The case of Hawes v Burgess [2013] EWCA Civ 94 was concerned with the validity of the will of Mrs Burgess who died in 2009 aged 80.  She had been suffering from vascular dementia prior to her death.  Her last will was made in 2007, and purported to almost entirely disinherit her son Peter, in favour of her two daughters Libby and Julia whereas previously the children had all been treated equally. 

Following her death, Peter and Libby challenged the validity of the will arguing that it was made at a time when their mother lacked capacity, and that she did not know and approve of the contents.   Julia relied on the evidence of Mr Webster, the solicitor who had drafted the will and who considered Mrs Burgess to have capacity at the time.  Peter and Libby relied on the evidence of Professor Jacoby (a renowned expert in the field) who gave an opinion after Mrs Burgess's death on her capacity in 2007.

At first instance, Peter and Libby were successful on both counts.  Julia appealed and the Court upheld the judgment, but declined to give a decision on capacity (finding that it did not need to because the will was invalid due to lack of knowledge and approval in any event). 

The Court of Appeal spent some time weighing up the strength of the medical evidence against that provided by Mr Webster. Lord Justice Mummery, giving the leading judgment, posed the central question as:

"...whether the judge's findings are sufficient to overcome the strong prima facie case for the validity of a will drafted by an independent solicitor who oversaw its executor and justify the judge's conclusion that the Deceased lacked testamentary capacity in a case where the judge found that she knew she was mkaing and will and appreciated the extent of herproperty." (Paragraph 54)

The Court of Appeal was uncomfortable with being asked to uphold the decision on capacity given the circumstances in which the will was made.  Mrs Burgess had taken independent legal advice from Mr Webster, who had many years experience of will drafting, and who felt (and recorded) that she was 'entirely compos mentis'.  Mr Webster had only met with Mrs Burgess in the presence of Julia, which he admitted made it more difficult to judge capacity than if he had met her alone, but he had taken other prudent steps such as explaining the terms and effect of the will in detail to Mrs Burgess, reading it over to her before it was signed and making a note of the meetings that he had with her.

Lord Justice Mummery was very concerned that the Court below had made a conclusion based primarily on the evidence of Professor Jacoby.  He felt that Mr Webster's position, experience and views - particularly those expressed in his notes made at the time - should not be lightly disregarded.  Paragraphs 57 - 60 of the judgment express his views strongly and repeatedly:

Paragraph 57: " is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read it through and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational."

Paragraph 59: " is a strong thing for the judge to act on medical evidence not based on any meeting with or any medical examination of the Deceased at that time, or at any time."

Paragraph 60: "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.  ...  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."

Lord Justice Mummery concluded that he found this a difficult point, but that in view of his decision on want of knowledge and approval, he did not need to reach a conclusion.  It is my view that his judgment is quite clear.  The evidence provided by an experienced solicitor who has met the deceased and formed a view as to capacity will not be readily overturned by medical opinion provided after the event. This is despite the fact that the solicitor in this case readily admitted that he had no medical training, did not refer to a medical expert for an opinion on capacity and was unable to judge capacity particularly effectively because he never saw the testator alone. 

It seems that this round goes to the lawyers.  This will bring relief to  practitioners who undoubtedly gain experience in assessing capacity and who will usually call for further evidence where it is felt that this would be beneficial.  Future attempts to prove capacity on the basis of retrospective medical opinion alone may well be extremely difficult.