Hawes v Burgess & Anor [2013] EWCA Civ 74

The Court of Appeal dismissed Julia's appeal against a ruling invalidating her mother's 2007 will, which had cut out her brother Peter from the residuary estate. Whilst doubting the lack of testamentary capacity finding, the court upheld want of knowledge and approval.

Facts

The deceased, Daphne Burgess, died in May 2009 aged 80, leaving three children: Peter, Libby and Julia. Under her 1996 will, her residuary estate was divided equally among the three. Under a 2007 will, prepared by Mr Webster, an experienced independent solicitor at Woodfines, Peter was cut out of the residuary gift, which was divided between the two daughters.

Julia arranged the appointments with the solicitor, attended both meetings with her mother, and was found to have supplied inaccurate information to Mr Webster, including that the deceased would be living with Peter and that she had paid £40,000 towards improvements to Peter’s bungalow. Clause 22 of the 2007 Will stated that limited provision was made for Peter because of substantial lifetime provision; this statement was inaccurate. Peter’s middle name was also wrongly recorded as ‘Giles’ rather than ‘Charles’.

The deceased suffered from declining health, including hypertension, diabetes, arthritis, mini-strokes from summer 2006, memory impairment, prosopagnosia, and, according to Professor Jacoby’s expert evidence, cerebrovascular disease amounting to dementia of modest severity. Peter and Libby were unaware of the 2007 Will at the time; Julia and Peter had fallen out in summer 2006.

HHJ Walden-Smith QC pronounced against the 2007 Will on grounds of both lack of testamentary capacity and want of knowledge and approval, upholding the 1996 Will.

Issues

The Court of Appeal had to decide:

1. Whether the judge was correct to find that the deceased lacked testamentary capacity under the third limb of Banks v Goodfellow, namely the ability to comprehend and appreciate the claims to which she ought to give effect, when the judge had found she understood the nature of making a will and the extent of her estate.
2. Whether the judge was correct to find want of knowledge and approval of the contents of the 2007 Will, given the strong presumption arising from a will prepared and executed under the supervision of an independent experienced solicitor.

Relevant Law

The burden of proving validity rests on the propounder. The test for testamentary capacity from Banks v Goodfellow (1869-70) LR 5 QB 549 has three limbs: understanding the nature of making a will; understanding the extent of property; and ability to comprehend and appreciate the claims to which one ought to give effect. On want of knowledge and approval, the court considers (i) whether the circumstances arouse suspicion and (ii) whether scrutiny dispels that suspicion: Wintle v Nye, Fuller v Strum, and Gill v Woodall.

Arguments

Appellant (Julia)

Mr Piers Hill argued that there was no evidential basis for finding the deceased incapable of comprehending the claims upon her. The deceased handled the sale of her house and its proceeds without challenge, lived independently, and the contents of the 2007 Will itself demonstrated awareness of her three children. Significant weight should attach to Mr Webster’s assessment that she was compos mentis. Professor Jacoby’s evidence fell short, particularly as he had never met the deceased. The judge had wrongly relied on Re Beaney [1978] 1 WLR 770. On knowledge and approval, no specific reasons were identified for displacing the strong presumption established in Gill v Woodall.

Respondents (Peter and Libby)

Ms Penelope Reed QC submitted that the judge had correctly directed herself on the law and her findings were amply justified on the evidence, particularly Professor Jacoby’s expert opinion.

Judgment

Testamentary capacity

Mummery LJ expressed significant doubts about the judge’s conclusion on capacity. He observed that where a will is prepared by an experienced independent solicitor who meets the testatrix, forms the view that she understands what she is doing, reads the will over and oversees its execution, it should only be set aside on the clearest evidence of incapacity. The court should be cautious about acting on retrospective medical evidence from an expert who neither met nor examined the testatrix, especially where the first two limbs of Banks v Goodfellow were satisfied. He stated it was ‘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.’ However, in view of his conclusion on want of knowledge and approval, it was unnecessary to express a concluded view on capacity.

Want of knowledge and approval

Mummery LJ held the judge had properly directed herself and the circumstances justified the court’s insistence on affirmative evidence of knowledge and approval. Several factors supported the judge’s conclusion: Peter had been a beneficiary under the 1996 Will; the deceased remained close to Peter but never told him about the new will despite telling him about gifts to her daughters; no finding was made that she had expressed an intention to cut Peter out; Julia’s involvement was extensive, as the ‘controlling force’ and ‘driving force’ behind the instructions; Julia had supplied inaccurate information to Mr Webster; Julia remained in the room throughout both meetings; the will was made without Libby’s or Peter’s knowledge during the rift; and the deceased had no opportunity to review the draft before execution. These factors, together with her declining physical and mental state, justified the conclusion.

Patten LJ agreed. Sir Scott Baker also agreed, expressing grave doubts about the capacity finding but agreeing there was sufficient evidence to support the want of knowledge and approval finding.

Implications

The decision reinforces the strong prima facie presumption of validity that attaches to a will drafted and executed under the supervision of an experienced independent solicitor. Mummery LJ’s observations signal judicial caution about overturning such wills on the basis of retrospective expert medical opinion, particularly from experts who never met or examined the testatrix. The case emphasises that satisfaction of the first two limbs of Banks v Goodfellow will normally suggest satisfaction of the third.

Nevertheless, the case illustrates that where a close family member is the controlling force behind preparation of a will, supplies inaccurate information to the solicitor, remains present throughout discussions, and the will is made in secret from other close family members who might expect to benefit, the court may properly find that affirmative evidence of knowledge and approval has not been discharged, notwithstanding the usual presumption arising from professional drafting and execution.

The judgment also contains a cautionary commentary on the disproportionate costs of probate litigation, with Mummery LJ drawing a parallel with Jarndyce v Jarndyce, noting the estate of less than £200,000 had likely been consumed by the dispute. The decision matters to practitioners advising on will preparation (emphasising the importance of seeing testators alone, sending drafts in advance, and carefully verifying instructions), to those drafting wills for elderly or infirm testators, and to family members contemplating probate challenges.

Verdict: Appeal dismissed. The Court of Appeal upheld the first instance decision pronouncing against the validity of the 2007 Will on the ground of want of knowledge and approval, whilst declining to express a concluded view on lack of testamentary capacity. The 1996 Will stands.

Source: Hawes v Burgess & Anor Neutral Citation Number [2013] EWCA Civ 74