England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		2nd October 2007

1. Margaret Wootton ("the Deceased") died on the 22nd of February 2004 aged 73 and survived by her five children. By her will dated 29^th October 1993 (" the Will") she had appointed two of them (Russell and Lyndon, the two youngest) to be her executors. They proved the Will in the Oxford District Probate Registry in common form on the 18^th November 2004. The estate is extremely modest. Under the terms of the Will one half of it is to be shared between Russell and Lyndon, and the other half between the Deceased's grandchildren (including Judy's three children, and those of her brother Nigel) and the Deceased's cousin (Angela Brown). No provision is made for the Deceased's of other three children (Judy, Susan and Nigel).
2. On 30^th November 2005 Judy commenced proceedings against Russell and Lyndon seeking a revocation of the grant of probate, and the grant of letters of administration to herself alone on the footing that the Deceased died intestate. The foundation of the challenge is that the Deceased lacked testamentary capacity in 1993. The Particulars of Claim alleged in paragraph 5 that at the time of the execution of the Will the Deceased "had suffered serious mental and physical ill-health during the course of her life" and "had suffered psychiatric problems that seriously affected her relationships with members of her family". Under Particulars of Incapacity were gathered a number of generalities (such as that she suffered from affective and depressive disorders, delusions and high levels of confusion); the most focused allegation being that the Deceased viewed her children with widely fluctuating levels of favour owing to her psychiatric illnesses. No specific facts were pleaded in support of any allegation. At the time of the commencement of proceedings Judy had obtained an expert report from Dr Holden, a consultant psychiatrist. But she did not provide a copy of this before commencing proceedings or serve it together with the Claim Form. It does not appear to have been made available to the Defendants until I ordered its production on the 19th of March 2007.
3. Russell and Lyndon filed a Defence on the 28th of December 2005. It essentially did no more than put Judy to proof, its key paragraph reading:-

" Paragraph 5 is denied. The Claimant is put to strict proof of the Deceased's mental capacity at the time of executing the Will on the 19^th October 1993, none of the particulars provided by the Claimant sufficiently particularising her condition at or about that date."

This provoked a detailed Request for Further Information from the Claimant essentially asking whether Russell and Lyndon were advancing a positive case that the Deceased had testamentary capacity. Before answering that Request the Defendants sought to see Judy's expert report; but they were met with the response that it was a privileged document that there had been no direction as to expert evidence. Out of this dispute arose an application which District Judge Dowling determined against Russell and Lyndon and ordered them to pay the costs (summarily assessed at £7,586) personally. Russell and Lyndon then withdrew their Defence, and CPR Part 57.10 applied. The question of the Deceased's capacity accordingly came on for trial before me on written evidence.

4. Notice of the proceedings was given to the beneficiaries under the Will and to those entitled on intestacy. Unsurprisingly none sought to become a party given the relatively small sums at stake (several legatees were minors). Nigel sided with Judy. Immediately before the commencement of the trial his twin Susan wrote to me saying that whilst she had initially felt saddened and a little hurt by her omission from the Will she felt there were fully understandable reasons for Deceased's choice of beneficiaries and expressed her sadness at the intrusion into her mother's privacy and the absolute indignity of the whole process. She wished it to be known that the Deceased had never physically abused her and that the suggestion (by Judy) was abhorrent. I have a great deal of sympathy with this point of view. But the case must be decided according to the law, not my sympathies.
5. The principles of law which underlie my approach to the question of capacity may be stated as follows:-

(a) The burden is on the propounder of the Will to establish capacity;

(b) This remains the case even if the propounder has already obtained a grant in common form : see Halsbury's Laws of England (4^th ed) Vol 17(2) paragraph 269 n.6;

(c) Where a Will is duly executed and appears rational on its face, then the Court will presume capacity;

(d) An evidential burden then lies on the objector to raise a real doubt about capacity;

(e) Once a real doubt arises there is a positive burden on the propounder to establish capacity;

(f) The key authority on the nature of capacity remains Banks v Goodfellow (1870) LR 5 QB 549 and in particular the familiar passage at p 565 which I will forbear repeating;

(g) It is well to remember that the context of the passage was a case in which the testator (who made his will in 1863) had formerly been of unsound mind. He had been confined to the county lunatic asylum in 1841. When discharged he acquired the fixed delusion that a man called Alexander pursued and molested him, which persisted notwithstanding Alexander's death. He believed he was pursued by visible evil spirits. He suffered from epileptic fits. But he was capable of managing his financial affairs, and gave coherent instructions for a Will at the same time as those for a lease, and as the taking of an account of rent due. The jury found for his will. The question for the Court was whether the delusions under which the testator laboured were fatal to testamentary capacity

" in other words, whether delusions arising from mental disease, but not calculated to prevent the exercise of the faculties essential to the making of a will, or to interfere with the consideration of the matters which should be weighed and taken into account on such an occasion, and which delusions had in point of fact no influence whatever on the testamentary disposition in question, are sufficient to deprive the testator of testamentary capacity and to invalidate a Will.." (ibid p.555).

(h) It was in this context that the Court pronounced the rule that the testator

"… shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made…… if insane suspicion, or aversion, take the place of natural affection; if reason and judgement are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence - in such a case it is obvious that the condition of the testamentary power fails…"

From this passage it may be collected that there must be a causal connection between the delusion and the disposition is effected by the will, and that this is a question for the jury upon the whole of the evidence.

(i) From a later passage at page 570 it may be collected what is the proper approach:-

" No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should in the first instance been made against it. Where insane delusion has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is… one in which natural affection and the claims of near relationship have been disregarded".

(j) In that last passage the Court appears to have had in mind the principle expressed in Harwood v Baker (1840) 3 Moore 282 at 297

" that in all cases the party propounding the Will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose…"

6. So guided I find that the Will is rational on its face and has due regard to what may be anticipated to be natural affection and the claims of near relationship upon the Deceased. The fact that the Deceased may have chosen to benefit the youngest two of her five children directly, and all her grandchildren (including those of the children who did not themselves benefit) cannot properly be regarded of itself as an unnatural disposition or one which disregarded the claims of near relationship. There are all sort of perfectly understandable reasons why a parent with absolute freedom of disposition may choose to favour one child over another, or to leave property to her grandchildren or to a cousin. In any event, as Ms Preston drew to my attention, Sir J Hannen observed in Broughton v Knight (1873) 3 P & D 64 that a testator "may disinherit his children, leave his property to strangers to gratify his spite, or to charities to gratify his pride". The Deceased is therefore to be presumed capable in November 1993.
7. But Judy has raised a real doubt about the capacity of the Deceased. Considering only the relevant evidence I find the following facts:-

(a) The Deceased had a long history of mental illness, having first been diagnosed with depression in 1954. She had attempted to take her life in 1966 and appears to have been diagnosed with an schizoid disorder and given electroconvulsive therapy. A consultant psychiatrist who saw her in 1974 formed the impression that she was suffering from some sort of personality disorder, commenting that provided people sided with her then she would continue to see them, but if they put forward suggestions not to her liking then she became hostile. Although his impression was of a personality disorder he felt unable to rule out a depressive illness.

(b) In 1976 she was admitted to Warwick Hospital following an overdose but discharged herself. She thereafter appears to have suffered from melancholia with intermittent paranoid ideas.

(c) In 1981 she appears to have taken another overdose and inflicted injury upon herself resulting in her admission to hospital. The consultant psychiatrist who saw her thought she was suffering from "ingrained personality problems".

(d) In 1990 the Deceased was seen by a Dr Campbell, complaining to him that people were going into her house and damaging things. He considered that these complaints were the result of personality traits and were not demonstrations of a depressive illness or paranoid psychosis. The general practitioner at that time noted that she was "not mentally ill - drugs will not help". She was at the time being prescribed a sedative antidepressant.

(e) In 1992 the Deceased was considered to be suffering from paranoid delusions, was referred to the psychiatric services, but did not attend. She was however seen by a community psychiatric nurse in December 1992, who described the Deceased as "less anxious and more practical in coping".

(f) The Deceased was in 1993 paranoid with a fixation that she was persecuted by Jehovah's Witnesses, whom she believed were breaking into her house and substituting the fruit in her fruitbowl (for example, an apple for a banana).

(g) The Deceased was obsessed with her health and liked to dramatise her medical condition: on one occasion around 1993 she said in all apparent seriousness that she was the first woman in United Kingdom ever to have twins.

(h) The Deceased's relationship with her children was fickle, and Nigel Wootton described it (probably accurately) as "manipulative".

(i) The Deceased's relationships with everyone around her were volatile, dependent upon her mood, and subject to extreme swings. She would become extremely fond of certain individuals and almost overpower them with attention until they felt uncomfortable, and then she would suddenly dislike them with a vengeance for no apparent reason. This she demonstrated when Nigel Wootton met Ann Daly in 1993: she immediately sought to establish an extremely close relationship, but by 2000 had seriously fallen out with Ann Daly.

(j) In June 1994 the Deceased was admitted to the South Warwickshire hospital following an overdose, although she had in fact referred herself.

8. In reaching these conclusions I have regarded as irrelevant

(a) Peter Hetherington's evidence of the Deceased's teenage and later social behaviour(including the car journey on the Warwick bypass in 1981) ;

(b) Davina Locke's evidence of the Deceased's behaviour in 1972 and 1982 (after which she did not again see her until 1995) and a wrongful accusation in 1995 that the Davina had been defrauding her employers.

(c) Anthony Berry's assumptions as to why the Will took the form it did and what happened on the shortly after his holiday with the Deceased in 1994.

(d) June Cody's opinions and her recollection of the Edinburgh visit (which I think was in 1982);

(e) Nigel Wootton's childhood experiences, his experiences in the early 1970s when his father left home, his experiences at boarding school and in the army, and when he borrowed the vacuum cleaner; and what is children and his au pair (and other family members) called the Deceased.

(f) Judith Leger's childhood and teenage and experiences (including the Tunisian holiday), her experiences as a cadet nurse, the violent incidents in her family life, the speculation about the lawyer's business card found the Deceased's handbag, the upset at the family funeral, and all subsequent events (covered in a dozen paragraphs).

There was no good reason to introduce much of this material, which seemed to me to have far more to do with the emotional needs of the witnesses as members of an unhappy family than with any legally relevant issue.

9. As I have indicated in November 2005 Judy obtained a report from a consultant psychiatrist, Dr N. L. Holden, the Consultant General and Liaison Psychiatrist working for the Nottingham Healthcare NHS Trust. His report is based upon the Deceased's general practice records, the records of the South Warwickshire PCT and also the General Hospitals Trust, Social Services records from Warwickshire County Council and a letter from the deceased's husband (not formally in evidence). But in very large part it derives from an interview with Judy in October 2005. She has her own distinct perspective, which may not always accord with the true state of affairs. For example she told Dr Holden that the Deceased had insisted that she be taken into care and that the Deceased "wanted her incarcerated in a children's home": whereas the contemporaneous statement of circumstances in which Judy was received into care in March 1972 states " complete rejection by both parents". Dr Holden has founded himself upon Judy's account and has not taken into consideration what might have been provided by any other of the Deceased's children. Nevertheless he has felt able (consistently with his duty to the Court) to express a view; and the Defendants did not seek to introduce their own expert or to seek a trial otherwise than on written evidence.
10. The view of Doctor Holden may be summarised as follows:-

(a) The Deceased was on the balance of probabilities suffering from a paranoid personality disorder (classified as a disorder by the WHO: ICD-10; F. 60.0) associated with dependent traits and manipulative behaviour;

(b) The Deceased was not suffering from a functional psychiatric illness;

(c) In the context of her personality disorder she suffered from paranoid ideas or delusions of persecution, and although variable in intensity, these were persistent;

(d) On the balance of probabilities in October 1993 the Deceased was continuing to suffer from this and "her mental state would have been greatly affected by her paranoid ideas in judging the merits of her children's relative claims upon her";

(e) The focus of the Deceased's attention appears arbitrary, often governed by the amount of contract the children were having with her; and on balance this behaviour was related to her mental illness.

"On the balance of probabilities it seems that her relationship with her children had a cyclical quality in which they would from time to time make contact and rebuild their relationship with their mother, for this then to become soured by paranoid ideas. In this respect, the nature of her views out any one time would greatly have been affected by issues such as the amount of contact that she was having with her children and the particular nature of her paranoid beliefs at the time. As such, it is likely that her abnormal paranoid ideas directly affected her judgement in the execution of her will. Had her will be made at a different point in time, it is likely that the beneficiaries would have been different, purely on an arbitrary basis."

11. The evidence does not establish that a particular delusion directly influenced the actual terms of the Will. But it does raise the possibility that a defect in mind interfered with a consideration of the matters which should be weighed and taken into account on the making of a will; and it seems show that the mind of the testator was "generally, about the time of its execution, incompetent to the exertion required" i.e. that she suffered a potentially disabling condition that cannot simply be put down to fickleness of affection or a manipulative character. Even though Dr Holden has formed his opinion upon limited evidence presented from a particular perspective, the evidence cannot be dismissed as requiring no answer.
12. Accordingly the Claimant's factual and expert evidence as a whole has in my judgement raised a sufficiently substantial objection to throw upon those who propound the Will the burden of adducing evidence positively to establish capacity. As Mr Burton correctly submitted, the Defendants have pleaded no affirmative case as to the validity of the Will and have adduced no evidence. They have not, for example, sought to demonstrate that there had been a serious falling out between the Deceased and Judy at the time when Judy was taken into care in 1972, and that thereafter Judy allied herself with her father in opposition to the Deceased, and that it is that family dynamic, or caprice, (not a disabling mental condition) that accounts for the terms of the Will. They were directed by order of the Court to file statements from the draftsman of and witnesses to the Will: and did so. The firm by whom the Will was prepared have no record of receiving instructions from the Deceased and cannot locate the file relating to the preparation of the Will. The partner who probably drafted the Will has no direct recollection of the events of October 1993. He had by that time been involved in the preparation of wills for 20 years, and expresses the belief that he would have ascertained (as far as he could) when taking instructions that the Deceased had the necessary mental capacity. He did not attend the signing of the Will. Neither of the witnesses (a qualified specialist legal executive and a legal secretary) has a recollection of the routine signature of the Will 12 years ago. The legal executive believes he would have followed his usual practice of reading the Will over the Deceased (a belief supported by a manuscript alteration to the Will itself). But this material does not of itself affirmatively establish capacity in the light of the issue raised.
13. On this state of the evidence I am compelled to hold that the Deceased lacked capacity at the date of the Will. It follows that I must pronounce against the Will, and revoke the present grant. Letters of administration must issue. My present view is that they ought to issue in favour of the Defendants (if willing to accept) because they have completed the administration and are ready to distribute. But this has not been the subject of submission.
14. I will hand down this judgement in London at 10.30 am on 8^th October 2007. I do not expect attendance. I will on that occasion adjourn the questions of the exact form of relief and of costs, and any other applications to a telephone conference to be arranged through the usual channels.

HHJ Alastair Norris QC…………………………………………..2 October 2007