Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The recently decided case of Ramsey v Ramsay  reminds practitioners of the importance of clearly explaining to the testator their will in a language they understand and reinforces the importance of the solicitor's evidence in cases concerning the validity of a will.
Mrs Ramsey, the Testatrix, was born in 1917 and had 8 children. She executed wills relating to her English estate on 14 August 2006 ("the 2006 Will") and 1 September 2008 ("the 2008 Will"). She died in November 2010 and her son Roynel brought a claim challenging the validity of the 2008 Will.
The 2006 Will provided for the Testatrix's estate to be divided equally between her seven surviving children (which was consistent with earlier wills she had executed in 1989 and 2000), with Roynel and her daughter Hazelyn being appointed as executors. The 2008 Will provided for an uneven division of the Testatrix's estate, with her daughter Ericka being appointed as the sole executrix and receiving a 50% share of the estate. The remaining 50% was split unevenly between the other six children, with Roynel receiving just 2% and the others receiving shares varying between 4% and 16%. The 2008 Will had been prepared by an experienced solicitor, Mr Offord, who had attended the Testatrix at home in July 2008 to take her instructions and again in September 2008 for her to execute the 2008 Will.
The Testatrix had also executed a will on 4 May 2010 relating to a property she owned in Jamaica, which also distributed her Jamaican estate unevenly between her children, although the validity of that will was not a matter that the court was required to determine.
The court heard evidence from six of the children and it was clear that there was a complicated and somewhat dysfunctional family history.The Testatrix was an elderly lady with a number of health problems, including having suffered a stroke and having poor eyesight and limited use of her hands. Roynel lived with the Testatrix and had cared for her until around 2007 when he started to attend a course during the daytime and after which his relationship with the Testatrix deteriorated. Thereafter the Testatrix made various complaints against Roynel to family members, friends and social services and he was reported to the police in 2008 and charged with assaulting her. The Testatrix had sought advice in 2007 regarding a potential claim against Lova concerning her operation of an account into which the Testatrix's pension was paid, believing that Lova had kept some of the money for herself.
The 2008 Will contained a clause explaining why the Testatrix has made limited provision for her children Roynel and Lova in particular (who received 2% and 4% respectively), stating that Roynel had 'bullied' and 'harassed' and 'tried to steal' from the Testatrix and that Lova had already been provided for from the Testatrix's money in the past. In the same clause the Testatrix explained that she had made the largest provision for her daughter Ericka because she had spent much of her time caring for her over the past few years when the other children had shown much less interest in her welfare.
At trial Roynel relied on the evidence of an expert psychiatrist, Professor Robert Howard MB BS MD MRSPsych, who concluded that the Testatrix was suffering from a moderate to severe degree of vascular dementia when she made the 2008 Will. Professor Howard also concluded that if the court accepted that the reasons the Testatrix had given as to why she was changing Roynel and Lova's shares were based in reality, it is likely that the Testatrix has testamentary capacity. Alternatively, if the court decided that the reasons were actually based on a series of delusional beliefs that had arisen as a result of her dementia, she was unlikely to have had adequate testamentary capacity.
Unusually, Ericka did not rely on the report she had obtained from an expert psychiatrist and so Professor Howard's evidence went unchallenged. The court accepted Professor Howard's evidence that the Testatrix had been suffering from dementia but concluded that, in itself, did not determine the issue of testamentary capacity. The issue of whether a person had testamentary capacity when he or she made a will was not usually one which could be decided on expert evidence alone. The court did accept that Roynel had raised a real doubt as to capacity and the consequently the evidential burden was on Erika to establish that the Testatrix did have testamentary capacity.
The central issues for the court to decide were (i) in relation to testamentary capacity, whether the Testatrix's understanding was affected by any insane delusion and (ii) in relation to knowledge and approval, whether she was capable of understanding the percentage shares provided for in the 2008 Will.
Mr Offord gave evidence that on the occasions he saw the Testatrix he had no doubt that she knew her own mind and that the 2008 Will represented her wishes. Mr Offord gave evidence that he wasn't entirely convinced that the Testatrix would understand percentages and so he explained the estate by analogy to a cake or a pie, asking the Testatrix how much she wanted each child to receive. He said that, although she was physically unwell and was unable to read or write, she had full capacity to make her will, that she fully understood she was making a will and that she was aware of her estate and approved the division of the estate contained in her will. She duly instructed Mr Offord to execute the will on her behalf after he had explained the provisions to her several times.
The court found that the Testatrix did know and approve of the contents of the 2008 Will which were read out and explained to her by Mr Offord. Although she did not read the will herself and it was signed on her behalf by Mr Offord, her ability or inability to read or write was not significant. The court accepted that Mr Offord had explained the 2008 Will in a language that the Testatrix could understand and accepted that he had done enough to satisfy himself that she understood the contents of the 2008 Will.
The court also found, on the facts, that the Testatrix did not entertain any false beliefs when giving her reasoning for the reduced shares for Roynel and Lova. In relation to Roynel in particular the court found that the Testatrix's disposition of her estate was not affected by any false beliefs about Roynel and the beliefs which she held were entirely understandable; indeed they were beliefs which a rational person could easily have formed.
Unsurprisingly then, the court found the Testatrix to have had testamentary capacity both when she gave instructions for the 2008 Will and when it was executed and found that she knew and understood its contents when she authorised Mr Offord to execute the 2008 Will on her behalf.
This judgment in this case continues the trend that the court may be reluctant to set aside a will for lack of capacity or want of knowledge and approval where the will has been prepared by an experienced solicitor. In giving judgment, the judge reiterated that the court must be cautious of over-reliance on the evidence of a medical expert witness who did not have the advantage of examining the testator. Where lack of testamentary capacity is alleged, failure to arrange for a medical practitioner to assess capacity may be contrary to the 'Golden Rule' but does not demonstrate in itself that a will is invalid. For knowledge and approval, what matters is whether the testator has the ability to understand and approve the actual choices made, not just the potential dispositions. The evidence of the solicitor who prepared the will is often key in claims of this sort.
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