Kavita Rana, solicitor at Edwards Duthie Shamash and Nick Macleish, consultant at the firm, represented Pauline Greaves.

In Digest:

• The judgment reiterated the court’s reluctance to allow a challenge to a will or codicil drawn up by an experienced solicitor
• The judge preferred the evidence of a practising medical specialist

Kavita Rana and Nick MacLeish outline a recent decision to dismiss a mental capacity challenge to a deathbed codicil, as it was drafted by an experienced solicitor and the case was supported by evidence from a practising medical specialist.

In Greaves v Stolkin EWHC 11 LiO (Ch) in May. Mr Justice Newey upheld a codicil by which a very sick man, Leslie Stolkin, left a £12,000 annuity – together with a life interest in his home – to his cohabitant and partner, Mrs Pauline Greaves. Mr Stolkin died aged 75 in September 2009, from motor neurone disease.

The Facts

Mr Stolkin had been a moderately wealthy property developer. He married once, resulting in two sons, Gary and Mark, and the marriage ended in divorce in 1989. In September 1997, Mrs Greaves (also divorced, and with two children) moved in with Mr Stolkin as a cohabitant, and became financially dependent on him.

In 2001, Mr Stolkin executed a will leaving his entire estate to his eldest son Gary Stolkin, and also naming Gary as sole executor andtrustee. The will made no provision for Mrs Greaves, although the testator left some manuscript notes directing that she was to receive regular payments from his estate after his death, and could remain in the house as long as she wished. The manuscript notes did not form a legal document, but were brought to Gary’s attention.

In April 2009, Mr Stolkin became seriously ill with motor neurone disease. He spent his last few months in hospital, where, with the assistance of his solicitors, H Montlake & Co, he executed a valid codicil in August 2009 embodying some financial provisions for Mrs Greaves, similar to those he had previously set out in his manuscript notes and other instructions to his son. The codicil provided that Mrs Greaves would be able to stay in Mr Stolkin’s home, or an alternative property of her choice bought from the sale proceeds, for the rest of her life. It also provided that Mr Stolkin’s estate would pay her £1 ,000 per month for the rest of her life, unless she cohabited with someone else. Mr Stolkin was in hospital when the codicil was prepared, and he signed it while he was there. A few weeks later, in September 2009, he died.

The Dispute

Mr Stolkin’s son Gary contested the validity of the codicil on grounds of wont of capacity and want of knowledge and approval. Mrs Greaves, as claimant in the proceedings, sought to prove the validity of the will and codicil. Gary also alleged that Mr Stolkin’s relationship with Mrs Greaves has been dysfunctional since 2002. That allegation was disproved by clear factual evidence. The remaining evidence was mostly medical, based on Mr Stolkin’s declining physical and mental condition while in hospital, and his near-alcoholism in his final years.

Two medical experts gave evidence: Dr Andrew Barker, a practising specialist in mental health care and testamentary capacity in elderly patients, called by Edwards Duthie Shamash on behalf of Mrs Greaves, and Professor H M Hodkinson, called by Mishcon de Reya on behalf of Gary Stolkin, who had not practised medicine for many years. The medical experts agreed that, while in hospital, the testator had suffered from confusion caused by a urinary tract infection, although not amounting to insane delusions. Mr Stolkin was also on anti-depressants and had minimal brain damage from a minor stroke.

But the experts disagreed about Mr Stolkin’s testamentary capacity. Dr Barker considered that Mr Stolkin had capacity, while Hodkinson thought that his “cognitive impairment, depression, lack of mental energy and inability to concentrate” had caused him to accept and sign the document passively. Mr Justice Newey held that the evidence of Dr Barker was to be preferred.

Also informing his judgment, Mr Justice Newey took into account the leading judgment of Lord Justice Mummery in Hawes v Burgess EWCA Civ 7Li (see below), to the effect that courts should be reluctant to allow a mental capacity or want of knowledge challenge to a will that has been drafted by an experienced independent lawyer.

Mr Justice Newey duly gave judgment in favour of the claimant, Mrs Greaves, that the disputed codicil was valid, and should be admitted to probate. The judge refused permission to appeal, on the ground that the defendant had no real prospects of success. However, on behalf of Gary Stolkin, Mishcon de Reya has filed an appellant’s notice and is seeking permission to appeal.