Mrs Constance Rose Simon died on 15 January 2009 at the age of 91. She was the widow of Mr R W Simon, with whom she had four children: namely Jonathan, Robert, Hilary and David. David predeceased his mother on 1 November 2004.
Mrs Simon’s estate consisted of her house in St John’s Wood, London (valued at £1.75m), a flat in Westcliffe on Sea (valued at £262,500), savings and shares (worth £55,000), some land in Malta and 16 shares in R W Simon Ltd (the company).
By Mrs Simon’s will dated 23 March 1978, she had left her entire estate to her four children in equal shares. By Mrs Simon’s will dated 15 June 1992, she had left £20,000 to Mary Murray, her longstanding housekeeper and assistant, and thereafter divided her residuary estate between her four children in equal shares (subject only to a deduction from David’s share to account for money borrowed for his benefit).
By Mrs Simon’s will dated 1 August 1994, she had left £20,000 to Mary Murray, bequeathed her shares in the company and the Westcliffe flat to Robert, and thereafter divided her residuary estate between her four children in equal shares. The provisions of the 1994 will were repeated in a further will dated 27 June 1996 (the 1996 will), in which Mrs Simon altered her choice of personal representatives. A codicil to the 1996 will was executed on 27 January 1999 replacing the residuary gift to Jonathan with a discretionary trust for Jonathan’s benefit (owing to financial difficulty Jonathan was facing at the time). The reason for favouring Robert in the 1994 and 1996 wills was set out in a letter produced by Mrs Simon in March 1993. This referred to Robert’s role in the past success of the company and to lesser lifetime provision having been made for Robert compared to his siblings.
The final testamentary script produced was a will dated 18 December 2005 (the 2005 will), which had been produced and executed as a home-drawn will by Mrs Simon at her 88th birthday party, in the presence of both Hilary and Jonathan but not Robert. By the 2005 will, Mrs Simon left £20,000 to Mary Murray and her entire residuary estate thereafter in equal shares between her three surviving children and the family trust established for the benefit of David’s family.
It was common ground between the parties’ medical experts that by 18 December 2005 Mrs Simon was suffering from mild to moderate dementia of such a degree as to put her testamentary capacity into doubt. In the circumstances, Robert challenged the force and validity of the 2005 will on the grounds of lack of capacity and want of knowledge and approval.
Held (upholding the force and validity of the 2005 will):
- (1) Mrs Simon had capacity to execute the 2005 will.
- (a) It was common ground between the parties’ respective experts that Mrs Simon satisfied all of the elements of testamentary capacity identified in Sharp v Adam , save for limb (c): the ability to comprehend and appreciate the claims to which she ought to give effect. Accordingly, the judge found (a) that Mrs Simon understood the nature and effect of the 2005 will, which made very simple provision and (b) that Mrs Simon understood that her property included the properties in St John’s Wood and Westcliffe and shares in the company (although she was slightly mistaken as to the number of shares) and that she owned other money (although she did not remember the details of her holdings and investments), and that this was sufficient in a case where she was leaving her estate to her children in equal shares.
- (b) Robert’s contention, that it was not enough for Mrs Simon to be able to understand that she was revoking a previous will and that she had to be able to understand the details of what was being revoked, was rejected by the judge for the following reasons:
- (i) The law upholds the right of elderly people to leave their property as they chose, even if their mental faculties have declined considerably.
- (ii) There may be cases in which limb (c) of Sharp can only be satisfied if the testator is capable of, and in some cases actually does, understand the different provisions of an earlier will. However, this is a matter of degree and in this case the previous will was made nine years earlier, the difference in their provision was slight and the beneficiaries in both cases were the obvious ones. It would have been different had the testatrix been unable to remember the identity of previous beneficiaries whom she would still be likely to wish to benefit if reminded of them.
- (iii) In any event, Mrs Simon was capable of understanding the provisions of the 1996 will and could have asked to examine its contents but chose not to. She understood that the 1996 will benefited Robert in some way above and beyond her other children and she desired to treat her four children (or in David’s case his family) equally.
- (2) Mrs Simon knew and approved the 2005 will, the terms of which she had been conscientiously taken through in the absence of Jonathan and Hilary.