Greaves v Stolkin

A disputed codicil was at the heart of this contested probate case (Greaves v Stolkin [2013] EWHC 1140 (Ch)). The deceased, Leslie Stolkin, had made a will eight years before his death. Seven weeks before, he made a codicil, which was challenged on the grounds of testamentary capacity and lack of knowledge and approval.

After Leslie’s marriage broke down in 1996, he began a relationship with Pauline Greaves. They were living together at the date of his death. Leslie’s will left his entire estate to his two sons but made no provision for Pauline. In 2007, he created and signed a document he believed to be a codicil making generous provision for Pauline, but this was incorrectly executed.

By 2009, Leslie had been taken into hospital. He was suffering with motor neurone disease as well as severe alcoholism. His son Mark realised that the codicil was not legally enforceable and advised his father to instruct a solicitor to put all the matters in order.

In evidence, Mark described his father as “somewhat indifferent” to the issue, but stated that he fully understood the situation. The solicitor attended the hospital and Leslie signed the new codicil. Their attendance note references Leslie’s “meaningful responses” and that he was “lucid throughout”.

Leslie’s other son, Gary, defended the claim to have the codicil pronounced in solemn form of law. He stated that Leslie lacked capacity on the day he executed the codicil and purported that his father was in a state of extreme confusion and knew neither the nature nor the effects of his actions.

The court applied section 2 of the Mental Capacity Act 2005 and Banks v Goodfellow. But it pointed to the importance of Key v Key, which states that the testator must have requisite “mental energy” for decision-making as well as adequate powers of comprehension.

Attributing a diagnosis of clinical depression to Leslie, Briggs J accepted that although Leslie may have understood the nature and effect of ?his actions, he may have lacked the mental energy.

Passive acceptance

Two expert medical witnesses gave evidence. Their conclusions differed. Professor Hodkinson believed that ?Leslie agreeing to and signing the ?codicil represented only “passive acceptance” of the contents, not his own considered decisions. He stated that patients with severe depression often lack mental energy. The hospital notes document Leslie’s episodes of confusion, although these only seemed to occur ?in the evening.

Interestingly, both experts stated that anxiety and fatigue are present more strongly later in the day. The codicil was signed in the early afternoon.

Dr Barker did not believe Leslie lacked mental energy. He said that Leslie was capable of making his opinions known, and had persuaded the nurses to provide him with whisky while in hospital. He added this was “because [Leslie] was so demanding and actually quite a difficult character, rather than his medical need for whisky”.

In upholding the codicil, the court was clear that if an experienced lawyer had drafted and witnessed a document, it should only be set aside on the clearest grounds of lack of capacity. Evidence given by a medical expert after the event – especially if they had neither met nor examined the testator – should be treated with caution. Briggs J also noted that the disputed codicil corresponded very closely with the previously unenforceable codicil.

As practice points, lawyers should be aware of a client whose execution of a document may only be a passive acceptance borne out of a lack of requisite mental energy. Arranging meetings earlier in the day can ?also be prudent to counter any ?claims of confusion.

As ever, the importance of making a good attendance note is paramount.

Jonathan Riley is a partner at Michelmores

He writes regular case updates for Private Client Adviser