17 September 2019 - Article
GP drafts will for aunt with delusions, dementia, and glaucoma
A daughter who challenged her mother's will for lack of capacity and want of knowledge and approval has lost in the High Court.
The case, Lloyd v Jones, involved a dispute between siblings and cousins, with criticism of the GP who drafted the will and signed off on an exaggerated attendance allowance claim.
Mrs Harris lived on the family farm with her son.
She was registered with her niece, Dr Jones, a local GP, despite General Medical Guidance that it is inappropriate for close relatives to be patients at the doctor's practice. Dr Jones 'was … in the habit of giving medical advice and prescribing medication during [frequent] visits' to the farm, but was unable to produce written notes of those visits.
Dr Jones drafted a will for her aunt which Mrs Harris executed on 26 February 2005. The will appointed Dr Jones and her husband as executors. It left £10,000 to Mrs Harris' daughter Sian, and the remainder of the estate to Sian's brother and sister-in-law.
Mrs Harris died on 10 December 2010.
The estate was valued at just under £600,000, of which £575,000 was the farm.
Grounds of attack
- Knowledge and approval
Sian suggested that, where a will is prepared and arrangements made for execution by a relative without legal assistance, the Court's suspicion should be excited.
She also said that the will was not read over to Mrs Harris, and that Mrs Harris was suffering from glaucoma and unable to read without a magnifying glass.
Although Sian did not positively allege undue influence or duress, she did say that Dr Jones's mother, Sally, and Dr Jones were hostile to her because she had 'married out' of the local Welsh speaking community to an Englishman and moved away.
- Testamentary capacity
Sian's case was that her mother's mental decline began in 2001, when she became progressively more forgetful, would repeat herself and become angry and frustrated. As early as 2002 she spoke of 'space beings or witches' having landed at the farm and of her own mother (who was dead) being present.
The daughter catalogued instances of concern about aliens invading the farm, and in 2003 of Saddam Hussein breaking in.
By May 2004 Mrs Harris was suffering from confusion, forgetfulness, aggression and strange delusions, and had developed Alzheimer's type dementia.
In December 2004 Mrs Harris called her daughter saying she had been invaded by space creatures and Saddam Hussein had poisoned the water supply. Sian's evidence was that by this point her mother was doubly incontinent, unable to communicate in any meaningful sense and incapable of holding an intelligent conversation.
Allegations of misconduct and misleading evidence
In July 2005, Mrs Harris' sister, Sally Jones completed an attendance allowance form on Mrs Harris' behalf on the basis that Mrs Harris was 'so ill or disabled they find it impossible to sign for themselves'. On the form Sally said that Mrs Harris' sight and hearing was deteriorating and that she 'often hears voices and becomes very anxious believing that people are breaking into the house'.
Sally's evidence at trial was that the information provided was not an accurate description of her sister's condition at the time the form was completed or five months earlier when the Will was signed. She said it was a description of the two weeks after she left hospital in May 2004.
She claimed the reference to hearing voices was because there was a public footpath through the farm used by anglers walking down to the coast to fish at night – Voices of Anglers!
When challenged why she thought it appropriate to only refer to the two weeks immediately post hospital, Mrs Jones' claimed that Age UK had advised she complete the form by reference to the applicant's worst condition at any point in the last two years. There was no documentary evidence of that advice. The judge did not accept this, nor that Sally believed she was giving a snapshot of the period of two weeks after discharge.
The final part of the form headed 'statement from the person who knows best about you and how your illnesses or disabilities affect you' was signed by Dr Jones.
Dr Jones stated on the form that she saw Mrs Harris monthly and that her illnesses and disabilities were 'dementia, arthritis of the spine, glaucoma and peptic ulceration'.
At trial it emerged that Mrs Harris had frequently told people she had glaucoma because it was hereditary. Sally Jones had taken her word for this, and Dr Jones had no recollection of having diagnosed Mrs Harris with glaucoma.
This was important because the claimant also claimed that Mrs Harris was unable to read without the use of a magnifying glass, and that she did not have it on the day she signed the Will, and the Will was not read over to her.
Most of the other witnesses said that although she had reading glasses, she did not always use them, and none of them said that they had ever seen her using a magnifying glass. She was also able to point the witnesses to the places they needed to sign on the Will. The judge inferred that she had in fact read it before they all signed.
The judge found that both Dr Jones and Sally Jones were prepared to state on the attendance allowance form that Mrs Harris had glaucoma, despite Dr Jones not having made such a diagnosis.
'The conclusion I reach in relation to this part of the evidence is, I regret to say, that both Mrs Sally Jones and Dr Parry Jones were prepared to state on the attendance allowance form that Mrs Harris was suffering from glaucoma when they knew that was not the case. Dr Parry Jones, in particular, had not diagnosed or treated Mrs Harris for glaucoma and the fact that Mrs Harris herself maintained that she had glaucoma was not a sufficient reason for a GP to state that that was the case. Further, and extraordinarily, someone at Dr Parry Jones's practice was prepared to create a false record, apparently for the purpose of supporting information on the attendance allowance form, showing that Mrs Harris was prescribed eyedrops for glaucoma when she had not been … I conclude therefore that it is most likely that Dr Parry Jones was responsible, or at least partly responsible, for the creation of this record. '
On the dementia diagnosis, Dr Jones said 'I wouldn't have said it was true at that time. I used it as an umbrella term for her problems after she had been discharged from hospital.' She said that the term dementia 'was not a very precise one' that she had used to mean only that Mrs Harris had 'a moment of difficulty' and that 'she did not have any problems with her mind at that stage'.
The judge did not accept that a doctor would use the term 'dementia' to mean such a thing. He concluded it was her medical assessment at the time and the question was therefore how far the condition had progressed and to what extent it was impairing Mrs Harris' functioning.
The judge concluded that Mrs Sally Jones had been exaggerating the effects of Mrs Harris' condition, and that a question may well arise as to whether it was professionally appropriate for Dr Jones to complete the form as she did, and endorse what her mother had said – a question for the medical regulatory authorities.
The judge also found that Dr Jones gave a deliberately misleading account in her witness statement of interaction with social services following the 2004 hospital stay.
The judge held that Mrs Harris did begin suffering from dementia from about May 2004. This would have been detectable by Dr Jones as a qualified doctor. He accepted that Mrs Harris did suffer from delusions from time to time, and wander in the night. However, this was of little significance in relation to the questions of capacity to make a will (the Banks v Goodfellow test). The judge was satisfied on the basis of others' evidence that Mrs Harris retained capacity at least until the middle of 2006 and probably into 2007. She knew that she owned a farm, the principal asset in her estate, and knew that she had a son and daughter, who both had children, and was able to appreciate they were people who might normally be expected to consider when making a Will.
The judge was satisfied that she was able to read print of the size in which the Will was prepared, with or without reading glasses. He was satisfied that she knew it was a Will, and would not have signed it unless she had in fact read it. There was nothing in the Will which might cause the court to be concerned that Mrs Harris might not have understood it. The unequal dispositions were rational; the farm was not large and she would not have expected it to be split.
Thus, despite his criticisms of Dr Jones and although it appears the Judge accepted much of Sian's evidence, he held the Will was valid.
Points to take away
Despite the many failings in the drafting process and general conduct of Dr Jones, the Judge appears to have been significantly influenced by evidence that Mrs Harris had wanted her son and daughter-in-law to have the farm once she died. So this may be a case of the right outcome by the wrong means.
The judgment does not record why it took more than five years from Mrs Harris' death to come to trial – but that timescale is another salutary reminder that litigation is never without cost even for the winner.