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Quality of Evidence

The question of whether someone lacks the capacity to make a will is not confined to the elderly, but our ageing population and increasing rates of dementia mean that more and more wills of elderly testators are being challenged on this basis.

Practitioners whose practice covers probate, wills and trust type work will necessarily encounter clients who wish to make a will in circumstances where testamentary capacity may be an issue. Solicitors therefore need to have an awareness of mental capacity issues in a testamentary context not only so that they are alert to any difficulties in a client meeting the common law test for testamentary capacity, but also so that they can take all appropriate steps to minimise the risk of a will being challenged after the testator has died.

The recent case of Williams v Wilmot [2012] EWHC 2211 (Ch) shows that it is not enough for the will draftsman merely to pay lip service to the established practice of obtaining a medical opinion as to the testator's capacity at the time the will is made. It is the quality and content of such medical reports, taken in conjunction with all other relevant contemporaneous evidence which is likely to persuade a Judge of the true position. The Judge may examine carefully the evidence of those taking instructions and drafting the will to see if it corroborates, or departs from, the findings in the medical report. The evidence of the draftsman may be given significant weight, particularly where the Solicitor has a longstanding relationship with the client and can demonstrate relevant and recent experience in relation to testamentary capacity issues as was the case in Williams v Wilmot.

Facts

In 2003 Dr Cecil Monk executed a will which left his entire estate to the claimant, Yvonne Williams. The will was drawn up by Dr Monk's solicitor, Mr Brunton, an experienced probate lawyer who had acted for Dr Monk for many years.

In December 2006 the local authority responsible for Dr Monk's care sent a letter to Mr Brunton in which it indicated that it was apparent that there had been deterioration in Dr Monk's mental wellbeing and accordingly a report was sought from his GP. The GP carried out an assessment designed to focus on Dr Monk's cognitive skills and significantly Dr Monk scored extremely poorly in relation to recall and attention and calculation. This led to a request for a further examination to be carried out by a consultant psychiatrist, Dr Shiva Kumar.

Dr Kumar examined Dr Monk on 7 February 2007 and produced a lengthy and detailed report. By the time Dr Monk was examined by Dr Kumar he was wheelchair bound and was suffering from short sight. However, Dr Kumar's report notes that on examination Dr Monk was unable to recall whether he used glasses or not. Also Dr Monk told Dr Kumar that he lived "in his own house which he bought nearly six years ago" whereas in fact Mr Brunton's firm had acted on the purchase which took place in 1964.

During the examination by Dr Kumar there was also a discussion about a power of attorney which Dr Monk had entered into in favour of his carer, Mr Wilmot (the defendant to the proceedings). The Judge found it significant that while Dr Monk was able to recall, in principle, that he had signed such a document, he failed to mention to Dr Kumar that he had also signed a new will at the same time. Dr Kumar also noted in his report that during his assessment he was not sure whether Dr Monk clearly understood the effect of creating a power of attorney, although he was able to deal with simple decisions like the day to day handling of his money.

Dr Kumar concluded that Dr Monk was suffering from dementia with prominent disturbance in his memory. Once it became clear that the 2007 will was in dispute Brunton and Co (now acting for Yvonne Williams) contacted Dr Kumar and he subsequently provided nine paragraphs of conclusions drawn from his initial report. One of the conclusions was that … "on 7 February 2007 I found him to be incapable of making decisions regarding his power of attorney. However, two weeks prior to that he had made his second will therefore I can assume that he may not have had the capacity to make an informed decision about his second new will".

Dr Kumar went on (quite properly) to acknowledge that it was possible that Dr Monk had been having a lucid interval either at the time when he gave instructions or when he executed the will. However, the Judge found that there was no evidence to support this possibility and that there were a number of other factors which led him to conclude that Dr Monk lacked testamentary capacity.

In fact Dr Monk had executed a new will on 19 January 2007 approximately two weeks before he was examined by Dr Kumar. The 2007 will which made Mr Wilmot the sole beneficiary of Dr Monk's estate was prepared by a firm of solicitors called Margraves in Llandrindod Wells which was some 70 miles away from Dr Monk's home and the two witnesses were not known to Dr Monk. Before the 2007 will was drawn up Margraves commissioned a medical report from a Dr Arnie who practised in Swansea. Dr Arnie's report was extremely short and simply said "I have seen and carried out a mental state examination and assessment of capacity and cognitive function on Dr Cecil Monk at 6.15pm on 5 January 2007. It is my opinion that Dr Monk does not suffer from any significant, depressive or dementing illness. He has in my opinion the mental capacity to make a new will and understands the consequence of his actions. I understand that you will arrange to see Dr Monk shortly. I await your further instructions on his behalf". Dr Arnie did not describe or explain the mental state examination which he carried out and nor did he provide details of the results obtained.

On 26 January 2007 Mr Brunton received a letter from Margraves asking him to send them Dr Monk's title deeds, wills and other documentation. Mr Brunton who had known and acted for Dr Monk for many years was concerned to receive this letter and went to see Dr Monk. His attendance note recorded that Dr Monk knew nothing about the letter and that he had told Mr Brunton that people were doing things behind his back. Mr Brunton was sufficiently concerned about Dr Monk's mental state following this meeting to arrange for Dr Monk's Enduring Power of Attorney to be registered and this happened on 26 March 2007.

After Dr Monk's death Yvonne Williams brought proceedings seeking an order that the 2003 will be admitted to probate and that the 2007 will be rejected on the grounds that Dr Monk lacked testamentary capacity and/or was not aware of its contents. Mr Wilmot did not appear at the hearing and nor was he represented despite having been notified by letter of the trial date and so the hearing was conducted in his absence. Taking into account all the medical evidence and the evidence from Mr Brunton the Judge found, on the balance of probabilities, that Dr Monk did not have testamentary capacity to make his 2007 will and the 2003 will should be admitted to probate. The Judge concluded that there were no circumstances on the evidence before him which would have justified Dr Monk making such a radical change from the provision he had made in his 2003 will and that the combination of the content of Dr Kumar's report, the GP's report and Mr Brunton's evidence was sufficiently compelling to suggest that Dr Monk did not have the relevant capacity to make a valid will in January 2007.

Although the medical evidence did not focus on the specific question of testamentary capacity (save for the short report from Dr Arnie) the Judge found that the proximity of the examinations meant that he was able to make easy inferences about it. The Judge found Dr Kumar to be an experienced and highly qualified psychiatrist and said that that the evidence of Mr Brunton (an highly experienced probate practitioner with practical experience of applying the test to determine whether someone had capacity to make or execute a will) corroborated the medical evidence of Dr Kumar and Dr Monk's GP in relation to Dr Monk's mental state.

Since the Judge found that Dr Monk did not have testamentary capacity to make his 2007 will it was not strictly necessary for him to go on to address the want of knowledge and approval element of the claim. However, the Judge did consider the test laid down in Fulton v Andrew (1875) LR 5 HL 448 confirming that where the beneficiary of the will is also the person instrumental in having it drawn up the onus of establishing knowledge and consent will lie with them. As Mr Wilmot did not appear and was not represented at the hearing there was no prospect of him satisfying that test. Further, the two witnesses to the 2007 will were alleged to be friends of Mr Wilmot and were not known to Dr Monk. Both witnesses had failed to respond to correspondence from Mr Brunton after the commencement of the claim and this was another reason why the Court's suspicions should be aroused in relation to whether Dr Monk had full knowledge of the contents of the 2007 will.

Application to set aside Judgment

Shortly after the hearing Mr Wilmot made an application to set aside the Judgment on the grounds that there was good reason for him not attending and that he had a real prospect of success at trial. Mrs Justice Asplin found that Mr Wilmot satisfied the requirements of CPR 39.3(5) to allow her to order that the judgment be set aside because he had acted promptly in making his application, had a good reason for not attending the hearing and had a reasonable prospect of success at trial. Mrs Justice Asplin found that there was no evidence that Mr Wilmot had actually received a particular letter which gave notice of the trial date. Further, since Mr Wilmot had instructed solicitors to act on his behalf it was appropriate for any correspondence about the claim to be directed to them and there was no obligation for him to keep checking his former address for such correspondence. Although the Judge stated that Mr Wilmot's position was "relatively thin" she concluded that on balance there was a good reason for him not to have attended the hearing and agreed that the judgment be set aside.

Assessing testamentary capacity

In cases where it is alleged that a decased testator lacked testamentary capacity to make a valid will the starting point for the Court is the common law test laid down in Banks v Goodfellow (1870) LR 5QB 54. In essence it must be established that the testator had capacity to understand the nature of a will and its effects, the extent of his estate and the identity of those persons who ought to be considered as potential beneficiaries and the reasons for that. It is important to remember that the Court is looking for evidence of capacity to understand these matters, not proof of actual understanding and also that the level of understanding required will vary according to the complexity of the will, the tetstator's assets and the claims upon him.

Even where a testator suffers from a condition affecting capacity such as mild or moderate dementia he will not necessarily lack testamentary capacity. Many people who suffer from dementia have lucid intervals and this is why it is particularly important for the Court to examine all available evidence contemporaneous with the making of the disputed will. A token medical report from a doctor who has only met the deceased in order to produce a report on his capacity is unlikely to be persuasive if there is detailed evidence to the contrary from the solicitor who attended the deceased to take instructions for the will. This is particularly so in circumstances where the solicitor has had a longstanding professional relationship with the testator and has made and retained detailed attendance notes of their meetings. In Williams v Wilmot the Judge noted that "Mr Brunton is an experienced private client solicitor with a particular knowledge and expertise in the question of testamentary capacity in relation to the elderly….independently of the medical evidence he concluded that the deceased was no longer able to manage his affairs and forthwith sought to register the enduring power of attorney…It is this evidence which…corroborates the medical evidence and supports my conclusion that …Dr Monk did not have the relevant testamentary capacity at the time the 2007 will was signed".

Conclusions to be drawn from this case

Despite Mr Wilmot's successful application the original judgement highlights a number of salient points for private client practitioners.

First, assessing someone's capacity to make a will after the event is always difficult and in contested cases the most compelling evidence is likely be that which is contemporaneous with the making of the disputed will. Although as a general rule medical reports as to a testator's cognitive state are helpful, the weight which is accorded to such a report will vary depending on its quality and whether or not the report is corroborated by any of the other evidence before the Court. It is becoming increasingly clear that the evidence of an experienced solicitor who took instructions for the will and /or was present when the will was executed is likely to carry significant weight with the Court particularly where that solicitor is able to demonstrate practical experience with issues of testamentary capacity and /or has known the testator for a considerable period of time.

Secondly, in the absence of a detailed medical report which specifically refers to the three limbs of the Banks v Goodfellow test the Court will look to make appropriate inferences about the deceased's capacity from any other evidence which is available. A medical report which is prepared specifically to address the question of whether someone has testamentary capacity should be based on a detailed examination of the testator by a doctor of sufficient qualification and experience and should make specific reference to the Banks v Goodfellow test. A six line letter by a doctor previously unknown to the testator is unlikely to be regarded as conclusive particularly where there is other available evidence which suggests inferentially that the deceased's capacity to make a will may have been in doubt.

More generally Williams v Wilmot demonstrates the need for solicitors who act for elderly clients to be alive to any circumstances which might arouse suspicion as to a lack of knowledge of arrangements being put in place by a third party ostensibly on their behalf.

This article originally appeared in the Trusts and Estates Law & Tax Journal in December 2013. 

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