move out of the house. [Leslie] clarified that his Will left everything to his Son Gary and that his Son Gary was appointed as the Executor of his Will.
[Leslie] approved the Codicil but said the only difficulty was that he was unable to sign. I said to [Leslie] that he could sign by the making of a mark but he said he would give signing a try. [Leslie] then signed the Codicil in what I regard as a perfectly acceptable manner. The Codicil was then witnessed by myself and Brian Humphreys who was present throughout.
After a short chat, [Leslie] excused ourselves having asked that I send a copy of the Codicil to his home and a further copy to his Son Gary.
Leaving the hospital at approximately 4pm and arriving back at the office at approximately 5pm".
i) Mrs Greaves to have "such motor car, registered in [Leslie's] name, as she is using as her personal motor car at [Leslie's] death";
ii) Mrs Greaves to have an annuity of £12,000 per annum, payable by monthly instalments. The annuity was to be paid by Gary or, if he did not accept the obligation, through the purchase of an annuity by Leslie's estate. The £12,000 figure was to be increased in line with the retail prices index for the period between August 2009 and the month of Leslie's death (in the event, September 2009);
iii) Mrs Greaves to have the right to reside at 14a Forest Terrace. She was also to be able to request replacement dwellings to be purchased out of previous proceeds of sale on no more than two occasions. If Mrs Greaves married or cohabited with anyone other than her son or daughter, her rights were to cease. They were anyway to come to an end on her death, at which point the house would be held on trust for Gary absolutely;
iv) Mrs Greaves to pay all the outgoings in respect of 14a Forest Terrace and keep it in good repair and insured.
"Please don't say that I told you as if Dad wishes to talk about it he will (also Gary I believe does not know, and that is for dad to tell him if he wishes to), but he has signed a proper codicil to his Will which I had prepared by lawyers that ensures you are protected properly in terms of his wishes".
"On the day Paul Renda and the administrator from Montlakes (ie one lawyer) visited Dad, he wasn't exactly on best form. I said 'who has been to visit you today?'. Dad talked about various people who'd been to see him and then said 'and two guys from Montlake's'. I said 'who from Montlake's?'. Dad said 'I don't know, two guys'. I said 'what did they want?'. Dad said, 'Mark thinks I should do a Codicil for the Will. I think the letter I wrote you is fine but Mark thinks I need a Codicil'. I pretended I knew all about it and moved the conversation on because I didn't want to get into a discussion with Dad about his Will and I didn't want him to think I was in any way put out by this".
"Dad wasn't so good today. He was confused about the feeding valve and had got it back into his head that it would enable him to eat food orally. Completely irrational and also said that he would discharge himself and go home and that he could buy a ventilator for [Mrs Greaves] to operate. I've made an appointment for tomorrow with Nick, the doctor, so he can talk to Dad and me at the same time and clarify the position on various things for Dad. Dad mentioned that two lawyers came to see him today with a codicil for his will and that you had told him that he needed to do it. Not really bothered by this but curious to know why you chose not to share this with me and how he came to have two lawyers there without a next of kin".
"Dad asked me to let [Mrs Greaves] stay in the house and give her £1,000 a month all of which I would have done anyway but it is typical of Dad to scribble it on a piece of paper rather than have it done properly".
In a similar vein, Gary told Mark on 7 August that he was not objecting to the Disputed Codicil. On 10 August, he wrote to Mark:
"1. If you tell me that Dad asked you to get his Codicil sorted out and you executed his wishes to the best of your ability, I believe you.
2. Not telling me about the contents of the Codicil which are more onerous than the letter (which I would have honoured) and include, so far as I can tell, removing me as the sole Trustee before the Codicil was executed is inexcusable".
i) It is apparent from the email Mark sent to Mrs Greaves at 8.33 pm on 5 August that he had not yet told his brother about the Disputed Codicil and was not intending to;
ii) The chances are that Mark would have been in bed by about 9.30 pm British time (which would have been later in South Africa);
iii) There is no reference to any telephone conversation in the emails Gary and Mark exchanged between 12.27 am and 12.43 pm on 6 August;
iv) Mark had no recollection of speaking to Gary during the evening of 5 August; and
v) Gary himself said on 10 August that his father had told him that Mark thought that he should do a "codicil". He also referred to his father having been brought a "codicil" in the email he sent his brother at 12.27 am on 6 August.
"The evidence of the experts in the present case shows that affective disorder such as depression is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit".
"(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity".
It was not, however, suggested by any counsel that this provision adds anything of importance to the common law authorities for the purposes of the present case.
"(i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less".
The present case
i) Leslie's "mental and physical health at the time made him unable to appreciate the extent of his estate";
ii) Leslie "lacked mental capacity or energy to evaluate whether or not his resources were sufficient to allow the terms of the [Disputed] Codicil to be fully implemented";
iii) Leslie "was unable to comprehend the details and effects of the dispositions because of his cognitive impairment, depression, lack of mental energy and inability to concentrate".
"I consider it very likely that a period of delirium was caused by the urinary tract infection which became manifest on 18/7/09 but was likely to have been developing for a short period prior to that date. The period of delirium lasted for about four weeks, continuing well beyond 5/8/09, which is fully consistent with the Pseudomonas urinary tract infection having been responsible".
In contrast, Dr Barker reads the evidence as indicating that Leslie had recovered from the urinary tract infection by 5 August.
i) Infarcts and atrophy. The medical evidence indicates that Leslie had had one or more strokes in the past and moderate brain atrophy, probably attributable at least in part to alcohol-related brain damage. There is, accordingly, evidence of long-term permanent brain damage. On the other hand, Dr Barker explained that strokes are extremely common in apparently healthy older people and are not necessarily that significant of themselves;
ii) Frontal lobe damage. It is common ground that there is evidence that Leslie had sustained frontal lobe damage. However, Dr Barker said that he saw no reason to think that there was any more frontal lobe damage than could be expected from Leslie's motor neurone disease, which, he explained, primarily affects the motor neurones to do with muscular control rather than those to do with thinking. It is also noteworthy that Professor Hodkinson did not attach importance to the frontal lobe damage in his report;
iii) Mood and depression. As mentioned earlier (paragraph 28), Leslie had spoken of going to Switzerland to end his life. Further, hospital notes from mid-July 2009 refer to Leslie "feeling low" and not being bothered about eating and drinking. Professor Hodkinson inferred that Leslie was probably clinically depressed, which, he said, "would be unsurprising as depression is very common in the severely ill elderly". On the other hand, Dr Barker said:"If the suggestion is that [Leslie] was so profoundly depressed that he was lacking energy, I just did not see evidence of that obviously in the evidence that I saw, and I didn't see evidence of a man who was so sort of moribund that he could not raise the mental energy for normal interaction";
iv) Delirium caused by the urinary tract infection. In this regard, Mr Child relied in part on evidence given by Gary. As, however, discussed below (paragraph 58), the evidence given by the witnesses of fact, taken as a whole, does not support the proposition that Leslie was seriously confused on 5 August 2009. Turning to medical evidence, in-patient clinical notes for 20, 21, 22 and 23 July all refer to overnight confusion, and a note made at 7.45 pm on 23 July states that Leslie had "had intermittent confusion today". At 7 am on 26 July, a nurse recorded that Leslie had been "Alert throughout the night" and remained "extremely disorientated to person/time/place", and other notes for that day speak of Leslie "remain[ing] confused @ times". On 27 July a nurse wrote "confusion continues", at 6.15 am on 28 July Leslie was recorded as having been "slightly disorientated on 1 occasion", and a note from 7.45 am on 29 July talks of Leslie being "pleasantly confused" and "Disorientated with time and place". No similar comments are to be found in the notes from 30 July, and on 31 July Leslie was said to be "Alert and orientated", but on 1 August a nurse considered Leslie "disorientated to person/time & place". On 2, 3, 4 and 5 August, it was recorded that Leslie had slept "well" (or, in the case of 4 August, "fairly") overnight, and notes from a ward round on 3 August state that Leslie was "feeling brighter" and "less confused at night". On 5 August Leslie was "out in the chair for most of the day", and on 6 August he "sat out in the chair" and was "alert" and "compliant". An Assessment of Nursing Needs form faxed on 6 August refers to Leslie displaying "signs of disorientation to person, time & place requiring prompting & reassurance especially at night" and having a "High level of cognitive impairment", but on 7 August he was described as "fully coherent" during an assessment, albeit subject to "intermittent periods of disorientation/confusion". On 10 August Leslie scored only six out of ten on the orientation questions (22 out of 28 overall) in a Mini Mental State Examination, and on 22 August he was "slightly disorientated" after getting out of bed during the night. On 11 August, however, an occupational therapist had found Leslie "orientated to place and person", "an accurate historian" and "aware that he is going to have to go to a 24 hr care environment prior to [discharge] home". As mentioned above (paragraph 56), Professor Hodkinson inferred from the evidence that the delirium caused by Leslie's urinary tract infection had continued well beyond 5 August. On balance, however, I agree with Dr Barker that the evidence indicates that Leslie was recovering from the infection by 5 August. In this connection, I accept Dr Barker's evidence that manuscript notes are more likely to be reliable than the tick box exercise in the Assessment of Nursing Needs form. It is noteworthy, too, that Professor Hodkinson and Dr Barker agreed that the evidence suggests that Leslie's confusion tended to be more pronounced at night. Dr Barker also explained that anxiety and fatigue are often worse towards the end of the day. In contrast, the Disputed Codicil was executed in the middle of the afternoon;
v) Lorazepam. While in St Thomas' Hospital, Leslie was prescribed Lorazepam, a sedative. On 5 August 2009, Leslie was given the drug at 8 am, 2 pm and 10 pm. Dr Barker explained that Lorazepam is capable of affecting a patient's ability to concentrate, but also said that it does not necessarily do so. Further, I do not read Professor Hodkinson's report as attaching any particular importance to the Lorazepam;
vi) "Indifference" and "diffidence". In this connection, Mr Child relied, for example, on Mark's evidence as to his father being "indifferent" on 1 August (paragraphs 33 and 34 above), on evidence from Mark that his father "would not have taken the lead and instructed lawyers himself", on Mr Bonehill's reference to Leslie being "diffident" about signing the Disputed Codicil (paragraph 35 above) and on the fact that the attendance note for 5 August said that Leslie "was quite happy to sign a new Codicil albeit he thought it was not strictly necessary on the basis that his boys (Gary and Mark) would provide for and take care of [Mrs Greaves]" (paragraph 37 above). This last quotation, however, suggests that any "indifference" or "diffidence" could be attributed to Leslie trusting his sons to look after Mrs Greaves rather than any lack of mental capacity;
vii) Evidence of Leslie's lack of understanding. In this respect, Mr Child made three points: first, that Leslie told Mr Renda that his will left everything to Gary and appointed Gary as executor when it in fact provided for Mark to be the beneficiary and executor in the event of Gary predeceasing Leslie; secondly, that, when Mr Renda and Mr Humphreys visited him on 5 August 2009, Leslie did not appear to realise that the Mercedes car Mrs Greaves drove was registered in her name rather than his; and, thirdly, that his estate was not large enough to allow the Disputed Codicil to be carried out according to its terms. As to the first of these points, Gary was the sole beneficiary and executor under the Will unless he died before Leslie, and there was no likelihood of that; it is therefore unsurprising that Leslie spoke in terms of his will leaving everything to Gary and his being appointed as executor. With regard to the second point, what Leslie told Mr Renda about the Mercedes car may indicate that he had misremembered in whose name it was registered, but it does not of itself cast any substantial doubt on Leslie's capacity. So far as the third point is concerned, it is true that, if Leslie's estate comprises nothing more than the assets mentioned in the first two sentences of paragraph 46 above, the Disputed Codicil could not be carried out according to its terms. I do not think, however, that that fact enables me to draw any inference as to Leslie's testamentary capacity. It would be at least as legitimate to infer that Leslie knew himself to be owed sizeable sums (in particular, by Gary) and, hence, that his estate would be substantial enough for the Disputed Codicil to be implemented.
"I have no doubt that Leslie had the necessary testamentary capacity to execute a valid Codicil when Brian Humphreys and I attended on him on 5 August 2009. I met Leslie on 19 July 2009 with Michael Bonehill to witness the LPAs and Advance Decision. I would have noted if Leslie was confused or did not understand the reason for our visit or the contents and effect of the Codicil. I am a very experienced Probate and Wills practitioner and I attended numerous Law Society approved Private Client seminars when in England".
Mr Renda explained in cross-examination that he had asked questions that were "probing" and that he "believed would allow him to determine the three aspects [of the Banks v Goodfellow test]". For his part, Mr Humphreys said that there were "meaningful communications [with Leslie] throughout" and that nothing during the visit indicated that Leslie did not understand what was going on. Mr Krieger, an obviously truthful and careful witness, thought Leslie "completely compos mentis" on the occasions he visited him in St Thomas' Hospital, which probably included 5 August. He also said that Leslie had told him during a hospital visit that he had "got things down in writing to make sure that [Mrs Greaves] would be looked after". Since the visit in question is unlikely to have happened until after 5 August (only about a week earlier, on 29 July, Gary had expressed his intention to contact Mr Krieger, among others, to tell them that Leslie would be happy to see visitors), that evidence tends to confirm that Leslie had understood what he was doing when he executed the Disputed Codicil.
"My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should 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 accepts that the testatrix understood that she was making a will and also understood the extent of her property".
"I asked the nurse whether there had been any progress in fixing a date for my father to have the feeding tube removed from his nose and the stomach peg fitted. My father asked when he would be able to start eating and we had one of those conversations that demonstrated that he had not grasped that he would not be able to take food orally, despite having had this explained to him several times before".
"Yes Leslie was a bit confused yesterday I said he must have another word with the Dr before Friday".
On 5 August itself, a doctor recorded in Leslie's hospital notes:
"[Patient] seemed under impression PEG would allow [eating and drinking] but explained it as long term [alternative] to [nasogastric tube], and that unfortunately swallow will still be weak".
i) It is not in the least improbable that Leslie should have wished to provide for Mrs Greaves in the way the Disputed Codicil does. The Disputed Codicil corresponds closely to the Purported Codicil, and Leslie had indicated since 2001 that he wished Mrs Greaves to be supported (see paragraph 11 above). Further, whatever tensions there may at times have been in the relationship between Leslie and Mr Greaves, they had lived together for some 12 years and Leslie told Mr Krieger while in St Thomas' Hospital that Mrs Greaves had been wonderful to him (paragraph 21 above). Leslie was generous enough to give Mrs Kennedy a house even after the two had separated (paragraph 4 above);
ii) There is considerable force in Dr Barker's observation that:"the decision to complete the codicil in question was a relatively easy one requiring a relatively lower level of capacity than others I have seen. [Leslie] had to recognise and appreciate that the legal document drawn up was a legal transformation of his previously documented wishes, which, with minor variations, he had strongly and consistently held";
iii) There is also sense in this comment that Dr Barker made in cross-examination:"There are not many people who are in hospital and end up being prescribed whisky. My guess is that's because he was so demanding, and actually quite a difficult character, rather than his medical need for whisky. So my guess is he was quite capable of making his opinions known, and he was apparently an extremely effective businessman at one point, and you tend not to be that unless you have quite a strong will and determinism and an ability to go through other people's opinion";
iv) As late as 17 September 2009, just a week before Leslie's death, a psychiatric liaison practitioner concluded that Leslie "retains the capacity to make an (unwise) informed decision to take his discharge against medical advice". He wrote:"Overall, [Leslie] shows that he retains information and weighs up the pros & cons of being at home without the recommended support . There is no evidence of cognitive impairment mood disorder or psychosis".
Knowledge and approval
"Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in In re Crerar (unreported) but see (1956) 106 LJ 694, 695, cited and followed by Latey J in In re Morris, decd  P 62, 78, namely that the court should
'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.'"
"Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed".
"In some cases where the testator employs an expert draftsman to provide the appropriate wording to give effect in law to the testator's intentions, the testator has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning and in such a case he adopts it and knowledge and approval is imputed to him".
The present case
"concentrated on whether he wanted [Mrs Greaves] to be able to remain in the house, whether he wanted her to sell the house and buy an alternative property and whether he wanted to have the payment made to her or not".
Leslie was thus aware of what Mark called the "commercial terms" that would be contained in the Disputed Codicil before it was brought to the hospital.
"based on my experience clients can absorb the information better when it is broken down for them rather than being presented and supposedly reading through the document which inevitably contains much legalese".
Mr Renda's perception at the time was that:
"[Leslie] was lucid, he was clear, there was no confusion and he understood matters, and he wanted to execute the codicil".