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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Burns & Ors v Burns [2016] EWCA Civ 37 (28 January 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/37.html Cite as: [2016] EWCA Civ 37

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
LIVERPOOL DISTRICT REGISTRY
District Judge Woodburn
1LV3003

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/01/2016

Lord Justice McCombe:

(A) Introduction

1. This is an appeal in probate proceedings in respect of the estate of the late Eva Burns ("the Deceased") who died aged 89 on 21 May 2010. The parties to the proceedings are her two sons, Anthony Burns ("AB") and Colin Leslie Burns ("CB"), born to her and her late husband, Mr Leslie Burns ("Mr B senior"), who predeceased her in 1988.
2. CB was the claimant in the proceedings below and claimed pronouncement in solemn form of an alleged will of the Deceased dated 26 July 2005 ("the 2005 Will") by which he and AB would be appointed executors and, in the absence of any specific legacies or bequests, would leave all of the Deceased's estate to be divided equally between the two sons.
3. AB challenged the validity of the 2005 Will on the basis that his mother lacked the requisite testamentary capacity at the date of its purported execution and on the basis that she did not "know and approve" of the contents of the same. By counterclaim in the action, AB sought pronouncement in solemn form of an earlier will, dated 8 May 2003 ("the 2003 Will"). By that will, the Deceased gave to AB all her share and interest in her property at 4 Heather Grove, Ashton-in-Makerfield ("the House"), with substitutionary gift of that property, in the event of AB predeceasing her, in favour of his issue living at her death who should reach 18 in equal share per stirpes. Her residuary estate was left to AB and CB in equal shares, again with substitutionary gifts in favour of the issue of either son in the event of him predeceasing her. There was no dispute as to the validity of the 2003 Will. Therefore, if the 2005 Will is invalid, the 2003 Will would be the Deceased's last will and would fall to be admitted to probate.
4. By a Deed of Transfer dated 5 January 1982 and made between the Deceased and Mr B senior of the one part and CB of the other part, in consideration of £10,000 paid by CB to them, the Deceased and Mr B senior transferred the House to themselves and to CB to be held on trust as to one half for themselves and as to one half for CB. It appears that the Deceased succeeded on her husband's death to his interest in the house and that, therefore, from his death in 1988, the House was held as to half for the Deceased and as to the other half for CB. Thus, only one half of the equity in the House fell into the Deceased's estate; the other half being held already by CB. Under the 2003 Will the Deceased's half share would be inherited by AB alone, whereas under the 2005 Will that half share would be divided equally between AB and CB. It seems that at the time of the trial the difference in value in dispute in the proceedings amounted to some £26,000 only.
5. By his judgment of 12 March 2014, the judge held the 2005 Will to be a valid will and by his order dated 18 March 2014 pronounced in favour of it accordingly. From that order AB appealed, with permission granted by Sir Timothy Lloyd on 24 July 2014.
6. A grant of administration pending suit to the estate of the Deceased was made, in the Principal Registry of the Family Division to a solicitor, Mr Ian David Sturgess. The court has been informed by the Respondent's solicitors (by letter of 3 December 2015) that the original 2005 Will has been lodged at the District Probate Registry at Liverpool. The parties agree that the form and contents of the 2005 Will properly appear from the copy appearing at pages 96 to 98 of the appeal bundle. That document is, it appears, a copy of the file copy of the will produced to the court by Mr G.A. Walton, the solicitor who prepared the 2005 Will and was one of the witnesses to its execution. Mr Walton gave evidence at the trial.
7. AB died on 19 October 2015, and, in the absence of a grant of probate to his estate, on 19 November 2015 Master Meacher ordered that his children Steven Anthony Burns and Laura Olivia Gramauskas, who were named as executors in AB's will of 8 January 1999, be appointed to represent AB's estate for the purposes of the appeal.

(B) Background Facts

8. As already noted, Mr B senior died in 1988. From about 1989 to 2003, AB lived with his mother at the House. In that latter year, it seems that he left following an argument with CB, possibly about rental payments that CB claimed from AB. As the judge records, however, it seems that both brothers continued to have a loving and caring relationship with their mother, notwithstanding strained relations between the two of them. On 21 November 2002, the Deceased executed an enduring power of attorney in favour of AB, which was prepared by the firm of solicitors that originally represented him in these proceedings. Those solicitors also prepared the 2003 Will.
9. The judge found the family witnesses on both sides to be lacking in impartiality and objectivity and decided that he would look primarily to the contemporaneous documents to assist him in determining the validity of the 2005 Will.
10. It seems that by September 2003, when the Deceased was 83 years old, her condition was giving rise to sufficient concern on the part of AB for him to engage the social services department at Wigan to assist with her care. There were reports of lack of personal care, failure properly to attend to gas appliances (cooker and heater), lack of memory and confusion. On 15 October 2003, a community psychiatric nurse, Sue McCollum, visited the Deceased at the House and carried out a "Mini Mental State Examination" ("MMSE"). (This type of test attempts to record the subject's orientation, registration, attention, recall and language.) The Deceased scored 19 points out of a possible 30 in the test. Her best score was with regard to "attention" when she showed that she could spell the word "world" backwards. However, it seems that she was unable to state, the year, the date, the season, the day or the month. She could not write a sentence. Nor could she recall three common objects mentioned to her by the nurse a few minutes earlier in the examination.
11. The judge records Ms McCollum as concluding at that stage that the Deceased presented a risk of isolation and neglect and of mental deterioration. As far as I have been able to detect this conclusion on her part does not appear in the documents before us. However, this assessment by Ms McCollum does not seem to be in issue. It seems that some home care and attendance by social services was being put in place as a result of the intervention. The Deceased was apparently, however, firmly opposed to leaving her home for any residential care home and was also reluctant to attend a day care centre. However, by March 2004 she had begun to attend such a centre, specialising in the care of the elderly and those suffering from dementia. Ms Diane Ralph was first the deputy manager and, from November 2004, the manager of the centre. She gave evidence before the judge and was the one factual witness whose evidence the judge exonerated from criticism on the grounds of partiality and lack of objectivity.
12. In her witness statement Ms Ralph had spoken of the Deceased having moderate to severe dementia and gave as an example her talking about her husband as if he were still alive. She said that, in spite of long attendance at the centre up to shortly before her death, the Deceased had not known Ms Ralph's name. It was also said that the Deceased was very "suggestible". It seems, however, that in cross-examination Ms Ralph recognised that her knowledge of the Deceased spanned 6 years and that the Deceased might well have had better understanding and retention of information in the early part of the period in 2004 as compared to the later periods leading up to her death in 2010.
13. In the documents before us there are copies of brief reports on/assessments of the Deceased by Ms McCollum and other social services staff in the period to July 2004, the last of which recorded that both sons felt that "there [sic] mum has improved mentally since attending the day centre". It also states that, "Mrs Burns joins in activities, smiles and chats and is clearly enjoying the benefit of attending the day centre".
14. It is in November 2004 that the first steps were taken towards the making of a new will. We do not have all the documents before us. However, the judge saw and referred to an attendance note recording the Deceased having attended at the offices of Messrs. Alker and Ball, the solicitors who had drawn up the 2003 Will, with a view to retrieving certain documents. That file note (not before us) apparently stated that she had attended the offices with CB and it contained a reference to September 2003 and a comment to the effect that she did not know "what or when the document required may have been prepared" and continuing with the remark that, "It may not be here anyway", which the judge was inclined to attribute to the writer of the note rather than to any comment by the Deceased. The judge then refers to a receipt in the solicitors' file (again not in our documents), dated 2 November 2004 and signed by the Deceased, recording collection of the 2003 Will and the enduring power of attorney.
15. There then followed a letter of 6 November 2014 addressed to Mr Walton, the solicitor to whom I have referred above. The letter was in manuscript block capitals over an apparent signature of the Deceased and was in these terms:

"I would like to make a will leaving half my equity to Colin Leslie Burns and half to Anthony Burns my two sons.

I would like to revoke my Power of Attorney Anthony Burns. I would like to make Colin Leslie Burns my son Power of Attorney"

As the judge noted, no case was made that this letter had been forged or that it was procured by undue influence.

16. On 7 December 2004, Mr Walton wrote to the Deceased enclosing a draft will for her consideration and inviting her approval with a view to preparation of an engrossment for signature. The letter also enclosed a draft power of attorney.
17. There follows in the documents a further manuscript letter dated "14/12/44" from the Deceased to Mr Walton (the authenticity of which is again not challenged) which stated,

"Thanks for the letter everything OK. You can go ahead. It will be New Years now before we can come to sign. Let Colin know because he will be arranging it"

This letter is in normal upper case/lower case script. Again, no challenge is made as to the authenticity of this letter.

18. Notwithstanding the date written on this last letter, Mr Walton replied on 21 December, thanking the Deceased for the letter "dated 14 December 2004" and asking her to contact him in the new year to make arrangements to deal with the matter. This was not, however, followed up by the Deceased at that stage.
19. A further MMSE was carried out on 22 May 2005 by a different examiner. On this occasion, the Deceased scored 20 points out of 30. The only difference seems to have been her correct statement of the current month, a matter which she had not been able to state correctly on the earlier occasion. Two days later occupational therapy assessments were carried out and we were taken by counsel in, in the course of their oral arguments, to the salient features of the reports that each wished to highlight. It suffices to refer here to a few of these.
20. The judge summarised an occupational therapy "Cape Assessment" in these terms:

"26. ... The overall score achieved was 23 out of 33. When areas of information and orientation were scored, that achieved five out of twelve. When mental ability was assessed, that achieved eight out of eleven and writing her name was assessed and that achieved ten out of ten. She was able to give her name, her age, her date of birth, the colour of the British flag and the city she lived in, notwithstanding that she lived in the town of Ashton-in-Makerfield near Wigan. In summary, it was said that her mental health was moderately impaired with medium dependency, that she was in need of residential care or, if living at home, considerable support."

21. In the report dated 25 May 2005, the "Cape Assessment (24.04.05)" is recorded as stating,

"Cognitive Function C ie Moderate impairment, medium dependency. People functioning at this level are likely to need residential care or considerable support and help if at home".

Under "Occupational Performance: Communication", the report stated,

"Looks for others to answer questions for her but quite able to speak for herself with encouragement. Also makes wishes and objections known".

With regard to "Presentation Assessment", there was this:

"Pleasant and co-operative during assessment. Some confabulation evident. Looked to sons to answer for her and to fill in the gaps. Appeared a little threatened by the assessment and at one point when her sons were correcting her."

22. In a similar report of 5 July 2005, entitled "Personal Activities of Daily Living Skills Assessment" the following is recorded by the therapist under the heading "Cognitive Function":

"Some confabulation evident during assessment. Said she had bathed that morning but there was no evidence of this. Able to make some decisions but son said this was around her wants rather than her needs e.g. diet, activities.

Memory and concentration – patchy; judgment of own diet and health needs – quite poor; problem solving – poor. Able to understand verbal instructions during assessment but did not always follow them through. Preferred to do things her own way. Recognised objects and their uses. Did not wash her whole body when in the bath but accepted my active involvement in bathing. Son says she frequently uses toilet paper instead of incontinence pads despite him leaving them readily accessible."

23. It was on the 26 July 2005, three weeks later, that the 2005 Will was executed at Mr Walton's offices, in the presence of Mr Walton and his receptionist, Ms Pauline Dentith. The documentation covering this event is sketchy. There is some brief correspondence in our bundle, from the period since the Deceased's death, in which Mr Walton answered shortly questions from the parties' solicitors as to the circumstances surrounding the execution of the 2005 Will. Mr Walton's recollection of the events is perhaps best summarised by three paragraphs from his "Notes re Evan [sic] Burns, deceased" dated 30 March 2011. In paragraph 5 of this document there is this:

"5. On 25^th July 2005 the deceased attended to sign the engrossment of the draft Will previously sent to her. The Son, Mr. C.L. Burns, brought her to the Office but was not present when the contents of the engrossed Will were discussed with the deceased and when she signed. The Son, Mr. C.L. Burns, remained in the waiting room throughout the meeting.

6. The deceased whilst somewhat frail physically was in good mental health and fully understood the nature of the Will and its contents and that the signing of the new Will would revoke the earlier Will she had made.

7. When Mrs Burns signed the Will, only the witnesses were present."

The date "25^th July 2005" appears in the note whereas the will is, of course, dated 26 July 2005.

24. This brief summary is supplemented by the judge's summary of what he derived from Mr Walton's evidence at the trial. The judge said this:

"28. It is evidence from the evidence of Mr Walton that he had acted for Mr and Mrs Burns on a previous occasion in 1982 when the transfer of the property and the 1981 wills were undertaken. He had not seen the 2003 will which had been prepared by Alker Ball but he appeared to know of the acrimony between the two brothers. He knew...

[There is a break in the recording as the tapes are changed; some words are missing]

29. ... practising solicitor for many years. He practised in non-contentious areas of wills and trusts and domestic and commercial conveyancing. He did not produce any conveyancing file of documents. He did not produce any attendance notes. He was able to produce items of correspondence, albeit late, in respect of the letter from Mr Walton of 21^st December 2004.

30. He did not know about the 'golden rule'. He appeared to be oblivious to the concept but was able to tell me that he, in 2005, met with Mrs Burns by herself and had insisted on doing so. He was able to tell me that he had a general discussion with her, passed the time of day. Spoke about the weather, asked how she was. These were not open questions. They were not questions designed to test the faculty of Mrs Burns. He said that he read the will to her and I accept that he did. He said that she understood what was read to her and agreed to sign up to the will, at which point he called in his receptionist; she joined them. Mrs Burns signed the document and the document was then able to be witnessed by both Mr Walton and the receptionist."

(C) Medical evidence

25. There was brief and uncontroversial medical evidence from Dr G Phillips FRCP, an independent consultant geriatrician, not as to the Deceased's own medical condition, but as to certain general opinions as to the nature of dementia and the interpretation of the MMSEs and the CAPE test. Dr Phillips evidence was this:

"3. Dementia is routinely diagnosed clinically on the basis of deficits (below previous intellectual and educational levels) in memory, language, understanding, and logical thought together with personality and behavioural changes. These deficits can be measured to a degree and where not actually measurable collateral history from family members can be obtained. The observed persistence or progression of these deficits over months is essential in avoiding misdiagnosis. The MMSE test is the standard test for those components which are measurable. It consists of 30 simple questions/tasks with a maximum score of 30. Scores below 24 provide significant evidence of cognitive impairment which together with collateral history from family members greatly aids diagnosis. Her score of 20/30 was achieved by dropping 10 points in the areas of orientation (minus 6), recall (minus 3 and the inability to copy a simple construction diagram (minus 1). Construction ability is a good test of executive function-the ability to analyse the plan and organise simple tasks such as washing and dressing oneself in the correct order.

4. The CAPE test is a test of information/orientation, mental ability and behavioural dependency/psychomotor deficit which is designed to assess the likely need for community or hospital care. It is mostly used in a General Practice setting. She scored 5/12 for information/orientation, 8/11 for mental ability and 10/10 for behavioural/psychomotor deficits.

OPINION

5. The results of both the MMSE and CAPE tests provide good evidence that she was poorly orientated as to where she was in time and place, had poor recall (short term memory) and that she had problems with analysis and simple task planning. Furthermore the deficits identified were persisting for a period of 3 months."

(D) The Judge's conclusions

26. The judge was referred to a number of decided cases in this area of the law. He set out the basic "make up" of testamentary capacity, derived from Banks v Goodfellow (1870) LR 5 QB 549 and Cowderoy v Cranfield [2011] WTLR 1699. He quoted the principles in these terms:

"33. ... the testator must:

a) Understand that he is giving his property to one or more objects of his regard;"

b) Understand and recollect the extent of his property;

c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will;

d) Ensure that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if the mind had been sound, would not have been made."

27. The judge referred to Williams on Wills for a statement of "the golden rule" counselling that a solicitor dealing with a testator whose capacity may be doubtful should,

"34. ... have prior knowledge of the testator, should consider whether the will should be witnessed by an approved medical practitioner, examine any earlier will, discuss proposed departures from any earlier will with the testator, ask non-leading questions and ensure that the reading through of the will is not 'an idle ceremony': Buckenham v Dickenson [2000] WTLR."

28. The crux of the judgment can then be found in two passages in paragraphs 36 and 38-41 respectively, punctuated by the important finding that, "Whatever her problems - repeated sentences, isolation, incontinence, forgetfulness – Mrs. Burns knew that she had two sons and she knew what she had by way of assets". The relevant paragraphs of the judgment are in these terms:

"36. I take account of all of the authorities which have been presented in the amply presented skeletons of both Mr Clarke and Mr Fryer-Spedding. My findings overall, therefore, are that I do rely on the contemporaneous documents. I rely less on the overall evidence of the witnesses. I take account of the assessments carried out by or through the Local Authority and as supported by Dr Phillips. The assessments are valuable as to Mrs Burns' mental state but those assessments were with a view to the provision of care packages and assessments of risk in daily life. The assessments did not apply solely and exclusively to the requisite knowledge for the making of a will, so I can take account of some aspects of those assessments but I can still look to see what occurred in November/December 2004 and also what may have occurred in July 2005, notwithstanding the failings of Mr Walton.

...

38. The objective evidence in late 2004 shows that she could still determine crucial parts of her life; that she did not want to go into a home, but agreed to various assessments; later agreeing to attending the day centre and, even later, agreeing to the washing of her hair at the day centre. She even agreed to increasing the attendances from two to three days. She was still, essentially, independent of mind on those issues important to her and I find thus.

39. I am satisfied that this was her position in November and December 2004. I am satisfied that the documents sent on 6^th November 2004 and again on 14^th December showing "44" (but that must have meant 2004) were written in her hand, with her knowledge and with her approval. I am satisfied that she understood what she was asking the solicitor to do. I treat Mrs Burns not as a lawyer but as a person who knew what she wanted and sought to rely on a lawyer to put it in such a way as might formalise matters. I am satisfied that the letter with the mistaken year date was no more than a minor error in the context of the whole of that letter. The minor error does not adversely influence the overall purport of the letter which was clear. The essentials in the whole of the letter were consistent with what was required in the initial letter of 6^th November 2004 and was consistent with what was objectively known of Mrs Burns' property.

40. So far as I need to deal with July 2005, it is clear that by this stage, objectively, she was no worse in medical terms than she was at the February and May assessments. There was poor management of the meeting by Mr Walton in July 2005. As I say, he demonstrated little knowledge of the 'golden rule'. There is no file note of any import. Nothing of any value of the meeting has been produced by Mr Walton. He knew that this lady was elderly, but I am satisfied that he did see her alone. I am satisfied that he probably did have a conversation with Mrs Burns which was [inaudible] that was fairly neutral and which was not specifically designed to test her faculties but merely to establish good relationships in the meeting. I am, however, satisfied that, having regard to his experience as a solicitor, specialising in non-contentious legal practice, from the responses which might have been given, Mr Walton would probably have been alerted to one or any serious question on Mrs Burns' capacity.

41. Overall, I am satisfied that, objectively, Mrs Burns knew that the document she was signing on 26^th July 2005 was the will that she requested in the latter part of 2004. I am satisfied that the document was read to her and I am satisfied that she was seen alone. I am satisfied on all of the evidence as at July 2005 Mrs Burns had the requisite testamentary capacity and also knew and approved the contents of this simple yet important document to her. She achieved what she had set out to do, which was an equal split of what was owned to be shared between her two sons. I therefore find for the claimant and dismiss the counterclaim."

(E) The grounds of appeal

29. For the estate of AB, it is argued that the judge was wrong to find that the Deceased was of testamentary capacity either in November/December 2004 or on 26 July 2005 and to find that she knew and approved the contents of the 2005 Will. It is submitted that the judge failed to have proper regard as to the burden of proof of validity of that will which, it is said, was on CB as propounding party. Further, it is contended that there was insufficient evidence to discharge that burden of proof.
30. Behind the bare statement of those grounds, the substance of the argument for AB is (with respect) neatly encapsulated in the reasons given by Sir Timothy Lloyd for giving permission for this appeal. The second paragraph of Sir Timothy's reasons was in these terms:

"It is striking that he [the judge] should have (a) virtually disregarded the findings of the two MMSE tests, which it is clearly arguable are relevant to the issue of capacity (more so than the CAPE test), (b) ignored Dr Phillips' evidence, (c) ignored Mrs Ralph's evidence and (d) found that, despite Mr Walton's ignorance of the golden rule (and as a result his failure to follow it) he would have been aware of any lack of capacity of the deceased when the later will was executed. Arguably, taken with the judge's failure to direct himself that the burden of proof lay on the respondent as regards the 2005 will, all of this led him to a conclusion which cannot be supported, that Mrs Burns had testamentary capacity as at a relevant date whether July 2005 or, under Parker v Felgate (if that was how the judge proceeded) November 2004."

31. At the beginning of Sir Timothy's reasons, however, he noted that the appeal was to be in substantial part as to the assessment of the facts of the case and that such an appeal would be inherently difficult.
32. The rule in Parker v Felgate (1883) 8 PD 171 (Hannen P), referred to by Sir Timothy in his order, can be conveniently stated, by reference to the headnote of the decision in this court, approving that rule, in Perrins v Holland [2011] Ch 270, as follows:

"... a will which had been drawn up in accordance with instructions given by a testator at a time when he had had full testamentary capacity but executed at a time when he no longer had such capacity would nevertheless be valid provided that the testator knew that the document he was signing conformed with the instructions he had given to the draftsman and approved it by executing it in those terms; that the need for testamentary capacity at the time of execution was not imported by the requirement that the testator know of and approve the contents of the will, which meant no more than that it had to be shown that the testator accepted its contents as representing his true intention; and that, accordingly, in the circumstances, the judge had been right to pronounce in favour of the will executed in 2001."

(F) The arguments and my own conclusions

33. Mr Fryer-Spedding developed these arguments before us. In my judgment, he was correct in submitting that the judge based his primary decision upon the rule in Parker v Felgate. From the longer of the two passages quoted above, the judge made his finding of capacity in the period November/December 2004 (when the Deceased gave instructions for the will and approved a draft of it) and concluded in paragraph 41 of his judgment that the Deceased knew that the document that she was signing in July 2005 was the will that she had requested in the latter part of 2004. He did also state, however, that as at July 2005, the deceased had the relevant testamentary capacity and approved the contents of "this simple yet important document to her".
34. Mr. Fryer-Spedding argued that the judge simply failed to give due weight to what the MMSEs, the CAPE assessment and Dr Phillips were telling him, namely that the Deceased did not have sufficient memory to give instructions for, or to execute, a valid will at either date, citing Williams on Wills 10^th Edn. At paragraph 4.17:

"…the grand criterion by which to judge whether the mind is injured or destroyed is to ascertain the state of the memory, for without memory the mind cannot act."

35. It is pointed out that Dr Phillips' opinion was that the results of all the assessments provided "good evidence that [the Deceased] was poorly orientated as to where she was in time and place, had poor recall (short term memory) and that she had problems with analysis and simple task planning". So, the argument ran, if the judge had borne these matters properly in mind, he could only have concluded that there was insufficient capacity and an absence of true approval of the contents of the 2005 Will.
36. Mr Fryer-Spedding further criticised the judge's assessment of the adequacy of precautions taken by Mr Walton to verify capacity and knowledge and approval. Mr Walton had apparently no knowledge of the prior 2003 Will and made no adequate enquiry about previous testamentary dispositions, was ignorant of "the golden rule" and did not ask adequately searching open questions to verify his client's true state of mind. Mr Fryer-Spedding submitted that the reading over of the will and its execution in July 2005 was no more than the type of "idle ceremony" that had failed to vindicate the will in issue in Buckenham v Dickinson [2000] WTLR 1083, 1098D-H (per Judge Cooke, sitting as a judge of the High Court).
37. It was further argued by Mr Fryer-Spedding that the judge failed to give adequate regard to the evidence of Ms Ralph, the value of whose evidence as a whole he recognised, in assessing the Deceased as being the subject of moderate to severe dementia.
38. Bearing all these features in mind, it is said that the judge failed to take into account factors which he should have properly considered and/or failed to balance the various factors adequately in the scale: see Assicuzione Generali SpA v Arab Insurance Group [2003] 1 WLR 577 and Phonographic Performance Ltd. v AEI Rediffusion Music Ltd. [1999] 1 WLR 1507, 1523 per Lord Woolf MR.
39. As to the law, Mr Fryer-Spedding argued that the judge failed adequately to state the tests to be derived from Banks v Goodfellow and Parker v Felgate (supra) and failed to identify the party on whom the burden of proof lay.
40. As to the latter aspect, criticism was laid particularly upon passages in paragraphs 36 and 40 of the judgment (quoted above) where the judge spoke of "…what may have occurred in July 2005…" and being "…satisfied that…from the responses which might have been given, Mr Walton would probably have been alerted to one or any serious question on Mrs Burns' capacity" (emphasis added). Thus, it is said, that the judge failed to recognise that the burden was on CB to demonstrate sufficiently what did occur in July 2005 to show that no serious question did truly arise as to the Deceased's capacity.
41. Naturally, Mr Clark for the respondent, CB, emphasised the advantage that the judge had in seeing and hearing all the evidence and that this court should "tread very cautiously with questions of evidential evaluation" (per May LJ in Sharpe v Adam [2006] EWCA Civ 449.
42. Mr Clark argued that the judge evaluated the evidence of the oral witnesses, on which he placed no great reliance, and trusted more fully on what the documents showed. He submitted that it is clear that the judge had well in mind the contents of the various assessments made of the Deceased's mental state but was correct to recall the limited purposes to which the reports were directed, i.e. not to testamentary capacity but rather to the Deceased's care needs.
43. Mr Clark reminded us of passages in the authorities indicating that testamentary capacity may well remain notwithstanding deficit in memory caused by advancing age. He cited to us passages from two American cases to this effect, cited with approval in Banks v Goodfellow by Cockburn CJ. First, the learned Chief Justice cited Den v Vancleve (1819) 2 Southard 660 as follows:

"By the terms 'a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory."

Secondly, there was the passage from Stevens v Vancleve (1822) 4 Washington 267:

"He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all time to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength or memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will."

44. Bearing these passages in mind, Mr Clark argued that, notwithstanding the deficiencies in the Deceased's faculties mentioned in the reports, the judge was entitled to find on the whole of the evidence that the Deceased had capacity to give instructions for, and to execute, this very simple will.
45. My own conclusions on the issues of capacity and knowledge and approval (taking in on the way the issues raised as to the burden of proof), on the facts of this case, are as follows.

Testamentary Capacity

46. In my judgment, the judge did adequately identify the salient criteria for determination of testamentary capacity. The four matters that he set out in paragraph 33 of his judgment reflect precisely the summary of the authorities given in Williams on Wills 10^th Edition paragraph 4.11.
47. The judge was also well aware of "the golden rule" and Mr Walton's apparent ignorance of it. It has to be recalled, however, that the "rule" is a prudent guide for solicitors dealing with a will for an aged testator or one who has been seriously ill. As is pointed out in Williams Op. Cit. at paragraph 4.21, however, the rule does not constitute a rule of law but provides guidance as to a means of avoiding disputes; "it is not a touchstone of validity or a substitute for established tests of capacity or knowledge and approval".
48. In my judgment, Mr Fryer-Spedding was correct in his submission that the burden of proving capacity rested upon CB on the facts of this case. It is true that while capacity is initially presumed, the raising of a real issue as to capacity will require the proponent of the disputed document to prove capacity: see Williams Op. Cit. paragraph 4.12. In the present case, the evidence clearly raised doubts as to the Deceased's testamentary capacity both in late 2004 and in July 2005. However, as I have noted above, the judge decided this case primarily upon the basis that capacity had been established in late 2004, when the instructions were given and the draft will was approved, and he found that the Deceased had at the least capacity to recognise that what she was signing in July 2005 was a will in the form that she had instructed in the previous year. Thus, validity of the 2005 Will was established under the rule in Parker v Felgate (supra). He also found, in very brief terms (in paragraph 41 of the judgment), that the Deceased had capacity in July 2005.
49. While throughout consideration of this appeal I have entertained doubts as to the judge's conclusions in these respects, I consider that the evidence did entitle him to make the findings that he did. It seems to me that the undisputed events of November and December 2004 amounted to sufficient evidence to meet the burden of proof on CB that the Deceased genuinely intended in this period to revoke the 2003 Will and to make a will dividing her entire estate between her two sons. Such a disposition would clearly have been a rational one, and a simple one to comprehend and to state. She attended the offices of her former solicitors in person to collect documents to achieve such an end and she signed a receipt for the 2003 Will and the power of attorney that she had executed. The Deceased's actions and the unchallenged letters that she wrote and/or to which she put her signature in those months were sufficient material entitling the judge to reach the conclusion that he did as to the Deceased's capacity in this period. The features of the evidence identified by the judge in paragraphs 38 and 39 of the judgment are such that it does not seems to me that we would justified in interfering with his finding of proper capacity in late 2004.
50. I have shared the concerns of Sir Timothy Lloyd as to the failure of the judge to articulate at this stage of the judgment the countervailing considerations arising from the various assessments and Dr Phillips' interpretation of them. However, the judge clearly had these matters well in mind, since he refers to them expressly. One must also bear in mind that this was an ex tempore judgment, given at the end of a trial at which the judge had, over immediate past days, heard and seen all the evidence. It seems to me that the judge's summary of the facts from which he draws his overall conclusions was a full one and that such a judgment should not readily be overturned, even if some of the materials might have been more fully dealt with in the context of his final conclusions.
51. If this is correct, then it seems to me that the judge was also entitled to conclude that the Deceased had capacity in July 2005 to understand that she was executing the simple will for which she had previously given instructions and the draft of which she had expressly approved some months earlier. Indeed, while Mr Walton's conduct of the execution of the document may have left much to be desired, I consider that the judge was entitled to conclude that the Deceased was able properly to understand the necessary matters to give valid effect to this simple testamentary disposition effecting equality between her two sons, whom the judge had earlier found had been equally loving and caring towards her.

Knowledge and Approval

52. Clearly, even where a testator is of sound disposing mind, the court has to be satisfied that he knew and approved the contents of the document at the time of execution. It is right that in many a case proof of capacity and due execution will suffice to establish knowledge and approval. However, in some cases more is needed. Little more needs to be said as to the circumstances in which "more is needed" than appears in Williams Op. Cit. at paragraph 5.2:

"Generally, affirmative evidence of knowledge and approval of the contents of a will will be required in cases which 'excite suspicion' on the part of the court. But it has been said that whether circumstances are such as to arouse the suspicion of the court is a question of fact in each case, and should not be reduced to some tick-box exercise, it being important that the suspiciousness or otherwise of the features identified as arousing suspicion is judged in the light of the full background of the relationships between the relevant parties."

The degree of "suspicion" will vary with the circumstances. Further such "suspicion" will not always arise from suspicion of wrong doing on anyone's part. It is simply a question of circumstances giving rise to a suspicion that the testator may not have known of and approved the contents of his will. A paradigm case of suspicion is where a person who prepares a will takes a benefit under it. Matters which may be relevant to capacity or undue influence may give rise to a requirement of affirmative proof of knowledge and approval, but a plea of want and knowledge and approval is not to be used as a cloak to conceal what is in reality a charge of dishonesty or undue influence. I state these matters merely generally to summarise the types of suspicion examined in the decided cases.

53. Equally, the degree of "suspicion" is infinitely variable and the burden of dispelling it might be heavy or slight, depending on the degree of suspicion arising in the first place.
54. In this case, of course, there is no question whatsoever of any improper dealing by anyone. However, it seems to me that, just as in the case of the capacity issue, there were circumstances here that called for affirmative proof of the Deceased's knowledge and approval of the new will. The Deceased was elderly and had, on any footing, displayed some traits of mental impairment. The collection of documents from the old solicitors seems to have been in the company of CB and CB was the beneficiary of the change in the dispositions effected by the two wills. The letters giving instructions to Mr Walton were sketchy and in fragile writing; one was misdated. CB accompanied the Deceased to the appointment for the execution the will. To my mind, these were clearly circumstances giving rise to some suspicion calling for affirmative proof of knowledge and approval of the will, if that was called into question.
55. Again, however, the evidence (which the judge accepted) was that the Deceased was seen alone by Mr Walton who, although not searching in his enquiries, read the simple will over to her. He was an experienced solicitor in this type of business and clearly reached the view that the Deceased understood and approved the contents.
56. While the burden of proof of knowledge and approval was on CB as propounder of the 2005 Will, I do not consider that it was necessary for the judge to adopt a "two stage approach" of identifying "suspicion" and the burden of proof of dispelling it. The judge was entitled to proceed directly to whether the testatrix did know and approve the contents of the 2005 Will that was admittedly executed by her on the occasion in question. The matter was put in this way by Morgan J in Cowderoy v Cranfield [2011] WTLR 1699, 1737 at [139]:

"Traditionally, the courts have adopted a two stage approach to the evidence in a case where knowledge and approval is in issue. The first stage was to ask whether the circumstances were such as to 'excite suspicion' on the part of the court. If so, the burden was on the propounder of the will to establish that the testator knew and approved the contents of the will. If the circumstances did not 'excite suspicion', then the court presumed knowledge and approval in the case of a will which had been duly executed by a testator who had testamentary capacity. It was pointed out in Gill, that it may sometimes not be necessary, or even helpful, to adopt this two-stage approach. In a case, like the present, where the court has heard detailed evidence as to the character and state of mind and the wishes of the testator, it may be more appropriate to proceed directly to answer the ultimate question, which is whether the testator knew and approved the contents of the will, that is, whether the testator understood what he was doing and its effects: see at [21]-[22], [64]."

With that, I respectfully agree.

(G) Suggested Outcome

57. For these reasons, but not without hesitation, I consider that the judge was entitled to pronounce in favour of the 2005 Will and that there is insufficient for us to hold that he was wrong in doing so. I would, therefore, dismiss this appeal.

Lord Justice Treacy:

58. I agree with the analysis set out by McCombe LJ. I, too, would dismiss this appeal. Whilst some criticisms could properly be made of the judge's ruling, there was nothing which in my opinion properly leads to the conclusion that he was wrong.

Lord Justice Longmore:

59. I agree also.