Analysis
The deceased died on 16 September 2021 leaving what purported to be a will dated 4 July 2021. It was signed by her and witnessed by a neighbour and a chartered accountant. It appointed the defendant, her daughter, as executrix and beneficiary of her entire estate.
The deceased’s other surviving children (the first claimant and the second claimant) and the children of a deceased child of the deceased (Vicky) (the third to sixth claimants) challenged the will on the grounds of lack of testamentary capacity, lack of knowledge and approval, and undue influence by the defendant over the deceased.
At the time of the will, the deceased had been 82 years old. Following a fall in 2004, she required support, and the first claimant and Vicky helped with shopping and driving.
From about 2018, the deceased’s medical issues increased. In February 2020, she was diagnosed with mixed dementia.
In late 2020, Vicky was diagnosed with a terminal illness. She died in February 2021. The judge accepted the evidence of the deceased’s brother, Edwin, that shortly afterwards the deceased phoned him and asked him to help her write a will. At a later visit, she told Edwin that she wanted to leave her estate equally between her four daughters (with Vicky’s share to go to her four children). This was in keeping with what other family members said the deceased had indicated over time.
Shortly afterwards, the defendant went to stay with the deceased and remained in her home until her death (and afterwards). The judge accepted Edwin’s evidence that a month after Vicky’s funeral, the defendant told him that the first claimant had taken £3,000 of the deceased’s money and that Vicky had taken £10,000. The defendant had made similar allegations to Edwin’s daughter and also alleged to her that Vicky had taken the deceased’s credit cards. The judge however held that it was unlikely that the first claimant or Vicky would have taken money without the deceased’s knowledge or consent.
The judge also accepted Edwin’s evidence that at around this time he arranged for a local solicitor to visit the deceased. The solicitor told Edwin that a capacity assessment from the deceased’s GP was needed to proceed. A Dr Drury visited her and concluded in a letter dated 15 April 2021 that she was still able to make and communicate decisions about her will. The solicitor did not, however, proceed. The judge accepted Edwin’s evidence that the deceased told him that ‘they’ had cancelled the solicitor’s appointment and that the defendant had found a solicitor whom she knew. Edwin’s evidence was that, when he was discussing the will with the deceased, the defendant came into the room shouting at him not to tell the deceased what to do.
The first and second claimants’ evidence was that around this time, it became awkward to visit the deceased, who would look to the defendant for approval before saying anything. They said that the defendant controlled what the deceased was eating. The second claimant said that the defendant began arguments and shouted in front of the deceased, and that when the second claimant left her two grandsons at the deceased’s home, she received texts from them asking her to return as they were scared of the defendant. The third and sixth claimants’ evidence was that it became more difficult to speak to the deceased on the telephone, with the defendant saying that the deceased was sleeping or tired, and that when they spoke the deceased was monosyllabic. The sixth claimant’s evidence was that, on an occasion when the deceased answered the phone, she heard her asking the defendant ‘who was it and whether she should answer’. The fifth claimant’s evidence was that the deceased had previously indicated that she would give him some money to help him as he went to work in Germany, but in his last telephone conversation with her she said she did not want to see him because it was not a good time (which she had never said before) and did not explain why. The first claimant’s children also gave evidence that they were made to feel unwelcome at the house, that the defendant had not responded to a text message asking why she was stopping them seeing the deceased, and that when they visited one of them heard the defendant telling the deceased that they had all fallen out with the defendant and were visiting another relative instead. Edwin’s daughter also said she heard the defendant telling the deceased that the family were visiting other relatives and that her sisters had taken money from the deceased. She also said that the deceased had gradually stopped speaking for herself, letting the defendant speak instead, and appeared increasingly stressed, and that the defendant noted things in a notebook and said this was to remind the deceased of happenings later on when she could write them down.
The defendant accepted that the deceased’s contact with other family members tailed off and that she had discouraged contact. She accepted that she took notes and said this was for the deceased’s diary, though no diary was in evidence other than some handwritten notes from the deceased. The defendant said that the deceased had said that the reason she wanted less contact was that she had loaned the first claimant and Vicky a lot of money and had not had it back.
Notes written by the deceased indicated that she had chosen to disinherit the first and second claimants because the first claimant had made ‘so much trouble’ and not repaid loans, the first claimant had already received more than a share of the deceased’s home, and also because the deceased’s husband had indicated that the defendant should inherit the house. She also wrote that the second claimant had a house and family in London, that the first claimant had a house and family in Swansea, that the defendant only had a small flat in London with no family and that the defendant had given the deceased more than the defendant had had from her. In fact neither the first nor second claimant owned their own homes, and there was no basis for the beliefs that the first claimant had already received more than a share in the deceased’s home or that the defendant had given the deceased more than the defendant had had from her. The judge held that the allegations of financial misconduct made by the defendant to the deceased had not been true.
An accountant gave evidence that he was initially asked by the deceased to look at bank statements due to concerns that Vicky and the first claimant and the first claimant’s daughter were controlling her bank statements. He said that the deceased told him that she was under pressure from Edwin to sign a will but did not want to sign the will he was recommending. He said that the deceased told him that she wanted a will making the defendant her sole executrix and beneficiary. He said that he had typed out the will and some letters on her instructions. He said he was also present on 15 July 2021 when a social worker phoned and assessed the deceased’s capacity over the phone.
Following the making of the will, the first claimant’s son tried to visit the deceased. The defendant called the police and told them that doctors had assessed the deceased that week to confirm capacity and that she had legally signed documents in the presence of a solicitor. This misled the officer to conclude that the deceased was capable of making her own decisions. Shortly afterwards, the first claimant’s children reported their concerns to social workers. A social worker visited and found that, despite the diagnosis of dementia, the deceased appeared fit and well and engaged in conversation. The social worker’s note stated that there were no concerns about the deceased’s wellbeing and that she was currently capable of making her own decisions.
On 29 July 2021, a social worker visited to carry out a sensory support assessment. The defendant rang the GP surgery saying that the deceased was worried that the social worker might not be impartial and believed that money had been stolen by ‘distant family too’.
On 23 August the deceased was admitted to hospital. The hospital clinician spoke to the social worker on 2 September 2021. The social worker said that the defendant had put up barriers to her assessing the deceased’s capacity after the defendant had requested a power of attorney in relation to the deceased’s finances. The defendant had also told the doctor that the social worker was in a relationship with Edwin which was untrue. The defendant denied saying this but accepted that she had relayed the deceased’s concerns that the two were ‘good friends’.
Also on 2 September 2021, a Dr James reviewed the deceased and agreed that she lacked capacity (in the context of her care at hospital). She died on 16 September 2021.
The claimants had instructed a consultant old age psychiatrist, Dr Series, to carry out a post-death capacity assessment of the deceased based on her medical records, social services records, the deceased’s note of 17 May 2021, a copy of her will, Dr Drury’s letter of April 2021 and other documents. The report concluded that the medical evidence of cognitive impairment due to vascular dementia was sufficient to raise a doubt about testamentary capacity which was not adequately dispelled by Dr Drury’s letter (which did not set out the test of capacity, the questions asked or the answers given).
Held:
Capacity
The test for testamentary capacity remains that set out in Banks v Goodfellow [1870], requiring capacity to understand the nature of the act and its effects, the extent of the property being disposed of, and the claims to which the testator ought to give effect, and also requiring that no disorder of the mind shall poison the testator’s affections, pervert their sense of right, or prevent the exercise of their natural faculties (James v James [2018] and Clitheroe v Bond [2021] referred to). The issue is capacity to understand rather than actual understanding (Simon v Byford [2014] and Hoff v Atherton [2004] referred to). The golden rule, that a solicitor instructed to prepare a will for an aged or seriously ill testator should arrange for a medical practitioner to satisfy themselves as to the testator’s capacity and understanding and make a contemporaneous record of their examination and findings, was a guide to avoiding disputes rather than a rule of law (Burns v Burns [2016] and Key v Key [2010] referred to).
While the court accepted Dr Series’ conclusions, it did not follow that no weight could be given to Dr Drury’s assessment. Dr Drury had been the deceased’s GP for years and did carry out an examination. However Dr Series’ criticisms were legitimate and since his assessments there was almost certainly substantive deterioration in the deceased’s cognitive impairment. This meant that only limited weight could attach to Dr Drury’s assessment.
The medical notes suggested that symptoms of confusion and speech difficulties were episodic as of late July. While the notes in August and September showed increased confusion and capacity issues, it was important to focus on the deceased’s capacity at the time she signed the will.
The will itself was short and straightforward, as was the deceased’s property. Other than a memory lapse in respect of her daughter’s name, there was no suggestion of a lack of capacity to understand the claims to which she ought to give effect. The accountant’s evidence that the deceased told him what to put in the will was unchallenged. The court therefore concluded that the deceased did have capacity to make the will.
Knowledge and approval
The correct approach was to consider whether the deceased understood what was in the will when she signed it and what its effect would be (Gill v Woodall [2010] applied). While there were suspicious circumstances in that the will was prepared and executed without a solicitor and without the deceased being medically examined at the time, the suspicion was dispelled because the will was short and straightforward and because the court accepted the accountant’s evidence that the deceased told him what to put into it (Simon referred to).
Undue influence
Despite the high burden that the claimants had in proving it, the facts pointed inevitably to the conclusion that the deceased had been coerced into making the will by the defendant. The facts were inconsistent with any other conclusion.
Ten facts in particular supported this conclusion. First, the defendant had believed that she should inherit the deceased’s house since Vicky’s terminal diagnosis. Second, prior to Vicky’s death, it had been the deceased’s settled intention to leave her house between her four daughters, and thereafter that Vicky’s share should pass to her children. Third, the deceased had been devastated by Vicky’s death and was probably still deeply in the grieving process when she signed the will. Fourth, from the time that the defendant moved in with the deceased, she isolated the deceased from other family members. Fifth, the defendant had reacted angrily and in front of the deceased when Edwin had discussed making a will with the deceased which shared the house. Sixth, it was likely that the defendant had told the deceased that the first claimant and Vicky had taken the deceased’s money and credit cards which was untrue. Seventh, by the time that the will was signed and for at least two to three months beforehand, the deceased was vulnerable physically and mentally and was to a substantial extent dependent solely on the defendant because of the isolation. Eighth, the defendant’s attempts in evidence to distance herself from the making of the will were inconsistent with the evidence. Ninth, the will was signed without the involvement of a solicitor or further medical examination, the inference being that the defendant did not want such involvement as it might jeopardise her chances of securing the estate. Tenth, after the will was signed, it was likely that the defendant was involved in the deceased writing to other members of the family limiting contact to written communication and that the defendant had put up barriers to access by the social worker to the deceased and raised unfounded concerns about that worker’s relationship with Edwin.
Occupation rent
The defendant was entitled on intestacy to a share of the estate. The general rule was that occupation rent was not payable as between beneficiaries unless there was some conduct on the part of the occupier making this unfair (Ali v Khatib [2022] referred to). Absent evidence or submissions on the issue, it was not appropriate to order the defendant to pay an occupation rent.
JUDGMENT HHJ JARMAN KC: Introduction [1] On the 4 July 2021, the late Daphne Jones (Mrs Jones) signed what purported to be her last will and testament (the will). She had not executed a previous will. It was witnessed by a neighbour Pauline Evans, and by a chartered accountant, Neil Bevan. It was a short …Continue reading "Jones & ors v Jones [2023] WTLR 1371"