NOTE: This article was published in June 2008 and reflects the law as it stands on the date of publication and not at any later date.

Introduction

The purpose of this paper is to examine the law relating to invalidity of Wills by reference to recent cases on testamentary incapacity, undue influence, want of knowledge and approval, forgery and fraud, due execution and revocation.

Testamentary Incapacity

The Test

The classic test in is that set out in Banks v Goodfellow (1870) LR 5 QB 549, at 565. The testator must:

(a)      understand the nature of his act, i.e. executing the Will, and its effects;

(b)      understand the extent of the property of which he is disposing; and

(c)      must be able to comprehend 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”.

As an added gloss, the testator must have the mental capacity to make decisions which take into account the relevant property, persons and circumstances and arrive at a “rational, fair and just” testament (Abbott v Richardson [2006] WTLR 1567, at 1627).

The Mental Capacity Act 2005

Under the 2005 Act:

(i)       A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or the brain (s. 2).

(ii)      For the purposes of section 2, a person is unable to make a decision for himself if he is unable

(a)      to understand the information relevant to the decision,

(b)      to retain that information

(c)      to use or weigh that information as part of the process of making the decision, or

(d)      to communicate his decision (whether by talking, using sign language or any other means) (s. 3(1)).

(iii)     A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to the circumstances (using simple language, visual aids or any other means) (s. 3(2)).

(iv)     The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision (s. 3(3)).

(v)     The information relevant to a decision includes information about the reasonably foreseeable consequences of –

(a)      deciding one way or another, or

(b)      failing to make the decision (s. 3(4)).

In Scammell v Farmer [2008] EWHC 1100 (Ch) it was accepted that the test of mental capacity under s. 3 of the 2006 Act is a modern restatement of the test propounded in Banks v Goodfellow.

Time for Assessing Capacity

The relevant time for assessing the capacity of the testator is at the date when the Will is executed. However, there is an exception where the testator has full capacity when he gives instructions for a Will, and the Will is prepared in accordance with those instructions. In that event, it is sufficient that, when he executes the Will, the testator appreciates that he is being asked to execute a Will drawn in accordance with those instructions, even if at the time of execution he is unable to understand the provisions themselves (Baker v Baker [2008] WTLR 565, para. [12]). However, it may be that there is insufficient evidence of capacity at the time when instructions are given, for instance where instructions are given to the solicitor through a lay intermediary.

The Burden of Proof

The burden of proof is different under the Mental Capacity Act 2005 than it is at common law. Section 1(1) of the Mental Capacity Act 2005 provides that a person must be assumed to have capacity unless it is established that he lacks capacity. This would appear to place the onus on the person challenging a Will to prove incapacity.

At common law the legal burden is on the proponents of a Will (the executors and principal beneficiary) to prove capacity.

This inconsistency was noted in Scammell v Farmer [2008] EWHC 1100 (Ch). However, the Court concluded that section 1 of the 2005 Act did not apply so as to reverse the burden of proof in the case of a challenge to the validity of a Will. This was, in part, because the 2005 Act was concerned with the power of the Court to make or authorise the making of Wills on behalf of persons who lack capacity, not the ascertainment of whether a particular testator had capacity when a Will was made. The legal burden, therefore, remains on those propounding a Will to prove capacity on the balance of probabilities.

Shifting of Burden

At common law, the burden of proving capacity shifts with the evidence (see Ledger v Wootton [2008] WTLR 235, at 237-8). The legal burden is on the propounder of a Will to establish capacity. This remains the case even where a grant of probate in common form has been made: the burden, in a revocation action, lies on the propounder to prove capacity.

However, there is a presumption that the testator was of sound disposing mind if the Will is rational on its face and duly executed. Slight evidence of mental incapacity will not disturb this presumption. However, once a real doubt is raised about capacity, the evidential burden will revert to the propounder of the Will to establish capacity.

This will often mean that, where there is real doubt as to capacity, it will be impossible to dispel that doubt, and the Court will make a finding of lack of capacity. Often it is the case that the testator’s capacity deteriorates over time, and it may well be especially difficult to determine whether, at the point when the Will is made or instructions given, the testator retained capacity. There may well be conflicting evidence and contradictory indications. It may, in effect, be well nigh impossible to know whether the testator lacked capacity at the material time. In those circumstances the Court may well conclude that the burden of establishing capacity has not been discharged.

Cases Illustrating Shifting of Burden

Ledger v Wootton [2008] WTLR 235 illustrates the operation of the rules relating to the burden of proof. The testatrix had five children. She made a Will giving half of her estate to two of her children equally, and half to be shared equally between her grandchildren. No provision was made for the testatrix’s three other children. The claimant (one of those three children) brought a probate claim to revoke a grant in respect of the Will and for a grant of letters of administration.

The Will was held to be rational on its face. The fact that the testatrix had only benefited two of her five children was not, in itself, irrational. However, there was evidence that the testatrix had a long history of mental illness and suffered from paranoia. The presumption of capacity was, therefore, rebutted. The positive burden of adducing evidence of capacity, therefore, fell upon the persons seeking to uphold the Will. However, they adduced no positive evidence of capacity. The solicitor who drafted the Will, and the witnesses, had no direct recollection of the circumstances surrounding execution. The Court was, therefore, compelled to hold that the testatrix lacked capacity.

Cases Where Will Invalid Because Doubt as to Capacity not Dispelled

In Vaughan v Vaughan [2005] WTLR 401 the testatrix had made a number of Wills in the year before her death, each of them drawn up by the family solicitor, the last of them in August 1999. She then executed a Will in October 1999 (departing materially from the earlier Wills) only four days before her death. The instructions for that Will were given by one of her sons, who was the principal beneficiary under the Will. The testatrix had suffered a stroke and communication with her was difficult. There was also evidence that she was confused. A medical opinion was not obtained, confirming capacity, before the Will was made, even though the son had previously been advised as to the necessity of obtaining such evidence.

These, and other factors, gave rise to a grave suspicion of incapacity. A doctor had seen the testatrix two days before, and the day after, she made the contested Will. However, he was not prepared to express any view on her mental capacity. The Judge stated that he was left in a position that he did not know if the testatrix had testamentary capacity. The burden of proving testamentary capacity, and of removing any suspicions as to the lack of capacity, was not discharged.

Another case which illustrates that a real doubt as to testamentary capacity will often lead to a final determination of lack of capacity is Westendrop v Westendrop [2006] EWHC 915 (Ch). In that case, there had been no examination of the testatrix’s cognitive functioning at about the time when she made the contested Will. She had begun to suffer from short-term memory loss caused by the onset of Alzheimer’s disease. At the time when she executed in the Will she was suffering from a serious chest infection. The doctors considered that she may have experienced some short-term impairment of cognitive capacity arising from the effects of a chest infection superimposed upon the baseline difficulties caused by Alzheimer’s. The medical evidence was either to the effect that the testatrix probably lacked testamentary capacity, or that it was not safe to assume that she had such capacity. The Court concluded that it was not satisfied, on the balance of probabilities, that the testatrix had testamentary capacity.

In Hanson v Barker-Benfield [2006] WTLR 1141 the testator was known to suffer from episodes of delirium, but there was doubt whether he was suffering from delirium at the time of the execution of the Will. It was clear from his medical records, however, that the testator had been declining in health, both physically and mentally; and as he deteriorated further, it became more important to look for positive indications of capacity. Many of his symptoms were consistent with a degree of delirium. There was no doubt that, in his waking moments, the testator wanted to make a Will and that he sufficiently understood the nature of the act, but there was no evidence that he had been able to understand the extent of his property. It was impossible to prove that he did have capacity, and such impossibility made it probable that he did not have capacity.

May L.J’s comments in Sharp v Adam [2006] WTLR 1059, at 1081, should, however, be borne in mind. Cases are only decided on the burden of proof if, exceptionally, the Court is unable to reach an evaluative decision of the evidence taken as a whole. Often the decision may be difficult, but it is neither necessary nor satisfactory to resort to the burden of proof.

Dementia and Impaired Incapacity

However, it does not necessarily follow from the fact that the testator suffered from a condition affecting capacity, such as dementia, that the testator will be found to have lacked testamentary capacity. In a number of cases the testator suffered from mild or moderate dementia and/or short-term memory loss and/or episodes of confusion, but was found to have retained sufficient testamentary capacity.

In Hoff v Atherton [2004] EWCA Civ 1554 the testatrix suffered from “mild to moderate dementia” when she made her Will. However, she was found to have had capacity. There was evidence that the testatrix had capacity to understand the nature and extent of her estate: she had, for instance, discussed financial and business matters with her accountant, in a competent fashion, not long before the execution of the contested Will.

In Reynolds v Reynolds [2005] EWHC 6 (Ch) the testatrix suffered from episodes of confusion, but at other times was alert and orientated. She also suffered from short-term memory loss. However, in the period leading up to the execution of the Will, she was able to conduct lucid and coherent conversations. She also scored highly on mental functioning tests. The Court concluded that her degree of mental impairment was of limited severity, and that she retained testamentary capacity.

In McClintock v Calderwood [2005] EWHC 836 the testator executed a Will, whilst resident in a care-home, leaving the whole of his estate to the wife of his nephew. The medical evidence was that, when he executed the Will, he was suffering from a degree of cognitive impairment, perhaps amounting to dementia. However, the Judge accepted that a patient with dementia will not necessary lack testamentary capacity: the severity of the dementia would be relevant. A person with mild, or even moderate, dementia may have testamentary capacity. Furthermore, despite evidence of fluctuating confusion, the weight of the evidence was to the effect that the testator retained capacity.

In Scammell v Farmer [2008] EWHC 1100 (Ch) the testator suffered from short-term memory loss, probably as a result of the early onset of Alzheimer’s disease. She often did not know what day it was. However, the possession of an imperfect memory is not to be equated with an absence of testamentary capacity. She was sufficiently aware of her memory problems to have a sensible discussion about reducing her medication. Her results in MMSE tests were not poor and were consistent with mild dementia. She was found not to suffer from a “severe and incapacitating dementia” and to have had testamentary capacity.

In Carr v Beaven [2008] EWHC 2582 (Civ) the testator had had a stroke, and was suffering from mild to moderate dementia when he made his disputed Will. Two medical experts produced reports. Both concluded that the testator had testamentary capacity when he executed the contested Will, albeit one was of the view that the testator had lacked capacity when executing a Will only a few months before the disputed Will. The Court upheld the Will, noting that a diagnosis of mild to moderate dementia is not of itself an obstacle to satisfying the requirements of testamentary capacity, and that a testator may lack testamentary capacity on a particular day, but may possess it many months later. It was also not relevant to contrast the state of the testator with that before his stroke and dementia. Despite his decline, he retained sufficient testamentary capacity on the date he made the disputed Will.

In Carr v Ennals [2008] EWHC 2859 (Ch) the Court held that the testator had testamentary capacity despite suffering from secondary brain cancer.

Degree of Knowledge

There is also some latitude as to the extent or degree of the requisite understanding. It is not necessary, for instance, that the testator should have a precise knowledge or perfect recollection of the requisite matters, such as the extent of his assets, or of the names of his relations.

In Abbott v Richardson [2006] WTLR 1567 the testatrix made a Will about 8 months before she died aged 98. She left a significant proportion of her estate to R, who had worked for her for 6 years before her death, and who had performed domestic tasks and provided companionship. The Will revoked a previous Will in favour of a number of beneficiaries, including the claimant, a second cousin. The testatrix had no immediate family. The medical evidence was inconclusive as regards testamentary capacity.

When the testator executed the contested Will she was ignorant as to the value of shares comprised in her estate. However, the Court made it clear that this was not necessarily fatal to a finding of capacity (nor was the fact that she could not remember the names of all of her cousins). In some cases it might be necessary for the testatrix to know the approximate value of her assets and liabilities, particularly if she was contemplating a series of pecuniary legacies, the amount of which would depend upon the value of the assets available. However, if the estate is to be divided proportionately between beneficiaries, it is sufficient to know that there are shares of substantial value.

In Scammell v Farmer [2008] EWHC 1100 (Ch) it was sufficient that the testatrix could only give a general indication of the value of her estate (which consisted principally of a house the value of which would be difficult to state with precision in a thriving property market).

Capacity to Understand, not Actual Understanding

Furthermore, it is not necessary that there should be evidence that the testator had actual understanding, e.g. as to the extent of his assets,only that he had capacity to understand.

In Hoff v Atherton [2004] EWCA Civ 1554 the testatrix was suffering from the onset of dementia. Given that there was doubt as to her testamentary capacity, it was submitted that there must be affirmative proof that the testatrix actually understood the requisite matters, such as the extent of her estate, and the fact that she had made a significant change from her previous Will. There was no proof that she actually knew these things, since she had received no explanation from the solicitor who prepared the Will.

However, the Court of Appeal held that it was not necessary that there should be proof of actual understanding at the time of execution. It is only necessary to establish that the testatrix had the capacity to understand, e.g. the capacity to understand the extent of the property disposed of by the Will. If there is evidence of actual understanding, then that would prove the requisite capacity. However, there will often be no such evidence, and the Court must then look at all the evidence to see what inferences can properly be drawn as to capacity. Such evidence may relate to the execution of the Will, but may also relate to prior or subsequent events. On the basis of witness evidence as to her coherence and lucidity at about the time of the Will, the Court concluded that the testatrix did have capacity.

In Re Loxston, Abbott v Richardson [2006] WTLR 1567 the testatrix was ignorant of the value of shares in her estate. However, the Court stated that the question was whether the testatrix was capable of understanding the nature and extent of her property. The Court found that the testatrix would have been capable of understanding the value of their shares, if she had been told what it was.

In Blackman v Man [2008] WTLR 389 an issue arose was whether the testatrix was capable of understanding the nature and extent of her property. When completing the Will instruction form, in the section requiring details of business assets, she simply included abbreviations of the names of her two property holding companies, which held the vast bulk of her property portfolio. There was no evidence as to what value she thought the portfolio had. However, there was independent evidence that she understood that she had, through the companies, a substantial property portfolio. That was sufficient.

Assistance in Understanding

In Hoff v Atherton (supra) it was accepted that there may be cases where the testator will only have testamentary capacity if the nature and effect of the Will and its terms are explained. Even though no such explanation was given to the testatrix, it was significant that the terms of the Will were straightforward; its terms were entirely sensible; and a rational reason had been given by the testatrix to the solicitor for the change in the residuary gift. There was, therefore, no need to establish that the terms of the Will had been explained in order to establish capacity.

However, in other cases, the Court may require evidence that the terms of the Will have been explained. In Re Loxston, Abbott v Richardson [2006] WTLR 1567 the Court held that the testatrix was unable, without assistance, to recollect, understand or focus at one time on all the persons she might reasonably wish to benefit, and arrive at a rational decision as to which of them she wished to benefit and in what way. The limited range of beneficiaries in the contested Will, when compared to the range of beneficiaries in her previous Will, was striking. The Court found that this was due to the fact that she was incapable of concentrating on more than a very limited range of objects at one time without help being provided at the time she gave instructions for, and executed, the contested Will. Her capacity might have been sufficient if the changes to the terms of the previous Will had been considered with, and explained to, the testatrix. However, that had not occurred and she was, therefore, held to have lacked testamentary capacity.

Section 1 of the Mental Capacity Act 2005 provides that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. This means that solicitors should explain the terms of the Will to the testator in order to determine the testator’s capacity. However, it does not mean that the testator will be presumed to have had testamentary capacity if a proper explanation has not been given. Indeed, where a solicitor fails to ask pertinent questions, or to explain the terms and effect of a Will, that failure may well support a finding that the testator lacked capacity (see the Australian case of Robinson v Spratt [2002] NSWSC 426).

Rationality of the Contested Will

In Sharp v Adam [2006] WTLR 1059 the testator made a Will in 2001 disinheriting his two daughters, who had been the principal beneficiaries of his estate under a previous Will. He left the bulk of his estate to S and B, who had run his stud farm under his direction for many years. The testator suffered from progressive multiple sclerosis, the effect of which was to impair his cognitive functions. When he made the Will he was paralysed from the head down. He could only communicate with the help of a carer asking direct questions which could be answered with a nod. His solicitor, doctor and carers were of the opinion that he nonetheless retained testamentary capacity. The Will was signed by the testator in the presence of two solicitors and his GP. However, there was no formal cognitive testing. Before the Will was signed the testator was reminded that he was not leaving anything to his daughters, and that his estate consisted not only of his business and his house but also personal possessions, which his daughters might expect to inherit. This was repeated many times but on each occasion that he was asked to agree to leave his daughters anything, he made it clear by shaking his head that he did not wish to do so. He indicated that he approved the terms of the Will. There was competing expert medical evidence at trial on the issue of capacity (see under Rejection of Contemporaneous Evidence below).

The Court found that the testator lacked capacity. The decisive consideration was that the Will was in part irrational. Leaving the residuary estate to S and B was entirely understandable. Leaving nothing at all to his daughters was not, in the light of evidence that there was enduring mutual affection and no significant family rift.

The case shows that the terms of a Will can provide evidence of incapacity. It might seem to undermine the general principal that a testator can make as capricious and eccentric a Will as he likes. However, it is one thing to make a capricious Will. It is another thing to make an irrational Will, in circumstances where there must be doubt as to capacity, due to the testator’s degenerative illness and impaired powers of communication.

Conversely, in Hoff v Atherton, the Will was straightforward and rational, and this was a factor leading the Court to conclude that the testatrix had testamentary capacity. The same reasoning applied in McClintock v Calderwood: the Will was simple in leaving the whole of the testator’s estate to one person (whom the testator had better reason to benefit than anyone else as the person who had taken the greatest responsibility for his care in the closing years of his life).

Delusions

If the testator suffered from delusions, this will often give rise to a strong presumption of lack of capacity, which it will be difficult, if not impossible, to rebut.

In Ledger v Wootton, supra, there was expert evidence that the testatrix suffered from paranoid ideas or delusions of persecution. There has to be a causal connection between the delusion and the disposition effected by the Will in order to establish incapacity. The evidence did not establish that a particular delusion directly influenced the actual terms of the Will. However, it did raise the possibility that a defect in mind interfered with a consideration of the matters which should be weighed and taken into account on the making of a Will. This threw the burden on the proponents to prove capacity, which they were unable to do. Therefore, proof of delusions may invalidate a Will even though the delusions do not directly relate to testamentary issues.

In Kostic v Chapman [2007] EWHC 2298 the testator suffered from a mental illness which led him to do believe that there was an international conspiracy of dark forces against him in which he believed his son was implicated. As a result, his relationship with his son deteriorated. In two Wills, post-dating the onset of his delusions, he left the whole of his estate, worth in excess of £8.2 million to the Conservative Party Association (CPA). The Court found that the delusions influenced the testator and that, accordingly, he lacked capacity. It was not, therefore, necessary to consider the son’s contention that the onus was on the CPA to establish that the delusions were not likely to have influenced the testator, whether or not they actually did so.

Rejection of Non-Contemporaneous Expert Medical Evidence

In Blackman v Man [2008] WTLR 389 the claimants, who were nephews and nieces of the testatrix entitled on an intestacy, challenged the validity of two Wills made by the testatrix in 1994 when she was aged 78. By those Wills the testatrix left her residuary estate (worth almost £10 million on death) to a Chinese couple, who had been involved in the running of a Chinese restaurant, to whom she had become very close. In her Will the testatrix described them as her “best friends”. The testatrix had no surviving husband or children. The estate consisted mainly of a property portfolio held by several companies. In late 1993 the testatrix was diagnosed as suffering from a “mild dementing illness” and recorded by a psychiatrist as being “vague and disorientated”. There was evidence that by 1993 she was having difficulties in comprehending reports on the properties, and that she would become confused during meetings with her managing agents.

The case highlights the limitations of expert medical evidence, other than a contemporaneous assessment undertaken for the purpose of determining testamentary capacity. The only contemporaneous evidence (that the testatrix suffered from mild dementia) did not address itself to the question of testamentary capacity. A number of experts opined whether, on the balance of probabilities, the testatrix lacked testamentary capacity when she executed the Will. The Judge stated that the Court must be wary of placing much reliance on the theoretical conclusions of medical witnesses, however eminent, who have not seen the testatrix, but base their views on inferences from other evidence – inferences as to which ultimately it is for the Court and not an expert witness to decide whether they should be drawn.

The Court, in fact, concluded that, on the balance of probabilities, the testatrix did have testamentary capacity. She had obtained a Will instruction form and filled it in, and completed a separate sheet, without assistance. The contents of the form and separate sheet showed that she understood that she was intending to make a Will, and that she recalled those who had claims on her and understood the nature of those claims. She had, for instance, expressed a rational reason for not providing for her nephews and nieces.

Re Wilkes [2006] WTLR 1097 is of similar effect. The testatrix had made a Will solely in favour of G, one of her five children. The testatrix had suffered two significant strokes, following which she required 24-hour care. In her previous Will (prior to her stroke) she had divided her residuary estate in equal shares between her children. G took the testatrix to see a solicitor about her new Will. However, there was no discussion about the extent of her estate, nor about how many children she had.

One of the testatrix’s brothers sought revocation of the Will on a number of grounds, including incapacity. His case was supported by a consultant physician, who had never met the testatrix, but whose evidence was given by reference to her medical records. The expert concluded that, when the testatrix gave instructions for and executed the Will she had widespread brain damage as a consequence of having suffered a number of strokes. He warned against the acceptance at face value of statements indicating that the testatrix was mentally well, in the absence of some form of objective diagnostic analysis of her mental ability (which had never taken place). A person may subjectively appear to have intact mental functions despite severe deficits in reality, which would be shown up on a “mini mental state examination”. The expert concluded that the testatrix probably lacked testamentary capacity.

The Court, nonetheless, concluded that there was sufficient evidence of capacity from independent witnesses, relating to her ability to recall the birthdays of all her children and grandchildren, her capacity to engage in meaningful conversations, to read newspapers, to enter into a newspaper bingo game, and to make a joke at the solicitor’s office. This rejection of the expert’s conclusion is, perhaps, surprising, even though the expert accepted that testamentary capacity might be indicated by such matters.

Rejection of Contemporaneous Medical Evidence

The Court may reject, not only after-the-event medical evidence, but also contemporaneous medical evidence. In Sharp v Adam (supra) the testator was held to lack capacity in large part because he had no rational reason to disinherit his daughters (see under Rationality of the contested Will above). However, this involved rejecting contemporaneous medical evidence to the effect that the testator did have testamentary capacity. The testator’s solicitor had complied with the so-called “golden rule” that the making of a Will by an old and infirm testator ought to be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. The Court of Appeal stated that the opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may very occasionally be shown by other evidence to be wrong. The golden rule is a rule of solicitors’ good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule. Nonetheless very persuasive evidence would be required to enable the court to dislodge the conclusion of professionals who observed the apparent mental state of the testator at the time of execution of the Will. The Court was, however, persuaded that, despite the medical evidence, the testator lacked capacity.

It was significant that in Sharp v Adam there was contradictory medical evidence at trial as to capacity: one expert concluded that the testator had lacked capacity, the other that he retained capacity. Both doctors focused on the issue of cognitive impairment. However, the Court of Appeal stated that the question of capacity did not relate exclusively to cognitive powers. The fourth element in Banks v Goodfellow – relating to the poisoning of affections and the impediment to the exercise of natural faculties – was concerned as much with mood as with cognition. The Court was, therefore, entitled to infer, in part from the irrationality of the Will itself, that there had been some temporary poisoning of the testator’s natural affection for his daughters, or a perversion of his sense of right, the nature of which nobody can satisfactorily explain. This was a point that one of the experts had not considered, and the other had only mentioned in passing as a “lay observer”. Nonetheless, it was sufficient to justify the decision of the first instance judge that the testator had lacked testamentary capacity.

In Scammell v Farmer (2008) EWHC 1100 (Ch) the testatrix had performed not particularly well in MMSE tests. However, those poor results were not in themselves sufficient grounds for holding that the testatrix lacked capacity. The Judge pointed out that no tests were undertaken as to the testatrix’s ability to remember the names of her family or as to the extent of her assets.

Acceptance of Medical Evidence

However, a case where the medical evidence was preferred to the anecdotal evidence of non-experts is Baker v Baker [2008] WTLR 565. In that case the testator had executed a Will five days before his death, whilst he was in a hospital intensive care unit suffering from changes in his brain functions brought about as a result of liver disease. A consultant had advised that he did not believe the testator had testamentary capacity due to his medical condition. However, the Will was nonetheless executed in the absence of a solicitor or doctor. Not surprisingly, the Court concluded that the testator lacked testamentary capacity, despite the (rather tenuous) evidence of a number of lay witnesses to the effect that the testator exhibited a rational desire to make the Will.

Undue Influence

Coercion

Undue influence, in relation to Wills, means coercion. Coercion does not simply cover physical violence; it extends to verbal bullying or simply talking to a sick person who is seriously ill in such a way that that person may be induced, for quietness’ sake, to do anything. The deliberate poisoning of a person’s mind against other potential beneficiaries may also amount to undue influence (Edwards v Edwards [2007] WTLR 1387). The key question is whether the conduct is such that it overpowers the will of the testator without convincing his judgment.

The amount of influence required to induce a person of weak mind and in ill health to make a Will may be considerably less than that necessary to induce a person of strong mind and in good health. A “drip drip” approach may be highly effective in sapping the will.

However, there is a whole class of questionable conduct which does not amount to coercion. Appeals to family ties or affection (“I am your only son” or “I am your best friend”), to the sentiment of gratitude for past services (“remember all the things I have done for you”) or pity for future destitution (“I’ll end up on the scrap heap”) is not sufficient to amount to coercion. Even very strong persuasion and heavy family pressures are insufficient in themselves. Procuring the execution of a Will by deliberate concealment does not amount to coercion. Nor does wheedling one’s way, by reprehensible means, into the affections of a vulnerable testator, with a view to influencing the testator to make a Will in one’s favour, amount to coercion so long as the testator’s will is not overborne. A testator may be led, but not driven. There will only be undue influence if the testator was in such a condition that, if he could speak his wishes to the last, he would say: “this is not my wish, but I must do it”.

An example of a case of morally dubious conduct, not amounting to coercion, is Abbott v Richardson [2006] WTLR 1567. The testatrix had told her carer (R) that she wished to make a Will leaving her house to R, and she maintained a consistent and rational wish to make a Will to that effect. Thereafter, R, acting in her own interests, did everything that she could to ensure that the testatrix made such a Will. She even participated in drafting a letter of instruction to solicitors. However, it still remained the case that the testatrix wanted to do what she did. The Court found that it was most unlikely that R would have been able to force the testatrix to give instructions she did not want to give.

Causation

It is necessary to establish that the alleged undue influence has caused the Will to be executed. In Vaughan v Vaughan [2005] WTLR 417 the testatrix had come under pressure from members of her family to change her Will, and in the end made a Will substantially in favour of one of her sons. However, even though the Court found that the behaviour of her family, including her son, had been “little short of disgraceful”, it  did not consider that the Will had been procured by undue influence. The testatrix had seen other members of her family regularly, but had made no complaint that she was being subjected to undue influence. This case illustrates the high hurdle that needs to be overcome to establish undue influence.

 No Presumption of Undue Influence

A presumption of undue influence may apply to lifetime transactions if X reposes trust and confidence in Y, and the transaction calls for explanation or is to the manifest disadvantage of X. However, no such presumption applies in relation to Wills (Vaughan v Vaughan [2005] WTLR 401, at [87]; Edwards v Edwards [2007] WTLR 1387, at para. [47]).

It is, therefore, necessary to prove affirmatively that undue influence was exercised to overcome the testator’s will, not simply that there was a capacity to influence the testator. In Wilkes v Wilkes [2006] WTLR 1097 the testatrix made a Will in favour of her son (one of her five surviving children). It was alleged that the son was in a position to influence the testatrix and that she, by virtue of her mental frailty, would have been susceptible to such influence. There was also evidence that the son was capable of acting in a domineering and aggressive manner. However, there was no evidence that he was aggressive to his mother, or that he sought to coerce her into dealing with her affairs against her will. The claim of undue influence was dismissed.

Some Other Explanation

Usually there will be no direct evidence of coercion. Nonetheless, the Court may in certain circumstances infer that the Will has been procured by coercion. However, it will only do so if there is no other possible explanation for the Will. What must be shown is that the facts are inconsistent with any other hypothesis than undue influence, i.e. coercion (Edwards v Edwards [2007] WTLR 1387, at para. [47]).

Carapeto v Good [2002] EHWC 640 illustrates the very real difficulty facing a claim to set aside a Will on the grounds of undue influence, where there is no direct evidence of coercion. The testatrix was a highly intelligent, well-educated, 87 year old woman. She had no children, but had three nephews. In the year before her death she changed her Will a number of times, ultimately leaving her residuary estate to Mr and Mrs C, who had lived with her for 20 years, providing domestic help. In January 1999 the testatrix made a Will leaving the bulk of her estate to Mr and Mrs C. In April 1999 she made a Will reducing the entitlement of Mr and Mrs C, but still leaving them a substantial legacy. Almost immediately the testatrix had second thoughts. She instructed the solicitor who had prepared the April 1999 Will to return to her house, and to destroy the Will (which he did). In May 1999 the testatrix made her final Will, using a new solicitor, suggested by Mrs C’s son-in-law. The May 1999 Will left various legacies to charities and family members, and the residue to Mr and Mrs C. Mrs C was present on a number of key occasions (when the testatrix gave instructions for the April 1999 Will to be destroyed, and during part of the time when instructions were given in respect of the May 1999 Will). Mrs C may well have been instrumental in ensuring that a new solicitor was brought in for the purposes of the May 1999 Will. There was certainly no question of her simply toiling away in the background, ignorant of the somewhat protracted testamentary activities of her employer.

However, the Court was not satisfied that there were sufficient grounds for inferring that Mrs C had coerced the testatrix into making the May 1999 Will. There was a legitimate suspicion that undue influence may have been exercised. However, the facts were “also consistent with a perfectly innocent explanation”. Mrs C and her family had lived with the testatrix for 20 years, and were on hand day and night to help her (she was disabled with polio). The testatrix had become very close to Mrs C and her family, and was genuinely very fond of them. The testatrix was, at the time of the May 1999 Will, still a very intelligent, sensitive and independent-minded woman, who was capable of making her own decisions. It was not unlikely that she would have come to the conclusion, of her own free will, that the calls of Mr and Mrs C on her bounty outweighed those of her family.

Inferred Undue Influence

In some cases, however, the Court will be driven to the conclusion that there is no alternative hypothesis than that the Will was procured by undue influence, e.g. if the testator has made a Will in favour of a person who was in a position to influence the testator, and to whom the testator was known to be antipathetic (Killick v Poutney [2000] WTLR 41).

In Edwards v Edwards [2007] WTLR 1387 the testatrix executed a Will in favour of one of her two surviving sons (T). The testatrix had suffered a fall and was admitted to hospital. T was a heavy drinker and the testatrix was afraid of him. He was fearful of being evicted from the house in which he lived with the testatrix. The testatrix was subsequently taken to T’s home against medical advice, and her other son and his wife (with whom the testator had a good relationship) were prevented from visiting. A solicitor was called to the house and a Will made solely in favour of T, which represented a significant departure from her previous Will under which the residuary estate was left equally between the testatrix’s sons. The testatrix had testamentary capacity.

The Court considered whether there was any hypothesis other than undue influence for the testatrix’s decision to change her Will. For instance, it examined the reason which the testatrix gave for making a new Will in favour of T: T claimed that he looked after his mother and did her washing and cleaned the house and did everything. However, this was plainly untrue. In all the Court considered four alternative hypotheses for the testatrix deciding to leave the whole of her estate to T, to the exclusion of her other son and close family members. None was convincing. On the other hand, the hypothesis that T had exercised undue influence to procure the Will was entirely plausible. He had the motive and the opportunity to take advantage of his mother’s frail and vulnerable state. The testatrix had levelled false accusations against her other son and daughter-in-law, and had given a palpably inadequate and false explanation to the solicitor of the reasons for changing her Will. There was no other reasonable explanation for this conduct other than that T had deliberately poisoned his mother’s mind by making deliberately untruthful accusations, and that the effect of his doing so was to cause her own discretion and judgement to be overborne. In changing her Will she was simply doing as she was told.

Conclusion on Undue Influence

It will be a relatively rare case where a claim of undue influence succeeds. Only coercion suffices. There is seldom direct evidence of coercion. There is no presumption of undue influence. Coercion may be inferred, but only if there is no alternative hypothesis. Nonetheless, it is possible for a claim of undue influence to succeed, even in the absence of direct evidence of coercion (Killick v Poutney [2000] WTLR 41; Edwards v Edwards [2007] WTLR 1387). Undue influence is not, perhaps, entirely a dead letter.

Where there is a suspicion of undue influence, it is often better to claim want of knowledge and approval (see below). However, in some cases, where there is a suspicion of undue influence, there will be evidence that the testator did know of and approve the contents of the Will. There may, in fact, be evidence that the Will was read to the testator by a solicitor, with the result that a plea of want of knowledge and approval may not an option (see Killick v Poutney [2000] WTLR 41, and Edwards v Edwards [2007] WTLR 1387). In these circumstances, it may be necessary to claim that the testator knew and approved the contents of the Will, but that he was the victim of undue influence.

Want of Knowledge And Approval

Introduction

It is a pre-requisite to the validity of a Will that the testator knew of and approved its contents at the date of execution. This must be proved in every case. However, proof of testamentary capacity and due execution will normally give rise to a presumption of knowledge and approval.

The question is not whether the Court approves of the circumstances in which the Will was executed or of its contents. The question is whether the Court is satisfied that the contents do truly represent the testator’s testamentary intentions (Fuller v Strum [2002] WLR 1097, at para. [65]). There is no requirement to prove “the righteousness of the transaction” if this is taken to impose a greater burden than proving knowledge and approval (Fuller v Strum, at paras. [33] and [78]; Griffin v Wood [2008] WTLR 73, at para. [35]).

Comparison with Testamentary Capacity

The requirements of testamentary capacity and knowledge and approval are conceptually distinct, as Chadwick L.J. made clear in Hoff v Atherton [2005] WTLR 99. A finding of capacity to understand is, in a sense, a pre-requisite to a finding of knowledge and approval. If, therefore, the testator lacks testamentary capacity, he (generally) will not know of and approve the contents of his Will. Nonetheless, in one case the Court found that: (a) the testatrix lacked testamentary capacity because she was not capable of fully taking into account the claims of beneficiaries under a previous Will; but (b) she knew of and approved the contents of the contested Will (see Abbott v Richardson [2006] WTLR 1567). However, the finding of knowledge and approval was academic, since the Will was invalid in any event.

In other words, there may be cases where the testator was not capable of taking into account the claims of beneficiaries, but was aware of the actual contents of the Will. Such cases are, however, likely to be rare.

However, even if the testator did have testamentary capacity, he may or may not have actually known of and approved the contents of his Will. In many cases, where there is nothing to excite suspicion, the Court will infer (without more) that a competent testator who signs a Will knows of and approves its contents. Indeed, in many cases, once it has been determined that the testator had capacity, it will follow that he knew and approved the contents of the Will. In Blackman v Man [2008] WTLR 389 the testatrix completed a Will instruction form to her bank which accorded with her expressed wishes to benefit a Chinese couple whom she had befriended. Once it was determined that she had capacity, it followed that she knew of and approved her own instructions.

However, in suspicious circumstances (see below), the Court may require proof of actual understanding. There may be cases where a testator, although mentally competent, may not have known of or approved the contents of his Will.

Suspicious Circumstances

Where there are circumstances giving rise to a suspicion that the testator may not have known of or approved the contents of the Will, the Court will not pronounce in favour of the Will unless the suspicion is removed. The burden falls upon the party propounding the Will to adduce sufficient evidence to dispel the suspicion.

Suspicious circumstances classically include a case where the person who prepares the Will, or who is instrumental in procuring its execution, is a substantial beneficiary, in which case the suspicion will be difficult to dispel, especially where the testator is in failing health (Wyniczenko v Plucinska-Surowka [2006] WTLR 487; Cairns v Flannery, Lawtel, 30 Oct 2008). A radical departure from testamentary dispositions, long adhered to, also requires explanation, if there has been no change of circumstances, especially if the person in whose favour the changes are made possesses great influence and authority with the testator.

Vaughan v Vaughan [2005] WTLR 401 is a case which bristled with suspicious circumstances. The testatrix’s son gave the instructions for the contested Will. The testatrix played no part. The son was the principal beneficiary. The testatrix had made a number of previous Wills over the previous six months in terms which were inconsistent with the contested Will. The son ignored legal advice that it would be necessary to obtain expert medical opinion that the testatrix was capable of making a Will before she made a new Will. The suspicion of lack of knowledge and approval was not dispelled. There was some evidence in the months before the execution of the Will that the testatrix did not wish to make the provision that she did. Although the testatrix may have said “That’s right”, there was no evidence that she had even read or understood the Will.

Reynolds v Reynolds [2005] EWHC 6 (Ch) is an example of a case where the circumstances aroused  considerable suspicion about the will in question (because it was entirely in favour of one son (R) at the expense of another son and a beloved granddaughter, who were both major beneficiaries under a will she had made less than 5 years before; there were no convincing reasons advanced for the change; and R played a key part in its drafting and execution). Therefore, the burden fell on R to satisfy the court that the will truly represented the wishes of his mother. There was no credible evidence from either of the two attesting witnesses that the testatrix knew or approved the contents of the will, nor any other positive evidence to that effect. It was recognized, however, that in certain circumstances it might be proper to infer such knowledge and approval. The Judge concluded that he was not satisfied that, in the particular circumstances of the case, there were any facts which would justify the drawing of a safe inference that she did know and approve their contents. He considered whether it was possible simply to infer that she must have read it at some stage, and to have done so by the time she executed it. However, he concluded that he could not safely draw that inference. In part this was because it appeared to the Judge that to draw such an inference in the circumstances of that case would be substantially to dilute the principle which requires affirmative proof of knowledge and approval.

Nature of Proof

The greater the suspicion the higher the degree of proof of knowledge and approval that is required. In some cases the suspicion will be so great that it cannot be removed. In other cases, it will be low and can be removed relatively easily. The Court must review the whole of the evidence and determine, on the balance of probability, whether the testator knew of and approve the contents of the Will (Fuller v Strum [2002] 2 All ER 87; Reynolds v Reynolds [2005] EWHC (Ch) 6).

In many cases the testator will have given instructions to a solicitor, or will it least have been present when such instructions are given. This will either mean that there are no suspicious circumstances, or that any presumption of want of knowledge and approval, arising out of suspicious circumstances, is rebutted (Wilkes v Wilkes [2006] WTLR 1097; Hoff v Atherton [2005] WTLR 99). However, there may, of course, still be a claim based on lack of capacity or undue influence.

In Boudh v Bodh [2008] WTLR 411 the degree of suspicion was low. The Will was contested by the testatrix’s son, who had been a beneficiary under her previous Will, but who had been disinherited in favour of the testatrix’s grandchildren. However, there was other credible evidence that the testatrix wanted to change her Will in favour of her grandchildren. The contested Will was not, therefore, a very suspicious, or even a particularly surprising, document. The Will had been prepared and witnessed by a solicitor. Although there was some evidence that the solicitor was of bad character, he had not stood to benefit under the Will, or to gain anything from giving false evidence. Accordingly, very little evidence was required to prove knowledge and approval, and the Will was upheld.

Need for Positive Evidence that Will Read or Explained?

Ideally, proof of knowledge and approval will take the form of positive evidence that the testator had read the Will, or that it had been read to him. However, depending upon the degree of suspicion, it may not be necessary to adduce such positive evidence.

In Sherrington v Sherrington [2005] WTLR 587 the testator, a wealthy and experienced solicitor, executed a Will in favour of his second wife a few weeks before his death in a car crash. The Will made no provision for his three children by his first wife, to whom he was devoted, or for his mother, for whom he was financially responsible. The Will was prepared by the legally unqualified daughter of the second wife. The trial judge held that the testator did not know of or approve the contents of the Will because there was no evidence that he had read it before signing it, and because it had been executed in suspicious circumstances. The Court of Appeal accepted that there were suspicious circumstances, such as the fact that the Will had been prepared by the legally unqualified daughter of the second wife, and that the testator’s children were excluded, except as default beneficiaries. However, the Court of Appeal criticised the trial judge’s reasoning that credible evidence needed to be produced that the testator had read the Will before signing it. That was not correct. The Court must consider the inherent probabilities and in so doing it must look at all the relevant evidence, including the evidence of what happened after the Will was executed.

The testator was an experienced and successful solicitor and businessman. He had ample opportunity to read the Will, the substantive provisions of which comprised three pages and which contained only two short and simple dispositive provisions. He signed three of the pages of the Will. It would have been astonishing if he had signed without looking at the Will first, especially since it had been prepared by someone with no legal qualifications. It was, admittedly, surprising that he excluded his children. However, this might be explained by the fact that he believed that his second wife was also making a Will leaving her estate to him.

Evidence That Will Read or Explained Not Necessarily Conclusive

Conversely, even if there is evidence that the Will was read to the testator, e.g. by a solicitor, it does not necessarily mean that the testator knew of and approved its contents, e.g. if there is a lack of positive input on the part of the testator (Buckenham v Dickinson [2000] WTLR 1083).

Passivity generally may indicate that the testator did not know of and approve the contents of the Will. In Baker v Baker [2008] WTLR 565 no solicitor was involved in the preparation or execution of the testator’s Will in favour of his girlfriend. The day before the execution of the contested Will the testator had stated that he was prepared to make a Will in favour of his girlfriend if she made a reciprocal Will. The Will was produced to the testator who confirmed that he wished to execute it, and did so. However, the testator was almost entirely passive. He did not ask whether his girlfriend was going to execute a Will in reciprocal form to his own, as had previously been discussed. The only explanation for his failure was that he did not understand the effect of what he was doing.

In Franks v Sinclair [2007] WTLR 439 the Will was read to the testatrix by her solicitor son (F) who benefited under the Will at the expense of the testatrix’s grandson (J) with whom she had a very close bond. The Court found that the reading over of the Will was something of a performance, designed to establish the validity of the Will in a formal sense, rather than to make sure that Mrs Franks clearly understood what she was signing. It was significant that the most material provision (leaving the residue to the testatrix’s children, without naming them, in equal shares) was not explained. It was unlikely that the testatrix understood the effect of the clause just as a result of it being read out to her. F had also not taken precautions such as keeping a note of the testatrix’s instructions, nor advising the testatrix to take independent advice. He was not capable of impartial discussion of his mother’s instructions. Not only were he and his sister to replace J as the principal beneficiary of the estate, but he was not on speaking terms with J.

Need to Prove Other Matters as to Understanding

Furthermore, if there is some evidence of a failing mind, coupled with the fact that the beneficiary has been concerned with the instructions for the Will, the Court may require evidence that the effect of the Will was explained to the testator, that the testator did know the extent of this property, and that he did comprehend and appreciate the claims of his bounty to which he ought to give effect (Hoff v Atherton [2005] WTLR 99, at para. [64]).

In Hoff v Atherton [2005] WTLR 99 the testatrix, who was a widow of 82 with no children or close relatives, executed a Will in 1994, giving the residue of her estate to a close friend and neighbour (A). The 1994 Will revoked an earlier Will and two Codicils in which the residue had been left to a godson and his sister in equal shares, and had the effect of substantially reducing their entitlement. The testatrix wrote to a solicitor with instructions for the 1994 Will. The solicitor attended upon her and read out the Will. The testatrix volunteered to the solicitor that she wished to benefit A, who had been good to her, and that she had no relatives. However, the solicitor did not explain in any detail the terms of the Will or advise her as to the extent of her estate.

It was submitted that the Court should require proof that the testatrix was actually aware that the Will she was executing represented a substantial change in financial terms to the dispositions made under her previous Will. It was accepted that in some cases the Court might rightly insist on evidence that the testatrix had earlier testamentary dispositions in mind in order to test whether she truly intended to make the new dispositions under the new Will. However, the testatrix had no relatives and no other claimants on her bounty, other than the beneficiaries under her previous Will, and A. The terms of the Wills were straightforward, and the testatrix had manifested a clear intention to benefit A. Accordingly, it was likely that the testatrix did know of and approve the contents of the Will, even in the absence of positive evidence that she had considered the effect of the changes in her testamentary dispositions.

Knowledge of Effect of Will

In some cases proof will be required that the testator understood not just the contents of his Will, but also its effect (Carapeto v Good [2002] WTLR 801, at 843B). In Carapeto v Good the testatrix made a Will giving her residuary estate to Mr and Mrs C. Mrs C had been the testatrix’s housekeeper. Various members of Mrs C’s family had lived in the testatrix’s house. The testatrix regarded them as her adopted family. The testatrix left a Will giving her residuary estate, including her house, to Mr and Mrs C. The testatrix was not advised that the effect of this gift, after tax, was that Mr and Mrs C would be entitled to the bulk of her estate, albeit leaving some provision for her own family. The Court accepted that a failure to understand the effect of a Will might be consistent with a want of knowledge and approval. However, on the facts, it concluded that the testatrix, who was a highly intelligent woman, and who was aware of the extent of her estate, sufficiently understood the financial effect of the Will and the extent of her generosity.

Want of Knowledge and Approval of Part of Will

It is theoretically possible for the Court to conclude that a provision in a Will has been introduced without the testator’s knowledge and approval, in which case the provision may be rejected and the remainder of the Will admitted the probate, e.g. where a solicitor, who has been instructed to draw a Will, obtains the testator’s approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator. However,” the circumstances in which it will be proper to find such a curate’s egg of a Will likely to be rare” (Fuller v Strum [2002] 2 All ER 87 at para. [36]).

In Fuller v Strum [2002] 2 All ER 87 the testator executed a Will leaving legacies, totalling £22,000, to the claimant (a friend) and members of the claimant’s family. Another friend (B) also received a legacy of £6,000.The testator left the residue of the estate to his adopted son stating that he did so “very grudgingly” and that “I hate him like poison, that Irish bastard”. The claimant’s evidence was that the testator had obtained draft Will forms and dictated the terms of the Will to the claimant in draft. Once satisfied as to its terms, the testator had asked the claimant to complete the Will form, which he did. The claimant then gave the Will to the testator who read it carefully, covered it with a sheet of paper and signed it in the presence of two witnesses.

The trial judge held that there were suspicious circumstances, mainly because the testator’s remarks about his adopted son were so out of character, and because the claimant had played a major part in the preparation of the Will. The trial judge held that the only terms of the Will that the testator had known of and approved was the legacy of £6,000 to B: the testator had told B that he had left or would leave her something in his Will.

The Court of Appeal upheld the Will. It would be a surprising conclusion if the testator had known of the legacy to B, but not of the remainder of the Will. There were only three possibilities: (1) the claimant was telling the truth and the Will was made with the testator’s knowledge and approval; (2) the claimant had deceived the testator as to the contents of the Will except for the legacy to B; or (3) the testator did not care what the claimant put in the Will except for the legacy to B (which was discounted).

In order for (2) to have been the case, there would have to be a real possibility that the claimant had misrepresented to the testator the contents of what he had written, and that the testator had at no time taken the opportunity to read the Will either at the time when it was executed or thereafter. That was implausible on the evidence.

Fraud

A Will may be invalidated by fraud, such as a dishonest misrepresentation made to the testator made by those seeking to benefit under the Will.

In Edwards v Edwards [2007] WTLR 1387 the Court stated that there was a separate ground for avoiding a testamentary disposition on the ground of fraud, i.e. “fraudulent calumny”. If A poisoned the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the Will was liable to be set aside. The essence of fraudulent calumny was that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. If the person casting the aspersions believed that they were telling the truth about the potential beneficiary then, even if what that person told the testator was objectively untrue, the Will would not be liable to be set aside on that ground alone. The question was not whether the court considered that the testator’s testamentary disposition was fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question was whether in making his dispositions, the testator had acted as a free agent. The Court concluded that the beneficiary of the contested Will had poisoned the testatrix’s mind by making deliberately untruthful accusations against the other potential beneficiaries, which caused her discretion and will to be overborne. This was described as amounting to undue influence vitiating the Will. However, it seems that the Will could also have been set aside on the grounds of “dishonest calumny”.

Forgery

Cases

The cases display a reluctance to make a finding that the testator’s signature has been forged, mainly because of the seriousness of an allegation of forgery and the difficulty of proof.

In Fuller v Strum [2002] 1 WLR 1097 a joint handwriting expert found that there was very strong positive evidence of forgery. However, the trial judge declined to make a finding of forgery, since that would have involved a conclusion that the persons present when the Will was allegedly signed had been guilty of fraud. There was no appeal from this aspect of the judgment.

In Wyniczencko v Plucinska-Surowka [2005] EWHC 2794 one expert concluded that there was very strong evidence that the testatrix’s signature had been forged; the findings of the other expert were inconclusive. The Judge stated that there was a real possibility of forgery, but that he was not satisfied on the balance of probabilities that the Will was forged by the sole beneficiary. The burden of proof of forgery lay on the person seeking to claim forgery, and the civil standard of proof, on the balance of probabilities, was capable of accommodating the instinctive feeling that a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.

In Barrett v Davies [2007] All ER (D) 267 a Will was challenged on the grounds of the alleged forgery of the testator’s signature. The claimants relied upon the evidence of a registered forensic practitioner. The Court upheld the Will. Although proper weight had been given to the expert evidence, the evidence of the defence witnesses of fact had been compelling.

However, the Court may make a finding of forgery where, for instance, the expert evidence is that that the signature is likely to have been forged, and neither the defendant executor nor the witnesses attend at trial (Vacciana v Herod [2006] WTLR 367). In Supple v Pender [2007] WTLR 1461 the handwriting evidence was to the effect that there was strong positive evidence that the testator’s signature was not genuine. The Will had been witnessed by two witnesses, only one of whom (T) gave evidence at trial. It was held that the proper approach was to consider first the evidence of T, in conjunction with the evidence of other witnesses of fact. If that evidence was accepted, then the Judge stated that he would be minded, irrespective of the expert handwriting opinion, to pronounce in favour of the Will. The Judge concluded that he could not place reliance on T’s evidence, much of which was untrue. The handwriting evidence fortified the conclusion that the signature of the testator was a forgery. There was some dispute as to where the burden lay, in respect of an allegation of forgery. However, given that the evidence of forgery was overwhelming, the Judge declined to express an opinion on this point.

Expert Evidence

The above cases illustrate that the evidence of handwriting experts in forgery claims is not necessarily conclusive. Such expert evidence does not take into account circumstantial evidence as to the likelihood that the testator would have executed the Will. The expert’s conclusions are also seldom expressed to be conclusive.

Presumption of Due Execution

A number of cases illustrate the strength of the presumption that a Will has been properly executed.

In Sherrington v Sherrington [2005] WTLR 587 an issue arose as to whether the witnesses attested and signed the Will in the presence of the testator in accordance with s. 9(d)(i) of the Wills Act 1837. As a matter of law it is necessary that the witnesses should intend by their signatures to attest that the testator signed or acknowledged his signature in their presence. There was some (weak and inconsistent) evidence that one, or perhaps both, of the witnesses had not intended to attest the testator’s signature. However, in the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator’s signature on the Will (particularly where it is stated that, in witness of the Will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness. On the facts of the case, the evidence was far from being the strongest evidence necessary to rebut the presumption of due execution. The Will was upheld.

In Channon v Perkins [2006] WTLR 427 a Will was upheld despite evidence from the witnesses that they could not remember signing the Will as witnesses. However, seven years had passed by the time that they gave evidence with the result that they may simply have forgotten. The presumption of due execution had not, therefore, been rebutted by the strongest evidence.

However, in Murrin v Matthews [2006] EWHC 3419 the presumption was rebutted. The whole estate was left to one beneficiary, who was probably involved in the preparation of the Will. There were unsatisfactory features relating to the Will and the witnesses could not be found. There is a presumption that a Will has been deliberately destroyed or revoked by the testator if the Will was in the possession of the testator, so that he was in a position to destroy it, but the Will cannot be found at the date of his death (D’Eye v Avery [2001] WTLR 227). The presumption does not apply where the Will has been passed for safe keeping to a third party (Chana v Chana [2001] WTLR 205).

In Rowe v Clarke [2006] WTLR 347 the testator had made a Will (of which there was a copy before the Court) the original of which had last been in his possession. The original Will could not be found at the date of his death. However, the testator was disorganized, there was a lack of security in the way that the Will was kept, and it was unlikely that the testator would have deliberately revoked the Will: he remained on reasonable terms with the beneficiary, and was not on good terms with his brother, who would benefit under an intestacy. The unintentional loss or destruction of the original Will, with no intention to revoke, was not only possible, but probable.

In Wren v Wren [2007] WTLR 531 the testator was found to be a “hoarder” who took considerable care with what he regarded as important documents. His last Will was missing at death. Nonetheless, the Court pronounced in favour of the copy Will. The testator had, up to his death, made clear statements which were consistent only with the Will representing his final testamentary intentions and not having been lost, destroyed or revoked. Moreover, if the testator had deliberately destroyed the original, he would, as a careful and meticulous person, have destroyed the copy which he kept in a safe place. However, he had not done so.

In Kwawagen v RNI [2009] WTLR 69 the court admitted to proof a reconstituted will on accepting evidence from independent witnesses as to the circumstances of its execution and its contents, and that after the death of the deceased that will was found amongst his effects.