In September 2019, the full judgement in the disputed Will and contested probate case Parsonage v Parsonage & Ors [2019] EWHC 2362 (Ch) was published. The case involved the effect of the testatrix's dementia on the validity of her Will and a subsequently redrafted Will.
Around 850,000 people in the UK currently suffer from dementia. The Alzheimer's Society suggests that around 225,000 people will develop dementia this year and 1.6 million people will be affected by some form of dementia by 2040.
The Parsonage case is pertinent for review because it concerns the issues of dementia, proving testamentary capacity and want of knowledge and approval in contested probate and disputed Wills cases.
The background
Aged 86, Beryl Parsonage died on 18 November 2015. The widow and former nurse was survived by her four children: Sian, Alison, Ian and Duncan and eight grandchildren (all of adult age by the time of the court hearing). She also left behind an estate initially valued at around £400,000 but, due to an overage entitlement in respect of nearby land, the full potential value was cited to be as much as £900,000.
Beryl Parsonage’s Wills
On 9 January 2011, Beryl Parsonage executed her last Will and testament (the 2011 Will), renouncing a Will she had written on 4 February 2010 (the 2010 Will). She had also made a pre-2010 Will but subsequently destroyed it.
The 2010 Will was written to address the fact that Beryl felt equal division of her estate, between the four children, would penalise her son Duncan, who had not previously received land and/or property from the estate. It named Duncan as executor alongside his wife and left him as the sole beneficiary of her freehold property valued at between £230,000 and £290,000. Sums of £35,000 were to be distributed to each of the four children and the residue (estimated at a minimum of £200,000 up to £500,000 was to be divided between Beryl's grandson, Tomas (Duncan's only child) and Beryl's daughter, Sian.
When it became apparent to Beryl that Sian, Allison and Ian had in fact only received cash gifts during her lifetime, she redrafted her last Will and testament in a bid to divide the estate equally among them. The 2011 Will was arranged with the Wills solicitor who had drafted the 2010 Will, he was satisfied with both Wills.
The 2011 Will was brief and made clear Beryl’s intention to treat her children equally. It named two of her children, Ian and Sian, as executors and provided that the residuary estate should be divided equally between the four siblings.
The contention
Duncan disputed the validity of the 2011 Will arguing that his mother had been suffering from dementia and therefore lacked testamentary capacity when she updated it.
However, the issue of Beryl’s dementia raised further questions. If the 2011 Will was held to be invalid on the basis of her dementia, then perhaps the 2010 Will was invalid on the same grounds.
In looking at the 2011 Will, the High Court Chancery Division applied principles derived from Banks v Goodfellow (1870) LR 5 QB 549. It further looked at burden of proof in light of Key v Key [2010] EWHC 408.
The legal process in court
It was up to the court to settle the family disagreement about the validity of the two Wills and the progress of their mother’s dementia.
Duncan had entered a caveat to the 2011 Will; this had been challenged by his brother, who instructed solicitors to have the caveat removed and to order a probate decree of the 2011 Will.
The Will solicitor’s evidence confirming Beryl Parsonage’s testamentary capacity and stated desire to redress the inequity of her 2010 Will helped to satisfy the court that the 2011 Will met the all-important Banks v Goodfellow test.
The court further ruled that it did not matter whether Beryl understood the implications of leaving such valuable assets to her children; all that mattered was that she was disposed to ensure that her assets were shared equally.
The court lastly heard medical evidence detailing how Beryl's likely mental state at the time of creating the 2011 Will would not have prevented her from making a sound decision that was consistent with her character and intentions. The court examined a letter she wrote to her solicitor in which she seemed to demonstrate her soundness of mind and testamentary capacity.
In discussing the 2010 Will the court noted Duncan’s closeness to his mother at the time of its drafting, its favourable treatment of him and its provision for Duncan’s children but not for Beryl’s other grandchildren. There were further questions relating to whether the document had been written with Beryl’s approval.
It was also heard that in making the 2010 Will, Beryl had incorrectly believed Ian, Sian and Alison had benefited from valuable lifetime gifts and this had directly informed her decision to not treat them equally. The 2010 Will was therefore deemed invalid for want of knowledge and approval.
The take-home
The case clearly demonstrates the need for people to keep regular and updated Wills, particularly as they enter later life and are at greater statistical risk of developing dementia. It also shows us that a testator does not have to fully comprehend the value of their estate for a Will to be valid – furthermore, a parent’s desire to treat all their children equally can sometimes be considered of paramount consideration when determining contested probate claims.
The case, which took three years to settle, also shows the value of taking clear and authoritative advice from a specialist contested probate solicitor when in any doubt regarding the validity of a family Will.
