Capacity – Williams v Wilmot [2012] EWHC 2211 (Ch)

 In Wills

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Where there is a question over testamentary capacity, the starting point is the Banks v Goodfellow test.  As this case shows the quality of medical reports is very important in assessing such testamentary capacity.

The facts

On 5 December 2003, Dr Monk (the deceased) executed a Will leaving his entire estate to Yvonne Williams (the claimant). The deceased used his long standing solicitor Mr Brunton to draft the 2003 Will.

In December 2006 the local authority wrote to Mr Brunton indicating that they believed the deceased’s mental wellbeing had deteriorated, which prompted a report from the deceased’s GP.  The GP carried out an assessment of the deceased where the deceased scored zero for recall and 2 for attention and calculation.  This led to a request for a further examination to be carried out by a consultant psychiatrist, Dr Shiva Kumar.

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On 19 January 2007 the deceased executed a Will prepared by a firm of solicitors some 70 miles away called Margraves, making his carer James Wilmot (the defendant) sole beneficiary.  The 2 witnesses were not known to the deceased and it was suggested that they were friends of Mr Willmot.  Mr Willmot had been employed by a private company to whom the local authority had contracted out the work to care for the deceased.

Prior to the preparation of the 2007 Will Margraves had commissioned a medical report from a Dr Arnie which ran to 6 lines, did not outline what mental state examination was carried out and showed no results of any such test.  This report concluded that the deceased did have capacity to make a Will and he understood the consequences of his actions.

On 26 January 2007 Margraves wrote to Mr Brunton requesting the release of the deceased’s title deeds, Wills and other documentation.  As Mr Brunton had acted as Dr Monk’s solicitor for a considerable period, he was alarmed by this and arranged to visit him on 29 January 2007.  His attendance note recorded that the deceased said he knew nothing about new solicitors, thought someone called Jim might be doing things behind his back and could not answer questions about whether he wanted Mr Brunton to remain as his appointed attorney.  As Mr Brunton concluded that the deceased no longer understood his affairs he registered the power of attorney which he had been granted previously.

On 7 February 2007, the consultant psychiatrist Dr Shiva Kumar carried out an examination of the deceased and produced a lengthy report.  He found the deceased to be suffering from short sight (although he couldn’t recall whether he used glasses or not), partial deafness and to be wheelchair bound.  The deceased couldn’t recall his early personal history and Dr Kumar arrived at the conclusion that he was at that stage suffering from dementia with prominent disturbance in his memory.

The claimant sought an order that the 5 December 2003 Will be admitted to probate and that the 19 January 2007 Will be rejected on the grounds that the deceased lacked testamentary capacity and/or was not sufficiently or at all aware of the contents of the 2007 Will.  Mr Willmot did not appear at the hearing nor was he represented, despite the judge being satisfied that he had been aware of the date of the hearing.

The law

The test for testamentary capacity laid down in Banks v Goodfellow (1870) LR 5 QB 549 applied:

It is essential that a testator shall:

  1. understand the nature of the act and its effects;
  2. understand the extent of the property of which he is disposing; and
  3. be able to comprehend and appreciate the claims to which he should give effect.

The claimant drew attention to paragraph 39.09 of Tristam and Coote’s Probate Practice 30th edition that:

“It is the usual practice to have any later will pronounced against, but when proceedings are undefended and evidence has been adduced in favour of an earlier will the court may pronounce for the earlier will without pronouncing against the later will provided it is satisfied that everyone interested under the later will has been served or had proper notice.”

Although it was unnecessary to consider the want of knowledge and approval element of the claim the judge also considered Fulton v Andrew (1875) LR 5 HL 448 where the judge drew attention to the test which would have to be satisfied where the beneficiary of the Will was also the person who was instrumental in having it drawn up (as here).  He said:

“But there is further onus on those who take for their own benefit, after having been instrumental in preparing or obtaining a will.  They have thrown upon them the onus of shewing the righteousness of the transaction.”

The decision

The judge looked at the available medical evidence and as that did not focus on the question of testamentary capacity (save for the short report obtained by Margraves) he found that the proximity of the examinations enabled him to make easy inferences about it.

The judge found it difficult to accept Dr Arnie’s proposition that the deceased was not suffering from any dementing illness at all in light of the GP’s conclusions a few days later and Dr Kumar’s report a few days after that.  He also found Mr Brunton a very experienced solicitor with a particular knowledge of and expertise in the testamentary capacity test.  He accepted his evidence in its entirety.

Dr Kumar had had a discussion with the deceased during his examination about a power of attorney he had entered into in favour of the defendant, although he was confused about it and its effect and the judge found it significant that he did not mention at all that he had signed a new Will at the same time.  The judge found Dr Kumar an experienced and highly qualified psychiatrist.

Mr Brunton’s evidence of him finding the deceased not fully understanding his affairs which led him to register the power of attorney following his visit on 29 January 2007 was found to corroborate the medical evidence of the GP and Dr Kumar and led the judge to conclude that the deceased did not have the relevant testamentary capacity either at the time he gave instructions for the 2007 Will nor when he executed it.

The judge found that the practice referred to in Tristam and Coote’s “if it is the practice” would apply with full force and effect in this case.  The 2003 Will was admitted to probate.

Although it was strictly unnecessary to consider the want of knowledge and approval element as he had found lack of testamentary capacity, the judge considered the Fulton v Andrew test and agreed with all the reasons put forward by the claimant as to why the suspicion of the court ought to be aroused.  The defendant had not established knowledge and approval of the 2007 Will.

Practice points

  1. It is not good enough merely to obtain a “token” medical report, it must be by a doctor of sufficient qualification and be sufficiently detailed i.e. more than 6 lines.
  2. If you receive a request for title deeds etc to be sent to new solicitors, it is always worth checking with the client that those are indeed their instructions and if they are elderly, consider the client’s capacity.
  3. If your suspicions are aroused, visit your client and check the current situation both as to their capacity and as to who is helping them make arrangements with their legal affairs.
  4. A long standing relationship with clients can never be undervalued.

Laura Banks & Gill Steel

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