NOTE: This article was published in July 2013 and reflects the law as it stands on the date of publication and not at any later date.
An elderly testator executed a new Will in favour of one family member or someone with whom the testator has had substantial contact in recent years, typically a neighbour, carer or domestic help. The new Will represents a significant departure from the terms of previous Wills, which had divided the estate equally between the testator’s children or nearest relatives. The terms of the Will are, therefore, surprising or suspicious.
The testator was in failing health, perhaps in the early stages of dementia, or suffering from the result of a recent bereavement. The golden rule was not observed. A doctor did not certify the testator’s capacity before the Will was executed.
The testator was vulnerable and susceptible to influence. The beneficiary under the Will was in the position to influence the testator, and may have been involved in the preparation or execution of the Will. The beneficiary has a dominating personality.
There is, however, no direct evidence that the beneficiary had sought to coerce the testator into execute the Will. However, that is the strong suspicion of the beneficiaries under the testator’s previous Will.
There may be some doubt as to whether the testator was actually aware of the contents of the Will, and approved the Will as representing his or her wishes. A solicitor may not have been involved; or, if a solicitor was involved, the solicitor may have failed to take proper precautions to ensure that the contents of the Will were brought home to, and approved by, the testator.
Possible causes of action
The beneficiaries under the testator’s previous Will would, in these circumstances, consider three possible causes of action:
(a) Undue influence;
(b) Want of knowledge and approval; and/or
(c) Lack of testamentary capacity.
It is notoriously difficult to establish undue influence in the context of a Will.
Undue influence, in relation to testamentary dispositions, means actual coercion, i.e. the improper exertion of influence over a person to execute a will contrary to their wishes. The testator’s wishes must be overborne by threats, blackmail, or the like.
It is not sufficient that the person, alleged to brought undue influence to bear, had the motive, or the opportunity, or the capacity, to coerce the testator. Nor is it sufficient that they “influenced” the testator, if that influence falls short of coercion. There must be positive proof of coercion overpowering the volition of the testator. “Victimisation”, “domination” and “coercion” are the words used in the authorities (Hubbard v Scott  EWHC 2750 (Ch), at para. ).
Hubbard v Scott  WTLR 29
Mr Wiseman made a Will in October 2009 leaving his entire estate to Mrs Kruk, who had been his cleaner, and who he had only known for a short time. She was 27 years younger than him, and very attractive, even beautiful. He was elderly, lonely and increasingly housebound. He jokingly told the solicitor, taking his Will instructions, that he was considering marrying Mrs Kruk. He died 11 days after executing the Will.
The claimants were two sisters, who were old friends of Mr Wiseman. They were entitled under a previous Will. They claimed that Mrs Kruk had exerted undue influence over Mr Wiseman, alleging amongst other things that Mrs Kruk had tried to bully Mr Wiseman into marriage, and that she had shown little, if any, sense of loss after Mr Wiseman’s death, being only interested in his money.
The claim failed. There was no evidence of mental frailty, or that Mrs Kruk took advantage of Mr Wiseman’s physical frailty. The only hard evidence was that Mr Whiteman was happy and jovial when he gave instructions for, and when he executed, the Will.
There was another perfectly rational explanation for the Will. Mr Wiseman was elderly and lonely. He had no one else to whom he wanted to leave his estate. Mrs Kruk came into his life and became fond of her. However, it is not undue influence where a man succumbs to the fascination of a woman so as to make a Will in her favour, cutting out his relatives.
Hubbard v Scott illustrates that influence is not necessarily undue influence. Mrs Kruk may have influenced Mr Wiseman by her charms. Many people might disapprove of her behaviour. She may well have been motivated by money. But Mr Wiseman was happy to succumb to her influence: he was led, not driven.
Indirect evidence of coercion
Coercion will usually be difficult to prove because there is normally no direct evidence of coercion, only a suspicion that it may have occurred. The person, who is alleged to have exercised coercion, will not usually have committed evidence of their coercion to paper, or uttered incriminating words in front of a third party. The testator is, of course, dead, and cannot give evidence.
The claimants will usually have to fall back on an inference of undue influence arising out of circumstantial evidence. However, such an inference will only be drawn if the evidence is sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation (Cowderoy v Cranfield  WTLR 1699, at para. 141).
If there is some other plausible explanation, the suspicion of undue evidence may be insufficiently cogent or compelling. Very often there is a plausible alternative explanation, e.g. that the testator had become particularly attached to the beneficiary under the Will (see Carapeto v Good  WTLR 801).
Want of knowledge and approval
(1) The testator must know and approve of the contents of the Will, in in the sense he knows what is in the Will, and accepts that the Will sets out his testamentary intentions (Gill v Woodall  EWCA Civ 1430 para. 71).
(2) Proof of testamentary capacity and of due execution gives rise to a presumption of knowledge and approval.
(3) However, where there are “suspicious circumstances” that the testator may not have known or approved of the Will, the burden will fall upon those who seek to uphold the Will to satisfy the court, on the balance of probabilities, that the testator knew and approved of the Will.
Suspicious circumstances may arise where:
(a) the testator had impaired capacity, or was vulnerable to undue influence, and a beneficiary was involved in the preparation and/or execution of the Will;
(b) the witnesses to the Will are unable to confirm that the testator knew that he or she was signing a Will;
(c) the testator had communication and/or comprehension difficulties;
(d) the testator made comments, after the execution of the Will, indicating a belief that a different Will had been made; and/or
(e) neither a solicitor, nor a doctor, supervised the execution of the Will.
Rebuttal of suspicion
The classic way of rebutting a claim, based on want of knowledge and approval, is to establish that the testator read the Will in the presence of a solicitor, or that it was read to the testator by a solicitor, who explained its terms and effect. In this way the contents of the Will are brought home to the testator.
It is not essential, however, to produce positive evidence that the testator had read the Will, or that it had been read to him by a solicitor. The court reviews the whole of the evidence and determines whether, on the balance of probabilities, it is more likely than not that the testator knew and approved of the Will (Fuller v Strum  2 All ER 87).
If a solicitor has read the Will to the testator, the claim becomes a difficult one. The Court of Appeal emphasised in Gill v Woodall  EWCA Civ 1430, at para. 14, that there was a grave and strong presumption that, where a Will has been read over to a testatrix, there was knowledge and approval. The court should be very cautious about accepting a contention that a Will, executed in such circumstances, is open to challenge. This would risk undermining a fundamental principle of English law that people should in general be free to leave their property as they choose (para. 16).
The classic test is that set out in Banks v Goodfellow (1870) LR 5 QB 549, at 565. The testator must be capable of:
(a) understanding the nature of his act, i.e. executing the Will, and its effects;
(b) understanding the extent of the property of which he is disposing; and
(c) comprehending and appreciate the claims to which he might give effect;
(d) not be subject to any disorder of the mind as shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”.
However, it will often be difficult to set aside a Will, on the basis of the alleged incapacity of the testator, if the solicitor who supervised execution of the Will, was satisfied as to the testator’s capacity.
It is a sensible precaution to observe the golden rule in the case of an aged or old testator, i.e. to call in a doctor to assess the testator’s testamentary capacity. However, where an experienced solicitor takes the view that the testator has capacity, the court may uphold the Will, despite the failure to observe the golden rule.
Gill v Woodall
In Gill v Woodall  WTLR 251 Mr and Mrs Gill made Wills in matching terms leaving their property to the survivor and, in default of survivorship, to the RSPCA. The Wills contained a declaration that no provision was being made for their daughter (their only child) because she had been well provided for over a long period of time.
Mr Gill died first. On Mrs Gill’s death her residuary estate (worth £1M) passed under her Will to the RSPCA. The main asset of the estate was a farm of which Mr and Mrs Gill had been joint tenants.
The terms of the Will were surprising since Mrs Gill got on well with her daughter, who had not only given her considerable personal support, but had, together with her husband, done significant work on her parents’ farm, unpaid, for which Mrs Gill had expressed her gratitude.
Mrs Gill had also made disparaging remarks about the RSPCA whom she had described as “a waste of time” and “a bunch of townies”. The idea of benefiting the RSPCA at the expense of the daughter clearly came from Mr Gill, who for some mysterious reason had taken against his daughter. He was a domineering and bombastic character.
Mrs Gill, on the other hand, suffered from an extreme form of agrophobia which made her anxious and fearful when leaving home. She had executed the Will at the offices of the solicitor who had prepared the Will. The solicitor had read the Will to Mrs Gill, who had indicated her approval. The solicitor did not know that Mrs Gill suffered from agrophobia.
After Mr and Mrs Gill had executed their Wills, Mrs Gill had told her daughter that she and Mr Gill had left each other the farm, but said nothing about the gift of her estate to the RSPCA.
The daughter challenged Mrs Gill’s Will on a number of grounds, including want of knowledge and approval and undue influence. The main asset of Mrs Gill’s estate was a farm, of which Mr and Mrs Gill had been joint tenants.
Undue influence or want of knowledge and approval
It seemed most unlikely that Mrs Gill would have wanted to disinherit her daughter in favour of the RSPCA. It was, therefore, likely that either:
(a) she had known what was in the Will, but had been unduly influenced by Mr Gill, to leave nothing to her daughter, against her wishes; or
(b) she had not understood that she was leaving her estate to the RSPCA, if she survived Mr Gill.
The difficulty facing a want of knowledge and approval claim was that the Will had been read to and explained to Mrs Gill by a competent solicitor, and that Mrs Gill had indicated that she agreed its contents.
The difficulty facing an undue influence claim was that there was little or no direct evidence that Mr Gill had actually coerced Mrs Gill into making a Will against her wishes.
First instance decision
The trial judge decided the claim in favour of the daughter on the basis of undue influence, rejecting the want of knowledge and approval claim.
He found that Mr Gill had directed his domineering and bombastic personality to Mrs Gill, utilising her anxiety and fear of his explosive character, and of the possibility of her losing his financial support upon which she was so dependent, to coerce her into making the Will which she did. These fears, combined with her timid and shy personality, her traditional deferment to him, and the severe anxiety consequent upon the agoraphobia from which she suffered, unduly influenced her to make the Will that she did.
However, the judge’s finding of undue influence appears to have been an inference as to what must have happened. There was no direct evidence that Mr Gill had actually exercised coercion.
The trial judge rejected the want of knowledge and approval claim. He accepted that there were suspicious circumstances, but found that the suspicions were rebutted, largely on the basis that the Will had been read to Mrs Gill by the solicitor, and she had stated that she approved its terms.
Court of Appeal
The Court of Appeal decided the case in favour of the daughter on the basis of want of knowledge and approval, not undue influence (on which they expressed no view).
Mrs Gill suffered from a severe anxiety disorder, agoraphobia (of which the solicitor was unaware) which rendered her fearful when she left home, and when in contact with strangers, and which was likely to have inhibited her ability to concentrate and absorb information. The trial judge had accepted expert evidence that Mrs Gill would have experienced severe anxiety (at least 8 on a scale of 0 to 10) which would have impacted on her ability to concentrate, take in and commit to memory what was said to her by the solicitor. She would have done whatever she could to bring the meeting with the solicitor to a conclusion so that she could return home.
The solicitor had not read out the Will in manageable chunks. He had read it out in one go. Mrs Gill probably understood that she was giving her estate to Mr Gill, if he survived her (the first bit), but not that she was giving her estate to the RSPCA, if she was not survived by Mr Gill (the second bit).
Presumption of knowledge and approval where will read by a solicitor
Nonetheless, it will be a rare case where a claim based on want of knowledge and approval will succeed, where a solicitor, or other qualified person, has taken the testator through the contents of the Will.
Gill v Woodall was an exceptional case as the two highly qualified expert witnesses agreed that Mrs Gill suffered from a fairly extreme version of a relatively unusual mental condition, which severely affected her understanding, and which would not have been appreciated by the solicitor.
The case should not, therefore, be seen as a green light to disappointed beneficiaries to challenge a Will where it has been read over to a testator. There was a grave and strong presumption that, where a Will has been read over to a testator, there was knowledge and approval.
Undue influence where Will read by solicitor
Where proper precautions are taken by a solicitor, or other professional, it may be necessary to resort to a claim of undue influence.
In Shrader v Shrader  EWHC 466 (Ch) Mrs Schrader was a widow of 98. In 2006 she made a Will leaving her house (the main asset of her estate) to one of her two sons (Nick) and her residuary estate to her two sons equally. Under her previous Will she had left her estate to her two sons equally.
The Court held that the testatrix had known and approved of the contents of the Will, in large part because the Will had been read to her by a professional will writer.
However, despite the absence of any direct evidence of coercion, the Court inferred that the testatrix’s execution of the Will must have been procured by undue influence:
(a) The testatrix was vulnerable and dependent on Nick;
(b) Nick had a forceful personality, and was convinced that he had been treated unfairly by his parents;
(c) Nick had been involved in the preparation of the 2006 Will, and attempted to cover this up in his evidence;
(d) There was no other identified reason why the testatrix would have changed her Will.
Want of knowledge and approval or incapacity
Sometimes the testator is of borderline capacity, so that there are possible claims based on (a) lack of capacity and (b) want of knowledge and approval.
In Hawes v Burgess  EWCA Civ 74 Mrs Burgess was 77 and was suffering from dementia of modest severity. She made a Will leaving her estate to her two daughters, excluding her son, Peter, with whom she was on good terms. The trial judge found that, if Mrs Burgess had intended to disinherit Peter, she would have told him.
The incapacity claim was upheld at first instance, in large part on the basis of expert evidence that Mrs Burgess was suffering from dementia. However, the Court of Appeal cast considerable doubt on the decision, despite the failure of the solicitor to observe the golden rule.
As the Court of Appeal emphasised, it is a very strong thing for a court to find that a testator lacked testamentary capacity when:
(a) the Will was prepared by an experienced and independent solicitor following a meeting with the testator;
(b) the Will was executed by her after the solicitor had read and explained it;
(c) the solicitor considered that the testator was capable of understanding the Will; and
(d) the terms of the Will are not, on their face, inexplicable or irrational.
A Will, executed in these circumstances, should only be set aside “on the clearest evidence of lack of capacity” (Hawes v Burgess, para. ). This may even be the case where the solicitor has failed to observe the golden rule, so that there is no contemporaneous medical evidence of capacity.
The Court of Appeal expressed doubt as to whether evidence of lack of capacity from a medical expert who had never actually met or examined the testatrix would be sufficient to trump evidence of capacity from the solicitor who had prepared the Will.
Alternative claim of want of knowledge and approval
However, the solicitor had not taken some essential precautions which were appropriate in the case of an elderly testatrix of diminished mental capacity, who might be susceptible to undue influence.
He had not sent a draft of the Will to the testatrix to read it in advance. One of the daughters (Julia) was the driving force in giving instructions to the solicitor, and was present when the Will was explained to Mrs Burgess. Julia had fallen out with Peter, and felt that he did not need, or deserve, part of his mother’s inheritance. She had also given false information to the solicitor.
The case illustrates that a testator may not know and approve of a Will where the testator has diminished capacity, and there is a suspicion of undue influence. The evidence may not be quite enough to establish lack of testamentary capacity, or coercion.
However, if the solicitor fails to take proper steps to take independent instructions, the Will may be set aside on the grounds that the suspicion is not rebutted that the testator was acting as the cipher of the beneficiary. The testator cannot then be said to have “approved” the Will.
Testamentary capacity and the golden rule
In the case of an elderly or old testator, it is advisable for a solicitor to observe the golden rule, or the Will may be set aside.
In Key v Key  EWHC 408 (Ch) Mr Key, an 89 year old farmer made a Will, 10 days after the unexpected death of his wife of 65 years, providing for the bulk of his estate to be divided between his two daughters. In stark contrast, under his previous Will, his estate had been left, subject to his wife’s life interest, equally between his two sons. A solicitor (Mr Cadge) had, 2 days before, attended upon Mr Key at his home, at the request of one of the daughters, Mary. Mary accompanied Mr Key to the solicitor’s offices on the day when he executed his Will.
The Court found that Mr Key was devastated by the recent death of his wife when he made his Will. This amounted to a severe affective disorder which on its own, or together with the mild dementia from which Mr Key was suffering, deprived him of testamentary capacity.
Alternatively, even on the assumption that he had capacity, the Will was invalid on the grounds of want of knowledge and approval. Mr Key had not applied his own mind and decision-making powers in apparently agreeing to his daughter’s assertion that his existing Will was unfair and that he should change his Will so as to leave his remaining property to his daughters.
The solicitor was roundly criticised by the trial judge for his failure to observe the golden rule.
Non-observance of golden rule not necessarily fatal
In Wharton v Bancroft  EWHC 3250 (Ch), Mr Wharton, who was terminally ill, made a death-bed Will in contemplation of marriage, leaving his entire estate to his partner, Maureen, of 32 years. The Will was prepared by a solicitor, Mr Bancroft, who read it to Mr Wharton before execution. Immediately after executing the Will, Mr Wharton married Maureen. He died a couple of days later. Mr Wharton’s children claimed that the Will was procured by Maureen’s undue influence, even though she had not been present when instructions were given to the solicitor. The claim failed. One of the arguments in support of the undue influence claim was that Mr Bancroft had not followed the golden rule. Norris J had this to say, at para. :
I consider the criticism of Mr Bancroft for a failure to follow “the golden rule” to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that “the golden rule” has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.
Although the claim was of undue influence, and not of lack of testamentary capacity, Norris J’s comments are of application to incapacity claims. A solicitor is not necessarily to be criticised for making his own assessment of capacity where there is a need for urgency, e.g. because the testator is terminally ill and/or because he wishes to make a Will in contemplation of marriage so that he can marry.
In Burgess v Hawes, however, the solicitor did not observe the golden rule. He merely relied upon his own judgment that Mrs Burgess appeared to be capable. The Court of Appeal expressed doubt as to whether it should set the Will aside for incapacity, and decided the claim on the basis of want of knowledge and approval. However, the solicitor should, at least, have advised that it was a sensible precaution to call in a doctor.
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