Sharp v Adam [2006] EWCA Civ 449

Mr Adam, suffering from severe multiple sclerosis, executed a 2001 will disinheriting his daughters in favour of long-serving employees. The Court of Appeal upheld the finding that he lacked testamentary capacity, as disease had poisoned his natural affections despite preserved cognitive understanding.

Facts

Mr Neil Adam, a former veterinary surgeon and racehorse trainer who owned a stud farm near Newmarket, died on 21st August 2002 aged 70. He had suffered from secondary progressive multiple sclerosis since 1980. By 2001 he was severely physically debilitated, largely paralysed and unable to speak, communicating only through a letter board, nods, head shakes and eye movements.

Mr Adam executed a will on 1st June 2001 leaving pecuniary legacies to his carer Mr Neville (£25,000) and friend Mr Hancock (£4,000), with the residue (including the stud worth over £1m) to two long-serving employees, Mr Sharp and Mr Bryson. His two daughters, Grace and Emma, were entirely excluded. Under his previous 1997 will (whose validity was unchallenged) the residue had been left equally to the daughters.

The solicitor, Miss Hall, took instructions with meticulous care, complying with the ‘golden rule’ by involving Dr White (Mr Adam’s GP) and a senior colleague, Mr Skelton. They returned on multiple occasions before executing the will. Those who cared for Mr Adam daily believed he retained sufficient understanding. The trial judge found no family rift existed that would explain disinheriting the daughters, with whom Mr Adam remained on affectionate terms.

Issues

The principal issue was whether Mr Adam had testamentary capacity on 1st June 2001 when he executed the disputed will, applying the test in Banks v Goodfellow (1870) LR 5 QB 549. In particular, whether the fourth limb of that test was satisfied — namely that no disorder of the mind had poisoned his affections, perverted his sense of right, or prevented the exercise of his natural faculties.

Arguments

Appellants (Sharp and Bryson)

Mr Cooper submitted the deputy judge had misinterpreted or misapplied Banks v Goodfellow, giving undue prominence to the ‘poisoning of affections’ limb. He argued the judge speculated without evidence about Mr Adam’s reasons, adopted too high a standard for capacity, gave undue weight to unreliable expert evidence (Professor Ron), and too little weight to the overwhelming direct contemporary evidence. He submitted the judge wrongly looked for a ‘King Lear moment’ rather than asking what prompted Mr Adam to benefit the claimants, for which there was an obvious answer in their loyal service.

Respondents (the daughters)

Mr Jones submitted that neither Dr White nor Miss Hall had real insight into Mr Adam’s ability to think rationally about complex problems. The 1996 MRI scan showed diffuse brain damage of a kind likely to cause cognitive impairment, which would have progressed by 2001. No formal cognitive testing was done. The deputy judge’s findings were essentially findings of fact and should not be disturbed.

Judgment

The Court of Appeal (Sir Anthony Clarke MR, May LJ and Jacob LJ) dismissed the appeal, describing the case as ‘finely balanced’ and acknowledging ‘considerable judicial anxiety’.

The Court reaffirmed the test in Banks v Goodfellow, identifying four elements: the testator must (a) understand the nature of the act and its effects; (b) understand the extent of the property; (c) comprehend and appreciate the claims to which he ought to give effect; and (d) suffer no disorder of mind poisoning his affections, perverting his sense of right, or preventing the exercise of his natural faculties.

The deputy judge had found elements (a), (b) and (c) were satisfied, but concluded element (d) was not: Mr Adam lacked ‘the capacity to arrive at a rational judgment taking into account all the circumstances’ and there was ‘likely’ to have been ‘a temporary poisoning of his natural affection for his daughters, or a perversion of his sense of right’.

The Court of Appeal identified a difficulty: Professor Ron’s evidence, which the deputy judge preferred, focused almost exclusively on cognitive impairment — the very elements the judge found were satisfied. She disavowed reliance on the contents of the will and family relationships. The judge had rejected much of her factual analysis.

The case ultimately turned on a passage of Dr Hawkes’ oral evidence in cross-examination, in which he accepted that if there had been a good family relationship, Mr Adam’s paradoxical decision could evidence impaired judgment attributable to drugs and disease. The Court held that the fourth limb of Banks v Goodfellow ‘is concerned as much with mood as with cognition’, and Dr Hawkes’ concession provided expert support for the conclusion that Mr Adam’s mood and affections had been affected by disease.

The Court emphasised the ‘golden rule’ (from Re Simpson and Kenward v Adams) is a rule of good solicitor practice rather than law, and does not confer conclusive status on evidence obtained in compliance. Miss Hall’s exemplary conduct was not determinative.

Applying CPR 52.11, the Court of Appeal could only allow the appeal if satisfied the deputy judge was wrong. It concluded it was not so satisfied: there was good evidence (Dr Hawkes’ qualified concession) capable of outweighing the contemporary observations.

Implications

The decision confirms that testamentary capacity under Banks v Goodfellow requires not only cognitive understanding but also an absence of mental disorder affecting mood, natural affections or sense of right. A testator may understand the nature of the act, the extent of property and the claims upon him, yet still lack capacity if disease has poisoned his affections or perverted his sense of right.

The Court made clear that meticulous compliance with the ‘golden rule’ by solicitors, though strongly advisable, is not conclusive. Contemporary observations by solicitors, doctors and carers may be displaced by expert evidence, particularly where the testator makes apparently irrational dispositions for no discoverable reason.

The judgment confirms that the apparent rationality or irrationality of testamentary provisions may be relevant to capacity: where a testator inexplicably disinherits close family members with whom he has enjoyed affectionate relations, this may, in combination with medical evidence of brain disease, support a finding that mental disorder has affected his natural affections.

The Court stressed, however, that the case ‘turns entirely on its own facts’ and that the decision would not alter the approach of solicitors or courts to testamentary capacity generally. The Banks v Goodfellow formulation was not reformulated. The Court signalled caution regarding appellate interference with fact-based evaluative decisions, citing Lord Hoffmann in Biogen Inc v Medeva plc. As Lord Cranworth observed in Boyse v Rossborough, the boundary between capacity and incapacity can be as imprecise as the moment twilight becomes darkness.

Verdict: Appeal dismissed. The Court of Appeal upheld the deputy judge’s finding that Mr Adam lacked testamentary capacity when executing the will of 1st June 2001, and that the earlier will of 6th February 1997 was his last valid will.

Source: Sharp v Adam [2006] EWCA Civ 449