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Will in favour of landlord is overturned by disappointed brothers

Monday, 22 August, 2016

A will made by a physically and mentally impaired man in favour of his long-term professional carer and 'supporting landlord' has been overturned in the England & Wales High Court on the grounds of lack of knowledge and approval of its contents.

The testator was David Poole, a Worcestershire man who had been severely injured in a motorbike accident in 1985, at the age of 24. That accident left him with permanent physical and psychiatric disabilities, for which he had received a fund of over GBP1 million to pay for his long-term care. This fund was managed for him by a court-appointed deputy named Jonathan Lloyd, who was a solicitor in private practice.

Poole was unable to look after himself, in part because he had a history of cannabis abuse, and was periodically sectioned in a mental hospital on account of psychotic episodes linked to his drug abuse. In 1994, Worcestershire's social services department placed him in the home of a professional carer called Mark Everall, who acted as his full-time carer as well as landlord in return for a regular weekly payment. By the time of Poole's death in March 2013 aged 46, these fees had risen to around GBP1,000 a week.

Poole left a will, executed in December 2012, appointing Everall as his executor and leaving him virtually all his remaining money, which was still over GBP1 million. Everall himself had drafted this will.

Poole's deputy Jonathan Lloyd apparently only learned about his death after Everall had obtained a grant of probate. Lloyd was worried by the will lodged with the grant, because it was home-made with no involvement of a professional or assessment of mental capacity. Lloyd was also aware that Poole had made an earlier will the previous February leaving significant sums to various charities as well as to his brothers Darren and Sean.

The two brothers challenged the December 2012 will on a number of grounds, namely: improper execution; lack of testamentary capacity; lack of knowledge and approval of its contents; and undue influence and fraudulent calumny on Everall's part.

The case came to the England & Wales High Court in June this year. The judge, Judge David Cooke, considered each of the four grounds in turn and rejected them all, except one. An interrogation of the witnesses suggested some confusion about the date of its execution, suggesting that the witnesses were not both present when Poole signed the will. However, they later produced statements that, said the judge, were sufficient to satisfy the 'very strong' presumption that an apparently duly executed will is in fact in compliance with the requirements of formality, despite his doubts about the witnesses' testimony.

On capacity, Judge Cooke concluded that Poole's brothers had plainly raised a reasonable doubt by the evidence of the testator's history of brain injury, psychiatric illness and lack of capacity to manage his financial affairs. However, Poole had undergone a professional capacity assessment when he made the earlier will in February 2012, and there was no evidence of deterioration since then. Thus on balance he was to be treated as having testamentary capacity, even if he was only able to understand matters when explained to him.

The challenge on undue influence grounds was likewise dismissed because the burden of establishing it was on those opposing the will, and they had not done so adequately. It was said that Everall had 'poisoned Poole's mind' against his brothers by alleging that they were alcoholic drug addicts, and by obtaining an injunction under the Protection From Harassment Act 1977 to stop them approaching Poole for money. This was ruled out because Poole had still given them money even while seeking injunctions against them.

However, the court did accept the brothers' challenge based on lack of knowledge and approval. In this case, the burden of proof is on those propounding the will, and the judge ruled it was obvious that Everall had not done this. Instead, said the judge, Everall had deliberately isolated Poole from other people, and did not tell him that the will revoked gifts made in a previous will to members of Poole's family and some charities.

'Mr Everall did not read over the terms of the will to David; on his own account he left David to read the document himself', said Judge Cooke. '[He] did not draw David's attention to the extent of the actual gift in Mr Everall's favour.'

'Given David's vulnerability to suggestion and his difficulties in recalling those whom he intended to benefit without being reminded of what he had previously said, I should not have been satisfied that he truly understood and intended terms of the will unless I was satisfied that it had been drawn to his attention that the will removed the gifts he had formerly specified to family and charities and reduced the gift to [another beneficiary] from 10 to 5 per cent', concluded Judge Cooke.

He duly ordered a declaration to be made in favour of the February 2012 will giving Poole's estate to his brothers and the charities, and against the December will that would have given it to Everall (Poole v Everall, 2016 EWHC 2126 Ch).

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