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The Business Tycoon, the Wife, the Mistress and the “Secret” Daughter: Court hands down judgment in Elliott v Simmonds

Posted on 06 May 2016 by Molly Hunter

The Business Tycoon, the Wife, the Mistress and the “Secret” Daughter: Court hands down judgment in Elliott v Simmonds

Kenneth Jordan made his millions from road line painting. He died in August 2012 leaving his entire estate to his 'Mistress', Bernice Elliott, under a will he had signed on 1 February 2012 (the “2012 Will”). The 2012 Will came as something of a shock to his wife, his children and his "secret" (so called by the Daily Mail) daughter. It is understood that Mr Jordan made the 2012 Will on discovering that the Christmas presents given to him by Ms Elliott had been taken by his wife and daughters and donated to charity without his knowledge. Interestingly, the 2012 Will was drafted by Mr Jordan's brother-in-law, Richard Mumford, a solicitor.

Mr Jordan’s "secret" daughter, Ruth Simmonds, was his daughter from a relationship before he married his wife. Ms Simmonds was due to receive £100,000 under a previous will made by Mr Jordan in December 2010 (the "2010 Will"). She entered a ‘caveat’ at the probate registry which prevented a Grant of Probate from being issued. However, Ms Simmonds did nothing further to challenge the 2012 Will. In order to seek clarity on the validity of the 2012 Will, Ms Elliott issued a claim against Ms Simmonds seeking, in effect, a declaration that the 2012 Will was valid and that the caveat be removed.

Mr Jordan was staying in a nursing home, having been very unwell with lung cancer. Mr Mumford attended the nursing home where he went through the terms of the 2012 Will with him. His attendance note was, at best, sparse and seemed more of an aide memoire than a detailed meeting note. However, Mr Mumford did advise Mr Jordan that his wife might have a claim against his estate as he had not made provision for her in the 2012 Will. Mr Jordan again confirmed that he was happy that everything should go to Ms Elliott and the 2012 Will was executed.

The Court was particularly concerned with Mr Jordan’s testamentary capacity and whether he ‘knew and approved’ the contents of the 2012 Will. The test for testamentary capacity is set out in the case of Banks v Goodfellow, requiring a testator to:

  1. understand the nature of the will and its effects;
  2. understand the extent of the property being disposed of;
  3. be able to comprehend and appreciate that claims which he/she ought to give effect (i.e. claims from existing family members who would expect to be left something in a will); and
  4. not be suffering from any ‘disorder’ of the mind or any insane delusions.

Best practice also requires a solicitor taking instructions for a will from an aged or seriously ill testator to have in mind the so-called 'Golden Rule', namely that in such circumstances the testator should have met with a medical practitioner who could satisfy himself as to the testator's capacity and that a contemporaneous note be made of the findings. Mr Mumford had not reviewed Mr Jordan's medical records and was not able to summarise the Golden Rule.  Instead he indicated that he was aware of the ‘Banks v Goodfellow’ test and explained that it was his usual practice that if he had the slightest doubt as to a testator’s capacity, he would obtain a doctor’s certificate.

The Judge found that the Golden Rule is a rule of good practice and not a rule of law. He concluded that Mr Jordan did have testamentary capacity and his reasons for this included the fact that Mr Mumford was a solicitor and had known Mr Jordan for over forty years. He had noticed no signs of mental deterioration and his instructions had always been consistent.

The Judge also noted that Mr Mumford would benefit indirectly under the 2010 Will if the 2012 Will was found to be invalid as, interestingly his wife (the testator's sister) would have received a legacy of £100,000.

It was held that there were no suspicious circumstances and the 2012 Will had therefore been duly executed. There is a presumption that the burden of proving 'knowledge and approval' is satisfied where a will has been duly executed by a testator with the requisite capacity.