Will invalidated after solicitor failed to check “delusional” client’s capacity

Will: Paranoia affected testamentary capacity 

The High Court has invalidated a will prepared by a solicitor who was aware of the client’s “paranoid delusions” but did not investigate whether they affected his testamentary capacity.

Master Clark said that even though Jonathan Margarson, senior partner of Suffolk firm Cross Ram & Co, had suggested the client should be assessed by a doctor before making a new will, he did not ensure it happened.

He acted for Edward Smith, who died in January 2016, aged 97. He was unmarried and had no children. In a 2006 will, he passed his estate – comprising a cottage and savings of around £140,000 – to his great nephew, Gavin Boast, but in 2013 replaced it with a will that gave Mr Boast £15,000 and almost all of the rest to two of his sisters.

In February 2012, Mr Smith’s GP recorded that he was staying with family (his nephew Terry and his partner Sila) because he was not coping in his home.

He was described as “increasingly confused, paranoid ideas… lucid but disorientated in time and space”, with “fixed ideas about people preventing him having tablets”.

He was seen by a consultant psychiatrist soon after, who noted that Mr Smith had “expressed various paranoid delusions and over the last week or so has become less compliant with care”.

Soon after, Mr Smith called Mr Margarson to say he wanted to cancel an enduring power of attorney (EPA) in place, with Mr Boast as the attorney, and to make a new will benefiting his sisters.

Mr Margarson was aware that Mr Smith had been diagnosed with dementia and sought advice from the psychiatrist. After a further review, the psychiatrist said Mr Smith “continues to maintain various persecutory delusions that could influence his decisions about how he disposes of his property in his will”.

Mr Smith was confused about what his estate comprised and the psychiatrist went on: “For these reasons, I do not believe that he has testamentary capacity and I think it is extremely unlikely that he would ever regain that testamentary capacity.”

Mr Smith wrote again to Mr Margarson in April 2013 about a new will and in correspondence the solicitor said he felt they should have a medical opinion that he was competent to make it.

When Mr Margarson attended on Mr Smith at his home, he was told a doctor had been to see him that day and that Mr Smith had already signed the new will, with three attesting witnesses also having signed it.

“Mr Margarson expressed concern about the deceased’s mental state, and the deceased assured him that he had no mental problems whatsoever, and that all his problems were physical,” said Master Clark. “Mr Margarson seems to have accepted this without question.”

In his attendance note, the solicitor wrote that, if a doctor had not previously cast doubts upon Mr Smith’s mental competency, he would not have had concerns about it. “Mr Smith was perfectly able to read and understand what was in front of him.”

Master Clark said Mr Margarson did not take any steps to find out whether Mr Smith understood what his estate comprised.

He also did not appear to have appreciated that the “foreign lady” who was the main subject of Mr Smith’s paranoia was Sila and that his “delusions about her were capable of affecting his testamentary intentions”.

The master said: “This is clear evidence (and should have been appreciated as such by Mr Margarson) that the deceased’s paranoid delusions about Sila were extending to and had affected his relationship with Gavin.”

The following month, a ‘best interests meeting’ concluded that, due to Mr Smith’s delusional beliefs associated with his dementia, he should move to residential accommodation.

Soon after, Mr Boast applied to register the EPA. Mr Smith objected and a doctor who assessed him for the consequent Court of Protection proceedings felt he lacked capacity to appoint a new attorney.

Master Clark held that the evidence showed Mr Smith lacked capacity in May 2012 and there was nothing to indicate that his condition improved after then.

“The deceased’s correspondence with Cross Ram demonstrates intensely irrational persecutory delusions about [Sila], which extended to Gavin, and were, I find, causative of his decision to exclude Gavin from receiving all but £15,000 under the 2013 will.

“The only evidence the contrary is the attendance note dated 14 June 2013 of Mr Margarson, in which he expresses the view that the deceased had capacity.”

But, having become aware of Mr Smith’s paranoid delusions, Mr Margarson “did not investigate whether they were capable of affecting his testamentary decisions, either by asking further questions, or by instructing a qualified medical practitioner to assess this.

“Indeed, although Mr Margarson seems to have considered that the deceased should be assessed by a qualified medical practitioner before making the 2013 will, he did not ensure this was done.”

Master Clark pronounced against the 2013 will and found the 2006 will to be Mr Smith’s last valid will.

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