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Cite as: [2013] EWCA Civ 74

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Neutral Citation Number: [2013] EWCA Civ 74
Case No: B2/2011/3322

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
HHJ WALDEN-SMITH QC
0CL10537

Royal Courts of Justice
Strand, London, WC2A 2LL
19/02/2013

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE PATTEN
and
SIR SCOTT BAKER

____________________

Between:
JULIA HAWES
Appellant
- and -

ELIZABETH BURGESS & Anor
Respondent

____________________

MR PIERS HILL (instructed by Geoffrey Leaver Solicitors LLP) for the Appellant
MS PENELOPE REED QC (instructed by Withers LLP) for the Respondents

Hearing date : 31st October 2012

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Mummery:

    Introductory

  1. The appeal in this probate action is against part of an order made on 13 January 2012 by HHJ Walden-Smith QC in the Central London County Court. She pronounced against the validity of the will of the late Daphne Burgess (the Deceased) dated 12 January 2007 (the 2007 Will) on the grounds of both (a) lack of testamentary capacity and (b) want of knowledge and approval, and for the validity of her earlier will dated 23 September 1996 (the 1996 Will).
  2. The main difference between the two wills is that under the 1996 Will the Deceased's residuary estate was divided three ways equally amongst her children - her only son, Peter, and her two daughters, Libby and Julia; whereas under the 2007 Will it was divided equally between the two daughters. All three of them were specific legatees of personal items under the 2007 Will, which was, on instructions given at a meeting arranged by her daughter Julia, drafted by an independent solicitor, who was experienced in drafting wills, and was subsequently explained by him to the Deceased before she executed the will in his firm's offices three weeks later.
  3. Peter, a successful business man who sold his recruitment business for a substantial sum in 2006, is considerably better off financially than either of his sisters. He and his sister Libby, neither of whom were involved in the arrangements for making the 2007 Will and were not told about it at the time either by their sister Julia or by the Deceased, dispute its validity. Julia, who was involved in making the appointments with the solicitor and in giving instructions for the 2007 Will, seeks to uphold it.
  4. The judge found that Julia was "the controlling force in the instructions given for the drafting of the 2007 Will" and held her liable to pay back to the estate certain sums of money received by her (or members of her family) from the Deceased between 2007, soon after the Will was made, and May 2009, when the Deceased died. Julia has not appealed from that part of the judge's order.
  5. The cost of contesting the 2007 Will is a calamity for this family in every way. By the standards of a present day probate case the Deceased's estate is modest, less than 200,000. We were told in general terms that efforts to achieve a family compromise came to nothing, though, of course, details of the "without prejudice" negotiations have not been disclosed. The failed negotiations mean that the estate will become, if it has not already become, worthless. A 6 day trial with 26 witnesses does not come cheap. Now there is this appeal. It may be recalled that the foggy family law suit in Jarndyce v. Jarndyce dragged on before the Lord Chancellor for generations until nothing was left for the parties to take. The Civil Procedure Rules and the efforts of legal advisers have not dissuaded these parties from following a course leading to the dissipation of the whole of the Deceased's estate in costs and legal fees, which has happened faster than under the dilatory procedures of the unreformed Court of Chancery in the Jarndyce days.
  6. Even worse, as the judge commented, are the enduring human consequences for a once "close knit and loving family":-
  7. "9. The rift in the family is likely to be beyond repair. It is also likely that any assets in the estate will have been eaten up by this litigation. Both of these matters are the unfortunate consequences of this litigation. Neither are matters that have any bearing on my decision making."
  8. The case continues on appeal, for which Lewison LJ granted permission on 14 February 2012. There is no challenge to the judge's findings of primary fact, which would have been practically impossible in the face of the thoroughness with which the judgment below laid out and scrutinised the evidence. The decision under appeal is criticised for not applying the law correctly in two respects to the facts found.
  9. The first ground is that the facts found do not support the judge's conclusion that, at the time of giving the instructions for the 2007 Will and at the time of its execution, the Deceased lacked the necessary degree of understanding to comprehend and appreciate the claims to which she ought to give effect. The judge concluded that the Deceased was able to understand sufficiently (a) the general nature and consequences of making the 2007 Will and (b) the extent of her estate. It is submitted that the judge was wrong to hold that that degree of understanding did not extend, at the time of the 2007 Will, to the claims to which, it was contended, she ought to have given effect in favour of her son Peter, by giving him a share of her residuary estate, as she had done in the 1996 Will.
  10. The second ground is that the judge was wrong to conclude that the Deceased did not know and approve the contents of the 2007 Will without giving reasons for, or stating any evidential basis for, displacing the strong presumption of validity in favour of a will executed at the offices of an independent and experienced solicitor after he had read out the document drafted by him on instructions and explained its contents to her.
  11. Relevant law

  12. The judge cited and discussed the applicable law. In the case of both testamentary capacity and want of knowledge and approval, the law places the burden of proving validity on Julia, as the person seeking to propound the 2007 Will.
  13. As for testamentary capacity, the law is as laid down by Cockburn CJ in Banks v. Goodfellow (1869-70) LR 5 QB 549 at 565 in three limbs, so that the relevant questions to ask in this case about the Deceased's mental capacity to understand what she was doing when she made the 2007 Will are-
  14. i) Did the Deceased understand the nature of the act of making the 2007 Will and its effects? The judge said "Yes."

    ii) Did the Deceased understand the extent of the property of which she was disposing? The judge said "Yes."

    iii) Was the Deceased able to comprehend and appreciate the claims to which she ought to give effect? The judge said "No." The judge added a "Yes" answer to the sub-question whether a disorder of the mind of the Deceased influenced her disposals of property in the 2007 Will, so that they were not what she would have done, absent that disorder.

  15. As for want of knowledge and approval of the contents of the 2007 Will, the scope of the inquiry indicated by a long line of authorities gives rise to other questions distinct from lack of mental capacity to make the will: Wintle v. Nye [1959] 1 WLR 284; Fuller v. Strum [2001] 1 WLR 1097; Gill v. Woodall [2011] WTLR 251. The relevant questions to ask in this case are-
  16. i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said "Yes."

    ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said "No."

  17. In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. 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.
  18. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.
  19. Background facts

    Outline

  20. The Deceased died on 30 May 2009 at the age of 80. She and her husband, who died in 1993, had three children: the appellant, Julia, who seeks to uphold the 2007 Will, and the respondents, Libby and Peter, who have successfully challenged its validity. The judge described the Deceased as "a much loved mother and grandmother" assisted and supported by all three of her children, whom she loved very much and in equal measure. She was a much liked and gentle person, though with a streak of stubbornness and keen on retaining her independence. Her children, who were, as the judge found, once "a close knit and loving family", are now embroiled in this distressing dispute, which arises from the fact that, with Julia's help, the Deceased went to a solicitor to draft and execute the 2007 Will which cut out Peter from a third share of her residuary estate without his knowledge.
  21. In order to explain and assess the attack on the judgment below, the basic facts, as found by the judge along with a lot of other facts of lesser importance, can be conveniently set out by reference to three successive periods: first, the period prior to the making of the will, concentrating on events in 2006 down to December; secondly, the period covered by the making of the will in December 2006 and January 2007; and thirdly, the events subsequent to the 2007 Will down to the death of the Deceased.
  22. A. Pre-2007 Will: down to December 2006

  23. The judge made findings about family relationships and particular events in this period.
  24. First, failing health. The Deceased was on medication for high blood pressure, hypertension, arthritis, and type II diabetes. She became more frail with age. Her health deteriorated. She suffered from dizzy spells, increased vagueness, memory impairment, problems in recognising people she had known well for years (prosopagnosia), and double incontinence leading to neglect of personal hygiene. She was forgetful about taking her medication when she was supposed to. She had mini-strokes from the summer of 2006 onwards. The judge referred to "a significant loss of capacity" as evidenced by what was said in e-mails that passed between Peter and Julia in the latter half of 2006. The Deceased's decline culminated in a fall on 29 December 2006 mentioned under the next heading.
  25. The judge accepted expert testimony given by Professor Jacoby that there was strong evidence that the Deceased suffered from cerebrovascular disease which, in the light of evidence given by other witnesses and accepted by the judge, amounted to dementia of modest severity.
  26. Peter and the Deceased were very close. He helped her with her finances by taking over the payment of the majority of the household bills until she moved at the end of January or early February 2007. In 2006 Peter bought a bungalow at 8 Bridle Close, Bradville, Milton Keynes, which was to remain in his name, but subject to a proposed lease to the Deceased which would give her security of tenure, if, for instance, he died before she did. Peter sent the lease to the Deceased in about April 2007.
  27. In the summer of 2006 Julia and Peter fell out for a number of reasons, mainly connected with the purchase of the bungalow and related arrangements affecting the Deceased. It was agreed between Peter and the Deceased that she would herself pay for a new kitchen and bathroom which she wanted installed to suit her in his bungalow. She paid 21,000 towards the cost of improvements of the kind that she wanted to be made to the bungalow. She wanted to pay for them.
  28. B. The making of the 2007 Will: December 2006-January 2007

  29. In the Summer of 2006 the Deceased told Julia that she wished to change her will to include directions for her burial and for the involvement of her evangelical Pastor at her funeral service.
  30. In December 2006 Julia made an appointment for the Deceased to visit the office of Messrs Woodfines, a local firm of solicitors, about the cost of selling the Deceased's house at 8 Abbey Way, Milton Keynes preparatory to moving into the bungalow and also about making a new will. The judge heard evidence that the partner seen by her and Julia, Mr John Webster, had never met the Deceased before, had no independent recollection of the meetings on 20 December 2006 to take instructions, or on 12 January 2007 for the execution of the will.
  31. The judge found that Mr Webster understood the instructions given on 20 December, which he had accurately recorded in a manuscript Attendance Note. He dictated the note and had it typed. The Judge found that Mr Webster had allowed Julia to remain in the room with the Deceased at both meetings and that he had received information from her during the meetings. Mr Webster was an experienced solicitor in will matters, having been responsible for the preparation of about 50 wills a year.
  32. Although Mr Webster's typed Attendance Note stated that the Deceased was "entirely compos mentis" and that he had no hesitation in taking instructions from her, he had not carried out any formal assessment of the Deceased's mental capacity and had little opportunity to do so. He agreed that he could not judge her capacity as well with someone else in the room with her.
  33. The Attendance Note referred to the Deceased giving at least 40,000 to Peter in return for living in the bungalow and for improvements to that property. The Judge found that Julia had supplied that incorrect figure to Mr Webster. She had also given him the wrong impression that the Deceased would be living with Peter at his home rather than in the bungalow. The judge rejected Julia's evidence that she was not present at that part of the meeting in Mr Webster's office.
  34. On 29 December 2006 the Deceased had a fall in Peter's kitchen while staying with him in London and was admitted to the A & E at the Whittington Hospital where she was assessed, bandaged for a head wound and discharged. She never lost consciousness.
  35. From 5 January till early February the Deceased stayed with Julia and her family at Haversham, Milton Keynes. She saw her own GP who concluded that her dizziness was probably due to one of her medicines being too strong causing a sudden drop in blood pressure when she stood up.
  36. On 12 January 2007 the 2007 Will was executed in the Kempston offices of Woodfines. Mr Webster had not sent the draft of the will to the Deceased for her to read in advance. The judge found that at the second meeting, in the presence of Julia, Mr Webster had read the draft will over to the Deceased and explained the meaning of it.
  37. Two of the partners in Woodfines were appointed executors of the 2007 Will, which contained a clause 22 stating that limited provision was being made for Peter because of "the substantial lifetime provision I have made or will shortly be making in his favour." The judge found that not only was the clause wrongly numbered but the statement in it about lifetime provision was inaccurate, as was the statement earlier in the will that Peter's middle name was "Giles" rather than "Charles", a mistake that was only spotted after the will was executed and was then brought to Mr Webster's attention by Julia.
  38. The judge rejected Julia's evidence that she neither heard that clause when it was read out nor read it afterwards. The clause was relevant to the question why the Deceased would cut Peter out of the residuary gift in the 2007 Will and why he was not told about that by the Deceased at the time. The judge did not accept Julia's evidence that shortly before the first attendance at Woodfines the Deceased told her that it was her intention not to leave any of her estate to her son, because he was wealthy and did not need the money.
  39. C. Post-2007 Will: February 2007 to death on 30 May 2009

  40. In February 2007 the Deceased moved into the bungalow where, save for hospital admissions, she remained living on her own until her death in May 2009.
  41. The Deceased's house at 8 Abbey Way Milton Keynes was sold in April 2007 for 162,007.45 and the proceeds were paid into the Deceased's bank account with Barclays Bank. No questions were raised at the time about the Deceased's mental capacity to transfer her house or to operate her bank account into which the proceeds were paid.
  42. Peter remained close to the Deceased, who discussed matters with him. Although she did not tell him about the 2007 Will or how he was cut out from residue, she did tell him about writing cheques for 1,000 as presents to each of her daughters in May 2007, though she did not write out any cheque payable to him. She did not make the gifts behind his back. She wanted to treat her children equally. The judge rejected Julia's evidence that the Deceased had made her promise not to disclose the contents of the 2007 Will while she was alive.
  43. The decline in the Deceased's health continued. On 23 November 2007 she had a stroke. In August 2008 she was admitted to hospital for 3 weeks with liver disease. In March 2009 she was admitted to the Windsor Intermediate Care Unit. In April she was transferred to hospital where she died at the end of May without returning home.
  44. Judgment

  45. At the trial 15 witnesses gave evidence for the respondents, including expert evidence from Professor Jacoby, Emeritus Professor of Old Age Psychiatry in the University of Oxford. 11 witnesses gave evidence on behalf of the claimant. They included Mr Webster.
  46. Testamentary capacity

  47. As for lack of mental capacity, the judge found that, although email correspondence from February 2007 showed that the Deceased had not lost her ability to make some decisions [66], there was a decline in her mental well-being [74] and major deterioration in her ability to understand and to have capacity to deal with her own property for the purposes of making a will from the summer of 2006: see [73]. The judge made the following comments on the evidence of Mr Webster on mental capacity:-.
  48. "117. In the typewritten note, which I find to have been dictated by Mr Webster, he said that she was "entirely compos mentis" and that he had no hesitation in taking instructions from her. He said that this would have been his opinion based upon her instructions and conduct and he accepted that he had no medical qualifications and that it can be difficult to assess capacity when someone else is present. He said that his assessment was not based on any specific questions. He said that he would obtain medical evidence if there was any uncertainty, he did not make any such inquiries in this matter. I have consequently come to the conclusion that Julia Hawes was the driving force behind the instructions given for the drafting of the 2007 Will. It was at a time when she had fallen out with her brother (which, at the time, appeared to be a permanent rift), she was angry with him and she felt he was sufficiently wealthy not to need (or maybe even deserve) part of his mother's inheritance. It is because of this that the reason for Peter being cut out of the 2007 [Will] is in my judgment confused: was it because of his wealth, was it because Daphne was cross with him; or was it because (as is set out in the 2007 Will) because she has already provided for him during her lifetime. None of these explanations makes sense."
  49. In [119] the judge described how the 2007 Will was based on a template to which the unusual clause 22 was added; how a draft of the will was not sent to the Deceased for checking and approval before execution; how on 12 January Mr Webster would have gone through the draft clause by clause reading it verbatim and then explaining what it meant to see if she was happy with it; how Mr Webster could not explain his failure to spot the error in the numbering of the will and how the error in Peter's middle name was only noticed by Julia after execution and who telephoned the solicitors about it on 18 January 2007.
  50. "120. In all the circumstances, I must come to the conclusion that Julia Hawes was in fact the controlling force in the instructions given for the drafting of the Will. It was Julia Hawes who informed Mr Webster that her mother was going to be living with Peter Burgess (which was not correct) and that she had or was going to pay 40,000 to Peter Burgess in order to carry out improvements and for the cost of living with him (this again was untrue). It does not appear that Mr Webster was given any information about the sale of the former home and that the proceeds of sale had gone to Daphne Burgess and that it was Peter Burgess who was funding the purchase of the new property
    121. In my judgment, while Daphne Burgess may have appeared "compos mentis" to Mr Webster, this was not recorded in the original manuscript note and was added later and Mr Webster did not have anything to judge her behaviour against and, as he accepted, it was more difficult for him to judge her capacity as someone else was present. He did not carry out any formal assessment but simply took a view on the basis of her conduct at the time.
    122. Based upon all the evidence I have heard and read, in my judgment Daphne Burgess lacked the necessary degree of understanding at the time of the giving of the instructions and the execution of the 2007 Will to comprehend and appreciate the claims to which she ought to give effect."
  51. The judge's conclusions were influenced by a number of factual findings about the circumstances in which the 2007 Will was prepared and executed. In addition to the general background of the Deceased's declining health at that time and the rift between Julia and Peter dating from the previous summer, the judge made the following findings.
  52. First, Julia was "the controlling force" in the giving of the instructions on 20 December. She was present in the room with the Deceased and Mr Webster and gave him inaccurate information about the Deceased living with Peter, about the sum of 40,000, and about lifetime provision being made by the Deceased for Peter.
  53. Secondly, about Mr Webster's conduct of his meetings with the Deceased. He did not send Julia out of the room when he saw the Deceased to take instructions or at the second meeting to execute the will. It was difficult for him to assess the Deceased's testamentary capacity, as he did not have the medical qualifications or the opportunity to make an independent formal assessment of that. He did not send a draft of the will to the Deceased for her to read before she attended his office to execute it.
  54. Thirdly, there were mistakes in the 2007 Will, some of which had originated from Julia and none of which were picked up by the Deceased before she executed it: the mistake about Peter's middle name, the wrong numbering of the clause numbered 22 and the incorrectness of what it actually said.
  55. The judge accepted the evidence of Professor Jacoby that, if the Deceased omitted Peter from the residuary gift on erroneous grounds, it was more likely than not that that was as a result of the vascular dementia from which she was suffering. That was the disorder of the mind, which impaired her understanding of the claim to which she should give effect in favour of Peter. The judge then applied limb 3 of the test in Banks v. Goodfellow (see questions 3 and 4 in paragraph 11 above, which are embraced in limb 3 of the test of testamentary capacity).
  56. Want of knowledge and approval

  57. The judge upheld this ground of challenge for reasons given in a single paragraph, which cross refers to the evidence generally without identifying any particular part of it or any particular facts relevant to her conclusion that there was want of knowledge and approval of the contents of the 2007 Will :-
  58. "123. If I am wrong in determining that Daphne Burgess lacked the necessary testamentary capacity at the time of the 2007 Will being executed, on the basis of all the evidence I have heard and read, it is my conclusion that Daphne Burgess did not know and approve of the contents of the 2007 Will. Whereas Gill v. Woodall set out that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely at the moment when the will is executed, "in considering all the relevant evidence available and then drawing such inferences as it can from the totality of that material, [the court] 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." In my judgment, if Daphne Burgess had the requisite capacity (contrary to my judgment) she lacked the appropriate knowledge and approval of the 2007 Will."

    The claimant's submissions

  59. Mr Piers Hill, who appeared for Julia, criticised the judgment on a number of grounds. I summarise the more important of them below. He also made detailed factual criticisms of the judgment, which I shall not set out as they were more in the nature of challenges to the judge's findings of fact on a number of points of detail than to whether her findings justified the overall conclusion of mental incapacity.
  60. First, there was no evidential basis for a finding based on limb 3 of Banks v.Goodfellow that the Deceased was incapable of comprehending and appreciating the claims to which she ought to give effect. The evidence was that the Deceased was a normal elderly lady with increasing medical issues, but with no appreciable loss of mental functioning or loss of capacity to make a will. She was able to make decisions in relation to the move to the bungalow, the sale of the house and dealing with the proceeds of sale. No-one raised any query at that time, which was after the execution of the 2007 Will, as to whether she lacked capacity to effect the sale or handle and invest the proceeds of 150,000, or that she was unfit, after the 2007 Will was made, to move into the bungalow to live on her own for the next two years. The emails between Peter and Julia did not reveal any concerns about the Deceased suffering from dementia at that time. She was regarded as stubborn, self- willed and able to make up her own mind rather than lacking in mental capacity.
  61. Secondly, the contents of the 2007 Will itself showed that she was well aware that she had three children and that each was entitled to expect an inheritance from her. Peter was not excluded from the 2007 Will entirely and his exclusion from a share of reside was recorded in the 2007 Will for a stated reason.
  62. Thirdly, the fact that Mr Webster found the Deceased to be compos mentis and able to give instructions for a will at the relevant time should carry great weight.
  63. Fourthly, as to the influence and involvement of Julia, they were not relevant to the issue of lack of capacity. They were more relevant to an explanation of the Deceased's wishes than to whether she lacked capacity to make a will.
  64. Fifthly, as to the evidence of Professor Jacoby, it fell short of what was required to show dementia and lack of mental capacity. On the judge's findings the Deceased's decision to exclude Peter from residue was not through lack of mental capacity but on the basis of the information supplied by Julia and recorded in clause 22 of the 2007 Will with regard to the sum of 40,000 said to have been spent by the Deceased on the bungalow owned by Peter.
  65. Sixthly, the judge wrongly relied on comments in Re Beaney [1978] 1 WLR 770 to the effect that the degree of understanding required for a will is always high. That case in fact concerned an inter vivos gift of a house, which was the only asset of a donor suffering from advanced senile dementia.
  66. As for want of knowledge and approval it is submitted that the conclusion reached by the judge was not supported by any of the findings of fact in the judgment. As was held in Gill v. Woodall, a will prepared by a solicitor, read over to the testator and properly executed raises a very strong presumption that it represents the intentions of the testator at the time. The judge failed to identify any specific reasons for her conclusion that the Deceased did not know and approve the contents of the 2007 Will.
  67. Discussion and conclusions

    Lack of testamentary capacity

  68. I agree with Ms Penelope Reed QC on a number of points made in her skeleton argument, which I commend as a model of its kind, and in her concise oral submissions. I agree with her that the judge correctly directed herself on the relevant law and did not misdirect herself by reference to the case of Re Beaney.
  69. Her overall submission was that the judge's finding that the Deceased lacked the requisite capacity to make the 2007 Will was amply justified on the evidence, in particular on the expert opinion of Professor Jacoby. The key question is whether the judge's findings are sufficient to overcome the strong prima facie case for the validity of a will drafted by an independent solicitor who oversaw its execution and justify the judge's conclusion that the Deceased lacked testamentary capacity in a case in which the judge found that she knew she was making a will and appreciated the extent of her property.
  70. The main difficulty that I have with that conclusion is in the important part played by Mr Webster. He is an experienced solicitor in the matter of wills, averaging one a week. It is not surprising that he had no personal recollection about the taking of the instructions or the execution of the will. However, his near contemporaneous attendance notes are clear about his views on the capacity of the Deceased to make the 2007 Will. Further, on the application of the 3 limb test, the judge was satisfied on the first two of the three limbs about the mental capacity of the Deceased to make the 2007 Will: the Deceased knew she was making a new will and knew the extent of the property available for disposal. It is reasonable to expect that a testatrix, who is capable of understanding that much, would normally be capable of understanding the claims arising to which she ought to give effect in her family situation.
  71. The judge was persuaded to reach a different view on the evidence. It was, of course, for the judge and not this court to decide what weight should be given to the evidence that she heard. It would be contrary to well established principles applied by the Court of Appeal for this court to interfere with her conclusions simply because it would have attached greater weight or less weight to the evidence than she did.
  72. That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.
  73. The judge was influenced by evidence of the mistakes made in connection with clause 22 of the 2007 Will and the mistake in Peter's middle name. Of course, the mistakes should not have been made, but they were not of a kind that would normally lead to the conclusion that the Deceased was lacking in mental capacity to make a valid will when the judge was satisfied that the Deceased understood that she was making a will and understood the extent of her property.
  74. The other area of evidence that carried weight with the judge was that of Professor Jacoby, who had never met or examined the Deceased, regarding the reason why the Deceased did not make provision for Peter in the residuary clause of the 2007 Will. The disorder of mind indicated by that expert did not incapacitate the Deceased from understanding that she was making a will or understanding the extent of her property. In the face of those findings and of the evidence of Mr Webster, who had the advantage of meeting the Deceased twice at the crucial meetings in December 2006 and January 2007, that the Deceased was entirely compos mentis, it is a strong thing for the judge to act on medical evidence not based on any meeting with or any medical examination of the Deceased at that time, or at any time.
  75. 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.
  76. I have found this a difficult point. I entertain doubts as to whether the judge's findings, based to a significant extent on acceptance of the medical evidence, justified the conclusion that the Deceased, who had the capacity to understand that she was making a will and the extent of her property, lacked the mental capacity to understand the claims to which she ought to give effect regarding her son Peter. However, in view of the conclusion that I have reached below on the issue of want of knowledge and approval, it is unnecessary for me to express a concluded view on this ground of appeal.
  77. Want of knowledge and approval of contents

  78. In my judgment, the judge properly directed herself on the law. The 2007 Will was made in circumstances that justified the court's insistence on affirmative evidence that the Deceased knew and approved its contents. Peter took a share of the residuary estate in the 1996 Will. Although Julia and Peter fell out, the Deceased and Peter did not fall out. They remained close down to her death, yet she never told him about the new will, even though she did tell him about making gifts to her daughters which she did not make to him. Although the Deceased had told Julia in the summer of 2006 that she wanted to revise her will with regard to burial directions and the involvement of her Pastor, no mention was made of cutting Peter out of the residuary gift and no finding was made that the Deceased had expressed that to be her intention.
  79. The involvement of Julia not only in making the arrangements to see the solicitor but also in relation to instructions for the contents of the will, including misinformation emanating from her, is another circumstance on which the judge was entitled to be satisfied affirmatively that the Deceased knew and approved the contents of the 2007 Will. Julia made contact with Woodfines in December 2006, made the appointment, took the Deceased to the firm's offices and remained in the room with the Deceased throughout the discussions that took place with Mr Webster when he took instructions and when the will was executed. That all happened without the knowledge of Libby and Peter at a time when there was a rift between Peter and Julia. Julia was found to be the "controlling force" (see [120] and "the driving force" (see [117]) behind the instructions given for the drafting of the 2007 Will, and, in particular, was the source of inaccurate information supplied to Mr Webster about sums paid or to be paid by the Deceased to Peter in his lifetime and about where the Deceased would be living. Further, the Deceased had not had an opportunity to check and approve the contents of the draft will before she went to Mr Webster's office to execute it.
  80. Those particular factors, in addition to the judge's findings on the deteriorating state of the Deceased's physical health, her mental state and her diminishing capacity, were, in my judgment, sufficient to support the judge's overall conclusion on the Deceased's want of knowledge and approval of the contents of the 2007 Will.
  81. Result

  82. I would dismiss the appeal.
  83. In brief, it is unnecessary for me to express a concluded view on lack of testamentary capacity, because, in my judgment, the judge properly directed herself on want of knowledge and approval and was, on her findings of primary fact, entitled to conclude that the court's concerns about whether the Deceased knew and approved the contents of the 2007 Will were not allayed by the evidence adduced. It was not affirmatively shown to the judge by Julia that the 2007 Will represented the testamentary wishes of the Deceased.
  84. Lord Justice Patten:

  85. I agree.
  86. Sir Scott Baker:

  87. I have not found the resolution of this appeal at all easy. On the one hand there have to be compelling reasons for the court to reject a will that is valid on its face, whilst on the other this court is reluctant to overturn the findings of a judge who heard the evidence and saw the witnesses. In order to succeed before the judge the respondents had to establish either lack of testamentary capacity or want of knowledge and approval. I respectfully agree with Mummery LJ's clear analysis of the law on both issues.
  88. The judge found both lack of testamentary capacity and want of knowledge and approval, but gave limited reasons for the latter as her decision on the former decided the case. Like Mummery LJ I have grave doubts about the correctness of the judge's conclusion on testamentary capacity. Had I been the trial judge it is likely I would have found that the evidence did not rebut the strong prima facie case for the will's validity. Where a will is drafted by an experienced solicitor who oversees its execution and records at or close to the time that the testatrix was compos mentis and able to give instructions persuasive evidence to the contrary is required. I was impressed by the points made by Mr Piers Hill, in particular that little weight could be put on the evidence of Professor Jacoby who never saw the deceased. That said, I was not the trial judge.
  89. On want of knowledge and approval, for the reasons given by Mummery LJ, there was in my judgment sufficient evidence to justify the judge's conclusion. I would therefore dismiss the appeal on that ground which makes it unnecessary for me to express a concluded view on testamentary capacity.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/74.html