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by • July 18, 2012 • ProbateComments (0)510

Contentious Probate

NOTE: This article was published in July 2012 and reflects the law as it stands on the date of publication and not at any later date.

UNDUE INFLUENCE

It is particularly difficult to set aside a Will on the grounds of undue influence. Undue influence will usually be difficult to establish for a number of reasons:

(a)  there is no presumption of undue influence, as there is in the case of a lifetime transaction, which calls for explanation, between parties in a relationship of trust and confidence;

(b)  the party alleging undue influence must prove that undue influence was actually exerted: motive and opportunity are in themselves insufficient;

(c)  even if undue influence was brought to bear, it must be proved that the testator would not have executed the Will, if the undue influence had not been exerted

(d)  it is not sufficient to prove influence or persuasion: the influence must be undue, amounting to coercion overbearing the will of the testator;

(e)  there is normally no direct evidence that coercion was actually exercised, only a suspicion that it may have occurred; and

(f)   there is normally an alternative, innocent explanation for the Will, consistent with the testator acting of their own free will.

Influence in the form of advice, suggestion or persuasion is not undue. The claimant must establish coercion (Gill v Woodall [2009] EWHC B34 (Ch), at para. 489). Influence must have been brought to bear on the testator to make a Will that the testator did not wish to make.

In most cases, there will be no direct evidence of coercion. The person, alleged to have exercised undue influence, will not usually have left a letter behind threatening to break off all contact with the testator unless the testator leaves them everything.

It is, however, possible to establish a case of undue influence even where there is no direct evidence of coercion. Undue influence can be inferred from the surrounding circumstances. Such claims do occasionally succeed.

In Edwards v Edwards [2007] WTLR 1387 the testatrix (T) made a Will in favour of one of her sons (S), excluding her other son, with whom she had a good relationship. Under her previous Will she had left her residuary estate equally between her two sons. T was frail and vulnerable. She was afraid of S, who was a heavy drinker. T made the Will at home, where she had been taken by S against medical advice. S prevented the other son from visiting. S, therefore, had the opportunity to influence his mother. He also had a motive: he was fearful of being evicted from the house where he lived with T. T had also made a number of surprising and false accusations against her other son. The only plausible explanation was that S had exercised undue influence over T by poisoning her mind against the other son. All other possible explanations were implausible. It was to be inferred that S had made deliberately untruthful accusations against his brother which had the effect that the testatrix’s judgment was overborne.

However, it is only in a rare case that it will be possible to infer coercion from circumstantial evidence. In Carapeto v Good [2002] EHWC 640 the testatrix made a Will in favour of her housekeeper. The circumstances gave rise to a “legitimate suspicion” that undue influence may have been exercised.  The housekeeper was present when instructions for the Will were given to the solicitor, and had probably arranged for the solicitor to be present. However, the Court rejected the claim of undue influence because the circumstances were “also consistent with a perfectly innocent explanation”, i.e. that the testatrix (who was an intelligent and independent woman) had genuinely wanted to benefit her housekeeper (who had lived with and cared for the testatrix for many years).

There have been three recent cases on undue influence and Wills.

Cowderoy v Cranfield [2011] WTLR 1699.

Mrs Blofield was in her mid-80s. She was suffering from progressive vascular dementia. Her son had died about three months before she made her Will. She had a granddaughter. However, she told the solicitor who took her Will instructions that she did not want to leave anything to her granddaughter. She made a Will leaving her entire estate to Lionel Cranfield, an alcoholic, acquainted with her late son (also an alcoholic), with whom she had become friendly, and who regularly visited her. Proceedings were brought by a granddaughter, to set aside the Will on a number of grounds including undue influence. The granddaughter would be entitled to the estate on an intestacy if the Will were set aside.

The case was straightforward on the facts. There was no arguable case of undue influence. Mrs Blofield wanted to execute the Will that she did so as to make sure that her granddaughter did not benefit, and that Mr Cranfield would continue to visit and care for her: she planned to tell him that she had made a Will in his favour.

There is one point of legal significance on undue influence. In Edwards v Edwards Lewison J had said that a claim in undue influence would only succeed if the facts were inconsistent with any other hypothesis. In Cowderoy Morgan J considered that it was more appropriate simply to ask whether the party asserting undue influence had proved their case on the balance of probabilities. However, as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation. In any event, undue influence was not made out, whichever test was applied.

 

Wharton v Bancroft (2011) EWHC 3250 (Ch) (Ch D)

Norris J summarised the law relating to undue influence as follows:

(a) Execution of a Will as a result of undue influence is a fact that must be proved by those who assert it.

(b) They must establish that there was coercion, pressure that has overpowered the freedom of action of the testator without having convinced the will of the testator. If the evidence only establishes persuasion, then a case of undue influence will not be made out.

(c) Where the line between “persuasion” and “coercion” is to be drawn will in each case depend in part upon the physical and mental strength of the testator at the time when the instructions for the Will are given. Was the testator then free and able to express his own wishes? Or was the testator then in such a condition that he felt compelled to express the wishes of another?

(d) In many cases the fact of undue influence cannot be proved by the direct evidence of witnesses but is an inference to be drawn from other proven facts. It is sometimes said that an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis. The danger of that formulation is that it may cause one to lose sight of the relevant standard of proof: so I have paid particular attention to what was said by Morgan J at para 141 of Cowderoy:

“The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation”

(e) The fact of undue influence is in truth a complex of facts involving the establishment (by proof or inference) of the opportunity to exercise influence, the actual exercise of influence, the actual exercise of influence in relation to the will, the demonstration that the influence was “undue” (i.e. went beyond persuasion), and that the Will before the court was brought about by these means.

The facts of Wharton v Bancroft illustrate how these principles work in practice. Mr Wharton was discharged from hospital knowing that he had only a short time to live. He was suffering from terminal cancer. That evening he made a Will, prepared by a solicitor, leaving the entirety of his estate to his partner, Maureen, of 32 years (“the 2008 Will”). The 2008 Will was made in contemplation of his intended marriage to Maureen, whom he married immediately thereafter. Mr Wharton made no provision for his three daughters from his substantial estate of £4 million. He died three days later. The daughters challenged the Will on the grounds of undue influence, and lack of knowledge and approval.

As Norris J pointed out, a deathbed marriage, a deathbed Will, a large estate and the absence of any provision for the testator’s family were all matters likely to provoke indignation and a sense of unfairness. However, there was no direct evidence of coercion. The daughters’ case on undue influence was, at best, one of inference. They pointed to a number of facts which, they said, indicated that undue influence must have been exercised:

(a)  Mr Wharton was terminally ill and on medication, so that very little pressure would have been required to influence him to make the 2008 Will in favour of Maureen.

 

(b)  The golden rule was not followed in that a doctor did not satisfy himself as to whether Mr Wharton was susceptible to undue influence by reason of his illness and medication.

 

(c)  Maureen had revealed herself to be utterly unscrupulous in seeking to obscure the fact that she had been instrumental in persuading Mr Wharton to make a previous Will in 2006 (revoked by the marriage) leaving his estate to her.

 

(d)  Mr Wharton wrote to a solicitor, shortly after signing the 2006 Will, saying that he did not want to leave everything to Maureen.

 

(e)  The 2006 and 2008 Wills departed from previous Wills in leaving everything to Maureen.

 

(f)   Mr Wharton had told various persons at various points that he would leave his estate to some or all of his daughters.

 

Norris J held that these matters were not sufficient to establish undue influence. It was not surprising that Mr Wharton should have wanted to execute the 2008 Will in favour of his “wife” of 32 years whom he had just chosen to marry. He was also concerned that the taxman should get nothing on his death (which would be the case if he made a Will leaving his estate to his wife). The Will that he had made in 2006 was only a holding Will until something else was prepared, which explained Mr Wharton’s statement that he did not want to leave everything to Maureen. The imminence of death had caused him to reassess matters and to determine that he wanted to confirm the holding Will that he had made in 2006 in favour of Maureen. There was, therefore, a plausible explanation for the 2008 Will.

None of the matters, relied upon by the daughters, amounted to cogent evidence that Mr Wharton must have been coerced into making the 2008 Will. The fact that Mr Wharton was terminally ill and on medication may have meant that there was an opportunity to exercise undue influence. It did not mean that the opportunity was taken, or that (if taken) it in fact produced the 2008 Will. The failure to observe the golden rule was not a matter for criticism, given the need for urgency and, in any event, had nothing to do with the ease with which coercion could be inferred. Departures from previous Wills, or statements of testamentary intention, did not amount to cogent evidence of coercion. Maureen’s reluctance to admit that she had sought to persuade Mr Wharton to make the 2006 Will did not sustain the inference that undue influence had been exercised in relation to the 2008 Will.

 

Hubbard v Scott [2012] WTLR 29

Mr Wiseman made a Will in October 2009 leaving his entire estate to Mrs Kruk, who had been his cleaner, and who he had only known for a short time. She was 27 years younger than him, and very attractive, even beautiful. He was elderly, lonely and increasingly housebound. He jokingly told the solicitor, taking his Will instructions, that he was considering marrying Mrs Kruk. He died 11 days after executing the Will.

The claimants were two sisters, who were old friends of Mr Wiseman. They were entitled under a previous Will, as default beneficiaries, the principal beneficiary having died. They claimed that Mrs Kruk had exerted undue influence over Mr Wiseman. They were unable to adduce any direct evidence of coercion.

The claimants alleged, in support of their undue influence claim, that:

(a)  Mrs Kruk had only known Mr Wiseman for a matter of months before the Will, and that she was lying in claiming that she had known him for over three years. Indeed, she could not have been his cleaner for that time, as the house was very dirty, smelled of fried chicken, and the lavatory was disgusting.

 

(b)  Mrs Kruk had tried to bully Mr Wiseman into marriage, and then to leave her his entire estate.

 

(c)  Mrs Kruk deliberately failed to tell friends of Mr Wiseman (including the claimants) of his death and funeral.

 

(d)  Mrs Kruk showed little if any sense of loss after Mr Wiseman’s death, being only interested in his money.

 

In other words, the claimants were highly suspicious of Mrs Kruk, and her motives, and they threw quite a lot of mud at her. However, they were unable to prove that she had only known Mr Wiseman for a matter of months, rather than years.

More importantly, they could not prove that Mr Wiseman had been bullied in any way to marry her, or to make a Will in her favour. As Proundman J said “victimisation”, “domination” and “coercion” are the words used in the authorities. There was no evidence of mental frailty or that Mrs Kruk took advantage of Mr. Wiseman’s physical frailty. The only hard evidence was that Mr Whiteman was happy and jovial when he gave instructions for, and when he executed, the Will.

The claimants’ case was, in effect, that she had persuaded Mr Whiteman to make a Will in her favour. However, it was not enough for the court to infer that she may have made appeals to him to make provision for her. There is a distinction between legitimate persuasion and illegitimate coercion.

There was another perfectly rational explanation for the Will. Mr. Wiseman was elderly and lonely. He had no one else to whom he wanted to leave his estate. Mrs Kruk came into his life and became fond of her. However, it is not undue influence where a man succumbs to the fascination of a woman so as to make a Will in her favour, cutting out his relatives.

 

Summary

In summary, where there is a plausible explanation for the Will, and there is no cogent evidence that the testator was actually coerced to execute the Will, undue influence will not be made out. Circumstantial evidence giving rise to a suspicion of undue influence (in particular, attempts to blacken the character of the beneficiary) will not amount to cogent evidence that coercion was actually exercised. Persuasion is not sufficient. The clear conclusion must be reached that the testator was the victim of coercion.

 

WANT OF KNOWLEDGE AND APPROVAL

 

The test

Another ground for attacking the validity of a Will is to establish lack or want of knowledge and approval. It is a pre-requisite to the validity of a Will that the testator knew of and approved its contents at the date of execution. This must be proved in every case. However, proof of testamentary capacity and of due execution gives rise to a presumption of knowledge and approval, in which case the burden will pass to those who wish to challenge the Will to prove lack of knowledge and approval.

However, where there are “suspicious circumstances” that the testator may not have known or approved of the Will, the burden will fall upon those who seek to uphold the Will to satisfy the court as to the testator’s knowledge and approval.

The question is whether, on the balance of probabilities, the court is satisfied that the contents do truly represent the testator’s testamentary intentions (Fuller v Strum [2002] WLR 1097, at para. [65]). Did the testator know what is was in the Will, and approve of it, in the sense of accepting it as setting out the testamentary intentions to which he wished to give effect by execution? (Gill v Woodall [2010] EWCA Civ 1430 para. 71)

 

Will read by a solicitor

In most cases, a claim on the basis of want of knowledge and approval is not going to succeed where the Will was read to the testator and/or its terms explained by a solicitor. However, there are exceptions, e.g:

 

(a)  Where there is a lack of positive input on the part of the testator due to illness or limited capacity (Buckenham v Dickinson[2000] WTLR 1083);

 

(b)  Where the reading through of the Will something of a performance, designed to establish the validity of the Will in a formal sense, rather than to make sure that the testatrix clearly understood what she was signing (Franks v Sinclair [2007] WTLR 439).

 

(c)  Where the testatrix was suffering from an extreme form of agrophobia, of which the solicitor was unaware, with the result that she was unable to concentrate properly when the Will was read to her (Gill v Woodall [2010] EWCA Civ 1430).

 

Gill v Woodall

The Court of Appeal emphasised in Gill v Woodall [2010] EWCA Civ 1430 that there was a grave and strong presumption that, where a Will has been read over to a testatrix, there was knowledge and approval. The court should be very cautious about accepting a contention that a Will, executed in such circumstances, is open to challenge. This would risk undermining a fundamental principle of English law that people should in general be free to leave their property as they choose. There was also a danger of encouraging people to contest Wills, which could result in many estates being diminished by substantial legal costs. Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second-hand way. It is dangerous for a court to claim to see the light, when all is murky and uncertain.

The facts of Gill v Woodall were quite exceptional as two highly qualified expert witnesses agreed that the testatrix, Mrs Gill, suffered from a severe anxiety disorder, agoraphobia, which rendered her fearful when she left her home, and when in contact with strangers, and which was likely to have inhibited her ability to concentrate and absorb information. Mr and Mrs Gill executed their Wills on the same date in the presence of a solicitor who read Mrs Gill’s Will to her in full. However, the Judge accepted expert evidence that Mrs Gill would have experienced severe anxiety (at least 8 on a scale of 0 to 10) which would have impacted on her ability to concentrate, take in and commit to memory what was said to her by the solicitor. She would have done whatever she could to bring the meeting with the solicitor to a conclusion so that she could return home.

The terms of the Will were also most surprising. Mrs Gill, who had an estate worth over £1 million, left nothing to her only daughter, of whom she was clearly very fond and on whom she had been dependent. Instead, Mrs Gill left the whole of her estate to a single charity (the RSPCA) with which she had no apparent previous connection, and which she had described as “a waste of time” and “a bunch of townies”.

 

Wharton v Bancroft

This was the case of the deathbed Will in favour of Mr Wharton’s partner of 32 years. A solicitor had read the Will to Mr Wharton before its execution. Nonetheless, the Will was challenged on the grounds of want of knowledge and approval.

However, Norris J accepted that proof of the reading over of a Will does not necessarily establish knowledge and approval. Whether more is required in the particular case depends upon the extent to which circumstances arouse suspicion, and the terms (including the complexity) of the Will.

The Will itself contained a simple disposition, leaving the whole of the estate to Maureen. Norris J began with the compelling point that the gift was virtually dictated by Mr Wharton himself shortly before it was written out by the solicitor. Nobody suggested that the solicitor had misheard what was said.

So the essence of the daughters’ case was that Mr Wharton (although capable of making a Will) did not understand what he told the solicitor to do, and if only the solicitor had probed it a bit he would have found out the testator’s real intention (which was to do something other than leave everything to Maureen absolutely, e.g. that Maureen should have a life interest in part of the estate).

The argument was, in effect, that the solicitor had failed to explain that the effect of leaving everything to Maureen was that he was leaving nothing to his daughters. Mr Wharton could not have understood this, because, if he had, he would have recognised that he ought to make provision for them.

Not surprisingly, this rather circular argument, failed. No doubt Mr Wharton understood (without being specifically advised) that, by leaving his whole estate to Maureen, he was not  leaving anything to his daughters. The solicitor’s role was not to advise Mr Wharton as to what Will he might make. His role was to take Mr Wharton’s instructions, to ensure that they were clear, and to implement them.

Of course, it is good practice for a solicitor to explain the terms of a Will to a testator. However, if the testator says that he wants to leave everything to X, and the solicitor faithfully drafts the Will leaving everything to X, the solicitor is not bound to question this, and to advise as to the possibility of benefiting Y. At least, a failure to so advise will not generally mean that the testator does not appreciate that he is leaving everything to X.

 

Cowderoy v Cranfield

In Cowderoy v Cranfield a claim based upon want of knowledge and approval failed. Mrs Blofield had given her instructions to a solicitor, who read the Will to her, and explained its provisions. She had testamentary capacity when she executed the Will. Therefore, she must have known and approved of its contents.

 

Burgess v Hawes

However, in Burgess & Burgess v Hawes [2012] WTLR 423, a Will was set aside for lack of knowledge and approval even though it had been read to the testatrix by a solicitor. Mrs Burgess made a Will leaving her estate to her two daughters, excluding her son, Peter. The Will stated that, in the light of the provision that Mrs Burgess was making for her son, or would shortly be making, no provision was being made for him in the Will.  No such provision was, in fact, made. Mrs Burgess was on good terms with her son. She had suffered a number of mini-strokes.

The Will was set aside on the grounds of lack of capacity, alternatively want of knowledge and approval. The grounds for setting aside the Will for want of knowledge and approval are not clear from the Judgment, which simply recites all the evidence, and then summarily concludes that, on the evidence, if Mrs Burgess had capacity to make the Will, she lacked the appropriate knowledge and approval.

However, the key factor may have been the court’s finding that the “driving force” behind the instructions was the daughter, Julia, who was present when the Will was explained to Mrs Burgess. The draft Will had not been sent to Mrs Burgess, with the result that she did not have the opportunity to consider it alone and with care before it was executed. The Will was made at a time when Julia had fallen out with Peter, and felt that he did not need, or deserve, part of his mother’s inheritance.

It seems that the court must have concluded that it was not Mrs Burgess’ independent wish to disinherit Peter, and that she was just acting as a cipher for Julia, who wanted to exclude Peter for her own reasons. Julia was able to implant her ideas into Mrs Burgess’ head, as Mrs Burgess had limited capacity. Indeed, the court found that, if Mrs Burgess had wanted to exclude Peter from her Will, she would have told him. Therefore, Mrs Burgess did not know and approve of the contents of the Will.

The case is very similar to Key v Key where an 89 year old farmer made a Will, 10 days after the unexpected death of his wife of 65 years, providing for the bulk of his estate to be divided between his two daughters. In stark contrast, under his previous Will, his estate had been left, subject to his wife’s life interest, equally between his two sons. A solicitor had, two days before, attended upon Mr Key at his home, at the request of one of the daughters. The same daughter accompanied Mr Key to the solicitor’s offices on the day when he executed his Will.

 

The Court found that Mr Key was devastated by the recent death of his wife when he made his Will. This amounted to a severe affective disorder which on its own, or together with the mild dementia from which Mr Key was suffering, deprived him of testamentary capacity.

However, even on the assumption that he had capacity, the Court determined that the Will was also invalid on the grounds of want of knowledge and approval. Mr Key had not applied his own mind and decision-making powers in apparently agreeing to his daughter’s assertion that his existing Will was unfair and that he should change his Will so as to leave his remaining property to his daughters.

 

Conclusion

In conclusion, there may be grounds for setting aside a Will on the grounds of want of knowledge and approval, even where the Will has been read to the testator by a solicitor e.g. where:

(a)  The testator is vulnerable and/or of limited capacity;

(b)  One of the main beneficiaries has been instrumental in procuring the execution of the Will;

(c)  The testator has not exercised their own independent judgment in relation to the Will, but has accepted the main beneficiary’s suggestions; and/or

(d)  The solicitor has not taken proper precautions such as seeing the testator alone, or calling in a doctor.

 

Medical evidence and knowledge and approval

In Wharton v Bancroft an initial challenge to Mr Wharton’s testamentary capacity was abandoned. However, expert medical evidence was before the court that the medication that Mr Wharton was receiving to relieve pain in his abdomen and back would not have caused a disorder of the mind or impaired his capacity. Nor was there any medical reason why Mr Wharton would have needed things to be read over to him several times to be able to understand them.

Medical evidence may, therefore, be relevant to a claim of want of knowledge and approval. It may be alleged that the testator did not, due to the effect of medication, actually know and approve of the contents and effect of their Will, even if he retained general testamentary capacity.

However, as Norris J pointed out, any case based on actual impairment of understanding caused by medication requires proper expert medical evidence which considers the precise medication which the testator is proved to have taken before embarking on the Will making process. Mr Wharton’s daughters failed to adduce such evidence.

 

TESTAMENTARY CAPACITY

 

Relevance of medical evidence

Cowderoy v Cranfield contains some pertinent observations on expert medical evidence in cases where testamentary capacity is in issue. Mrs Blofield’s capacity fluctuated day by day as a result of the combined effect of medication and her consumption of alcohol. Two psychiatrists gave expert evidence. Neither of them had ever seen Mrs Blofield.

Morgan J made the valid point that psychiatric evidence could assist a court by referring to such medical evidence as is available as to an individual’s physical condition, and in explaining the likely impact of that physical condition on the mind of the testator. Similarly, expert evidence could refer to medication being taken by an individual, and comment on the likely effect on the mind of such medication.

Morgan J was prepared to take into account expert evidence that Mrs Blofield’s capacity would have fluctuated from time to time depending upon her level of alcohol consumption, in conjunction with her medication; and that her inability to form words clearly, by reason of her vascular disease, was not inconsistent with her understanding of language remaining intact. These were appropriate matters for expert evidence.

However, the Judge criticised one of the experts for expressing an opinion that Mrs Blofield’s decision-making capacity was probably influenced by Mr Cranfield. That was not an opinion on a psychiatric or medical matter. It was a factual question which was ultimately a question for the court to decide.

Generally, he did not place any great reliance upon the views expressed by the psychiatrists as to whether Mrs Blofield had testamentary capacity from time to time. Their views depended very much on what they understood the facts of the case to be. Each psychiatrist was given a version of facts which was probably not complete. Neither psychiatrist attended the whole trial, nor knew the findings of fact which the Judge had made.

This echoed the approach taken by the court in Blackman v Man [2008] WTLR 389 where the Judge stated that the court must be wary of placing much reliance on the theoretical conclusions of medical witnesses, however eminent, who have not seen the testatrix, but base their views on inferences from other evidence – inferences as to which ultimately it is for the court and not an expert witness to decide whether they should be drawn.

Morgan J found, on the evidence, that Mrs Blofield did have testamentary capacity on the day when she made her Will, even if her condition did fluctuate as a result of her medication and consumption of alcohol.

 

The golden rule

A testator’s capacity may also have some relevance to a claim of undue influence. In Wharton Mr Wharton’s daughters claimed that his terminally ill condition and drug regime made him vulnerable to the exercise of coercive power so that little pressure was required to bring about a Will in favour of Maureen. Indeed, the daughters relied upon the solicitor’s failure to follow “the golden rule” in support of this claim.

The golden rule is that, in the case of an aged testator or a testator who has suffered a serious illness, the making of a Will ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.

Norris J rejected criticism of the failure to follow the golden rule saying:

I consider the criticism of Mr Bancroft for a failure to follow “the golden rule” to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that “the golden rule” has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.

Although the claim was of undue influence, and not of lack of testamentary capacity, Norris J’s comments are of application to incapacity claims. A solicitor is not necessarily to be criticised for making his own assessment of capacity where there is a need for urgency, e.g. because the testator is terminally ill and/or because he wishes to make a Will in contemplation of marriage so that he can marry.

 

In Perrins v Holland [2009] EWHC 1945 (Ch), para. 59, Lewison J had even cast doubt on the value of the golden rule:

 

Dr Gross stressed that the assessment of a person’s cognitive capability is a task of great difficulty. He suggested that a medical practitioner such as a specialist MS liaison nurse, or a GP might not be capable of the task, which could really only be adequately undertaken by a specialist neurologist. Even for a specialist neurologist the determination of testamentary capacity was, in his view, a very difficult exercise. I may say that his evidence cast considerable doubt on the medical validity of the so-called “golden rule that in case of doubt about testamentary capacity a lawyer should call in a GP.

In Burgess v Hawes, however, the solicitor, fatally, did not observe the golden rule. He merely relied upon his own judgment that Mrs Burgess appeared to be capable. However, he had not met her before he took her Will instructions. He did not, therefore, have anything to judge her capacity against, and it was more difficult to judge her capacity as her daughter, Julia, was present at the same time. He noted that the testatrix was “compos mentis”. However, this comment was added to the Attendance Note after the event.

The Will was set aside for lack of capacity. The litigation might have been avoided if the solicitor had observed the golden rule. In any event, he should have discussed his instructions with Mrs Burgess without her daughter being present.

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