Fischer v Diffley  EWHC 4567 (Ch) (HHJ Dight sitting as a Deputy High Court Judge)
This Chancery Division case is of some interest because it is the first one of which the editors aware in which the MCA 2005 has been expressly prayed in aid in determining whether an individual had testamentary capacity.
The claimants were the representatives of the family in Germany of Louise Beck, who died on 17 January 2011. They sought a declaration that she died intestate and that the two wills executed by her and dated 1 March 2009 (‘the first will’) and 2 May 2010 (‘the second will’) were invalid.
The deceased had substantial assets in both England and Germany and on the literal construction of the wills they purported to deal with her assets in both jurisdictions. If the wills are invalid, then the deceased’s estate in England and Wales are passed on intestacy to the family whom the claimants represent and her estate in Germany would pass according to the laws of that country.
The claimants contended that at the date of execution of each of the wills, the deceased suffered from such severe dementia brought on by Alzheimer’s disease that (a) she lacked testamentary capacity and (b) there was a want of knowledge and approval and that in those circumstances they ask the court to pronounce against both wills. The only active defendants to the claim were the former tenants and neighbours of the deceased and by their counterclaim they ask the court to pronounce in solemn form for both wills notwithstanding the apparent discrepancy between the terms of each will. By the wills, the defendants stood to benefit from a life interest in either the whole or part of the deceased’s estate in both jurisdictions. If the first will was upheld, the remainder would be to the Battersea Dogs and Cats Home absolutely. If the second will was upheld, the remainder is to the family in Germany.
For our purposes, the key passages from the judgment are those relating to the law, which HHJ Dight referred to as not being in dispute (paragraph 24).
At paragraph 25, HHJ Dight held:
“As far as capacity is concerned, there are many reported decisions setting out the common law, the principal case being Banks v. Goodfellow, which has recently been supplemented by statute, to which, it seems to me, that I am entitled to have regard as a starting point in connection with the question of capacity.”
HHJ Dight then set out the key provisions of the MCA 2005. He noted that the general principles to be applied were now contained in s.1, holding (at paragraph 28) that:
“28. Notwithstanding the wording of sub- section 1 [i.e. ‘[t]he following principles apply for purposes of this Act.’] it seems to me, having regard to the terms of the Act and the context in which it was enacted, that the principles go further and are applicable in situations such as the present and must be looked at alongside the classic test contained within the common law as set out in the case of Banks v. Goodfellow.”
Having set out and commented upon the provisions of ss.2-3 MCA 2005, he held at paragraph 34 that it was apparent to him from the terms of the expert evidence that he heard that “each of the experts had in mind this modern statement of the principles relating to the assessment of capacity in a court of law and have addressed their evidence so as to deal with the factors that have been identified in the provisions that I have just referred to.”
HHJ Dight recited the classic authorities on want of knowledge and approval, placing particular reliance upon the decision of the Court of Appeal in Hawes v Burgess  EWCA Civ 74 and that of Newey J in Greaves v Stolkin  EWHC 1140 (Ch).
On the basis of the tests set down above, and after an exhaustive review of the evidence, lay and expert, HHJ Dight held that the deceased had not had the requisite capacity to make either of the two wills, nor had the defendants discharged the burden of establishing that she knew and approved the contents of the first will (for 12 reasons) or the second will (for 16 reasons). He therefore found against both wills and declared that the deceased died intestate.
As noted at the outset, this is, as far as the editors know, the first time in which a Chancery judge has expressly prayed in aid the MCA 2005 in determining the test to apply (retrospectively) to decide whether the deceased had had testamentary capacity. Alex’s commentary upon the case can be found here, whilst Simon Edward’s article upon testamentary capacity in light both of this case and that of Simon v Byford discussed also in this issue can be found here.