Burns v Burns [2016] EWCA Civ 37

WTLR Issue: June 2016 #160


2. LAURA OLIVIA GRAMAUSKAS (appointed by order to represent in these proceedings the estate of the late ANTHONY BURNS, deceased)




On 21 May 2010 the deceased died, aged 89, leaving two sons: the appellant and the respondent. The respondent claimed pronouncement in solemn form of an alleged will of the deceased dated 26 July 2005, which divided the deceased’s estate equally between the appellant and the respondent. The appellant challenged the validity of the 2005 will on the basis that the deceased lacked testamentary capacity at the date of its purported execution and on the basis that the deceased did not know and approve of the contents of the same.

In September 2003 social services began to assist with the deceased’s care. In the same month the deceased visited the offices of her former solicitor in order to retrieve documents, including an earlier will executed in 2003. On 15 October 2003 the deceased scored 19 out of 30 on a Mini Mental State Examination (MMSE). She was unable to state the year, the date, the season, the day or the month. She could not write a sentence and she could not recall three common objects mentioned to her by the nurse a few minutes earlier in the examination.

On 6 November 2004 the deceased wrote a short letter to her current solicitor giving instructions for the preparation of a will leaving half of her estate to the appellant and half to the respondent. The solicitor responded on 7 December 2004 enclosing a draft will and the deceased replied on 14 December 2014, asking the solicitor to proceed with the will.

On 22 May 2005 the deceased undertook a further MMSE, in which she scored 20 out of 30, since she was now able to recall the current month. On 26 July 2005 the respondent took the deceased to see her solicitor. The solicitor met with the deceased in the absence of the respondent. The solicitor had a general discussion with the deceased during which they spoke about the weather and how the deceased was. He read the will to the deceased and the 2005 will was duly executed. In 2011 the solicitor recorded that the deceased had been physically somewhat frail but that she was in good mental health and fully understood the nature of the will and its contents.

At trial evidence was given by an independent consultant geriatrician who found that the results of the MMSE tests provided good evidence that the deceased was poorly orientated as to where she was in time and place, had poor recall (short term memory) and that she had problems with analysis and simple task planning.

The District Judge pronounced in favour of the 2005 will. He found that the deceased knew that the document that she was signing on 26 July 2005 was the will that she requested in the latter part of 2004. As at 26 July 2005 she had the requisite testamentary capacity and also knew and approved of the contents of the simple yet important document to her.

The appellant appealed against the District Judge’s decision, arguing that the District Judge failed to have proper regard to the burden of proof of the validity of the 2005 will, which should have been on the respondent as the propounding party. Further, it was argued that there was insufficient evidence to discharge that burden.

Held (dismissing the appeal):

  1. 1) The District Judge had adequately identified the salient criteria for determination of testamentary capacity. He was well aware of the ‘golden rule’. It has to be recalled, however, that the ‘rule’ is a prudent guide for solicitors dealing with a will for an aged testator who has been seriously ill. The rule does not constitute a rule of law but provides guidance as a means to avoiding disputes.
  2. 2) On the facts of the case the burden of proving capacity rested on the respondent. While capacity is initially presumed, the raising of a real issue as to capacity will require the proponent of the disputed document to prove capacity. In the present case the evidence clearly raised doubts as to the deceased’s testamentary capacity in late 2004 and in July 2005.
  3. 3) The evidence entitled the District Judge to make the findings that he did. The events of November and December 2004 amounted to sufficient evidence to meet the burden of proof on the respondent that the deceased genuinely intended in this period to revoke the 2003 will and to make a will dividing her estate between her two sons. Such a disposition would clearly have been a rational one, and a simple one to comprehend and to state. The deceased’s actions and the unchallenged letters that she wrote and/or to which she put her signature in those months were sufficient material entitling the District Judge to reach the conclusion he did as to the deceased’s capacity in this period.
  4. 4) The District Judge was also entitled to conclude that the deceased had capacity in July 2005 to understand that she was executing the simple will for which she had previously given instructions and the draft of which she had expressly approved some months earlier.
  5. 5) The circumstances called for affirmative proof of the deceased’s knowledge and approval of the 2005 will. The deceased was elderly and had displayed some traits of mental impairment. The collection of documents from the former solicitors was in the company of the respondent and the respondent was the beneficiary of the change in disposition effected by the 2005 will. The letters giving instructions for the preparation of the 2005 will were sketchy and in fragile writing; one was misdated. The respondent accompanied the deceased to the appointment for the execution of the 2005 will. These were clearly circumstances giving rise to some suspicion calling for affirmative proof of knowledge and approval of the 2005 will.
  6. 6) However, while the burden or proof of knowledge and approval was on the respondent as the propounder of the 2005 will, it was not necessary for the District Judge to adopt a two stage approach; of identifying ‘suspicion’ and the burden of dispelling it. He was entitled to proceed directly to whether the deceased did know and approve of the contents of the 2005 will. The evidence was that the deceased was seen alone by her solicitor who, although not searching in his enquiries, read the simple will over to her. He was an experienced solicitor in this type of business and clearly reached the view that the deceased understood and approved the contents.

McCOMBE LJ: Introduction [1] This is an appeal in probate proceedings in respect of the estate of the late Eva Burns (the deceased) who died aged 89 on 21 May 2010. The parties to the proceedings are her two sons, Anthony Burns (AB) and Colin Leslie Burns (CB), born to her and her late husband, …
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Counsel Details

James Fryer-Spedding (9 St John Street, Manchester M3 4DN, tel 0161 955 9000) instructed by Mills & Reeve LLP (1 York Street, Manchester M14AD, tel 0161 235 5420) for the appellant.

Andrew Clark (9 St John Street, Manchester M3 4DN, tel 0161 955 90000) instructed by Canter Levin & Berg (1 Temple Square, 24 Dale Street, Liverpool L2 5RL, tel 0151 239 1000, e-mail info@canter-law.co.uk) for the respondent.