In Hawes v Burgess [2013] EWCA Civ 74, the Court of Appeal upheld the trial judge’s finding that the deceased’s last will (which cut out her son) was invalid and that her earlier will (leaving everything equally to her three children) therefore remained unrevoked.

It is a sad story made sadder by the fact that the entire estate has apparently been lost in costs. As Lord Justice Mummery put it: ‘The cost of contesting the 2007 will is a calamity for this family in every way. By the standards of a present day probate case the deceased’s estate is modest, less than £200,000… A six-day trial with 26 witnesses does not come cheap. Now there is this appeal. It may be recalled that the foggy family law suit in Jarndyce v Jarndyce dragged on before the lord chancellor for generations until nothing was left for the parties to take. The Civil Procedure Rules and the efforts of legal advisers have not dissuaded these parties from following a course leading to the dissipation of the whole of the deceased’s estate in costs and legal fees.’

The deceased died in May 2009, aged 80. She had three children: the appellant, Julia, who sought to uphold the 2007 will; and the respondents, Libby and Peter, who successfully challenged its validity. The deceased suffered from failing health and the trial judge accepted the evidence of the medical expert that in the last years of her life she suffered from dementia of modest severity.

Peter and the deceased were very close. He organised her finances and in 2006 bought a bungalow for her to live in. It was to remain in his name, but subject to a lease to his mother to give her security. They agreed that she would pay £21,000 towards the cost of a new kitchen and bathroom which she wanted installed. Julia and Peter fell out for a number of reasons, mainly connected with the purchase of the bungalow and related arrangements affecting their mother.

In December 2006, Julia arranged for her mother to visit a local law firm about selling her existing house and making a new will. The deceased had told Julia that she wished to change her will to include directions for her burial and arrangements for her funeral service.

She was seen by a partner who had never met her before and had no independent recollection of the meetings to take instructions, or for the execution of the will. He was ‘an experienced solicitor in will matters, having been responsible for the preparation of about 50 wills a year’. Although his typed attendance note stated that the deceased was ‘entirely compos mentis’ and that he had no hesitation in taking instructions from her, he did not carry out any formal assessment of her mental capacity and, indeed, had little opportunity to do so. He had allowed Julia to remain in the room with the deceased at both meetings and received information from Julia during the meetings.

The solicitor agreed that he could not judge her capacity as well with someone else in the room. The attendance note referred to the deceased giving at least £40,000 to Peter in return for living in the bungalow and for improvements to that property. The judge found that Julia had supplied that incorrect figure. The will contained a clause stating that limited provision was being made for Peter because of ‘the substantial lifetime provision I have made or will shortly be making in his favour’.

Peter remained close to his mother, who discussed matters with him. Although she did not tell him about the 2007 will or how he was cut out from residue, she did tell him about writing cheques for £1,000 as presents to each of her daughters in May 2007. Peter was wealthier than his two sisters.

The trial judge made the following findings: (1) Julia was ‘the controlling force’ in the giving of the instructions for the will. She was present in the room and gave the solicitor inaccurate information; (2) it was difficult for the solicitor to assess the deceased’s testamentary capacity, as he did not have the medical qualifications or the opportunity to make an independent formal assessment. He did not send a draft of the will to the deceased for her to read before she attended his office to execute it; and (3) there were mistakes in the 2007 will (about Peter’s middle name, wrong numbering of clause 22 and substantive incorrectness), none of which were picked up by the deceased at execution.

The trial judge accepted the expert’s evidence that, if the deceased omitted Peter from the residuary gift on erroneous grounds, it was more likely than not as a result of her vascular dementia. That meant the deceased lacked testamentary capacity since she had failed to comprehend and appreciate the claims to which she ought to give effect, as required by limb 3 of the test in Banks v Goodfellow. She also found that the deceased had not known and approved the contents of the will.

Mummery LJ said that he had some difficulty with the decision on capacity: it was ‘a very strong thing for the judge to find that the deceased was not mentally capable of making the 2007 will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational’. He was also concerned that the medical expert had never met or examined the deceased. He had doubts as to whether the judge’s findings were justified, but he was satisfied that the will was invalid for want of knowledge and approval.

The circumstances in which the will was made justified the court insisting on positive proof of knowledge and approval:The burden of proof was not discharged.

  • Peter and his mother remained close until her death, yet she cut him out of her will and never told him about it, even though she did tell him about making gifts to her daughters.
  • Although the deceased had told Julia that she wanted to revise her will with regard to burial and funeral arrangements, no mention was made of cutting Peter out of the residuary gift.
  • Julia was instrumental in making the arrangements to see the solicitor and in relation to instructions given for the contents of the will; she remained in the room throughout the discussions.
  • The new will was made without the knowledge of her siblings at a time when there was a rift between Peter and Julia.
  • The solicitor did not send the deceased a draft to check before attending at the office to execute it.

Lesley King, College of Law