Williams v Wilmot [2012] EWHC 2211 (Ch)

YVONNE WILLIAMS

V

JAMES WILMOT

Analysis

The claimant sought probate of a will of Dr Cecil Monk (the deceased) dated 5 December 2003 by which the deceased left his entire estate to the claimant. The claimant also sought, in so far as it was necessary, an order that the deceased’s later will of 19 January 2007 be pronounced against on grounds of a lack of testamentary capacity and/or a lack of knowledge and approval.

The defendant, who did not appear and was not represented, was formerly engaged in caring for the deceased. He was an employee of a care agency to whom the relevant local authority had contracted out the care of the deceased. He was the major beneficiary of the 2007 will. The 2007 will was drawn up by a firm of solicitors called Margraves who were not the deceased’s usual solicitors and whose offices were some 70 miles away. The witnesses were also not local and there was hearsay evidence that they were friends of the defendant.

On 26 January 2007 the deceased’s usual solicitor and an experienced practitioner, Mr Brunton, received a request from Margraves to release the deceased’s documents. Mr Brunton was concerned and visited the deceased who confirmed that he knew nothing of it, that Mr Brunton still acted for him and that people were ‘doing things behind my back.’ Mr Brunton felt that at that stage it was doubtful whether the deceased was capable of fully understanding his affairs and he then registered the Enduring Power of Attorney which the deceased had previous made in his favour.

There were three medical reports in evidence. The first was created following an assessment on 5 January 2007 and commissioned by Margraves. It ran to six lines, stating that the doctor in question had carried out a mental state examination and assessment of capacity and cognitive function of the deceased and that he had testamentary capacity. It attached no details or results of any examinations.

The second was a report of the deceased’s GP prepared following the earlier involvement of the Local Authority. This had led to the third, which was a lengthy report of a consultant psychiatrist prepared following an examination on 7 February 2007, two weeks after the 2007 will was signed. It recorded that the deceased was suffering with memory impairment and concluded that his history, presentation and cognitive profiles were consistent with Alzheimer’s type dementia. It also included comments to the effect that the deceased had stated that he had recently signed a Power of Attorney in favour of his carer, however, in the psychiatrist’s opinion he did not then understand its exact nature.

Held:

(1) It may be the practice where proceedings are undefended and evidence has been adduced in favour of an earlier will to pronounce for the earlier will without pronouncing against the later one, provided that everyone interested under the later one has been served or had proper notice. However, the judge was satisfied that in this case the evidence was sufficient to allow him to conclude that on the balance of probabilities the deceased did not understand the extent of his estate at the time of the 2007 will and/or did not recall the persons whom he ought to have considered as its potential beneficiaries.

(2) The circumstances of the preparation of the 2007 will excited the vigilance and suspicion of the court. The onus was therefore on the defendant to establish knowledge and consent. However, as the defendant did not appear and was not represented there was no prospect of him doing so.

(3) In the circumstances the 2007 will was rejected and the 2003 will admitted to probate.

JUDGMENT HH JUDGE PELLING QC: [1] In these proceedings the claimant seeks an order granting probate of a will dated 5 December 2003, by which Dr Cecil Monk, referred to hereafter as ‘the deceased’, left his entire estate to the claimant. Insofar as is necessary the claimants also seek an order that the deceased’s will …
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Counsel Details

Counsel

Mr A Tunkel (3 Stone Buildings, Lincoln’s Inn, London WC2A 3XL, tel 020 7242 4937, e-mail atunkel@3sb.law.co.uk), instructed by Brunton & Co (6 Upper Portland St, Aberystwyth, Ceredigion, SY23 2DU, tel 01970 612567) appeared on behalf of the applicant/claimant.

The defendant did not appear and was not represented.

Cases Referenced

Legislation Referenced

  • Tristram and Coote's Probate Practice 30th ed