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Posted 6 July 2018
by Martin Laver

Testator Has Capacity, But Lacks Knowledge and Approval

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The question of capacity most often arises in Estate disputes, where someone alleges that the deceased did not have capacity to make a Will. Capacity is a complex issue and is very often not black and white. For example, a diagnosis of dementia, brain injury or other mental health issues do not automatically mean that a person does not have capacity. This may come as a surprise to concerned family members, however, there have been several Court decisions which distinguish when a person has capacity and when they do not.

Other types of claims can arise when capacity is questioned. The first is “want of knowledge and approval” which means that the person may have understood that they were making the will (and potentially had legal capacity to execute it) but did not fully appreciate the contents of the will. The other issue that frequently arises is “undue influence”. This is where it is suspected that one or more individuals have influenced or pressurised the deceased into making a will or certain provisions within a will.

In 2016, the Court had to consider a case in which lack of capacity, want of knowledge and approval and undue influence were all alleged against the deceased’s carer.

The deceased, Mr David Poole, suffered from severe psychiatric and physical injuries following a motorcycle accident which he eventually received a hefty compensation – just over £1 million. Mr Poole received assistance from Social Services and, in 1994, was accommodated under an assisted living scheme. This meant that Mr Poole resided with a carer, Mark Everall, who would be paid a sum (£825 per week) to provide daily care and assistance to David.

David was appointed a Receiver, Mr Lloyd (who was a solicitor), who managed David’s personal welfare, property and financial affairs. Over the years, it became apparent to both Mr Lloyd and Mr Poole’s two brothers, Darren and Sean, that Mr Everall had inserted himself into David’s life in such a way that he appeared, at the very least, to be interfering in David’s affairs and also seemed to be persuading David to do things that were not in his best interest, such as discharging himself from hospital against medical advice and revising his will on several occasions and convincing the deceased to take out an injunction against his brother.

After having prepared several drafts of wills on David’s behalf, Mr Lloyd drafted a will in February 2012, which David signed. The February 2012 will left his brothers each 10% of his Estate, 10% to a former girlfriend, and 10% to be shared equally between Sean’s four children with the remainder to be divided among three charities.

Mr Everall repeatedly made allegations that David was unhappy with the contents of this will and that he wanted to change it (although David did not express a desire to change it). On one occasion, David phoned Mr Lloyd’s office to explain that he felt that Mr Everall was bullying him, that Mr Everall shouted at him and kept telling him what to do.

Mr Everall sent an email to David’s social worker claiming that David was upset about the will stating that David had complained to Mr Lloyd:

“unlike the last will there was no provision in this one for me…”

Over the course of the next several months, Mr Everall exerted a significant amount of influence over David and:

  • Made a number of complaints and allegations against Mr Lloyd for wrongdoing in an attempt to have him removed from the management of David’s financial affairs;
  • Made assertions that David was unhappy with Mr Lloyd and with the will that Mr Lloyd had prepared in February 2012;
  • Made assertions that David wished to change his will to leave a financial gift to Mr Everall;
  • Prevented Mr Lloyd from confirming any further instructions from David in respect of further changes to his will;
  • Was obstructive in relation to obtaining a capacity assessment for David (to ensure he had capacity to change his will yet again);
  • Orchestrated David discharging himself from hospital against medical advice, without medication and without an assessment of his medical and psychiatric needs.

A Social Worker’s report from July 2012 stated:

“David requires assistance to manage his finances in a way that is beneficial to himself. David has a court appointed deputy – Jon Lloyd who manages David’s finances for him.”

“David can easily be persuaded to spend his money on other people to the detriment of his own well-being. He may not always be able to see the consequences of the way in which he may want to spend his money. This has placed David at risk of financial exploitation and he has been taken advantage of in the past.”

David’s wishes in relation to leaving money to Mr Everall appeared to change considerably over short periods of time. When in the presence of Mr Everall, David made no mention of leaving Mr Everall a gift in his will or a very small one when prompted, but when David discussed the matter with Mr Everall, suddenly he began talking of leaving 50% of his estate to Mr Everall.

In December 2012, following a holiday to Spain with David and his partner, Mr Everall prepared a will for David in which Mr Everall was the beneficiary of 95% of David’s estate. Mr Everall took the unusual step of making a recording of the conversation he had with David when David signed the will. The transcript of the conversation is clear that Mr Everall does not explain to David that he is signing a will but instead refers to the document discussed as a letter of wishes. Mr Everall gave a minimal explanation of the terms of the will and the conversation was more designed to suggest that David did not need to look at the document in any detail.

In this case, there was, on the face of it, reasonable doubt as to David’s capacity – evidence of David’s history of brain injury and psychiatric illness were raised by the pleadings and this together with his lack of capacity to manage his financial affairs was persuasive. However, there had been a formal assessment of David’s capacity in February 2012 and the doctor’s opinion was that David was likely to continue to have capacity except for temporary periods in which it might be affected by a recurrence of psychiatric illness. As David had not suffered an episode for some years and there was no indication that he was affected by any such episode at any time in 2012, the Court determined that the evidence as a whole indicated that David did have capacity to make the will in December 2012.

Although the Court found that David had capacity, the Court determined that David could not have had knowledge and approval of the will because the only evidence came from Mr Everall and was unconvincing due to its self-serving nature. The transcript of the recording of David signing the will was compelling and revealed Mr Everall did not read over the terms of the will to David and by his own account, Mr Everall left David to read the will over himself. The transcript of the recording evidenced that Mr Everall glossed over the will by saying,

“so there’s just me and Sue and then everything else is just basic.”

Mr Everall did not fully explain the amount of the gift being left to him, nor did he remind David that his nieces and nephews or charities were being left out of the will and reduced the gift to Susan White (David’s girlfriend). It was only Mr Everall’s unsupported word that these issues had been previously discussed with David.

In the round, the Court was satisfied that Mr Everall used his relationship with David to isolate David from others and his motive in doing so was financially driven and ruled that the December 2012 was not valid as David did not have knowledge and approval of it.

If you would like to read this case in more depth, click here. Alternatively, if you need advice regarding a matter similar to this, then please do not hesitate to get in touch with our experienced team of disputed will solicitors on 01392 207020.

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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills