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What if an elderly client, whose state of mental health is uncertain, approaches you and asks you to prepare her will?
Will a court ever pronounce in solemn form an alleged will of an elderly testator who has displayed some traits of mental impairment?
In Burns v Burns  EWCA Civ 37 (28 January 2016) the Court of Appeal heard argument as to whether a district judge (DJ) had been correct to pronounce in solemn form the alleged will (‘the 2005 Will’) of an elderly lady, Mrs Burns, dated July 2005. Her mental health was known to have declined prior the purported execution of the will, and she was alleged by one of her sons, AB, neither to have known nor approved of its content.
Mrs Burns (‘the deceased’) had died aged 89 in May 2010. An earlier will, dated May 2003 (‘the 2003 Will’), had provided for the beneficial interest of the deceased in her home in Ashton-in-Makerfield (‘the House’) to be left entirely to her son AB. Her other son, CB, the claimant, already owned the other half of the beneficial interest in the House, pursuant to a 1982 transfer.
CB claimed for pronouncement in solemn form of the 2005 Will, the effect of which would have been to leave each son with half of the deceased’s half-share of the beneficial interest in the House – ie a quarter of the beneficial interest in the case of AB. AB counterclaimed for pronouncement in solemn form of the 2003 Will, which would leave each son with half of the beneficial interest in the House.
CB succeeded at first instance, the DJ pronouncing in solemn form in favour of the 2005 Will. AB appealed, raising arguments as to capacity and as to want of knowledge and approval.
Family witnesses called by each of the brothers were found to be ‘lacking in impartiality and objectivity’ (para ) and therefore the court decided to look primarily at contemporaneous documents.
The deceased had scored 19 out of 30 in a Mini Mental State Examination (MMSE) in October 2003. She had exhibited problems with her recollection, and with spelling a simple word backwards. By 2004, the deceased had begun to attend a day centre specialising in care of the elderly and those suffering from dementia. The centre manager had given evidence at the trial, referring to the deceased’s moderate to severe dementia and to memory problems, although she was unsure, when cross-examined, about timings, given that her involvement had been over a 6-year period ending in c. 2010.
At the end of 2004, the deceased corresponded with her solicitor Mr W about changing her will.
In a further MMSE dated May 2005, the deceased scored 20 out of 30. Both parties’ counsel had sought to draw conclusions as to capacity from occupational therapy assessments in May – July 2005, there being observations as to memory loss during each examination.
The 2005 Will was executed 3 weeks later at Mr W’s offices, there being only sketchy documentation covering this event, with a date error as to the date of execution.The DJ had commented that Mr W ‘appeared to be oblivious’ to the concept of the ‘golden rule’, and had not asked any open questions of the deceased in July 2005, having poorly managed that meeting. Nonetheless, Mr W ‘would probably have been alerted to one or any serious question’ as to the capacity of the deceased (para ).
The criticisms levelled at the DJ (‘neatly encapsulated in the reasons given by Sir Timothy Lloyd for giving permission’ to appeal – para ) were that:
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