Re Stolkin; Greaves v Stolkin [2013] EWHC 1140 (Ch)

WTLR Issue: December 2013 #135

In the matter of: LESLIE STOLKIN deceased





The deceased testator, Leslie Stolkin, (T) had two sons from his marriage, the defendant Gary (G) and Mark (M). T divorced their mother in 1989. In September 1997 Pauline Greaves the claimant, (P), also divorced, moved in with T as cohabitant and became financially dependent on him. In 2001, T executed a will effectively leaving his entire estate to G, and also naming him as sole executor and trustee unless he died before T in which case M, a successful and wealthy businessman, would inherit . The will made no provision for P, but T left some notes directing that she was to receive regular monthly payments from his estate after his death equivalent to the housekeeping money he was paying her, the car that she was using and a lump sum of £150,000. In 2007 T wrote out and signed a document described as a ‘codicil’ requesting G make similar provisions for P which G also signed.

Over the years T drank to excess. He made life hard for everyone and relations between him and P were often strained but regardless of this they had lived together for some 12 years when T died. In April 2009, T became seriously ill with motor neurone disease. He spent his last few months in hospital. He executed a living will and power of attorney in favour of M on 19th July 2009. Following a conversation with P M raised the question of the purported codicil and P’s position following T’s death with T who, though not seeing it as an issue because he and G had both signed the purported codicil told M to instruct Mr Bonehill a partner in a firm of solicitors that T used, to draft a valid codicil. This was done and Mr Renda (R) a solicitor and Mr Humphries (H) attended T at 3:40pm on 5 August 2009 when R went through the document with T who signed it witnessed by R and H. T had suffered from an urinary infection which had caused some confusion but not amounting to insane delusions. He was also on anti-depressants and had minimal brain damage from a minor stroke On Friday 11 September 2009 T was transferred to a nursing home from which he discharged himself. He was re-admitted to hospital and discharged himself again, then returned to hospital once more where he died on 24 September 2009.

The codicil was contested by G on grounds of want of capacity and want of knowledge and approval. Two medical experts gave evidence ‒ Dr Barker (B), a practising specialist in mental health care and testamentary capacity in elderly patients called on behalf of P, and Professor Hodkinson (H), emeritus professor of geriatric medicine of University College, London for G. The experts disagreed about T’s testamentary capacity. B considered that T had capacity, while H thought that his ‘cognitive impairment, depression, lack of mental energy and inability to concentrate’ had caused him to accept and sign the document passively.

Held: Disputed Codicil valid, and admitted to probate [83].

T had testamentary capacity when he executed the Disputed Codicil on 5 August 2009[66]. Evidence provided by a number of individuals, including R, the solicitor who drafted the codicil and attended upon T to execute it, stated that T understood what was involved and that he was fully ‘compos mentis’ at the relevant time. Quoting Mummery LJ in Hawes v Burgess [2013] WTLR 453:

‘The courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property’.

T also had knowledge and approval of the contents of the codicil. It was no more than common sense that matters giving rise to suspicion as to whether its contents represent the wishes and intentions of the testator will affect what the propounder of a testamentary instrument must do to satisfy a court that the testator knew and approved its contents. However, nothing was to be gained in the present case by focusing on the specific question, ‘Do the circumstances arouse the suspicions of the court?’ Factual and expert evidence having been given over a number of days, the question was simply whether G had ‘discharged the burden of establishing that [T] knew and approved the contents of the document which is put forward as a valid testamentary disposition’. What was crucial was that the testator knew and approved of the contents of the document he executed. He did not necessarily have to be aware that his objectives could have been achieved in one or more different ways [80].

JUDGMENT NEWEY J: [1] Mr Leslie Stolkin (Leslie) died aged 75 on 24 September 2009. He left a will dated 3 December 2001 (the will). He had also, some seven weeks before his death, executed a codicil (the disputed codicil). This case concerns the validity of that document. The claimant, Mrs Pauline Greaves, asks the …
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Counsel Details

James Stuart (Lamb Chambers, Lamb Building, Temple, London EC4Y 7AS, tel 020 7797 8300, e-mail, instructed by Edwards Duthie Solicitors (9/15 York Road, Ilford IG1 3AD, tel 020 8514 9000, e-mail for the claimant.

Andrew Child (3 Stone Buildings, Lincoln’s Inn, London WC2A 3XL, tel 020 7242 4937, e-mail, instructed by Mischcon de Reya (Summit House, 12 Red Lion Square, London WC1R 4QD, tel 020 7440 7000, e-mail for the defendant. Stephen Innes (4 New Square, Lincoln’s Inn, London WC2A 3RJ, tel 020 7822 2000, e-mail, instructed by Plexus Law (Peninsular House, 30-36 Monument Street, London EC3R 8NB, tel 0844 245 4000) for the third party defendant.

Legislation Referenced

  • Inheritance (Provision for Family and Dependants) Act 1975
  • Mental Capacity Act 2005, s2