Judge: HHJ Behrens
Citation:  EW Misc 10 (CC)
Summary: This case merits brief mention as an application of the shifting evidential burden in cases concerning testamentary capacity. Ms Pearce sought to challenge a number of transactions made by her father which were said to be subject to the undue influence of the Defendant, or were otherwise voidable. She also challenged the validity of the will her father, John Pearce, purported to make on 20 June 2007, under which the Defendant was the sole beneficiary.
When it came to the validity of the will, HHJ Behrens reminded himself of the summary of the law in Re Key  EWHC 408, and, in particular, the position in relation to the burden of proof, namely that (a) 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; (b) in such a case the evidential burden then shifts to the objector to raise a real doubt about capacity; and (c) if a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless. HHJ Behrens considered that this was a case in which there was ‘a real doubt about capacity,’ arising out of a number of physical and mental problems from which Mr Pearce was suffering at the material time, as well as the views of the solicitor Mr Pearce attended (in the company of the Defendant) in June 2007 in a meeting where Mr Pearce was unable to speak and where the Defendant purported to speak on his behalf for purposes of giving instructions to change his will. The evidential burden therefore shifted back to the Defendant as the propounder and sole beneficiary of the will. HHJ Behrens found (para 93) that he had real concerns that Mr Pearce understood the extent of the property he was disposing and whether he comprehended and appreciated the claims of his daughter and 3 grandchildren. In particular, the judge noted, Mr Peace’s belief that “Colette Pearce was not his daughter appears to have been wholly irrational and may well have been the result the mental disorder from which he was suffering. The remarkable change in his attitude to Colette Pearce and her children appears otherwise to be inexplicable.” Whilst he noted certain evidential matters that supported the Defendant’s contention that Mr Pearce had had the requisite capacity at the material time, HHJ Behrens (who had previously found that the Defendant was an unreliable witness) held that she had not satisfied him that he had capacity to make a will on 20 June 2007. He also went on to consider the question of whether there was a want of knowledge and approval, and for similar reasons found that both that there were circumstances that excited the suspicions of the Court and that the Defendant had failed to prove the requisite degree of knowledge and approval. He therefore held (at para 97) that the will was not validly executed. As Mr Pearce was therefore intestate, his estate passed to the Claimant.
HHJ Behrens also found that all the material transactions challenged by the Claimant called for an explanation on the part of the Defendant, and that, as the Defendant was unable to offer such an explanation, they stood to be set aside on the basis that they had been procured by way of the exercise of undue influence.
Comment: As discussed at rather greater length in Alex’s recent paper on testamentary capacity, there is a clear distinction between the approach to the assessment of capacity that prevails at common law and the approach that prevails for purposes of the MCA 2005. The presumption of capacity in s.1(2) MCA 2005 means that the evidential burden remains at all times upon the person seeking to disprove capacity; this contrasts with the shifting burden at common law. This case provides a clear example of the (largely unspoken) policy rationale that underpins that common law position; as discussed in Alex’s paper, there may in due course be a need to consider whether in the context of the retrospective assessment of testamentary capacity the Court of Protection is entitled to and should adopt the same approach.