Hoff & Ors v Atherton

This is an appeal by the Claimants, Francis Hoff (“Francis”), Maxine Beagan (“Maxine”) and Gloria Wiechulla (“Gloria”), from the order made on 6 February 2004 by Mr. Nicholas Warren Q.C., sitting as a deputy judge of the High Court. By his order the judge pronounced for the force and validity of the Will dated 22 June 1994 (“the 1994 Will”) of Mrs. Ingeborg Luise Erika Krol who died on 29 March 2001. That relief had been sought by the Defendant, Mrs. Pauline Mary Atherton, the residuary legatee under the 1994 Will, by counterclaim. The judge pronounced against the force and validity of the Will dated 23 March 1987 (“the 1987 Will”) with two codicils thereto dated respectively 12 February 1988 and 1 August 1989. Relief to that effect had been sought by the Claimants, the residuary legatees under the 1987 Will, in their claim against Mrs. Atherton. The judge refused permission to appeal, but permission was granted by Jacob L.J. on paper.

The judge has set out the facts found by him with commendable care and in great detail. I will attempt a summary of the more important facts.

Mrs. Krol was born on 30 September 1911 in Germany. She came to this country in 1934. In that year she married Mr. Bertie Le Vaye. He died in 1960. She remarried in 1964. Her second husband, Mr. Stan Krol, died in 1985. She had no children and no surviving relatives at the time of the 1994 Will. She lived at 7 Lowther Road in Barnes from about the late 1930s. From her first husband she inherited a portfolio of small shops in Sutton, some with residential accommodation above. She rented out this property. By the time of her death she owned assets worth about £1 million, this after having transferred a Treasury deposit account of some £500,000 at her bank into the joint names of herself and Mrs. Atherton in February 1993 and after assigning to Mrs. Atherton in March 1994 the benefit of a policy which produced on Mrs. Krol’s death some £22,000.

Francis was the godson of Mrs. Krol. His mother, Mrs. Margaret Hoff, was an old friend of Mrs. Krol. She had come to England in 1938 from Vienna but had returned to Austria in 1973. Mrs. Hoff saw Mrs. Krol when visiting London in 1975. In 1987 Mrs. Krol visited Francis and his wife, Doris Hoff, in Munich and went to stay with Mrs. Hoff in Austria for a few days. Mrs. Hoff last saw Mrs. Krol in the autumn of 1994. Francis, from 1981 to the early 1990s, saw Mrs. Krol several times a year on his business trips to London. He and his wife Doris attended Mrs. Krol’s 80^th birthday party in November 1991. He saw Mrs. Krol in February 1993 and, with his wife, in September 1993 as well as in October or November 1993. He too last saw Mrs. Krol in the autumn of 1994.

Maxine is the sister of Francis. She moved abroad in 1991. The judge was to find her evidence of no help one way or the other in making an assessment of Mrs. Krol’s capacity at any time.

Gloria is the daughter of Luzie Wiechulla , an old friend of Mrs. Krol. Both Gloria and her mother gave short witness statements but, living in Germany, they did not attend for cross-examination and the judge in effect obtained no assistance from their evidence.

Mrs. Krol made four Wills between 1973 and 1994. In all of them she included Francis as a beneficiary. In the first Will made on 9 October 1973, she gave a £2,000 pecuniary legacy to the National Heart and Chest Hospital and one other legacy and subject thereto she gave the residue to Mr. Krol and, if he predeceased her, to Francis. By a codicil made on 9 February 1981, she gave the residue, if Mr. Krol predeceased her, to Francis and Maxine in equal shares. In her second will made on 27 September 1982, subject to legacies to the same two legatees, she gave the residue to Mr. Krol and, if he predeceased her, to Francis, Maxine and Gloria in equal shares. After Mr. Krol’s death in 1985, Mrs. Krol made the 1987 Will. Therein she named Mr. John Rawstron, who had acted as her solicitor since 1970, if not earlier, and who had prepared all her testamentary instruments, as an executor together with Mr. Campbell, a partner of his. The dispositive provisions of the 1987 Will were the same as those of the second will save that a pecuniary legacy of £5,000 to Mr. Rawstron was added. By a first codicil, made on 12 February 1988, to the 1987 Will, Mrs. Krol gave a specific legacy of books to Julian and Martin Gore.

Mrs. Atherton was a neighbour of Mrs. Krol. Following Mr. Krol’s death Mrs. Atherton and Mrs. Krol became very close friends. They saw each other virtually every day. They went on holiday together. Mrs. Atherton became more and more involved in Mrs. Krol’s financial affairs. By a second codicil made on 1 August 1989 to the 1987 Will Mrs. Krol gave a pecuniary legacy of £3,000 to Mrs. Atherton.

In June 1992 Mr. Rawstron advised Mrs. Krol in notably strong terms that she should sign an enduring power of attorney. He pointed out that both he and Mrs. Atherton were willing to act as Mrs. Krol’s attorney. On 24 June 1992 Mrs. Krol appointed Mrs. Atherton as her attorney.

On 15 January 1993 Mr. Rawstron had a difficult meeting with Mrs. Krol. He was engaged on her behalf in a rent review of one of her properties which was let and sought to persuade her to leave him or her surveyor to exercise his own judgment in the matter. As he himself acknowledged, he became too insistent because of the frustration he felt, and he over-reacted. She became emotional and tried to express her dissatisfaction towards some aspect of his attitude to her affairs, but he was unable to ascertain from her in any way why and in what respect she was dissatisfied. She made clear that his conduct distressed her and that she wanted him to leave, which he did. That was the last time he saw or spoke to Mrs. Krol.

On 11 February 1993 Mrs. Krol transferred the Treasury deposit account into the joint names of herself and Mrs. Atherton. On 14 July 1993 Mrs. Krol’s current account with her bank was put into the joint names of herself and Mrs. Atherton.

On 17 May 1994 Mr. Rawstron received a typed letter signed by Mrs. Krol, containing instructions for a new Will. According to Mrs. Atherton, Mrs. Krol had over the years often discussed changing the Will in favour of Mrs. Atherton and the subject was raised again in April 1994. Mrs. Atherton says that she neither encouraged nor discouraged Mrs. Krol, who knew precisely what she wanted to do. The letter was in the following terms:

“I want to change my Will. I want to leave £50,000 to Francis, £25,000 to Maxine, £25,000 to Gloria, £5,000 to you and £2,000 to Asthma Research. Everything else is to go to Mary [Atherton] because she has looked after me ever since Stan [Krol] died. If Mary dies first then it is to go to her two children, Andrew and Rosemary, in equal shares. I want to appoint the same executors as before.

Would you please prepare a new Will for me to sign.”

Mr. Rawstron, in his witness statement, says that he phoned Mrs. Atherton for additional information, that he questioned her about Mrs. Krol’s capacity and whether she really wanted to leave him £5,000 in view of the breakdown of their relationship and that Mrs. Atherton stated that she had had a long discussion with Mrs. Krol who fully understood the implications of her letter.

On 19 May 1994 Mr. Rawstron acknowledged receipt of the letter on 17 May and said he was preparing the new document. On 24 May he wrote to Mrs. Atherton asking for help on three points. The first was that he needed to give Mrs. Krol an idea of the size of the residue. He thought that the value of the estate could not be much less than £1 million which meant that the residue was likely to be in the order of £550,000. He asked if Mrs. Atherton disagreed. He said that he proposed letting Mrs. Krol have a letter with the draft Will, giving the approximate figures. The second was whether Mrs. Krol was intending to omit the gift to the Gores of books. The third was a suggestion that the substitutionary gift to Mrs. Atherton’s children, if she did not survive Mrs. Krol, might contain a substitution provision, should a child also not survive Mrs. Krol, in favour of that child’s own children.

Mrs. Atherton replied on 31 May, providing details of the assets and liabilities of Mrs. Krol, with values as estimated by Mrs. Atherton. The assets included Mrs. Krol’s house valued at £200,000, her shops valued at £600,000 and £445,000 at the bank in three separate accounts of which £420,000 was in the joint account of Mrs. Atherton and Mrs. Krol, and that account, Mrs. Atherton said, was intended to pass by survivorship and not under the Will. She said that Mrs. Krol had no debts but that there would be an income tax liability of at least £30,000 on her death. Mrs. Atherton described Mrs. Krol as “fit and active for her age” and leading a “stress-free life”. She continued: “She is well aware of what she owns and expects that, when she dies, she will leave a lot of property. She also knows that there will be a lot of Tax to pay but she has never shown any inclination to do anything to mitigate the Tax burden.” Mrs. Atherton then answered Mr. Rawstron’s other two queries, saying of the second that the omission of the gift to the Gores was an oversight and of the third that it met with Mrs. Krol’s approval and that Mrs. Krol would like the provision suggested by Mr. Rawstron written into her new Will.

Mrs. Atherton wrote again to Mr. Rawstron the next day, saying that she had been in touch with a local solicitor who was willing to be one of the witnesses to the Will and who had agreed to go through everything with Mrs. Krol before she signed anything. Mrs. Atherton said that she was about to go on holiday and offered to collect the draft Will and the accompanying letter to Mrs. Krol the next day. However, it is apparent from a letter dated 18 June 1994 to Mrs. Atherton that Mr. Rawstron was not able to have the Will and letter ready so quickly. On 20 June Mr. Rawstron sent Mrs. Krol a letter enclosing the new Will, which he asked Mrs. Krol to read through carefully to ensure that it was in accordance with her requirements. He said:

“As requested, I have provided for the residue of your estate to go to Mary Atherton, or if she dies before you, for the residue to go equally between her son and daughter, or if either of them die before you, for the half share of the residue to go equally among his or her children.

This is, of course, a very generous gift to Mary. I do not know the precise value of your assets, but the residue after payment of inheritance tax is likely to be substantially in excess of £500,000.”

He then referred to the arrangement for the Will to be signed at home and to be witnessed and he enclosed instructions for the execution of the Will.

The judge did not make any specific finding on the letter of 20 June, but there is no reason to think that Mrs. Krol did not receive it or read it. The judge accepted Mrs. Atherton’s evidence that Mrs. Krol, knowing that she was about to execute the Will in front of witnesses on 24 June, laid out the Will before the witnesses arrived.

The Will was in this form. By cl. 1 Mrs. Krol revoked all former testamentary dispositions. By cl. 2 she appointed Mr. Rawstron and Mr. Campbell as executors. By cl. 3 she gave £50,000 to Francis, £25,000 to Maxine (her surname being incorrectly given as Regan) and £25,000 to Gloria, £5,000 to Mr. Rawstron and £2,000 to the National Heart and Chest Hospital (incorrectly called the National Heart and Lung Institute) and by cl. 4 she gave books to the Gores. By cl. 5 she gave the residue to “my friend” Mrs. Atherton with the substitutionary gift to Mrs. Atherton’s children and grandchildren, to which I have referred. Four common form provisions then followed. On its face this was to be a simple will and there is nothing in the provisions which excites attention apart from the two errors which are mere misnomers.

Mrs. Atherton knew Mr. Anthony Hatt socially. He had been in general practice as a solicitor, doing principally probate and conveyancing work, for 23 years before taking up a full-time judicial appointment as an Immigration Adjudicator. After retirement he became a consultant to a firm of solicitors. Mrs. Atherton asked him to explain the Will to Mrs. Krol. For that request she gave two reasons. One was that the Will had been prepared by a solicitor to whom Mrs. Krol was giving a legacy. The other was that Mrs. Atherton was a beneficiary. The solicitor had asked Mrs. Atherton to arrange for an independent lawyer to explain the Will to make sure that that was what she wanted. She asked him to bring his daughter, Mrs. Jane Norrington, to be a witness as well. Mrs. Norrington had been a dentist since 1983 and had treated many elderly people over the years.

Mr. Hatt and Mrs. Norrington went to Mrs. Krol’s house on 22 June 1994. Mrs. Atherton was also present and the judge had written and oral evidence from Mr. Hatt, Mrs. Norrington and Mrs. Atherton as to what happened. The judge did not accept all the details of Mrs. Atherton’s evidence on this where it went beyond what the independent witnesses said and on one point, whether Mr. Hatt had explained, as she said, to Mrs. Krol that the new Will represented a significant departure, the judge described Mrs. Atherton’s evidence as highly unsatisfactory. The judge concluded that the earlier Will was not mentioned and Mr. Hatt gave no advice about any changes which Mrs. Krol was making to the disposition of her estate.

Because of the importance of the evidence of Mr. Hatt, the judge required Mr. Hatt to be examined in chief rather than accepting Mr. Hatt’s witness statement as his evidence. However, the judge quotes from Mr. Hatt’s witness statement (see para. 124 of the judgment) and it is apparent that the judge treated that witness statement as part of Mr. Hatt’s evidence, a point to which I will return later. The judge accepted the evidence of Mr. Hatt and Mrs. Norrington.

The substance of what they said was this, as appears from the judgment, their witness statements and the transcript of their evidence. On arrival at Mrs. Krol’s house they were taken to the dining room table at which they sat down. Mr. Hatt was given the Will which he had not seen before. He told Mrs. Krol that he had been asked to make sure that she fully understood the Will, particularly with regard to the legacy to the solicitor and that it was usual for the solicitor who drew the Will to get the testator to obtain independent advice about it. He read the entire Will out loud fairly slowly. He looked up periodically to ensure that she was following. He recollected Mrs. Krol saying that she was happy to make the gift to the solicitor and that that is what she wanted. When he came to the gift of residue, he asked if Mrs. Krol appreciated that the whole of her residuary estate was going to Mrs. Atherton and whether Mrs. Krol was sure that that was what she wanted. Mrs. Krol had replied, “Yes, of course”. He described her as looking bemused that he was even questioning this, when she had given instructions to a solicitor, and she explained to Mr. Hatt that Mrs. Atherton had been so good to her, had looked after her, that she had no relations and that was what she wanted to do. Mrs. Norrington’s evidence was to similar effect. According to her, Mrs. Krol’s attitude to Mr. Hatt reading the Will was: “Why are you reading this, as I know what I’ve done?” Mrs. Norrington was certain in her mind that Mrs. Krol was very “with it” and not at all confused and said that nothing made her concerned that Mrs. Krol was not comprehending the Will as it was made, the reverse being the case. She remembered that Mrs. Krol made occasional comments, saying “Yes, that is right. That is what I said, yes”. After reading the Will Mr. Hatt asked Mrs. Krol if she had any questions. She did not. He was satisfied that she understood the Will. She then signed the Will. She expressed concern about her writing being wobbly and wanted to know if she should go over her signature, but Mr. Hatt said that it did not need doing again. He and Mrs. Norrington then signed as witnesses. They were given tea. Mr. Hatt described Mrs. Krol as being quite chatty. Mrs. Norrington recalled Mrs. Krol talking a lot about Mrs. Atherton and how good she had been to her. Mr. Hatt and Mrs. Norrington left not more than 45 minutes after arriving.

Late on 29 March 1995 Mrs. Krol was admitted to hospital in a confused state. There had been previous occasions when she had been seen to be confused, including on 25 June 1994 when Dr. Olney, who was not her regular general practitioner, found her “totally confused”, but thought that it was attributable to a urinary tract infection or a transient ischemic attack. Her regular general practitioner for many years, Dr. Brown, routinely visited Mrs. Krol, twice in May 1994 and again on 29 June 1994, and his view was that Mrs. Krol was of full capacity right up to and including 29 March 1995 when he had visited Mrs. Krol at home. He attributed her episodes of confusion to underlying infections carrying toxicity, and thought that once treated with antibiotics Mrs. Krol would return to normal. Mrs. Krol was released from hospital on 6 April 1995.

On 10 April Mrs. Krol was readmitted to hospital and was unquestionably suffering from severe dementia. She died on 29 March 2001.

On 5 August 2002 the Claimants commenced proceedings, seeking a declaration against Mrs. Atherton that the 1994 Will is invalid on the basis that Mrs. Krol lacked testamentary capacity when she executed it, alternatively that she did not know or approve its contents. They sought orders pronouncing against the 1994 Will and in favour of the 1987 Will and the codicils thereto. Mrs. Atherton by her counterclaim sought orders to exactly the opposite effect. No suggestion of undue influence by Mrs. Atherton was made at any stage.

The judge was faced with a particularly difficult task. The Claimants and Mrs. Atherton respectively produced a large number of witnesses of fact who gave oral evidence and also put in evidence a number of witness statements of witnesses unable to attend for cross-examination and they gave very different descriptions of Mrs. Krol’s behaviour and mental health both before and after the making of the 1994 Will. There was also a medical expert on each side: Dr. Al-Yassiri for the Claimants and Professor Howard for Mrs. Atherton, and whilst there was a wide measure of agreement between them, they differed in their methodology and conclusions, and each assumed as facts matters which the judge was not to find as facts.

There was, however, substantial agreement between the parties as to the law. The judge recognised that to pronounce for the validity of the 1994 Will he needed to be satisfied as to the testamentary capacity of Mrs. Krol at the time of the execution of that Will, that the burden of proving capacity lies on the propounder of the Will, and that once a real doubt is raised about capacity the fact that the Will is duly executed and appears rational does not remove from the propounder the need to establish capacity. He also recognised that in some cases capacity can only be established if the testator is provided with necessary explanations. The judge recognised that the propounder of the Will must also satisfy a further distinct test, that the testator knew and approved the contents of the Will at the time of execution, and that while that is usually done by proving capacity and due execution, from which knowledge and approval are inferred, sometimes the circumstances require proof going beyond the mere fact of execution and that such circumstances include the situation where a beneficiary under the Will is involved in its preparation.

In his judgment, which runs to no less than 261 paragraphs, the judge went through the evidence, witness by witness, identifying the strengths and weaknesses of particular witnesses in relation to particular parts of their evidence. In paras. 232 – 261 the judge expressed his conclusions. He found that although there were indications of eccentric behaviour by Mrs. Krol prior to January 1993, she was that month showing only early signs of Alzheimer type dementia and it was only a mild form from which she was suffering at that stage. He found that she suffered deterioration from January 1993 and in para. 234 he highlighted particular pieces of evidence from that date to April 1995, some of which were indicative of more severe dementia and others of which pointed to nothing more than eccentricity. The judge said that if Mrs. Krol was only mildly affected in January 1993, the deterioration could not have gone from mild to severe in the period from January 1993 to April 1995. He rejected Dr. Al-Yassiri’s thesis that Mrs. Krol suffered from pure Alzheimer dementia and accepted Professor Howard’s approach that a likely explanation for Mrs. Krol’s condition in April 1995 was that she had suffered a stroke or a series of strokes since January 1993. The judge noted that both experts accepted that it is possible for a particular individual to have testamentary capacity despite suffering from mild to moderate dementia.

The judge then proceeded to question whether Mrs. Krol had testamentary capacity on 24 June 1994. He referred to some of the incidents noted by him in para. 234 as indicative of dementia which, on any view was at least mild to moderate by June 1994 and possibly more severe, and said that those incidents and the fact of the dementia in June 1994 raised in his mind a real doubt about Mrs. Krol’s testamentary capacity (para. 243). He therefore found that the burden of proof was on Mrs. Atherton to establish that capacity, but held that the totality of the evidence was sufficient to displace that doubt so as to satisfy him, on a balance of probabilities, that Mrs. Krol had testamentary capacity. The judge then referred to particular pieces of evidence which supported that conclusion. He also held that there was nothing in the evidence which would justify him in holding that Mrs. Krol needed explanations to be capable of understanding the effect of the 1994 Will on her previous dispositions under her prior Will or the extent of the property of which she was disposing. In his view she was so capable without the need for further explanation (para. 252).

The judge then turned to the test of knowledge and approval. He said that in the light of Mrs. Atherton’s involvement in the preparation of the 1994 Will, affirmative proof was required that on the balance of probabilities the Will represented Mrs. Krol’s true intentions. The evidence, he found, all pointed to Mrs. Krol knowing and approving the contents of the 1994 Will. He referred to the instructions for a new Will which were communicated to Mr. Rawstron as Mrs. Krol’s solicitor and to effect being given by Mrs. Atherton to Mr. Rawstron’s recommendation that the Will be witnessed by an independent solicitor. The judge was entirely satisfied that Mrs. Krol knew she was executing a will when it was executed. He had no doubt that she understood that her estate, apart from the legacies, was to go to Mrs. Atherton, Mrs. Krol herself having explained why she was making the gift of residue. She remembered those who might have some expectation of bounty under her Will, by leaving the Claimants not insignificant legacies. The 1994 Will, the judge said, was in essence quite straightforward and Mr. Hatt had read it in a way which ensured that Mrs. Krol would understand it. Accordingly the judge was satisfied on the totality of the evidence that Mrs. Krol knew and approved the contents of the Will.

On the Claimants’ appeal to this court, Mrs. Talbot Rice on their behalf challenges the judge’s decision both on capacity and on knowledge and approval. On capacity she submits that in a case of doubtful capacity, as the judge had found this was, he erred in not requiring proof of an actual understanding of the nature of the act of making a Will, the nature and extent of the property being disposed of, and the people who might be expected to benefit. She says that there was no such affirmative proof in this case of the requisite understanding and she points to the fact that no explanation was given to Mrs. Krol as to the nature and extent of her property which might have clothed her with the requisite understanding. Further, she submits that the judge was wrong to draw the inference of capacity which he did from the evidence before him. On knowledge and approval Mrs. Talbot Rice submits that when suspicions are aroused through a beneficiary having been involved in the preparation of the Will, the proof that is required of the testator’s knowledge and approval of the Will goes beyond a mere superficial knowledge and requires knowledge, brought home to the testator, of the change made by the later will to the dispositions in the earlier Will. She argues that in the absence of evidence that the significant change in dispositions was brought home to the deceased, it was not open to the judge to find that Mrs. Krol knew and approved of the 1994 Will.

Miss Weaver submits that the judge correctly directed himself on the law, and that there is no basis which would justify overturning the judge’s conclusion which was fully supported by the findings of fact which he made and the evidence which he accepted. She argues that capacity to understand is a distinct concept from actual understanding, proof of which is unnecessary and is rarely found. She says that what the court must do is to look at the totality of the evidence in deciding whether the testator has capacity. She points out that it is not in every case that an explanation is required in order that a testator should be found to have capacity. On knowledge and approval she says that there was ample evidence to justify the judge’s conclusion and that there is no hard and fast rule that requires specific evidence of knowledge of the changes in the dispositions made in the previous Will.

It is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.). To make a valid Will the law requires what is always referred to as testamentary capacity and, as a separate requirement, knowledge and approval. The latter requires proof of actual knowledge and approval of the contents of the Will. The two requirements should not be conflated. The former requires proof of the capacity to understand certain important matters relating to the Will. What those matters are were stated by Cockburn C.J. in Banks v Goodfellow (1870) LR 5 QB 549 at p. 565:

“It is essential …. that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he might give effect ….”

Mrs. Talbot Rice fastens on the words “shall understand” and elevates that to a rule that actual understanding must be proved in every case of doubtful capacity. But in my judgment that is an over-literal approach to a judicial statement and one which ignores the subsequent words “shall be able to comprehend and appreciate”. Further, it ignores other statements in the same judgment, such as the approval given at p. 557 to the words of Lord Kenyon in charging the jury in Greenwood v Greenwood 3 Curt App xxx:

“If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.”

See also the similar statements in Stevens v Vancleve 4 Washington at p. 267 (“was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?”) and in Harwood v Baker 4 Moo. PC 282 at p. 291 (“a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others”), those statements being cited with approval by Cockburn CJ at pp. 568 and 569 respectively. If there is evidence of actual understanding, then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity. Such evidence may relate to the execution of the Will but it may also relate to prior or subsequent events. It would be absurd for the law to insist in every case on proof of actual understanding at the time of execution.

There will be cases, as the judge recognised, where a testator will not have testamentary capacity in the absence of an explanation. In Re Beaney dec’d [1978] 1 WLR 770, Mr. Martin Nourse Q.C., sitting as a deputy judge of the High Court, held that a gift inter vivos by a mother of three children to one of them alone of the mother’s only asset of value, at a time when she was in an advanced state of senile dementia, was void because the claims of the donee’s siblings and the extent of the property to be disposed of were not explained to the mother. That was a case, as the judge in the present case found, in my view correctly, of a person who could not understand the relevant transaction and its effects without explanation. The test of capacity is issue-specific, as was pointed out by this court in Masterman –Lister v Brutton & Co. (Nos. 1 and 2) [2003] 1 WLR 1511: the question must be considered in relation to the particular transaction and its nature and complexity. In the present case the judge found nothing in the evidence that would justify holding that an explanation was needed. In my judgment, given the fact that Mrs. Krol wanted to make a new will in 1994 and gave instructions to her solicitor to that effect, given the evidence, to which I will come shortly, that she was well aware of her assets and given the straightforward nature of the Will, the judge’s view that no explanation was needed was justified.

Mrs. Talbot Rice’s submission that the inference drawn by the judge from the evidence was wrong is a difficult one to make good. She referred to Benmax v Austin Motor Co. Ltd. [1955] AC 370 in support of the proposition that an appellate court will more readily interfere with inferences drawn from primary facts than with findings of primary fact. But what was said in that case must be considered in the light of the observations of Lord Hoffmann in Biogen Inc. v Medeva plc [1997] RPC 1 at p. 45:

“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision and emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved.”

Further, in the present case, the judge’s conclusion to a large extent did turn on the credibility of, and the impression made by, the witnesses and the weight which he attached to particular pieces of evidence.

Mrs. Talbot Rice referred us to various incidents going back to the 80^th birthday party of Mrs. Krol in November 1991 and forward to Mrs. Krol’s admission to hospital in April 1995 in support of the argument that Mrs. Krol lacked testamentary capacity on 24 June 1994. But all those incidents are noted by the judge, who regarded two matters, together with the fact of dementia in June 1994, as raising real doubt about Mrs. Krol’s testamentary capacity, viz. her failure to recognise Francis’s wife when Francis and his wife visited Mrs. Krol in September 1993, and Mrs. Krol’s lack of understanding, her confusion and her conduct generally in relation to cash withdrawals made by her almost daily from the bank and in dressing inappropriately at times (for instance, wearing night-clothes under her coat) when she visited the bank on her own as she did from October 1993 to May 1994.

However, as against that, the judge relied on the following matters in particular.

Mrs. Krol’s accountant, Mrs. Willoughby (who was also a qualified solicitor) gave evidence, which the judge accepted, of discussing with Mrs. Krol the apportionment, as between Mrs. Krol and Mrs. Atherton, of income from the Treasury deposit account for the purposes of Mrs. Krol’s tax return. The judge said that that indicated an awareness on the part of Mrs. Krol of her business affairs and an ability to communicate with her accountant. Mrs. Talbot Rice submitted that the witness statement and oral evidence of Mrs. Willoughby did not justify that finding. I do not agree. In para. 20 of the witness statement Mrs. Willoughby had said that Mrs. Krol had told her of the transfer of the Treasury deposit account into the joint names of herself and Mrs. Atherton. She continued:

“She was clearly aware of what she had done and its effect and I needed to discuss it with her in order to apportion the interest on the account between her and Mary. She was perfectly normal and business like about [sic].”

The latter sentence is obviously incomplete, but the clear inference is that Mrs. Willoughby needed to discuss the apportionment with Mrs. Krol and did so, and that in that discussion Mrs. Krol was normal and business-like. Mrs. Willoughby was cross-examined only on whether it was Mrs. Krol or Mrs. Atherton who had told Mrs. Willoughby about the account going into joint names. It was not put to her that para. 20 of the witness statement was otherwise incorrect. The judge was entitled to give weight to that evidence. He was also entitled to give weight to Mrs. Willoughby’s evidence that Mrs. Krol was perfectly able to discuss her finances, and to the absence after December 1993, when Mrs. Willoughby last met Mrs. Krol and when, the judge found, Mrs. Krol had testamentary capacity, of further incidents which raised new and different doubts about Mrs. Krol’s capacity.

The next reason given by the judge was Mrs. Atherton’s own evidence that Mrs. Krol was perfectly capable of understanding her business affairs. The judge commented that he treated her evidence with caution as it was essentially self-serving. Mrs. Talbot Rice relied on that comment as well as an earlier comment by the judge that Mrs. Atherton in many instances was unable to accept that the friend she knew and loved was deteriorating, and suggested that no real weight could be given to that evidence by Mrs. Atherton as to Mrs. Krol’s capability to understand her business affairs. However, despite the caution with which the judge treated Mrs. Atherton’s evidence, it is clear that he was giving weight to her evidence on this point. The judge said that he had no reason to think that Mrs. Atherton was not genuinely consulting with Mrs. Krol about her affairs up to the date of the 1994 Will and beyond. We were told that Mrs. Atherton was not cross-examined on her statement in the letter of 31 May 1994 to Mr. Rawstron as to Mrs. Krol’s awareness of what she owned. In my judgment the judge was fully entitled to give weight to the evidence of Mrs. Atherton, whose honesty in relation to her dealings with Mrs. Krol has not been challenged.

The judge’s next reason for concluding that Mrs. Krol had testamentary capacity was the evidence of several witnesses that Mrs. Krol was capable of coherent conversation in June 1994. The judge does not there identify which witnesses he had in mind, but they appear to have included Mr. Hatt and Mrs. Norrington, Hilary Cooper (a neighbour who saw Mrs. Krol in the street regularly), Ms. Sandra Hardy (a bank clerk at the branch of Barclays Bank visited almost daily by Mrs. Krol), Dr. Brown and Mrs. Victoria Blackwell (Mrs. Krol’s hairdresser to whom Mrs. Krol went weekly or fortnightly between 1992 and 1995 and who detected no deterioration in Mrs. Krol’s capacity over that period apart from the fact that she became “a bit less bubbly”). Mrs. Talbot Rice pointed to the evidence given by Ms. Hardy of Mrs. Krol’s confusion (the inappropriate dress on occasions, the repeated withdrawal of cash clearly beyond Mrs. Krol’s needs followed at times by a return to the bank to ask if she had taken money out or to seek help in finding it about her person and the fact that Ms. Hardy would on occasions point Mrs. Krol in the direction of her home). But what is significant is not only that Ms. Hardy did not think that Mrs. Krol was anything other than a bit eccentric, with favourite topics about which she constantly talked, but that she and the bank were sufficiently unconcerned about Mrs. Krol’s mental capacity that they continued to honour her instructions when Mrs. Krol withdrew cash and Ms. Hardy even assisted Mrs. Krol by filling in the withdrawal forms for her to sign. The judge was somewhat critical of the evidence of Dr. Brown and Mrs. Blackwell because each had seen no signs of mental problems in Mrs. Krol even in March 1995, Dr. Brown on the very day Mrs. Krol had been admitted to hospital. With respect to the judge, that may have been a little unfair on those witnesses. Mrs. Krol might well have presented to them as quite normal at the time of day they saw her (the visits to Mrs. Blackwell were always in the morning) and even on 29 March 1995 it could be that something, such as a stroke, occurred after Dr. Brown’s visit.

One other small point, which the judge did rely on, relating to Mrs. Blackwell’s evidence, was the fact that Mrs. Krol was able to remember her appointments at the hairdresser which she routinely arranged before leaving the salon.

Finally, the judge relied on the evidence of Mr. Hatt and Mrs. Norrington who formed the view that Mrs. Krol understood the Will and knew what she was doing. The judge thought it significant that Mrs. Krol recognised that she had no surviving relations and indicated that she was extremely grateful to Mrs. Atherton and that this was her motive for leaving the bulk of her estate to Mrs. Atherton. Mrs. Talbot Rice rightly pointed out that the judge’s description of what was said came from Mr. Hatt’s witness statement which the judge had not allowed to be treated as Mr. Hatt’s evidence in chief and that in his oral evidence Mr. Hatt had merely said that Mrs. Krol was aware that she was leaving the residue to Mrs. Atherton. Strictly the judge was wrong to have treated the witness statement as evidence before him, but the evidence of Mrs. Willoughby, Mrs. Atherton’s statement in the letter of 31 May 1994 as to Mrs. Krol’s awareness of what she owned and Mr. Rawstron’s letter of 20 June 1994 telling Mrs. Krol that the residue was likely to be substantially in excess of £500,000 all support the inference that Mrs. Krol knew that the residue would exceed the £107,000 of pecuniary legacies and accordingly would represent the bulk of her estate. Thus I doubt the significance of Mrs. Talbot Rice’s point. Mr. Hatt’s and Mrs. Norrington’s evidence of Mrs. Krol’s words and actions at the time of the execution of the Will is powerful support for the judge’s conclusion on capacity.

In my judgment, the judge was justified on the evidence in holding that Mrs. Krol (who had executed 6 testamentary instruments before 24 June 1994 and had given the instructions to Mr. Rawstron to draft a new Will) did have the capacity to understand the nature of the act of making a Will and its effects, did have the capacity to understand the extent of the property of which she was disposing and was able to comprehend and appreciate the claims to which she ought to give effect. On the last point, she knew that she had no surviving relatives, she knew that the Claimants had an expectation of inheriting from her and so gave them significant legacies, with her godson, Francis, who had loyally visited and kept in touch with her, far more than Maxine and Gloria, getting twice as much as they did, and she was well aware of how good her close friend, Mrs. Atherton, had been to her. In Masterman-Lister at para. 82 Chadwick L.J. pointed out that on a question of capacity the outcome was likely to be an important, although not conclusive, indicator of the existence or lack of understanding. In the present case, the outcome is dispositions in a straightforward Will which are entirely sensible, the reason for the major disposition, the gift of residue, having been rationally volunteered by Mrs. Krol herself to Mr. Hatt at the time of the execution of the Will. In my judgment, the judge was entitled to conclude on the evidence that Mrs. Krol did have testamentary capacity.

The present case is not one where undue influence is alleged against Mrs. Atherton, although undoubtedly she played a significant part in the preparation of the 1994 Will under which she took the chief benefit as residuary legatee. It is not a case where the chief beneficiary has procured that his or her own solicitor should draw up the Will. On the contrary: although the judge decided to ignore the evidence of Mrs. Atherton that the initiative for the letter of instructions came from Mrs. Krol, those instructions went to Mrs. Krol’s solicitor, who had acted for her for over 20 years and who drew her earlier Wills, and it is not suggested that the instructions did not represent Mrs. Krol’s own wishes. Mr. Rawstron’s letter of 20 June 1994 to Mrs. Krol properly drew her attention to the effect of the gift of residue. That she wanted Mrs. Atherton to receive the residue was confirmed by Mrs. Krol to Mr. Hatt and her motive in so doing was explained by her. Mrs. Atherton gave proper effect to Mr. Rawstron’s recommendation that an independent solicitor should be an attesting witness and should ensure that Mrs. Krol understood the Will: Mr. Hatt, with all his experience, was an admirable choice by Mrs. Atherton as was the suggestion that Mrs. Norrington accompany her father. The Will, as drafted by Mr. Rawstron, fully implemented Mrs. Krol’s instructions.

It is plain from the evidence that Mrs. Krol knew that she was executing a Will on 24 June and that she understood this straightforward Will’s contents. The only challenge made by Mrs. Talbot Rice proceeds on the premise that affirmative proof is needed of the knowledge of a testator that the dispositions made by the new Will represent a significant change in financial terms to the dispositions made by the previous Will. That premise is said to be founded on two authorities to which we were referred.

The first is Marsh v Tyrrell (1828) 2 Hagg. Ecc. 84. That was a case in which the testatrix was found to have made a new Will, at a time when her faculties were much impaired, under the undue influence of her husband, who under that Will took her estate absolutely subject only to some small legacies, whereas under the previous Will of the testatrix the principal objects of her bounty were quite different. Sir John Nicholl said (at p. 121) that to revoke the former will by the new Will it was necessary to prove that the testatrix recollected the general contents of the previous Will.

In the second, Kenward v Adams, The Times, 29 November 1975, in a very brief report Templeman J. is reported as having stated certain precautions which should be taken where a solicitor is drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed alterations should be discussed with the testator.

Neither case seems to me to lay down a universal rule. The statement in the first was made in the context of the particular facts where undue influence was alleged and proved. The second, which is too briefly reported to be of much assistance, contains prudent guidance for solicitors and does not purport to lay down the law. In my judgment, it is for the court to determine in the particular circumstances of the case before it whether the requisite knowledge and approval has been proved. I do not doubt that in some circumstances the court will rightly insist on evidence that the testator had the earlier testamentary dispositions in mind in order to test whether he truly intended to make the new dispositions under the new Will. However, in the present case, having regard to the absence of any relations and of other claimants on Mrs. Krol’s bounty other than the Claimants and Mrs. Atherton, I do not accept that that is necessary in order to establish knowledge and approval. Both the 1987 Will and the 1994 Wills are straightforward Wills. In 1987 Mrs. Krol must be taken to have regarded the Claimants as having the prior claims on her bounty. By 1994 the position had changed because of all that Mrs. Atherton had been doing for Mrs. Krol. Mrs. Krol was still recognising that the Claimants had a claim, but they were not relations and Mrs. Krol was grateful to Mrs. Atherton for being so good to her.

As is shown by this court’s examination in Fuller v Strum [2002] 1 WLR 1087 of the question of knowledge and approval in a case where a beneficiary under a Will has been involved in the preparation of the Will, it is relevant to consider the degree of suspicion aroused by the circumstances of the case, including the dispositions in the Will. On the facts of this case, that degree of suspicion is low and has been dispelled.

In any event Mrs. Krol knew that she was making different dispositions by the 1994 Will because in the instructions to Mr. Rawstron she said that she wanted a new Will. She further knew that in the 1987 Will she had appointed executors whom she wanted to be the executors in the new Will. Further, by the first paragraph of the 1994 Will she revoked the former testamentary dispositions. The Will, which was read to Mrs. Krol, carried out the instructions which she gave to Mr. Rawstron, and she confirmed to Mr. Hatt that its dispositions were what she intended.

In my judgment, the judge was plainly right to hold that on the evidence knowledge and approval had been established.

For these reasons, despite Mrs. Talbot Rice’s well sustained arguments, I would dismiss this appeal.

I, too, would dismiss this appeal. It is with diffidence that I add some observations of my own to the full analysis of the facts and the law which Lord Justice Peter Gibson has already set out in his judgment and with which I agree.

It is important to keep in mind that no attack was made before the judge, or in this Court, on Mrs Atherton’s integrity. In particular, it was not suggested that Mrs Atherton was acting otherwise than as an honest friend in giving help and assistance to Mrs Krol in the management of her affairs; nor that Mrs Krol’s generosity towards her was to be attributed to anything other than an unprompted desire to mark their close friendship. There can be no doubt that Mrs Krol placed trust and confidence in Mrs Atherton; but this is not a case in which it was alleged that that trust and confidence was abused. Undue influence was not an issue raised in these proceedings. The challenge to the 1994 Will was founded, exclusively, on allegations of want of testamentary capacity and want of knowledge and approval – see paragraph 5 in the particulars of claim.

The judge thought that there was no real dispute between the parties as to the capacity which the law requires in a testator who seeks to dispose of his property by will. He directed himself, at paragraphs 10 and 14 of his judgment, by reference to the well known passages in Bankes v Goodfellow (1870) LR 5 QB 549, 565 and Den v Vancleve (1819) 2 Southard589, 660 – cited with approval in Bankes v Goodfellow at 567/8. The appellants have no quarrel with that. The judge appreciated, also, that the burden of proving soundness of mind lies on those propounding the will in the light of all the evidence before the court. At paragraph 15 he said this:

“There may be a shifting burden since where a will is duly executed and appears rational, the court will presume capacity. But once a real doubt is raised about capacity, the burden is . . . on the propounder of the will to establish capacity.”

After reviewing the evidence in a most careful and meticulous judgment, the judge reached the conclusion that, by June 1994, Mrs Krol’s mind was impaired by dementia. But, as he observed, the expert medical evidence before him was to the effect that a diagnosis of dementia did not, necessarily, lead to the conclusion that she was without testamentary capacity at the time when she executed the 1994 Will. At paragraphs 242-244 of his judgment he said this:

“242.

Faced with that, I do not propose to decide the scale of Mrs Krol’s dementia. Instead, I go straight to the question which needs to be answered, that is to say whether Mrs Krol had testamentary capacity on 24 June 1994. I have to decide on the facts whether Mrs Krol did or did not lack capacity whatever may have been her state of dementia and in doing so must apply the tests and burden of proof which I have already mentioned (see 10 to 15 above).

243

In my judgment, a number of the incidents which I have noted . . . are indicative of dementia which, on any view, was at least mild to moderate by June 1994, and possibly more severe. . . . These incidents, and the fact of the dementia in June 1994, raise in my mind a real doubt about Mrs Krol’s testamentary capacity.

244.

The burden of proof is therefore on Mrs Atherton to establish that capacity. In my judgment the totality of the evidence is sufficient to displace that doubt so as to satisfy me that, on a balance of probabilities, Mrs Krol had testamentary capacity.”

The judge recognised, correctly, that there will be cases in which a testator’s capacity to understand the effect of what he is doing is limited by defects in memory or comprehension; so that – absent some proper assistance by way of reminder or explanation - it cannot be said that “his mind and memory [were] sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will”: Stevens v Vancleve 4 Washington at 267, cited in Bankes v Goodfellow at 568. As the judge put it, at paragraph 13 of his judgment:

“. . . in the present case, it may be that Mrs Krol was capable of understanding the effects of the dispositions of the 1994 Will but only if those effects were explained to her, which on one view, they were not. Further, she may have needed to have her memory jogged in relation to the claims of beneficiaries other than Mrs Atherton; and, at least at the meeting when the will was witnessed, there was no such reminder.”

The judge returned to that point at paragraph 252 of his judgment. After referring to the decision of Mr Martin Nourse QC in In re Beaney [1978] 1 WLR 770, he said this:

“It might be suggested that although Mrs Krol was capable of appreciating (i) the effect of the 1994 Will on her previous dispositions under her prior will or (ii) the extent of the property which she was disposing of (sic), she was not capable of doing so without explanation (and none was given).”

But he held that there was nothing in the evidence which would justify a finding, in this case, that the testatrix was capable of understanding those matters, but only if they were explained to her. As he put it (ibid):

“It seems to me that the evidence is either sufficient to establish testamentary capacity or it is not: there is no room for a half-way house.”

The judge was satisfied, for the reasons which he gave, that Mrs Krol was capable of understanding what she was doing without the need for further explanation. He held that she was capable of understanding the nature of the testamentary act and its effect and the extent of the property of which she was disposing; and that she was able to comprehend and appreciate the claims on her bounty to which she ought to give effect. I agree with Lord Justice Peter Gibson, for the reasons which he has set out in his judgment, that that was a conclusion which the judge was entitled to reach on the evidence before him.

The appellants submit that it was not enough for the judge to hold (as he did) that Mrs Krol had capacity to understand what she was doing, the effect of the testamentary act and the extent of the property of which she was disposing; and that it was not enough that she was able to comprehend and appreciate the claims to which she ought to give effect. What the judge needed to find was proof of actual understanding, comprehension and appreciation. The point is made at paragraph 1 of the grounds of appeal; and is elaborated at paragraph 10 of the skeleton argument lodged on their behalf:

“In a case of doubtful testamentary capacity (as this one was), in order to establish capacity, the person propounding the will must show that the testator actually recalled, understood and appreciated (amongst other things) [a] the nature and extent of his property and, [b] if the new will presents a significant change from the last will, that significant change - and there was no such proof in this case. . . . [I]n finding that the deceased had testamentary capacity, without any evidence that in June 1994 the deceased herself actually recalled, understood and appreciated the nature and extent of her property or that the 1994 Will represented a significant change in financial terms to the dispositions made by her previous will, or had the same explained to her the Deputy Judge applied the wrong test in law.”

That submission, as it seems to me, betrays a failure to appreciate that the requirements of testamentary capacity and knowledge and approval are conceptually distinct. A finding of capacity to understand is, of course, a prerequisite to a finding of knowledge and approval. A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity – the ability to understand what is being done and its effect – is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.

Whether those are inferences which should be drawn depends, of course, on the facts of the particular case. The fact that a beneficiary has been concerned in the instructions for, and preparation of, the will excites suspicion that the testator may not know the contents of the document which he signs – or may not know the whole of those contents. The degree of suspicion – and the evidence needed to dispel that suspicion – were considered by this Court in Fuller v Strum [2001] EWCA Civ 1879, paragraphs [32]–[36], [73], [77], [2002] 1 WLR 1097, 1107C- 1109A, 1122A-C, 1122G-1123C.

Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.

In the present case the judge found that the 1994 Will was read over to Mrs Krol immediately before she signed the document and she confirmed to Mr Hatt that it gave effect to her intentions. In the light of those findings he was bound to hold that she knew the contents of the will. The dispositions made by that will were straightforward and wholly rational. Those dispositions did take account of the claims on her bounty which she had recognised in her earlier will. There was nothing surprising in her desire that her close friend, Mrs Atherton, should take a substantial part of her estate; and, given the way in which that friendship had developed over the years since the death of Mr Krol in 1985, nothing surprising in the difference, in that respect, between the earlier will and the 1994 Will. The judge had held that Mrs Krol was able to understand what she was doing and its effect without explanation, information as to the extent of her estate or an analysis of the manner in which she was departing from her earlier will. He was entitled to take the view that she knew and approved the contents in the wider sense – that is to say, that she did, in fact, understand what she was doing and its effect. He made no error of law.

I agree with both judgments and accordingly I also would dismiss this appeal.