Jennifer Baker v Diane Hewston
| Jurisdiction | England & Wales |
| Judge | Tindal |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1145 (Ch) |
| Docket Number | Case No: PT-2022-BHM-000058 |
| Court | Chancery Division |
[2023] EWHC 1145 (Ch)
HIS HONOUR JUDGE Tindal
(sitting as a Judge of the High Court)
Case No: PT-2022-BHM-000058
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr John Aldis (instructed by Somerfield & Co) for the Claimant
Mr Martin Langston (instructed by Richard Nelson LLP) for the Defendant
Hearing dates: 19 th and 20 th April 2023
HHJ
Introduction
This is a case which at a legal level is about the relationship between the common law test of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 and the Mental Capacity Act 2005 (‘MCA’). However, at a human level, it is about the impact of a deceased testator leaving his affairs in a sadly messy state and whether that was due to his diagnosis of dementia or – as I will find – his capacious, if harsh, decisions.
Stanley (as I shall call him) saw many changes in his long life. He was born in 1929 at the height of the Great Depression and died aged 91 on 5 th August 2020 at the height of the COVID Pandemic. He was a widower of Agnes, who died in 2019. In 2020 Stanley left their three children: Ronald, Martin and Jennifer (who as one of Stanley's Executors is the First Claimant). Stanley also left eight grand-children: including Jennifer's daughter Emma (as Stanley's other executor, the Second Claimant) and Ronald's son Luke. All those named except Martin are beneficiaries of Stanley's last will dated 23 rd May 2020. As Martin has not participated in this litigation so far, in a public judgment I will respect his and his family's privacy. This is the main reason that I do not give Stanley's (and their) surname in this judgment (though it is on the Court file and Orders and there is no basis under CPR 39 to anonymise any party).
Yet for many years, Stanley had another family. Though he and Agnes never divorced, they separated in the 1980s and Stanley moved in with his partner Kathleen. They were supported for years by her daughter Diane (the Defendant). In 2010, Stanley and Kathleen each made wills leaving half-shares in their new jointly-owned home in Birmingham (which I will call ‘the Bungalow’) to Diane and Martin. When Kathleen died in April 2014, I will find Stanley handed Diane the deeds to the Bungalow in an envelope where he wrote ‘Di keep safe your half of house, Stan’.
However, only a few weeks later in June 2014, Stanley changed his will so as to disinherit Diane and to favour Agnes and their children, Ronald, Jennifer and Martin However, in a later will in 2017 Stanley disinherited Martin, only to ‘re-inherit’ him in a will in 2018, only to disinherit him again in his last will in May 2020. Therefore, this case concerns no fewer than six wills (with one in 2009 and drafts in 2017 and 2019) in one decade with family beneficiaries shifting in and out of inheritance.
After Stanley's death, Diane objected to Stanley's 2020 will being granted Probate, pointing out that Stanley had a diagnosis of dementia for several years and she was concerned that he did not have mental capacity to make any wills from 2014 onward. If that is right, Stanley's last valid will would be the 2010 will, which like Kathleen's left half-shares in the Bungalow to Diane and Martin. It is not fair to assume why Martin did not get involved in the dispute or this subsequent litigation. However, as he was a beneficiary of Stanley's 2018 will as well as the 2014 and 2010 wills, he has an interest in and is affected by these proceedings. In any event, as Stanley's executors under his 2020 will, Jennifer and Emma have brought these proceedings to seek the Grant of Probate (i.e. declaration of validity) of the 2020 will. Under the contentious probate rules in Civil Procedure Rule (‘CPR’) 57, Diane was perfectly entitled to require Jennifer and Emma to prove the validity of Stanley's 2020 will without putting forward a positive case as to its invalidity but also to cross-examine witnesses involved in the preparation or execution of Stanley's 2020 will (see CPR 57.7(5)).
At trial, we heard the evidence of the solicitor who drafted Stanley's 2020 will Mr Penn; and two of Stanley's friends Mr Rainsford and Mr Graham who attested that will (i.e. witnessed Stanley signing it). Having heard them, Diane withdrew her objection to the 2020 will as part of a compromise that she would receive a payment from Stanley's Estate (and I was happy to see, also a payment from it to a dementia charity). That was an entirely fair compromise which reflected Diane's unpleaded claim in relation to Stanley's promise to her in 2014 of a half-share in the Bungalow when he gave her the deeds, arguably amounting to a trust of it. I am happy to record in the order the parties agree that it was both Kathleen's and Stanley wish and intention that Diane should have half the Bungalow. Ordinarily when parties to litigation reach such a compromise, the judge's role is simply to make an order ending the proceedings — certainly not to write a judgment such as this. But in this very unusual case I do so for three distinct reasons.
Firstly, s.49 of the Administration of Justice Act 1985 enables the High Court to pronounce on each relevant will with the consent of all ‘relevant beneficiaries’. But Diane asked me to pronounce upon not only the 2020 will, but the earlier ones of which Martin was also a beneficiary, yet unusually he has not participated so has not ‘consented’ under s.49: Boast v Ballardi [2022] EWHC 1533 (Ch) p.15. It would be unfair simply to pronounce on the 2020 will without considering the others.
Indeed, as Martin was a beneficiary under the 2018 will, he is plainly ‘affected’ by the validity of the 2020 will and even now, he may attempt to challenge it. So, it is appropriate to give him an opportunity to object within 28 days to pronouncement of its validity by sending him this judgment, failing which he is bound by it under CPR 19.13. I hope he would understand that would give some finality to proceedings and to allow everyone to move on. From what I understand, it may well be Martin does not want anything to do with Stanley's wills, but it is only fair to give him a chance to say.
Secondly, whilst Martin has not participated in the litigation and Diane has now settled it, in my judgment it was entirely understandable why she was concerned that Stanley's chopping and changing between wills in his final decade may have been related to his dementia diagnosis. Whilst Diane is entitled to her own view, in my view on all the evidence I have (including hers), there is no evidence whatsoever that Jennifer, Emma and Ronald manipulated Stanley, whose decisions it is clear to me were entirely his own. Whilst Martin and Diane's memories of Stanley are tarnished, I recognise his memory for the rest of his family is important so I will try to respect that in my choice of words. Yet as part of my judgment I must explain why I am satisfied that Stanley's decisions about his wills in his last decade had more to do with his caprice than his capacity.
Thirdly, whilst the Skeleton Arguments of Mr Langston and Mr Aldis touched on the execution of Stanley's 2020 will and his ‘knowledge and approval’ of it, both rightly argued the main issue was his testamentary capacity – indeed for Stanley's wills going back to 2014. They were all made after the MCA came into force in 2007 and must be analysed without retrospective medical evidence and indeed without live evidence, save as to the 2020 will, for which Mr Penn did not obtain a doctor's assessment of capacity, nor read over the will to Stanley, due to COVID intervening. This raises acutely whether or not there is a ‘presumption of testamentary capacity’ and the significance of the absence of explanation of the will to Stanley, on which issues the approaches of the common law and MCA are said to be different. Since the litigation was compromised (but a judgment is still needed), this seems a good opportunity to discuss in a little detail a potential compromise between Banks and ss.2–3 MCA which I am not aware has yet been proposed: possibly due to lack of merit, possibly as too difficult to do in a contested case. In short, my own view is whilst ss.2–3 MCA do not apply in Probate cases, they are consistent with the common law and can accommodated within it.
Testamentary Capacity: Banks v MCA or Banks = MCA?
In Banks, Lord Cockburn CJ summarised the test on testamentary capacity at pg.565:
“It is essential a testator [a] shall understand the nature of the act and its effects;
[b] shall understand the extent of the property of which he is disposing;
[c] shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.”
Over 135 years later in Sharp v Adam [2006] WTLR 1059 (CA), May LJ said at p.66 this test in Banks had ‘stood the test of time’ and quoted it at p.68 with the addition of [a]–[d] to distinguish the four different elements of the test.
Indeed, Banks had so ‘stood the test of time’ that Williams & Mortimer & Sunnicks on Executors, Administrators & Probate (21 st Edition 2018), Williams on Wills (10 th Ed 2 nd Supp 2021) and Theobold on Wills (19 th Edition 2021) do not refer to very much 20 th Century authority on testamentary capacity, especially above High Court level. Yet in the last 20 years, according to Westlaw, Banks has been considered...
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