Intended with capacity, executed without

The recent Court of Appeal judgment in Burns v Burns [2016] ECWA CIV 37 is the latest reiteration of the law relating to testamentary capacity, want of knowledge and approval of the contents of a will, and the rule in Parker v Felgate [1883]. It is also not just a salutary reminder as to the importance of following the 'golden rule' when taking instructions for a new will from an elderly testator (if disputes are to be avoided), but also a striking (possibly extremely surprising) example of how someone with a poor, failing memory can nevertheless make a valid will, particularly a simple one.

The matter related to the late Eva Burns and her last will dated July 2005 - she died aged 89 on 21 May 2010.

Mrs Burns had two sons, Colin and Anthony. She owned her home, the only asset of substance in her estate, 50/50 with Colin.

In her 2003 will, Mrs Burns left her share in the property to Anthony. There was no doubt as to Mrs Burns' capacity to make this will.

During this time, her condition was giving Anthony (who then lived with her) sufficient concern that he engaged social services to assist. A community psychiatric nurse carried out an MMSE test, which showed that Mrs Burns could not to state the year, date, season, day or month, nor could she write a sentence. She was unable to recall three common objects mentioned to her by the nurse a few minutes earlier.

By March 2004, Mrs Burns had begun to attend a day care centre, which specialised in the care of the elderly and those suffering from dementia. The manager described how Mrs Burns had dementia, and was very suggestible, although she could not be entirely clear as to when (during the period she was at this home) Mrs Burns exhibited these traits.

A further MMSE test in May 2005 made similar findings to the 2003 test, although Mrs Burns could this time identify the current month. A CAPE assessment in late May 2005 noted that Mrs Burns' 'mental health was moderately impaired with medium dependency'. A July 2005 report recorded, 'memory and concentration - patchy'.

Mrs Burns' disputed 2005 will was executed three weeks after this last report, on 26 July 2005.

The will in question

Mrs Burns used a solicitor to make this will. In 2004, she had gone with Colin to collect her 2003 will from the solicitors who held it. She wrote to the new solicitor in late 2004, setting out her intentions for her new will, namely she wanted to leave her share of her home 50/50 between Colin and Anthony, with the result that Colin would take the sale proceeds 75/25. Anthony did not contend that this letter was forged or that it had been procured by undue influence. Mrs Burns did not meet or speak to the solicitor at that stage.

It appears (although there were no file notes from the solicitor) that when Mrs Burns went to see the solicitor in late July, he was unaware of her 2003 will and failed to ask her to explain the changes being made.

Colin started a claim to prove the 2005 will and Anthony predictably counterclaimed to prove the 2003 will on the grounds that Mrs Burns lacked capacity in 2005.

The trial judge found that the solicitor '…did not know about the "golden rule". He appeared to be oblivious to the concept…'. He found that instead, the solicitor merely had a 'general discussion' with Mrs Burns, and did not ask 'questions designed to test [her] faculty.' He merely read her the will, she said she understood it, and it was executed.

Anthony argued that this meeting between Mrs Burns and the solicitor was just the sort of 'idle ceremony' which the court had warned against in Buckenham v Dickenson [2000] WTLR 1083.

Further, a consultant geriatrician gave evidence that the various tests provided 'good evidence that [Mrs Burns] was poorly orientated as to where she was in time and place, had poor recall (short term memory) and that she had problems with analysis and simple task planning. Furthermore the deficits identified were persisting for a period of three months.'

Intended with capacity, executed without

The trial judge, notwithstanding the various test results and the expert evidence, and notwithstanding the solicitor's failure to follow the golden rule, found that the 2005 will was valid. He did so (it appeared) on the basis of the rule in Parker v Felgate - the will was prepared in accordance with instructions given by Mrs Burns in 2004 when she had full capacity, and executed when she lacked it but where she still realised she was signing a document which carried her previous instructions into effect. Alternatively, the judge found that Mrs Burns simply had adequate capacity to execute her simple will in July 2005.

Anthony appealed to the Court of Appeal. At the heart of the appeal was the contention that the trial judge's findings went entirely against the weight of the evidence, and in particular failed to give adequate weight to the results of the MMSE tests.

It was submitted on Anthony's behalf that '…the grand criterion by which to judge whether the mind is injured or destroyed is to ascertain the state of the memory, for without memory the mind cannot act' (Williams on Wills (10th edn., para. 4.17). The Court of Appeal also considered the two old American authorities cited in Banks v Goodfellow: Den v Vancleve and Stevens v Vancleve. Those decisions explain how a testator with a mind that is 'in some degree debilitated' with a memory 'in some degree enfeebled' may still have a sound disposing mind and memory.

Despite the Court of Appeal's obvious unhappiness with aspects of the original decision, they nevertheless upheld the decision with the consequence that the 2005 will stands. McCombe LJ gave his verdict 'not without hesitation' and said he had 'entertained doubts as to the judge's conclusions'. Treacy LJ noted that 'some criticisms could properly be made of the judge's ruling'.

In doing so, the court restated the tests for testamentary capacity, knowledge and approval, and the rule in Parker v Felgate.

The result is a striking study of how a valid will may be made by a person with a failing memory: even an exceedingly poor one.

It is also sobering also to reflect that the appellant, Anthony, died shortly before the appeal was heard. The financial amount being litigated over was extremely small, and it is clear that the litigation was pursued to the bitter end on a point of principle. It is sad that his last years should have been consumed by bitter personal litigation of this sort, when his time, energy and finances could and should have been used in many more positive ways.

Simon Pedley of Mills & Reeve, instructing James Fryer-Spedding (9 St. John Street Chambers, Manchester), represented the appellant on the appeal

Simon Pedley is a partner at Mills & Reeve