The “Wetherspoons Will” Case: Will Executed in a Pub Overturned for Lack of Capacity

A certain amount of lurid tabloid reporting picked up the decision of Mr Recorder Eaton Turner sitting in the Central London County Court published on 30 May 2019. This no doubt stemmed from the fact that the somewhat tragic case concerned a Will executed at 11am in a Wetherspoons pub by a 25 stone testator with alcohol problems. By this Will he left his whole estate to a 34-year-old taxi-driver who had befriended him and who claimed that he was the only local driver willing to ferry him around, due to his size.

For contentious probate practitioners the real interest lies in the unusual fact that the Will was ruled to be invalid on grounds of testamentary capacity without any medical expert evidence being relied upon by either party at trial, but purely based on the factual evidence of several witnesses. Circumstances where “real doubt” about testamentary capacity arose and operated to reverse the burden of proof back to the propounder of the Will.

The facts

The testator, Gary Mendez died in May 2016 aged 53. He lived with his civil partner, Mr Hermes Rodrigues, in a flat in Eastbourne. Hermes was a steward on cruise ships when the couple met in 2001, and at Gary’s invitation later left his career and came to live with him in Eastbourne and they entered into a civil partnership. In 2013 Gary made a Will leaving his estate (which essentially comprised the Eastbourne flat) to Hermes. Gary had become unable to work due to his worsening physical disabilities and received state benefits. Hermes continued to work full time in catering, and gradually also provided increasing personal care for Gary. Gary had also promised to leave his flat to Hermes, even if they were to split up as a couple.

From about 2013-14, after Gary had had a stroke, he relied on taxis to get around Eastbourne, including visiting various pubs and clubs. He came to know Dean Hughes, a a taxi-driver about 20 years younger than him, with a wife and young family.

From late 2015 Gary’s health and his alcohol abuse had worsened further as was observed by numerous friends who had known him over many years, as well as by Hermes. Dean said that in February 2016, during a conversation in his taxi, Gary expressed the wish to leave his flat to him and wanted to change his Will. Text messages were exchanged about this between them. Dean obtained a home-made will kit and explained to Gary in a text: “I have the paperwork now just need two witnesses and a pub lol”.

The homemade Will form, filled in by Dean, was to be executed by Gary in a local Wetherspoon’s pub at 11am. One of the witnesses was Louise, Dean’s step mother-in-law to be (a fact that only came out in cross examination, she had just described herself as a “family friend” in her witness statement). The other was a 73-year-old friend and drinking partner of Gary’s who repeatedly said in cross examination that he had a poor recollection of the occasion. The Will appointed Dean and Louise as executors. Two duplicate originals were signed.

Challenges to the Will

Following a challenge to the validity of the Will by Hermes, Dean sought a grant of probate of the 2016 Will in solemn form. Hermes’ case was that:

• The Will was a forgery; or alternatively
• Gary lacked capacity to execute it; or alternatively
• Gary did not know and approve the contents of the Will; or alternatively
• The Will was executed as a result of undue influence. Alternatively
• Gary subsequently revoked the Will.

Further, Hermes asked the Court, in the event that it pronounced for the 2016 Will, to make reasonable financial provision for him under the terms of the Inheritance (Provision for Family and Dependants) Act 1975 as Gary’s civil partner (or in the alternative as a person being maintained by him in whole or in part).

Forgery?

As it progressed to trial the case focussed on the forgery allegation. The evidence of the witnesses and of Dean regarding the basic facts of the occasion when the Will was executed contained numerous inconsistencies, including as to the time of day, whether or not the testator was already drinking alcohol, who had filled in the Will form and whether this was done in advance, or at the table. There was expert handwriting evidence from a single joint handwriting expert, but this was inconclusive as to whether Gary’s “signature” was genuinely his.

The judge stated that he found the disagreement of the witnesses on the key factual points as “surprising”, and that “there are many reasons to question closely the circumstances surrounding the execution”.

However, plainly, a finding of forgery would have required a ruling that Dean and the two attesting witnesses had all given wholly untruthful evidence about an event that never in fact occurred. No doubt with that in mind, “after considerable hesitation” the judge accepted that the Will had been executed by Gary in the pub on the relevant date and was not a forgery. Further, that Gary had not later revoked it by destroying a missing identical original.

Lack of Testamentary Capacity

The judge went on to consider testamentary capacity. Hermes and several friends of Gary’s gave evidence that from the end of 2015 onwards Gary was increasingly confused, was habitually intoxicated, was not sleeping, often had no short-term memory, that he failed to recognise friends of many years standing, and occasionally exhibited bizarre or irrational behaviour. Despite multiple physical health problems no medical scrutiny of Gary’s mental capacity had taken place, and no tests in relation to his psychological or mental state were undertaken.

The judge recited the very familiar test for capacity deriving from the case of Banks v Goodfellow,  1870 regarding the necessity to (a) understand the nature of the act of making a Will and its’ effects (b) being able to understand the extent of the property of which he is disposing of, (c) able to comprehend and appreciate the claims to which he ought to give effect and (d) be suffering from no disorder of the mind which shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”.

He cited the editors of Williams Mortimer & Sunnocks on Executors, Administrators & Probate (21^st edition) who state “Nevertheless medical evidence has often shown that alcohol abuse has caused such deterioration of the mental faculties (alcoholic dementia) as to have removed testamentary capacity”.

He then quoted Mr Justice Briggs (as he was then) in the case of Re Key Dec’d 2010 1WLR 2020 in which, after re-stating the Banks v Goodfellow test, the burden of proof was examined and which stated:

“(i) while the burden starts with the propounder of a Will to establish capacity, where the Will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the burden shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less”.

In this case there was “real doubt” about capacity due to the factual evidence which the judge accepted on the issue. The burden was therefore on Dean to establish capacity. The judge found that Dean had not met the evidential burden of establishing Gary’s capacity. He said:

“In my judgment Gary, by this time, no longer had a balanced view of the claims to which he ought to give effect and in particular had lost sight of his previous promise to leave [the flat] to Hermes, even if their relationship had come to an end, of the terms of the 2013 Will, and of the services that Hermes, who had left his job and come to live with Gary at his invitation, performed for him, for which he had repeatedly (including within the last six months) expressed great gratitude.”

Lack of Knowledge and Approval and Undue Influence

The judge said that he did not need to rule on Want of Knowledge and Approval, but commented that, if he did, he had “grave doubts” as to whether Gary had a proper understanding of the contents and effects of the Will. He did not find that Dean had exercised undue influence over Gary.

1975 Act Claim by Hermes

As if to put the matter beyond doubt (if Dean were to successfully appeal the finding of lack of testamentary capacity) the judge then considered Hermes’ claim under the 1975 Act claim for reasonable financial provision. He stated that if he were wrong on ruling the Will invalid, then he would have found that reasonable financial provision should be made for Hermes. This would, he stated, have had the result that he would have ordered that the flat be transferred outright to Hermes.

In summary

This fascinating, and ultimately very sad case, involving a modest estate worth approximately £160,000, provides an illustration of the power of compelling factual evidence on issues of testamentary capacity, even in the absence of conclusive medical evidence. Further, it illustrates the importance of the shift in the burden of proof where “real concerns” regarding capacity arise.

It would of course have been interesting to know what finding the judge might have made on the forgery allegation had there been positive medical evidence on testamentary capacity, or whether the focus of the judgment would then have shifted to “want of knowledge and approval”. In any event, ultimately what the tabloid press dubbed the “Wetherspoon’s Will” was not to be.

If you require advice about challenges to the validity of wills or claims under the Inheritance (Provision for Family and Dependants) Act 1975 please contact our Will Disputes and Contentious Probate team headed by Katharine Riley.