Attesting solicitor’s testimony not sufficient to prove capacity

Ashkettle v Gwinnett 2013 EWHC 2125 (Ch)

An elderly testator (‘T’) gave instructions in person to RS, an experienced solicitor, on two occasions in November 1998 and January 1999 for a new Will disinheriting her two sons in favour of her daughter, the Defendant. Both RS and one of the witnesses to the Will gave evidence that they had no concerns as to T’s mental state so as to consider a medical opinion necessary. However, contemporaneous medical evidence indicated that T’s mental health had declined steadily since 1995. T’s two sons challenged the 1999 will on four bases: (i) that it was not formally valid; (ii) that T lacked capacity; (iii) that T lacked knowledge and approval of its contents; and (iv) that T was unduly influenced by the Defendant.

Following a trial lasting five days in the chancery division Christopher Pymont QC, sitting as a deputy High Court Judge found that the Will was formally valid. However, bearing in mind the guidance from the Court of Appeal in Hawes v Burgess [2013] EWCA Civ 94 that it would require “the clearest evidence of lack of capacity” to go behind the judgment of an experienced solicitor, he nevertheless found on the basis of the medical and live witness evidence that T lacked the requisite capacity and further lacked the requisite knowledge and approval. No finding was made as to undue influence.

Aidan Briggs (2009) appeared for the Defendant, instructed by Wellers LLP.

Comment: A salutary lesson for probate practitioners. Every solicitor is aware of the ‘Golden Rule’ that when confronted with an infirm testator who presents any doubt as to their capacity, a medical opinion must be sought. However, it is often forgotten that the rule also covers clients who are merely ‘aged’ or have suffered a serious illness – Re Simpson (1977) 27 NLJ 487. Where any of these are present, a medical opinion must be insisted upon, no matter how tactless or uncomfortable that requirement may be. Failure to do so can have catastrophic consequences; combined costs in this case exceeded £200,000.

A lunchtime seminar on this case was delivered at the offices of Withers LLP on 20 September 2013. The notes may be found here.