Scammell v Farmer
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 2008 |
| Neutral Citation | [2008] EWHC 1100 (Ch) |
| Docket Number | Case No: HC04C00514 |
| Court | Chancery Division |
| Date | 22 May 2008 |
[2008] EWHC 1100 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Stephen Smith Q.C.
Case No: HC04C00514
Stephen Smith QC sitting as a Deputy Judge of the Chancery Division
In these proceedings, the Claimants, Emma Jane Scammell and Sarah Anne Scammell, challenge the will of their late grandmother, Irene Daisy Scammell. Irene Scammell's only son, the Claimant's father, Roger Scammell, died in 1986 when the Claimants were aged respectively 10 and 7. Irene Scammell's only other child, Lynda Farmer, is the Defendant. Lynda Farmer has no children. Lynda Farmer is the main beneficiary under the will, which was made by Irene less than 6 months before she died.
Background
Irene Daisy Scammell was born on 7 th May 1921. She died aged 82 on 3 rd July 2003. Her husband, Charlie, as well as her son, Roger, predeceased her. In addition to the Claimants and Lynda Farmer, other relations close to Irene who survived her were the Claimants' mother, Roger's widow, Jane, and Irene's own sister Min Hempstead (Min has since died).
During the later years of her life Irene considered her daughter Lynda to be considerably better off than Roger's family. Lynda gave evidence that she jointly owns 4 residential properties with her husband, David Farmer, all unencumbered and worth in total, she estimated, £900,000. Lynda lived close by her mother and visited her daily when they were both in England. Jane and the Claimants lived further away and visited much less frequently.
Irene made a Will in 1995. The circumstances in which the 1995 Will were made are not known; it is no longer available because it was collected by Lynda after Irene's death from the solicitors where it was held for safekeeping, and destroyed.
Lynda says that under the 1995 Will Irene's home was left to the Claimants in equal shares; and Irene's investments were left to herself and Jane in equal shares. As the home and the investments are believed to have been of approximately equal value when the Will was made in 1995, the effect of the 1995 Will was to divide Irene's estate in roughly equal proportions amongst the four relations closest to her (excluding her sister).
Although Irene's 1995 Will was kept confidential, Irene made no secret of her desire that the Claimants should benefit substantially from her estate after her death, since they had lost their father at such a relatively young age and she wanted to help them to have a sound start in their adult lives.
Irene was diagnosed with early onset Alzheimer's Disease in September 2001, for which she was prescribed (and took) medication. She was diagnosed with cancer of the oesophagus in April 2003, from which she died in July 2003. She had been suffering with the symptoms of the cancer for some time before the diagnosis, possibly since as early as October 2002 when it was discovered that she had lost a significant amount of weight.
Lynda says she knew nothing of the 1995 Will until May 2002. When she learned of it, she was very upset and let her mother know her feelings. Lynda asked her mother to reconsider her Will. At first Irene refused to do so. After some months, however, Irene changed her mind and asked Lynda to arrange an appointment with a solicitor.
Irene and Lynda attended on the solicitor in January 2003. The solicitor was given a piece of paper on which were written the intended bequests. The writing on the piece of paper was Lynda's. Specific bequests were to be made of £2000 to each of the Claimants, and £5000 to Jane; the house, investments and jewellery were all to go to Lynda herself. The solicitor was not told that there was already a Will in existence (of which Lynda had a copy), nor was he told that Irene suffered from Alzheimer's (a circumstance which he said would have put him “on his guard”). He duly prepared a Will giving effect to his instructions. Lynda Farmer paid the firm's bill.
The effect of the new Will was that instead of the house (which by 2003 had increased in value to some £165,000) being divided equally between Emma Jane and Sarah Anne, the granddaughters were now to share only £4000. And instead of Jane sharing equally with Lynda investments worth some £60,000, she was now to receive only £5000. Lynda, however, was to receive approximately £215,000 instead of £30,000 under the terms of the 1995 Will as she has described them.
There is no suggestion that Irene's affection for any of Jane, Emma Jane or Sarah Anne had diminished since 1995, still less that they had had any disagreements with Irene, or that their financial circumstances had taken a significant turn for the better. The catalyst for the new Will appears to have been simply Lynda's complaint that the terms of the 1995 Will were not fair to her.
Neither Lynda nor Irene told anyone about the new Will once it had been executed.
Lynda obtained a grant of probate of the new Will in September 2003.
After Irene's death Lynda endeavoured to obstruct the attempts of Jane and the Claimants to obtain information concerning Irene and her testaments, which was not limited to her deliberate destruction of the 1995 Will (and all copies of that Will). Information has emerged piecemeal over the ensuing years. Indeed, several important documents emerged only during the course of the trial, including the piece of paper in Lynda's handwriting which was given to the solicitor in January 2003. A further late document – a letter written by Irene herself in July 2002 – was produced only following a discussion with Lynda's counsel during his closing submissions (there is no suggestion that counsel had any knowledge of the continued existence of that document until that moment).
Against that background, it is perhaps not very surprising that Emma Jane and Sarah Anne challenge the 2003 Will, with the support of their mother.
The Claimants also have the support of Raymond Hayes, whose position is an important one in these proceedings. Mr. Hayes has known the family for some 47 years. Several years after Charlie Scammell's death, in 1996, he began to live with Irene. Raymond Hayes and Irene became very close. Raymond asked Irene to marry him, but she declined because she did not want to become a widow for a second time. But otherwise they were as man and wife. Raymond Hayes describes their closeness thus (albeit in an account with which Lynda Farmer does not entirely agree):
“This arrangement worked very well for both of us and we had a happy time together for seven years. We were best friends, companions and partners and in her later years I was her carer. Save that we had not had a marriage ceremony we were as man and wife. Irene and I were together constantly. She might be away briefly from the house to take her dog to the Green, which was about 200 yards away, or to visit a neighbour or the shop at the top of the road. If she went any further we would be together, probably in the car, which I would drive.”
Lynda had the support of Min, Irene's sister, who signed a witness statement before she died.
Irene's Wills have thus been the cause of deep division in a family which had already experienced tragedy through the premature death of Roger. They have also caused the two factions to incur what are doubtless large legal bills in pursuit of a relatively modest estate. Those consequences are doubtless very far from what Irene, or indeed anyone in her position, would have wanted.
The basis of the challenge
The Court has no jurisdiction to remodel Irene's 2003 Will in the event that it considers that it makes inappropriate or even unfair provision:
“The question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator's testamentary intentions.”
( Fuller v. Strum [2002] 2 All ER 87, para. 65)
The inroads into freedom of testamentary disposition made by the family provision legislation are limited to claims by defined categories of people into which only Mr. Hayes possibly falls. Mr. Hayes, however, has his own assets and means, and he and Irene decided early in their relationship that they would each retain their own wealth to pass on to their respective families.
The Claimants are therefore compelled to mount their challenge by asserting that Irene (a) lacked the appropriate mental capacity to make the 2003 Will and/or (b) lacked knowledge and approval of the contents of the 2003 Will and/or (c) was labouring under the undue influence of Lynda when she made the 2003 Will.
Lack of capacity
The first question which was raised was whether my assessment of Irene's capacity to make a Will should proceed under common law principles or under the Mental Capacity Act 2005. Mr. Waterworth for the Claimants contended for the common law; Mr. Pugh for the Defendant said that I should proceed under the Act.
The provisions of the Mental Capacity Act which are most pertinent are contained in Sections 1–3.
The relevant parts of those Sections are:
“1 The principles
(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.
…..
People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or the brain.
….
Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable –
(a)...
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