Following the golden rule
Ben Parr-Ferris considers the court's approach to testamentary capacity in Burns and two recent decisions on the application of costs rules in contentious probate cases
A number of contentious cases this year have revealed a toughening environment for family members who challenge wills, and a changing approach to the cost of probate proceedings.
In Burns v Burns  EWCA Civ 37, the Court of Appeal had to consider a first-instance judgment that had a number of deficiencies.
Anthony and Colin Burns were brothers. Colin claimed pronouncement in solemn form of a 2005 will of their mother which provided for equal division of the estate between them. Anthony challenged validity on the grounds of capacity and want of knowledge and approval, preferring a 2003 will which left the mother’s 50 per cent share in her home to him. It was agreed that the 2003 will was valid. As Colin owned the other 50 per cent share in the property, the difference was the value of 25 per cent of the property.
At first instance, the judge found that the witnesses on both sides lacked impartiality and objectivity, so relied only on the contemporaneous documents. In 2003 the mother was suffering from confusion: a number of mini mental state examinations (MMSEs) were undertaken in which she did not perform well, and other evidence supported that she was confused, forgetful, and suggestible.
In November 2004 she gave instructions in writing for what became the 2005 will. In May 2005 further memory assessments were undertaken, as well as an occupational therapy test in which it was found that her mental health was moderately impaired and she required considerable care support.
Three weeks later, the 2005 will was executed in the presence of the drafting solicitor. The solicitor was long experienced but did not know of the golden rule, which requires a medical practitioner to be present at the signing of a will by the elderly or infirm. Nonetheless, he spoke to the mother, read over the will, and arranged its execution, despite not arranging for a medical witness, having regard to previous wills, or preparing a proper note.
The judge pronounced in favour of the 2005 will. The assessments of the mother’s mental ability were not directed at her testamentary capacity, but her care needs. The solicitor would have been alerted when he met her had she lacked capacity (presumably following Lord Justice Mummery’s view in Hawes v Burgess  EWCA Civ 74), and the evidence showed that she knew what she was doing. He disregarded the MMSE tests, ignored the evidence of the medical expert, ignored the independent evidence of the day-care centre manager, and took no account of the failure to follow the golden rule.
The Court of Appeal expressed its ‘doubts as to the judge’s conclusions’ and had concerns ‘as to the failure of the judge to articulate... the countervailing considerations’. However, the court then decided that the judge’s summary of the facts was a full one, and that ‘such a judgment should not readily be overturned, even if some of the materials might have been more fully dealt with’. Similarly, want of knowledge and approval was dealt with by the judge’s consideration of the solicitor being experienced and having seen the testatrix alone. The judge was then entitled to find that she did know of and approve the will.
There are several points of note from this case. First, an ‘experienced’ private client lawyer being ignorant of the golden rule is shocking, but the court (not for the first time) made clear that it is a rule of best practice, not of law. The fact that it is ignored does not itself lead to the resulting will >> >> being invalid.
What may come as more of a surprise is that the Court of Appeal will not interfere with a judgment simply because it has doubts about the judge’s findings. Provided that the judge considered the evidence and the findings of fact were sustainable on that evidence, the court will not readily interfere with them.
However, there is another, more important point. MMSEs and similar tests undertaken by medical professionals are not determinative of capacity, and a judge can disregard them. These tests are frequently in evidence in capacity and want of knowledge cases but they may not have the effect that claimants think they do.
There are also significant signs of the court’s changing approach to the costs of probate proceeding, highlighted by two first-instance cases: Elliott v Simmonds  EWHC 962 (Ch) and Breslin v Bromley  EWHC 3760 (Ch).
As in any civil claim, the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party. The court can, however, depart from that general rule, and in contentious probate cases there are two specific exceptions:
If the litigation has been caused by the conduct of the testator, the court can order that the costs are paid from the estate; and
If there are reasonable grounds for investigation into the validity of a will, the court can make no order as to costs.
In Elliott, the defendant was an illegitimate child of the deceased who entered a caveat that prevented a grant of probate being made after no provision was made for her in the will. She nonetheless made no claim on the estate, and after two years had passed the executor issued a claim to prove the will. The defendant still raised no challenge to the will but raised the passive defence that she insisted on the will being proved in solemn form and on cross-examination of the witnesses. Under part 57.7(5) of the Civil Procedure Rules, the court normally makes no order as to costs against such a defendant unless there was no reasonable ground for opposing the will.
In this case, however, the judge found that the points taken in cross-examination of the witnesses would not have revealed anything of assistance to the court on the validity of the will. Even taken together, the various grounds did not amount to a reasonable ground. It therefore reverted to the usual rule on costs and ordered the defendant to pay the costs from the time when she had sufficient information to know that the defence should have been withdrawn. The court ordered a payment on account of £65,000.
It is not uncommon for defendants to raise these defences in the expectation that the costs of the exercise will be borne by the claimants, and it may lead to a settlement involving some payment to the defendant. Elliot demonstrates that this is a risky strategy and that claimants would be well advised to consider the likely arguments against the will before making concessions.
In Breslin, the claimant was the executor and beneficiary of his aunt’s will. He had taken his aunt to a solicitor to give instructions, but she took the will away and executed it elsewhere. One of the witnesses later made a statement that only he had been present at the time of execution, contrary to section 9 of the Wills Act 1837, and the defendant challenged the will on that basis. The claimant brought a claim to propound the will and succeeded. The unsuccessful defendant argued that she should not have to bear the costs because:
The litigation would not have been necessary had the claimant dealt with the execution properly;
The deceased was the cause of the dispute because of a statement made about her wills that misled the defendant; and
The circumstances warranted investigation.
Mr Justice Newey dismissed these arguments on the following grounds:
The mere fact that someone was responsible for a will having been executed otherwise than in front of a solicitor does not make them the cause of the litigation about it;
A testator is not to be taken to have promoted litigation because he ‘misled other people and perhaps inspired false hopes… that they may benefit after his death’ (per Re Cutliffe’s Estate  P 6); and
The judge did not consider whether the investigation had been reasonable. The defendant had made a commercial decision to oppose the will which had proved mistaken. In those circumstances it was fair that she should pay at least some of the costs incurred by the claimant. '©
Interestingly, another defendant who relied on the passive defence raised in Elliott succeeded in having no order made against her, but did have to pay her own costs. This is a first-instance decision and may be of limited application, but beneficiaries to contested wills may well wish to consider the ‘commercial’ element of the decision to challenge when assessing the likely costs order that will be made. What is certain is that when applyingthe costs rules, the courts are becoming far less accommodating for family members challenging wills.
Ben Parr-Ferris is a member of the dispute resolution team at Healys Solicitors