UK: Hawes v Burgess – A Reminder Of The Dos And Don'ts For Ensuring Wills Are Upheld

Last Updated: 3 April 2013
Article by Lorraine Burke

The case of Hawes v Burgess and another [2013] EWCA Civ 74 is recent Court of Appeal decision reminding Probate practitioners of what steps must be taken to ensure that Wills they draft are upheld.

The Court of Appeal agreed with the Chancery Division of the High Court that the Will was invalid on the basis that the testatrix (will maker) did not know or approve of the contents of her Will but disagreed with the finding that she had insufficient mental capacity to make the Will.  It took the view that the evidence of an experienced independent solicitor who assessed her at the time she made the Will has greater weight than a medical expert who never met her. 

Background

Daphne Burgess had three children, Peter, Libby and Julia between whom she divided her estate equally under her 1996 Will.  Her health began to fail in the summer of 2006 with ailments including memory impairment, increased vagueness and difficulties in recognising people she had known for a long time.  At the time the Will was changed, Peter and Julia had fallen out, partially in relation to the bungalow, and it was believed at the time that this fallout was permanent.

In 2007, Mrs Burgess expressed a wish to amend her Will so that she could make particular provisions in relation to her burial service.

Her daughter, Julia, brought her to see an independent solicitor who took instructions from Mrs Burgess while Julia was present.  This 2007 Will left her estate equally to her two daughters and excluded Peter.  The reason given to the solicitor by Julia was that Peter had received a substantial lifetime gift of £40,000 and that a further lifetime provision would be made for him, both of which were untrue.  Peter was wealthy and purchased a bungalow in his name for his mother to live in for her lifetime.  His mother wanted to make adaptations to the house to the value of £21,000 and she wanted to pay for these.  Peter did not receive any lifetime gifts from his mother before she passed.

The Will was not sent out to Mrs Burgess to read in advance of her executing it.  There were some small errors in the Will including Peter's middle name being incorrect and these probably would have been picked up on had she read it.

On the day the Will was executed, Julia was present in the room while the Will was read back to Mrs Burgess by the solicitor.  The solicitor was experienced at drafting Wills as he did so on a weekly basis throughout his extensive career.  In his typed attendance notes, he found Mrs Burgess to be "entirely compos mentis" although he subsequently admitted that his ability to assess mental capacity is hampered when another person is present.

Peter and Libby did not know about the 2007 Will until after Mrs Burgess died.  They challenged the validity of the Will on the grounds that their mother lacked testamentary capacity and/or did not know and approve the contents of the Will.  Julia defended the claim.

The case was heard in High Court

The Claimant's produced expert evidence to convince the High Court that Mrs Burgess lacked testamentary capacity.  The Court also found that there was a want of knowledge and approval of the contents of the Will.   Little reasoning was given for the latter.  The decision was appealed.

Julia appealed to the Court of Appeal

The Court of Appeal found that she did have testamentary capacity but agreed that she did not know or approve of the contents of the 2007 Will and so the Will was invalid.

Lord Justice Mummery stated,

"My concern is that 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, the 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 the circumstances where that expert accepts that the testatrix understood that she was making a will and also understood the extend of her property".

In relation to the want of knowledge and approval of the contents of the Will, the judge found that Julia was the "controlling force" behind the instructions for drafting the 2007 Will.  She also provided false information to the solicitor about the sums paid or to be paid to Peter.  She made the initial contact with the law firm and set up the appointment.  She took Mrs Burgess to her meetings and was present throughout.  Meanwhile, Peter and Libby were unaware of what was going on and it was at a time when there was a rift between Peter and Julia.  With her diminishing health and mental capacity, Mrs Burgess was a frail woman.  Mrs Burgess did not have a chance to read the Will prior to attending the solicitor's office to execute it.   The above combination convinced the Court that the Will was invalid.

A Reminder of Proportionality

It is worth bearing in mind that this estate was only worth around £200,000.  There cannot have been much change left over once all of the legal costs were paid.  Can it really have been Mrs Burgess' wish for her estate to be spent on a 6 day trial with 26 witnesses (some of whom were experts) and a subsequent appeal?  I suspect not.  The parties were unable to settle at mediation but had they done so, they would all have walked away with something.  To add to this, her children will be permanently divided, a lasting legacy she could never have intended or wanted.

Litigation surrounding Wills is on the increase.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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