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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Burns & Ors v Burns [2016] EWCA Civ 37 (28 January 2016) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2016/37.html Cite as: [2016] EWCA Civ 37 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
LIVERPOOL DISTRICT REGISTRY
District Judge Woodburn
1LV3003
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TREACY
and
LORD JUSTICE McCOMBE
____________________
STEVEN ANTHONY BURNS and LAURA OLIVIA GRAMAUSKAS (appointed by order to represent in these proceedings the estate of the late ANTHONY BURNS, deceased |
Appellants |
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- and - |
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COLIN LESLIE BURNS |
Respondent |
____________________
Andrew Clark (instructed by Canter Levin & Berg) for the Respondent
Hearing date: 1 December 2015
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
(B) Background Facts
"I would like to make a will leaving half my equity to Colin Leslie Burns and half to Anthony Burns my two sons.
I would like to revoke my Power of Attorney Anthony Burns. I would like to make Colin Leslie Burns my son Power of Attorney"
As the judge noted, no case was made that this letter had been forged or that it was procured by undue influence.
"Thanks for the letter everything OK. You can go ahead. It will be New Years now before we can come to sign. Let Colin know because he will be arranging it"
This letter is in normal upper case/lower case script. Again, no challenge is made as to the authenticity of this letter.
"26. ... The overall score achieved was 23 out of 33. When areas of information and orientation were scored, that achieved five out of twelve. When mental ability was assessed, that achieved eight out of eleven and writing her name was assessed and that achieved ten out of ten. She was able to give her name, her age, her date of birth, the colour of the British flag and the city she lived in, notwithstanding that she lived in the town of Ashton-in-Makerfield near Wigan. In summary, it was said that her mental health was moderately impaired with medium dependency, that she was in need of residential care or, if living at home, considerable support."
"Cognitive Function C ie Moderate impairment, medium dependency. People functioning at this level are likely to need residential care or considerable support and help if at home".
Under "Occupational Performance: Communication", the report stated,
"Looks for others to answer questions for her but quite able to speak for herself with encouragement. Also makes wishes and objections known".
With regard to "Presentation Assessment", there was this:
"Pleasant and co-operative during assessment. Some confabulation evident. Looked to sons to answer for her and to fill in the gaps. Appeared a little threatened by the assessment and at one point when her sons were correcting her."
"Some confabulation evident during assessment. Said she had bathed that morning but there was no evidence of this. Able to make some decisions but son said this was around her wants rather than her needs e.g. diet, activities.
Memory and concentration – patchy; judgment of own diet and health needs – quite poor; problem solving – poor. Able to understand verbal instructions during assessment but did not always follow them through. Preferred to do things her own way. Recognised objects and their uses. Did not wash her whole body when in the bath but accepted my active involvement in bathing. Son says she frequently uses toilet paper instead of incontinence pads despite him leaving them readily accessible."
"5. On 25th July 2005 the deceased attended to sign the engrossment of the draft Will previously sent to her. The Son, Mr. C.L. Burns, brought her to the Office but was not present when the contents of the engrossed Will were discussed with the deceased and when she signed. The Son, Mr. C.L. Burns, remained in the waiting room throughout the meeting.
6. The deceased whilst somewhat frail physically was in good mental health and fully understood the nature of the Will and its contents and that the signing of the new Will would revoke the earlier Will she had made.
7. When Mrs Burns signed the Will, only the witnesses were present."
The date "25th July 2005" appears in the note whereas the will is, of course, dated 26 July 2005.
"28. It is evidence from the evidence of Mr Walton that he had acted for Mr and Mrs Burns on a previous occasion in 1982 when the transfer of the property and the 1981 wills were undertaken. He had not seen the 2003 will which had been prepared by Alker Ball but he appeared to know of the acrimony between the two brothers. He knew...
[There is a break in the recording as the tapes are changed; some words are missing]
29. ... practising solicitor for many years. He practised in non-contentious areas of wills and trusts and domestic and commercial conveyancing. He did not produce any conveyancing file of documents. He did not produce any attendance notes. He was able to produce items of correspondence, albeit late, in respect of the letter from Mr Walton of 21st December 2004.
30. He did not know about the 'golden rule'. He appeared to be oblivious to the concept but was able to tell me that he, in 2005, met with Mrs Burns by herself and had insisted on doing so. He was able to tell me that he had a general discussion with her, passed the time of day. Spoke about the weather, asked how she was. These were not open questions. They were not questions designed to test the faculty of Mrs Burns. He said that he read the will to her and I accept that he did. He said that she understood what was read to her and agreed to sign up to the will, at which point he called in his receptionist; she joined them. Mrs Burns signed the document and the document was then able to be witnessed by both Mr Walton and the receptionist."
(C) Medical evidence
"3. Dementia is routinely diagnosed clinically on the basis of deficits (below previous intellectual and educational levels) in memory, language, understanding, and logical thought together with personality and behavioural changes. These deficits can be measured to a degree and where not actually measurable collateral history from family members can be obtained. The observed persistence or progression of these deficits over months is essential in avoiding misdiagnosis. The MMSE test is the standard test for those components which are measurable. It consists of 30 simple questions/tasks with a maximum score of 30. Scores below 24 provide significant evidence of cognitive impairment which together with collateral history from family members greatly aids diagnosis. Her score of 20/30 was achieved by dropping 10 points in the areas of orientation (minus 6), recall (minus 3 and the inability to copy a simple construction diagram (minus 1). Construction ability is a good test of executive function-the ability to analyse the plan and organise simple tasks such as washing and dressing oneself in the correct order.
4. The CAPE test is a test of information/orientation, mental ability and behavioural dependency/psychomotor deficit which is designed to assess the likely need for community or hospital care. It is mostly used in a General Practice setting. She scored 5/12 for information/orientation, 8/11 for mental ability and 10/10 for behavioural/psychomotor deficits.
OPINION
5. The results of both the MMSE and CAPE tests provide good evidence that she was poorly orientated as to where she was in time and place, had poor recall (short term memory) and that she had problems with analysis and simple task planning. Furthermore the deficits identified were persisting for a period of 3 months."
(D) The Judge's conclusions
"33. ... the testator must:
a) Understand that he is giving his property to one or more objects of his regard;"
b) Understand and recollect the extent of his property;
c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;
d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made."
"34. ... have prior knowledge of the testator, should consider whether the will should be witnessed by an approved medical practitioner, examine any earlier will, discuss proposed departures from any earlier will with the testator, ask non-leading questions and ensure that the reading through of the will is not 'an idle ceremony': Buckenham v Dickenson [2000] WTLR."
"36. I take account of all of the authorities which have been presented in the amply presented skeletons of both Mr Clarke and Mr Fryer-Spedding. My findings overall, therefore, are that I do rely on the contemporaneous documents. I rely less on the overall evidence of the witnesses. I take account of the assessments carried out by or through the Local Authority and as supported by Dr Phillips. The assessments are valuable as to Mrs Burns' mental state but those assessments were with a view to the provision of care packages and assessments of risk in daily life. The assessments did not apply solely and exclusively to the requisite knowledge for the making of a will, so I can take account of some aspects of those assessments but I can still look to see what occurred in November/December 2004 and also what may have occurred in July 2005, notwithstanding the failings of Mr Walton.
...
38. The objective evidence in late 2004 shows that she could still determine crucial parts of her life; that she did not want to go into a home, but agreed to various assessments; later agreeing to attending the day centre and, even later, agreeing to the washing of her hair at the day centre. She even agreed to increasing the attendances from two to three days. She was still, essentially, independent of mind on those issues important to her and I find thus.
39. I am satisfied that this was her position in November and December 2004. I am satisfied that the documents sent on 6th November 2004 and again on 14th December showing "44" (but that must have meant 2004) were written in her hand, with her knowledge and with her approval. I am satisfied that she understood what she was asking the solicitor to do. I treat Mrs Burns not as a lawyer but as a person who knew what she wanted and sought to rely on a lawyer to put it in such a way as might formalise matters. I am satisfied that the letter with the mistaken year date was no more than a minor error in the context of the whole of that letter. The minor error does not adversely influence the overall purport of the letter which was clear. The essentials in the whole of the letter were consistent with what was required in the initial letter of 6th November 2004 and was consistent with what was objectively known of Mrs Burns' property.
40. So far as I need to deal with July 2005, it is clear that by this stage, objectively, she was no worse in medical terms than she was at the February and May assessments. There was poor management of the meeting by Mr Walton in July 2005. As I say, he demonstrated little knowledge of the 'golden rule'. There is no file note of any import. Nothing of any value of the meeting has been produced by Mr Walton. He knew that this lady was elderly, but I am satisfied that he did see her alone. I am satisfied that he probably did have a conversation with Mrs Burns which was [inaudible] that was fairly neutral and which was not specifically designed to test her faculties but merely to establish good relationships in the meeting. I am, however, satisfied that, having regard to his experience as a solicitor, specialising in non-contentious legal practice, from the responses which might have been given, Mr Walton would probably have been alerted to one or any serious question on Mrs Burns' capacity.
41. Overall, I am satisfied that, objectively, Mrs Burns knew that the document she was signing on 26th July 2005 was the will that she requested in the latter part of 2004. I am satisfied that the document was read to her and I am satisfied that she was seen alone. I am satisfied on all of the evidence as at July 2005 Mrs Burns had the requisite testamentary capacity and also knew and approved the contents of this simple yet important document to her. She achieved what she had set out to do, which was an equal split of what was owned to be shared between her two sons. I therefore find for the claimant and dismiss the counterclaim."
(E) The grounds of appeal
"It is striking that he [the judge] should have (a) virtually disregarded the findings of the two MMSE tests, which it is clearly arguable are relevant to the issue of capacity (more so than the CAPE test), (b) ignored Dr Phillips' evidence, (c) ignored Mrs Ralph's evidence and (d) found that, despite Mr Walton's ignorance of the golden rule (and as a result his failure to follow it) he would have been aware of any lack of capacity of the deceased when the later will was executed. Arguably, taken with the judge's failure to direct himself that the burden of proof lay on the respondent as regards the 2005 will, all of this led him to a conclusion which cannot be supported, that Mrs Burns had testamentary capacity as at a relevant date whether July 2005 or, under Parker v Felgate (if that was how the judge proceeded) November 2004."
"... a will which had been drawn up in accordance with instructions given by a testator at a time when he had had full testamentary capacity but executed at a time when he no longer had such capacity would nevertheless be valid provided that the testator knew that the document he was signing conformed with the instructions he had given to the draftsman and approved it by executing it in those terms; that the need for testamentary capacity at the time of execution was not imported by the requirement that the testator know of and approve the contents of the will, which meant no more than that it had to be shown that the testator accepted its contents as representing his true intention; and that, accordingly, in the circumstances, the judge had been right to pronounce in favour of the will executed in 2001."
(F) The arguments and my own conclusions
"…the grand criterion by which to judge whether the mind is injured or destroyed is to ascertain the state of the memory, for without memory the mind cannot act."
"By the terms 'a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."
Secondly, there was the passage from Stevens v Vancleve (1822) 4 Washington 267:
"He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all time to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength or memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will."
Testamentary Capacity
Knowledge and Approval
"Generally, affirmative evidence of knowledge and approval of the contents of a will will be required in cases which 'excite suspicion' on the part of the court. But it has been said that whether circumstances are such as to arouse the suspicion of the court is a question of fact in each case, and should not be reduced to some tick-box exercise, it being important that the suspiciousness or otherwise of the features identified as arousing suspicion is judged in the light of the full background of the relationships between the relevant parties."
The degree of "suspicion" will vary with the circumstances. Further such "suspicion" will not always arise from suspicion of wrong doing on anyone's part. It is simply a question of circumstances giving rise to a suspicion that the testator may not have known of and approved the contents of his will. A paradigm case of suspicion is where a person who prepares a will takes a benefit under it. Matters which may be relevant to capacity or undue influence may give rise to a requirement of affirmative proof of knowledge and approval, but a plea of want and knowledge and approval is not to be used as a cloak to conceal what is in reality a charge of dishonesty or undue influence. I state these matters merely generally to summarise the types of suspicion examined in the decided cases.
"Traditionally, the courts have adopted a two stage approach to the evidence in a case where knowledge and approval is in issue. The first stage was to ask whether the circumstances were such as to 'excite suspicion' on the part of the court. If so, the burden was on the propounder of the will to establish that the testator knew and approved the contents of the will. If the circumstances did not 'excite suspicion', then the court presumed knowledge and approval in the case of a will which had been duly executed by a testator who had testamentary capacity. It was pointed out in Gill, that it may sometimes not be necessary, or even helpful, to adopt this two-stage approach. In a case, like the present, where the court has heard detailed evidence as to the character and state of mind and the wishes of the testator, it may be more appropriate to proceed directly to answer the ultimate question, which is whether the testator knew and approved the contents of the will, that is, whether the testator understood what he was doing and its effects: see at [21]-[22], [64]."
With that, I respectfully agree.
(G) Suggested Outcome
Lord Justice Treacy:
Lord Justice Longmore: