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Burns v Burns – elderly testators, mental impairment and the ‘golden rule’

Burns v Burns – elderly testators, mental impairment and the ‘golden rule’

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 [2016] 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.

The evidence 

Family witnesses called by each of the brothers were found to be ‘lacking in impartiality and objectivity’ (para [9]) 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’,[1] 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 [28]).

Brief and uncontroversial medical evidence from a consultant geriatrician as to interpretation of the MMSEs and the cognitive and behavioural (CAPE) test which had been carried out on the deceased was that the deceased ‘was poorly orientated as to where she was in time and place, had poor recall (short term memory) and … had problems with analysis and simple task planning … for a period of 3 months’ (para [25]).

The defendant’s appeal

The criticisms levelled at the DJ (‘neatly encapsulated in the reasons given by Sir Timothy Lloyd for giving permission’ to appeal – para [30]) were that:

(a) the findings of the two MMSE tests were virtually disregarded;

(b) the consultant geriatrician’s evidence was ignored;

(c) the day care centre manager’s evidence was ignored;

(d) despite finding that the solicitor was ignorant as to the golden rule, the court concluded that he could still nonetheless have been aware of any lack of capacity;

(e) the court failed to direct itself that the burden of proof lay on CB, who was propounding the 2005 Will; and that all of this therefore

(f) led the court to an unsupportable conclusion, that the deceased had testamentary capacity either in July 2005 or, when instructions were given in November 2004.

CB, as respondent, argued that the appellate court should ‘tread very cautiously with questions of evidential evaluation’,[2] and that the lower court was correct to recall the limited purposes to which the medical assessments were directed – ie to the deceased’s care needs (para [41]–[42]).

The respondent relied upon two American cases cited with approval in Banks v Goodfellow (1870) LR 5 QB 549: Den v  Vancleve (1819) 2 Southard 660 and Stevens v Vancleve (1822) 4 Washington 267. These demonstrated, argued the respondent that, ‘testamentary capacity may well remain notwithstanding deficit in memory caused by advancing age’ (para [43]), and hence ‘the Deceased had capacity to give instructions for and to execute this very simple will’ (para [44]).

[1] ie that a solicitor dealing with a testator whose capacity may be doubtful should have prior knowledge of the testator, consider the need for an approved medical practitioner to attend, examine any earlier will, discuss any proposed changes, 'ask non-leading questions and ensure that the reading through of the will is not "an idle ceremony"' – Buckenham v  Dickenson [2000] WTLR 1083 at 1098D-H per Judge Cooke sitting as a DHCJ.

[2] May LJ in Sharpe v Adam [2006] EWCA Civ 449, para [5].

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Reasoning  of the Court of Appeal

Testamentary  capacity

The DJ did adequately identify the salient criteria for determination of testamentary capacity, distilled from Banks v Goodfellow (supra) and Cowderoy  v Cranfield [2011] WTLR 1699, ie that the testatrix must:
  • understand that she is giving her property to one of more objects of her regard;
  • understand and recollect the extent of her property;
  • Understand the nature and extent of the claims upon her from individuals both included in, and excluded from, the will;
  • guard against any ‘insane delusion’ from influencing her will.
As for the ‘golden rule’, it is neither a rule of law nor ‘a touchstone of validity or a substitute for established tests of capacity or knowledge and approval’ (para [47], citing with approval Williams  on Wills, 10th edn, para 4.21).

The appellant was correct that the burden of proof as to capacity rested upon the claimant, CB, as the proponent of the disputed will. The DJ had indeed based his primary decision on the rule in Parker v Felgate (1883) 8 P.D. 171 [3]: ie the deceased had capacity in late 2004 when instructions were given, and ‘the Deceased had at the least capacity to recognise that what she was signing in July 2005 was a will in the form that she had instructed in the previous year’. Nonetheless, although the solicitor’s ‘conduct of the execution of the document may have left much to be desired’ the DJ was entitled to conclude that the deceased also had capacity in July 2005 (paras [48], [51]).

The disposition was ‘rational’ and ‘simple’ (para [49]).  The deceased’s actions in going to her former solicitors, collecting documents, including the 2003 Will, signing for them, and giving instructions by letter (notwithstanding the date error – the year ‘44’ cf ‘14’), coupled with the medical evidence, meant that there was sufficient evidence for CB to discharge the burden of proof that the deceased ‘genuinely intended in [late 2004] to revoke the 2003 Will and to make a will dividing her entire estate between her two sons’ (para [49]).

Testatrix’s  Knowledge and Approval

At para [56], the court cited with approval para [139] of Cowderoy v Cranfield [2011] WTLR 1699 at 1737 which sets out the traditional two-stage approach of the court, ie:
  1. were there circumstances such as to ‘excite suspicion’ on the part of the court;
  2. if so the burden of proof was on the propounder of the will to demonstrate that the testatrix knew and approved its contents, and if not, knowledge and approval would be presumed.
The court affirmed the further principle in Cowderoy that where detailed evidence of the character, state of mind and wishes of the testatrix has been heard, a court may short circuit this approach, and proceed directly to answer the ultimate question as to whether the testatrix knew and approved the contents of will, with an understanding of what she was doing and its effects.

Circumstances  to ‘excite suspicion’?

In the present case the following were ‘clearly circumstances giving rise to some suspicion calling for affirmative proof of knowledge and approval’ (para [54]):
  • the deceased was elderly and had displayed “some traits of mental impairment”;
  • CB, the beneficiary of the change, had accompanied the deceased when she had collected the documentation associated with the 2003 Will;
  • the letters of instruction to the solicitor were ‘sketchy and in fragile writing; one was misdated’;
  • CB accompanied the deceased to the appointment to execute the 2005 Will;
However, the deceased was seen alone by the experienced solicitor who ‘although not searching in his enquiries, read the simple will over to her … and clearly reached the view that the Deceased understood and approved the contents’ (para [55]).

Finally, ‘[a] plea of want of knowledge and approval is not to be used as a cloak to conceal what is in reality a charge of dishonesty or undue influence’  (para [52]). But there was no suggestion of any improper dealing in this case (para [54]).


This judgment does not make new law, and it affirms existing principles as to capacity and want of knowledge and approval.

However, Treacy LJ acknowledged that ‘some criticisms could be made of the judge’s ruling’ (para [58]). McCombe LJ described himself as having ‘entertained doubts’ as to the conclusion on capacity (para [49]) and as upholding the decision of the lower court, but ‘not without hesitation’ (para [57]).  It may seem surprising, therefore, that Sir Timothy Lloyd, in granting permission to appeal, described the DJ’s conclusion as to capacity as one ‘which cannot be supported’ (para [30]).

This case should sound warning bells for those who wish to argue that there is a lack of capacity or that there is want of knowledge and approval.  Despite the documented decline in the deceased’s mental health, the claimant was still able to demonstrate, albeit with this ‘simple’ and ‘rational’ disposition, that the deceased had had capacity to execute the 2005 Will.  With a more complex disposition, it may be that an appellant would be successful.

As for knowledge and approval of the will, despite the four matters set out at para [54] which excited the suspicion of the court, the Court of Appeal evidently accorded weight to the findings of fact of the lower court based upon the evidence of the solicitor and did not consider that there was enough evidence to suggest absence of knowledge and approval.  Evidently some of the points referred to in para [54] could perhaps suggest ‘undue influence’, but that was not argued on appeal (possibly for good reason).

Furthermore, the medical evidence of the mental impairment of the deceased was obtained for a different purpose – determining her care needs – and as such was of limited use.

The solicitor received some flak for his stated ignorance of the ‘golden rule’, for failing to ask open questions, for failing to consider the attendance of a medical professional, for some gaps in his documentation and for his ignorance of the existence of the previous will.  Therefore the case, despite its surprising outcome, should serve as a reminder to those meeting frail clients of the need to take the utmost care when asked to prepare a will, of the need to observe the ‘golden rule’ and of the need to keep careful contemporaneous notes.  It is also a salutary lesson that the evidence of family witnesses may be given little or no weight by a court if it considers those individuals to be partial or to have an interest in the outcome of the litigation.

Gwyn Evans is a barrister at Tanfield Chambers. Follow him on Twitter @GwynforLaw.

[3] if a testatrix has given instructions for her will, and it is prepared in accordance with them, then it will be valid despite the testatrix merely recollecting at the time of execution that she has given those instructions and believing that the will she is executing is in accordance with them.
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