ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
HHJ WALDEN-SMITH QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
SIR SCOTT BAKER
| JULIA HAWES
|- and -
|ELIZABETH BURGESS & Anor
MS PENELOPE REED QC (instructed by Withers LLP) for the Respondents
Hearing date : 31st October 2012
Crown Copyright ©
Lord Justice Mummery:
"9. … The rift in the family is likely to be beyond repair. It is also likely that any assets in the estate will have been eaten up by this litigation. Both of these matters are the unfortunate consequences of this litigation. Neither are matters that have any bearing on my decision making."
i) Did the Deceased understand the nature of the act of making the 2007 Will and its effects? The judge said "Yes."
ii) Did the Deceased understand the extent of the property of which she was disposing? The judge said "Yes."
iii) Was the Deceased able to comprehend and appreciate the claims to which she ought to give effect? The judge said "No." The judge added a "Yes" answer to the sub-question whether a disorder of the mind of the Deceased influenced her disposals of property in the 2007 Will, so that they were not what she would have done, absent that disorder.
i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said "Yes."
ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said "No."
A. Pre-2007 Will: down to December 2006
B. The making of the 2007 Will: December 2006-January 2007
C. Post-2007 Will: February 2007 to death on 30 May 2009
"117. In the typewritten note, which I find to have been dictated by Mr Webster, he said that she was "entirely compos mentis" and that he had no hesitation in taking instructions from her. He said that this would have been his opinion based upon her instructions and conduct and he accepted that he had no medical qualifications and that it can be difficult to assess capacity when someone else is present. He said that his assessment was not based on any specific questions. He said that he would obtain medical evidence if there was any uncertainty, he did not make any such inquiries in this matter. I have consequently come to the conclusion that Julia Hawes was the driving force behind the instructions given for the drafting of the 2007 Will. It was at a time when she had fallen out with her brother (which, at the time, appeared to be a permanent rift), she was angry with him and she felt he was sufficiently wealthy not to need (or maybe even deserve) part of his mother's inheritance. It is because of this that the reason for Peter being cut out of the 2007 [Will] is in my judgment confused: was it because of his wealth, was it because Daphne was cross with him; or was it because (as is set out in the 2007 Will) because she has already provided for him during her lifetime. None of these explanations makes sense."
"120. In all the circumstances, I must come to the conclusion that Julia Hawes was in fact the controlling force in the instructions given for the drafting of the Will. It was Julia Hawes who informed Mr Webster that her mother was going to be living with Peter Burgess (which was not correct) and that she had or was going to pay £40,000 to Peter Burgess in order to carry out improvements and for the cost of living with him (this again was untrue). It does not appear that Mr Webster was given any information about the sale of the former home and that the proceeds of sale had gone to Daphne Burgess and that it was Peter Burgess who was funding the purchase of the new property
121. In my judgment, while Daphne Burgess may have appeared "compos mentis" to Mr Webster, this was not recorded in the original manuscript note and was added later and Mr Webster did not have anything to judge her behaviour against and, as he accepted, it was more difficult for him to judge her capacity as someone else was present. He did not carry out any formal assessment but simply took a view on the basis of her conduct at the time.
122. Based upon all the evidence I have heard and read, in my judgment Daphne Burgess lacked the necessary degree of understanding at the time of the giving of the instructions and the execution of the 2007 Will to comprehend and appreciate the claims to which she ought to give effect."
Want of knowledge and approval
"123. If I am wrong in determining that Daphne Burgess lacked the necessary testamentary capacity at the time of the 2007 Will being executed, on the basis of all the evidence I have heard and read, it is my conclusion that Daphne Burgess did not know and approve of the contents of the 2007 Will. Whereas Gill v. Woodall set out that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely at the moment when the will is executed, "in considering all the relevant evidence available and then drawing such inferences as it can from the totality of that material, [the court] has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption." In my judgment, if Daphne Burgess had the requisite capacity (contrary to my judgment) she lacked the appropriate knowledge and approval of the 2007 Will."
The claimant's submissions
Discussion and conclusions
Lack of testamentary capacity
Want of knowledge and approval of contents
Lord Justice Patten:
Sir Scott Baker: