Greaves v Stolkin

Mr Leslie Stolkin (“Leslie”) died aged 75 on 24 September 2009. He left a will dated 3 December 2001 (“the Will”). He had also, some seven weeks before his death, executed a codicil (“the Disputed Codicil”). This case concerns the validity of that document. The claimant, Mrs Pauline Greaves, asks the Court to pronounce in solemn form of law for the Disputed Codicil as well as the Will. Her claim is resisted by one of the deceased’s sons, Mr Gary Stolkin (“Gary”). He disputes the validity of the Disputed Codicil on two grounds:

The other parties to the litigation before me are H Montlake & Co (“Montlakes”), a firm of solicitors based in Ilford, Essex. Mrs Greaves and Gary have each brought a Part 20 claim against Montlakes in connection with their involvement with the Disputed Codicil. It has been agreed between the parties that consideration of those claims should be deferred until after I have given judgment on the validity of the Disputed Codicil.

For convenience, I shall refer to members of the Stolkin family by their first names in this judgment. No disrespect is intended.

Leslie was born on 6 September 1934. He married in 1958, but he and his wife were divorced in 1989. In the following years, he had a relationship with a Mrs Marcelle Kennedy, but the two had parted company by 1996. After they had separated, Leslie bought a house for Mrs Kennedy.

Leslie met Mrs Greaves in 1996. Mrs Greaves had married in 1962, but she and her husband had separated in 1990, and in 1996 they were divorced. Mrs Greaves moved in with Leslie in about September of the following year, and they continued to live together up to his death. They initially shared a flat that Leslie owned in Chigwell, Essex. In 2003, they moved to a cottage elsewhere in Chigwell, and in 2006 they moved to a third property in Chigwell, the house at 14a Forest Terrace where Mrs Greaves is still living now.

Leslie and Mrs Greaves each had two children from their marriages. The elder of Leslie’s children, Gary, was born on 26 March 1960 and is the defendant to the present proceedings; Mark, Leslie’s younger son, was born on 17 June 1961. Mrs Greaves’ son is likewise called Mark. She also has a daughter, Mrs Jane Mathias.

By the time Mrs Greaves came to know Leslie, he was no longer working on a full-time basis. He was a chartered surveyor and in earlier years had had an estate agent’s business. From about 1988, however, Leslie worked relatively little, though he would undertake property transactions from time to time.

For her part, Mrs Greaves had two jobs as a part-time receptionist when she met Leslie. She gave up work once she and Leslie were in a relationship. Thereafter, Leslie made monthly payments to Mrs Greaves by way of housekeeping allowance. From 2006 onwards, the payments were of £1,000 a month.

By the late 1990s, Leslie had been a client of Montlakes for many years. The position changed after Leslie had become involved in some litigation about a development on the Isle of Wight. The case ended badly from Leslie’s point of view and cost him a great deal of money: Mrs Greaves said that he told everybody that he had lost £0.5 million. Leslie had allowed the claim to proceed to trial despite being advised by Montlakes and counsel that there was a real possibility of defeat: as Mr Michael Bonehill, Montlakes’ senior partner, explained in cross-examination, “on anything involving litigation [Leslie] had problems … in that he had a very large ego, and whatever his opinion was on a subject matter was right”. None the less, Leslie did not instruct Montlakes on any new matters for some time. For a while, Leslie and Mr Bonehill, who had hitherto been close friends, did not meet socially, either. However, they resumed their friendship a year or two after the Isle of Wight debacle. Montlakes continued throughout to be instructed by Mark. They also, though to a far smaller extent, undertook work for Gary.

On 3 December 2001, Leslie made the Will. This provided for Gary to receive the whole of Leslie’s estate if he survived his father, failing which the entire estate was to pass to Mark. Gary was also named as the sole executor and trustee.

The Will did not include any provision for Mrs Greaves. Leslie did, however, refer to Mrs Greaves in manuscript notes he made about his estate. A note dated 23 April 2001 that Leslie gave to his sons listed various assets, including the flat where he and Mrs Greaves were living at the time. In respect of this, Leslie wrote, “Pauline remains as agreed”. Later in the note, he said, “Give Pauline £25,000 + £1500 per month for 5yrs. Or if she prefers £100,000”. In another note, dated 21 October 2004, Leslie wrote, “give Mini to Pauline or Mercedes if she wants it” and:

“Give Pauline £150,000 + car + £900 per month until she dies or cohabits or marries?”

In the latter part of 2007, Leslie wrote out and signed a document described as a “codicil” dealing with provision for Mrs Greaves. This document (“the Purported Codicil”) read as follows:

“This is a codicil to the will of Leslie Stolkin leaving his estate to Gary Stolkin

The transfer of the estate is subject to the following conditions [:]

(1)

Mrs P. Greaves can remain at the above property [i.e. 14a Forest Terrace, where Leslie and Mrs Greaves were both living] for as long as she likes paying only the normal bills

(2)

The estate of Gary Stolkin will pay Mrs P. Greaves £1000 (one thousand pounds) each month for as long as she lives on the 1^st of each month

(3)

If Mrs Greaves does not wish to remain in the house she shall give 3 months notice whereupon she can purchase an alternative property to the value of £375,000 in the name of Gary Stolkin and condition (1) will apply

(4)

Mrs Greaves will retain the car she is driving at the time of death

(5)

In the event of cohabitation by Mrs Greaves other than with her son or daughter this codicil is extinguished”.

The date with which the Purported Codicil was headed is 14 October 2007. At the foot of the document, the signatures of Leslie and Gary appear next to the date “2.11.07”. Leslie and Gary are stated to have signed “in the presence of each other”.

Gary explained in evidence that his father had asked him to sign the Purported Codicil when visiting his flat. His recollection was that his father had said something along the lines of “Pauline wants to know that she’ll be okay and can stay in the house”. Leslie took the original document home with him, but he gave Gary an envelope containing an unsigned copy of it. Gary said that he did not read the Purported Codicil until the evening of 5 August 2009, the day on which the Disputed Codicil was executed.

It is common ground between the parties that the Purported Codicil does not comply with the requirements of a legally enforceable codicil. Leslie’s signature was not made or acknowledged by him in the presence of two witnesses.

A number of those who gave evidence in these proceedings referred to Leslie having spoken to them about provision for Mrs Greaves. Mrs Greaves’s son Mark said that Leslie had told him that he had arranged for Mrs Greaves to be looked after when he was gone. Mrs Jane Mathias, Mrs Greaves’ daughter, said that Leslie had told her that her mother would “live and die” in Forest Terrace and that he had provided for her to receive a monthly allowance. Various friends of Leslie also testified to having been told about provision for Mrs Greaves. Mr Leslie Budge said that Leslie had indicated to him on more than one occasion that he intended Mrs Greaves to be able to continue to live in the Forest Terrace house. Mr Jack Petchey said that he too had been given to understand that Leslie intended to ensure that Mrs Greaves would be comfortable after his death. Mr Tommy Walker and his wife Mrs Susan Walker both said that they had been told by Leslie that Mrs Greaves would be able to live in the Forest Terrace house for the rest of her life and also have a monthly income. Mr Sidney Jefcoate, who has died but from whom I have a witness statement, said in it that he had been told by Leslie that Mrs Greaves would have the benefit of a home for life and an income to maintain her. Mr Jim Casey, who has also died, stated in a witness statement that Leslie had expressed the wish that Mrs Greaves should live the rest of her life in the Forest Terrace house. Mr Norman Raven, a cousin of Leslie who was called by Gary, gave evidence to similar effect. He said that Leslie had told him two or three years before his death that he had provided for Mrs Greaves to have the house for life.

Especially towards the end of his life, Leslie would drink to excess. Leslie had evidently drunk quite heavily for some years, but Mr Bonehill observed that “in later years his drinking became uncontrollable”. Mrs Greaves said that Leslie “became more an alcoholic in the last few years”. Mark likewise described his father as an alcoholic. Gary reckoned that his father had become a “hardened alcoholic” by 2002 or 2003. Some of the behaviour blamed on alcohol may in fact have been attributable to motor neurone disease. Even so, it seems clear that, as his sons said, Leslie had become an alcoholic.

Leslie’s drinking was evidently a source of some tension between Leslie and Mrs Greaves. Mrs Greaves said that she and Leslie “sometimes argued over his drinking”. Mark said that the relationship between his father and Mrs Greaves “was seemingly good at first and then strained in the later years, which is not surprising bearing in mind my father’s addiction to alcohol worsened”. Mrs Greaves’ son Mark said in his witness statement that the last few years of Leslie’s life were “very hard for everyone”.

Somewhat earlier, in 2004, illness had also imposed a strain on the relationship. At this stage, Mrs Greaves was in and out of hospital with gall bladder problems. In consequence, she withdrew from everyday life for six months or so. In Mrs Greaves’ words, she “could not cope at that time with [her] own illness and with the deceased’s drinking and [she] said [she] was going to leave”.

Mr Raven felt that the relationship between Leslie and Mrs Greaves had completely broken down by the time Leslie himself went into hospital in 2009. Mr James Fuller, who worked at Chigwell Golf Club (where Leslie spent a great deal of time), perceived the relationship as an “unusual” one and “extremely strained” in Leslie’s final years. According to Gary, his father sometimes said that he wanted to split up with Mrs Greaves. Mr Jaime Tanner-Netto, Gary’s partner, had the impression that Leslie and Mrs Greaves were not close.

Other witnesses, however, saw matters differently. Mr Bonehill understood Leslie and Mrs Greaves to live as man and wife. Mr and Mrs Walker saw them as “a very happy couple together”. Mr Sam Dias, a friend, said that, although Leslie and Mrs Greaves “had their tiffs like all couples do”, they were “absolutely a couple”. Mrs Susan Cox, who worked (and still works) at Chigwell Golf Club, said that she regarded the two as a couple. Mrs Audrey Mullings, a nurse who met Leslie very shortly before his death, said that she was told by Leslie that he and Mrs Greaves had been partners for 15 years. Mr Cliff Krieger, a close friend of Leslie, regarded Leslie and Mrs Greaves as a “loving caring couple”. Not long before his death, when in St Thomas’ Hospital, Leslie told Mr Krieger that Mrs Greaves had been wonderful to him. It is also noteworthy that Leslie described Mrs Greaves as his “partner” when speaking to Mr Fuller. Gary similarly referred to Mrs Greaves as his father’s “partner” in a witness statement.

Leslie bought two Mercedes cars for Mrs Greaves. The first was purchased in 2001 and sold in 2008. At that stage, Leslie gave Mrs Greaves a second Mercedes. Mrs Greaves was the registered keeper of both vehicles.

Over the years, Leslie made substantial payments to or for the benefit of Gary. In 2006, he provided around £500,000 of the money Gary needed to buy a flat in the south of France. In 2008, after Gary’s employment as chief executive officer of The Talent Business (which provides talent to communication agencies and creative businesses) had been terminated, Leslie assisted with a management buy-out, contributing £240,000. The parties differ as to whether these payments represented gifts to Gary or were loans.

Mark also played a part in the management buy-out of The Talent Business, lending his brother £740,000. Mark has clearly enjoyed great success in business and achieved very considerable personal wealth. It was for this reason, presumably, that the Will made no provision for Mark unless Gary predeceased Leslie.

On 29 April 2009 Leslie collapsed at home and was admitted to Whipps Cross Hospital. A few days later he was transferred to the hospital’s intensive care unit, and he remained there for some 12 weeks. He was intubated and ventilated from 1 May, and on 11 May a tracheotomy was performed. He was fed through a tube in his nose.

In early July 2009 Leslie was transferred to the Lane Fox Respiratory Unit at St Thomas’ Hospital in central London. By 23 July, he had been diagnosed as suffering from motor neurone disease.

By 10 July 2009 Mark had contacted Montlakes about the possibility of his father executing a “living will”. At Mark’s instigation, Mr Paul Renda, a South African-qualified attorney who was working for Montlakes, drafted three documents: a “living will” (i.e. an “Advance decision to refuse medical treatment”) and lasting powers of attorney by which Leslie would appoint Mark to make decisions on his behalf in relation to both his personal welfare and his property and affairs. All the documents were executed on 19 July, a Sunday, when Mr Bonehill and Mr Renda visited Leslie in hospital.

Mark explained the background in these terms in a witness statement:

“Leslie spoke to me a number of times with regard to potentially going to Switzerland where voluntary euthanasia was legal. I spoke to Leslie with regard to this matter in detail and through discussion he decided he wanted to have a Living Will so that he wasn’t resuscitated if he did have another cardiac arrest. I also discussed with him that there was the potential that he would become unable to administer his own affairs and that he should have a Power of Attorney created for someone. He wished for both to be carried out and I said to him that I would ask Michael Bonehill to do so which he was in agreement with. When discussing the Power of Attorney with [Gary] he was quite adamant that it should not be himself or I who had the control but somebody independent, which at the time I found somewhat strange. Subsequently when talking to Leslie about what [Gary] said and I told him everything i.e. that [Gary] did not want me to have to be the person with the Power of Attorney he said ‘bollocks’ … you are to be the person with the Power of Attorney”.

Shortly before the “living will” and powers of attorney were executed, there was discussion between Mrs Greaves and Mark about the Purported Codicil. Mrs Greaves’ recollection was that Mark had raised the matter with her. Mark, on the other hand, thought that it was Mrs Greaves who had brought the subject up. In cross-examination, he said:

“I do recall a conversation with [Mrs Greaves] where she told me she was very worried about what would happen if and when Leslie died, and whether she was going to be okay, and she said to me that she had a handwritten letter [which] specified what should be done to look after her, and she was worried whether it would be legally enforceable or binding or not, and she wanted me to have a look at it”.

Mark’s recollection is, I think, likely to be the more reliable in this respect, but nothing turns on the point. Either way, Mrs Greaves had supplied Mark with a copy of the Purported Codicil by Saturday 18 July 2009, and he then offered to show it to a lawyer.

On 21 July 2009 Mark sent Mr Bonehill a copy of the Purported Codicil, and they spoke about it on the telephone the next day. Mr Bonehill advised that the document had not been validly executed. Also on 22 July Montlakes commented more fully on the Purported Codicil in an email to Mark that was sent in Mr Bonehill’s name but had been drafted by Mr Renda. After discussing various aspects of the Purported Codicil and, too, the possibility of Mrs Greaves having a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the email concluded:

“Perhaps you would contact me at the telephone to discuss the above and agree the way forward. I could prepare a properly worded Codicil covering the position but would need Leslie’s instruction in that regard, together with a copy of Leslie’s present Will”.

A couple of days later, Mark went on holiday with his family. He returned on Saturday 1 August and went to see his father on the same day. During this visit, he talked to his father about the Purported Codicil. He explained his thinking in these terms during cross-examination:

“My decision to get involved was based on the fact that I thought my father had the right to know that what he signed wasn’t legally enforceable … and I felt that it was a conversation I could have with him because [of] the style of relationship we had; he would be open with me and would tell me no”.

Mark said this about his visit to his father in a witness statement:

“12.

… I told my father that [Mrs Greaves] had given me a copy of the 2007 Codicil and that Michael Bonehill confirmed that this was invalid. I told my father that if he wished for his intentions to be documented properly he would need to instruct a solicitor to put matters in order.

13.

At first my father was somewhat indifferent to properly documenting the Codicil and I made it clear if he wanted it to be legally enforceable he should rectify the matter, and if he didn’t want the Codicil to be enforceable he should just forget the matter. After discussing the matter further he said that he didn’t think the annual payment should be paid as [Mrs Greaves’] daughter had money and could support her. I made the point that I thought he had an obligation to [Mrs Greaves] after so many years but it was up to him to decide. He made no similar objection relating to [Mrs Greaves] staying in the house and I recall discussing that the 2007 Codicil had a reference to a replacement property of value £375,000. I made the point that if that element of the Codicil was to be effective in say 15 years time the figure would not reflect a proper value for a replacement property which he understood and agreed that the value of the house at the relevant time was more applicable in terms of a replacement.

14.

I recall my father telling me at first to do whatever I wanted but I told him I would not do anything without his specific instructions. I had no knowledge of his financial affairs but did not consider the annual payment proposed to be significant and certainly did not think it would be a critical or major issue.

15.

After our discussion, my father said I should contact Michael Bonehill so that he could prepare a Codicil putting into effect what was in the 2007 Codicil but in proper legal terms and addressing the house value issue. I recall my father being very clear. I have no doubt that my father fully understood what we were discussing and the effect of executing a new Codicil at the time we discussed the matter. However due to his state of health I am not sure how much importance he attributed to the matter”.

Asked in cross-examination about his reference to his father having been “somewhat indifferent”, Mark said that his impression was that his father:

“didn’t see it as an issue, particularly, whether it was legally enforceable or not, what he’d written in [the Purported Codicil]”.

After leaving his father, Mark telephoned Mr Bonehill, who was by now at a home he has in St Lucia. Mr Bonehill, in turn, sent Mr Renda a memo on Monday 3 August 2009 asking him to prepare a draft codicil. The email ended as follows:

“Once we have an agreed form of codicil I need you to go and see [Leslie] in an out of visiting hours appointment like we did before and you need to take Brian [Humphreys] with you as the second witness. If Leslie decides he does not want to sign it then so be it but I do not want to be in a position where he tells [Mrs Greaves] he has instructed a new codicil and we have not dealt with it or we will end up being sued by her. He is being as diffident about signing this as he was about signing the power of attorney and living will, which he signed easily when we saw him. Please ring me with any queries but obviously bearing in mind his state of health this needs to be dealt with with some urgency”.

By the following day, Mr Renda had drafted a codicil, which he emailed to Mark, who was by now at a home he has in South Africa. Mark responded by email later that day. After noting that he had not had time to read the draft in detail, he said:

“I do not have any authority to instruct you further on this matter and you will have to talk to Leslie to make 100% sure he is ok with the suggested new legally binding codicil (albeit he did say I could have one drafted)”.

Towards the end of the email, Mark said:

“I don’t want to get too involved in this matter as I am neither a beneficiary or paying the annuity and I don’t want anyone to suggest I had any motive except to ensure what Leslie intends to happen does so and is legally enforceable”.

Mr Renda made arrangements through St Thomas’ Hospital to see Leslie the next afternoon. He went to the hospital with Mr Brian Humphreys, who works for Montlakes as an administrator. When they arrived, they found that Leslie had visitors with him; the likelihood is that these were (or included) Mrs Greaves and Mr Krieger. Mr Renda summarised what ensued in an attendance note he prepared on his return to Montlakes’ offices:

“The nursing staff advised at approximately 3:40pm that [Leslie] was now available to see us. [Leslie] was still sitting in a chair next to his bed and was in good humour. I clarified with [Leslie] the purpose of the visit, said that we had received instruction from his Son Mark to knock the hand-written Codicil into shape from a commercial point of view. I re-iterated to [Leslie] that he was certainly under no pressure to sign the Codicil (either at that point or indeed at all). [Leslie] responded that he was quite happy to sign a new Codicil albeit he thought it was not strictly necessary on the basis that his boys (Gary and Mark) would provide for and take care of [Mrs Greaves]. I mentioned to [Leslie] that legislation existed that at least potentially allowed [Mrs Greaves] to bring a claim against the Estate.

I then went through the aspects of the Codicil, paragraph by paragraph and [Leslie] approved the Codicil as prepared. [Leslie] was perfectly lucid throughout and provided meaningful responses. By way of example, as to the motor vehicle [Leslie] said it was a Mercedes Benz motor vehicle and that motor vehicle was unlikely to be replaced. As to the aspect of the house, [Leslie] said it was fine that we had provided for replacement on two occasions but insisted that [Mrs Greaves] would not wish to move out of the house. [Leslie] clarified that his Will left everything to his Son Gary and that his Son Gary was appointed as the Executor of his Will.

[Leslie] approved the Codicil but said the only difficulty was that he was unable to sign. I said to [Leslie] that he could sign by the making of a mark but he said he would give signing a try. [Leslie] then signed the Codicil in what I regard as a perfectly acceptable manner. The Codicil was then witnessed by myself and Brian Humphreys who was present throughout.

After a short chat, [Leslie] excused ourselves having asked that I send a copy of the Codicil to his home and a further copy to his Son Gary.

Leaving the hospital at approximately 4pm and arriving back at the office at approximately 5pm”.

The Disputed Codicil is between two and three pages long. It provides for the following:

Mark was clearly told by Montlakes that his father had executed a codicil. At 8.33 pm on 5 August, Mark sent Mrs Greaves an email in which he said:

“Please don’t say that I told you as if Dad wishes to talk about it he will (also Gary I believe does not know, and that is for dad to tell him if he wishes to), but he has signed a proper codicil to his Will which I had prepared by lawyers that ensures you are protected properly in terms of his wishes”.

In the meantime, Gary had visited his father, at about 7 pm on 5 August. Gary gave this account of his visit in an email he sent to Mark on 10 August:

“On the day Paul Renda and the administrator from Montlakes (ie one lawyer) visited Dad, he wasn’t exactly on best form. I said ‘who has been to visit you today?’. Dad talked about various people who’d been to see him and then said ‘and two guys from Montlake’s’. I said ‘who from Montlake’s?’. Dad said ‘I don’t know, two guys’. I said ‘what did they want?’. Dad said, ‘Mark thinks I should do a Codicil for the Will. I think the letter I wrote you is fine but Mark thinks I need a Codicil’. I pretended I knew all about it and moved the conversation on because I didn’t want to get into a discussion with Dad about his Will and I didn’t want him to think I was in any way put out by this”.

According to Gary, later that evening, when he had returned home, he opened two envelopes that his father had given him: that containing the Purported Codicil and another containing the Will. Just after midnight, he sent an email to his brother in which he said:

“Dad wasn’t so good today. He was confused about the feeding valve and had got it back into his head that it would enable him to eat food orally. Completely irrational and also said that he would discharge himself and go home and that he could buy a ventilator for [Mrs Greaves] to operate. I’ve made an appointment for tomorrow with Nick, the doctor, so he can talk to Dad and me at the same time and clarify the position on various things for Dad. Dad mentioned that two lawyers came to see him today with a codicil for his will and that you had told him that he needed to do it. Not really bothered by this but curious to know why you chose not to share this with me and how he came to have two lawyers there without a next of kin”.

Mark sent an email in reply at 11.14 am on 6 August. Gary responded at 11.40 am. This email included this sentence:

“Dad asked me to let [Mrs Greaves] stay in the house and give her £1,000 a month all of which I would have done anyway but it is typical of Dad to scribble it on a piece of paper rather than have it done properly”.

In a similar vein, Gary told Mark on 7 August that he was not objecting to the Disputed Codicil. On 10 August, he wrote to Mark:

“1.

If you tell me that Dad asked you to get his Codicil sorted out and you executed his wishes to the best of your ability, I believe you.

2.

Not telling me about the contents of the Codicil – which are more onerous than the letter (which I would have honoured) and include, so far as I can tell, removing me as the sole Trustee – before the Codicil was executed is inexcusable”.

When giving evidence, Gary was inclined to think that his father had not used the word “codicil” when he saw him on 5 August. He suggested that he had probably learned that the document his father had executed was a codicil when speaking to Mark on the telephone during the evening of 5 August. In my view, however, the likelihood is that Gary did not speak to Mark on 5 August and that it was Leslie himself who told Gary that he had signed a codicil. My reasons include these:

While in St Thomas’ Hospital, Leslie succeeded in persuading the staff to let him have small amounts of whisky. He was given something that looked like a lollipop which he could dip in whisky and then suck.

On Friday 11 September 2009 Leslie was transferred from St Thomas’ Hospital to the Jacob Centre nursing home in Sawbridgeworth. In the middle of the following week, he discharged himself and returned home. He was re-admitted to St Thomas’ Hospital, but he promptly discharged himself again. On 22 September, he returned to Whipps Cross Hospital, and he died there on 24 September. The causes of death were type II respiratory failure and motor neurone disease.

At his death, Leslie owned 14a Forest Terrace and a Ferrari car valued at £65,000. He also held some £39,000 in a bank account in Gibraltar and small sums in accounts in this country and Spain. The extent, if any, to which his estate comprises other assets is in dispute. Mrs Greaves maintains that Leslie was owed large sums. She suggests, in particular, that loans totalling more than £800,000 were made to Gary.

A filofax that Leslie used contains two pages of manuscript notes which Mrs Greaves’ counsel, Mr James Stuart, suggested give an insight into the assets Leslie believed himself to have. The more interesting of the pages seems to have “owing 26^th 08” written at the bottom. During cross-examination, Gary expressed doubt as to whether these words had been written by his father, but it seems overwhelmingly likely that they were. Higher up the page, figures have been entered against Gary’s name. Arguably, the entries on the page, taken as a whole, indicate that Leslie considered that he was owed £275,000 by Gary.

In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ said (at 564) that a testator “shall understand the nature of the act and its effects”, “shall understand the extent of the property of which he is disposing” and “shall be able to comprehend and appreciate the claims to which he ought to give effect”. Further, “no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”.

In Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020 Briggs J drew attention to the need for a testator to have the “mental energy” for decision-making as well as adequate powers of comprehension. He noted (at paragraph 95) that “psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision-making, quite distinctly from old age and infirmity”. He went on (in paragraph 96):

“The evidence of the experts in the present case shows … that affective disorder such as depression … is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit”.

Guidance as to mental capacity is now to be found in the Mental Capacity Act 2005, section 2 of which states:

“(1)

For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)

It does not matter whether the impairment or disturbance is permanent or temporary.

(3)

A lack of capacity cannot be established merely by reference to–

(a)

a person's age or appearance, or

(b)

a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity”.

It was not, however, suggested by any counsel that this provision adds anything of importance to the common law authorities for the purposes of the present case.

As Briggs J explained in Key v Key (at paragraph 97), the following rules apply as regards the burden of proof on an issue as to testamentary capacity:

“(i)

While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less”.

Mr Stuart sensibly accepted that sufficient doubt had been raised as to Leslie’s testamentary capacity for Mrs Greaves to have the evidential burden of establishing it.

In this context, I have the benefit of expert evidence from Dr Andrew Barker and Professor H M Hodkinson. Dr Barker, who was called by Mrs Greaves, has been a consultant in old age psychiatry since 1997. Professor Hodkinson, who was called by Gary, is emeritus professor of geriatric medicine of University College, London. I have found the evidence of both helpful.

On a number of matters, Dr Barker and Professor Hodkinson are in agreement. Both consider that, when he executed the Disputed Codicil, Leslie is likely to have understood the nature and effect of a codicil and to have known who might expect to benefit from his estate. They also agree (a) that there is no evidence that Leslie was suffering from insane delusions at the relevant time and (b) that the hospital records indicate that in the period prior to 5 August 2009 Leslie had suffered from confusion as a result of a urinary tract infection.

Dr Barker and Professor Hodkinson none the less differ as to whether Leslie is likely to have had testamentary capacity when he signed the Disputed Codicil. Dr Barker believes that Leslie had capacity. Professor Hodkinson, on the other hand, takes the view that Leslie’s agreeing to and signing the document probably “represented passive acceptance of the document’s contents rather than it having embodied his own considered decisions”. Professor Hodkinson explained in his report that he considered it likely that:

A specific area on which Dr Barker and Professor Hodkinson part company relates to the period over which Leslie’s urinary tract infection caused confusion. Professor Hodkinson expressed his view in these terms:

“I consider it very likely that a period of delirium was caused by the urinary tract infection which became manifest on 18/7/09 but was likely to have been developing for a short period prior to that date. The period of delirium lasted for about four weeks, continuing well beyond 5/8/09, which is fully consistent with the Pseudomonas urinary tract infection having been responsible”.

In contrast, Dr Barker reads the evidence as indicating that Leslie had recovered from the urinary tract infection by 5 August.

Mr Andrew Child, who appeared for Gary, relied on seven factors as demonstrating the extent of Leslie’s impairment on 5 August. I shall take these in turn:

Turning to evidence given by witnesses of fact, the evidence of Mark, Mr Renda, Mr Humphreys and Mr Krieger strikes me as particularly important. Mark (an impressive witness) did not see his father on the day the Disputed Codicil was executed, but he had done so on 1 August and gave detailed evidence about that visit. He estimated that he and his father had spent some 10-15 minutes discussing the Purported Codicil and explained that the nature of his father’s questions had demonstrated an understanding of what they were talking about. He had, he said, no doubt that his father fully understood what they were discussing and the effect of executing a new codicil. Mr Renda and Mr Humphreys were similarly clear as to Leslie’s understanding on 5 August, when the Disputed Codicil was executed. Mr Renda noted in his attendance note that Leslie had been “perfectly lucid throughout and provided meaningful responses”. He stated as follows in his witness statement:

“I have no doubt that Leslie had the necessary testamentary capacity to execute a valid Codicil when Brian Humphreys and I attended on him on 5 August 2009. … I met Leslie on 19 July 2009 with Michael Bonehill to witness the LPAs and Advance Decision. I would have noted if Leslie was confused or did not understand the reason for our visit or the contents and effect of the Codicil. … I am a very experienced Probate and Wills practitioner and I attended numerous Law Society approved Private Client seminars when in England”.

Mr Renda explained in cross-examination that he had asked questions that were “probing” and that he “believed would allow him to determine the three … aspects [of the Banks v Goodfellow test]”. For his part, Mr Humphreys said that there were “meaningful communications [with Leslie] throughout” and that nothing during the visit indicated that Leslie did not understand what was going on. Mr Krieger, an obviously truthful and careful witness, thought Leslie “completely compos mentis” on the occasions he visited him in St Thomas’ Hospital, which probably included 5 August. He also said that Leslie had told him during a hospital visit that he had “got things down in writing to make sure that [Mrs Greaves] would be looked after”. Since the visit in question is unlikely to have happened until after 5 August (only about a week earlier, on 29 July, Gary had expressed his intention to contact Mr Krieger, among others, to tell them that Leslie would be happy to see visitors), that evidence tends to confirm that Leslie had understood what he was doing when he executed the Disputed Codicil.

Mr Child argued that lay people will not necessarily pick up problems with capacity. In this connection, Professor Hodkinson observed, “Lay persons commonly fail to detect mild degrees of intellectual impairment, particularly when conversation is of a social nature, a phenomenon referred to as the person having a ‘good social front’”. Mr Child also referred to a document summarising results of a study into how good solicitors and psychiatrists are at judging capacity. The document explains that, when shown a mock interview using bad interview technique (for example, “leading or closed questions”), “nearly 98% of solicitors participating in the study missed a mental disorder diagnosis”. In contrast, when shown a film in which good interview technique was employed, 90% of solicitors came to the correct conclusion when asked about testamentary capacity (compared with just 75% of psychiatrists). In the present case, Mr Renda explained that it is his practice to ask “probing non-leading questions”. He was not therefore reliant on the “leading or closed” questions criticised in the document Mr Child relied on.

It is perhaps worth quoting a passage from Hawes v Burgess [2013] EWCA Civ 74 at this point. At paragraph 60, Mummery LJ said:

“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, an 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 circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property”.

The evidence given by witnesses such as Mark, Mr Renda, Mr Humphreys and Mr Krieger can be contrasted with evidence given by Gary. Gary explained in his witness statement that his “perception was that there were many days during which [Leslie] appeared confused and tired, and that these were often days where he had not slept during the night and had been administered with medication to help him”. One of the examples Gary gave was of an occasion in late July 2009 when his father appeared to confuse him with Mark. The particular incident in question is unimportant since it is common ground that Leslie experienced confusion in late July as a result of his urinary tract infection, but Gary’s evidence about his visit to his father on 5 August is of obvious relevance. Gary said that he found his father “confused and not so good” and that in the course of the visit:

“I asked the nurse whether there had been any progress in fixing a date for my father to have the feeding tube removed from his nose and the stomach peg fitted. My father … asked when he would be able to start eating and … we had one of those conversations that demonstrated that he had not grasped that he would not be able to take food orally, despite having had this explained to him several times before”.

That Leslie was confused as to the implications of the stomach “PEG” is corroborated by other materials. On 6 August 2009 Gary sent Mrs Greaves an email in which he said that Leslie “was confused about a number of things yesterday” and explained that “[f]or some reason [Leslie] thought he was going to be able to eat food orally once the valve is put in his stomach on Friday”. In response, Mrs Greaves said:

“Yes Leslie was a bit confused yesterday I said he must have another word with the Dr before Friday”.

On 5 August itself, a doctor recorded in Leslie’s hospital notes:

“[Patient] seemed under impression PEG would allow [eating and drinking] but explained it as long term [alternative] to [nasogastric tube], and that unfortunately swallow will still be weak”.

Gary did not arrive at St Thomas’ Hospital until the early evening of 5 August, and Leslie is more likely to have been tired and confused then than in mid-afternoon. On the view I take (see paragraphs 40, 41 and 43 above), however, he was none the less sufficiently lucid to be able to tell Gary that two people from Montlakes had been, that he had executed a codicil and that Mark had thought he “should do a Codicil for the Will” although he considered “the letter” he had written to Gary was “fine”. Mrs Greaves herself says that the confusion to which she referred in her 6 August email related to the implications of the PEG rather than general confusion. It is also noteworthy that Leslie is recorded as having slept well during the night of 4-5 August.

Looking at the evidence from witnesses of fact in the round, it seems to me, as I have indicated above (paragraph 57(iv)), that it does not support the proposition that Leslie was seriously confused on 5 August. To the contrary, it provides compelling evidence that Leslie had testamentary capacity when he executed the Disputed Codicil.

The following additional points can be made:

In all the circumstances, I am satisfied that Leslie had testamentary capacity when he executed the Disputed Codicil on 5 August 2009.

For a testamentary instrument to take effect according to its terms, the Court must be “satisfied that the contents do truly represent the testator’s intentions” (see Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097, at paragraph 65).

In the past, the Courts tended to adopt a two-stage approach to issues of knowledge and approval. They would ask first whether the circumstances were such as to “excite the suspicion” of the Court. If so, the party propounding the will had to prove affirmatively that the testator knew and approved of the contents of the document (see e.g. Tyrrell v Painton [1894] P 151, at 157, and Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097, at paragraphs 32-33). If, on the other hand, there was nothing to arouse suspicion, proof of testamentary capacity and due execution would give rise to a proper inference of knowledge and approval (see e.g. Barry v Butlin (1838)2 Moo PC 480, at 484, and Fuller v Strum, at paragraph 33).

In Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380, Lord Neuberger of Abbotsbury MR doubted whether the two-stage approach was always appropriate. He said this (in paragraph 22):

“Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix’s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in In re Crerar (unreported) but see (1956) 106 LJ 694, 695, cited and followed by Latey J in In re Morris, decd [1971] P 62, 78, namely that the court should

‘consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.’”

The recent decision of the Court of Appeal in Hawes v Burgess indicates that the questions implicit in the traditional two-stage approach can still be significant. Mummery LJ said (in paragraph 12) that the relevant questions to ask in that case were (a) “Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her?” and (b) “Has scrutiny of those circumstances by the court dispelled those suspicions?”

It is of course no more than common sense that matters giving rise to suspicion will affect what the propounder of a testamentary instrument must do to satisfy a Court that the testator knew and approved its contents. I do not think, however, that anything is to be gained in the present case by focusing on the specific question, “Do the circumstances arouse the suspicions of the Court?” Where (as the judge in Gill v Woodall had) I have heard factual and expert evidence over a number of days, it seems to me that I should simply ask myself whether Mrs Greaves has “discharged the burden of establishing that [Leslie] knew and approved the contents of the document which is put forward as a valid testamentary disposition” (to adapt the words of Sachs J quoted by Lord Neuberger).

In answering that question, I should, as it seems to me, have in mind the following passage from Mummery LJ’s judgment in Hawes v Burgess (at paragraph 13):

“Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed”.

Mr Child submitted, and I accept, that “in an appropriate case … proof of the requisite knowledge and approval can and will also require proof that the testator understood not just the nature of the testamentary provision he was proposing to make, but also its effect” (to use words of Rimer J in Re Good, Carapeto v Good [2002] EWHC 640 (Ch), at paragraph 117). On the other hand, Mr Child accepted that the passage quoted is important only in relatively extreme situations. Further, a testator need not have a full understanding of legal terminology used to give effect to his wishes. Williams on Wills (9^th. ed.) explains matters as follows (in paragraph 5.1):

“In some cases where the testator employs an expert draftsman to provide the appropriate wording to give effect in law to the testator’s intentions, the testator has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning and in such a case he adopts it and knowledge and approval is imputed to him”.

Was there, then, the requisite knowledge and approval in the present case?

The evidence bearing on testamentary capacity, discussed in paragraphs 52-66 above, is also of relevance in this context. The fact that Leslie had testamentary capacity does not necessarily imply, of course, that he knew and approved the contents of the particular document at issue, but some of the evidence which, in my judgment, shows Leslie to have had capacity also tends to suggest that he was aware of and endorsed the contents of the Disputed Codicil.

The evidence relating to Mark’s discussions with his father on 1 August 2009 and the visit made four days later by Mr Renda and Mr Humphreys is of particular importance. I have referred in paragraphs 32-34 and 58 above to Mark’s evidence about the events of 1 August. As mentioned, Mark said (and I accept) that he had no doubt that his father fully understood what they were discussing and the effect of executing a new codicil. Mark recalled that he had a dialogue with his father and said that, if he had thought that his father was “greying out and not understanding what [he] was talking about”, that would have been a fundamental issue for him. Mark explained that he and his father:

“concentrated on whether he wanted [Mrs Greaves] to be able to remain in the house, whether he wanted her to sell the house and buy an alternative property and whether he wanted to have the payment made to her or not”.

Leslie was thus aware of what Mark called the “commercial terms” that would be contained in the Disputed Codicil before it was brought to the hospital.

Turning to the visit to the hospital on 5 August, Mr Renda explained (and I accept) that he went through the terms of the Disputed Codicil carefully with Leslie and compared them with the equivalent parts of the Purported Codicil. Mr Renda’s recollection was that he would paraphrase and explain a provision and then read it out to Leslie, cross-referencing it to the Purported Codicil, with Leslie following on a copy of the Disputed Codicil that he had been given. During cross-examination, Mr Renda explained:

“based on my experience clients can absorb the information better when it is broken down for them rather than being presented and supposedly reading through the document which inevitably contains much legalese”.

Mr Renda’s perception at the time was that:

“[Leslie] was lucid, he was clear, there was no confusion and … he understood matters, and he wanted to execute the codicil”.

Mr Renda’s evidence is consistent with the attendance note he prepared (paragraph 37 above). This refers to Mr Renda having gone through “the aspects of the Codicil, paragraph by paragraph” and to Leslie having been “lucid throughout and provided meaningful responses”. It is fair to say that Mr Humphreys’ recollection of events does not tally in every detail with Mr Renda’s: for example, Mr Humphreys did not remember Leslie having been supplied with a copy of the Disputed Codicil (though he could not “totally” remember whether he had seen no more than one copy) and he thought that Mr Renda had read the entire document through at the end. I do not consider, however, that Mr Humphreys’ evidence was to fundamentally different effect to Mr Renda’s, and in any case I think Mr Renda’s account is likely to be the more accurate.

The attendance note implies that Mr Renda and Mr Humphreys were with Leslie for about 20 minutes. Mr Child suggested that Mr Renda could not have explained the Disputed Codicil satisfactorily in a visit of this length. On balance, however, I am satisfied that Mr Renda and Mr Humphreys were with Leslie long enough for him to have the Disputed Codicil explained to him and understand its contents. It may be that Mr Renda and Mr Humphreys in fact spent more than 20 minutes with Leslie: in cross-examination, Mr Renda said that the visit might have taken slightly longer than 20 minutes.

Mr Renda acknowledged during cross-examination that he had not discussed with Leslie the “myriad” of ways to provide for payment of an annuity to Mrs Greaves. However, I do not think that matters. What is crucial is that a testator knows and approves of the contents of the document he executes. He need not necessarily be alive to the fact that his objectives could have been achieved in one or more different ways.

It is perhaps worth emphasising that this is not a case in which there can be any question of a beneficiary having brought pressure to bear on the testator. Mark does not stand to benefit from the Disputed Codicil at all, and Mrs Greaves, who does, played no part in its execution beyond telling Mark of her concerns and supplying him with the Purported Codicil. Nor was Leslie pressurised into signing the Disputed Codicil by Montlakes. On 5 August Mr Renda asked Leslie how he wanted to proceed and whether he wanted to give the Disputed Codicil more thought. In his 3 August email to Mr Renda (paragraph 35 above), Mr Bonehill had said, “If Leslie decides he does not want to sign [the codicil] then so be it”.

In all the circumstances, I am satisfied that Leslie knew and approved the contents of the Disputed Codicil.

In my judgment, the Disputed Codicil is valid, and it should be admitted to probate.