Procedural Irregularities & The Burden Of Proof In Assessing Testamentary Capacity

Challenging A Will

Lonsdale v Teasdale & Others [2021]

Background

Charles Beswick had a Wife, Son and Daughter, and Grandson. He made a Will on 10 June 2014 which left his Wife as the principal beneficiary and his Son and Daughter as residuary beneficiaries. His Wife and Son predeceased him in early 2017, leaving his daughter, Paula, as the principal beneficiary under that Will.

On 15 August 2017, Charles made a new Will and signed a letter of intent which was prepared by solicitors, Savas & Savage of Ellesmere Port. His friend, Carl Teasdale was present at the meeting he had arranged on behalf of Charles. Charles gave his instructions orally and it appears there were several subsequent phone calls between Carl and the solicitors. The Will was duly executed and witnessed by two trainee solicitors.

The 2017 Will stated:

“I wish for my residuary estate to pass in full to my friend, Carl Anthony Teasdale, date of birth 7 June 1964; in the event that my friend, Carl Anthony Teasdale, predeceases me, or fails to survive me for a period of 28 days, then I wish for my residuary estate to pass in full to my friend, Mr David Ferguson; in the event that my friend, David Ferguson, predeceases me, or fails to survive me for a period of 28 days, that I wish for my residuary estate to pass in full to the club treasurer of Golden Star amateur boxing club, Princess Road, Ellesmere Port, who is currently Mr James Killcross, but should he leave the post for any reason then I wish my estate to pass in full to any other club treasurer who stands in his place. In the event my estate does pass to any club treasurer of Golden Star amateur boxing club, then the club treasurer is to ensure my estate is used solely for the beneficial purpose of the Golden Star amateur boxing club.”

And his letter of intent of the same date reads:

“I wish to clarify my explicit instructions to leave my daughter, Paula Lonsdale, out of my will. I do not wish for Paula to benefit from my will whatsoever, I do not wish to leave any of my estate to Paula. Nor do I wish for my grandson, Mr Charles Lonsdale, to benefit financially from my will. I wish to leave Charles my watches and stopwatches only. I do not wish to leave him any of my residuary estate. This is because neither of them make any effort to have or maintain a relationship with me.”

Paula challenged the 2017 Will on the ground that Charles lacked the requisite testamentary capacity to execute the Will.

The argument

It was Paula’s argument that the 2017 Will was void based on a lack of testamentary capacity of the testator.

The Golden Rule had not been followed in assessing the testator’s capacity at the time of executing the 2017 Will. The testator’s GP indicated at the time the 2017 Will was created testator was suffering from a significant cognitive impairment but could not ultimately determine whether the testator had capacity.  A joint expert was instructed to report on whether the relationship breakdown was due to cognitive impairment and possibly dementia, however, the report was inconclusive.

The trial

Carl acted as a litigant in person with a McKenzie friend supporting him. He suffered from dyslexia and struggled to read. Carl presented some pre-prepared questions to cross-examine Paula, but due to his limitations, it was suggested by Paula’s counsel that the Judge take the list of questions and conduct the cross-examination on behalf of Carl.

However, during the cross-examination, the Judge reformulated some of the questions on the list to include general questions which the Judge had along with some follow-up questions. The Judge also questioned Paula in a robust manner meaning that she was not given the chance to fully answer the questions. In return, the Judge allowed her counsel to re-examine the Claimant to allow her to complete her answers.

The Judge upheld the 2017 Will but did not formally identify who the burden of proof fell on with regard to the issue of capacity. The judgement notes indicated it fell on Paula.

The appeal

The appeal revolved around two main questions:

  1. Whether the Judge’s cross-examination of the Claimant amounted to serious procedural irregularities rendering the decision unjust; and
  2. Did the Judge’s failure to correctly identify the burden of proof concerning the issue of testamentary capacity lead to his decision on the issue being incorrect?

The Court of Appeal held that even though there were serious procedural irregularities in the way the Judge cross-examined the Claimant, this did not render an unfair trial.

The fact that the Judge prevented the Claimant from fully answering the questions was also capable of a serious procedural irregularity but was remedied by the Judge allowing the Claimant to be re-examined by her counsel.

With regards to the burden of proof, it was held that it fell to Carl to prove as Paula had raised a real doubt as to Carl’s capacity at the time of creating the 2017 Will.

It was held on most of the issues the failure to identify who the burden of proof fell on had not affected the Judge’s decision, however, on the question of whether the testator’s mind had been poisoned against the Claimant due to cognitive impairment, the Court of Appeal was satisfied that the burden of proof lay on Carl. As such had the Judge identified the burden of proof lay on Carl initially then he would have reached the opposite conclusion and found capacity had not been proven.

Practical implications of the case

In considering the issues of testamentary capacity, it is vital for Judges, and lawyers advising their clients, to correctly identify the burden of proof as failure to do so can easily prevent cases from being resolved in a cost-effective and accurate manner. For example by setting unreasonable client expectations, and as in the case, the costs of an appeal.

How can we help

Kirria Hearn is a Trainee Solicitor in our expert Dispute Resolution Team.

For more information regarding the subjects discussed in this article, please contact Kirria or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.

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