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Will drafted by experienced partner was invalid, appeal judges rule

Mummery LJ compares case to modern version of Jarndyce v Jarndyce

20 February 2013

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A will drafted by an experienced solicitor and executed by a woman who had not necessarily lost testamentary capacity has been ruled invalid by the Court of Appeal.

Ruling that the will was invalid for ‘want of knowledge and approval of contents’, Lord Justice Mummery compared the case of Daphne Burgess to Jarndyce v Jarndyce and said the estate would become “worthless”, if it was not already.

“A six-day trial with 26 witnesses does not come cheap,” Mummery LJ said. “Now there is this appeal.

“It may be recalled that the foggy family law suit in Jarndyce v Jarndyce dragged on before the Lord Chancellor for generations until nothing was left for the parties to take.

“The Civil Procedure Rules and the efforts of legal advisers have not dissuaded these parties from following a course leading to the dissipation of the whole of the deceased’s estate in costs and legal fees, which has happened faster than under the dilatory procedures of the unreformed Court of Chancery in the Jarndyce days.”

Fair share

The court heard that Daphne Burgess died at the age of 80, in May 2009, leaving three children. Daughter Julia sought to uphold the validity of a will made by her mother in 2007, which divided the estate equally between her and her sister, Libby, but cut out her brother, Peter.

Peter and Libby, neither of whom were involved in the arrangements for the will or were told about it at the time, disputed its validity.

The trial judge found that the will was invalid both for lack of testamentary capacity and want of knowledge and approval.

Giving the leading judgment in Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ said he had doubts about whether Daphne lacked the capacity to make a will.

Experienced solicitor

He described John Webster, the partner at Woodfines in Bedford who advised on the will, as an “experienced solicitor in the making of wills, averaging one a week”.

He said it was a “very strong thing for the judge to find the deceased was not mentally capable of making the will when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.”

Mummery LJ declined to rule on testamentary capacity. However, he found that the trial judge had properly directed herself on the law regarding want of knowledge and approval.

“The 2007 will was made in circumstances that justified the court’s insistence on affirmative evidence that the deceased knew and approved its contents.

“Peter took a share of the residuary estate in the 1996 will. Although Julia and Peter fell out, the deceased and Peter did not fall out,” he said.

Mummery LJ dismissed Julia’s appeal. Lord Justice Patten and Sir Scott Baker agreed.

True wishes

Matthew Evans, partner at Hugh James, who specialises in contentious estates, said: “There was great scrutiny on the will-writing process and practical steps taken by the solicitor. That allowed the judge to make findings of fact in relation to capacity and understanding and, ultimately, conclude that both were lacking.

“Practitioners need to properly consider and test a client’s understanding of their will and to not be afraid to ask potentially difficult questions to establish a client’s true instructions.”

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Wills, Trusts & Probate