Elliott v Simmonds & anr [2016] EWHC 732 (Ch)

WTLR Issue: October 2016 #163






Kenneth William Jordan (Mr Jordan) died on 4 August 2012 leaving a wife (from whom he was estranged) and two adult children. The claimant was Mr Jordan’s partner during the last years of his life and the first defendant was his daughter from a relationship that predated his marriage. He had previously made a will giving pecuniary legacies to the first defendant and two of his sisters with the residuary estate passing to the claimant. Subsequently, in January 2012, Mr Jordan gave instructions to Mr Mumford (who was his brother-in-law), a solicitor with the firm Melia Mumford, to make a new will. For this purpose, Mr Mumford prepared a brief handwritten attendance note as an aide memoire but did not seek to have the client medically assessed as to his testamentary capacity. He did not consider this necessary as he had known the client for many years and had no doubt as to his mental capacity. Mr Mumford drew up the will in accordance with the instructions which he had taken, appointing the second defendant (another solicitor of the firm Melia Mumford) as executor and giving the entire estate to the claimant. He then attended on Mr Jordan at Sunrise Nursing Home in Bagshot and witnessed his execution of the will on 1 February 2012 (2012 will).

After the death of Mr Jordan, the first defendant instructed solicitors who intimated a challenge to the 2012 will on the basis that it was void for lack of capacity, want of knowledge and approval and/or undue influence by the claimant. The first defendant entered a caveat on 11 April 2013 but then did nothing either to commence proceedings or to remove the caveat. After a lengthy lapse of time, proceedings were brought, initially by the second defendant but later taken over by the claimant, against the first defendant seeking (i) a decree of probate in solemn form and (ii) an order that the caveat should cease to have effect. In her defence dated 18 November 2014, the first defendant gave notice pursuant to CPR 57.7(5) that she did not raise any positive case but insisted on the 2012 will being proved in solemn form and, for that purpose, would want to cross-examine the attesting witnesses. This enabled questions to be asked as to due execution, testamentary capacity or knowledge and approval but not as to whether undue influence was exercised. By an order dated 23 June 2015 the first defendant was given permission to withdraw her notice and to amend her defence to advance a positive case limited to issues of testamentary capacity and want of knowledge and approval. However, she did not avail herself of this opportunity.

Held (pronouncing for the force and validity of the 2012 will in solemn form and ordering that the caveat should cease to have effect)

As to due execution of the 2012 will, there was a presumption that it was formally valid because it was regular on its face, signed by the testator and by the attesting witnesses. Mr Mumford had given evidence on the circumstances of its execution and there was no evidence, much less ‘strongest’ or even ‘strong’ evidence, that it had not been duly executed. As to testamentary capacity, while it was regrettable that Mr Mumford was unable in cross-examination to give a summary of the golden rule that, where a solicitor is instructed to prepare a will for an aged testator or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator and to make a contemporaneous record of his examination and findings, this was not a rule of law but a rule of good practice and Mr Mumford, who was familiar with the common law test for testamentary capacity derived from Banks v Goodfellow, was in a better position than most by reason of his longstanding friendship and family member of Mr Jordan, to judge whether there had been signs of deterioration in his mental acuity. At least three other solicitors had interacted with him during this time and none of them had noted any signs of mental deterioration or raised any concerns about his mental capacity or powers of understanding or decision-making. On the balance of probabilities, therefore, Mr Jordan had the testamentary capacity to make the 2012 will. As regards his knowledge and approval of its contents, there was a further presumption that this was satisfied where a will had been duly executed by a testator with the requisite capacity. That prima facie case was strengthened where the will had been prepared by an independent and experienced solicitor. Moreover, there were no suspicious circumstances raising a doubt as to whether its contents represented the wishes and intentions of the testator. Accordingly, having concluded that the 2012 will was duly executed and that Mr Jordan had the necessary testamentary capacity, the presumption arose that he knew and approved of the contents of the 2012 will.

JUDGMENT EDWARD MURRAY [1] This is a claim by Ms Bernice Elliott, the partner during the last years of his life of Mr Kenneth William Jordan, who died on 4 August 2012 and left a will dated 1 February 2012 (the 2012 will) under which the claimant is the sole beneficiary. The claimant seeks (i) …
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Counsel Details

Mr Oliver Hilton (Radcliffe Chambers, 11 New Square, Lincoln’s Inn, London WC2A 3QB, tel 020 7831 0081, e-mail clerks@radcliffechambers.com), instructed by Gardner Leader (White Hart House Market Place, Newbury RG14 5BA, tel 01635 508080, e-mail mail@gardner-leader.co.uk) for the claimant.

Mr James Weale (Serle Court, 6 New Square, Lincoln’s Inn, London WC2A 3QS, tel 020 7242 6105, e-mail clerks@serlecourt.co.uk) instructed by Woodford Stauffer (Church Path House, 63A Lynchford Road, Farnborough, Hampshire GU14 6EJ, tel 01252 375376, e-mail website@woodfordstauffer.co.uk) for the first defendant.

Ms Zoe Barton (Selborne Chambers, 10 Essex Street, London WC2R 3AA, tel 020 7420 9500, e-mail clerks@selbornechambers.co.uk) instructed by Melia Mumford (11-13 Sturt Road, Frimley Green, Camberley GU16 6HT, tel 01252 836 554) for the second defendant.