Paula Lonsdale v Carl Teasdale

Hearing date: 27 July 2021

Introduction

This is an appeal from the order of the District Judge dated 19 November 2020 and made in the County Court at Liverpool. By that order, he dismissed the Claimant's claim for the grant of probate in solemn form of the will dated 10 June 2014 of Charles Beswick deceased, who died on 21 April 2018, and instead pronounced for the will of the deceased dated 15 September 2017 in solemn form, and stayed the issue of the grant of probate in respect of the 2017 will until the determination of any appeal or further order. He made an order that the Claimant pay the costs of the First Defendant, who effectively was the person propounding the 2017 will, and the costs of the Second and Third Defendants, who were the executors appointed by the 2014 will. He refused the Claimant permission to appeal. The brief reasons which the learned District Judge gave in writing were as follows: “Correct analysis and weighting of all available evidence to lead to conclusion that testator had testamentary capacity”.

Following the service of an Appellant's Notice dated 8 December 2020, and after certain case management directions were complied with, Snowden J granted the Claimant permission to appeal that order on three grounds:

(1) that the District Judge's decision that the deceased had testamentary capacity at the time that he executed the 2017 will was wrong;

(2) that the manner in which the district judge conducted the trial constituted a serious procedural irregularity; and

(3) that the District Judge failed to apply the proper burden of proof.

He directed that the appeal should be heard before a High Court or deputy High Court judge in Liverpool and it came before me on 27 July 2021. On that occasion I had the benefit of submissions from counsel for the Claimant and for the First Defendant, and the other Defendants did not attend. I was supplied with an appeal bundle and a supplemental bundle. Among other things, they included a skeleton argument on behalf of the Claimant dated 22 December 2020 and a supplemental Skeleton Argument on behalf of the Claimant dated 19 July 2021, with an appendix.

The background

The basic facts are as follows. Charles Beswick was married to Florence Beswick. They had two children, William and Paula. Paula had a child called Charles Lonsdale. The deceased had made a will on 10 June 2014. His wife was the principal beneficiary of that will, but she predeceased him on 13 March 2017 and, in the events which happened, and in particular the death of his son on 15 July 2017, his daughter alone (the Claimant) became the principal beneficiary under that will. Everyone accepts that the 2014 will was valid, and in particular that the testator had capacity to make it.

However, the deceased then made his will dated 15 August 2017, and signed a letter of intent of the same date explaining his reasons. That will was prepared by solicitors, Savas & Savage of Ellesmere Port, on instructions given orally by the testator, initially at a meeting arranged by the First Defendant, who was also present throughout. It seems that there were a number of telephone calls between the First Defendant and that firm following that meeting. The will was then duly executed, and witnessed by two trainee solicitors at that firm who had been involved in drawing it up.

The 2017 will appointed the First Defendant as sole executor. It referred to him as ‘my long-term friend, who I refer to as my stepson’. After a number of specific gifts, he dealt with his residue in the following way:

“I wish for my residuary estate to pass in full to my friend, Carl Anthony Teasdale, date of birth 7 June 1964; in the event that my friend, Carl Anthony Teasdale, predeceases me, or fails to survive me for a period of 28 days, then I wish for my residuary estate to pass in full to my friend, Mr David Ferguson; in the event that my friend, David Ferguson, predeceases me, or fails to survive me for a period of 28 days, that I wish for my residuary estate to pass in full to the club treasurer of Golden Star amateur boxing club, Princess Road, Ellesmere Port, who is currently Mr James Killcross, but should he leave the post for any reason then I wish my estate to pass in full to any other club treasurer who stands in his place. In the event my estate does pass to any club treasurer of Golden Star amateur boxing club, then the club treasurer is to ensure my estate is used solely for the beneficial purpose of the Golden Star amateur boxing club.”

So far as relevant, his letter of intent of the same date reads as follows.

“I wish to clarify my explicit instructions to leave my daughter, Paula Lonsdale, out of my will. I do not wish for Paula to benefit from my will whatsoever, I do not wish to leave any of my estate to Paula. Nor do I wish for my grandson, Mr Charles Lonsdale, to benefit financially from my will. I wish to leave Charles my watches and stopwatches only. I do not wish to leave him any of my residuary estate. This is because neither of them make any effort to have or maintain a relationship with me.”

The Claimant challenges the 2017 will on the ground that at the time it was executed the testator was not of sound mind, memory or understanding, and lacked the requisite testamentary capacity; and/or that the execution of the will was obtained by the undue influence of the first defendant. The allegation of undue influence was not pursued before me.

Particulars of lack of testamentary capacity alleged

The particulars of lack of testamentary capacity which were given stated as follows.

“A) From the beginning of 2016 the deceased, who was born on 5 February 1935, was suffering from a significant impairment of cognitive function and up until the death of his wife in March 2017 was almost entirely dependent upon his wife in virtually every aspect of daily living, and

B) Such was the decline in his cognitive abilities that, in January 2017, the DVLA wrote to the deceased's general practitioner seeking a medical report and certificate as to his fitness to retain his driving licence.

C) On 5 June the deceased's general practitioner carried out a 6-CIT test on the deceased in order to ascertain the presence or extent of the deceased's cognitive impairment. The deceased scored 20 out of a maximum score of 28, where any score in excess of ten is indicative of significant cognitive impairment. The deceased's GP made a referral to the memory clinic, in addition to recording his score and making the necessary referral. The deceased's general practitioner recorded in his contemporaneous notes of the examination ‘mental state — mood a little low, not anxious or agitated, 6-CIT score 20, struggled with much of test, poor recall, some lack of insight into degree of memory problems’

D) In dealing with and assisting her mother with the care of her father, through 2016, and up to her mother's death, the claimant observed first hand the extent of the cognitive impairment of her father, and as a qualified nurse, specialising in geriatric care and dementia, she was aware of and recognised her father's deteriorating mental state.”

In the context of the allegation of undue influence, she set out further allegations which are useful in order to understand this decision, namely that the deceased had met the First Defendant through the Ellesmere Port boxing club, but that they had later fallen out or distanced themselves. It was less than a week after the death of the only son of the deceased, on 15 July 2017, that the first defendant had arranged the meeting with the solicitors for the deceased to give instructions for a new will. She disputes the suggestion, in the letter of intent, that neither she nor her son made any effort to have or maintain a relationship with the deceased, stating that she did so.

The judgment below

The extempore judgment of the learned district judge refers to the attendance note taken at the meeting between the deceased and the solicitors, and its terms so far as available to him were apparently not in dispute. It read as follows.

“Mr Carl Teasdale was present but all instructions were given by Mr Charles Beswick, the client. In the first instance he wanted to make Carl Anthony Teasdale to be executor, the relationship is a long-term friend who he refers to as his stepson. He explained to me about what has happened before his wife passed away and also after when his wife passed away in terms of his relationship with his daughter has gone sour. That is why he wanted to make sure Paula is not to inherit from the will. I asked him whether or not he wanted to include his grandson, Charles William Lonsdale, as the beneficiary of the actual estate,...