Sharp and Bryson v Adam and Adam & Others [2006] EWCA Civ 449

The appellant beneficiaries (S and B) appealed against a decision by the High Court that the last will of the deceased (A) was invalid on the ground that it had been executed without testamentary capacity.  A had suffered from secondary progressive multiple sclerosis and died shortly after the execution of his last will, in 2001.   The first two respondents were his daughters and by a will dated 1997 were the main beneficiaries of his estate.  By 2001 A had become increasingly debilitated and could neither speak nor read.  He communicated by a mixture of a spelling board, thumbs up and down, nodding and shaking his head and eye movements.  A executed his last will by which he disinherited his daughters and left the bulk of his estate to S and B.

There was competing expert evidence at trial and real doubt arose from significant evidence tending to disprove A’s testamentary capacity.  In such cases, the burden of proof remains on those who seek to establish it i.e. A’s daughters.  Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (2000)  A’s solicitor and GP had been thorough in ensuring that they were satisfied that A had testamentary capacity on the day in question and this was supported by the appellants’ expert at the trial.  The expert evidence of the respondents’ witness R challenged this conclusion and the way in which they had reached it.  No information had been gathered as to whether A was orientated in time and place or whether he understood the extent of his assets or the consequences of his actions.  R’s conclusion was that A’s cognitive abnormalities were likely to have affected memory and executive functions and that his ability to understand the nature and consequences of his acts and consequences would have been impaired at the time of the 2001 will.  The same difficulties would have applied to his understanding of the extent of his property and the nature and extent of the claims on him of those he was including or excluding from his will.

The High Court judge preferred R’s evidence that A did not have testamentary capacity in 2001, although he cautioned that a testator’s capacity should not be wholly reliant on the mere fact of a diagnosed cognitive impairment, and an assessment of testamentary capacity should also take into account his actual capacity.  A had lacked the capacity to arrive at a rational judgment taking into account all the circumstances, and that there had been an inexplicable temporary poisoning of A’s natural affection for his daughters. Banks v Goodfellow (1870) applied.  He accordingly declared that the earlier 1997 will was valid and the latter one invalid.

S and B argued that the judge had speculated, without evidence or reasons, why A made the testamentary dispositions that he did, that he had taken too high a standard for testamentary capacity, had given undue weight to unreliable expert evidence and too little weight to a wealth of contemporaneous evidence, all to the effect that A’s cognitive faculties were sufficiently unimpaired in 2001 for testamentary purposes.

The Court of Appeal held that the case turned entirely upon its own facts.  Although there was much to be said analytically as to the persuasiveness of R’s opinion, A was in the final stages of severely debilitating progressive multiple sclerosis, the agreed effect of which was impairment of his cognitive functions. The question was whether by 2001 he had crossed an ‘imprecise divide’ and the question of why he had left nothing to his daughters had not related exclusively to his cognitive powers.  On the evidence, the judge had not been shown to have been wrong in his conclusions and it could not be said that no reasonable jury could have reached the decision that he himself had arrived at.

Appeal dismissed

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