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26 June 2013 | Comment | Article by Roman Kubiak TEP

Lack of testamentary capacity and lack of knowledge and approval

In the recent decision of Greaves v Stolkin[2013] EWHC 1140, the High Court has upheld a deathbed codicil (a document which usually only makes minor amendments to an earlier will without revoking the entire will) which gave a life interest in the deceased’s home, a car and a £12,000 annuity to the deceased’s partner, Pauline Greaves.

The deceased, Leslie Stolkin, executed a will in 2001, leaving his entire estate to his son, Gary. There was no provision made for Mrs Greaves, the woman he had lived with since 1997 and who had become financially dependent upon him, although it seems that Mr Stolkin had written a number of letters expressing his desire to provide for Mrs Greaves. However, whilst those letters purported to make gifts of a testamentary nature, they were not witnessed and therefore failed to meet the strict requirements of s.9 Wills Act 1837.

In 2009, Mr Stolkin became seriously ill and it appears that his son, Mark, asked Mr Stolkin’s solicitors to attend upon him to formalise his desire to benefit Mrs Greaves by way of a codicil which provided for Mrs Greaves. The codicil was executed (signed and witnessed) whilst Mr Stolkin was in hospital. Mr Stolkin died shortly after executing the codicil.

Following Mr Stolkin’s death, his son, Gary, contested the codicil on the grounds of lack of testamentary capacity and lack of knowledge and approval.

Testamentary Capacity

Two medical experts provided evidence relating to capacity. Both agreed that the deceased had suffered minor brain damage caused by motor neurone disease and that he had also experienced confusion brought on by a urinary tract infection. Both experts also agreed that there was ‘no evidence that Leslie was suffering from insane delusions at the relevant time’.

However, the experts disagreed on the issue of whether Mr Stolkin lacked testamentary capacity. Professor Hopkinson, for Gary, considered that the ‘cognitive impairment, depression, lack of mental energy and inability to concentrate’ experienced by Mr Stolkin had resulted in him accepting and signing the document without question and considered that Mr Stolkin signing the codicil “represented passive acceptance of the document’s contents rather than it having embodied his own considered decisions.”

The second expert, Dr Barker, for Mrs Greaves, considered that the testator did have capacity. Evidence provided by a number of individuals, including Mr Renda, the solicitor who drafted the codicil and attended upon Mr Stolkin to execute it, stated that Mr Stolkin understood what was involved and that he was fully ‘compos mentis’ at the relevant time. The High Court decided that the deceased did have capacity, highlighting the importance of the solicitor’s evidence and attendance notes. To that end, the judge quoted Mummery LJ in the case of Hawes v Burgess [2013] EWCA Civ 74 in which he stated:

“My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property”

Knowledge and approval

The High Court also confirmed that Mr Stolkin had knowledge and approval of what was contained in the codicil based on evidence provided by Mr Renda. Mr Renda stated that he had read through the terms of the codicil with Mr Stolkin and that Mr Stolkin was “lucid, he was clear, there was no confusion and … he understood matters, and he wanted to execute the codicil and admitted the valid codicil to probate.”

On the facts, the High Court decided that the codicil was therefore valid on the basis that the deceased had testamentary capacity and that he knew and approved of the content of the codicil and it was therefore admitted to probate.

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.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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