Hewitsons’ Contentious Trusts and Probate Team acted for the successful Claimants in the contested will case of Dharamshi & Others –v- Velji & Others EWHC 3917 (Ch), and judgment was handed down in December 2013.
The Claimants in this case were the blood relatives of the Testator and the beneficiaries under his last Will dated 25 June 2003 (“the June Will”). The Claimants invited the Court to pronounce in favour of the June Will. The Testator had made two previous Wills dated 11 April 2003 and 1 May 2003 under which his wife was the principal beneficiary of his estate. In the event of his wife predeceasing him, the Testator had made provision in his April and May wills that his wife’s family, the First to Third Defendants, would benefit. Following his wife’s death on 27 May 2003, the Testator executed the June Will to benefit his family, the Claimants. The First to Third Defendants issued a counterclaim seeking an order that the Court pronounce against the June Will and in favour of the May Will.
The First to Third Defendants sought to challenge the validity of the June Will on the ground that the Testator lacked Testamentary Capacity at the date when it was executed. The First to Third Defendants contended that the Testator was suffering from “a severe bereavement reaction” following the death of his wife, sufficient to amount to a lack of testamentary capacity as at the date of execution of the June Will.
No diagnosis of depression was noted in the Testator’s medical records until April 2004, almost a year after the execution of the June Will. It was agreed by both medical experts that there was no evidence that the Testator was suffering from delusional thoughts or psychotic depression at the time the June Will was made. Although the Testator did exhibit behaviour akin to depression in and around June 2003, the experts agreed that this behaviour was equally consistent with a grief reaction.
In the absence of any recorded medical condition sufficient to amount to a lack of capacity or disorder of the mind, this was a case where the witness evidence given at Court was left to play an important role in establishing whether the Testator’s grief was so severe that it prevented him from making rational decisions at the time he made the June Will. After hearing all the witness evidence, the Judge concluded that there were insufficient grounds to conclude that the Testator was suffering from any mental disorder. In particular, the Judge considered there was insufficient evidence provided by the First to Third Defendants that the Testator lacked capacity. The behaviour cited by the First to Third Defendants was that, following his wife’s death, the Testator was unresponsive when questioned, neglected his personal hygiene and the cleanliness of his flat, drank and smoked more heavily than previously and declined to attend the religious ceremonies at his local mosque.
Grief and Testamentary Capacity
The Court was mindful of the fact that severe grief can amount to a lack of testamentary capacity following the case of Key v Key . That case involved an elderly testator who executed a will the week after his wife had died, seemingly at the instigation of one of his daughters. The Court declined to pronounce in favour of the will, making it clear that in certain circumstances, bereavement can give rise to a disorder which is sufficient to deprive a patient of the power of rational decision making and to render them particularly vulnerable to suggestion from third parties.
Although the Judge accepted that the First to Third Defendants’ reports of the Testator’s behaviour were accurate, he did not consider these to be unusual reactions to the death of a much loved wife and considered that they were well within the range of normal behaviours which would be expected in these circumstances and were insufficient to amount to a lack of capacity. The Court pronounced in favour of the June Will. The Court was satisfied that the Testator had carefully selected the beneficiaries of his June Will, and had instructed a solicitor to draw up with Will in accordance with his clear instructions. Deciding to amend the May will following his wife’s death was perfectly rational and could be explained by the Testator not having wanted to upset his wife whilst she was alive by disinheriting her family.
Although, the Testator was undoubtedly grieving for his wife, there was no suggestion that he did not make the June Will entirely of his own volition and that it reflected his true intention and wishes. The evidence of the solicitor who prepared the June Will and the Testator’s friend who was present both when the instructions were given and when the June Will was executed, was resounding in confirming that the Testator “knew what he was doing and wanted to achieve”.
Refusal to Mediate and Costs sanctions
In accordance with the normal rules in probate claims, the First to Third Defendants were ordered to pay the Claimants’ costs of the claim as well as their own. No costs were payable out of the estate.
In addition, the First to Third Defendants were penalised for having refused to mediate by being ordered to pay some of the Claimants’ costs on the indemnity basis.
Mediation had first been proposed to the First to Third Defendants in a letter dated 25 September 2012. The solicitors acting for the First to Third Defendants did not respond until 18 October 2012 when they had simply confirmed that they were taking instructions from their clients. No further substantive reply was given by the First to Third Defendants in response to the suggestion of mediation.
Mediation was again offered by the Claimants’ solicitors, Hewitsons, by letter dated 1 August 2013. Hewitsons continued to press for mediation but no response was received from the solicitors for the First to Third Defendants until 17 October when mediation was refused due to “the practicalities and logistics” of the First to Third Defendants living abroad.
The Judge rejected the First to Third Defendants’ arguments that mediation was not practical because of the fact that they lived abroad and would have needed to make travel arrangements to attend. The offer of mediation had been made over a year before the trial and this was adequate time to arrange for a representative to travel to the UK to attend mediation, as, in fact, the Claimants had provisionally arranged to do. The Judge held that the First to Third Defendants’ conduct was tantamount to a refusal to mediate for which sanctions should be imposed, particularly in a case which was crying out for mediation. He therefore ordered the First to Third Defendants to pay the Claimants’ costs on the indemnity basis from 1 August 2013, being the date from which Hewitsons were pressing the First to Third Defendants’ to agree to attend mediation.
The Judge’s decision on costs follows the landmark decision in PGF II SA –v- (1) OMFS Company & (2) Bank of Scotland Plc  and demonstrates the Courts’ commitment to the merits of Alternative Dispute Resolution and their willingness to impose sanctions on parties who refuse to engage in this process.
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A version of this article has been published today by the New Law Journal and is available here.