Burns & Ors v Burns

Testamentary capacity depends on whether the testator can understand the testamentary act, the relevant property and the claims upon the estate. Cognitive impairment or an imperfect memory does not itself establish incapacity.

Where evidence raises a real issue about capacity, the person propounding the will must prove it. A will may nevertheless be valid where instructions were given with full capacity and, at execution, the testator understood that the document embodied those instructions.

Suspicious circumstances may require affirmative proof that the testator knew and approved the will. The court may determine the ultimate question directly, without a mandatory two-stage analysis. The solicitors’ “golden rule” is prudent guidance, not a rule of law or test of validity.

The deceased’s earlier will left her share in her home to one son, while dividing the residue equally between her two sons. A later will divided her whole estate equally between them. The earlier will’s beneficiary challenged the later will for want of testamentary capacity and knowledge and approval.

District Judge Woodburn pronounced in favour of the later will. The evidence included cognitive assessments showing impairment, correspondence containing the deceased’s instructions, and evidence from the solicitor who prepared and witnessed the will. The appeal concerned whether the judge applied the correct burdens of proof and whether the evidence could support his findings, including under the rule in Parker v Felgate.

1. Appeal dismissed unanimously. The trial judge was entitled to pronounce in favour of the 2005 will. Although aspects of his ruling and the solicitor’s conduct were open to criticism, the evidence permitted the findings made. McCombe LJ gave the judgment, with which Treacy and Longmore LJJ agreed.

2. The judge had adequately identified the criteria for testamentary capacity derived from Banks v Goodfellow. Cognitive assessments showing poor orientation, recall and task planning were relevant, but they addressed care needs rather than testamentary capacity alone. The undisputed conduct and correspondence in late 2004 showed that the deceased understood her property, her two potential beneficiaries and the simple equal division she wished to achieve.

3. Once the evidence raised a real issue about capacity, the burden rested on the person propounding the disputed will. That burden was discharged. The trial judge could find that the deceased possessed testamentary capacity when she gave instructions and approved the draft in late 2004.

4. The rule in Parker v Felgate applied. The deceased had sufficient capacity at execution to understand that she was signing the simple will previously requested and approved. The court also upheld the judge’s brief finding that she possessed full testamentary capacity in July 2005.

5. The solicitors’ “golden rule” is a prudent means of reducing disputes where an elderly or seriously ill testator is involved. It is neither a rule of law nor a touchstone of validity. The solicitor’s ignorance of the guidance and inadequate records therefore did not themselves invalidate the will.

6. The deceased’s age, cognitive impairment, the beneficiary’s involvement in collecting documents and attending the appointment, and the fragile and misdated correspondence created circumstances requiring affirmative proof of knowledge and approval. That burden also rested on the propounder. It was discharged by the accepted evidence that an experienced solicitor saw the deceased alone, read the simple will to her and concluded that she understood and approved it.

7. A court need not invariably identify suspicious circumstances and then conduct a separate second stage to determine whether they have been dispelled. After hearing detailed evidence, it may proceed directly to the ultimate question whether the testator understood the will and its effect.

• Court of Appeal (Civil Division): By [2016] EWCA Civ 37, unanimously dismissed the appeal and upheld the pronouncement in favour of the 2005 will.
• High Court, Chancery Division (Probate), Liverpool District Registry: District Judge Woodburn held the 2005 will valid and pronounced in its favour, dismissing the counterclaim concerning the 2003 will. No citation is stated.