England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY

		The Court House Oxford Row Leeds LS1 3BG

Introduction

1. Sadly, on 22 July 2010 Mr Raymond Ian White passed away. He had been suffering from terminal rectal cancer which had been diagnosed in July 2009 at which time he had been told that it was inoperable albeit he was not told how long he had to live.
2. On 28 May 2010 he gave instructions for a will to Ms Jessica Gray, a legal executive employed at the time by Malcolm C Foy and Co, a firm of solicitors practising in Doncaster and Rotherham. On 4 June 2010 Mr White executed the will prepared in accordance with his instructions.
3. The claimant, Linda Anne White is the testator's widow. They had married in 1988. They had no children together but each had been married before and each had three children from their respective previous marriages. She contends that at the time he gave instructions and when he signed his will Mr White lacked testamentary capacity with the result that the will is invalid and, since there was no prior will, his estate should be distributed in accordance with the rules relating to intestacy.
4. A pleaded claim to the effect that the execution of the will was obtained by undue influence is no longer being pursued. The only matter for determination therefore is whether at the time Mr White had testamentary capacity.
5. The defendant, Susan Phillips denies that Mr White lacked capacity. She is one of the Mr White's daughters from his earlier marriage. She was appointed executrix by his purported will. The will directed that the home that he had shared with the claimant and which was mortgage free should not be sold during the claimant's lifetime without her consent or unless she cohabited with another person. It provided that she should be entitled to live there free of rent on the basis that she paid the other outgoings on the property and kept it insured and in good repair. It is right to say that the matrimonial home had been purchased by the testator and the claimant as joint tenants. Ms Gray arranged for Mr White to sign a notice of severance of the joint tenancy at her meeting with the testator on 28 May 2010 in order to ensure that the terms of the will were not frustrated by the automatic right of survivorship in respect of property held as joint tenants.
6. The will made provision that on the ultimate sale of the matrimonial home, once the claimant's right to reside there had been extinguished, either voluntarily or by her death or cohabitation, the net proceeds of sale should be paid to the defendant and it also bequeathed to her the residuary estate. Specific bequests were made of the testator's interest in some wall plaques and specific pieces of identified pottery. The recipients of those items was expressed to be the defendant and her sister, Julie Naylor (the testator's other daughter from his previous marriage). In addition, he bequeathed his tools to Mark Hall, the husband of the claimant's daughter, Charlotte Hall.

The law as to testamentary capacity

7. The law as to testamentary capacity is well-established. The burden of proof and the manner in which it shifts is best set out in In re Key Deceased 2010 EWHC 408 at paras 97 and 98. The burden of establishing capacity at the relevant time is on the person propounding the will (in this case the defendant). However there is a rebuttable presumption that a will which is duly executed and which is rational on its face was executed by a testator who had testamentary capacity. It is not suggested that this will has not been properly executed or is irrational on its face. That being so the evidential burden then shifts to the objector (in this case the claimant) to raise a real doubt about capacity. If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less. The issue of testamentary capacity is one for the court to decide, it is not one to be delegated to experts, albeit that their knowledge skill and experience may be an invaluable tool in the analysis of that issue.
8. The classic test at common law as to testamentary capacity is that set out in Banks v Goodfellow (1870) LR 5 QB 549 at 565. The testator must;

• understand the nature of his act i.e. executing the will and its effect (i.e. the effect of his wishes being carried out at his death)

• understand and recollect the extent of his property

• understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will

• not be subject to any disorder of the mind as 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".

9. In Abbott v Richardson (2006) WTLR 1567 at 1627 it was held that the testator must have the mental capacity to make decisions which take into account the relevant property, persons and circumstances and arrive at a "rational fair and just" testament.
10. Mr Howlett in paragraph 9 of his skeleton argument seeks to define a delusion. It is a belief in the existence of something which no rational person could believe and, at the same time, it must be shown to be impossible to reason the person out of the belief. For these purposes however, in addition it must be such as to influence the testator in making (or not making) a disposition. It is a question of fact whether the delusion affects the disposition or the failure to make one and one must bear in mind that the existence of a delusion is quite compatible with the retention of the general powers and faculties of the mind. As Cockburn CJ put it poetically in Banks v Goodfellow;

"If reason and judgment are lost and the mind becomes prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baleful influence – in such a case it is obvious that the condition of the testamentary power fails…."

11. At what point does the testator have to possess testamentary capacity? Quite clearly it is at the time that he gives instructions for his will. As to capacity when the will is executed, if he has capacity at that point then that is sufficient but even if he does not, Parker v Felgate (1883) 8PD 171 is clear authority of the proposition that capacity does not necessarily have to be present at the time of the execution of the will provided that;

• The testator had capacity at the time the instructions were given

• the will is prepared in accordance with those instructions

• at the time the will is executed the testator remembered having given instructions and believes that the will was prepared in accordance with them.

The principle in Parker v Felgate has been consistently applied by the courts ever since despite efforts to challenge it.

12. As a separate but related and overlapping requirement is the need for it to be shown that the testator knew and approved the contents of his will. It was suggested in Perrins v Holland and Others (2010) EWCA 840 Civ that the need for it to be established that the testator knew and approved of the contents of his will meant that if he could not do so at the time of execution then the will was invalid. How, it was argued, could a testator have knowledge and approval of his will if by reason of his lack of capacity he was incapable, at the time of execution of his will, of knowing and approving of its contents?
13. It was held that there was a clear distinction between testamentary capacity and knowledge and approval. The purpose of the enquiry into knowledge and approval is to ascertain whether the will represents the testator's true intention. Moore-Bick LJ put it at follows at paragraph 55. He said it was necessary to ask whether (1) at the time the testator gave the instructions, he had testamentary capacity; (2) the document gives effect to his instructions; (3) those instructions continue to reflect his intention; and (4) at the time he executed the will he knew what he was doing and thus have sufficient mental capacity to carry out the juristic act which that involves.
14. Mr Howlett, counsel for the claimant argues that there is a real doubt as to testamentary capacity at the time that instructions were given for the will and when it was executed such that the evidential burden reverts to the defendant as propounder of the will to establish that Mr White had testamentary capacity. He argues that the defendant has failed to establish that the Mr White was not subject to any disorder of his mind that poisoned his affections and perverted his sense of right in the context of the obligations that he owed to his wife, the claimant, and that accordingly the will was not rational fair or just. That proposition is grounded on the contention that in the months prior to his death he irrationally took against the claimant by reason of a disorder of his mind caused by the effect of his palliative drugs.
15. Finally I refer to Hawes v Burgess 2013 EWCA Civ 74 in which Mummery LJ had this to say at paragraph 13;

"….. Although talk of presumptions and their rebuttal is not regarded as especially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed"

and at paragraph 60 he says;

"My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity."

The background and lay evidence

16. I heard from a number of lay witnesses in the course of the trial in addition to the claimant and the defendant. The claimant relies on the evidence of her daughter, Charlotte Hall. The defendant relies on the evidence of Jessica Gray, Sarah Hartley the head of private client department at Malcolm C Foy, Jessica Cross, a social worker, Gillian Sheldon, Mr White's sister and his niece, Caroline Day. In addition, I have the witness statement of Doreen Parker, an Independent Domestic Violence Advocate, but Mrs Parker did not give oral evidence.
17. As I have said, an important feature of this case is the relationship between the claimant and the defendant in the months leading up to instruction of Ms Gray and the execution of the will. That relationship had deteriorated abruptly from about April 2010. The claimant contends that this deterioration in the relationship was not something for which she was responsible. It arose by virtue of unwarranted perceptions about her assumed by Mr White as result of the drugs that he was taking and no doubt, the stress inevitably arising out of the nightmarish situation in which he found himself.
18. In March 2010 he saw for the first time Dr McTague, a consultant in palliative medicine. She prescribed fentanyl patches which it is right to say continued to be taken by him until his death, albeit that the dosage varied from time to time. Mr White was also taking citalopram, an antidepressant and pregabalin. I shall come back to his drug regime below because the claimant's contention that Mr White lacked testamentary capacity is based upon the contention that throughout the relevant time he was suffering from serotonin syndrome by reason of his drug intake. Apart from being life-threatening, serotonin syndrome can cause extreme confusion. It is manifested, amongst other things, by tremors and myoclonic jerks, the significance of which in the context of this case, I shall come to later.
19. On 23 April 2010 Mr White was admitted to Weston Park Hospital because he had a high temperature, a particularly dangerous occurrence for somebody in his state of health. He was taken there by the defendant who complains that the claimant was not proactive enough in arranging for his admission to hospital, an accusation which the claimant vigorously denies.
20. Mr White remained in hospital until 26 April 2010. It is suggested by the defendant that the depth of the acrimony between the claimant and Mr White even at this time is demonstrated by the fact that the claimant did not visit Mr White in hospital. The claimant's position is that she was told by Mr White that it was unnecessary and that in any event they remained in close and loving contact through text messages. I have indeed seen these text messages and they do appear to suggest at that stage a caring relationship. At the time of his discharge from hospital on 26 April 2010 Mr White was on 75 µg of fentanyl, 75 mg of pregabalin twice daily as well as 20 mg of citalopram (amongst other drugs).
21. Later the same day Mr White telephoned the police. A log of that conversation is in the trial bundle. He reported that the claimant was in an agitated state and was screaming at him and threatening to kill him and that she was throwing things around. He described her to the police operator as being like a woman possessed and of threatening to "stick a knife" in him if he did not change his ways. He told the operator that the claimant had acted like this before, some years ago when she lost her son, Carl and he also mentioned that he had just come out of hospital after having been admitted with a high temperature. He pointed out that the claimant had not visited him in hospital which he thought to be strange. It is not disputed that this account is accurate in the sense that Mr White had been admitted to hospital because he had a high temperature, that his wife had not visited him and that she had tragically lost her son. The claimant contends however that in every other particular it is wholly inaccurate and was the product of Mr White's drug induced imagination. The police attended as a result of that call and required the claimant to leave the property and she spent the night at her daughter Charlotte's home.
22. At this time Mr White had the benefit of a Macmillan nurse, Faye Witton. It is the claimant's evidence that on the 27 April she telephoned Ms Witton to articulate her concerns about what she describes in her witness statement as his "irrational and delusional behaviour on his discharge from hospital". Ms Witton seems to have contacted Dr McTague because they both attended at the White's home on the 29 April. A record of that visit described Mr White as suffering from stiffness and a tremor to the right arm and that he admits to some forgetfulness. It will be remembered that a tremor is a symptom of serotonin syndrome. It is recorded that he was emotional when talking about the home situation and that he reported that some days previously the claimant had been screaming and acting like "the Devil". It seems likely that this is an allusion to the alleged events reported to the police. He also said that the claimant was selfish, had not cooked him a hot meal for 2 ½ months and that he had had to buy his own food. The report however records that it was very difficult for the professionals to "establish what is actually happening at home".
23. The claimant's evidence is that what was actually happening at home was that Mr White was becoming more irrational and deluded. At paragraph 16 of the witness statement she speaks of Mr White becoming very withdrawn and distant and threatening and that he suffered from severe mood swings. She cites the example of his delusional behaviour in that at one point he asked Charlotte if she would marry him. Charlotte Hall also reported that Mr White was becoming more distant, less responsive and his behaviour was making less sense. At paragraph 13 of her witness statement she contends that he was completely disorientated mentally.
24. In any event the upshot of the visit of Ms Witton and Dr McTague was that a safeguarding referral was made by Ms Witton to local social services who allocated it to Mrs Jessica Cross although at the time she was Miss Jessica Butcher. She saw Mr White on 14 May. Her evidence was that the purpose of the visit was to consider whether there was a need for a care package. When she went to the house it was indeed Mr White who opened the door to her and immediately expressed some anxiety that his wife was upstairs and would be able to hear all that was said. Mrs Cross reports that ultimately the claimant did come downstairs and her demeanour was such as to cause Mrs Cross to conclude that it was appropriate to leave because she did not feel safe. She retreated to her car but was followed by Mr White who was keen to check that she was all right. The claimant denies that she was anything less than polite to Mrs Cross but that she did not care for Mrs Cross's attitude which she found threatening and bullying and so, politely, she asked her to leave.
25. The safeguarding meeting then continued in Mrs Cross's car. Her report to a safeguarding meeting on 19 May indicates that Mr White reported to her that the claimant was behaving badly towards him for example he said that before going to the shops she would open all the windows and turn the immersion heater off because she knows that he gets cold easily and cold can make him ill and that she pours away any milk that she has not used in order to prevent Mr White from using it. In short, he reported that the claimant's attitude towards him was cold and calculating. Nevertheless, she was clear that Mr White still loved the claimant. It is clear that Mrs Cross was concerned about Mr White's safety.
26. It was also her evidence that she entertained no doubts as to Mr White's mental capacity. She always found him lucid and, as far as she was concerned, he gave no reason for her to doubt his capacity and accordingly as far as she was concerned, there was no query about capacity. Social service policy requires an assessment of capacity to be undertaken by a social worker of issues of capacity if there is some doubt about it. In this case there was no assessment because as far as Mrs Cross was concerned no conduct on his behalf gave rise to such a doubt.
27. The minute of the meeting on the 19^th May also make it clear that there appeared to be serious concerns as to Mr White's safety at home because a referral to MARAC was made. The acronym MARAC stands for Multiagency Risk Assessment Conference. It is a meeting where professionals share information and put in place a risk management plan in what are seen to be high risk cases of domestic abuse. Indeed, even before a MARAC meeting was set Mrs Cross had referred the situation to the Independent Domestic Violence Advocate, Mrs Doreen Parker who saw Mr White on 21 May. She found him to be coherent and was confident in his capacity and that he was "more than able to make informed decisions" she was firmly of the view that Mr White was of sound mind when she met him.
28. It is however also right to mention that Ms Witton was present at this safeguarding meeting on 19 May. She expressed concern that Mr White had left a meeting a few days earlier very quickly leaving his pills behind. She expressed the thought that some of his medication can make him feel less "with it".
29. The claimant's position is that she had not been guilty of any abusive conduct whatsoever and that Mr White took against her completely unjustifiably because he was deluded, paranoid and irrational. Her evidence was that prior to the diagnosis of inoperable cancer and indeed for some time thereafter their relationship had been warm and loving and no conduct on her part justified the deterioration in their relationship.
30. On 15 May Mr White left the matrimonial home and went to reside with his daughter, the defendant. The claimant reports that Mr White simply started packing his belongings in a bin liner and became aggressive and abusive when Mrs White asked him why. She rang her daughter Charlotte and her niece Caroline Day. She reports that Mr White was distressed, disorientated and confused and had soiled himself. When Caroline Day and the claimant sought to reassure Mr White it just made him more distraught and he told them that he was going away on a long journey by train but he would not say where. In her witness statement Charlotte Hall confirmed that the Mr White was agitated, distressed and incoherent and could not be persuaded to stay at home.
31. The defendant picked Mr White up from his home. Her evidence is that he was waiting on the drive with his bin bag of possessions by his side. He told her that he had no choice but to leave. On the following day the claimant reported Mr White's absence to the police on the basis that she was concerned about his welfare. She did not specify to the police where Mr White was although it is right that the police log records her indicating that she strongly believed that he was with the defendant. That of course was so and remained the position until his death other than for those periods when he was in hospital. From that date to his death the claimant and Mr White had no further contact. Indeed, the claimant was not even advised of his death until after his funeral, a very sad fact which clearly and wholly understandably caused her great distress.
32. On 19 May when Mr White was living with his daughter he advised Mrs Cross that he wished to change his will. In her statement Mrs Cross says that he did so because he was aware of his prognosis and how his medication may affect his ability to make a will in the future. In fact Mr White had not made any previous will and so the issue of a change in his will did not in reality arise.
33. On 27 May Mr White was admitted to Doncaster Royal Infirmary. He was taken there by the defendant. He was reported on admission as having no appetite, was not drinking, he was in some pain and was twitchy and very sleepy and forgetful. As I have recounted, some of these symptoms are indicative of possible serotonin syndrome. The hospital records also record that the defendant reported that he was hallucinating although the defendant does not recall saying that. Mr White had inevitably been on a cocktail of drugs prior to his admission to hospital and the hospital notes query whether he was suffering from drug toxicity. At this time he was on 100 µg of fentanyl. He was of course also taking citalopram and pregabalin although his dosage of the latter was reduced on the same date from 125 mg to 75 mg. Earlier in the year he had been on 50 µg of fentanyl but that had been increased in April to 75 µg. It appears to have increased for a short time in late May 2010 to 100 µg but because he had developed generalised twitching, a specialist registrar, Dr Tim Simmons on 25 May had prescribed a reduction back to 75 µg. The hospital admission notes seem to suggest that on his admission to Doncaster Royal Infirmary on 27 May he was still on 100 µg reducing to 75 µg on 3 June however medication records for 28 May show him to be on a 75 µg fentanyl patch.
34. On 27 May Mrs Cross contacted Malcolm C Foy who arranged for Mr White to be seen by Ms Gray for the purpose of taking his instructions for his will. Ms Gray attended at Doncaster Royal Infirmary on 28 May at about 16.30 to take instructions from Mr White in connection with his will. Mrs Cross had contacted Malcolm C Foy and Co the previous day and the task of preparing the will was given to Ms Gray that day. The arrangements for her attendance at hospital were made by her through the defendant in the sense that she contacted the defendant to ascertain when it would be best to go the hospital and to obtain a password to enable her to gain access to the ward. The password was necessary because of concerns about the claimant having access to Mr White. It is right to say that medical notes taken at 13:00 hours on 28 May record that Mr White is still having tremors and is "not quite with it". This is of course some three and half hours before his conference with Ms Gray.
35. Mr White had also had a CT scan on 28 May which revealed chronic patchy ischaemic changes that may have represented the early stages of a dementing illness and may have predisposed him to develop a confusional state when physically unwell or pyrexial (suffering a raised body temperature) but the notes indicate that he was not exhibiting features of dementia. The records also indicate that on a ward round there was noted to be "general deterioration".
36. Ms Gray's evidence is that when he saw Mr White at 16.30 she had a perfectly sensible conversation with him and recorded his instructions on a standard pro forma that it was the practice of the probate department to use. Also present at the time was Mr White's sister Gillian Sheldon.
37. Mr White advised Ms Gray that his relationship with his wife had broken down. He understood what she had to say about the necessity for severing the joint tenancy. He made it clear that he wanted his share in the home to pass to his daughter but did not wish to leave his wife homeless and he cogently explained why he intended to leave the bulk of his estate to the defendant rather than to all three of his children. At paragraph 13 of her witness statement she confirms that she found him coherent, reasoned and rational. She states "I have no doubt that Mr White knew what he was doing when he gave me his instructions. I could tell that his instructions were carefully thought out".
38. Her evidence was that she is alive to issues of capacity and she had no doubts on this occasion. One of the prompts on the pro forma sheet is whether a doctor's letter is required to confirm capacity. She circled the "no" alternative. She points out that he was able to give her detailed instructions in respect of specific bequests including the designers' names of the plaques and pottery concerned and the address of Charlotte Hall's husband. Her evidence was that if there had been any reason to be worried about capacity she would have taken steps to allay any such concerns. As far as she was concerned nothing in Mr White's conduct gave rise to concerns about capacity at all.
39. Mr Howlett, counsel for the claimant, called her attention to what appeared to be inaccuracies on the pro forma which may suggest some confusion on the part of Mr White in particular that it suggests that she was told by Mr White that he owned another property when that is manifestly not so, that the note as to the size of the estate appears to be inaccurate and the pro forma refers to a mortgage when the property was mortgage free. Her evidence was that none of these inaccuracies arose because of any confusion on the part of Mr White. The reference to another property was her mistake, the note as to the size of the estate was meaningless and the reference to a mortgage probably arose because she had noted it on an office copy of the charge certificate that she had obtained in anticipation of the meeting. She readily accepted that the reference to a mortgage did not necessarily come from Mr White.
40. Mr White was discharged from hospital on 1 June. He was seen on that occasion by a Dr S D Pledge who recorded that his symptoms were "sorted" and he is feeling much better and "he's almost certainly fit to go home". I note however that on the same date there is a nursing entry that Mr White was complaining of "sweating and feeling clammy". On his discharge he went to the defendant's home.
41. As to events on 4 June, there is an attendance note in the court bundle. That records Ms Gray attending at the home of the defendant for the purpose of having the will executed and witnessed and it records Mr White reading the will and confirming that he was happy with it. It confirms that the defendant was present and that the will was actually passed to her after it had been executed and that she expressed concern that the will provided her with a lion's share of the estate to the disadvantage of her siblings. She recalls Mr White explaining cogently to the defendant why he thought that was appropriate. She also recounts a discussion concerning the severing of the joint tenancy in respect of the pottery which was to be the subject matter of specific bequests and that Mr White understood the principles and indeed the possible difficulties of this aspect of his will actually being carried through. At paragraph 21 of her witness statement she says that she found Mr White still to be of sound mind and found no reason to question his mental state at all.
42. I have referred to the fact that Mrs Gillian Sheldon was present at the hospital when Ms Gray took instructions. She too gave evidence to the effect that at that time before Ms Gray arrived Mr White was cheerful and jocular and talking about old times and that when Ms Gray did arrive and he and she were discussing the will he was thoughtful and reasoned. At paragraph 21 of her witness statement she says that he appeared completely normal and was able to discuss matters in a confident, sensible and intelligent way.
43. The defendant obviously gave evidence as to Mr White's presentation when the will was executed. Her recollection is that Ms Gray read the will to Mr White rather than him reading it himself in contrast to the evidence of Ms Gray but she has the same recollection as Ms Gray about her concern when it became clear that she was the main beneficiary to the exclusion of her siblings. On a more general note, her evidence was that before during and after his will was made and whilst he was staying with her he was coherent and was able to indulge in long meaningful conversations and she had no doubt as to his capacity.
44. I should add that a Larke v Nugus letter of June 2011 is not wholly consistent with the evidence of Ms Gray because it suggests that indeed she did summarise the meaning of each clause in the will rather than just allowing Mr White to read it.
45. Finally, in terms of the lay evidence it right to record that Charlotte Hall supports her mother's view that Mr White was consistently confused and in a state of mental deterioration. Her evidence is that she saw Mr White regularly throughout this relevant period, albeit that she was not related to him by blood, he had brought her up and he treated her as a daughter and she treated him as her father.
46. She noted a marked deterioration in Mr White when she saw him on 9 June having seen him last on 15 May. Having said that, she supports the claimant's evidence that even on 15 May, when he left the matrimonial home for the final time he was incoherent and irrational. Mrs Day was of the opinion that on those occasions towards the end of his life when she saw him he was coherent and rational.

The expert evidence

47. Expert evidence was given by two consultant psychiatrists, Dr John Cookson for the claimant and Dr Christopher McWilliam for the defendant. Having carefully considered the medical records Dr Cookson, in his written report, concludes that;

"When seen to prepare his last will on 28 May 2010, Mr White was being treated in hospital for a toxic – confusional state with psychotic features largely due to a combination of pain relieving drugs (fentanyl and pregabalin) and an antidepressant (citalopram). A brain scan of that date indicated "chronic patchy ischaemic changes in both hemispheres" that probably predisposed him to develop a confusional state. In addition he was anaemic and had a somewhat low sodium level and abnormal liver function tests. Factors contributing to drug toxicity were doses of pregabalin (with potential to cause abnormal movements paranoia and hallucinations) and the combination of fentanyl and citalopram (potentially causing serotonin syndrome with fever, myoclonus and mental confusion). This raises doubts about whether Mr White had to testamentary capacity on May 28……….

Contemporaneous accounts of his condition include reports of drowsiness, needing to be awoken, of being "not quite with it" with episodes of confusion. There is no medical or other assessment of his testamentary capacity in the records available to me. In my opinion if the treating team had been aware that Mr White was giving instructions for his will and if they were requested to make an assessment of his testamentary capacity, they should have done so and documented an assessment of his testamentary capacity. In my opinion this would have indicated that he lacked this capacity……..

Mental capacity is subject specific and can vary with time. Someone in a confusional state is likely to lack capacity to make most important decisions. In my opinion Mr White was in such a confusional state intermittently from about 26 April 2010. The severity of serotonin toxicity is likely to have fluctuated until fentanyl was discontinued….."

48. Of course, Dr Cookson emphasised the entries in the hospital records made on his admission to hospital on 27 May. He was of the opinion that the references to forgetfulness and tremors were telling in support of the diagnosis of serotonin syndrome.
49. A Part 35 question to Dr Cookson raised by the defendant's solicitors drew attention to the fact that on 25 May his fentanyl dose had been reduced to 75 µg by Dr Simmons thereby suggesting that steps had been taken to reduce any possibility of Mr White suffering from opiate toxicity. Dr Cookson's response to that question confirmed that his assessment of probable testamentary capacity was based upon the contemporaneous records of Mr White's clinical appearance close to the relevant time (28 May and 4 June) and that " it is not clear that the dose of fentanyl taken by Mr White had stopped or reduced". By reference to paragraph 33 above it is perhaps understandable why there may be some confusion as to precisely what dosage of fentanyl Mr White was taking this time.
50. As I have said, on 1 June 2010 Mr White was seen by Dr S D Pledge who, despite the nurse's note that he was feeling sweaty and clammy, seemed pleased with his progress and viewed him as "sorted" and "almost certainly fit to go home". Dr Cookson was not convinced that this indicated that Mr White had capacity when he signed his will on 4 June. In a reply to a further Part 35 question the points out that;

"The nursing entry on June 1 describes Mr White as complaining of sweating and feeling clammy. I note that Mr White was readmitted to hospital on June 8 and was sleepy and twitchy at times on fentanyl 100 mg (sic). To my knowledge there are no contemporaneous records of his condition when the will was executed on June 4 to indicate that his condition had improved and it is therefore doubtful that he had testamentary capacity on that date."

51. In the experts' joint statement Dr Cookson takes the opportunity of reaffirming his concern that Mr White was suffering symptoms of a confusional state at about the time that instructions for the will were given having experienced hallucinations, forgetfulness and probably paranoid thinking about Mrs White. He confirms his belief that this would have impaired his testamentary capacity.
52. Dr Cookson's conclusions are to be treated with respect, he is an experienced consultant psychiatrist with both a practical and an academic background and he has a special interest in the effect of drugs in psychiatry. It is a field in which he continues to lecture. In the expert's joint report Dr McWilliam is happy to defer to Dr Cookson's expertise in the effect of drugs and in particular serotonin syndrome although he makes clear that he is aware of serotonin syndrome and the risks that are associated with it. On the other hand, Dr Cookson recognises that Dr McWilliam has specifically more experience in the consideration of testamentary capacity.
53. Dr McWilliam takes a different view to that of Dr Cookson. He is also a highly experienced consultant psychiatrist with specialist experience in the fields of general adult as well as forensic psychiatry. He has specialist expertise in the use of the Mental Capacity Act and deprivation of liberty legislation.
54. He does not accept that Mr White lacked testamentary capacity when he gave instructions in respect of his will on 28 May. He has considered the medical records in the same detail as Dr Cookson. He observes that the St John's Hospice and community service records contain no capacity assessments or comments that suggest that Mr White was confused. There is an assessment on the 3 June in which it is recorded that Mr White was able to discuss his care choices re hospital medication etc in depth and that "he has been experiencing great emotional stress over the last few weeks…. He feels more settled at his daughters and has achieved some peace of mind by seeing a solicitor he has made a will and Susan is now legally his next of kin". Dr McWilliam observes that the hospital records make no reference to Mr White suffering from any psychological disturbance at any of the assessments even though it is clear that opiate toxicity was considered.
55. In reaching that conclusion he draws to some extent on the reports of Dr Laura McTague. She is the palliative care consultant to I have already referred. She did not give oral evidence and indeed her written evidence is unsatisfactory in the sense that it consists of an unsigned report written at the request of South Yorkshire police in response to a complaint from Mr White's wife. No forensic weight can be attached directly to that report but Dr McWilliam records in his reports, not challenged indeed by Dr Cookson (who also makes reference to Dr McTague's notes in his report) that Dr McTague was able to say that she had no concerns of cognisant impairment of Mr White at the time the CT scan was performed on 28 May and that, when she saw him on 3 June, he had insight into his need for hospice care and in formal assessments on the 14 and 15 of July he was able to concentrate on questions and answer and retain information and was able to state that he wanted to tell his children himself about his impending death and to be at his daughter's house when he died.
56. In a supplementary report Dr McWilliam confirms that the records and reports do not indicate to him that Mr White had a clinically significant depression, dementia or permanent cognitive impairment or a specific mental illness which affected his capacity. He does not shrink from recognising that there are references to hallucinations in the notes but observes that they give no details of timing, nature and extent nor do they indicate that they were present on 28 May or that, if present at that time, they had any effect on Mr White capacity. He also observes that the notes tend to indicate that Mr White had in any event improved significantly by 1 June and 2 days later was able to discuss his care choices re-hospital medication et cetera in-depth. He maintains his conclusions following the joint meeting that there is no evidence that Mr White lacked testamentary capacity when he gave instructions for, and signed, his will.
57. In his oral evidence Dr McWilliam, in answer to Mr Howlett, did not discount the possibility that Mr White may have had cognitive impairment on 27 May caused by the combined effects of his physical illness and medication. Indeed, he acknowledges that his presentation at Doncaster Royal Infirmary on 27 May was consistent with a diagnosis of drug toxicity. Indeed, he goes so far as to acknowledge that there is no certainty that he had testamentary capacity on 28 May but his firm conclusion is that it is more likely than not that at the time when he gave instructions for his will Mr White did not have an overall significant impairment of testamentary capacity. It is right to say that he was less sure of testamentary capacity on 4 June (because he recognised that the notes are not wholly comprehensive^[1]) but once again, it was clear that his overall conclusion (as earlier expressed in his supplementary report) was that Mr White did not have any overall significant impairment of capacity even then. He points out that in terms of capacity, this will was not a complicated one and on 3 June, the day before he signed it, he was able to have a completely coherent conversation about his care choices (see paragraph 54 above). In addition, he was exercised by the fact that serotonin syndrome is reversible quite quickly by a change in the drug regime. And that the record suggested that Mr White had recovered quickly from any confusional state present upon his admission to hospital to a point where he was ready for discharge on 1 June and, of course, on that date Dr Pledge was of the view that his symptoms were "sorted and he was feeling much better". He remained concerned however that Dr McTague, in a letter to Mr White's GP on 15 June, reported that even on 3 June Mr White was "starting to get myoclonus again". Myoclonus, or twitching is, as I have said, a symptom of serotonin syndrome.
58. It has to be said that in his oral evidence Dr Cookson gradually drew back from the trenchant conclusion expressed in his written evidence that at the relevant time Mr White lacked capacity. In the course of cross examination after a fairly robust but entirely proper set of exchanges with Mr Roberts, counsel for the defendant, he opined that the circumstances had created a "doubt" about capacity. Indeed, when it was put to him that his written opinion was considerably more definitive, he said that he did not mean that Mr White lacked capacity, he meant that there was simply a doubt about it and it was "too speculative" to say he lacked testamentary capacity.
59. At a later point he said "There is doubt that he lacked capacity but it is not necessarily my opinion that he did". He was clearly exercised at this stage by the lack in the notes of any suggestion to that effect and the fact that as at 1 June Dr Pledge for one thought that his symptoms were "sorted".
60. It seems that Dr Cookson's conclusion in his written report may also have owed something to the fact that he believed at that stage that Mr White was delusional about his relationship with his wife. In cross examination he readily conceded that Mr White's antagonistic attitude to her towards the end of his life may well not be as a result of delusions. He said "I do not say he was delusional about his relationship with his wife". Having said that, I do not overlook that he did not dismiss the view that Mr White may have suffered from paranoia that caused him to misjudge the claimant's intentions towards him with the result that he may simply have got the wrong end of the stick about his wife. He did not however go so far as to express the view that Mr White was paranoid and recognised that if his thinking about her was not a function of paranoia "then there was less doubt that he lacked testamentary capacity".
61. At the very end of his evidence he had this to say;

"I am not going as far as to say it is likely that he had testamentary capacity. I'm right on 50% with regard to testamentary capacity on 28 May. As regards the 4 June, I am in more doubt (as to lack of capacity). I am less able to give a definite opinion. I cannot say it is more likely than not that he lacked testamentary capacity on 4 June".

Conclusion

62. As urged by Mr Howlett, I accept that there is a sufficient doubt as to capacity to shift the evidential burden to the defendant to establish capacity. I also recognise that in order to meet that burden the defendant has to establish all four elements set out in Banks v Goodfellow including, and this is the one that Mr Howlett particularly relied upon in his oral submissions, that Mr White was not subject to a disorder of the mind that poisoned his affections or perverted his sense of right or which precluded him from arriving at a rational fair and just testament.
63. I am satisfied that, on the facts of this case, the defendant has discharged that burden both as to Mr White's capacity on 28 May when he gave instructions and on 4 June when he executed the will. I am also satisfied that Mr White knew and approved of the contents of his will. I do not doubt that at times Mr White, by virtue of the drugs with which he had been prescribed suffered from opiate toxicity to a greater or lesser extent but the issue is whether that was of a sufficient degree to rob him of his testamentary capacity at the time he gave instructions for his will and/or when he signed the document prepared in accordance with those instructions.
64. The decision as to testamentary capacity is of course one for the court but, as Briggs J pointed out in Re Key, the knowledge skill and experience of the experts can be a valuable tool in the analysis of that issue. The fact is that even Dr Cookson was not, in the end, prepared to say that Mr White lacked capacity on 28 May. He thought that it was 50:50 as to whether he did or not. I accept that if one is obliged to resort to the burden of proof that in itself would not necessarily be enough to support a finding of testamentary capacity in the circumstances of this case bearing in mind where I have found the evidential burden to lie but, the fact is that he was in greater doubt as to the lack of capacity of 4 June when the testator actually executed his will.
65. Dr Cookson repeatedly suggested it his evidence that there was doubt about testamentary capacity. It is clear that he is right about that but of course that is not quite the point. I do not have to be sure beyond doubt that there was testamentary capacity – only that testamentary capacity when the testator executed the will is more likely than not or that if there was a lack of testamentary capacity at the time that the Will was executed, it was present when instructions were given and the remainder of the test in Parker v Felgate is met.
66. As against, with respect to him, the somewhat vacillating opinion of Dr Cookson, I have the firm opinion of Dr McWilliam, an expert in mental capacity, that he felt, having regard to the medical history and lay evidence as a whole, that Mr White had capacity at the time he gave instructions as well as at the time that he executed the resultant will. In addition, there is the fact, recognised by Dr Cookson, that serotonin syndrome can quickly be defeated in any event by a reassessment of the combination of drugs and the quantity administered that might be causing this effect – as they were on 27 May.
67. It is right however not to centre too much of the evidence of the experts in light of the strictures given in Re Key (and which in fact are repeated at paragraph 60 in Hawes v Burgess). In support of his contention that the defendant has not established the four stages in Banks v Goodfellow, Mr Howlett referred me to the wider evidence of Mr White's behaviour and his obvious, and Mr Howlett argues, ill-founded antagonism to the claimant, his wife of 22 years.
68. In my judgment however the evidence suggests that even if by reason of a disorder of his mind he became unjustifiably antagonistic to her, nevertheless that did not poison his affections or prevent his sense of right or was otherwise a disorder of his mind that influenced Mr White in the distribution of his estate.
69. There is the fact that, as recorded in paragraph 60 above, in his cross examination Dr Cookson specifically did not say that Mr White was delusional about his relationship with his wife. Additionally, even as he told Mrs Cross that his wife had become cold and calculating, he told her that he loved her and he told Ms Gray that he had no wish to leave his wife homeless. His will indeed gave her a life interest in his half share of the house (subject to earlier termination on cohabitation) and the effect of that was that, if the claimant does not cohabit and does not choose to leave voluntarily, the vast bulk of the value of the testator's estate will remain for her use, possibly for many years to come. Equally the will cannot be seen in my judgment to be irrational merely because its terms did not accord with an alleged agreement made by him with the claimant in November 2009. Even if such an agreement was made then, generally, it does not affect the right of a testator to change his mind as to his testamentary intentions – at least in the absence of mutual wills.
70. As for the cohabitation clause about which the claimant took such obvious and understandable objection in the witness box, Ms Gray was clear that that was a default clause in wills prepared by the firm when instructions extended to creating a life interest in property on death.
71. Furthermore, it is, in my judgment, difficult to argue that the will is not rational fair and just. A will which had left everything to the claimant could, I accept, also be seen to be fair, rational and just but that does not mean that a will in the form of the one with which I am concerned cannot also be fair, rational and just. In this context fairness, rationality and justice have a number of permutations. I do not see it as irrational, unfair or unjust to provide that one's estate shall pass to one's children from a previous marriage (or indeed one of them) in circumstances where the will also provides that the current spouse has the use and benefit of the majority of the estate including the house, for the foreseeable future.
72. In addition, it is right to have regard to the evidence of other professionals. Mrs Cross in particular was a frequent visitor to Mr White and she never entertained doubts as to his capacity generally albeit I recognise that she is not in a position to comment specifically as to his condition on 28 May or 4 June. I note that on 1 June he was discharged from hospital because Dr Pledge was of the view that he was fit to go home and, importantly Ms Gray was clear that he had capacity when she saw him in hospital and that is against the background of a pro forma which required her to consider capacity. She was equally clear that that was so on 4 June. It is important to have regard to the observations of Mummery LJ in Hawes v Burgess to which I have referred above. Ms Gray was a legal executive who understood issues about capacity because her role not only included will making but also powers of attorney where questions of capacity are often a live issue. I do not overlook that there is some inconsistency in the evidence of Ms Gray and the Larke v Nugus response but that inconsistency is insufficient to undermine her evidence to any material degree. It may well arise because the response was not formulated by her but by her senior partner.
73. It is also right to observe that on 3 June during an assessment Mr White is reported as having achieved some peace of mind by seeing a solicitor and making the defendant his next of kin. This too suggests that he was aware what he had done on 28 May. As does the fact that on 28 May he was sufficiently aware to know the extent of and the designers of his wall plaque and pottery collection and the fact that he owned tools that he wished to pass on to Mr Hall. Added to that is the fact that this was not a complicated set of instruction for the preparation of a not very complicated will.
74. It would also be wrong to ignore the evidence of Mrs Sheldon to the effect that she was able to have a coherent conversation with Mr White just before Ms Gray attended hospital on 28 May. Her evidence in that connection was, understandably, not challenged. Mr Howlett makes the point that it is necessary to be cautious because a person can lack testamentary capacity even if they appear to present normally. That is, no doubt, true but nonetheless evidence that a person is acting normally and is coherent cannot be without significance.
75. On the other hand, the evidence of the claimant and Mrs Charlotte Hall covered a period somewhat removed from the time that the instructions were given and the will executed. Mrs Hall did not see Mr White from 15 May until his death other than on 9 June, 5 days after the will was actually executed. It is right that she spoke of his being emotional, erratic, hard to understand and jumpy and incoherent on that occasion. Even if that is correct, and I have no reason to doubt it, it does not greatly inform as to his condition at the time with which I am concerned. It is considerably more likely than not that if he had exhibited these characteristics on either 28 May or 4 June Ms Gray would have taken a different course to the one that she adopted. The claimant, of course, suffers the disadvantage of not having seen Mr White at all since 15 May and so is able to throw even less light on his mental condition at the relevant times.
76. I do not overlook the need for the defendant to establish knowledge and approval and the test laid down in Perrins v Holland. It does not appear to be suggested by Mr Howlett that the will failed to give effect to Mr White's actual instructions or that when he signed his will he did not have the capacity to carry out the juristic act which execution involves. I am satisfied that he was advised of the terms of the will before execution, if not by reading it himself then having its provisions read over to him, and I am also satisfied that the will reflected his continuing intention. I have already concluded that he had testamentary capacity at the time he gave instructions for his will as well as when he signed it.
77. I have considered the issues raised by the errors in Ms Gray's pro forma concerning the size of his estate, the reference to a mortgage and the reference to the ownership of other property. I accept the evidence of Ms Gray that these errors were more to do with her than her client and in my opinion they do not indicate a lack of capacity.

Proposed order

78. In the circumstances I propose to propound in favour of the will.

Final remarks

I am grateful to counsel for their very able assistance in this matter.

HHJ Saffman

Note 1   In fact, as will be seen in para 61 below, Dr Cookson was more convinced of testamentary capacity of 4 June then he was on 28 May    [Back]