Steven Anthony Burns and and Another v Colin Leslie Burns
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Treacy,Lord Justice Longmore |
| Judgment Date | 28 January 2016 |
| Neutral Citation | [2016] EWCA Civ 37 |
| Docket Number | Case No: A3/2014/1893 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2016 |
In the Matter of the Estate of Eva Burns, Deceased
[2016] EWCA Civ 37
Lord Justice Longmore
Lord Justice Treacy
and
Lord Justice McCombe
Case No: A3/2014/1893
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
LIVERPOOL DISTRICT REGISTRY
District Judge Woodburn
1LV3003
Royal Courts of Justice
Strand, London, WC2A 2LL
James Fryer-Spedding (instructed by Mills & Reeve LLP) for the Appellant
Andrew Clark (instructed by Canter Levin & Berg) for the Respondent
Hearing date: 1 December 2015
(A) Introduction
This is an appeal in probate proceedings in respect of the estate of the late Eva Burns ("the Deceased") who died aged 89 on 21 May 2010. The parties to the proceedings are her two sons, Anthony Burns ("AB") and Colin Leslie Burns (" CB"), born to her and her late husband, Mr Leslie Burns ("Mr B senior"), who predeceased her in 1988.
CB was the claimant in the proceedings below and claimed pronouncement in solemn form of an alleged will of the Deceased dated 26 July 2005 ("the 2005 Will") by which he and AB would be appointed executors and, in the absence of any specific legacies or bequests, would leave all of the Deceased's estate to be divided equally between the two sons.
AB challenged the validity of the 2005 Will on the basis that his mother lacked the requisite testamentary capacity at the date of its purported execution and on the basis that she did not "know and approve" of the contents of the same. By counterclaim in the action, AB sought pronouncement in solemn form of an earlier will, dated 8 May 2003 ("the 2003 Will"). By that will, the Deceased gave to AB all her share and interest in her property at 4 Heather Grove, Ashton-in-Makerfield ("the House"), with substitutionary gift of that property, in the event of AB predeceasing her, in favour of his issue living at her death who should reach 18 in equal share per stirpes. Her residuary estate was left to AB and CB in equal shares, again with substitutionary gifts in favour of the issue of either son in the event of him predeceasing her. There was no dispute as to the validity of the 2003 Will. Therefore, if the 2005 Will is invalid, the 2003 Will would be the Deceased's last will and would fall to be admitted to probate.
By a Deed of Transfer dated 5 January 1982 and made between the Deceased and Mr B senior of the one part and CB of the other part, in consideration of £10,000 paid by CB to them, the Deceased and Mr B senior transferred the House to themselves and to CB to be held on trust as to one half for themselves and as to one half for CB. It appears that the Deceased succeeded on her husband's death to his interest in the house and that, therefore, from his death in 1988, the House was held as to half for the Deceased and as to the other half for CB. Thus, only one half of the equity in the House fell into the Deceased's estate; the other half being held already by CB. Under the 2003 Will the Deceased's half share would be inherited by AB alone, whereas under the 2005 Will that half share would be divided equally between AB and CB. It seems that at the time of the trial the difference in value in dispute in the proceedings amounted to some £26,000 only.
By his judgment of 12 March 2014, the judge held the 2005 Will to be a valid will and by his order dated 18 March 2014 pronounced in favour of it accordingly. From that order AB appealed, with permission granted by Sir Timothy Lloyd on 24 July 2014.
A grant of administration pending suit to the estate of the Deceased was made, in the Principal Registry of the Family Division to a solicitor, Mr Ian David Sturgess. The court has been informed by the Respondent's solicitors (by letter of 3 December 2015) that the original 2005 Will has been lodged at the District Probate Registry at Liverpool. The parties agree that the form and contents of the 2005 Will properly appear from the copy appearing at pages 96 to 98 of the appeal bundle. That document is, it appears, a copy of the file copy of the will produced to the court by Mr G.A. Walton, the solicitor who prepared the 2005 Will and was one of the witnesses to its execution. Mr Walton gave evidence at the trial.
AB died on 19 October 2015, and, in the absence of a grant of probate to his estate, on 19 November 2015 Master Meacher ordered that his children Steven Anthony Burns and Laura Olivia Gramauskas, who were named as executors in AB's will of 8 January 1999, be appointed to represent AB's estate for the purposes of the appeal.
(B) Background Facts
As already noted, Mr B senior died in 1988. From about 1989 to 2003, AB lived with his mother at the House. In that latter year, it seems that he left following an argument with CB, possibly about rental payments that CB claimed from AB. As the judge records, however, it seems that both brothers continued to have a loving and caring relationship with their mother, notwithstanding strained relations between the two of them. On 21 November 2002, the Deceased executed an enduring power of attorney in favour of AB, which was prepared by the firm of solicitors that originally represented him in these proceedings. Those solicitors also prepared the 2003 Will.
The judge found the family witnesses on both sides to be lacking in impartiality and objectivity and decided that he would look primarily to the contemporaneous documents to assist him in determining the validity of the 2005 Will.
It seems that by September 2003, when the Deceased was 83 years old, her condition was giving rise to sufficient concern on the part of AB for him to engage the social services department at Wigan to assist with her care. There were reports of lack of personal care, failure properly to attend to gas appliances (cooker and heater), lack of memory and confusion. On 15 October 2003, a community psychiatric nurse, Sue McCollum, visited the Deceased at the House and carried out a "Mini Mental State Examination" ("MMSE"). (This type of test attempts to record the subject's orientation, registration, attention, recall and language.) The Deceased scored 19 points out of a possible 30 in the test. Her best score was with regard to "attention" when she showed that she could spell the word "world" backwards. However, it seems that she was unable to state, the year, the date, the season, the day or the month. She could not write a sentence. Nor could she recall three common objects mentioned to her by the nurse a few minutes earlier in the examination.
The judge records Ms McCollum as concluding at that stage that the Deceased presented a risk of isolation and neglect and of mental deterioration. As far as I have been able to detect this conclusion on her part does not appear in the documents before us. However, this assessment by Ms McCollum does not seem to be in issue. It seems that some home care and attendance by social services was being put in place as a result of the intervention. The Deceased was apparently, however, firmly opposed to leaving her home for any residential care home and was also reluctant to attend a day care centre. However, by March 2004 she had begun to attend such a centre, specialising in the care of the elderly and those suffering from dementia. Ms Diane Ralph was first the deputy manager and, from November 2004, the manager of the centre. She gave evidence before the judge and was the one factual witness whose evidence the judge exonerated from criticism on the grounds of partiality and lack of objectivity.
In her witness statement Ms Ralph had spoken of the Deceased having moderate to severe dementia and gave as an example her talking about her husband as if he were still alive. She said that, in spite of long attendance at the centre up to shortly before her death, the Deceased had not known Ms Ralph's name. It was also said that the Deceased was very "suggestible". It seems, however, that in cross-examination Ms Ralph recognised that her knowledge of the Deceased spanned 6 years and that the Deceased might well have had better understanding and retention of information in the early part of the period in 2004 as compared to the later periods leading up to her death in 2010.
In the documents before us there are copies of brief reports on/assessments of the Deceased by Ms McCollum and other social services staff in the period to July 2004, the last of which recorded that both sons felt that "there [sic] mum has improved mentally since attending the day centre". It also states that, "Mrs Burns joins in activities, smiles and chats and is clearly enjoying the benefit of attending the day centre".
It is in November 2004 that the first steps were taken towards the making of a new will. We do not have all the documents before us. However, the judge saw and referred to an attendance note recording the Deceased having attended at the offices of Messrs. Alker and Ball, the solicitors who had drawn up the 2003 Will, with a view to retrieving certain documents. That file note (not before us) apparently stated that she had attended the offices with CB and it contained a reference to September 2003 and a comment to the effect that she did not know "what or when the document required may have been prepared" and continuing with the remark that, "It may not be here anyway", which the judge was inclined to attribute to the writer of the note rather than to any...
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