Ashkettle & Anor v Gwinnett

Ashkettle & Anor v. Gwinnett

Smart Summary (Beta)

Factual and Procedural Background

This probate action concerns the validity of a will dated 18 January 1999. The Claimants seek a declaration that this will is invalid, while the Defendant counterclaims for probate of the 1999 will in solemn form. The Claimants also seek a grant of letters of administration with the will annexed in relation to an earlier will dated 2 October 1986, which is undisputed. The testator, Mrs Ashkettle, died in 2007 aged 86. The 1986 will divided the estate equally between Mrs Ashkettle's three children: two sons (the Claimants) and a daughter (the Defendant). The 1999 will left the entire estate to the daughter alone, excluding the sons with stated reasons relating to personal relationships and financial means. The court was tasked with determining the validity of the 1999 will on grounds including proper execution, testamentary capacity, knowledge and approval of the will's contents, and undue influence.

Legal Issues Presented

Whether the 1999 will was properly executed.
Whether the testator had testamentary capacity at the time of making the 1999 will.
Whether the testator knew and approved the contents of the 1999 will.
If the testator had capacity and approved the will, whether the 1999 will was procured by undue influence exerted by the Defendant.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Banks v Goodfellow (1870) LR 5 QB 549	Legal test for testamentary capacity including understanding the nature of the act, extent of property, and moral claims of beneficiaries.	Applied to assess whether the testator had capacity to make the 1999 will; experts agreed on dementia diagnosis but differed on capacity to appreciate extent of estate and moral claims.
Barrett v Bem [2012] Ch 573	Requirement for positive direction or instruction for a will to be signed on behalf of the testator.	Considered in relation to whether the solicitor's signing of the 1999 will on behalf of the testator was authorised.
Key v Key [2010] 1 WLR 2020	Guidance on evidential burden shifting to the propounder if a real doubt about capacity is raised; fairness of will not determinative of capacity.	Applied to conclude that the Claimants raised a real doubt about capacity, shifting burden to the Defendant who failed to discharge it.
Cowderoy v Cranfield [2011] EWHC 1616	Summary of authorities on testamentary capacity and evidential burden.	Adopted in the court’s reasoning on capacity issues.
Hawes v Burgess [2013] EWCA Civ 94	Strong presumption of capacity when will prepared by experienced solicitor who considered testator capable.	Recognised but qualified by the court, noting that solicitor’s assessment must be based on proper evaluation and accurate information.
Fuller v Strum [2002] 1 WLR 1097	Requirement that testator must know and approve the contents of the will.	Referenced regarding the knowledge and approval issue if capacity were established.
Hoff v Atherton [2004] EWCA Civ 1554	Principles on knowledge and approval of will contents.	Considered in relation to whether the testator understood and approved the 1999 will.
Gill v Woodall [2011] Ch 380	Further authority on knowledge and approval of will contents.	Applied as part of the legal framework on knowledge and approval.

Court's Reasoning and Analysis

The court carefully examined extensive oral and documentary evidence, including medical expert opinions diagnosing the testator with progressive dementia due to Alzheimer's disease. The experts agreed she likely had capacity to understand making a will but disagreed on her capacity to comprehend the extent of her estate and the moral claims of potential beneficiaries. The court found the Defendant's evidence unreliable, especially regarding key dates and explanations, and preferred the Claimants' accounts.

The court noted that the testator's mental condition had significantly deteriorated by late 1998 and early 1999, supported by medical records, witness testimony, and a home video showing incoherent conversation. The solicitor's brief involvement and lack of detailed contemporaneous notes undermined confidence in the assessment of capacity. The irrational and unexplained exclusion of the sons from the 1999 will further indicated lack of capacity or understanding.

On execution, the court accepted that the solicitor had sufficient direction to sign the will on the testator’s behalf, despite weak evidence. However, on testamentary capacity, the court concluded that the Claimants raised a real doubt which shifted the evidential burden to the Defendant, who failed to prove capacity. The court found the testator lacked capacity at the relevant time.

Regarding knowledge and approval, even if capacity had existed, the court concluded the testator did not know or approve the will’s terms due to her inability to read or concentrate, and the irrational content of the will. The solicitor’s and witness’s evidence was insufficient to establish genuine understanding or approval.

The issue of undue influence was not addressed substantively as it only arose if the will was otherwise valid.

Holding and Implications

The court pronounced against the validity of the 1999 will and granted letters of administration with the will annexed in relation to the 1986 will. The Defendant's counterclaim for probate of the 1999 will was dismissed.

This decision means the 1986 will remains the operative testamentary document for the estate. No broader legal precedent was established beyond the application of existing principles to the facts. The ruling directly affects the parties by denying probate of the 1999 will and confirming the distribution under the earlier will.

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