Will validity – Re Wilson decd (also known as Turner v Phythian) [2013] EWHC 499 (Ch)

 In Elderly/Vulnerable Client, Wills

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Will validity and Mental CapacityThis case reconfirms the requirements for a Will to be valid and also looks at the ever-popular issues of capacity and knowledge and approval, wading through conflicting evidence from the parties.  It repeats that if a beneficiary of a Will is involved in preparing that Will, the suspicions of the court will be aroused and the evidential burden will shift so it will be for that beneficiary to prove the testator’s knowledge and approval of the Will.

The facts

Iris Wilson, a widow for three years, died on about 6 October 2010 in her flat in East London.  She and her late husband had had no children but were both members of large families.  Iris’ last (and only) Will was dated 31 August 2010 and appointed Richard Phythian as her sole executor.  In it Iris left Richard’s wife Pamela all her personal effects and the residue of her estate with a gift over to Richard.  A property, North Lodge, in Kent which was the main asset in the estate was left in equal shares to Richard and Pamela.

Pamela had met Iris and her family when she had become engaged to Iris’ twin brother, John Jolly in the 1950s.  She was so friendly with Iris that she was a bridesmaid at her wedding to Alf Wilson in 1956. Despite his engagement to Pamela, John had maintained his relationship with Jesse and on Jesse’s pregnancy, he broke off the engagement to Pamela and married Jesse.

Pamela subsequently met and married Richard Pythian and both are now in or near to their 80s.  After her marriage Pamela maintained some contact with Iris and her sister Jean Naden but for many years this was only to the extent of exchanging Christmas cards. Following the death of Iris’ husband Alf in 2007, the Phythians became more involved with Iris and Richard began to take over the management of Iris’ financial affairs.  Richard oversaw repair works to and the upkeep of North Lodge which was close to his home. Initially he was reimbursed for the expenses by Iris on a piecemeal basis but then £16,000 was transferred to him and he maintained detailed records of the expenses he had paid on Iris’ behalf with this money. Richard drove Iris wherever she wanted to go and he and Pamela kept her company for many hours.

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One of John and Jesse’s children Lynda Turner brought proceedings claiming that the 2010 Will was not valid on three grounds:

a)      The Will was not properly executed;

b)      Iris lacked the necessary mental capacity to make the Will; and

c)      Iris did not know or approve of the contents of the Will.

With regard to the first ground and lack of execution, Lynda argued it was not signed in the joint presence of the witnesses Iris’ sister Jean and Barbara Leslie, Jean’s long-standing friend and neighbour.  Both Jean and Barbara gave evidence supporting Lynda but Richard, who organised and was present at the signing denied any lack of proper execution.

As far as Iris’ mental capacity was concerned family members gave evidence of Iris’ fragile mental state and family friends gave evidence of how frail she had appeared at her brother John’s funeral some two months before the Will was made.  There was medical evidence including a report from Prof Robin Jacoby, Professor Emeritus of Old Age Psychiatry at Oxford University.  Prof Jacoby did not examine Iris during her lifetime but from examining the contemporaneous records and family statements, gave his opinion that she was severely or even psychotically depressed and would have therefore have been suffering from cognitive impairment at the time of making the Will. Richard and Pamela contended that although Iris was physically frail at the end of her life, she remained mentally alert and was in full control of her financial and household affairs.

For the third ground, Lynda stated that Iris was part of a very close knit family who cared for her and looked after her for many years.  She and Pat Jolly, a daughter of one of Iris’ other brothers, had spent much time and care for many years in looking after Iris, whereas Richard and Pamela had only become involved in providing some not substantial help after the death of Iris’ husband in 2007.  This small amount of help could not explain why Iris would want to leave everything to the Phythians so it was unlikely Iris realised this was what she was doing.

Additionally, Lynda gave evidence that Richard had become involved in drafting a Will for Iris’ sister Jean Naden who was 89 years old at the hearing, under which he had been left a number of shares which Jean did not appreciate the true value of.  When this current dispute started, Jean revoked her Will and Lynda sought to show that therefore Richard “was not a man to miss an opportunity for making suggestions for his own advancement.

In contrast, Richard and Pamela said that Iris’ contact with her family was not as warm and loving as the family portrayed it and she had had less contact with them towards the end of her life, being dependent on their friendship and on their help for her day to day needs.  Iris had wanted to leave them North Lodge for some time and this was unsurprising given the role they played in her life.  Richard claimed that even if the Will failed he was entitled to a share of North Lodge on the basis of proprietary estoppel.

Richard was the only person who could give evidence about how Iris made her Will as only he had been involved.  Iris had said she wanted to make a Will after attending her brother John’s funeral and a month later Richard had gone through her instructions with her, recording what she wanted.  Richard then drafted the Will himself, although he gave evidence this was the first Will he had ever drafted.  Nearly a month after taking Iris’s instructions, Richard took a draft Will to Iris and after reading it out to her, left it with her unsigned.  A week later, Richard took Iris round to her sister Jean’s where the Will was signed.  Richard had strongly urged Iris to see a solicitor but she had not wanted to and it was common ground that she never wanted any professional help either from doctors or lawyers.

The law

With regard to proper execution of the Will s.9 Wills Act 1837 provides:

No Will shall be valid unless:

(a)   It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)   It appears that the testator intended by his signature to give effect to the Will; and

(c)    The signature is made or acknowledged by the testator in the presence of two of more witnesses present at the same time; and

(d)   Each witness either

(i)                 Attests and signs the Will; or

(ii)               Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.

For capacity, the judge referred both to the common law Banks v Goodfellow test and the statutory test in the Mental Capacity Act 2005 (MCA05).  She did not hear any submissions on if the MCA05 test was different to the common law test but felt that the MCA05 test was “more expressly tailored to the issue in this case.”

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

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.

Section 2 of the Mental Capacity Act 2005 provides so far as relevant:

People who lack capacity.

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the

material time he is unable to make a decision for himself in relation to the matter

because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to—

(a) a person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to

make unjustified assumptions about his capacity.

The burden of proof for mental capacity was summarised by Briggs J in Re Key [2010] EWHC 408:

(i) While the burden starts with the propounder of a will to establish capacity, where the

will is duly executed and appears rational on its face, then a court will presume capacity.

(ii) In such a case the evidential burden then shifts to the objector to raise a real doubt

about capacity.

(iii) If a real doubt is raised, the evidential burden shifts back to the propounder to

establish capacity nonetheless.

Knowledge and approval of the contents of a Will by a testator is presumed where the testator had capacity, the Will was properly executed and there is no apparent mistake in the wording of the Will.

If a beneficiary of a Will prepared the Will himself, the suspicion of the court will be aroused. 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 decision

The judge found Lynda and her cousin Pat to be truthful witnesses but their view of the evidence was coloured by their suspicion of the Phythians and their shock at the terms of the 2010 Will.  They had alleged that Richard had used some of the £16,000 from Iris for himself rather than spending it on North Lodge, but Richard had shown that all of the money had been spent on North Lodge.  She therefore treated their evidence of the extent of time spent by Richard and Pamela with Iris with caution.

The judge found Richard had exaggerated his involvement with the Jolly family but she stated that she did not regard him as dishonest and both he and Pamela had spent a great deal of time looking after Iris.  She did find that Richard felt entitled to Iris’ property and disapproved of her family.  This coloured some of his evidence.

Despite conflicting evidence of whether Jean Naden was in the room at the time Iris signed her Will, the judge found that on balance the Will was properly attested as the proper formalities would have been followed so both witnesses would have watched Iris sign.

When Jean had given evidence it became obvious that she has severe hearing and sight loss (confirmed by her GP) and had much difficulty answering questions. The judge questioned how her much more fluent witness statements had been prepared.  Instead of a solicitor attending her, her own daughter Pat had prepared them and the judge did not find that Jean had any independent recollection of the signing of the Will nor was it safe to rely on her evidence about it.

Although she had found the Will to have been properly executed and to appear rational on the face of it, the judge found that evidence had shown that there should be real doubt about Iris’ mental capacity at the time of making the Will, so the burden shifted to Richard to prove capacity.  Iris had suffered from depression during her lifetime, particularly in response to deaths of members of the family and her GP had prescribed an antidepressant drug following her husband’s death.  Iris had become reclusive following her brother John’s death and was “likely to be undergoing a severe grief reaction to John’s death” at the time she made the Will.

The judge did not find that Richard had proved Iris’ capacity at the time of making the Will and found that she lacked such capacity.  The Will therefore failed.

Although the judge found the Will invalid on the ground of lack of capacity she went on to make findings on the issue of knowledge and approval as most of the evidence at trial had been concerned with that issue.  She found that the suspicions of the court had been aroused by Richard having drawn up the Will himself under which he and his wife benefitted and Richard had not shown that Iris could have known or approved the terms of the Will.

Lynda and Pat were granted letters of administration and Iris’ estate would pass under the intestacy rules.

Richard’s claim for a share of North Lodge on the basis of proprietary estoppel was dismissed as the judge found that Iris had not told him at any time before she made her Will in August 2010 that she would leave him it.  Richard himself had given evidence that he had visited Iris “out of an altruistic desire to be helpful and provide her with companionship” rather than in reliance of any promise.

Practice points

  1. Attendance notes detailing that the requirements of s.9 Wills Act 1837 have been complied with are always recommended.
  2. Is there any suggestion that the deceased lacked capacity? If not there is a strong presumption in favour of the testator having knowledge and approval of what was signed.
  3. Is there any factual evidence of impropriety in the arrangements for the making of the Will such that you should be suspicious of proving it because the person who was involved in its preparation also benefits under it? Try and be as objective as possible.
  4. If a client wants to favour non-family at the expense of family, record their reasons for this, such as rewarding them for years of care.

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