H (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Patten,Sir Scott Baker,Lord Justice Hughes |
| Judgment Date | 2013 |
| Neutral Citation | [2013] EWCA Civ 74 |
| Docket Number | Case No: B2/2011/3322,Case Nos: B4/2012/3356 |
| Year | 2013 |
| Court | Court of Appeal (Civil Division) |
| Date | 2013 |
[2013] EWCA Civ 74
Lord Justice Mummery
Lord Justice Patten
and
Sir Scott Baker
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
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).
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.
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.
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.
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 inJarndyce 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.
Even worse, as the judge commented, are the enduring human consequences for a once "close knit and loving family":-
"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."
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.
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.
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.
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.
As for testamentary capacity, the law is as laid down by Cockburn CJ inBanks v. Goodfellow LR 5 QB 549 (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—
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 influencedher disposals of property in the 2007 Will, so that they were not what she would have done, absent that disorder.
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—
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."
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.
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.
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...
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