Summary

An accountant executor who had taken a neutral position in relation to whether a client had testamentary capacity when executing a will in his presence was entitled to his costs out of the estate under CPR r.48.4(1), despite having addressed personal allegations during the hearing that he had known of the testatrix's lack of capacity when the will was executed.

Facts

The applicant husband (H) applied to set aside a later will made by his wife (W) on the basis that she lacked testamentary capacity as she had been suffering from Alzheimer's disease when the will was executed.

In 2006, W, in the presence of H, had executed a will in the presence of the first respondent accountant (S), which was to replace an earlier will executed in 2003. The terms of the 2006 will were more favourable to W's sole male child, the fourth respondent (P). At the centre of the disputed bequest were shares in a building company that H had founded. Under the terms of the 2003 will, W's estate was to pass to H. On the evidence, in the lead-up to making the 2006 will, both H and W had considered the possibility of granting P a greater share in the family company. Evidence was led on behalf of H variously attesting to the first appearance of the signs of Alzheimer's disease in 1999, with real issues with dementia beginning in early 2003, and W's condition worsening on a visit to Scotland in 2005. Other episodes said to be illustrative of W's mental condition prior to the execution of the 2006 will were also described. There was also expert medical evidence that W had had poor orientation and short-term recall skills in December 2005, which had further deteriorated by June 2006. The expert evidence also specifically asserted in relation to the 2006 will that although W would have understood that she was signing a will, on the balance of probabilities she would not have appreciated the extent of the property involved, would not have understood who the intended beneficiaries were, and had no numerical understanding of the division of property.

H submitted that W's mental condition resulted in a lack of memory and active recall; an inability to grasp the extent of, and what was happening to, her assets, and who the intended beneficiaries were. S maintained a neutral position in relation to the question of capacity. On the question of costs, H submitted that S was not entitled to costs under CPR r.48.4(1) as the driving force behind his involvement had been accusations of negligence that had been made against him, and that he had therefore defended the action for his own benefit and not that of the estate's.

Held

(1) The medical and other evidence was overwhelmingly to the effect that W lacked testamentary capacity in 2006; there was graphic evidence to that effect. Bearing in mind the bitterness involved in the familial dispute and the consequent need to exercise caution in relation to assessing the evidence, there was no question that W had suffered from Alzheimer's disease in 2006 which had worsened from 2007 onwards; in fact, W had displayed signs of the disease from 2003 if not before. Medical records were entirely consistent with W losing memory and recall and there was no reason to doubt medical opinion and evidence. There was also doubt whether H had understood the full effect of the will and settlement and doubt surrounding whether H had appreciated the necessity for W to understand what she was doing. W did not appreciate what she was doing and had no true understanding of the will, Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 applied. (2) There were powerful reasons for saying that the costs of S, P and the other parties should be borne by the estate; S had sued as executor and it was right that he had given his impression of W at the relevant time; he had also been right to respond to the criticisms that had been made of him. Although P's opposition to the setting aside of the 2006 will was said to be a reason why he should bear his own, if not H's, costs, many of the problems in the instant case arose from H considering that it had been appropriate for W to sign the will in his presence. Accordingly it could properly be said that there were issues that required investigation; S had thought that W had capacity and H had been prepared to let his wife execute the will. Additionally, both S and P had actively proposed mediation, which, if it had taken place, might have resulted in a trial being dispensed with, but those proposals had been met with intransigence from H's solicitors on instruction from their client. It was wrong to say that S or P should bear their own costs where the problems in the instant case had arisen as a result of what had occurred with H. The right course was that S and P's costs should be borne by the estate under r.48.4(1).

Application granted