Brighton, United Kingdom
Called to the bar in 1996, Ben has worked in solicitors’ firms since 2001.
Ben works in the dispute resolution team and has experience in a wide range of areas including:
Ben has recently been involved in Healys’ expansion into Cyprus, lending his extensive experience in property law and international disputes to the Cyprus team.
Ben also specialises in Contentious Probate and deals with a range of issues relating to this practice of law. An example of Ben’s casework are below:
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1995 - 1996
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Ben Parr-Ferris considers the court’s approach to testamentary capacity in Burns and two recent decisions on the application of costs rules in contentious probate cases
22 December 2016
A number of contentious cases this year have revealed a toughening environment for family members who challenge wills, and a changing approach to the cost of probate proceedings.
In Burns v Burns  EWCA Civ 37, the Court of Appeal had to consider a first-instance judgment that had a number of deficiencies.
Anthony and Colin Burns were brothers. Colin claimed pronouncement in solemn form of a 2005 will of their mother which provided for equal division of the estate between them. Anthony challenged validity on the grounds of capacity and want of knowledge and approval, preferring a 2003 will which left the mother’s 50 per cent share in her home to him. It was agreed that the 2003 will was valid. As Colin owned the other 50 per cent share in the property, the difference was the value of 25 per cent of the property.
At first instance, the judge found that the witnesses on both sides lacked impartiality and objectivity, so relied only on the contemporaneous documents. In 2003 the mother was suffering from confusion: a number of mini mental state examinations (MMSEs) were undertaken in which she did not perform well, and other evidence supported that she was confused, forgetful, and suggestible.
In November 2004 she gave instructions in writing for what became the 2005 will. In May 2005 further memory assessments were undertaken, as well as an occupational therapy test in which it was found that her mental health was moderately impaired and she required considerable care support.
Three weeks later, the 2005 will was executed in the presence of the drafting solicitor. The solicitor was long experienced but did not know of the golden rule, which requires a medical practitioner to be present at the signing of a will by the elderly or infirm. Nonetheless, he spoke to the mother, read over the will, and arranged its execution, despite not arranging for a medical witness, having regard to previous wills, or preparing a proper note.
The judge pronounced in favour of the 2005 will. The assessments of the mother’s mental ability were not directed at her testamentary capacity, but her care needs. The solicitor would have been alerted when he met her had she lacked capacity (presumably following Lord Justice Mummery’s view in Hawes v Burgess  EWCA Civ 74), and the evidence showed that she knew what she was doing. He disregarded the MMSE tests, ignored the evidence of the medical expert, ignored the independent evidence of the day-care centre manager, and took no account of the failure to follow the golden rule.
The Court of Appeal expressed its ‘doubts as to the judge’s conclusions’ and had concerns ‘as to the failure of the judge to articulate... the countervailing considerations’. However, the court then decided that the judge’s summary of the facts was a full one, and that ‘such a judgment should not readily be overturned, even if some of the materials might have been more fully dealt with’. Similarly, want of knowledge and approval was dealt with by the judge’s consideration of the solicitor being experienced and having seen the testatrix alone. The judge was then entitled to find that she did know of and approve the will.
There are several points of note from this case. First, an ‘experienced’ private client lawyer being ignorant of the golden rule is shocking, but the court (not for the first time) made clear that it is a rule of best practice, not of law. The fact that it is ignored does not itself lead to the resulting will
What may come as more of a surprise is that the Court of Appeal will not interfere with a judgment simply because it has doubts about the judge’s findings. Provided that the judge considered the evidence and the findings of fact were sustainable on that evidence, the court will not readily interfere with them.
However, there is another, more important point. MMSEs and similar tests undertaken by medical professionals are not determinative of capacity, and a judge can disregard them. These tests are frequently in evidence in capacity and want of knowledge cases but they may not have the effect that claimants think they do.
There are also significant signs of the court’s changing approach to the costs of probate proceeding, highlighted by two first-instance cases: Elliott v Simmonds  EWHC 962 (Ch) and Breslin v Bromley  EWHC 3760 (Ch).
As in any civil claim, the starting point is that the unsuccessful party will be ordered to pay the costs of the successful party. The court can, however, depart from that general rule, and in contentious probate cases there are two specific exceptions: