The golden rule and gold standard: The changing role of experts in private client litigation
While rarely stated in express terms, it has long-been the established practice of the Civil Courts to give a significant amount of weight to the views of experts when determining complicated or recondite matters of fact. This has been particularly true in the context of private client disputes, in which, attempting to limit costs, the Court will often encourage parties to use the services of a Single Joint Expert (“SJE”).
Charlotte Braham, senior associate in B P Collins’ dispute resolution team and Sam Phillips, private client barrister at FivePaper, discuss two recent private client cases (one dealing with capacity and the other, a boundary), which form part of a trend away from this school of thought.
The estate of Carry Keats: Expert witnesses vs solicitors
Expert evidence in private client litigation most commonly concerns will validity. In contested probate matters the Court will generally seek the assistance of handwriting experts in claims relating to forgery and medical experts in claims relating to testamentary capacity. It is this second type of expert where there has been a marked shift in the Court’s attitude, particularly in claims involving wills drafted by professional solicitors.
Factual or legal test?
The Banks v Goodfellow test sets out the standard for testamentary capacity. For a testator to be deemed to have capacity, Banks requires that a testator must:
- understand the nature of making a will and its effect;
- understand the extent of their property;
- comprehend and appreciate the claims to which they ought to give effect and;
- have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property’
Testamentary capacity is a question of fact and medical evidence is often highly relevant as to whether the testator had any disorder or impairment of the mind. In recent years, however, the Courts have increasingly sought to emphasise that the Banks test is a legal, and not a medical, test. The question of capacity is a matter to be decided by the Court.
The facts of the case of the estate of Carry Keats (“CK”) will be familiar to many practitioners. The testator died in hospital in 2022. She had initially left her estate to her cousins, but subsequently decided that she no longer wanted them to inherit.
With CK having limited life expectancy, her solicitor (“W”) visited CK in hospital and treated the visit as if it was a deathbed will. CK had been known to W for many years and had changed her will on a number of occasions. W took instructions and decided that CK had capacity to revoke her will and advised CK that she could do so by tearing the document in half. CK was physically unable to spread her arms wide enough to complete the act, leaving about 2 inches of untorn paper. W asked CK if she needed help and following a nod from CK, placed her hands over the top of her client’s and assisted her to tear the paper in half.
W then tried to take instructions for a new will from CK, who had become tired and confused, and who was unable to give instructions before falling asleep. W decided that CK no longer had capacity to make a will – although she was satisfied that CK understood that if she died without making a further will, her sister would inherit her estate. W prepared a note of her meeting and prepared a letter to CK confirming what had taken place at the hospital, stating the current position for her estate on intestacy, and her options for preparing a further will. CK died approximately two weeks later and did not make a further will.
The issues in dispute revolved around CK’s capacity and specifically whether she had capacity to revoke a will (applying the same test as capacity to make a will) and whether she had given sufficient instruction to W to finish tearing the will. An SJE (who did not give live evidence at trial) concluded that CK would not have had capacity at the time when she purported to revoke her will.
The judgment of Deputy Master Linwood gives a useful summary of recent case law concerning the Court’s approach where there is a conflict in the evidence of lay witnesses and expert witnesses, referring to:
- Key v Key [2010] in which Briggs, J (as he was then) stated, “the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis.”
- Simon v Byford in which the judge stated that the matter of capacity was, “a holistic exercise based on the evaluation of all the evidence both factual and expert.”
- Leonard v Leonard [2024] in which Joanna Smith, J confirmed that Banks v Goodfellow was not a medical question but, “matters for common sense judicial judgment,” and expressed the view that the court should be, “very wary indeed of placing much weight,” on opinions expressed by experts on the documentary evidence.
- TUI UK Ltd v Griffiths [2023], a case concerning food poisoning on a package holiday, where expert evidence had not been formally challenged.
W had been questioned at length at trial on a number of issues, including alleged failures to record and inconsistencies in her recollection of exactly how much of the meeting was devoted to the revocation of the will; the failure on W’s part to enquire about the medication which was administered to CK on W’s arrival at the hospital; not following the ‘Golden Rule’ of obtaining a capacity assessment where there were possible concerns as to capacity; and that her record of the interaction relating to the tearing of the will was incomplete and had been ‘embellished’ in oral evidence.
The judge commented that the Claimant’s counsel, “put his case as to the expectations of what Mrs Webb should have done at its very highest; he looked for a counsel of perfection”.
The Court reiterated that challenges to an experienced solicitor’s professionalism were ones that should not be pursued lightly and not without clear evidence. Deputy Master Linwood preferred the evidence of W on the question of capacity over that of the expert, on the basis that W knew CK well; that she was present at the time in question, whereas the expert was relying on documentary evidence to make a forensic assessment; that W had substantial experience as a private client solicitor who understood the law concerning capacity and clearly had these issues at the forefront of her mind during and after the meeting with CK.
Wilkes (and Ors) v Rudd [2024]: Tested evidence v SJE
The Court’s willingness to favour the evidence of witnesses who have attended Court to be cross-examined, over SJEs is not confined to matters of will validity. In the matter of Wilkes the executors of an estate were prevented from completing the sale of the principal asset under a will, as a result of an ongoing boundary dispute with a neighbour.
The dispute concerned the ownership of a mature boundary hedge and the precise roadside boundary between two substantial residential properties. As is common in cases such as this, the Court appointed an SJE to advise as to the proper position of the boundary. There was no definitive guidance in any transfer deeds, going back multiple generations of ownership, meaning that the same had to be determined by topographical features and (as contended by the executors) by extrinsic evidence.
Following a muti-day trial, the Designated Chancery Judge made a determination of the boundary in accordance with the determination of the SJE (who had not been called to give evidence at trial), in spite of the fact that the Defendant had expressly admitted in cross-examination that the boundary was in the position contended by the Claimants. The trial judge held that the express admission of the Defendant (who had been the resident owner of her property for multiple decades) could not be considered determinative as, ‘Human memory is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, it is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration’.
The Claimant Executors appealed to the High Court (Business and Property Courts) on the ground that the judge was wrong to prefer the determination of the SJE over the live, tested evidence of a material witness. The Executors relied on the principle clarified in Kimathi v FCO that oral evidence established under cross examination remains the ‘Gold Standard’ because it reflects the long-established common law consensus that the best way of testing evidence is to confront the witness.
Mr Justice Green, allowed the appeal, finding that the high threshold in Thomas v Thomas was met and that it was appropriate for the Court to interfere with a trial judge’s findings of fact, made after hearing live evidence. The Appeal Court accepted that the judge at first instance had given too much weight to the findings of the SJE in circumstances where the best evidence came from the private individuals most closely associated with the facts.
Where does this leave expert evidence?
In almost all cases, the value and weight of expert evidence will be very fact specific. The Court plainly (and properly) still regards expert evidence as an extremely useful tool. Cases involving highly technical analysis will continue to hinge on the views of independent specialists appointed or approved by the Court (see e.g. Jaffe v Greybull and many other cases in the commercial context).
The personal nature of private client cases means that a delicate balancing exercise has to be undertaken by judges, where competing recollections must be considered and weighed. Courts have been keen (at least since Key v Key) to confirm that these determinations, such as the question of capacity, are factual questions for the discretion of the court. Judges must be careful not to allow the views of expert witnesses to stray into the field of determination and in doing so, usurp a key judicial function.
A word of warning for private client solicitors
Although in the case of CK, the evidence of W was preferred, extensive cross-examination concerning competence cannot have been a comfortable experience. W accepted that, with hindsight, there were things she could and should have done better – such as abiding by the Golden Rule and obtaining a capacity assessment. W was heavily criticised by counsel in cross examination regarding her failure to include certain key factual events which took place at the meeting her in attendance note.
While Deputy Master Linwood did not rebuke W in the judgment, the inherent risk of litigation means that a different judge on a different day may have been much less sympathetic to an experienced solicitor making the same decisions in the context of dealing with a deathbed will and knowing that there was likely to be a substantial dispute concerning her estate.
To put it simply, private client solicitors should maintain full and thorough records of their meetings, and always following the Golden Rule.
More generally, while experts, in particular SJEs can be seen to provide a useful shortcut to a determination, the information that they provide is still simply ‘evidence’ and can only be weighed alongside other probative information before the Court.
In cases where personal experience of the factual matrix is crucial, practitioners should be prepared to robustly resist any move from opponents or the Court to treat expert evidence as a ‘thing apart’.
[Sam represented the successful applicants in the case of Wilkes at first instance and on appeal]
If you require any advice regarding claims against an estate, please contact the contentious probate team at B P Collins by emailing enquiries@bpcollins.co.uk or calling 01753 889995.
