Roman Kubiak, partner and head of the market leading Contested Wills, Trusts and Estates team looks at a recent decision in the High Court in which a daughter successfully contested a will of her father.
In the recent case of Pearce v. Beverley [2013] EWHC 2627 (Ch), the High Court considered the issues of undue influence in relation to voluntary intervivos dispositions (lifetime gifts), and of the validity of a testator’s will on the grounds of testamentary capacity and knowledge and approval. In this article, I will focus on the court’s deliberations in relation to the validity of the deceased’s will.
Background to the case
In 2005, the deceased, John Pearce, commenced a ‘relationship’ with the defendant, Elizabeth Beverley, although the precise nature of the relationship remains unclear.
The court came to the conclusion that by late 2005, John was “not a well man”.
The court reached this conclusion on the basis of considerable medical evidence, including, amongst other things, a neurologist’s report stating that John had “a long standing history of anxiety, depression,[and]degenerative disease.” Further, John’s renal consultant noted that John’s behavior “was almost catatonic in clinic, sometimes forgetting his birthday and becoming mute. This made conversation very difficult though I was able to explain to him that I thought he was suffering from severe depression.” John’s consultant oncologist similarly noted that “I was struck by his blank expressionless face and paucity of movement during the interview.”
John’s subsequent psychiatrist’s report read that John “mentioned he forgets things very easily. He does find difficulty understanding things and also in remembering words…It was evident he could not express himself very clearly….there was some evidence of memory loss both long terms and short term.”
In late 2007, John was diagnosed with Parkinson’s disease, and subsequently died in July 2008.
Some time in 2007, John also took the view that his daughter and claimant seeking to contest the will and lifetime gifts, Colette, was not actually his daughter, something which the court construed as potential “evidence of his declining mental health.”
Between 2005 and his death in 2008, John made a number of voluntary lifetime gifts to Elizabeth and also executed a new will in June 2007, in which Elizabeth was named as the sole beneficiary.
Colette’s claims were that the lifetime gifts to Elizabeth were made as a result of undue influence brought to bear upon her father, John, by Elizabeth, and should accordingly be set aside, and that John’s will should also be set aside because he lacked the testamentary capacity to give instructions for and execute his will.
The will of John Pearce
John initially instructed a solicitor to draft his will. John attended a solicitor’s office accompanied by Elizabeth. During the meeting Elizabeth informed the solicitor that John “was unable to speak for himself but that he wanted to change his will and leave everything to her.” In the circumstances, the solicitor took the view that she was unsure whether John had the requisite capacity, and sought to obtain evidence from John’s General Practitioner in accordance with the well known “golden rule” set out in the case of Re Simpson[1977] which states that in cases of any doubt as to capacity a solicitor should seek a medical practitioner’s opinion on the mental capacity of a person making a will.
The solicitor explained in evidence that she outlined the issues as she saw them to John and Elizabeth, namely the need to establish capacity, and “the need to establish that the instructions reflected John’s wishes.” The attending solicitor then explained how Elizabeth became angry at this, and “stormed out of the office.”
John subsequently did not instruct this solicitor to draft his will and, instead, two days following the incident at the solicitor’s office, instructed an employee of The Will Writing Company to draft his will. It was noted by the employee of The Will Writing Company that ”as a result of his illnesses his speech is slow and sometimes difficult to follow – Elizabeth Beverley was present during the interview and on occasions helped me to understand what he was saying – I am satisfied that she did not unduly influence his instructions in any way even though she is to be the sole beneficiary of his estate, with his brother named as the alt(sic)beneficiary.”
The Law
Testamentary Capacity
The court confirmed that the test for testamentary capacity, as set out in the case of Banks v. Goodfellow (1870) LR 5QB 549, applied in these circumstances, namely that the testator must:
- i. understand the nature of his act;
- ii. the extent of his property; and
- iii. the claims to which he ought to give effect; and
- iv. that no disorder of the mind shall poison his affections, pervert his sense of right, or his will in disposing of his property.
The court further confirmed that when determining testamentary capacity, the burden of proving whether or not the will is valid “is subject to the following rules:
- a) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.
- b) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
- c) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.”
This is different to the position under the Mental Capacity Act 2005 where the burden of proof rests with the person challenging capacity.
On the facts of the case, the court considered that there were real concerns regarding John’s capacity at the time he gave instructions for, and executed, his will and that the burden of proof thus reverted to Elizabeth to demonstrate that John had testamentary capacity.
Applying the Banks v. Goodfellow test, the court had concerns that John both “understood the extent of the property he was disposing”, and also whether he comprehended and appreciated the claims of his daughter, Colette. His belief that Colette was not his daughter appears to have been wholly irrational and may well have been the result of a mental disorder from which he was suffering.
In the circumstances, the court considered that Elizabeth had not satisfied the court that John had the required testamentary capacity to execute his will.
The court also considered it significant that there was no evidence produced to suggest the employee of The Will Writing Company had any qualification to assess John’s mental capacity, thus highlighting the importance of practitioners in following the so called “golden rule”, in cases where the capacity of the testator is questionable.
Knowledge and approval
The court also considered the issue of knowledge and approval and stated that:
- “i) As with testamentary capacity, due execution of an apparently rational and fair will, will ordinarily satisfy the burden of proof on the propounder, unless there are circumstances which excite the suspicion of the court.
- ii) In such a case, the propounder may be required affirmatively to prove knowledge and approval. This is an evidential rather than legal burden.
- iii) The standard of proof is, as is in all civil proceedings, that of the balance of probabilities. Nonetheless the task of satisfying that standard will generally vary in proportion to the degree of suspicion engendered by the circumstances.”
Applying the above facts, the court considered that this is a case in which “there are circumstances that excite the suspicions of the court”, in particular the court highlighted that Elizabeth was the sole residuary beneficiary under the will, and that she was present throughout the meeting in which John gave his will instructions. The court further declared that John “was a highly vulnerable adult suffering from mental and physical problems and who had for no good reason completely changed his relationship with his daughter.” The court thus considered that these circumstances solicited a “high degree of suspicion”, which resultantly placed the burden of proof on Elizabeth to prove that John had the necessary knowledge and approval of the contents of his will, something which she failed to do in these circumstances.
The court, therefore, found that John’s will was invalid on the ground of both lack of testamentary capacity, and also lack of knowledge and approval, and his estate subsequently passed to Colette under the rules of intestacy.
