CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Bull Street, Birmingham B4 6DS |
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B e f o r e :
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Sian Lloyd |
Claimant |
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- and - |
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Hedydd Parry Jones (1) David Walter Jeremy Jones (2) John James Harris (3) Katherine Valmai Harris (4) |
Defendants |
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Richard Oughton (instructed by Williams & Bourne) for the Defendants
Hearing dates: 14-18, 21-22 March 2016
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Crown Copyright ©
HHJ David Cooke:
Introduction and issues
i) Dr Parry Jones and her husband the second defendant are appointed executors,
ii) Sian is to receive a bequest of £10,000, and
iii) The remainder of the estate is left equally to Ioan and his wife, the fourth defendant ("Kathy"), or the survivor of them.
The law
i) must be capable of understanding the nature of the act of making a will and its effects, and the extent of the property she is disposing of,
ii) must be able to comprehend and appreciate the claims to which she ought to give effect, and
iii) must not be suffering from any insane delusion that influences her decision in disposing of her property.
The lay evidence
The GP records
The claimant's evidence
i) Mrs Harris had suffered for many years from glaucoma but refused to visit an optician. She struggled to read using over the counter reading glasses and a large magnifying glass, and would have to ask Sian to read things for her.
ii) Sian became aware of a mental decline from early 2001 after which Mrs Harris became progressively more forgetful, with a tendency to repeat herself and to become angry and frustrated. This was noticed by other family members, including Ioan's wife Kathy and Sian's cousin Ann Morgan (who did not give evidence).
iii) Sian brought her husband Mick to visit Mrs Harris in March 2002. In the weeks before that visit she and Mick had a number of calls from Mrs Harris in which she said that space beings or witches had landed at the farm and that her own mother was there with her, though she had been dead for many years. During the visit Mrs Harris kept misremembering Mick's name, which was untypical, and kept telling them she had a winning ticket from a Reader's Digest draw showing she had won £1m. They had lunch with Ioan and Kathy, who said they had also noticed that Mrs Harris kept forgetting things.
iv) There were further calls shortly after that visit referring to aliens being at the farm. Sian spoke to Ioan who said he was losing patience with his mother inventing such stories and would speak to Dr Parry Jones to see if this could be addressed medically.
v) In April 2002 Mrs Harris rang and asked Sian to come to the farm urgently, but when she arrived had forgotten about the request.
vi) In August 2002 she spoke to Ioan who said Mrs Harris had become more confused and taken to wandering round the farm late at night. Sian and Mick visited on 31 August 2002 and Ioan told them Dr Parry Jones had prescribed medication to help Mrs Harris sleep and calm her down. Mrs Harris seemed to have forgotten that Sian was pregnant, which she had been told in April.
vii) Sian visited in February 2003 with her new son Jacob. Mrs Harris had obviously deteriorated mentally. She made little fuss of Jacob and spoke of aliens poisoning the water supply. Cousin Ann referred to her as having dementia, quoting Dr Parry Jones.
viii) In December 2003 Mrs Harris called and said aliens had invaded the farmhouse and Saddam Hussain had broken in. Sian went to the farm on 12 December but could not get in. She contacted Kathy who let her in and said the locks had been changed to prevent Mrs Harris wandering. Sian spoke to Dr Parry Jones who said she would prescribe stronger medication to help with "anxieties and dementia", but refused to discuss what she had prescribed. Sian tried to persuade Ioan and Dr Parry Jones that Mrs Harris should seek home help support from the local authority, but they were resistant.
ix) Mrs Harris was admitted to hospital on 10 May 2004 with a stomach bleed. Sian visited the next day and found her aggressive with staff and confused. Sian spoke to staff about a home care package on her discharge and they made a referral, which Mrs Harris agreed to. She later found that Ioan and Dr Parry Jones had cancelled the referral, telling the council that no help was needed. Mrs Harris was discharged on 13 May.
x) Sian visited Mrs Harris at home on 6 June 2004 and found her totally incoherent, agitated rude and abusive to all about her. Dr Parry Jones was there and said her dementia had "really kicked in". Later that month Dr Parry Jones told Sian that she had prescribed Prozac to calm Mrs Harris down because her dementia had worsened significantly, and made out a further prescription which Sian collected. She would consider other drugs to alleviate anxiety caused by dementia. There are records of prescriptions for Fluoxetine (Prozac) on 8 June and Venlafaxine on 9 June 2004.
xi) Mrs Harris made further calls in December 2004 saying that she had been invaded by space creatures and Saddam Hussain had poisoned the water supply. Sian visited on 12 December and discussed her worsening condition with Ioan and Kathy. Sian spoke to a local care agency which visited and set up a care package, but Ioan cancelled it 2 weeks later.
xii) By this time Mrs Harris was doubly incontinent, unable to communicate in any meaningful sense and incapable of holding an intelligent conversation. Sian doubts whether she could have understood what property she had or "the unfair consequences for me of my disproportionately small inheritance". Her eyesight and glaucoma had deteriorated to the extent that Sian doubts whether she would have been able to read her will without her magnifying glass.
xiii) Sian and Mick visited again in June and August 2005 and were shocked by Mrs Harris's mental state. Ioan was sleeping at the farm house (his own house was some 300 yds away) because his mother was wandering at night and had put bolts on the doors so she could not get out.
The hospital records
i) "Slightly confused. Doctor aware."
ii) "Discussion with daughter-Sian re social services-referral made. For OT [occupational therapy] assessment"
iii) "Niece concerned about referral-re conflict between son and Doris. Telephone message left on social services answerphone stating that I will refer tomorrow depending upon situation at home."
i) "10.00 seen by Dr Yeo-home today. Discussed with son and daughter. Son will collect this afternoon and take Doris back to his home-does not wish mother to be referred to social services. Daughter would like her referred." Against this in the "action" column is written "not referred to social services".
ii) "15.30 Discharged home with medication"
i) that the patient had consented to the referral (421)
ii) under "What are the views of carers/family members?" "Client's daughter concerned and requesting help on return home for client."
iii) There were various options that could be ticked to provide relevant medical and other information. There were no ticks against "History of falls" or any of the entries under the heading "Mental Health", including options to note "Depression", "Dementia", "Confused/disoriented" and "Cognitive problems/ memory loss". There were no ticks against "Sight", "Hearing" or "Communication".
iv) There was a tick against "Drinking/smoking" with the note "client's daughter states client smokes 20 per day…".
v) There were also ticks against "Washing" (with the note "personal hygiene poor") "Bathing" and "Grooming", but not against "Toileting" or "Dressing"
"When I took Doris away from the hospital … she proved to be very upset indeed and it appeared that this was because her daughter Sian had arrived in the hospital … It seemed that Doris had overheard Sian talking to the staff and telling them that her mother was unduly fond of alcohol and a smoker. It appeared also that Sian had suggested that her mother ought to be sectioned under the Mental Health Act. I also understand that Sian tried to persuade the hospital that her mother should be referred to Social Services for some kind of continuing care but my understanding is that this was rejected by the hospital as not necessary. This disturbed my aunt enormously and indeed once she had reached home she was in an agitated state for some time afterwards."
The attendance allowance form
i) That she was assisted because of her illnesses or disabilities by her son Ioan, who saw her "day and night" and "makes all her meals-puts her to bed and takes her to the bathroom during the night."
ii) That help was needed both during the day and at night (which was relevant to a claim for the higher rate of attendance allowance). In relation to help during the day "she cannot be left alone during the day as she becomes very anxious and confused. Unsupervised, she will wander outside and become lost. She needs supervision and encouragement with personal-care feeding and taking of medication. Over the past six months she has fallen on several occasions and cannot get up from the floor without her son's help."
iii) In relation to help during the night "she will not settle to sleep without her son being there and wakes up several times during the night. She often hears voices and becomes very anxious believing that people are breaking into the house. She has to be reassured and put back into bed up to 4 times a night. She uses the bathroom twice during the night and needs supervision and putting back into bed. She has fallen during the night when trying to get out of bed."
iv) By way of additional information, Mrs Jones said "her son checks several times during the day and stays with her overnight. He supervises her taking tablets and medicine as she tends to forget the timing and dosage. Her sight and hearing is deteriorating and when she falls she is unable to get up. At such times she gets anxious and panicky and on occasions aggressive…"
v) Mrs Jones said that these difficulties had begun on 1 May, 2004, and gave information about the admission to hospital in that month giving the reason as "bleeding stomach ulcer and confusion".
"I am very surprised by these comments. All medical students are taught that dementia is a syndrome that is carefully and operationally defined. Dementia is not a term that is used to describe a moment of difficulty, but indicates an acquired, progressive impairment of multiple domains of cognitive function. Because the deficits seen in dementia are progressive, they cannot be reversed."
The execution of the will
Was Mrs Harris suffering from cognitive impairment by reason of dementia at the time she signed her will such that she lacked capacity to understand or did not in fact understand its meaning and effect?
Did the terms of the will represent Mrs Harris's testamentary intentions?
The expert evidence
Conclusions