The cleaner of an ex-Savoy waiter has won a four year legal battle to overturn the will that disinherited her from a £500,000 estate. Lodders’ partner, Jess Beddows, a wills, care and capacity law specialist, explains how the case has shone a light on the issue of mental capacity when it comes to the validity of wills.
In 2014, after falling out with his nephew and retired barrister Dennis Germain, ex-Savoy waiter Harold Tickner made his cleaner and companion, Leonora Da Costa, the main beneficiary of his will. But, just two weeks before his death following a short battle with colon cancer, Mr Tickner created a new will in which he left his house and money to relatives – a complete U-turn from what had previously been set out the year before.
A judge has now ruled that Mr Tickner lacked the mental capacity to know what he was doing in his final weeks of life, meaning Mrs Da Costa has won the High Court battle to overturn the final will.
Mrs Da Costa was employed by Mr Tickner for 11 years. She originally worked for three hours a week as a cleaner, but after Mr Tickner’s wife, Ursula, began showing symptoms of Alzheimer’s, Mrs Da Costa’s duties steadily increased. In 2010, she began working full time for the couple in more of a care-providing role.
Following Ursula’s death, she provided Mr Tickner – who by this time was registered blind – with further care and companionship, describing their relationship as becoming like that of father and daughter. In January 2014, he wrote a will in which he left his home to her and named her as the chief beneficiary of his estate.
2015 will changes
But in the final stages of his life, by which time he had reconciled with his nephew Mr Germain, Mr Tickner created another will. Signed two weeks before his death, the document left financial assets worth £15,000 to his daughter, Karen. In a separate letter that was signed on the same day, he gifted his home to Mr Germain. Mr Germain witnessed the will with his wife, Jadwiga, who was the sole witness of the gift deed being executed.
Following Mr Tickner’s death, the change to his will and new documentation came to light, and Mrs Da Costa lodged her appeal, based on two key facts – that Mr Tickner would not have been able to read the new document due to his blindness, and that he was so mentally affected by his illnesses, he would not have understood his actions when he changed the will. Mr Germain contested, arguing that Mr Tickner did not have any underlying mental health problems and that he was of sound mind.
Last month, the High Court ruled that Mr Tickner did not have the mental capacity to know what he was doing when he made this revised version of the will in June 2015. Mrs Da Costa has been reinstated as chief beneficiary of the will and is now free to challenge the lifetime gifts made in his final stages of life.
When questioning the validity of a lifetime gift, we can be guided by both the Mental Capacity Act 2005 and case law. The Act states that a person lacks mental capacity if they are ‘unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. This includes permanent and temporary impairments.
Lacking mental capacity: a definition
According to the Mental Capacity Act, a person lacks capacity to make a decision if they are unable to:
1. understand the information relevant to the decision,
2. retain that information,
3. use or weigh that information as part of the process of making the decision, or,
4. communicate their decision (whether by talking, using sign language or any other means).
Mrs Da Costa claimed that in the time after Mr Tickner’s cancer diagnosis, his ill health greatly affected him mentally. There is, therefore, a strong case that he lacked capacity for the purposes of the Mental Capacity Act.
Test for capacity
The Re Beaney, deceased  2 All ER 595 case confirmed that the test for capacity is task specific. This means the capacity required to make a gift varies depending on its size, nature and the circumstances in which it is being given.
In other words, for smaller and less valuable gifts, a lower degree of understanding is sufficient. But, as with cases like that of Mrs De Costa, a higher degree of understanding is required from the individual when the gift they are giving is of a much higher value.
Mr Tickner would need to have understood the value of the property gifted to his nephew compared to his other assets, and also have recognised that this would significantly reduce the amount of his estate passing to his daughter Karen under the new will. He would also have needed to understand the claims of all potential beneficiaries and the extent of the property to be disposed of.
Why is this case significant?
The case between Mrs Da Costa and the family of Mr Tickner serves as a reminder of how important it is to put your affairs in order whilst you still have the mental capacity to do so.
From having a professionally prepared will and reviewing this on regular basis to creating lasting powers of attorney, you can now ensure that your final wishes are carried out exactly as you wish them to be. It’s not an easy subject to talk about, however creating a proper plan while you are mentally able can really help to ease the burden for loved ones following your death. It can also prevent emotionally difficult and expensive disputes from occurring such as in this case.
To find out more about Lodders Care and Capacity law services, The Mental Capacity Act and how it can affect the validity of wills, please contact Lodders’ Care & Capacity experts Jessica Beddows or Sofia Tayton, partners in Lodders Private Client team.