What are you looking for?

15 February 2016 | Comment | Article by Roman Kubiak TEP

Burns v Burns – Court of Appeal upholds finding that testator had testamentary capacity

The recent Court of Appeal case, Burns v Burns [2016], regarding the estate of Eva Burns is a good example of the technical and complex nature of will disputes.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

The facts

Eva Burns (“the deceased”) died aged 89 on 21 May 2010.The dispute was between her two sons, Anthony Burns (“Anthony”) and Colin Burns (“Colin”).The deceased’s husband had died in 1988.

The deceased owned her property jointly with Colin by way of a deed of transfer dated 5 January 1982 where the deceased and her husband sold half of their property to Colin for £10,000.

The deceased’s last will was dated 26 July 2005 (“the 2005 Will”).Anthony challenged the validity of the 2005 will and sought probate of an earlier will, dated 8 May 2003 (“the 2003 Will”).

Anthony claimed that the 2005 Will was invalid on the basis that the deceased lacked the requisite testamentary (grounds for contesting a will) at the date of its execution and that she did now know and approve of its content.

The evidence

Anthony put forward the following evidence to cast doubt on the validity of the 2005 Will:

  1. witness evidence from Anthony and other family members;
  2. a significant amount of medical evidence, most notably a series of “Mini-Mental State Examinations” (“MMSEs”).These were carried out by, amongst others, psychiatric nurses, generally with the intention of determining the deceased’s orientation, registration, attention, recall and language. Although they varied in their conclusions, the majority of them were suggestive of the deceased suffering from significant cognitive impairment;
  3. an occupational therapy assessment (referred to as “the Cape Assessment”). This, again, was suggestive that the deceased was suffering from significant cognitive impairment. It also made reference to some confabulation specifically “to fabricate imaginary experiences as compensation for loss of memory”;
  4. evidence from a number of medical professionals, including Diane Ralph, who was the deputy manager of a day care centre which specialised in the care of the elderly and those suffering from dementia, which the deceased visited. The medical professionals were all supportive of Anthony’s claim that the deceased lacked capacity; and
  5. evidence, which emerged during cross examination, that the solicitor who drafted the 2005 Will (hereafter “the drafting solicitor”) made a number of failings in preparing it. In particular, he had taken instructions from the deceased in writing (rather than in person) and when he did meet the deceased (to sign the will) he made no attempt whatsoever to identify whether the will met her requirements. Instead, he only reportedly engaged her in “idle chitchat”.

Indeed it emerged that the drafting solicitor did not have any appreciation of the “golden rule” (the rule that where a solicitor drafting a will has reason to suspect that the testator may not have capacity, either because of their age or otherwise, they should take active steps to consider the issue of capacity in more detail and, if appropriate, ensure that a medical practitioner witnesses the will).

Stocktake – the likely result

Anthony likely went into the hearing confident of success. It appears that there was a real question about capacity, which was backed up by the medical opinions and reports (which were contemporaneous). Furthermore, the best evidence to counter will challenges is often evidence provided by the solicitor who drafted the disputed will, which in this case was no help to Colin given the failings of the drafting solicitor.

Where there is a real issue as to capacity the burden of proof switches, and it will be for the propounder of the will to prove that it is valid. Therefore, provided that the judge was satisfied that Anthony had raised a real issue as to capacity, it would be for Colin to prove that the 2005 will was valid – rather than Anthony having to prove that it was invalid.

With the above in mind, on balance it would have taken a brave person to bet against Anthony’s claim succeeding.

The judge at first instance’s decision

To the surprise of many, the judge refused Anthony’s claim and held that the 2005 Will was valid.

The judge’s conclusions can be summarised as follows:

  1. the witness evidence of the family members of both sides was lacking in impartiality and objectivity, and so should be dismissed for these purposes;
  2. Instead, the judge would look to the contemporaneous documents in making his decision;
  3. the judge placed little weight on the effect of the multiple MMSEs and the Cape Assessment, on the basis that, while they were contemporaneous, they were not carried out to assess the deceased’s capacity and were instead to assess her care needs;
  4. the deceased wrote to the drafting solicitor providing instructions for the 2005 Will in a coherent manner, and took apparently independent steps to obtain the papers from her previous solicitor. The judge took this as supportive of Colin’s case that the deceased had capacity; and
  5. while the drafting solicitor did fail to adhere to the “golden rule”, this in itself was not determinative to a will challenge. Further, he was an experienced solicitor who“would probably have been alerted to one or any serious question on [the deceased]’s capacity”.

The appeal

Anthony appealed the judge’s decision on a number of grounds:

  1. the judge had failed to give the appropriate weight to the MMSEs, the Cape Assessments and the evidence of the medical professionals;
  2. the judge failed to consider the extent of the inadequacy of the precautions taken by the drafting solicitor, who had no knowledge of the 2003 will, had made no adequate enquiries about the previous wills, was ignorant of the “golden rule” and did not take any real steps to question the deceased’s capacity. In particular, the judge’s conclusion that the drafting solicitor would have probably been alerted to a serious issue as to the deceased’s capacity was implausible given that the drafting solicitor never actively considered the issue of capacity; and
  3. the judge failed to consider the law properly, in particular the switching burdens of proof. Essentially the judge had not appreciated that it was for Colin to prove that the 2005 will was valid, and not for Anthony to prove that it was invalid.

Difficulties in bringing an appeal

It is worth reiterating the difficulties in bringing an appeal in cases such as these.

If an appellant (the party bringing the appeal) argues that the judge misunderstood or misapplied the relevant law then the Court of Appeal will consider the judgment and decide whether this was the case.

The Court of Appeal will be willing to find the judge properly applied the law even if they do not expressly make reference to it in their judgment.

The appellant will therefore need to show that the judge either misquoted the law or that they did not follow it consistently.

If, on the other hand, the appellant argues that the judge did not properly consider the facts, or generally reached the wrong decision on the information before them, then the appeal will only succeed if the Court of Appeal concludes that the judge reached a conclusion that no reasonable judge acting reasonably could have made (this is sometimes known as “the Court of Appeal test”).

Conclusion of the appeal

In this case, the Court of Appeal did not overturn the judge’s decision.

It found that there was sufficient evidence for the judge legitimately to conclude that the 2005 Will was valid, despite the obvious doubts around the judgment. In essence the Court of Appeal test was too high a bar for Anthony to overcome. Although there were real doubts as to the judgement, it was not unjustifiable.

It was perhaps best summarised by McCombe LJ:

“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”


The case provides a telling reminder of some of the difficulties of will challenges. Here, Anthony, backed by significant objective evidence in his favour and a drafting solicitor who failed in his duties to adhere to the golden rule, lost in the first instance and on appeal. It highlights the attractiveness of avoiding this litigation risk by using alternative methods to resolve the dispute, most notably mediation.

There has been significant criticism of the trial judge, and the decision at first instance has surprised many practitioners. From the evidence discussed, Anthony would certainly have been entitled to feel confident of his case.

The issue in the appeal was whether the Court of Appeal test would be too high a bar for Anthony’s legal team to overcome, which did of course prove the case.

While the reasoning and conclusions of the trial judge may have been flawed, it was not so bad as to be unjustifiable.

Find more information on our Contested Wills, Trusts & Estates department. Or if you want to discuss any issues raised in this article contact us today.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Next steps

We’re here to get things moving. Drop a message to one of our experts and we’ll get straight back to you.

Call us: 033 3016 2222

Message us