Sharp v Adam
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 28 April 2006 |
| Neutral Citation | [2006] EWCA Civ 449 |
| Docket Number | Case No: A3/2005/1846 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 2006 |
[2006] EWCA Civ 449
The Master of The Rolls
The Rt Hon Lord Justice May and
The Rt Hon Lord Justice Jacob
Case No: A3/2005/1846
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR N STRAUSS QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gilead Cooper (instructed by Messrs. Greene & Greene) for the claimants
Mr Mark Simeon Jones (instructed by Messrs. Abbot Beresford) for the respondents
Lord Justice May:
Introduction
This is the judgment of the Court
Mr Neil Marshall Adam died on 21 st August 2002, aged 70. He executed a will on 1 st June 2001. The question which Mr Nicholas Strauss QC, sitting as a Deputy Judge of the Chancery Division, had to decide was whether Mr Adam then had testamentary capacity. In a very full and careful judgment dated 27 th July 2005, the deputy judge decided that Mr Adam did not have testamentary capacity on 1 st June 2001. He decided that an earlier will dated 6 th February 1997, which the 2001 will had revoked, was Mr Adam's last and valid will.
The claimants, Robin Sharp and Malcolm Bryson, who would be the principal beneficiaries under the 2001 will, appeal against the deputy judge's decision with his permission. The first and second defendants, Grace and Emma Adam, Mr Adam's daughters, are the principal beneficiaries under the 1997 will. The third and fourth defendants are executors.
Mr Adam suffered from secondary progressive multiple sclerosis. This was first diagnosed in 1980. By 2001, it had progressed to a point of extreme physical debilitation. There was a clash of evidence as to the extent to which the disease had affected Mr Adam's mind. Those who had seen and communicated with him regularly – some of them daily – in the time leading up to the making of the 2001 will were convinced that he had sufficient understanding to make a valid will and to communicate his instructions for it. These people included, but were not limited to, two solicitors and a general practitioner, all of whom attended Mr Adam when he made the disputed will. Professor Maria Ron PhD. FRCP FRC Psych, a pre-eminently experienced and qualified Professor of Neuropsychiatry, expressed the opinion that Mr Adam probably did not have testamentary capacity in June 2001. Dr C.H. Hawkes DSc. MD. FRCP. FRCP Ed., a highly qualified Neurologist, expressed the somewhat qualified opinion that he did have testamentary capacity. Neither expert had seen Mr Adam. They had had to proceed on reported information. The deputy judge preferred the evidence and opinion of Professor Ron.
The deputy judge was right to give permission to appeal. The appeal has caused us considerable judicial anxiety and is finely balanced. This court has to tread very cautiously with questions of evidential evaluation. For this common place and uncontroversial proposition, Jacob LJ has pointed us to what Lord Hoffmann said in Biogen Inc. v Medeva plc [1997] RPC 1 at 45:
"Where the application of a legal standard … involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation."
Facts
The deputy judge's judgment, to be found at [2005] EWHC 1086 (Ch), has a complete account of the facts. we will summarise them only.
Mr Adam was forceful and forthright and remained so despite his disability. He inspired affection and respect in all who knew him. Initially a veterinary surgeon, he became a successful racehorse trainer and then, when his health began to decline, bought a substantial stud near Newmarket which he restored and opened in 1982. A new house was built there for him in 1995.
His elder daughter, Grace Adam, born in 1964, is an artist and lecturer who organises artistic events. She lives in London. His younger daughter, Emma Adam, born in 1967, is a qualified vet. Since 1998 she has lived and practised in the United States. The deputy judge had no doubt but that they both loved their father and were greatly distressed by his decline. Grace visited him every two or three weeks; Emma infrequently, because she was in the United States. They both communicated with him very frequently by telephone and e-mail. Emma spoke of a common understanding that she would in due course return from the United States to take over the running of the stud, for which her training would be a huge advantage.
Robin Sharp was born in 1960. He started working for Mr Adam in 1975 as a stable lad, his first job. He stayed with Mr Adam till his death. Malcolm Bryson was born in 1965. He began working for Mr Adam in 1982 when he was 16. He also stayed with Mr Adam till his death. They both had great respect and affection for him and were completely loyal. In the later years, they successfully managed the stud under Mr Adam's instruction. The debt on the stud reduced substantially and the business generated enough money to pay for Mr Adam's no doubt increasingly expensive care.
Mr and Mrs Adam's marriage ended acrimoniously in 1992. The deputy judge found that Grace and Emma rather sided with their mother over this, but he rejected suggestions on behalf of the claimants that ill feeling resulting from this and other matters carried through to the time of the 2001 will. An American friend of Mr Adam called Charlene, of whom he was very fond, also featured in the narrative in 1992 and on occasions later until February 2001. But this relationship has no real bearing on the issue in this appeal.
11. By the time Mr and Mrs Adam separated, his mobility, vision and speech had become severely affected and he had begun to be incontinent. Mr Sharp and Mr Bryson had become quite close to him. In the several months between Mrs Adam leaving and a reliable carer arriving, it was Mr Bryson who put Mr Adam to bed at night and looked after him at weekends.
By late 1993 or 1994, Mr Adam could no longer speak nor read. He could still then use a wheel chair. There was however a large body of evidence, accepted by the deputy judge, that he continued to be able to communicate – by a spelling board, by thumbs up or thumbs down movements, by nodding or shaking his head, by rolling his eyes, and latterly by blinking. Those with whom he communicated became accustomed to these means of communication and kept a sharp eye on him for indications that he wanted to communicate something. They then in the later stages had to ask closed questions which could be answered "yes" or "no", covering various options, until they had identified what he wanted to say. All the evidence, apart from some of that of Grace and Emma, was that this means of communication worked. It became almost second nature to those in day to day contact with Mr Adam. In the words of Anna Hall, who was Mr Adam's solicitor from about 1988 until his death, anyone who made the mistake of assuming that lack of speech equalled lack of understanding was soon put right very quickly. Mr Adam could and did get very cross with anyone who did not follow his instructions or treated him in a way which suggested a lack of respect.
Between 1994 and 1996, Mr Adam employed a nephew to manage the stud. He was discovered to have defrauded his uncle and dismissed. Mr Sharp was promoted to stud manager and Mr Bryson to stud groom. They worked very closely with Mr Adam, consulting him about most major decisions. They visited him daily. Mr Sharp needed and sought Mr Adam's approval for expenditure over a certain level and Mr Bryson sought Mr Adam's decisions on business matters once or twice a week. They were paid less than the going rate for their jobs. When, in 1995 or 1996, Miss Hall suggested that their salaries might be increased, Mr Adam refused. But that did not affect their relationship with him.
In 1996, Mr Adam travelled to Germany to be medically assessed to see whether different treatment might be effective. He was in hospital there between 22 nd August and 2 nd September 1996. A team of three doctors produced a report, which we shall consider in detail later in this judgment.
Between 1996 and 2001, Mr Adam became increasingly debilitated. By 1999, he was more or less completely paralysed from the neck downwards most of the time. Nevertheless he was able to continue to communicate with those around him. The evidence here varied somewhat between witnesses. Grace Adam, for instance, said that in the last couple of years before his death, his communication was virtually non-existent. But the judge accepted evidence that Mr Adam was able to communicate sufficiently to be able to give instructions for the preparation of the 2001 will.
Mr Adam's wills
Details of Mr Adam's wills and codicils are given in paragraphs 20 and 21 of the judgment. He made wills in May and November 1993. The first of these left specific legacies, including legacies to Mr Sharp and Mr Bryson – the choice of a horse and a painting (Mr Sharp) and the gun traps (Mr Bryson) – and the residue of the estate to Grace and Emma Adam in equal shares. The second also left the residue to Grace and Emma. By October 1994, the specific legacies to Mr Sharp and Mr Bryson had been revoked. By a will of 6 th February 1997, Mr Adam again left the residue of his estate to Grace and Emma in equal shares. It is agreed that Mr Adam had testamentary capacity in February 1997.
By the 2001 will, Mr Adam left pecuniary legacies of £25,000 to Kelly Neville, one of his carers, and £4,000 to Mr Hancock, a long standing friend, and...
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