Capacity – Burgess v Hawes  WTLR 423
This case also shows the vital importance of making sure that the instructions given are those of the testator and not a third party. Even if testamentary capacity of a client is not thought to be an issue by the solicitor when taking instructions for a Will or attending to its execution, the court will make its own decision on capacity using the Banks v Goodfellow test based on medical and factual evidence.
Daphne Burgess died on 30 May 2009 leaving a Will dated 12 January 2007 as her last Will. This revoked her previous Will dated 23 September 1996 which had left her residuary estate equally between her 3 children Libby, Peter (together the claimants) and Julia (the first defendant). The 2007 Will left her residuary estate only to Libby and Julia in equal shares, thereby cutting Peter out. A clause in the 2007 Will stated:
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.”
In 2006 Peter bought a bungalow in his own name and with his own money for his mother to live in. She moved into this in early 2007 and following the sale of her previous property in April 2007, had a comparatively large capital sum which she was unused to having. Daphne wanted a new kitchen and bathroom in the bungalow and spent around £22,000 of her own money on these. In evidence, Peter said he did not believe his mother would have seen this as an early payment of his inheritance but more a reimbursement of what had been spent on the property and she was a proud person who liked to pay her own way where possible.
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The file note for the solicitor who had never previously met Daphne recorded that “She’s paying to improve that property therefore what’s left to go between daughters.” It also recorded “at least £40,000 to son therefore equal split” although there was no evidence as to where the figure of £40,000 for the bathroom and kitchen improvements came from.
Daphne expressed concern as to her right of tenure if anything happened to Peter and so Peter sent her a rent-free lease which she never signed.
There was evidence from a variety of witnesses for the claimants that Daphne was mentally confused around the time she gave instructions for and executed the 2007 Will. She suffered a fall for no apparent reason on 29 December 2006 when she cracked her head as she fell. At the time of the fall the cause of it was unknown despite her attending hospital. It was put down to changes in her blood sugar levels as a result of not managing her diet as necessary due to her diabetes. Peter subsequently said he realised that this fall was caused by a mini-stroke after she had had a later stroke.
However evidence from Julia and her witnesses was that although Daphne became increasingly frail over the later years of her life, she remained mentally fit until her death in May 2009.
At the time instructions for the 2007 Will were given, Peter and Julia had fallen out and had no contact. Julia arranged for Daphne to see a solicitor, taking her to the appointments. By the time the 2007 Will was executed, Peter and Daphne had re-established contact but the fact that Peter had been cut out of the Will was not mentioned. Julia also assisted Daphne in investing the balance of the completion monies.
Libby and Peter challenged the 2007 Will on the basis that Daphne lacked testamentary capacity at the time of its execution and/or she did not know or approve of its contents.
The judge stated that it is presumed that every person has mental capacity until the contrary is proved and the burden of proving such testamentary capacity at the time of execution rests on the person who seeks to propound the Will. It is for the court to determine the issue of capacity on the totality of both medical and lay evidence –Hanbury v Hanbury (1892)8 TLR 559.
The test for testamentary capacity laid down in Banks v Goodfellow (1870) LR 5 QB 549 applied:
It is essential that a testator shall:
- understand the nature of the act and its effects;
- understand the extent of the property of which he is disposing; and
- be able to comprehend and appreciate the claims to which he should give effect.
The test of capacity is issue-specific and the question must be considered in relation to the particular transaction and its nature and complexity Hoff v Atherton  WTLR 99.
Where the suspicion of the court is aroused the propounder of the Will has the burden of proving affirmatively that the deceased knew and approved of the Will he was executing Barry v Butlin (1838) 2 Moo PC 480. The greater the suspicion the harder it is for the propounder of the Will to dispel that suspicion and the court is to take a properly objective approach Wintle v Nye  1 WLR 284.
The judge found that there was a significant loss of capacity after the summer of 2006, despite some evidence to the contrary and in that context he reviewed the Will-making process. He found that Daphne loved all 3 of her children very much and in his judgment, in equal measure. He did not find that Daphne had fallen out with any of her children and remained close to all of them. On the basis of the evidence he found that if Daphne had decided to leave Peter out of her Will, she would have discussed this with Peter herself. “I consider it more likely that Julia Hawes did not think it right that her mother should pay for the kitchen and bathroom… and she was cross with the arrangement.”
He found evidence which supported the contention that it was Julia who was directing the Will making process and was present while instructions were given. He felt that the appointment for signing the Will in January 2007 could sensibly have been rearranged as Daphne had fallen in the preceding 2 weeks and was suffering from poor health generally at that time.
The judge held that Daphne failed the third limb of the Banks v Goodfellow test as she did not have the necessary degree of understanding either when giving instructions for or when executing the 2007 Will to comprehend and appreciate the claims to which she should give effect. Even if she did have testamentary capacity (contrary to his judgment) he found that she lacked the appropriate knowledge and approval of it. The 1996 Will was to be admitted to probate and not the 2007 Will.
- In this case, the solicitor did not record when Julia left the room (if at all) while instructions were given for the new Will. Particularly if there is an unusual provision, such as excluding a child, careful notes should be recorded of who was present at the meeting or when they left the room so there is clear evidence of who was giving the instructions.
- Best practice is for only the testator to be present in the room or if another person is present at their request, a clear record should be kept of who gave which instructions.
- In this case, the solicitor did not send out a draft of the Will for Daphne to read through before the execution meeting, merely reading it over to her at the meeting. Particularly in the case of elderly clients, it is good practice to send a draft out so that the client has time to consider and reflect on the provisions before attending the execution meeting.
Laura Banks & Gill Steel
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