Perrins v Holland: the rule in Parker v Felgate lives on

  • Date : November 2010
Background

It would seem to be a fairly trite proposition that when a person makes a will they must have capacity to do so. Many probate disputes involve that question and often it is a finely balanced one. It is also a requirement that the testator know and approve the contents of the will. In most cases that is achieved by proof of due execution and capacity and it is only in cases where the suspicions of the Court are excited that proof that the will did reflect the true intentions of the testator is required.

In most cases the person propounding a will pleads that at the time the will was executed the deceased had testamentary capacity. However, there has been an exception to this general rule since at least 1883 (and possibly before), which has become known as the rule in Parker v Felgate1. I propose to look at the rule in more detail below but essentially it provides that if a testator has lost capacity by the time he executes a will, it is enough that he understands that he is executing a will for which he has previously given instructions.

For some time among practitioners there has been a feeling that the rule is an anomaly. In these days of the Mental Capacity Act 2005, when capacity has to be shown at the material time, the idea that someone who lacks capacity is nevertheless competent to make a will feels instinctively wrong.

Perrins v Holland2 was the first chance the Court of Appeal has had to look at the rule, although it has been examined by the Privy Council in a couple of cases. It was an opportunity to attack the rule, although that attack proved unsuccessful. The facts of the case are also striking and provide the most extreme example of an application of the rule in the reported case law.

The Rule in Parker v Felgate

Parker v Felgate involved a testatrix who had been in the process of giving instructions to her solicitor to prepare a will over a number of interviews, the last alterations being made on 24 July 1882 and 10 August 1882 before the will was engrossed3. On 26 August the testatrix fell into a coma but was roused sufficiently to execute the will on 29 August. In his summing up to the jury, Sir James Hannen put forward three possible states of mind which would be sufficient to establish capacity:

1If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’2Even if she could not recollect all that had gone between her and the solicitor, she was in a condition, that if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and-So so much?’, or ‘Do you wish to do this?’ (as the case might be) she would have been able to answer intelligently ‘Yes’ to each question.3A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it’.

The rule was applied subsequently, albeit sporadically in a number of cases:

Re Wallace4, where the testator himself wrote out a Letter of Wish which was used as the instructions for a formal Will prepared the next day and executed by him the day after.

Re Flynn5, where instructions were given on 21 October 1973; on 21 December 1973 a draft of the purported codicil was sent to the deceased. By letter of 5 January 1974, the deceased approved the same and asked the said solicitor for it to be engrossed. On 8 January 1974, the engrossment of the purported codicil was sent by the said solicitors to the deceased. Early in the morning of 9 January 1974, the deceased was admitted to West Middlesex hospital. On the same day the deceased executed the Will only four days after he had approved it.

Clancy v Clancy6, where instructions for the will were given on 1 December 1999 but the testatrix herself when in hospital on 24 March telephoned the solicitor to say she wanted to make the Will for which she had given instructions and she executed it on 28 March at a time when she lacked testamentary capacity.

Kenny v Wilson7 and Thomas v Jones8 were also cases where the rule was applied, although little can be derived from the report of the latter.

The rule was also approved (although not applied) by the Privy Council in Pereira v Pereira9, where the Privy Council said obiter that the first of Sir James Hannen’s propositions was good law but did not explain why10. The Privy Council also accepted that the rule existed in Bhattan Singh v Armichand11, although refused to apply it where instructions had come not from the testator but a third party.

The rule provides an exception also to the general principle that the testator must know and approve the contents of the will at the date of execution.

The facts of Perrins v Holland

Robert Perrins (‘Robert’) died on 31 January 2003. He made the disputed will on 26 September 2001. Common form probate was granted on 24 June 2003. The only substantial asset in the estate was Robert’s bungalow at 28 Firbank Close, Bourneville, which he held under a long lease worth GBP195,000. By his will, Robert left his entire estate to Anne Dooney (‘Anne’) whom the will described as his carer. It also provided that in the event that she failed to survive him by 28 days, his estate should be divided equally between his son David and his brother John. Partners in Sydney Mitchell, solicitors, were appointed Executors.

Robert was born in 1955. While still in his teens he was diagnosed with insulin dependent diabetes. In 1991 he was diagnosed as having primary progressive multiple sclerosis. By early 2000 his condition had deteriorated to the extent that was unable to read or write, had little or no control of his movements and was confined to a wheelchair. He had great difficulty in communicating. Anne was in constant attendance upon him during the day. He was still in the throes of working out financial arrangements with his ex-wife – they were separated in 1994 but divorced in early 2000. He had one son, David.

In about April 2000, Anne telephoned Sydney Mitchell solicitors to call on Robert to take instructions for his will. On 5 April 2000 a Mr Ferguson, legal executive of that firm, called and took instructions for a will, the general effect of which was reflected in the final will.

On 12 April 2000 Mr Ferguson wrote a memorandum to Mr Hugh Berry, a solicitor at his firm. On the same day Mr Ferguson wrote to Robert enclosing the draft of the will, which was eventually used for execution on 26 September 2001 and a draft of an Enduring Power of Attorney (EPA), saying that ‘If the documents meet with your wishes, could I suggest that Ann telephones me… and I will make a suitable appointment to come over and have them signed.’ There was no response from Robert or Anne. On 31 May 2000, Mr Ferguson wrote to Robert saying (as relevant): ‘I leave you to think over your will and let me know if any amendments are required’.

On 27 June 2000 Hugh Berry visited Robert at his home to discuss his matrimonial affairs and his will. On 30 June 2000 Mr Berry made the memorandum for the file, including the following note:

‘I did ask Mr Perrins if the draft of the will was in order and ready to be executed and it was difficult to communicate on account of his disability, but Anne did say that she thought there were some matters that were not clear or satisfactory and that she would be in contact about it and I left it at that.’

Within a week of Mr Berry’s note, on 6 July 2000, Mr Ferguson wrote again to Robert: ‘If you have any queries to raise in connection with the will I sent to you on 12 April, could I suggest that perhaps Anne telephones me to discuss the same.’ Anne did not make contact with Mr Ferguson, either on her own behalf or on behalf of Robert in relation to the amendments to be made or the execution of the EPA.

On 25 June 2001, almost a year after his last letter, Mr Ferguson wrote to Robert that he ‘can only assume that because I have heard nothing from yourself or your carer, that you do not wish to proceed with your will and I enclose my firm’s account...’ On 26 June 2001 Anne telephoned Sydney Mitchell and left a message for Mr Ferguson to ring her. It is not known why there was then a delay or when an appointment for execution was made.

On 26 September 2001, Robert was driven to the car park of Sydney Mitchells’ office premises and wheeled out of his adapted vehicle onto the car park. Mr Ferguson approached him with two documents, the will and the EPA in favour of Anne and a partner in Sydney Mitchell. According to his account in Court, Mr Ferguson bent over Robert and gave a summary of the effect of each clause of the will and the EPA then asked if Robert was happy with it. Anne stood away from him towards the car park entrance, perhaps three of four yards away. Robert indicated his consent by saying ‘Yes’ in answer to the question ‘Are you happy with it?’. Mr Ferguson wrote in the dates of the will and when requested Anne came forward and produced a rubber stamp, which was rested first on the will and then on the Power of Attorney. Robert’s hand or arm was placed upon the stamp and the weight of his limb caused his mark to be made. The documents were then witnessed in the usual way.

The judgment at first instance

Lewison J found that at the date of giving instructions for the will on 5 April 2000 Robert had testamentary capacity. However, by the time he executed the will on 26 September 2001 he had lost that capacity. He found that the will as executed accorded with the instructions given in April. He also considered that the deceased’s intentions in April 2000 remained the same as at 26 September 2001.

The judge then went on to conclude that the contents of the will were summarised for the testator, that he understood the summary and therefore knew and approved the contents of the will, even though that might not be required for the principle in Parker v Felgate.

In essence, Lewison J found that the deceased fell within the second state of mind set out in Parker v Felgate. He appears to have based his conclusions on the evidence of Mr Ferguson that he ran through the will, briefly summarising each clause.

The appeal

The arguments on appeal were as follows:

1The decision of Sir James Hannen in Parker v Felgate was and is wrong in principle and should not be followed. There was no previous authority to support the statements of Sir James Hannen as to the law to be applied. The law requires a testator to have testamentary capacity at the time he executes his will and there is no justification for any relaxation of that requirement. Each of the subsequent reported cases in which it has been applied is either distinguishable or wrongly decided.2 The conclusion of Lewison J that the testator knew and approved the contents of the will at the time he executed it is logically indefensible and wrong in law. If, the testator did not have testamentary capacity when he executed his will on 26 September 2001 then he cannot have known and approved its contents.3In his application of the principle of Parker v Felgate Lewison J failed to consider whether at the time the testator gave instructions to Mr Ferguson on 5 April 2000 such instructions were ‘settled’ in the sense Sir James Hannen used that word in the third proposition set out in paragraph 2 above. Had he done so he would have been bound to conclude that the settled nature of those instructions had not been established.

The first was clearly the boldest submission. However, Parker v Felgate was a first instance decision and a direction to the jury at that. It appeared to emerge from the law out of nowhere, although the Court of Appeal did not accept that and considered that it was a rule which had been in existence long before. The Court relied on cases to the effect that full testamentary capacity did not have to be present at the time of execution of the will. Some of those cases pre-dated the need for the formalities for the execution of wills introduced by the Wills Act 1837 and so the point at which a will became a will was more of a moveable feast.

The Court was particularly impressed by reliance on Harwood v Baker12, which indicated (although not strictly part of the decision) that if a testator has come to a concluded decision, when he has capacity, about what he wishes to do, then ‘less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the will propounded really did contain the expression of the mind and will of the deceased’. However, that statement might be read simply as saying that if there is strong evidence that the testator had formed views as to what he wished to do, that itself would be strong evidence of his capacity if he then went on to give effect to them in a will. In a probate case evidence of cogent and clear instructions will of course make it easier to prove capacity.

The Court of Appeal found that the rule in Parker v Felgate was not open to attack because there was strong persuasive authority in the form of the Privy Council decision in Pereira v Pereira supporting it, from which the Court of Appeal ought not to depart. However, their Lordships went further in holding that the rule was good law and justified. The Chancellor said13:

‘The reasons lie, I believe, in the freedom of testamentary disposition which the law favours, as explained by the court in Banks v Goodfellow, the usual preference of the court, if reasonably possible, to uphold transactions (cf in the context of the interpretation of contracts the maxim res magis valeat quam pereat) and the pragmatic recognition in that context that the testator has no further opportunity to give expression to his wishes.’

Lord Justice Moore-Bick set out the rule in this way:

‘Where the testator loses some of his faculties between giving instructions and executing the will, however, the position is different. One must then ask (i) whether at the time he gave the instructions he had the ability to understand and give proper consideration to the various matters which are called for, that is, whether he had testamentary capacity, (ii) whether the document gives effect to his instructions, (iii) whether those instructions continued to reflect his intentions and (iv) whether at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves. If all those questions can be answered in the affirmative, one can be satisfied that the will accurately reflects the deceased’s intentions formed at a time when he was capable of making fully informed decisions.’

That is undoubtedly a masterly exposition of the rule and presents it in the clearest and most sympathetic light, but in practice perhaps the most difficult question to answer with a testator who has lost capacity is whether the original instructions continue to reflect his intentions at the date when he executes the will, when in fact, he no longer has the power to reflect properly on the decisions he has made.

On the issue of the apparent mismatch between the finding of the judge that Robert lacked capacity but nevertheless knew and approved the contents of the will, the Court of Appeal rejected the argument that in order to know and approve the contents of a will the testator had to have capacity. Lord Justice Moore Bick held that once it is appreciated that the requirement for knowledge and approval is simply to ascertain whether the will represents the true intention of the testator, then in Parker v Felgate cases the fact that instructions have been given by the testator which do not then change shows that this was the true intention of the testator.

On the final point as to whether on the facts of this case the rule in Parker v Felgate should have applied at all, the Court of Appeal considered that the trial judge had given this careful consideration and was not prepared to interfere with his conclusion. Part of the argument on this was it had to be established that the instructions given by the testator were settled and that the evidence simply did not support that in this case but Moore Bick LJ considered that as far as the first two categories of cases falling within the Parker v Felgate rule were concerned, evidence of settled intention was irrelevant because the deceased was still capable of knowing and approving the contents of the will, even if he could not go through the decision-making process again14.

SummarY

I remain of the view that the rule in Parker v Felgate is anomalous. Post-Perrins I expect the number of cases where it is relied upon to increase. The long gap between the date when the instructions were given in that case and the date of execution mean that the case is not just confined to deathbed situations where instructions are given shortly before incapacity intervenes.

The Mental Capacity Act 2005 was not in force when Robert Perrins made his will, but that Act does not represent a change in the law15 and section 2 requires that the person have capacity ‘at the material time’. In every other case apart from a will made in Parker v Felgate circumstances, that would be the date of the transaction. It is hard to see any justification for a departure from that general rule in the case of wills16.

The difficulty of the principle, as amply illustrated by this case, is that once instructions are given, the person is stuck with them. He cannot change his mind once incapacity intervenes. Therefore, in this case, the deceased, once he had lost capacity also lost the opportunity to decide that what he had wanted to do in April 2000 did not represent his current wishes. This deprives a testator of the basic right to check at the point when a will is executed that it truly carries out his wishes.

Penelope Reed QC TEP is a barrister practising at 5 Stone Buildings, Lincoln’s Inn, London

(1883) L.R.8P.D.171
[2010] EWCA Civ 840
Ibid. p. 172
[1952] 2TLR 925
[1982] 1 WLR 310
[2003] WTLR 1097
(1911) 11 State Reporter (NSW) 460
[1928] P 162
[1901] AC 354
At p. 361. The Privy Council decided that the testator had capacity at execution.
[1948] AC 161
(184) 3 Moo PC 282
Para 23
Para 70 of Court of Appeal judgment
Scammell v Farmer [2008] EWHC 11009(Ch.) at paragraph 24
See Williams on wills, by C, H. Sherrin et al. (London, LexisNexis/Butterworths, 9th edn, 2008) para 40.9 and 40.10

Advert

Article Search

Browse jurisdictions by clicking on the map regions below

© 2012 Society of Trust & Estate Practitioners