B e f o r e :
QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
|JOHN CHARLES WILLIAMS|
|(a patient acting by his litigation friend,|
|the Official Solicitor to the Supreme Court)||Claimant|
|(1) GEORGE WILLIAMS|
|(2) MARION WILLIAMS||Defendants|
Mr Martin Strutt, instructed by Alfred Truman, for the Defendant
Crown Copyright ©
The facts - introduction
Mrs Williams' death
Mrs Williams' will is found; the Deed of Gift
"Our client has recently been in to see us and he seems somewhat confused about the present position. We understand that your client may be intending to move in with our client and we would be obliged if you would confirm exactly what the present position is. We do not quite understand the nature of the present problem and if you have any idea from your client, perhaps you would be good enough to let us know."
"Interview with John Williams and his brother George. They confirmed to me that there is an agreement. George and his family are going to move in to the property although a date has not been fixed. He [i.e. George] tells me that he's not going to do any substantial work on the house, it's just simply a question of painting and decorating. John is in fact spending most of his time with George's family in their Council house. He is quite happy for George and his family to move in with him and he thinks that it is fair that George and his wife should go on the title deeds. I did explain to them that they could hold the property as tenants in common in different proportions. They were unaware of this and clearly hadn't thought about it. George is only concerned about his own security because obviously they are giving up a Council house and it would be difficult to get back on the list if anything were to happen. I explained that they could hold the property in equal shares or in whatever shares they wanted. They didn't make any decision at the meeting but I said that they should discuss this over Christmas and then George can instruct his Solicitor accordingly. John seemed to fully understand what was going on and I specifically asked him if he did understand and also that he was happy with the arrangements. It was quite clear to me that he was happy. It was agreed that I would write to Trumans to tell them about the agreement and we can then deal with the conveyancing part of the transaction."
"Attending Messrs. Williams. Handed me attached note. Wish to transfer property into joint names. No consideration."
The note has not survived. It is likely that it was something which George had written out to bring to the meeting.
a. In consideration of his natural love and affection for George and Marion, John conveyed the property to himself, George and Marion to be held by them on trust for sale;
b. George and Marion covenanted with John that they would observe certain covenants to which the land was subject;
c. The parties declared that they held the proceeds of sale on trust for John, George and Marion in the proportions 50:25:25 respectively;
d. The trustees were to have certain standard form powers to deal with the property.
The expert evidence
a. John generally responded to the interviews well, and was cooperative. He spoke reasonably clearly and could be understood.
b. He had "learning disabilities", which for this purpose means "significant sub- average intellectual functioning, with concurrent deficits or impairments in present adaptive functioning", these having had their onset before the age of 18 years.
c. On a widely accepted test of intellectual ability, he had an IQ of about 65, which put him in the lowest classification of scores ("Learning Disabilities/Mental Handicap"), a group consisting of about 2.2% of the population. His IQ corresponds to significant, rather than severe, intellectual impairment.
d. Tested against his ability to select a picture card to match a word which he had been given, his equivalent age was between 6 years 5 months and 8 years 1 month.
e. In a reading test, he was able to recognise only such words as "on", "you" and "the". His equivalent reading age was 5 years old and he was functionally illiterate in a more extreme way than might have been predicted from his IQ alone.
f. On an arithmetic test, he could do simple addition but not subtraction. His equivalent age was 6 years 2 months.
g. He knew that half of £1 was 50p but not what half of £10 or £100 was. He knew that he had "50%" of the house and that his brother and sister-in-law had "25%" each but could not really explain what "per cent" meant. As to this, Ms Samuel said that he probably did understand the concept of a "half" but his difficulty was in grasping the concept of large quantities (such as £100). He would probably be able to understand that a house was a valuable thing, and what half a house signified, although not the monetary value of it.
h. He could write his name very slowly and shakily (as is apparent from his signature on the deed).
i. On a behavioural memory test, he was reasonably well orientated in time and place. He was able to say correctly what was the year, month, day of the week, the town he was in, his age, the year he was born and the name of the current prime minister, but not the name of the building he was in nor the name of the President of the USA.
j. In relation to a test to evaluate his commonsense reasoning and his ability to exercise judgment in social situations, he was told a short story and then asked questions about it, at increasing levels of complexity. His responses indicated an average age of 7 years 9 months, with a difficulty in being to able to find reasons or explanations for the acts of others. He had difficulty in changing his train of thought and seeing issues from more than his own point of view, even after prompting.
k. His condition in 1986 and 1987 had not been materially different.
l. Persons with such a disability tend to be acquiescent, that is they are likely to yield to suggestion from a person in a position of power in relation to himself if this occurs via affirmative questions (suggesting the answer yes), leading questions (requiring only the answer yes or no) or alternative questions (requiring only a choice between two suggested answers) .
Capacity: the law
"... in each case whether the person concerned is capable of understanding what he does by executing the deed in question when its general purport has been fully explained to him."
As to the degree or extent of understanding required, he summarised the position as follows (p.774):
"The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of the gift are trivial in relation to the donor's other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor's only asset of value and thus, for practical purposes to pre-empt the devolution of his estate under his will or in his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of."
"The Act does not specify the mental capacity needed to execute an enduring power and the answer must therefore be found in the common law. It is well established that capacity to perform a juristic act exists when the person who purported to do the act had at the time the mental capacity, with the assistance of such explanation as he may have been given, to understand the nature and effect of that particular transaction: see In re Beaney, decd.  1 WLR 770. In principle, therefore, an understanding of the nature and effect of the power was sufficient for its validity."
" ...I should say something about what is meant by understanding the nature and effect of the power. What degree of understanding is involved? Plainly one cannot expect that the donor should have been able to pass an examination on the provisions of the Act. At the other extreme, I do not think that it would be sufficient if he realised only that it gave [the donee] power to look after his property. [Counsel] helpfully summarised the matters which the donor should have understood in order that he can be said to have understood the nature and effect of the power. First, (if such be the terms of the power) that the attorney will be able to assume complete authority over the donor's affairs. Secondly, (if such be the terms of the power) that the attorney will in general be able to do anything with the donor's property which he himself could have done. Thirdly, that the authority will continue if the donor should be or become mentally incapable. Fourthly, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court."
"having found, as I have, that by 1996 [the donor] was suffering from a material degree of dementia occasioned by Alzheimer's disease, I consider that the burden of proving that [she] had the requisite degree of capacity shifted to [the defendants] ."
Conclusions on capacity
a. I suspect that when Mr Donaghy took over the matter and became involved with the transfer, he understood that the matter was one which had already been agreed and thus one which he may not have gone into in such detail with John as he might have done had he had the conduct of the matter from the outset.
b. Whether or not this is correct, Mr Donaghy was unaware of certain crucial matters. He was unaware that John could not read. I also find that he was unaware of the extent of John's disability. I find that he had not read Mr James' file note of 13th November. Nor do I think that the extent of John's disability became apparent to him as a result of the meetings he had with him. His first meeting with John was the one at which George was present and at which I infer George provided whatever information was sought. John was clearly a pleasant, easy-going man and without probing him it is possible that this is something Mr Donaghy could have missed, particularly if the questions asked of him were 'closed' rather than 'open' questions.
c. If Mr Donaghy had been aware of the extent of John's disability, I am sure he would have taken more extensive steps to establish John's understanding, and made a better record of what he had done. The fact that he did not make such a record is an indication that he did not fully appreciate the position.
d. In any event, given the evidence of Ms Samuel and Dr El-Komy of what would have been required to give John a proper understanding, it is reasonably clear even on the basis of the evidence of what Mr Donaghy actually did, and of what he said he would have done, that John was not given the kind of explanation which he .needed. Such an explanation would obviously have been very unusual in the context of a solicitor's everyday practice, and likely to have been noted. I do not doubt that on the three occasions that Mr Donaghy saw John, he formed the impression, as a result of the questions which he asked, that John was in agreement with what was being proposed. I am also quite prepared to accept that either at the execution of the deed, or perhaps at the meeting of 30th July, or possibly at both, Mr Donaghy explained the general effect of the transaction in terms that he says he would have done. But this would have come nowhere near the steps which Ms Samuel and Dr El-Komy say would have been required to bring home the matter to him.
e. Although the case does not turn on this point alone, it is apparent that Mr Donaghy did not give any explanation as to the implications of the property being owned by beneficial tenants in common, a matter which in my judgment John would have needed to have had a general appreciation of in order to understand the transaction as a whole.
a. John reposed a high degree of trust and confidence in George in relation to his affairs. Not only was he clearly vulnerable because of his learning disability, but John had recently lost his mother, with whom he clearly had a close relationship, and had turned to George (and Marion) for company and support, the only remaining persons with whom he had any kind of close relationship. That he clearly needed support is shown, for example, by what George told the Social Services immediately after his mother's death. An indication of John's level of trust and confidence is the fact that he wanted either to move in to live with George and Marion or, later, for them to come and live with him, in both cases to give him company and to help look after him. Another indication is the fact that George accompanied John to meetings with both Mr James and Mr Donaghy. Although I do not doubt that, as George said in evidence, John had a stubborn streak, I do not doubt either that John would have been much influenced by anything George suggested or asked.
b. The transaction was plainly to John's disadvantage, such as to require evidence to rebut a presumption that it was procured by George's undue influence. John gave up half of all he owned, and lost a measure of control of the other half, in return only for assurances of support and company.
c. In my judgment, the burden of showing that the gift was not procured by undue influence is not discharged. I accept that when all the facts are examined, there is a good explanation for the gift from John's point of view, that is, apart from the one that it was procured by George's undue influence. The explanation is that he wanted to live with George and Marion and for them to provide him with company and support. The fact that he had just been left the house by his mother enabled him to achieve this object. I also accept that he was independently advised, and that advice would have brought home to an ordinary person the implications of what he was doing. It is necessary, however, to show not only that John's decision was properly informed but also that it was free of George's influence. On both counts, given all the circumstances and the evidence of what would have been required to bring the general implications of the transaction home to John, these matters have not been proved.