Greaves v Stolkin

Testamentary capacity requires the testator to understand the nature and effect of the testamentary act, the extent of the property concerned, and the claims to which effect should be given. The assessment also requires consideration of whether the testator had sufficient mental energy for rational decision-making. Where capacity is challenged, the evidential burden may return to the propounder after a real doubt has been raised.

Knowledge and approval is determined by considering all relevant evidence. Formal execution and testamentary capacity are important but not conclusive. A testator need not understand every technical legal expression or appreciate that the same objectives could have been achieved by different legal means.

Leslie Stolkin executed a codicil shortly before his death. It made provision for his long-term partner, Pauline Greaves, including a right to reside in their home, an annuity and retention of a car. His son, Gary Stolkin, challenged the codicil on the grounds that Leslie lacked testamentary capacity and did not know or approve its contents.

The court considered evidence about Leslie’s serious illness, periods of confusion, alcohol use, medical condition and the circumstances in which an independent solicitor explained and witnessed the codicil. The central issues were whether Leslie had testamentary capacity when he signed the document and whether he understood and approved its contents.

1. Validity and disposition. The Disputed Codicil was valid and was admitted to probate. The court was satisfied both that Leslie had testamentary capacity and that he knew and approved its contents.
2. Testamentary capacity. The relevant principles were those in Banks v Goodfellow (1870) LR 5 QB 549. The testator had to understand the nature and effect of the act, the extent of the property disposed of, and the claims to which he ought to give effect. The court also considered the need for sufficient mental energy for decision-making identified in Key v Key [2010] EWHC 408 (Ch).
3. The evidence did not establish serious confusion when Leslie executed the codicil in the afternoon of 5 August 2009. The medical and factual evidence, including the solicitor’s probing questions and explanation of the document, compellingly supported capacity. His temporary confusion concerning medical treatment did not establish incapacity for testamentary purposes.
4. Knowledge and approval. The court adopted the approach discussed in Gill v Woodall [2010] EWCA Civ 1430, namely to consider the totality of the relevant evidence rather than treat the traditional suspicion inquiry as a separate compulsory stage. The questions identified in Hawes v Burgess [2013] EWCA Civ 74 could nevertheless remain significant.
5. Leslie had discussed the substantive provisions with his son and had the codicil explained paragraph by paragraph by an experienced solicitor. He understood and approved its contents. He did not need to understand every technical expression or appreciate that alternative legal mechanisms could achieve the same objectives. The court found no improper pressure on him.