Perrins v Holland & Anor [2009] EWHC 1945 (Ch)

[2009] EWHC 1945 (Ch)

Case No 5BM30200

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue BIRMINGHAM DISTRICT REGISTRY

PROBATE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31 July 2009

Before

THE HONOURABLE MR. JUSTICE LEWISON

Between

DAVID ROBERT PERRINSClaimant

(1) RICHARD PHILIP HOLLANDDefendants

(2) SHARON RUTH MOOREDefendant

(3) ANNE DOONEYDefendant

DAVID ROBERT PERRINSClaimant

(1) ANNE DOONEYDefendants

(2) RICHARD PHILIP HOLLAND (As Executor of the Estate of Robert Perrins Deceased)Defendant

(3) SHARON RUTH MOORE (As Executor of the Estate of Robert Perrins Deceased)Defendant

IN THE ESTATE OF ROBERT PERRINS DECEASED

Mr James Quirke (instructed by Tyndallwoods Solicitors, Birmingham) for Claimant.

Mr Angus Burden (instructed by Williamson & Soden, Birmingham) for Third Defendant.

Hearing Hearing dates: 20, 21, 22, 23 July 2009

Judgment

Mr. Justice Lewison:

[1]Robert Perrins (“Robert”) died on 31 January 2003. He had made a will on 26 September 2001 of which probate was granted on 24 June 2003. The net estate was valued, for probate purposes, at just over £180,000. The only substantial asset in the estate is Robert’s bungalow at 28 Firbank Clouse, Bournville, which he held under a long lease. It is now worth £195,000. By his will Robert left his entire estate to Anne Dooney (“Anne”) whom the will described as his carer. It also provided that in the event that she failed to survive him by 28 days, his estate should be divided equally between his son David and his brother John. David challenges Robert’s testamentary capacity both at the time that he gave instructions for the will and also at the date when he executed it. There is no attack on the will based on undue influence. In addition he makes a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975 on the ground that Robert’s will fails to make reasonable provision for him. It was agreed at the start of the trial that the claim for provision would be dealt with later, if it remained live. The trial was therefore limited to the question of Robert’s testamentary capacity.

The basic facts

[2]Robert was born in 1955. While still in his teens he was diagnosed with insulin dependent diabetes. In 1977 he married Norma Perrins (now Norma Edge) and their son David was born on 27 October 1986. Accordingly David is now 22 years old. Robert was an accountant by training and worked for the Civil Service in the Department of Trade. In 1991 he was diagnosed as having multiple sclerosis. In 1993 he and Mrs Edge separated. David lived with his mother, who remained in the matrimonial home at 56 Highfield Lane. It seems that Robert and Mrs Edge entered into an informal separation agreement, but it has not survived. Part of that agreement was that Robert was to receive £40,000 for his share of the matrimonial home.

[3]Robert met Anne in 1994 while both were attending a course about disability. Robert was mobile at the time, although he needed a stick to walk. He was living at 16 Collins Close in Quinton. He and Anne became friends. On 5 August 1994 Robert made a will. Anne was one of the witnesses to its execution. By that will he declared that Mrs Edge should be entitled to his civil service pension but otherwise he left his entire estate to David. In 1995 Anne separated from her husband and went to live with Robert at Collins Close.

[4]On 4 October 1995 Robert wrote to the court in Birmingham about the separation agreement. He said that his health had deteriorated; that he now needed twenty four hour care; that he could no longer climb stairs and that that in consequence he was moving to a bungalow. That bungalow is 28 Firbank Close. He was paying £330 per month in maintenance for David; but he said in the letter that his outgoings were exceeding his income. He also pointed out that he and Mrs Edge had had five endowment policies, two of which had matured; that he was paying half of David’s extra expenses, such as clothes and toys; and that Mrs Edge was receiving all the child benefit payable in respect of David. Robert arranged for alterations to 28 Firbank to accommodate his disabilities and he and Anne moved there in 1996.

[5]28 Firbank Close is a two bedroomed bungalow. Anne says that she and Robert used one bedroom and the other was used by Robert’s carer. On 7 October 1996 Robert wrote to Mrs Edge. He asked Mrs Edge to bring divorce proceedings because he wanted to marry Anne and said that he and Anne had been living together for two years.

[6]Progress towards a financial settlement between Robert and Mrs Edge was slow. In July 1999 Robert had a meeting with his solicitor, Mr Darby. Mr Darby recorded:

“Whilst I have now attended upon Mr Perrins, I have to say that the meeting was extremely difficult, due to the extent of Mr Perrins’ disability which the writer had not appreciated until the meeting. Mr Perrins can barely speak and whilst I believe his understanding of the situation is fairly clear, communication is a major problem.”

[7]He thus had to ask Robert questions and interpret his answers. However, I cannot regard this as indicating that Robert had lost capacity. On the contrary although it was difficult to communicate with him, Mr Darby believed that his understanding was fairly clear. In his letter (which was addressed to Mrs Edge’s solicitors) it was said that:

“Previous allegations that [Robert’s] carer is his cohabitee are quite wrong and [Robert’s] deteriorating condition most certainly involves his carer having to spend more and more time assisting him with even basic functions. However, her income is of no relevance to these proceedings …”

[8]This denial of cohabitation was probably untrue. By this stage Robert had only his pension and disability allowance to live on. He was wheelchair bound and needed a specially adapted car. The letter concluded:

“You will appreciate from the above that it is difficult for [Robert] to make any contribution towards David’s maintenance, although [Robert] continues to provide financial assistance where he can. It is however completely unrealistic for [Robert] to have to do anything other than maintain himself and this position must surely deteriorate as his condition deteriorates and hence the level of care needed increases.”

[9]On 11 August 1999 Mrs Edge’s solicitors wrote to Robert’s. Their letter said:

“In view of what you say about your client’s financial situation our client has indicated that she is prepared to take over payment of your client’s 50% contribution towards the premium on the policies. At the moment your client is paying £30 per month premium and £20 maintenance in respect of David. This would then mean that your client would have £30 per month of his income freed up. This would be on the basis that upon maturity of the policies in 2004 the sums that he would receive would be based upon the surrender value of the policies at the point that our client took over payment in full of the policies. The additional sums that our client would then receive by virtue of this proposed exercise … would be used for David’s further education.”

[10]Throughout this period Anne was playing a very active part in giving instructions and chasing Robert’s solicitors for progress. On 19 November 1999 Mrs Edge’s solicitors drew attention to Robert’s letter of 7 October 1996 in which he had said that he and Anne had been living together for two years. At the same time they made a without prejudice offer to settle the matrimonial proceedings. The offer included the assignment to Mrs Edge of a number of policies. The letter stated that it was Mrs Edge’s intention that her interest in the policies would be used to find David’s further education. The offer was not, however, accepted, and no agreement resulted. Robert continued to contribute to premiums payable under the policies until shortly before his death.

[11]In April 2000 Mrs Edge was made redundant. She received a redundancy payment; but much of it was needed to repay her debts.

[12]On 5 April 2000 Mr Malcolm Ferguson, a legal executive with Sydney Mitchell, went to see Robert at his home. Mr Ferguson had over forty years’ experience in dealing with wills and probate matters. He had gone to see Robert because he had been telephoned by Anne who said that Robert wanted to make a will and to execute an enduring power of attorney. On arrival at Robert’s house he said he had to wait for a short while as Robert was being brought into the house on his return from a day centre. Once he was settled, Anne introduced him to Robert. Mr Ferguson told Anne that he would see Robert alone; and so she left the room. He did this to comply with the Law Society’s guidelines, which were concerned with client confidentiality and removing the possibility of undue influence. Mr Ferguson says that Robert spoke in a drawl and with difficulty but he found it perfectly comprehensible in the main. Whenever Mr Ferguson could not understand, he asked Robert to repeat what he had said, which he did. Although communication was not easy, Robert was able to make his wishes clear.

[13]Robert’s first statement to Mr Ferguson was that he wished to provide for his carer. Mr Ferguson questioned him about the extent of his intention and Robert confirmed that everything was to be hers. He told Mr Ferguson that he owned the bungalow although he did not put a value on it. Mr Ferguson asked Robert what he wanted to do if Anne did not survive him. He told Mr Ferguson that he had a son David, who was then 13 years old; and that he had a brother John whose full names he gave and who he said lived in Bournemouth; and he told Mr Ferguson that if Anne did not survive him he wanted to divide everything equally between his son David and his brother John. Mr Ferguson explained the role of executors, and Robert decided to appoint a friend of his (whom he named) and two partners in Mr Ferguson’s firm.

[14]Robert also told Mr Ferguson of his spouse and that he wanted to change his matrimonial solicitors because they were “no good”; and Mr Ferguson said that he would arrange for one of his colleagues to see him. Robert also told him that his spouse worked at Cadbury Schweppes (although it later turned out that she had ceased to work for them). Anne came back into the room and produced a sheaf of papers about the matrimonial proceedings. In his original statement Mr Ferguson said that she produced the papers at Robert’s request; but in later statements he said that it was at his own request. This minor discrepancy is of no significance. Mr Ferguson says that in the course of his conversation it became apparent that Robert had the intention to marry Anne in due course. Mr Ferguson told Robert that he would draft a will and send it by post. He also told Robert that any will could be contested and that it was likely that this one would be because the divorce had not been finally settled and his infant son had not been provided for. He said that even though he told Robert that the will was likely to be contested, Robert was adamant that that was what he wanted to do. The conversation then turned to the enduring power of attorney.

[15]Mr Ferguson said he spent about half an hour with Robert on his own. This tallies with his attendance note which records that he spent a total of two hours out of the office. He formed the view that Robert had testamentary capacity. His reasons were that Robert knew what his assets were; he knew what he wanted to do with them; and he knew who had claims on his bounty. He did not consider the possibility of seeking a medical opinion on Robert’s capacity. Indeed in the forty years during which he had been engaged in the preparation of wills and probate matters, he had only involved the medical profession once. That was a case of a testator who was already in a nursing home. Mr Ferguson had arranged for one of the witnesses to the will to be one of the doctors in the home. Otherwise, if he was unsure about a client’s testamentary capacity, he would have a chat with the senior partner. But in this case he had no doubt.

[16]Robert did not tell Mr Ferguson that the decree absolute had come through; and so Mr Ferguson thought Robert’s marriage to Mrs Edge was still ongoing. He said in answer to questions in cross-examination that he did not tell Robert that a marriage to Anne would revoke the will; and the draft will that Mr Ferguson eventually drafted was not expressed to be made in contemplation of marriage. Mr Ferguson explained this in cross-examination by saying that when the will was executed it would be sent to the client in an envelope on which there were printed instructions about the circumstances in which a will would be invalidated; and these included marriage. This piece of evidence was to my mind incredible. In my judgment Mr Ferguson simply failed to appreciate the effect of marriage on a pre-existing will; and made up this piece of evidence to cover his embarrassment and possible negligence. But I do not consider that his lie about this invalidates the rest of his evidence about the events of 5 April 2000.

[17]The question of undue influence did not occur to Mr Ferguson who thought that Robert was in full possession of his faculties and knew what he was doing.

[18]One of Robert’s carers, Mr Bill Fullerton, also gave evidence about the day that Robert gave instructions for the will. He is Anne’s brother. He said that Robert told him that a solicitor was coming so that he could do a will. He said that Robert was very communicative, excited about the solicitor coming and able to converse. When Mr Fullerton jokingly said to him “don’t forget me” Robert replied that he was leaving everything to Anne. In his oral evidence he said that this conversation took place inside Robert’s home after they had arrived back from the day centre; and that it took place while they were waiting for the solicitor to arrive. He placed the solicitor’s arrival about half an hour to an hour after they had got back from the day centre. But in his witness statement he had said that the solicitor had arrived “just after we returned from the day centre”. This latter evidence corresponds more closely with Mr Ferguson’s recollection that Robert was being taken out of the car as he himself arrived. Despite this discrepancy I accept the general thrust of Mr Fullerton’s evidence.

[19]Mr Ferguson wrote up his attendance note on 12 April 2000 in the form of a memorandum to his colleague Mr Berry. It corresponds with his evidence. On the same day he sent Robert copies of the enduring power of attorney and the will that he had drafted. He said that if the documents met with his wishes, Anne should telephone him to make an appointment to come over and have them signed. Given that Robert had difficulty speaking it is not surprising that Mr Ferguson suggested that Anne should make the administrative arrangements.

[20]On 17 April 2000 Mrs Edge’s solicitors, Lovsey Marsh, writing in the context of the matrimonial proceedings, suggested that someone be appointed to look after Robert’s affairs. They said:

“Finally, we have to say that our client believes that there has been a deterioration in your client’s physical and mental condition. If your client pursues an application to the court we will ask for that to be investigated as an [issue] immediately and for someone to be appointed to administer your client’s affairs.”

[21]On 31 May 2000 Mr Ferguson sent a copy of the draft will to Robert. In his covering letter he said:

“I leave you to think over your will and let me know if any amendments are required.”

Robert did not reply.

[22]On 20 June Mr Darby wrote to Robert. In the course of his letter he strongly recommended that Robert, or Anne of any representative of social services “obtains a note from your GP, confirming that you [are] capable of handling your affairs, so that I can immediately resist the suggestion by Lovsey Marsh that you are not able to do so, if that be the case.” This recommendation was not followed.

[23]On 29 June 2000 Mr Berry, Mr Ferguson’s colleague, went to see Robert. He reported that it was difficult to communicate on account of Robert’s disability. He also reported that Anne had said that there were some matters in the will that were not clear or satisfactory; but did not say what. She also raised the question of a power of attorney enabling her to manage Robert’s affairs, but Mr Berry said that that would be controversial in the light of the arguments put forward by Mrs Edge’s solicitors.

[24]On 4 July 2000 Mr Darby went to see Robert and Anne at Robert’s home. He referred to Lovsey Marsh’s letter of 17 April. Anne said that she had mislaid it. Mr Darby gave her a copy. Mr Darby tried to get clear instructions, without a great deal of success. But it does appear from his attendance note that he had a conversation with Robert about a settlement that Robert had agreed for a personal injury claim. His note does not itself raise any concern about Robert’s mental capacity. However, shortly thereafter Mr Darby ceased to act for Robert on the basis that he could not get clear instructions.

[25]On 6 July 2000 Mr Ferguson chased Robert about the will and said that if he had any queries Anne should telephone him to discuss them. Robert did not reply and Anne did not telephone.

[26]In October 2000 Robert instructed Carvill & Johnson to deal with his matrimonial affairs. Anne accepted that she played a major part in giving instructions. However, Mr Carvill’s attendance notes appear to record clearly when he was taking instructions from Robert and when he was taking them from Anne. Mr Carvill’s letter to Robert on 20 October 2000 begins:

“I write further to our conversation on 17th October. You explained to me that previously you had been represented by MJ Darby & Co … You denied that you had not been giving MJ Darby & Co instructions in relation to the financial matters arising from your divorce.”

[27]If the letter is taken at face value, it shows that Robert was capable of understanding why he had instructed Mr Darby, why Mr Darby had ceased to act and his own side of that story. Mr Carvill’s attendance note of the conversation to which his letter referred also reads as if instructions were taken directly from Robert. For instance it records that 28 Firbank Close is “owned by me in my sole name” and gives both a value and the amount of the mortgage. In the light of Mr Carvill’s letter and attendance note I infer that Robert was capable of giving him these instructions and did give them, perhaps with Anne’s assistance.

[28]In February 2001 Robert and Mrs Edge were left a legacy under a will. The will was home made; and required counsel’s opinion to interpret it. Mrs Edge drew up an agreement dealing with the legacy. It had been left to Robert and Mrs Edge jointly, and the agreement provided for them to divide it equally between them. They had also been left a silver coffee set jointly, and the agreement provided for them to give it to David. Robert attended a meeting at his parent’s house, at which both David and Mrs Edge’s father were also present. Robert signed the agreement by making his mark. This was in itself unusual, because Robert had been accustomed for some years to authenticate documents by means of a rubber stamp bearing a facsimile of his signature. The rubber stamp was usually kept by Anne in her handbag. On 26 February 2001 Mr Carvill recorded in an attendance note that he had Attended on the client. Robert told him how the agreement came to be signed. He told Mr Carvill that “there was only the ex father in law + my mother + father + my son David”. Mr Carvill wrote to the estate’s solicitors on 28 February saying that “Mr Perrins is now informing us that he did not wish to execute the document.” The letter continued:

“We can produce medical evidence of his condition if required and we have no doubt that on sight of this medical evidence this would cause you even greater concern with regard to the legality of the document which has been forwarded to you by Mr Perrins’ ex-wife.”

[29]There does not in fact appear to have been any extant medical evidence at that time; and although the letter does not say so in terms it seems to be hinting at a lack of capacity to contract. The estate’s solicitors clearly understood this hint, because they wrote back on 1 March asking for confirmation that in spite of his physical disabilities Robert still had full mental capacity. The confirmation was never given; but the estate was distributed in accordance with the agreement none the less. Mrs Edge’s solicitors wrote on 26 March. On the one hand they sought to uphold the validity of the agreement; but on the other they asserted that Robert was unable to give instructions due to his disabilities. Mr Carvill passed these allegations on to Robert.

[30]Some time in April 2001 Mrs Edge asserted that the question of the contents of the house (which had also formed part of the legacy) was purely between herself and Robert, and that she was willing to meet him to discuss them. Her willingness to meet Robert to discuss the question does not suggest a strong belief that he was incapable of discussing financial matters. She also said in a letter of about that time that she and Robert had “happily agreed” to give the silver coffee set to David.

[31]Mr Carvill chased Robert for instructions many times, but without success. On 1 May he wrote to Robert to suggest that he saw him together with his doctor for clarification of the allegations about his capacity. The proposed meeting never happened.

[32]On 25 June 2001, not having heard from Robert for over a year, Mr Ferguson wrote to him. He said that he assumed that Robert did not want to proceed with the will, and sent in his bill. This prompted a telephone call from Anne on the following day. Mr Ferguson sent a fresh copy of the will and the enduring power of attorney on 5 July.

[33]The will was executed by Robert in the car park of Mr Ferguson’s office on 26 September 2001 by means of his rubber stamp. I will return to make more detailed findings about what happened on that occasion.

The relationship between Robert and Anne

[34]As I have said, as early as October 1996 Robert had told Mrs Edge that he wanted to marry Anne. He had said the same thing to social workers in March and September 1996. He recognised that his family disapproved of his choice, but insisted that the decision was for him alone; and that he knew what he was doing. He also told Mr Ferguson that he intended to marry Anne when Mr Ferguson saw him in April 2000. He repeated this to social workers on a number of occasions when he and his social worker were alone. This included one private conversation that he had on 28 March 2001. In fact it would not have been possible for Robert to have married Anne as things stood. The problem was that Anne was already married and although separated from her husband, they never divorced. Anne’s marriage was terminated by her husband’s death; but that was not until 2007. Nevertheless I consider that Robert’s statements of his wish to marry her are good evidence of his feelings for her. They remained constant.

[35]Anne’s evidence was that she and Robert had a physical and loving relationship. This aspect of her evidence was not challenged.

The relationship between Robert and David

[36]Following his parents’ separation David lived with his mother in the former matrimonial home. For as long as Robert was living at 16 Collins Close David was able to see his father frequently. However, following Robert’s move to 28 Firbank David’s visits were limited to about once a week. He did, however, speak to his father on the telephone. These visits and telephone conversations continued until very shortly before Robert’s death. Robert was always pleased to see his son, and clearly loved him. The love was reciprocated by David.

[37]David’s account of these telephone conversations suggest that he was able to understand what his father said on the telephone and that the conversations ranged over the things that one might expect a father and son to talk about: how he was doing at school, what he did in his spare time and so on.

[38]But David was concerned about his father and, with the aid of his mother, wrote to the Public Guardian’s Office in November 2001 saying that Robert was not capable of making rational decisions.

Testamentary capacity

[39]The test for testamentary capacity was laid down in Banks v Goodfellow (1870) LR 5 QB 549 at 565 as follows:

“'It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

[40]This common law test has been applied on countless occasions, and although it is now superseded by the Mental Capacity Act 2005 it applies in the present case, since the relevant events took place before that Act came into force. However, there are six points that I should make. First, since the test is a common law test it is capable of being influenced by contemporary attitudes. Second, our general understanding of impaired mental capacity of adults has increased enormously since 1870. Third, we now recognise that an adult with impaired mental capacity is capable of making some decisions for himself, given help. Thus fourth, we recognise that the test of mental capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton

[2005] WTLR 99

, 109. Fifth, contemporary attitudes toward adults with impaired capacity are more respectful of adult autonomy. Sixth, even the traditional test must be applied in the context of the particular testator and the particular estate. A testator with a complex estate and many potential beneficiaries may need a greater degree of cognitive capability than one with a simple estate and few claimants. In addition as the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 “The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.”

[41]In Parker v Felgate (1883) 8 PD 171 the testatrix had given instructions for her will in July and August 1882. She was at the time suffering from Bright’s disease (an inflammation of the kidney). On 26 August coma set in, although she could be roused and answer questions. She executed her will on 29 August, when it was signed at her direction. Sir James Hannen P directed the jury as follows:

“If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, “I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.” …That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that she was in a condition, if each clause of this will had been put to her, and she had been asked, “Do you wish to leave So-and-So so much,” or do you wish to do this (as the case might be), she would have been able to answer intelligently “Yes” to each question? That would be another condition of mind. It would not be so strong as the first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, “I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;” it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient.”

[42]The questions that he put to the jury and their answers were:

“SIR JAMES HANNEN. Did the deceased when the will was executed remember and understand the instructions she had given to Mr. Parker? The Foreman. No. SIR JAMES HANNEN. Could she, if it had been thought advisable to rouse her, have understood each clause if it had been put to her? The Foreman. No. SIR JAMES HANNEN. Was she capable of understanding, and did she understand, that she was engaged in executing the will for which she had given instructions to Mr. Parker? The Foreman. Yes.”

The Foreman. Yes.”

[43]On that basis he pronounced in favour of the will. Thus what is required at the date of execution is that the testator understands that he is executing a will for which he has previously given instructions. It is not necessary that the will is put to him clause by clause; or that its general purport is explained. It is not even necessary that the testator would have understood the will if it had been put to him clause by clause. What is necessary is that the testator knows that he is making a will; and believes that it is the will for which he had previously given instructions. The justification of the principle is the importance that English law has always attached to testamentary freedom.

[44]The two critical dates in the present case are: i) 5 April 2000 when Robert gave instructions for his will; and ii) 26 September 2001 when the will was executed.

Knowledge and approval

[45]In addition to showing that the testator had testamentary capacity, the propounder of a will must generally also show that the testator knew and approved its contents. This is a requirement conceptually distinct and separate from testamentary capacity, and must not be conflated with it: Hoff v Atherton

[2005] WTLR 99

, 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ). Chadwick LJ went on to say:

“A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity — the ability to understand what is being done and its effect — is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.”

[46]He continued:

“Further, it may well be that where there is evidence of a failing mind — and, a fortiori , where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred.”

[47]In the ordinary way, knowledge and approval of the contents of a will must, as it seems to me, be shown to exist at the date when the will is executed, rather than at some earlier time. Quite how this fits with the principle in Parker v Felgate is not entirely easy to understand. The principle in Parker v Felgate was considered by the Privy Council in Battan Singh v Amirchand

[1948] AC 161

. Lord Normand, giving the advice of the Board, said (p. 168):

“That case decided that if a testator has given instructions to a solicitor at a time when he was able to appreciate what he was doing in all its relevant bearings, and if the solicitor prepares the will in accordance with these instructions, the will will stand good, though at the time of execution the testator is capable only of understanding that he is executing the will which he has instructed, but is no longer capable of understanding the instructions themselves or the clauses in the will which give effect to them.” (Emphasis added)

[48]This formulation suggests that it is not necessary to establish knowledge and approval at the time of execution of the will. However, in that case the trial judge had found as a fact that the testator did know and approve the contents of his will when he executed it. That finding of fact was not challenged on appeal. What was in issue on appeal was his testamentary capacity when he gave the instructions for the will; and the Privy Council, reversing the court below, held that testamentary capacity had not been proved. Thus the way that the case was in fact decided does not of itself suggest that the principle in Parker v Felgate can always by-pass the requirement of knowledge and approval of the contents of a will.

[49]In addition, it seems to me that logically it is possible to lose testamentary capacity and yet retain capacity to know and approve the contents of a will. That indeed was the case on the facts in Battan Singh v Amirchand. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That said, the question of knowledge and approval of the contents of the will is not a question which Sir James Hannen appears to have left to the jury; and on the jury’s finding of fact in answer to the second question, the jury could not have found that the testatrix actually knew and approved the contents of the will. Yet no one doubts that Sir James Hannen’s direction remains good law.

[50]Later cases appear to me to show that in a case where the principle in Parker v Felgate is applied, the court does not require separate proof of the testator’s knowledge and approval of the contents of the will. In In the estate of Wallace [1952] 2 The Times LR 925 Devlin J said:

“If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved its contents, I should not be so satisfied. And, indeed, the defendants do not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, or satisfied himself that it carried out his wishes in the matter. The defendants therefore rely on the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the court should also be satisfied that he knew and approved of the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will had been drawn according to his instructions.”

[51]In Clancy v Clancy

[2003] WTLR 1097

Rimer J pointed out that it was not necessary to show that the testator knew that the will had been drawn according to his instructions:

“because that would require actual knowledge on the testator's part which the principle presumes he does not have, and which in cases such as Parker he would ordinarily be incapable of having. The Parker case shows that all that is required is a belief that the solicitor has properly carried out the instructions by preparing a will which gives due effect to them, and I doubt if Devlin J was intending to say anything different.”

[52]In my judgment, therefore, in a case in which the principle in Parker v Felgate is applied it is not necessary to prove knowledge and approval of the will, provided that(a) the testator believes that it gives effect to his instructions and

(b) it does in fact do so. The evidence of capacity Multiple sclerosis

The evidence of capacity

[53]Multiple sclerosis (“MS”) is an inflammatory demyelinating disease of the brain and spinal cord, whose cause is unknown. In crude terms it attacks the insulation of the axons (myelin) along which electrical signals are sent from one nerve cell to another. When myelin is lost, the axons can no longer effectively conduct signals. There are four different categories of the disease. In ascending order of seriousness they are: benign sensory MS, relapsing and remitting MS, secondary progressive MS and primary progressive MS. MS potentially impacts on every bodily function. It can cause loss of vision, sensory loss and loss of control of other bodily functions. Speech can become slurred. The effect of MS on cognitive functions, memory and executive functioning is less well known. At one end of the spectrum MS may cause no cognitive impairment in some sufferers, while at the other end of the spectrum a sufferer may become unable to communicate, with no cognitive facility at all. It is unusual for MS to kill a patient as soon as twelve years after diagnosis, as it did in Robert’s case.

The contents of the will

[54]One theory advanced by David and his mother is that the contents of the will itself demonstrate that Robert lacked testamentary capacity. Given that there had been no estrangement between Robert and David, it was irrational for David to have received nothing under the will. Thus it should be inferred that Robert lacked testamentary capacity. However, there are, in my judgment, a number of flaws in this theory. First, it overlooks the fact that David received his late father’s civil service pension. This amounted to some £160 per month, which was paid to David until he attained the age of 21. Second, it overlooks the nature of the estate. The only asset of any significance in the estate was the bungalow. In order for the will to have left anything to David the bungalow would have had to have been sold. This leads on to the third factor that the theory overlooks; namely, Robert’s relationship with Anne. On my findings of fact, the relationship between Robert and Anne was a very close one, akin to that between husband and wife. It cannot be said to be irrational that Robert would have wished to provide Anne with a roof over her head, and thus to avoid a sale of the bungalow. In my judgment the contents of the will provide no support for the contention that Robert lacked testamentary capacity. On the contrary; the rationality of Robert’s dispositions is a pointer towards testamentary capacity at the time when he gave instructions for it.

Dr Gross’s opinion

[55]Dr Gross is an eminent neurologist who has made an intensive study of MS for over twenty five years. He was called on behalf of David. However, he did not have the opportunity to examine Robert during his lifetime. He was asked for his opinion of Robert’s capacity based on Robert’s medical records. He was supplied with medical records, social services records and the witness statements. He was working to a very tight timetable, and in the light of his oral evidence it seems to me that he did not have access to or consider all the relevant social services records. Nor was he present in court to hear the oral evidence of the lay witnesses.

[56]Based on the records and documents that he did examine he expressed the view that there were two histories of Robert’s condition and that it was effectively for the court to choose between them. In essence he was saying that the decision on the question of capacity would depend on the facts that I found. It was not, thus, a pure question of medical opinion.

[57]However Dr Gross was able to conclude that during Robert’s terminal year (January 2002 to January 2003) there was “no doubt” that he lacked capacity to manage his own affairs. The greater difficulty was to tell when he lost it. His ultimate conclusion as expressed in his main report was that in April 2000 when he gave instructions for the will Robert “almost certainly knew the nature of the act but I am not convinced that he knew its true effects…. He probably did know the extent of his property but I am not sure that he knew the claims to which he ought to respond, but that may be more a matter of legal analysis.” He continued that Robert “had the required capacity (just or borderline) at the date he instructed his solicitor to prepare a Will… What I perceive however is not proved is that at the time of execution he was able to and did understand that he was signing a will for which he had given instructions.” Thus Dr Gross concluded that from the neurological perspective Robert “may just have had capacity with regard to the preparation of the will in April 2000” but that by September 2001 “he would not have had testamentary capacity in order to know what he was applying his mark when in the car park of the solicitor.” As he put it in his oral evidence he had not given evidence in support of the proposition that Robert lacked testamentary capacity in April 2000. In addition, at the beginning of his cross-examination Dr Gross did say that in September 2001 Robert “may well” have understood he was executing a will. His concern was that Robert may not have had “full insight”.

[58]Dr Gross’s view was that Robert suffered from the severest form of MS; namely primary progressive MS. This was a progressive degenerative disease, with no relapses. His view was that a deterioration in a sufferer’s physical disabilities was likely to be accompanied by a deterioration in his cognitive abilities. However, he acknowledged that this was by no means universal; and that some studies had shown that even in the case of relatively severe MS some 80 per cent of sufferers had shown either no or mild cognitive impairment. In Dr Gross’s view someone with mild cognitive impairment would have had testamentary capacity. A fortiori in the case of someone with no cognitive impairment.

[59]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. It is also striking that during the course of the history of Robert’s illness no one (including medical practitioners) was willing to give an opinion on whether he actually had mental capacity. Nor was Robert tested to determine the extent of such cognitive defects as existed.

[60]Dr Gross agreed in his cross-examination that lay people (such as carers) who are constantly with sufferers from MS and other disabled persons can often understand more of what is being communicated than outsiders, even outside medical specialists. The skills of carers to pick up information and to interpret non-verbal communication are, in his view, well known. A newcomer must often put in considerably more effort to understand and communicate. However, having said all this, Dr Gross was not persuaded that the two contradictory histories could be reconciled.

[61]Although in my judgment Dr Gross’s reports were his genuine opinion based on the materials that he had studied and represented his real attempt to help the court, it seemed to me that his impartiality wavered somewhat in cross-examination. When he was presented with materials that he had not mentioned in his reports, and which cast doubt on what he called his “thesis”, he was inclined to explain them away or pooh-pooh them. The overall impression of Robert that I have formed from the totality of the evidence is that he was a great deal more aware and more competent than Dr Gross gave him credit for.

Anne’s evidence

[62]Anne said in her witness statement and maintained in cross-examination that she was unaware that Robert’s mental capacity was ever an issue. Faced with letters that one would have thought she had read at the time, she insisted time and again that she had not seen them. I find her evidence on this question impossible to accept. It is at odds with the contemporaneous correspondence and also with notes made by social workers and others, including notes of conversations with Anne herself. In my judgment Robert’s mental capacity was plainly a matter that was raised from time to time; and Anne knew that. Anne also flatly denied having participated in a discussion with a locum consultant in rehabilitative medicine in September 2001, whereas his contemporaneous report of the consultation shows clearly that she participated in a “long discussion”. I cannot place any weight on Anne’s evidence in considering the question of Robert’s mental capacity.

Carers and others

[63]Mr Harminder Singh Kalsi was the manager of the Fairway Day Centre between 1999 and the end of 2001. That was the day centre that Robert attended. Mr Kalsi explained that in March or April 2001 the day centre put on a show in which a number of patients participated. Robert was one of those. He was an active member of the committee which decided the theme. An artist in residence wrote lyrics for the group to learn. Robert was able to learn his lyrics (some eight or ten words) and was able to repeat them on cue on stage. He described Robert as able to articulate his desires, provided that one was prepared to spend the time to understand what he was saying. He was knowledgeable about social and political matters, which he discussed, and he would ask pertinent questions.

[64]The social services records record a telephone call that Mr Kalsi made on 2 October 2001. The note reads:

“Harminder said Rob can be very confused. This has increased in the last month. Harminder does not think Rob can make decisions, he wonders whether Rob understands what it being said, and whether he can make real choices. Harminder said Rob can be very lethargic and slumped in his chair.”

[65]Mr Kalsi agreed that this was an accurate record of a conversation that he had. He pointed out, however, that while what he said was true, it was true only at that point in time. His evidence was that Robert’s condition had its ups and downs; and that he had good days and bad days. He also said that if all was well there would be no need for him to make any call or report to social services. Nevertheless it is important evidence about Robert’s state of mind in the month preceding 2 October 2001, which included the date on which he executed the will.

[66]Mr Kalsi did, however, say that there was a noticeable deterioration in Robert’s physical capacity over the period that he knew him. Communication was always a problem, but Robert did not lose his ability to use language completely before Mr Kalsi left the day centre at the end of 2001. He could still vocalise and make small sentences. Mr Kalsi has no axe to grind and no interest in this litigation. He struck me as an honest and reliable witness and I accept his evidence.

[67]I have already mentioned Mr Fullerton’s evidence about the day Robert gave instructions for his will. He also gave more general evidence about Robert’s capacity during his time as carer between 1999 and 2001. He said that Robert showed no sign of general forgetfulness and was able to communicate with difficulty. He was sociable although he could become frustrated because of his disabilities. However this did not affect his ability to understand and take control of his affairs. He always knew what he wanted. He accepted in his oral evidence that Robert could become confused but he attributed this to a low blood sugar level caused by Robert’s diabetes, especially when he “went into hypo”. Although his detailed evidence about the events of 5 April 2000 may not be wholly accurate, there is no reason to doubt his general account of Robert. I accept this evidence.

[68]Ms Eve Jones is the mother of Anne’s granddaughter Maria who was born in 1999. She saw Robert on a number of occasions, mostly between September 2001 and his death. She would see him at his home and often spent time sitting in the sitting room with him. She recalls him having conversations both with her and with his carers. He could express choices, for example about what he wanted to eat or drink. He would act as host, and instruct his carers to prepare tea or coffee for visitors. Ms Jones’ perception was that he was well aware of his surroundings; that he knew who she was (and Maria too) and that in conversation he took an interest in Ms Jones and her activities. Her overall impression was that he was not confused or removed from reality; but that Robert’s was a case of a body falling apart while the mind remained intact. Ms Jones clearly had fond memories of Robert. That is in itself evidence of his ability to interact with people. I found Ms Jones’ evidence clear and convincing and I accept it.

[69]I turn from the more general evidence of those who knew Robert to the medical and other records. On close examination I do not consider that they undermine that general evidence. In short, contrary to the view expressed by Dr Gross, I consider that there is in truth only one history.

Social services and medical records up to 5 April 2000

[70]On 21 June 1999 social services visited Robert. The report of the meeting concerned Robert’s ability to take control of his financial affairs. The opinion of the social worker (who is unidentified) was that Robert was not in a position to retain ultimate control over money for his care and would not be in a position to give directions to any person about what to do. The report concluded: “He came across OK but seemed forgetful”.

[71]In the early part of 2000 the District Nurses expressed concern about Robert’s insulin regime. The Clinical Assistant at University Hospital replied that there was no medical reason why Robert should not have twice a day insulin (as opposed to four times a day) but added:

“However, he seemed not at all keen on changing his regime and it is difficult to persuade him to change his regime against his will.”

[72]The significance of this last observation is that Robert knew his own mind and did not comply with the suggestion (or even persuasion) of a professional medical practitioner. This tends to show that he was not suggestible. It also tends to show that Robert was able to compare possible future courses of action.

[73]Robert’s mother telephoned social services on 3 April 2000 (two days before Robert gave instructions about his will). The note of the call reads:

“T/c from Joan (Robert’s mother) expressing concerns re Robert’s finances. Advised her to speak to Robert about it & I would have a chat with his GP about his mental state.”

[74]There are a number of significant features about this: i) Robert’s mother’s concern was a concern about his finances, not his mental capacity; ii) Her interlocutor advised her to speak to Robert about it, which does not suggest that he was thought to be incapable of discussing his financial affairs; iii) Although it was suggested that the social worker would “have a chat” with Robert’s GP, nothing was in fact done.

[75]There is no other impartial record of concern about Robert’s mental capacity before the date on which he gave instructions for the will.

Social services and medical records after April 2000

[76]The District Nurses repeated their concern about Robert’s insulin regime in May 2000.

[77]On 26 October 2000 Richard Warner, a MS liaison nurse at University Hospital, reported on Robert. He reported a “moderate to severe degree of disability”. He noted that Robert’s speech was dysarthric and that his carers reported that his speech became more slurred as he tired. He had difficulty in holding his head upright and was drooling. Robert’s carers reported “short term memory problems and problem solving ability”. However, Mr Warner had what, on the face of it, appears to have been a rational discussion with Robert about possible avenues of treatment for his MS and the various patterns that MS might take. The question of future treatment (involving Beta Interferon) was one that was raised by Robert himself. The discussion concerned the criteria for prescribing Beta Interferon and also the benefits that such treatment might bring. Mr Warner did not suggest that Robert lacked any ability to participate in or understand that discussion. Dr Gross agreed that short term memory problems of the kind that Mr Warner referred to did not necessarily prevent a patient from understanding. He did, however, speculate that Robert might have learned of Beta Interferon from someone else or through the MS Society. There was no evidence to support this speculation. But even if the speculation was true, it would have shown that Robert was capable of holding data and retrieving them at an appropriate moment. It was, in my judgment, one instance where Dr Gross “explained away” something that appeared to cast doubt on his “thesis”. In the end, he accepted that this episode carried the question of Robert’s capacity no further.

[78]In January and February 2001 Robert was seen by a number of different medical practitioners. They included Dr Etti, a consultant neurologist. He reported having seen “this pleasant 45 year old man” on 8 January 2001. His view was that Robert’s MS had run a primary progressive course since diagnosis. He noted a number of physical symptoms. But he did not identify any cognitive defects; nor any loss of mental capacity.

[79]On 28 February 2001 social services recorded a conversation with Robert and Anne. Robert was asked who he would choose as his appointee “if he needed someone to manage his affairs”. He said he would choose Anne. Anne said that she thought Robert could manage his affairs and that he understood what he signed, but that he could be easily influenced. It is noticeable that this record did not suggest that Robert did need someone to manage his affairs: at that stage it was no more than a future possibility.

[80]Following a letter from Mrs Edge expressing concern about Anne’s involvement in Robert’s affairs in March 2001, social services decided to investigate the possibility of a professional assessing Robert’s mental capacity. On 6 March 2001 Richard Warner, the MS liaison nurse, was asked who would be the best person to assess Robert’s mental capacity and he suggested Dr Koko. However, there was apparently no assessment. If there had been a serious concern about Robert’s mental capacity, that is surprising. Mr Warner expressed the view (as recorded) that Robert “has a degree of cognitive impairment which affects his memory capacity and concentration may be difficult.” He went on to say that Robert “is probably capable of making unrealistic decisions, but this is more to do with his personality than his MS”. It was not, therefore, suggested that Robert’s MS had prevented him from making decisions.

[81]As mentioned Robert took part in a show at Fairways in March or April 2001. On 29 March 2001 the social services records record a conversation in which that concert was discussed. The record goes on to say that neither the social worker nor Anne could recall the date “but Robert remembered it straight away”. His memory appears to have been functioning.

[82]On 24 May 2001 Robert’s GP, Dr Salar, referred him to a speech therapist because he was having difficulty in speech. This was the first referral he had had to a speech therapist. Dr Gross was quite indignant at the suggestion that any inference could be drawn from the fact that there had been no previous referrals for speech problems.

[83]In a letter of 8 October 2002 Ms Phillips, a social worker in the Adult Care team, wrote to Dr Falope about Robert’s ability to give informed consent. What is important for present purposes is that the letter said:

“Dr Soryal advised us on the 10 July 2001 that Robert had major difficulties with short-term memory, abstracting information and maintaining his concentration, but could not be absolutely certain about his ability to provide informed consent. His opinion was that to answer our query Robert would need to be assessed by the Clinical Psychology Department.”

[84]There is no other record of Dr Soryal’s advice, but I have no reason to doubt the accuracy of the summary. What it shows is that: i) In July 2001 there was sufficient concern about Robert’s capacity to give informed consent (presumably to some form of medical treatment) as to cause social services to refer the matter to a medical practitioner; ii) The medical practitioner was unable to say for certain; iii) His ability to give informed consent could only be answered by a full assessment; but iv) The assessment was never done.

[85]During mid-July 2001 Robert was in respite care. The notes record a long discussion with him on 13 July. Anne was not present. The discussion ranged over payments for his care; whether Robert would be interviewed in connection with a complaint by Anne about the company providing home care services (in the course of which Robert expressed disagreement with Anne’s complaint); whether David should meet the MS liaison nurse, which Robert thought was a good idea and that David would understand anything explained to him. Robert also explained that he loved to see David “but that there was an atmosphere when Anne is there”. He explained why he thought that there was an atmosphere; said that he told Anne to “bugger off” and that Anne had to accept that David was his only son and he loved him. He told the social worker that Anne was on holiday and that his parents had visited him. The note concluded by stating:

“Robert told me that he is writing his life story. Later on Fairways staff confirmed this – at least 2 members of staff are spending time with Robert and writing for him.”

[86]There are a number of significant features of this conversation: i) Robert was able to marshal and communicate a great deal of information; ii) He was able to express his own view abut the quality of home care and to disagree with Anne’s view. He also showed a will to stand up to Anne over David’s visits; iii) He was able to assess the “atmosphere” (which as Doctor Gross accepted is a sophisticated cognitive exercise), recall it in conversation and explain what had given rise to it; iv) He reaffirmed his love for David; v) He was able to weigh competing claims on his affections by David and Anne; vi) He was able to work on his life story.

[87]Dr Gross pointed out that the notes did not say anything about Robert’s ability to make decisions or process information. That is true, but this struck me as an unduly theoretical approach. The notes simply record a conversation which, on the face of it, was very detailed and wide-ranging. Dr Gross said that this was a better narrative performance on Robert’s part but would not draw anything more from it. This was, in my judgment, another instance of Dr Gross explaining away a piece of evidence that did not fit his thesis.

[88]On 23 August 2001 Robert was attended at home by Dr Salar, his GP. Robert was unwell and slightly drowsy. Dr Salar advised him that he needed to go to hospital because of his low urinary output. Dr Salar satisfied himself that Robert understood the reason for his admission and that he agreed with the advice. He commented in his oral evidence that it was not uncommon for patients to refuse to take medical advice.

[89]On 6 September 2001 social services recorded a conversation with Anne. The subject of the conversation was whether Robert should have direct payments for his care. The significant point, for present purposes, is that Anne is recorded as saying that “Robert could have direct payments and an advocate can make the decision.” It was explained to her that Robert could have as much support as required but “someone has to decide whether he can make that decision in the first place. Anne said she had a 30 page document explaining that an advocate can make the decision.” The inference from this is that Anne did not think that Robert was capable of making the decision on his own.

[90]On 11 September 2001 Robert’s mother telephoned social services. The record of the call records her as being unhappy about Robert and Anne’s relationship and as saying that “Robert does not understand anything about money”.

[91]On 20 September 2001 (six days before the will was executed) Robert was seen by Dr Falope. He was accompanied by his mother and, it seems, also by Anne. Dr Falope reported on the consultation on 28 September 2001. He said:

“He has spastic tetraparesis with bilateral asymmetric proximal and distal tremor of the upper limbs worse on his left side. His voice is dysarthric and barely intelligible. As you know, there is also evidence of cognitive deficits relating to memory attention and concentration. He has no major problem with tone.”

[92]This was the second time that it had been noted that Robert suffered from dysarthria. Dysarthria, as Dr Gross explained, is defective or deranged articulation in speaking. It is to be contrasted with dysphasia, which is a derangement in speech due to confusion or loss of ideas arising from affection of the brain. Robert was never diagnosed with dysphasia. Dr Falope went on to say that he had had a lengthy discussion with Anne and Robert’s mother. He explained the process of MS by which “brain cells are lost”. He also explained that the problems with Robert “including weariness, fatigue, pain, swallowing difficulties, cognitive deficits and mood problems are common in this stage of the disease.” Anne denied that this explanation had ever been given to her. Her concern at the consultation with Dr Falope was about Robert’s feeding arrangements. When she reported the consultation to social services on the following day she said that Dr Falope had asked Robert about his understanding of direct payments but Robert was not able to answer coherently because of low blood sugar. This, in my judgment, was an instance of Anne being (and remaining) in denial of Robert’s true condition. Dr Gross cogently pointed out that if Robert had had a hypoglaecemic attack in the presence of Dr Falope, Dr Falope would have attended to it immediately. I cannot accept Anne’s evidence about the cause of Robert’s incoherence, but I accept that he was incoherent.

[93]However, when Robert’s capacity was raised with Dr Falope after Robert’s death in 2003 (having seen him a second time in 2002) he said in a letter of 21 February 2003:

“Mental competency has to be assessed with a specific question in mind. It could be with respect to managing his affairs, or a decision on where to live, or a decision about medical treatment. The level of competency would depend on the severity of the situation or complexity of medical treatment. I note that Robert has significant cognitive defects. That does not equate to global loss of mental competency.”

[94]In the light of this letter, it would not, in my judgment, be right to assume that what Dr Falope said in September 2001 should be equated with the view that Robert lacked testamentary capacity although it does point towards that conclusion.

[95]In September 2001 social services prepared a care plan. The plan noted that Robert’s memory loss presented some difficulties in communication because he could not always recall conversations that he had had. His speech was also slurred so that people might not understand what he was saying. The report did, however, note that he could remember the names of characters from television programmes and follow story lines. Soap operas were his favourite. Dr Gross agreed that if he could follow story lines this implied that: i) He could remember the story lines; ii) He could retrieve them from his memory; iii) He could understand the relationships portrayed in the television programmes; and iv) He could discuss them.

[96]Following a complaint by Mrs Edge about Robert’s relationship with Anne Birmingham City Council Social Services replied on 14 December 2001:

“Mr Perrins has made it quite clear that he wishes his relationship with Mrs Dooney to continue. Mr Perrins is an adult and has the right to make such decisions and at this point in time no-one is able to overrule his wish.”

[97]On 31 January 2002 Carvill & Johnson wrote to Dr Salar, Robert’s GP, asking him for a short medical report on whether Robert was capable of giving them instructions about financial matters. Dr Salar replied on 19 February 2002 saying that Robert suffered from a complex combination of medical illnesses and therefore “the questions you have asked me are very difficult as I am not an expert in this field.” He suggested approaching Dr Soryal. Carvill & Johnson duly wrote to Dr Soryal on 26 February 2002 and again on 7 June 2002. Dr Soryal never replied.

[98]In April 2002 Robert was admitted to hospital. In all the long history of his illnesses this was the only occasion on which anyone came close to testing his mental ability. He was given a short and unsophisticated test of ten questions (date of birth, remembering a piece of new information; recognising two people; naming the current monarch; counting backwards from 20 etc). He scored 8/10, thus indicating that he answered eight of the ten questions correctly. It is not possible to tell which were the two that he got wrong. Dr Gross had not mentioned this piece of evidence in his reports. His response to it was to criticise the manner in which the test had been administered and to look for other flaws in the admission document. This was, in my judgment, an instance of Dr Gross pooh-poohing a piece of evidence that did not fit his thesis. Dr Gross did, however, agree that it demonstrated that Robert was able to hold on to data of a simple kind, although he pointed out that these data did not require processing.

[99]Dr Falope saw Robert again on 2 May 2002. He expressed the view that Robert’s cocktail of drugs might be contributing to his fatigue and drowsiness. Dr Gross did not think that the cocktail of drugs would cause the appearance of cognitive problems, although he agreed that it might exacerbate them.

[100]On 30 September 2002 the social workers had another conversation with Robert. The avowed purpose of the conversation was to try to ascertain Robert’s ability to make decisions. In answer to questions Robert was sometimes unable to provide information or to remember what had happened. He was unable to engage in an informed discussion on financial matters. The social workers concluded that his responses were unreliable; that they were limited and that they were at times contradictory. The picture of Robert that emerges from this interview is in marked contrast to the lively and informative person he had displayed on 13 July 2001. Dr Gross seemed unwilling to accept this contrast. Conclusions on testamentary capacity On 5 April 2000

Conclusions on testamentary capacity

[101]I am satisfied that Robert had testamentary capacity on 5 April 2000 when he gave instructions for his will. In addition to the general evidence of Mr Kalsi and Mr Fullerton, I place particular reliance on the following: i) Mr Ferguson’s evidence of the conversation that he had with Robert when taking instructions, which I accept. That shows that Robert was able to recall and process information (including the identification of his only asset of substance) and to answer hypothetical and conditional questions (such as what should happen if Anne predeceased him). He was able conceptually to divide his estate (i.e. leaving half to David and half to his brother); to give personal details of his family and his assets and to deal with more than one subject-matter (viz. both the will and the matrimonial proceedings). The fact that he was able to make alternative dispositions also shows, to my mind, that he was able to weigh up competing claims. ii) The lack of any serious expression of concern about his mental capacity from those in regular contact with him. In the context of a relatively hostile correspondence about his matrimonial affairs, I discount the suggestions made by Mrs Edge’s solicitors at that time that he lacked capacity. iii) Robert’s ability to give instructions to Mr Carvill several months later in October 2000. iv) Dr Gross’s opinion that Robert did have testamentary capacity in April 2000.

On 26 September 2001

[102]I am not satisfied that Robert had testamentary capacity on 26 September 2001. I place particular reliance on the following: i) The evidence of Dr Soryal’s view in July 2001 that Robert had major difficulties with short-term memory, abstracting information and maintaining his concentration. This is almost the only quantitative assessment of the extent of Robert’s cognitive deficit. ii) Anne’s statement on 6 September 2001 that an advocate could decide on Robert’s behalf whether he should receive direct payments for his care. iii) Mr Kalsi’s evidence that during the month preceding 2 October 2001 Robert was confused and could not make decisions. This, in my judgment, is a specific piece of evidence at exactly the right period, and I give it greater weight for this period than his more general evidence. His ability to participate in the planning and performance of the show at Fairways some six months earlier does not counterbalance this specific evidence. iv) Dr Falope’s report following the consultation on 20 September 2001 that Robert had cognitive deficits relating to memory attention and concentration, and Anne’s statement that he could not answer coherently. It is true that Dr Falope did not himself indicate the extent of the cognitive defects at that time, but Anne’s statement of Robert’s incoherence is a graphic illustration of the extent. v) Dr Gross’s opinion that by September 2001 Robert lacked testamentary capacity.

[103]I do not overlook the detailed conversation that Robert is recorded as having had on 13 July, but the indications to be gleaned from that conversation are, in my judgment, outweighed by the other evidence. As Dr Gross commented, it shows that David had a grasp of narrative, but not that he was able to make decisions. Although I have accepted Ms Jones’ evidence it is evidence of social interaction rather than cogent evidence of Robert’s capacity to make decisions and choices.

[104]Accordingly, but for the principle in Parker v Felgate I would pronounce against the will. The principle in Parker v Felgate Testamentary capacity at date of instructions

The principle in Parker v Felgate

[105]The first question is whether Robert had testamentary capacity when he gave instructions for the will. I have found that he did.

Did the will embody his instructions?

[106]The second question is whether the executed will accurately embodied his instructions. I have no reason to doubt the thrust of Mr Ferguson’s account of his meeting with Robert on 5 April 2000, which is supported by his contemporaneous attendance note and memorandum. I find that as at 5 April 2002 Mr Ferguson accurately recorded Robert’s instructions and carried them through into the will.

[107]However, because of the long gap between the preparation of the first draft will and the preparation of the second draft will and its execution I must be satisfied that Robert’s instructions given in April 2000 remained his testamentary wishes in September 2001. Mr Quirke pointed to the following: i) Anne’s evidence (which was not challenged in this respect) was that she did not read the will to Robert or discuss it with him. There is also no record in social services notes that suggest that anyone else read the will to him or discussed it with him. Mr Fullerton’s evidence was that carers were instructed not to get involved in personal matters. ii) The evidence is that Robert’s eyesight was poor, so that it is at least doubtful whether he could have read the will without assistance. iii) Mr Berry’s note of 29 June 2000 recording that Anne had said that there were some matters in the will that were not clear or satisfactory. iv) The conversation on 13 July 2001 when Robert reaffirmed his love for David.

[108]I do not consider that the first and second of these tend to show that Robert changed his mind, on the basis of my finding of fact that the will accurately reflected his instructions given on 5 April 2000. Nor does the fourth of these. Robert’s love for David is entirely consistent with a continuing wish that Anne should inherit the bungalow which was the only asset in Robert’s estate (apart from the civil service pension which was going to David anyway). The third of these features does raise some doubt, although it must be borne in mind that the communication was not made by Robert himself; and that the respects in which the will was unclear or unsatisfactory were not specified. Anne was not asked about this in evidence. In addition there is no external event which would have caused Robert to change his testamentary wishes.

[109]Mr Quirke also points to the fact that the telephone call which resulted in arrangements being made for the execution of the will was made by Anne. He refers to the statement in Battan Singh v Amirchand that the principle in Parker v Felgate must be applied with the greatest caution when the testator does not himself give instructions to the solicitor who draws the will, but to a lay intermediary who repeats them to the solicitor. However, that is not this case. In the present case the instructions for the will were given by Robert himself to Mr Ferguson. Anne’s telephone call to make arrangements for the execution of the will was simply administrative, and is readily explicable by Robert’s dysarthria.

Robert’s capacity when he executed the will

[110]Dr Gross’s opinion was that when Robert executed the will in September 2001 he “may well” have understood that he was executing a will. In my judgment Dr Gross was unduly cautious. In my judgment Robert did understand that he was executing a will. This was also the opinion of Dr Corston, the expert called by Anne.

[111]In fact the evidence goes further. I place reliance on the following in particular: i) Robert’s “narrative performance” on 13 July 2001 which demonstrated an ability to impart and understand information, even if it did not demonstrate decision making ability. ii) Robert’s understanding of Dr Salar’s advice on 23 August and his agreement with that advice. iii) Robert’s ability to remember and follow the story lines of soap operas in September 2001. iv) The general evidence of Ms Jones about Robert’s ability to engage in rational conversations and interact with people after September 2001. v) Robert’s score in the mental test in April 2002 which demonstrated his ability even then to hold and retrieve data.

[112]It does not, of course, follow that Robert’s ability to recall data meant that he actually recalled in September 2001 the instructions that he had given Mr Ferguson in April 2000; and I do not find that he did. But I do find that he was in the mental state described by Sir James Hannen as the second possible mental state: viz. that if each clause of the will had been put to him and he had been asked do you wish to do this, he would have been able to answer intelligently “yes”.

Execution of the will

[113]Mr Ferguson’s first account of the execution of the will on 26 September 2001 was as follows:

“I asked if he was happy to sign the document and he said “Yes”

. Ann Dooney who had been standing some feet away, produced a rubber stamp, which was rested on the will and the enduring power of attorney and the weight of his hand caused his mark to be made. The documents were then witnessed.”

[114]In his witness statement his account was:

“Anne Dooney stood away from him towards the car park entrance, perhaps three of four yards away, and I was able to have a private conversation with Mr Perrins. I briefly ran through its contents again and that of the Power of Attorney. Mr Perrins indicated his consent by saying “yes” in answer to the question “are you happy with it?”

There was a clear indication that he wished to go ahead and no suggestion that he did not understand what was being said to him.” I wrote in the dates of the Will and when requested Anne Dooney came forward and produced a rubber stamp which was rested first on the Will and then on the Power of Attorney. Mr Perrins’ hand or arm was placed upon the stamp and the weight of his limb caused his mark to be made. The documents were then witnessed in the usual way.”

[115]In his oral evidence Mr Ferguson said that he went through the will clause by clause, summarising each one in non-legal language; and that that is what he meant in his witness statement when he said that he “briefly ran through the contents”. Robert did not read it himself, although the attestation clause stated:

“The testator being able to read but unable to write his name because of Multiple Sclerosis this Will was signed by him with his mark in our presence…”

[116]The will did not record that it had been read over to him. It assumed that Robert could read. Mr Ferguson said in his oral evidence that the process of going through the documents clause by clause took 10 to 15 minutes; but when he demonstrated in the witness box what he had done it took less than a minute. This is equivalent to a brief run through.

[117]Anne’s evidence about the execution of the will was not challenged. She said in her witness statement:

“… Mr Ferguson attended Robert with members of Sydney Mitchell’s staff in the car park and the Will ws executed in the car. I stayed some distance away when Mr Ferguson discussed the Will and produced the stamp which Robert used for signing when requested to do so.” (Emphasis added)

[118]A discussion is more than a single question.

[119]In the light of the totality of the evidence I accept that Mr Ferguson did briefly run through the will; but I do not accept that he spent as long as ten or fifteen minutes doing so. Again, in my judgment, Mr Ferguson was attempting to portray a greater level of care and competence than he in fact possessed. But although I consider that in his oral evidence he embellished or exaggerated the degree of care that he devoted to running through the will, I accept his evidence that he did run through it briefly, summarising the effect of each clause. Since the will is very simple and less than two pages long, it would not have taken much time.

[120]Mr Quirke criticised Mr Ferguson’s use of closed or leading questions (i.e. “are you happy to sign?”). He said that the use of open questions was “an irreducible minimum” in reliance on an observation to that effect by HH Judge Roger Cooke in Buckenham v Dickinson

[2000] WTLR 1083

, 1098. But Judge Cooke’s observation was directed to the process of taking instructions for a will, where the instructions were in fact given by someone other than the testator and the testator was merely asked to agree to someone else’s proposition. He was not considering the more ministerial act of executing the will; still less was he doing so in the context of the principle in Parker v Felgate, where it is plain from Sir James Hannen’s direction to the jury that he saw nothing wrong with closed or leading questions.

[121]The facts as I have found them relating to the execution of the will allay any doubts about whether the contents of the will continued to represent Robert’s testamentary wishes. I find that the contents of the will were summarised for Robert and that he understood the summary. I find therefore that he knew and approved the contents of the will on the date he executed it, even though this may not be required in order to fall within the principle in Parker v Felgate. I find that Robert had testamentary capacity when he gave instructions for the will; that the will as drafted embodied those instructions; and that when Robert executed the will all those months later, his testamentary wishes remained unchanged; and that he knew and approved the contents of the will that he executed.

Result

[122]I pronounce in favour of the will dated 26 September 2001.

[123]As discussed with counsel at the conclusion of the hearing, I will hand down judgment with no attendance being required and, in view of the small size of the estate, will adjourn all further applications to be dealt with in writing, that being the cheapest way of proceeding.