31 Mr Lawson put that Christopher would not be able to weigh his short term interests against his medium and long term ones and that it would be impossible for him to give instructions as to the course of the litigation. He emphasised that Dr Watson achieved responses to certain questions only by giving Christopher a forced choice. I do not uphold this submission.
32 Whilst it is clear that Christopher's ability to communicate, particularly through language, has been impaired he clearly cannot be described as incommunicate. He was able to communicate, amongst others, an understanding of the nature and operation of the Will and that he did not want to change or challenge it.
33 Dr Watson expresses the following opinions in relation to the following questions:
What is my opinion as to Mr Murray's current mental capacity?
I am of the opinion that Mr Murray had adequate mental capacity to understand the situation he is in, to comprehend much of what is said to him, and to appreciate and indicate when information is too complex for him to follow. As with Mr Rawling, I was impressed at how he can indicate by forced choice procedures correct information, what he would like to happen etc. He was adamant that he was happy with the arrangements as set up following his mother's Will, in his view the fairness of equal division of the estate between him and his two siblings, and a strong desire that this not be interfered with.
As is usually the case, patients with severe expressive aphasia always appear to be much more cognitively handicapped than they may be, principally because it is through language that we communicate with other humans.
If one takes the time and is prepared to offer forced choices, re-express information in simpler forms etc in many cases it is apparent that Mr Murray's underlying reasoning capacities and other cognitive capacities such as memory (e.g. see Mr Rawling's findings about recall of the features of the story that was read to him) much more intact.
Indeed the very first case of expressive aphasia, the mid 19th century case of "Tan" presented by Dr Paul Broca in Paris was a case just like Mr Murray. It was Broca's extraordinary conclusion that he felt that the patient had cognition relatively intact compared with expressive ability that led to a radical shift in the modern understanding of brain function and localisation of that function. The type of aphasia that Mr Murray has is even now called "Broca's aphasia."
Do I consider that Mr Murray has capacity to understand the nature of his affairs, particularly his financial affairs?
My answer to this is in two parts. I am of the opinion that Mr Murray understands significant aspects of his affairs, the nature of his mother's Will, how Wills work, the nature of the share, who might benefit from a Will etc. However I am of the opinion that he is unlikely to have a full enough understanding of details of his financial affairs to administer them on a day-to-day basis.
Mr Murray was also of this opinion and stated that he would wish his sister Suzanne to administer his financial affairs on his behalf - he and his son indicated that she was already playing a significant role in such activities years ago.
Do I consider that Mr Murray has capacity to make decisions about, and authorise transactions in respect of his affairs, particularly his financial affairs?
I am of the opinion that Mr Murray might be able to make in-principle decisions if they are distilled into their simplest forms about aspects of his affairs particularly his financial affairs but he would unlikely be able to make the detailed and nuanced decisions that are often required. As an example, there are individuals who have a strong personal preference for, or dislike of, individual asset classes such as shares, property or deposits in banks. They may or may not be correct in this belief but they can express it. It is my opinion that Mr Murray would probably be able to indicate such preferences; however in allocating investments as between classes, with reference to the investment climate etc I am of the opinion that he would have difficulties.
Do I consider that Mr Murray understands that he is able to make a claim against his late mother's estate which could potentially increase his share of that estate?
Yes, I consider this to be the case.
Do I consider that Mr Murray has capacity to make a decision about whether or not to make a claim against his late mother's estate?
Yes, I am of the opinion that Mr Murray has capacity to make such a decision; indeed he indicated to me directly (without any overt influence, or speaking on his behalf, by his son that he did not wish to make a claim against his late mother's estate for an increased share of the estate.
34 Undoubtedly the exercise of taking Christopher's instructions will involve patience. It may also involve having to employ a person with knowledge and expertise in communicating with persons who have suffered strokes and whose ability to communicate has, as with Christopher, been impaired as described by Dr Watson.
35 Whilst detailed and nuanced decisions on sophisticated financial questions may be beyond Christopher's present capacity, far from it having been established that Christopher lacks capacity to understand that which he needs to in order to pursue the present claim or to decide not to pursue it, in my view Christopher has that capacity.
36 I therefore answer the question, is Christopher William Charles Murray a person under a legal incapacity in relation to the conduct of these proceedings? No.
37 I will hear the parties on the procedural future of this suit and, if necessary, on costs.
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