Mental Capacity Deathbed Codicil
Mr Justice Newey in the High Court Chancery Division has upheld a codicil by which a very sick man left a £12,000 annuity together with a life interest in his home to his cohabitant/partner Mrs Pauline Greaves represented by Nick Macleish, assisted at different times by Kavita Rana and Toby Walker (who departed Edwards Duthie Shamash at Christmas 2012).
Leslie Stolkin, of Chigwell in Essex, had been a moderately wealthy property developer. He married once, resulting in two sons, Gary and Mark, with the marriage ending in divorce in 1989. In September 1997 Pauline Greaves, also divorced, moved in with him as cohabitant and became financially dependent on him.
In 2001, Leslie Stolkin executed a will leaving his entire estate to his eldest son Gary Stolkin, and also naming Gary as sole executor and trustee. This 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 liked.
In April 2009, Stolkin became seriously ill with motor neurone disease. He spent his last few months in hospital, where, with the assistance of his solicitors, Montlakes, he executed a valid codicil embodying some financial provisions for Mrs Greaves similar to those he had previously set out. A few weeks later, in September 2009, he died.
The codicil was then contested by Leslie’s son Gary (a high profile and well-known gay lay magistrate) on grounds of want of capacity and want of knowledge and approval. Gary also alleged that Leslie’s relationship with Pauline Greaves was dysfunctional since 2002. That allegation was disproved by clear factual evidence. The remaining evidence was mostly medical, based on Leslie’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, called by Nick Macleish of Edwards Duthie Shamash on behalf of Pauline Greaves (who is a practising specialist in mental health care and testamentary capacity in elderly patients), and Professor Hodkinson, called by Mishcon de Reya on behalf of Gary Stolkin, who has not practised medicine for many years. They agreed that the testator while in hospital had suffered from confusion caused by an infection, though not amounting to insane delusions. He was also on anti-depressants and had minimal brain damage from a minor stroke. Leslie also was diagnosed with motor neurone disease in mid-2009 whilst in hospital.
However, the experts disagreed about Leslie’s testamentary capacity. Dr Barker considered that Leslie 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. Newey J held that the evidence of Dr Barker was to be preferred.
Also in forming his judgement, Mr Justice Newey took into account the leading Judgement of Mummery LJ in the recently reported case of Hawes v Burgess. These are 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. Newey J duly gave judgment in favour of Edwards Duthie Shamash’s client, Pauline Greaves, that the disputed codicil was valid and should be admitted to probate (Greaves v Stolkin, EWHC 1140 (Ch)).