Validity Claims and Wills

Pauline Lyons discusses a case that outlines the importance of following procedure when will drafting, and her first-hand account of the events which lead to a victory for her client, Gavin Boast.

'When scrutinised and tested by the court in the course of Gavin Boast’s validity claim, the evidence showed that the will could not be upheld within the realms of the Banks v Goodfellow test and was accordingly set aside'

The recent High Court decision Boast v Ballardi [2022] was handed down by Master Clark following her in-depth consideration of the claimant’s evidence to set aside a will of his great uncle.

This article discusses the stark reminders in this judgment for practitioners taking instructions for wills from clients where there appears to be questionable testamentary capacity; also, the lessons to be learned by contested probate solicitors on the conduct of such validity claims.

Outline of the Case

The claimant, Gavin Boast, was the great nephew of the late Edward Henry Charles Smith (Ted) who died in January 2016 at age 97. The testator had made a will in March 2006 in which Gavin was the executor and sole beneficiary; a later will was made in June 2013 which significantly reduced Gavin’s gift from the estate.

It was the claimant’s case that Ted lacked testamentary capacity at the time the June 2013 will was made.

The nine defendants were nieces, nephews and a friend who stood to inherit under a partial intestacy of the 2013 will because two of the beneficiaries, the testators’ last two sisters, predeceased the testator. Ted had never married and had no children.

Ted and Gavin were very close. On the same day as executing the 2006 will, Ted executed an enduring power of attorney (EPA) in favour of Gavin. Up to 2011 Ted had lived alone, but after a period of illness and hospitalisation Ted moved in with his nephew (Gavin’s father) and their partner at his nephew’s industrial park. He started to become increasingly confused and suffer with paranoid delusions.

Applicable Test

The court applied the applicable test to testamentary capacity set out in Banks v Goodfellow [1869] at p565:

'It is essential to the exercise of such a power that a testator (a) shall understand the nature of the act and its effect; (b) shall understand the extent of the property of which he is disposing; (c) shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object; (d) that no disorder of 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'

The Wills

Both wills were drafted by Mr Margarson, an experienced solicitor at Cross Ram & Co Solicitors who had known Ted for many years. The 2006 will made Gavin the executor and main beneficiary of his great uncle’s estate; the 2013 will gave Gavin a minor legacy of ￡15,000.

Medical Evidence

In the years between the two wills when Ted was between the ages of 87 and 94 years, his mental health started to decline.

The evidence from a Dr Ashford, an older people’s consultant psychiatrist who met with Ted to assess him on 5 March 2012, showed Ted to ‘normally appear pretty good and mentally to be quite sharp’ and also noted that Ted was ‘an intelligent and well-read man’, but diagnosed him with a dementia illness complicated by some psychotic thinking.

Dr Ashford reported that Ted had become acutely confused in Ipswich Hospital and had expressed various paranoid delusions. Over the week before Dr Ashford’s assessment he had become less compliant with care. While staying with his family, his persecutory delusions focused on his nephew’s partner, as he thought that she was a professional hypnotist who put people under her power. He complained about carers stripping off in front of him and saying that he was not going to put up with that kind of behaviour. He had also expressed a lot of other rather odd or eccentric ideas about his own history; he talked about being an expert hypnotist himself and how he used this skill to treat victims of shell shock during the war.

On 9 March 2012 the deceased telephoned his solicitor Mr Margarson to say that he wanted to cancel his EPA and to make a new will benefiting his sisters. Mr Margarson had been informed by Gavin that Ted had been diagnosed with dementia and therefore he wrote to Dr Ashford for advice.

On 15 May 2012, Dr Ashford reviewed Ted again and noted that Ted’s capacity to make decisions around his finances was already significantly impaired and that the EPA should probably be registered with the Court of Protection. He showed considerable concerns about testamentary capacity; Dr Ashford did not believe Ted to have testamentary capacity at that time and it was extremely unlikely that he would regain testamentary capacity. Mr Margarson advised Gavin that he was obliged to register the EPA if Ted was becoming mentally incapable.

Some months later in August 2012, Ted wrote again to Mr Margarson. The first part of the letter was rational, talking about wanting to leave his sisters a legacy of ￡8,000 in his will, however, the letter went on to say ‘my personal files have been removed from my care, I do not appear to be a free person and I don’t know why?’.

In October 2012 Ted’s GP, Dr Morton, sent Ted to the memory clinic at the mental health trust, which prescribed a trial of Donepezil, a medication for the treatment of dementia.

No further steps were taken by Mr Margarson until April 2013, when Ted wrote again to him asking to make a new will, as the current will did not effect his wishes. He said:

‘I wish now, after my adverse experience in this Hell Hole, to change my Will and make my 2 surviving sisters and their prodgny (sic) the sole recipients...’

Mr Margarson replied suggesting that he be assessed by his doctor and asking him whether he agreed. Ted said he did not have a specific doctor and asked if Mr Margarson could provide a doctor. He said the following:

‘I’m ok mentally, it is physical, I am a bit doddery...

There is no doubt that this Industrial Park is a shambles. My nephew has given over the whole enterprise to an Asian immigrant, Ms Selathemice, who runs everything and everybody, by hypnotism (mass), she is extremely wealthy and I fear will disappear one day with all the assets, including mine if I do not remove them from her domain... I am anxious to avoid this in my case, but my relatives are blind and deaf in this case, but I am not concerned with their fate, I wish my 2 sisters to have what I legally own.’

Again, on 29 May 2013, Ted wrote again to Mr Margarson:

‘My most pressing problem is to get my present Will cancelled so that I can get on with my replacement, I have hired legal advice and I am advised that my relations are in serious difficulties with debt collectors and banks and various energy, oil and gas suppliers. My relations have passed ownership to an Asian Female in a civil partnership agreement who is a very big spender in bulk purchasing...’

On 30 May 2013, Mr Margarson replied telling him that a GP would visit on 7 June 2013 and continued:

‘... I feel it essential that we should have a medical opinion that you are competent to change your Will. Please discuss with your doctor when you see him.’

He concluded by enclosing a ‘fresh will’.

On 14 June 2013, Mr Margarson went to visit Ted at home. The doctor had seen him earlier in the day. Ted had already signed the draft will sent to him, with three attesting witnesses also having signed it.

At the meeting, Mr Margarson pointed out that he had previously left everything to Gavin, but the new will left Gavin a legacy. Ted felt that this was appropriate because his two sisters were in difficulties financially

Evidence from the Will File

Mr Margarson, having good knowledge of Ted’s failing mental health at the time, had initially put in place all of the correct decisions surrounding the management of Ted’s repeated request to make a fresh will in light of Dr Ashford’s assessments in March and May 2012. It would appear that Mr Margarson was mindful of his duty of care and his obligations in accordance with the Golden Rule to ensure that he had arranged for a doctor to be in attendance to assist and ensure that Ted had the required testamentary capacity to give instructions on the new will. Mr Margarson had followed the correct protocols and contacted the GP to visit with him on the day he attended Ted’s house to take instructions. He had taken the correct steps and he had also attempted to fulfil his client’s wishes as far as he was able. While some would argue that sending out a draft will to a client when he had already received medical evidence from Dr Ashford stating Ted did not have capacity was in itself a risky move, it may be that Mr Margarson’s history and knowledge of this client had clouded his judgement.

The Mistakes

On the day of the visit to Ted’s house to take instructions, Mr Margarson spent half an hour with Ted and, upon arrival, found that Ted had already signed the draft will, with the GP having visited earlier in the day. This is an occurrence that often happens when a draft will is sent out without the draft watermark shown through each of the pages or any other marking on the document itself to show that it is a draft. Often the testator overlooks the instructions within the covering letter from the solicitor or will writer. The testator, whether in haste or mistake, takes the steps to sign and have the draft document witnessed as if it is the final document. Ted had the document witnessed by three different people before Mr Margarson arrived.

It was at this point that Mr Margarson appears to have accepted the circumstances as he found them on that day. One can only assume that in the short visit and the brief conversation with Ted he may have been clear and lucid; therefore Mr Margarson failed to take up the opportunity to reassess and rectify his client’s actions and explain that it was not the final document and that the doctor should have been present at the meeting to assist in establishing whether Ted did have the required testamentary capacity. The will was finalised without having followed the Golden Rule.

It would appear that Mr Margarson, upon reflection, did attempt to follow up with a letter to Ted in the following days after the visit, to clarify as to whether the will had been witnessed correctly, as he could not be sure that the three witnesses had signed at the same time that Ted had signed. He did make the suggestion that the will should be re- signed. However, he did not follow this up and therefore the signed document stood as Ted’s final will. When scrutinised and tested by the court in the course of Gavin’s validity claim, the evidence showed that the will could not be upheld within the realms of the Banks v Goodfellow test and was accordingly set aside.

Conduct of the Proceedings

The case also highlighted several procedural checkpoints in the conduct of the contested proceedings, which probate practitioners should ensure are within their checklists to prevent hiccups:

1. Practitioners should not assume that under the Administration of Justice Act 1985 a defendant who fails to respond to a claim can be taken to have consented to the claim. The court in this case directed that the matter should be tried on written evidence.
2. To ensure valid service of a defendant in Australia, where one of the defendants was situated, permission to file out of jurisdiction should be obtained from the court. Australia does not permit service by post unless it is by registered post and therefore it should always be prudent to double-check the appropriate service provisions for the country in which you hope to serve documents on parties.
3. Electronic Working (CPR PD 510), introduced in November 2015, provided that the court would no longer provide hard copies of the claim form once issued, as it had done previously, and instead the court would electronically seal the form and send via an electronic account from where sealed copies can be printed. Therefore authorities to the effect that valid service can only be effected by service of a sealed hard copy provided by the court fall away.

To conclude, the judgment sits as a reminder to all practitioners of the importance of continued vigilance and adherence to the established procedures, within their professional obligations, to follow up on concerns raised about capacity, and which provide the solid framework within which our practice should sit, when acting for clients such as Ted and Gavin.

Talk to the expert, Pauline Lyons, today for representation and/or advice to contest a will, defend a claim, make an application under the Inheritance Act or any matters of a similar nature. Speak to Pauline today on 01234 481 243 or email her at [email protected]

https://www.lawjournals.co.uk/2022/08/16/trusts-estates-law-and-tax-journal/testamentary-capacity-stick-rules/