Judge: HHJ David Cooke
Citation:  EWHC 2126 (Ch)
In this case the court had to consider 2 wills, one made in February 2012 and the other made in December 2012. The testator had suffered serious brain injury in a road traffic accident and for a long time had been looked after by Mr Everall, acting as carer. T had received a substantial damages award and the Public Guardian had been appointed receiver and subsequently a solicitor (Mr Lloyd) was appointed deputy.
A medical assessment in February 2012 stated that T had capacity to make a will and that will was drawn up by Mr Lloyd who had the issue of capacity very much in mind.
Mr Everall drew up the December will. Mr Lloyd was not involved. The only other person involved was Mr Everall’s partner. The will left 95% of T’s estate to Mr Everall.
Not without hesitation (as there had been contradictory statements), the judge held that the December will had been duly executed. He also held that though there had been no medical assessment in December, the one in February still was sufficient to establish capacity.
He held, however, that Mr Everall fell far short of being able to establish that T knew and approved of the will’s contents. At 120-121, the judge referred to the heightened vigilance that the court will employ where the will is drawn and elicited by the main beneficiary especially where T is vulnerable and suggestible and dependent on that person.
The December will was also attacked on the grounds of undue influence. The judge held that in effect, this was excluded by the finding that T had not known and approved of the contents as T could only have been coerced into doing something he did not want to do if he knew what he was doing. See 137.
The result was that the February will was proved in solemn form.
This case underlines the need for anyone making a will for a person with capacity issues to seek independent advice. More interestingly, it provides a good illustration of the shifting and different burdens of proof and the overlaps and boundaries between capacity, knowledge and approval and undue influence.