A matter of record

Mummery LJ, in the recent Court of Appeal decision of Hawes v Burgess (Hawes v Burgess and anor [2013] EWCA Civ 74) stated: “the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer”. But, should the courts treat years at the coalface as synonymous with competence?

Hawes v Burgess involved a close-knit and loving family. They found themselves embroiled in a lengthy probate dispute as a result of a professionally drafted will that excluded the testatrix’s only son. The judge at first instance, Her Honour Karen Walden-Smith, found “it is quite plain that Daphne loved all three of her children [Libby Burgess, Julia Hawes and Peter Burgess] very much and, in my judgment, in equal measure”.

The case is the latest instalment in the courts’ see-saw approach to the weight of a solicitor’s evidence when a will is challenged.

Excluded brother

Daphne Burgess executed a will in 1996, which left her estate in equal shares to Peter, Libby and Julia. Considerable lay evidence of Daphne’s declining physical and mental health during 2006 was advanced at trial.

Unbeknown to Peter and Libby, Julia took their mother to meet solicitor John Webster on 20 December 2006. Webster had not met Daphne until then. He took instructions for a new will that excluded Peter. Clause 22 of the will, which immediately followed clause 10, read: “I make limited provision in this, my will, for my son, Peter, because of the substantial lifetime provision I have made or will shortly be making in his favour.” Julia gave evidence that she was out of the room when Daphne told Webster the basis on which Peter was to be excluded. The judge found this to be “implausible” and said that “Julia Hawes was present throughout the meeting”.

On 29 December 2006, Daphne blacked out and fell in Peter’s kitchen. Although she tested “normal” in a neurological examination, the judge accepted the evidence from emeritus professor of old age psychiatry at the University of Oxford, Professor Jacoby, that this did not rule out a mini-stroke ?(a transient ischaemic attack).

On 12 January 2007, Julia and Daphne met Webster again. Daphne signed the will in front of two legal secretaries. At trial, Webster said he could not recall the meeting but his normal practice was to read out a draft will verbatim and then explain it. There were two errors in the 2007 will, according to the evidence, one being the clause numbering and the other Peter’s middle name was written as ‘Giles’ ?instead of ‘Charles’. Neither error was noted at the meeting.

Daphne died on 30 May 2009. It was not until then that Julia told Peter and Libby of the 2007 will. Libby, although ?in receipt of a greater share under the 2007 will, sided with Peter.

Validity challenged

Peter and Libby issued proceedings challenging the validity of the 2007 will on the grounds of lack of capacity and want of knowledge and approval. They also sought repayment to the estate of various pre-death payments made from Daphne’s bank account for the benefit of Julia and her family, some by cheques signed by Julia as the authorised signatory.

At trial, 26 lay witnesses gave evidence and a further written statement was unchallenged. After some discussion at the start of the trial, Julia called Webster to give evidence. Professor Jacoby gave ?expert geriatric psychiatric evidence.

Daphne had lacked both knowledge and approval and the requisite testamentary capacity to execute the 2007 will, held Walden-Smith HHJ. She was satisfied on the first two of the three ?Banks v Goodfellow limbs:

• the testator must understand the nature of the act and its effects;

• the testator must understand the extent of the property of which ?he is disposing.

However, the third point – that the testator shall be able to comprehend and appreciate the claims to which he ought to give effect – was not approved.

Walden-Smith HHJ relied, in part, on the evidence of Professor Jacoby that Daphne “was suffering from a disorder of the mind, namely vascular dementia at the time she gave instructions (on 20 December 2006) and executed (on 12 January 2007) the disputed will”.

The professor considered: “…the vascular dementia was of moderate severity at the material time so that at the time she made the will the disorder of mind was not so severe that it impaired her ability to understand the general nature and consequences of making the will nor, in his opinion, was it probably so severe as to impair her ability to appreciate sufficiently the extent of her estate.”

However, he said that “if the court were to decide that she excluded her son on erroneous grounds, in my opinion, this would probably have been due to her disorder of mind”.

Walden-Smith HHJ also ordered Julia to repay £18,797.68 to the estate, and to pay her siblings’ costs. Julia appealed the judgment regarding the validity of the 2007 will. However, she did not challenge the repayment order.

Testamentary capacity

All three Lords Justices dismissed the appeal. Mummery LJ, giving the leading judgment, found that the first instance judge (Walden-Smith HHJ) was entitled to conclude that her concerns about whether Daphne knew and approved the 2007 will were not allayed by Julia’s evidence. He therefore found it was unnecessary to express a concluded view on lack of testamentary capacity.

However, considering the judge at first instance was satisfied on the first two of the three limb tests, he said: “It is reasonable to expect that a testatrix, who is capable of understanding that much, would normally be ?capable of understanding the claims arising to which she ?ought to give effect in her ?family situation.”

Patten LJ concurred. Sir Scott Baker said he had “grave doubts” about the correctness of the first instance conclusion on testamentary capacity but expressly agreed with Mummery LJ on knowledge and approval.

In considering whether Walden-Smith HHJ correctly applied the law on testamentary capacity to the evidence, the Court of Appeal appear to have struggled with the principle that the evidence of the will draftsman should not trump all else.

Experienced solicitor

Mummery LJ stated: “It is, in my opinion, a very strong thing for the judge to find that the deceased was not mentally capable of making the 2007 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.”

He described Webster as “an experienced solicitor in will matters, having been responsible for the preparation of about 50 wills a year” ?and referred to “the important part played by Mr Webster”.

Under cross-examination from Penelope Reed QC, Webster agreed in evidence that “it can be difficult to assess capacity when somebody else is present”.

However, he did not recall asking ?Julia to leave the room and, critically, there is no reference to this in any note. Julia gave evidence that she did not recall contributing anything to the 20 December 2006 meeting.

Webster’s handwritten note records that Daphne’s “new address is brother’s house”, crossed out and replaced by “son’s”. Walden-Smith HHJ found Julia’s evidence “implausible” and concluded that Julia was “the controlling force” in the giving of instructions for the 2007 will.

Golden rule

Webster’s typewritten note of the ?20 December 2006 meeting described Daphne as “entirely compos mentis” (a comment not included in the handwritten note) and that he had no hesitation in taking instructions from her. But he had never met Daphne before. He did not carry out a formal assessment but “simply took a view on the basis of her conduct at the time”. There is no reference to regard for Templeman J’s ‘golden rule’ in Re Simpson. The Court of Appeal did not comment on this omission.

The golden rule’s relevance had been reinforced by Mr Justice Briggs in Key v Key EWHC [2010] 408 (Ch). He stated: “Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance ?of disputes, or at least in the minimisation of their scope.

“As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.”

Briggs HHJ criticised the draftsman for not following the golden rule, saying that “a significant element of responsibility for this tragic state of ?affairs lies with the draftsman”.

Because Webster did not send the draft will to Daphne for her checking and approval, she first saw it on her visit with Julia on 12 January 2007. Webster could not explain why he had not noticed the error in the paragraph numbering and Peter’s middle name.

Furthermore, he could not remember specifically whether he had gone ?through the will verbatim with Daphne and Julia. He simply described that as ?his normal practice.

Medical expert

The Court of Appeal only really identified one area of evidence that carried weight with the judge, namely that of Professor Jacoby. Mummery LJ highlighted that Professor Jacoby “had never met or examined the deceased” and said “it is a strong thing for the judge to act on medical evidence not based on any meeting with or any medical examination of the deceased at that time, or at any time”.

However, there was no evidence at first instance from a medical practitioner who had met Daphne.

A medical expert can play an important part in probate proceedings in providing an analysis of the behaviour described by witnesses of fact. Walden-Smith HHJ relied on Professor Jacoby for exactly that purpose. Bank v Goodfellow requires that no insane delusion shall influence the testator’s will.

Therefore, it was necessary for ?Walden-Smith HHJ to weigh in the balance Professor Jacoby’s evidence that a “normal” result in a neurological exam “does not rule out a mini-stroke” and that “on the basis of the evidence of the claimants and their witnesses he concluded that the vascular dementia ?was of a moderate severity at the material time”.

The Lord Justices appear to draw?no adverse inference from Webster’s conduct and discount the value of ?expert medical evidence.

Does this judgment set a precedent for an experienced will drafter’s evidence to be of utmost importance irrespective of their apparent competence? We hope not.

Ultimately, it is for the judge to weigh up the evidence in reaching findings of fact. Some categories of evidence will carry greater weight, but surely this must be a decision based ?on the circumstances.

Lessons learned for will drafters 1. Be sensitive to the reality that third-party involvement/assistance will fuel any suspicion, whether justified or not, about the will.  2. Ideally, see the client on their own. If they insist on being accompanied, be meticulous to ensure instructions are those of the client and keep a careful record. 3. Ask open rather than closed (yes/no) questions and record interaction with the client, not least to be able to demonstrate the basis for reaching an assessment about the client’s capacity.  It is not sufficient to note that you consider the client to be compos mentis. 4. A GP’s report helps. But, on balance, judges have preferred the assessment of solicitors who are able to demonstrate reasons for their conclusion (there is recognition of the difficulty in getting a GP to provide a report). 5. Remember that the ‘golden rule’ is not just about medical assessment. Lord Templeman stressed that if there was an earlier will, it should be examined, and any proposed alterations should be discussed with the testator. Key point of the case It may have been a result of the composition of the Court of Appeal, but the benign view of the solicitor’s role is a paradox. Doubt was expressed whether the first instance judge’s decision about capacity was correct but no doubt was expressed about her decision on knowledge and approval. It is surely the case that a professionally drafted will rarely fails for want of knowledge and approval if the  professional has done their job thoroughly.

Paul Hewitt is a partner, who acted for Peter and Libby, and Natasha Stourton is a solicitor at Withers