Fischer v Angela Diffley and Another
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Dight |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] EWHC 4567 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC11C03673 |
| Date | 18 December 2013 |
[2013] EWHC 4567 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
His Honour Judge Marc Dight
(Sitting as a Judge of the High Court)
Case No: HC11C03673
Mr Benedict John Sefi (instructed by Zimmers) appeared on behalf of the Claimant
Litigants in Person
Approved Judgment
The claimants, who are the representatives of the family in Germany of Louise Beck, whom I will refer to as the deceased, who died on the 17 January 2011 aged 83, seek a declaration that she died intestate and that the two wills executed by her and respectfully dated 1 March 2009, which I will refer to as the first will, and 2 May 2010, which I will refer to as the second will, are invalid.
The deceased had substantial assets in both England and Germany and on the literal construction of the wills they purport to deal with her assets in both jurisdictions. If the wills are invalid, then the deceased's estate in England and Wales are passed on intestacy to the family whom the claimants represent and her estate in Germany would pass according to the laws of that country.
The claimants' case is that at the date of execution of each of the wills, the deceased suffered from such severe dementia brought on by Alzheimer's disease that (a) she lacks testamentary capacity and (b) there was a want of knowledge and approval and that in those circumstances they ask the court to pronounce against both wills.
The first and third defendants, now the only active defendants to this claim and, therefore, I will refer to them as, the defendants, are the former tenants and neighbours of the deceased and by their counterclaim they ask the court to pronounce in solemn form for both wills notwithstanding the apparent discrepancy between the terms of each will.
I should explain that the defendants have represented themselves throughout these proceedings and have at times struggled with some of the legal concepts involved.
I have, with the assistance of counsel for the claimants, sought to clarify for the defendants the issues and the law as the trial progressed so that they were able, between them, effectively, to present their case, their evidence, their expert evidence, challenge the claimants' evidence by cross-examination, including the expert evidence called by them and to make coherent and comprehensive submissions in closing.
At the conclusion of his closing submissions, counsel for the claimants properly paid tribute to the defendants for the skill and the manner in which they conducted themselves in their case throughout the trial and I would like to add my own tribute to his. The defendants properly explored every issue which was open to them in a careful, sensitive and proportionate way and they are to be commended.
As to the two wills: while the defendants submit that each is valid, they leave it to me to determine which will, if valid, governs the disposition of the deceased's estate. By the wills, the defendants stand to benefit from a life interest in either the whole or part of the deceased's estate in both jurisdictions.
If the first will is upheld, the remainder is to the Battersea Dogs and Cats Home absolutely. If the second will is upheld, the remainder is to the family in Germany.
At one stage the Battersea Dogs and Cats Home were an active party to this litigation as fourth defendant. However, they have since formally admitted the claim and discontinued their counterclaim.
From commencement of the proceedings until January of this year, Mr Raymond Petts, who passed away on 15 January 2013, was an active second defendant. No one has been joined to these proceedings in his place following his demise. Mr Petts was, as I understand it, a longstanding friend and advisor to the deceased, having been her accountant for many years, probably since 1979 and was at the time of the wills a partner in a firm called Keelings.
It is apparent from the evidence that I have heard that Mr Petts played a key role in this matter and it would appear that it was he who drafted and procured execution of the wills. Further, he was a witness to first will and an executor under the second.
His case, which is apparent from a number of written statements, is that the wills were produced, both of them, as part of a scheme and in a sequence designed to discourage the German family from challenging the terms of the second will under which their interests in a significant part of the estate are wholly in remainder. That is because if they successfully challenge the second will, then according to Mr Petts, the disposition of deceased's estate would be governed by the terms of the first will under which the German relatives get nothing, the remainder going to the Battersea Dogs Home.
Mr Sefi, for the claimants, has referred to this design in a non-pejorative sense as the scheme and I shall do likewise.
It is apparent from Mr Petts' documents that he anticipated a challenge to the validity of the proposed second will, a challenge which he sought to meet by preparation of the first will.
I have heard a very considerable volume of live evidence in this case, 16 lay witnesses and three experts, one of whom, Dr Lester, provided both factual and opinion evidence. I have also read a number of statements, some in proper form and some not and have taken them into account in reaching my conclusions on the factual issues before me. My attention has also been drawn to a significant number of documents.
The evidence has covered many topics. There is a very clear divergence of views about the health, welfare, mental state and care of the deceased. The views of the witnesses are, in most cases, very strongly held. There is also a considerable degree of ill feeling between the various groups who were called to give evidence.
Before turning to the law and the issues in the case, I want to make it plain what this case is not about and what I will not be determining.
This case is not about: (1) whether the care home in which the deceased spent her final years failed to provide an adequate level of care for her; (2) whether the local authority or the deceased's social worker failed to care for or protect her appropriately; (3) whether the defendants took advantage of the deceased or exercised undue influence over her; (4) whether the care home was right to exclude the defendants from visiting the deceased or insisting on the presence of a member of staff during such visits.
In considering all of the evidence and making my findings of fact in this case, I shall only decide those disputed matters which will enable me to reach conclusions on the issues before me, namely, are the wills, or either of them valid or are they, or either of them invalid, because (a) the deceased lacked testamentary capacity at the relevant time and/or (b) there was a want of knowledge and approval.
I remind myself that the standard of proof is the usual civil standard of proof, namely, the balance of probabilities, but that the more serious the allegation which it is sought to prove, the better the quality of the evidence needed to tip the balance in favour of the person seeking to prove it.
I also remind myself that I may not speculate as to what happened. That is particularly important in a case such as this, which concerns the thought processes, state of health and decision making of someone who has passed away. I am entitled to draw reasonable inferences from primary facts which I accept, but not to speculate.
This question is of particular concern to me in the case where a large part of the evidence has, with the permission of the Master, been presented in an informal and, from my perspective, unsatisfactory form. That criticism extends to both the lay and the expert evidence. Much of the evidence deals with issues which I will not be determining. A relatively small part of it is focused on the particular issues before me.
I turn to the law. The law is not in dispute.
As far as capacity is concerned, there are many reported decisions setting out the common law, the principal case being Banks v. Goodfellow, which has recently been supplemented by statute, to which, it seems to me, that I am entitled to have regard as a starting point in connection with the question of capacity.
Under the Mental Capacity Act 2005, the general principles to applied are now contained in Section 1, which provides as follows:
"(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision."
I draw from that provision that one starts from an assumption of capacity and that even if what appears to be an eccentric decision is made, that does not lead the court to conclude, necessarily, that the person was unable to make the decision.
Notwithstanding the wording of sub-section 1 it seems to me, having regard to the terms of the Act and the context in which it was enacted, that the principles go further and are applicable in situations such as the present and must be looked at alongside the classic test contained within the common law as...
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Re Smith (Deceased); Kicks and another v Leigh
...and thus have capacity and yet, because he did not in fact understand, might have been operating under undue influence. Fischer v Diffley [2013] EWHC 4567 (Ch) 56 This was a case of testamentary capacity in respect of two wills made in 2009 and 2010. HH Judge Dight held that the testatri......
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Raymond Allen James v (1) Karen James
...was retrospective. (As to retrospectivity see also Lewison LJ in Simon v Byford [2014] EWCA Civ 280, [39]). 73 In Fischer v Diffley [2013] EWHC 4567 (Ch), a case of wills executed after the 2005 Act had come into force, HHJ Dight said that the law was “not in dispute” ([24]), and that Banks......
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...law but suggests further consideration. This is using the MCA to ‘supplement’ the common law in HHJ Dight's word in Fischer v Diffley [2013] EWHC 4567 p.25; and indeed, taking a ‘flexible approach’ as suggested by Mr Rosen QC in Bray v Pearce (2014) (as quoted in 50 Returning one last time ......