“It is fair to say that while the deceased was a very good client in many ways, she could be quite a challenge to manage as she was stubborn and had very old-fashioned views. During my long experience of having the deceased as a client, it was clear to me that she liked to reward people who were in her favour. Indeed, if it were not for the deceased’s history of changing her will, I would have been concerned that she wanted to change it again in November 2021 but this followed her pattern of will making. During that time I did not once consider that she had issues of capacity, rather her wish to change her will was down to her personality.”
“…she had loaned so much money to her sister over the years. Her sister lived a very extravagant lifestyle …[she] has apparently sold over 4 houses and lives the high life and never has any money…[she] has told her she is not giving her any more money. Recently, her sister has been asking Paul, who works for Mrs Keats on the caravan site, what is in Mrs Keats’s safe and also whether she is named in the Will.”
“…believes she has seen the Will which makes no provision for her. [Josephine] …has been letting herself into the property whilst Mrs Keats has not been in and rummaging through her papers. However, Mrs Keats clear that she doesn’t like her sister not talking to her and needs her help to get to various doctor and hospital appointments. Every time she phones her sister at the moment, her sister is simply putting the phone down…her sister has had 4 houses and still has nothing to show for it as she has spent all her money.”
“As for the caravan site and the mobile home this place doesn’t belong to you yet and will stay as it is. Ron and I worked so hard to make it a place for people to enjoy. The Whitehorns will get a share as my will states there are others besides you”
“…disgusted to think you could even say to my sister that you didn’t want anybody living in the garden in a caravan when you came to live at Carron when my sister was very much alive. What a presumptuous little man you are. Anyhow you won’t be living there at all.”
“…initial concerns …over gifting the caravan site to Paul, [ Mr Maunder] especially as you’ve only known him for a couple of years. You said Paul had been a great help to you …. Since you have fallen out with David and Angela, you have relied more and more on Paul…You understood my concerns but you wished to benefit Paul by leaving him the mobile home and caravan site under your will.”
“…very disorientated…didn’t give clear instructions about being to update her Will. She was very muddled. HW uncertain if Carry would be able to give instructions. However, Carry confirmed that she would like HW to go and see her and to attend tomorrow.”
“ATTENDANCE NOTE CLIENT: Carry Marion Fanny Keats MATTER: Will 2021 MATTER NO: KEA2/2 DATE:26 January 2022 (1) HW in attendance at Salisbury District Hospital and meeting with Carry Keats. Just before HW was going in to Carry, the ward sister was going to give Carry some pain relief. This was given to Carry whilst HW was present. (2) Carry knew why HW was there and also her name, and HW was confident that instructions could be taken. Carry was clearly in a lot of distress with her pain. She was on a vibrating bed and had boots on in respect of her bed sores. Carry was moaning and grimacing throughout the appointment that HW was with her, although the pain relief did seem to help a little. (3) Carry not initially being 100% clear and said that her sister, Josephine Oakley, had attended her this morning. HW was surprised, as Mrs Oakley had said that she wasn’t going to attend on Wednesday to see Carry, but clearly had changed her mind because she knew that HW was going to be attending that afternoon. HW telling Carry this and also that Josephine had asked to be present whilst HW was there, but she had told Josephine that she couldn't be, and I had to see Carry by herself. (4) Josephine has clearly been spending a lot of time with Carry over the last few days, and appears to be visiting her daily. Discussing the situation with Paul and Josephine. Carry saying that Josephine says that Paul is just after the money and out to get what he can. HW saying to Carry it doesn't matter what Josephine says- it's what Carry wants to do with her estate that matters. Carry saying 'Paul's been good to me. My sister hasn't’. HW agreeing with Carry that she has had a love/hate relationship with Josephine over the years, and Carry has told HW about the amount of money and hardship that Josephine has caused her over the years. Carry not denying this. (5) HW explaining to Carry that her current Will was still in place, and this appointed her cousins Angela and David as the executors and also passed a lot of the estate to them. Carry saying that she definitely didn't want this to happen. HW advising Carry that if she didn't want this to happen then she could tear up her current Will but then she would be intestate. HW confirming that if Carry was intestate then Josephine, as Carry's sole and closest relative, would be entitled to all of the residuary estate. Carry confirming that Josephine was her only sibling and no other previous siblings were part of the family. (6) HW saying to Carry that if she was adamant that she didn't want David and Angela to deal with the administration and to inherit from her estate, that she could tear up her old Will. HW had brought the original with her, and Carry was happy to do this. Carry was able to tear around three quarters of the way through and then HW helped her tear up the rest of it. (7) HW then trying to take Carry's instructions in respect of a new Will. HW saying that she had brought the draft Will that she had prepared back in November and had modified this slightly to ensure that it could work, as there had been some blanks in it. HW explaining the basic terms of the Will so that Carry could understand this. Carry wasn't happy with Paul receiving the caravan and the caravan site. She started saying that she wanted Josephine to have the caravan and caravan site and then Paul to have the bungalow. HW saying that the bungalow would probably be worth around£300,000 to£400,000 , and was she happy for this to pass to Paul? Carry saying that Josephine stressed that Paul would knock down the bungalow and then do a new development on it, and he was only after the money. HW saying that Paul could well do that, but she didn't know and nor did Carry or Josephine. Once Carry gave any gift to a beneficiary under the Will then they were free to do what they liked with it. After considering this, Carry confirming that she wanted the caravan, caravan site and other land to go to her sister, Josephine, with the bungalow and garden to only go to Paul. HW hand-amending the Will that she had brought with her and explaining to Carry that she had also included provision for a right of way to the caravan site, with a view that this was to be carried on as a caravan site. Carry was happy with this. (8) HW then reading through the Will so that Carry was fully aware of the terms of the same. HW was aware that Carry was drifting out of consciousness, presumably because of the pain relief, and then when HW queried with Carry that she was happy with certain clauses in the Will, Carry was then contradicting herself, at one point even saying that David and Angela were to inherit the caravan and caravan site, but then saying that no, this wasn’t correct. She kept on switching around who was to have the caravan and caravan site and who was to have the bungalow. At one point she said that she wanted Josephine to have everything, but then quickly back-tracked on this and said about various legacies and gifts of the bungalow. It wasn't clear at all to HW as to what Carry actually wanted. (9) Whilst Carry had been lucid she had torn up the current, valid, Will and was aware that Josephine would get everything under the rules of intestacy, and Carry seemed quite settled with this. HW was unable to take Carry's instructions, as Carry's capacity had clearly dipped because of the pain relief. Carry was falling asleep also. (10) HW saying to Carry that everything was ok and David and Angela were not going to benefit from the estate, and trying to make Carry understand that everything was ok and Josephine would deal with everything. Carry asleep but then still mumbling at the same time some random information. (11) HW leaving Carry, but saying that she would write to her to confirm the situation. (12) HW then speaking with the ward sister. The ward sister saying that Mrs Oakley had been saying that there was a man who was coming to see Carry and that he was no good. Presumably this would be Paul. Mrs Oakley was also asking about the estate, and the ward sister was saying that she couldn't tell her anything about it. HW explaining to the ward sister that she couldn’t give any information to her either and also had spoken to Mrs Oakley in this regard. HW explaining that she was going to write to Carry Keats and would ask that this was put away in a private location so that when Mrs Oakley attended she could not see the contents of the letter, as this was not appropriate. The ward sister confirming that they would try to do this, and HW thanking her for the same. (13) HW also asking about Carry's life expectancy. The ward sister saying that it was palliative care, but Carry was in quite good health. She was still eating and drinking and therefore it could be a few months. If Carry got an infection, then of course this could be a different situation. The ward sister didn't know how long Carry would be at Salisbury District Hospital for- it all depended on where they could get abed- but Carry would definitely be going into nursing care, because the level of care she needed would warrant this. Carry would not be going home. Time in attendance: 60 minutes Time travelling: 60 minutes Mileage: 34 miles HW”
“If you recall, you confirmed that you did not wish [the Crews] to have anything to do with your estate or benefit from the same. I advised you that [the Will] was still actually in place and this made provision for [the Crews] to act and inherit a large proportion of your estate. You tore this Will through, effectively destroying the same. As a result you are now intestate, meaning you do not have a valid Will in place.”
“…no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner herein-before required, or by some writing declaring an intention to revoke the same and executed in the manner in which a will is herein-before required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.”
“1. By evidence of the expressed intention of the testator, especially if such declaration was contemporaneous with the act …” 2. The intention may, in the absence of any express declaration, be inferred from the nature and extent of the act done by the testator; i.e. it may be inferred from the state and condition to which the instrument has been reduced by the act. From the face of the paper itself it may be inferred either that he did intend to destroy it altogether, or that he did not. 3. The intention may, in some degree at least, be inferred from intrinsic circumstances. There may have been declarations, not directly as to the revocation, but such as would lead to the inference whether he did intend to revoke the will or did not.”
“There must be an actual, not a symbolical burning or tearing of the paper upon which the will is written…Although s.20, after referring to burning and tearing a will, continues, “or otherwise destroying the same”, these words must be understood as intending some mode of destruction ejusdem generis, not an act that is not a destroying in the primary sense of the words… Cutting a will with the intention of revocation is effective…However, it is not necessary that the will be totally destroyed, burnt, or torn in pieces. If the will is burnt or torn in the slightest manner, this will be a good revocation if joined with the declared intent. As will be seen, the nature of the destruction may be evidence of the necessary intention. But an unsuccessful attempt to destroy does not revoke… Furthermore the act of destruction, in order to be effectual must not be left incomplete. The testator must have done all that he intended in order to effect destruction. If he is interrupted from completing the act or acts of destruction that he was performing, there is no revocation.”
“The revocation must be done with the testator’s authority, and he cannot acquiesce in a destruction done without his authority, even if done in his presence.”
“The clear thrust of this passage, to my mind, is that the testator must make some positive communication of his desire that someone else should sign the will on his behalf. The reference to conduct and the res gestae is in the context of one who is capable of communicating by signs. We know that there are people suffering from conditions that make it almost impossible for them to communicate normally and that those who understand them can go to extraordinary lengths to enable them to make their wishes and feelings known.”
“…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.”
“At common law sound testamentary capacity means that four things must exist at one and the same time: (i) The testator must be able to understand the nature of making a will and its effects; (ii) they must be able to understand and recollect the extent of their property; (iii) they must be able to understand the nature and extent of the claims upon them both of those whom they are including in their will and those whom they are excluding from their will; and (iv) no insane delusion shall influence their will in disposing of their property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
“Notwithstanding the use of the word “shall” in the test as originally expressed, it is clear that the test is about the ability to understand these matters, rather than actual understanding. And as held in Simon v Byford “capacity depends on the potential to understand. It is not to be equated with a test of memory”
“…the classic formulations of testamentary capacity (quoted above) limit themselves to requiring the testator to understand no more than the extent of his property. They do not require him to understand the significance of his assets to other people.”
“The application of the Golden Rule assists in the avoidance of subsequent disputes as to capacity. However, in the present case, where the Golden Rule was not followed, and a dispute as to capacity has arisen and has to be resolved by the court, non-compliance with the Golden Rule does not demonstrate a lack of capacity. The issue must be decided by the court applying the correct legal principles to the court’s findings of fact.”
“First, where a will is known to have been destroyed by a testator who may have been lacking testamentary capacity at the time of destruction, the burden nonetheless lies on the person propounding the will to establish that the testator lacked capacity, so that the destruction was ineffective.”
“The Court should be slow to ignore the evidence of an experienced and qualified legal professional who knew Carry, actually met with her and took instructions, and formed a view as to her capacity in that moment. That is the best evidence before this Court as to Carry’s capacity. The most obvious point to make here is that Dr Series never met Carry, he can only guess as to how she would have presented herself in assessment and must base his decision on the available records. Dr Series, in his addendum report, has chosen to interpret Mrs Webb’s attendance notes and reject the evidence of her witness statement and does not appear to attach any weight to Josephine’s evidence.”
“Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, according insight into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges. In the present case, both Dr Hughes (in his oral evidence) and Professor Jacoby (in his report) left me in no doubt that they both understood this limitation upon their role. Although they were both forthcoming in expressing their opinions, neither of them made any attempt to usurp the proper function of the court in that respect. Their contribution was of great assistance.”
“Whilst there is possibly scope for experts in a case of this sort to opine (as they did here) as to the inferences that might be drawn from the evidence (as to, for example, the levels of executive function required to write particular documents or carry out specific tasks), and whilst I have on occasions found it useful to record the experts’ views on some of the documentary evidence, I consider that the court must be very wary indeed of placing much weight on such opinions. Ultimately it is for the court and not an expert witness to determine what, if any, inferences should be drawn from the documentary and other evidence when seen in its proper context.”
“I have no shadow of a doubt that the deceased had the capacity at that time to give instructions and understand what she was doing. She was adamant as I knew she could be. She had previously declared her intention of revoking her will to me in November 2021 and she did so again before tearing the original Will. There is no doubt in my mind that the deceased had capacity when she tore the Will.”
“In our view, it is hard to imagine a more obvious conflict of interest and are surprised that …you can continue to act…the reliability of Mrs Webb’s evidence is compromised by her interest in defending her reputation and the manner in which she acted.”
“1.1.1 In my opinion on the balance of probability the medical records indicate that for some time either side of the day on which the solicitor took instructions the Deceased was experiencing delirium which fluctuated in intensity. At the time that instructions were taken, it appears to me that the delirium had not completely resolved. The attendance note does not suggest to me that the Deceased was able to express in a clear and settled way whether she had weighed the claims of potential beneficiaries of the estate and if so how she had done so. If that is the case, then it appears to me that she was not able to meet the third limb of the test in Banks for Goodfellow, and that she therefore lacked capacity either to revoke her old will or to make a new one. In my opinion it is more likely than not that she was able to meet the first limb, in that she understood that she was seeing the solicitor in order to make a will which would determine how her estate should pass, although if the Court considers that in order to satisfy the first limb, she would also have to have understood the full consequences of revoking her old will without making a new one – that her entire residuary estate would pass to Josephine to the exclusion of all others – then I think she would not have been able to meet that element of the test. In relation to the second limb, I think it is clear from the note that she understood that she had bungalow, a caravan, and a caravan site, but it is much less clear that she was able to understand their relative values.” 1.1.2 In my opinion, it is more likely than not that when the Deceased partially destroyed her will, she lacked capacity under the test in Banks v Goodfellow, and therefore also lacked capacity to revoke the will.”
“In my opinion, over the period from at least 01.01.2022, when she was first described in the records as confused, it is more likely than not that she was suffering from delirium, which is a disorder of the mind, although the intensity of the delirium may have waxed from time to time.”
“The Court will of course make its own assessment of the attendance notes, but it appears to me that in the part of the interview leading up to the point at which the Deceased tore the will, the note suggests that here had not been sufficient discussion with the Deceased to show that she was able to meet the test. She may have understood that by tearing up the will she would die intestate so that her estate would not pass to David and Angela, but that is not the same as satisfying the test in Banks v Goodfellow. Later in the interview, she seems to have become more muddled and was more clearly unable to meet the test, to the extent that HW felt she was unable to take instructions.”
“(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.”
“(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.”
“Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.”
“(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.”
“Sixthly, as occurred in Edwards Lifesciences, an expert has been given a sufficient opportunity to respond to criticism of, or otherwise clarify his or her report. For example, if an expert faces focused questions in the written CPR Pt 35.6 questions of the opposing party and fails to answer them satisfactorily, a court may conclude that the expert has been given a sufficient opportunity to explain the report which negates the need for further challenge on cross-examination.”
“…the expert must not usurp the functions of the judge as the ultimate decisionmaker on matters that are central to the outcome of the case. This, as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness.”
“A defendant can ask focusedCPR r 35.6 questions which articulate clearly the challenge or challenges which the defendant wishes to make and give the expert the opportunity to explain his or her evidence in response to those challenges, thereby obviating the need to seek the expert’s attendance for cross examination.”
“Furthermore the act of destruction, in order to be effectual must not be left incomplete. The testator must have done all that he intended in order to effect destruction. If he is interrupted from completing the act or acts of destruction that he was performing, there is no revocation.”
“The testator may acknowledge his signature by means of gestures. A little as a nod of the head has been held sufficient.”
“The testatrix had not signed her will in the presence of the three attesting witnesses, but having signed her name beforehand indicated her approval, while they were appending their signatures, by nodding her head. The defendants, who had previously opposed the will, did not appear. Marshall J. held that the testatrix, who had been fully aware of what was happening, had impliedly acknowledged her signature, and pronounced for the will in solemn form of law”
“In my judgment the court should not find that a will has been signed by a third party at the direction of the testator unless there is positive and discernible communication (which may be verbal or non-verbal) by the testator that he wishes the will to be signed on his behalf by the third party”
“…the deceased knew she was making a new will and knew the extent of the property available for disposal. It is reasonable to expect that a testatrix, who is capable of understanding that much, would normally be capable of understanding the claims arising to which she ought to give effect in her family situation.”
“It is one of the painful consequences of extreme old age that it ceases to excite interest and is apt to be left solitary and neglected. The control which the law gives to a man to dispose of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities.”