‘2nd ed of the Contentious Probate Handbook – progress update (18.05.2024)’

I am currently writing-up Chapter 3 (Probate Disputes), and today completed the section about ‘Want of execution.’ When I researched this chapter earlier in the year, I came across a general evidential point in relation to the judicial approach advocated in ‘Gestmin.’ This is of general application in relation to the ‘memory’ of witnesses. The following is a very brief extract from the current draft of paragraph 3.2.2 (Necessity for strict compliance) of the book:

‘In Gestmin SGPS S.A. v. Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) … Leggatt J drew attention to the fallibility of human memory and the usefulness of oral testimony, observing that: …

The best approach for a judge to adopt in the trial is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’

See also Chapter 5 (Litigation) paragraph 5.3 below, and CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] to [10] (approved in Kogan v. Martin [2019] EWCA Civ 1645, in which Floyd LJ stated at [88] that, ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’
What constitutes the ‘strongest evidence’ in any particular case will depend on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the threshold to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied.

Draft Chapter 3 currently runs to 82 pages, and today I have completed the writing-up of 18 of those pages. The next section I am writing-up, which is a personal favourite, is – ‘Lack of testamentary capacity.’ So – back to the book!

My article – ‘Golden rule in commercial mediation’ was published in the Law Society Gazette online 13.05.2024.

My article – ‘Golden rule in commercial mediation’ was published in the Law Society Gazette online 13.05.2024. To read it, simply google the words – ‘Golden rule in commercial mediation + Law Gazette.’ I have also posted a link to the article on the ‘Publications’ page at www.carlislam.co.uk

Link: Golden rule in commercial mediation | Law Gazette

30 minutes ago, I completed the writing-up of draft Chapter 4 – ‘Associated claims’, of the 2nd ed of the Contentious Probate Handbook, for publication by the Law Society of England & Wales, and submitted it to my editor. The chapter runs to 19,730 words = 79 A4 pages of manuscript. In re Thompson’s Will Trusts; Dryden v Young [2024] EWHC 1095 (Ch), HH Judge Davis-White KC, provided a comprehensive summary of the principles that govern the approach of a court of construction to the interpretation of a will. This, along with other recent cases in relation to: substitution & removal of executors; construction & rectification of a will; family provision; & proprietary estoppel claims (including Winter v. Winter [2023] EWHC 2393 (Ch)), together with references to civil procedure and practice set out in the latest edition of the Chancery Guide, are all discussed. Next, I will turn to the writing-up of Chapter 2 – ‘Preliminary steps’, which will include a detailed and updated discussion of ‘caveats’. I am aiming to complete the 1st draft of that chapter within the next 14 days. So back to the book! Activate to view larger image,

‘My article – “Golden Rule in Commercial Mediation” is scheduled for publication in the Law Society Gazette (online) either tomorrow or on Monday’

I have broken off from writing the 2nd ed of the Contentious Probate Handbook for the Law Society for 30 minutes, to mention that the editor of the Law Society Gazette has just informed me that my article ‘Golden Rule in Commercial Mediation’, will be pusblished online in the Law Society Gazette either tomorrow or on Monday. This is my 2nd article for the LSG over the last 6 months. My previous article was entitled ‘Commercial Mediation of Music Disputes.’ Just Google those words to find it. The LSG has given permission to the CMC to republish that article on their website, to a worldwide audience. I am currently wriritng the Costs Chapter of the book, and by Sunday will have completed the draft chapter for submission. I will then have written-up almost half the book. As I have been writing the book, I have discovered significant changes in the law, procedure and practice in relation to these claims, and following publication will offer the LSG a series of short articles as updates for solicitors. Now back to the book!

‘Testamentary Capacity’

In Leonard v Leonard (2024 EWHC 321 Ch) [149] to [157] Mrs Justice Joanna Smith provided a useful summary of the key legal principles:

(i)          It is not the law that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity.
(ii)         The enquiry is whether, the deceased testator’s [‘T‘s’] mind is so unsound that [T] ‘cannot understand what he is about … or his ability to make a rational decision is absent’ (Gardiner v Tabet [2021]).
(iii)       The Banks test concerns the ability or capacity to understand the matters identified therein. It does not require actual understanding or recollection and it is not to be equated with a test of memory.
(iv)       There is no requirement that T actually remembers the extent of his property & deficiencies of memory are not the equivalent of incapacity.
(v)        When considering testamentary capacity, the court is concerned with the ability to make decisions, not merely the ability to understand a given transaction, or a particular choice that has already been made, which are issues to be considered under ‘knowledge and approval’ (Perrins v Holland & Simon v Byford [2014].
(vi)       When evaluating limb 2 of the Banks test, there is no need for T to be able to compile a mental inventory or valuation of all his assets disposed of by his will, but merely to have ‘a general idea’ of those assets (Todd v Parsons [2019].
(vii)     T does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property (Minns v Foster Ch, 13 December 2002 (unreported)).
(viii)    Furthermore, there is no need for knowledge of the actual value of assets (Blackman v Man & Schrader v Schrader [2013]).
(ix)       When evaluating limb 3 of the Banks test, T must have capacity to comprehend the nature of the claims of others, whom by his will he is excluding from all participation in his property.
(x)    The question with which the court is concerned when considering the Banks test is transaction and issue specific. T must have the mental capacity (with the assistance of such explanation as he may have been given) to understand ‘the particular transaction and its nature and complexity’ (Hoff v Atherton & Hughes v Pritchard). This would appear to encompass not only the complexities in the will itself (limb 1), but also the complexity of T‘s property (limb 2) and of the moral claims on his estate (limb 3).
(xi)  The 4th limb is a separate element.
(xii) In Sharp v Adam, the Court of Appeal observed that, with reference to the 4th limb, the judge could have asked ‘whether [T’s] human instincts and affections, or his moral sense, had been perverted by mental disease,’ & observed that the 4th limb is ‘concerned as much with mood as with cognition’. It is in this way that it is to be distinguished from the previous 3 limbs, which are purely concerned with cognition.

I will of course discuss this case along with recent cases about Undue Influence and Lack of Knowledge and Approval, in Chapter 3 – ‘Probate Claims’ of my forthcoming book for the Law Society – the 2nd Edition of the Contentious Probate Handbook. This will be my 8th book. I am going offline from LinkedIn for the next 3 months, to focus of completing the writing of the 1st complete draft of what is looking like a 400 page book. Ellen Radley – who is one of the world’s leading forensic document advisors, and Dr Hugh Series (Oxford University) – who in my opinion is the UK’s foremost expert on testamentary capacity, are each kindly contributing Practice Notes which will appear as Appendices about: (i) Forensic Examination of Handwriting; and (ii) Mental Disorders, respectively. By the end of this week I will have completed the writing of around 50% of the book. So, it is now time for me to return to life as a hermit – well at least until mid-July!