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4 Years of Wrangling Dissipates Estate

The fictional protagonists in Charles Dickens’ Bleak House took generations to waste their inheritance on interminable court proceedings but it took a real family just four years to do the same. In a ruling which underlines the wisdom of compromise, the Court of Appeal has lamented the dissipation of a pensioner’s entire estate in a dispute between her three children as to the validity of her will.

In what the court referred to as a ‘family calamity in every way’, the estate of Daphne Burgess, valued at less than £200,000, will be entirely eaten up by the costs of a six-day trial, involving 26 witnesses, and a subsequent appeal. All attempts to settle the dispute and the efforts of lawyers to urge compromise had ended in failure.

Lord Justice Mummery observed: “It may be recalled that the foggy family law suit in Jarndyce v Jarndyce dragged on before the Lord Chancellor for generations until nothing was left for the parties to take. The Civil Procedure Rules and the efforts of legal advisers have not dissuaded these parties from following a course leading to the dissipation of the deceased’s estate in costs and legal fees, which has happened faster than under the dilatory procedures of the unreformed Court of Chancery in the Jarndyce days”.

Julia Hawes had insisted that her mother, Mrs Burgess, was of sound mind and knew what she was doing when she decided to cut her son, Peter Burgess, out of the will she wrote in January 2007, just over two years before her death, aged 80. However, Mr Burgess and his other sister, Libby Burgess, argued that their mother was in the grip of dementia and lacked the legal capacity to make a valid will.

The Court of Appeal expressed doubts about a first instance judge’s ruling that Mrs Burgess lacked testamentary capacity and declined to make a firm finding on that issue. However, in dismissing Mrs Hawes’ appeal, the court ruled on the evidence that the 2007 was invalid in that Mrs Burgess had lacked the required ‘knowledge and approval’ of its contents. The court concluded that a previous will, signed by Mrs Burgess in 1996 by which she favoured each of her children equally, should take precedence – had there been anything remaining in her estate.