Victoria Elizabeth Copley v Daniel Brent Winter
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 2023 |
| Neutral Citation | [2023] EWHC 1712 (Ch) |
| Docket Number | Claim No PT-2021-LDS-000134 |
| Court | Chancery Division |
[2023] EWHC 1712 (Ch)
Claim No PT-2021-LDS-000134
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LEEDS
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Mr Sam Healy (instructed by Elmhirst Parker LLP) for the Claimant
Ms Fay Collinson instructed by Thornton Jones) for the Defendant
Hearing dates: 25, 26, 27 April 2023
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on Thursday 6th July 2023.
INTRODUCTION
This claim relates to the will of Elaine Doris Lodge (hereafter “Elaine 1”). She was born on 22 June 1944 and died on 22 February 2019 at a care home, Victoria House which is in Ryhill, Wakefield (“Victoria House”). During her life she lived for more than 50 years with Brenda Stephenson (“Brenda”). Brenda died on 16 February 2018.
Other family and friends particularly relevant to this claim include:
2.1. Tina Rowley (“Tina”), daughter of Brenda and mother of the Claimant and Andrew (known as “Andy”) Stephenson;
2.2. The Claimant, as indicated, a granddaughter of Brenda, daughter of Tina and sister of Andy;
2.3. Kerry Stephenson (“Kerry”), the wife of Andy and therefore sister in law of the Claimant.
2.4. Josephine (known as “Josie”) Winter, a good friend of Elaine, and the mother of the Defendant;
2.5. The Defendant, the daughter of Josie and himself a friend of Elaine.
2.6. Adele Atkins (“Adele”), niece of Elaine;
2.7. Rachel Ruston (“Rachel”), niece of Elaine.
At the time of her death, Elaine owned a house known as the Rowans at 1 Tun Lane, South Hiendley 2. She also owned land on Lund Hill Lane and Church Lane 3, Havercroft 4, on which she kept horses. That land is held under a single title number and it is convenient to call this land collectively “the Havercroft land.” A copy of the plan in her will of 17 January 2019 appears at Appendix 1 to this judgment. Church Lane runs approximately North West to South East across the top of the plan and Lund Hill Lane runs North East to South West on the left hand side. Though the land is essentially two discrete plots, it is joined by a lane. Since one part borders Church Lane and the other Lund Hill Lane, it has been convenient to call the two parcels by the name of the adjacent lane. The plan is annotated to show four relevant features.
3.1. A – the Defendant's house;
3.2. B – the Church Lane Land;
3.3. C – the Lund Hill Lane land;
3.4. D – the lane joining the Church Lane land and the Lund Hill Lane land.
Elaine had previously executed wills in 1992; on 25 March 2011 (“the 2011 Will”); and on 21 January 2017 (“the 2017 Will”). Shortly before her death, she gave instructions to a solicitor, Ms Amanda Fletcher, for a new will to be prepared. Those instructions led to a draft being sent to her on 11 January 2019 (“the Draft 2019 Will”). That draft was in turn revised and a new will was executed on 17 January 2019 (“the 2019 Will”).
The similarities and differences between the 2011 Will, the 2017 Will, the Draft 2019 Will and the 2019 Will are set out Appendix 2 to this judgment. The significant difference between the 2017 Will and the 2019 Will is that, whilst the earlier will gave the Church Lane land to the Defendant (if Brenda predeceased Elaine, as was in fact the case), the latter gave the land to the Claimant with the expression of a wish that the Claimant offer it to the Defendant at market value if she should choose to sell. The intervening draft 2019 Will mirrored the 2019 Will in giving the Defendant a right to buy at market value, but included an overage provision in the Claimant's favour.
THE LITIGATION
Given the dispute that had arisen as to the validity of the 2019 Will, the Claimant issued a claim form, on 14 October 2021 seeking a pronouncement of its validity. The Defendant defended and counterclaimed, inviting the court to pronounce against the 2019 Will and in favour of the 2017 Will.
The matter proceeded through directions to a trial in front of me in April 2023. During the trial, I heard from the following witnesses:
7.1. The Claimant – by statement dated 9 August 2022 and oral evidence;
7.2. Amanda Fletcher, a solicitor and member of Bury & Walkers LLP (“Bury & Walkers”) – by statement dated 9 August 2022 and oral evidence;
7.3. Kerry Stephenson, the Claimant's sister-in-law — by statement dated 22 July 2022 and oral evidence;
7.4. Jane Brear, a senior care assistant at Victoria House – by statement dated 5 August 2022 and oral evidence;
7.5. The Defendant – by statement dated 12 August 2022 and oral evidence;
7.6. Sarah Steel by witness statement dated 10 August 2022 and oral evidence;
7.7. Anna Steel by witness statement dated 11 August 2022 and oral evidence;
7.8. Adele Atkins by witness summary dated 11 August 2022, based on a discussion with the Defendant's solicitor, Ms Elizabeth Fyfe, and by oral evidence.
At the conclusion of the trial, I reserved judgment.
THE ISSUES IN SUMMARY
The Defendant contends that the 2019 Will is invalid for the following reasons:
9.1. that Elaine lacked testamentary capacity at the time of execution of the will;
9.2. that it is invalid for lack of knowledge and approval on Elaine's part;
9.3. that it was procured by the assertion of undue influence by the Claimant.
The second of these, the lack of knowledge and approval was sensibly not pursued by the Defendant in closing submissions. It is not necessary to deal with it further.
THE LAW
Testamentary capacity
The test of testamentary capacity was set out by Cockburn CJ in Banks v Goodfellow (1869–70) LR 5 QB. 549 at 565,
“ It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, 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 the mind had been sound, would not have been made.”
Briggs J, as he then was, said in Key v Key [2013] EWHC 408 (Ch):
‘ The burden of proof in relation to testamentary capacity is subject to the following rules.
i. While the burden starts with the propounder of a will to establish capacity, where it is duly executed and appears rational on its face, then the court will presume capacity.
ii. In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
iii. If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less’
In Hughes v Pritchard [2022] EWCA Civ 386, the Court of Appeal considered the so-called “Golden Rule” that a medical practitioner should be asked to consider the capacity of a testator who is aged or suffers serious illness. Asplin LJ, with whom the remainder of the Court of Appeal agreed, said:
“84. It is well known that a rule of practice has long been established that when making the will of an aged testator or a testator who has suffered a serious illness, it should be witnessed and approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his findings. That has become known as the “golden rule” which was explained in ( Kenward v Adams Times Law Reports, 29 November 1975).
85. The Court of Appeal considered the status of such medical assessment in Sharp v Adam. May LJ who gave the judgment of the court, stated as follows, at [27]
“… [Counsel] on behalf of the Appellants, came quite close to submitting that such meticulous compliance with the golden rule should in principle be determinative. In our view, this would go too far. The opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may nevertheless very occasionally be shown by other evidence to be wrong. The golden rule is a rule of solicitors' good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule.”
Briggs J also observed in Key v Key at [8] that compliance with the golden rule does not operate as a “touchstone” of the validity of the will, nor does non-compliance demonstrate its invalidity.”
At paragraph 80 of her judgment in Hughes v Pritchard, Asplin J noted the position where a solicitor gave evidence as to the capacity of the testator but that evidence was contradicted by other material before the court:
“the Judge must evaluate all of the relevant evidence in relation to capacity. There may be clear evidence contrary to that of the solicitor. Furthermore, it should be borne in mind that the weight to be given to conclusions reached by the lawyer drafting the will depends on the circumstances. As Christopher Pymont QC, sitting as a deputy High Court Judge, quite properly pointed out in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43]: “Any view a solicitor may have formed as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless”. There may be good reason to place less reliance on the solicitor's evidence, depending on the circumstances.”
Undue Influence
The principles relating to the allegation of undue influence of a testator were summarised by Lewison J in Edwards v Edwards [2007] WTLR 1387:
“ There is no...
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