Biria v Biria & Ors

Factual and Procedural Background

The deceased, a 97-year-old man originally from Iraq and residing in England since circa 1980, purportedly executed a will on 1 May 2020 at the age of 95. At the time of the will's execution, proceedings were underway in the Court of Protection concerning an assessment of the deceased's capacity to manage his affairs, with concerns raised about potential exploitation by two of his children, Defendant 1 and Defendant 2. The Court of Protection declared on 24 April 2020 that there was reason to believe the deceased lacked capacity and ordered an assessment, which eventually took place on 24 August 2020 by an independent doctor. The doctor concluded that the deceased lacked capacity due to dementia, a finding that led to the appointment of an interim deputy and a final declaration of incapacity by the Court of Protection in 2021.

The central dispute in this case is whether the will executed on 1 May 2020 is valid. The Claimant, the eldest son of the deceased, contends that the will is invalid due to lack of testamentary capacity, absence of knowledge and approval of its contents, undue influence exerted by Defendant 1 and Defendant 2, and fraudulent calumny. Defendant 1 and Defendant 2 lived with the deceased at his home and are alleged to have controlled access to him and influenced his affairs. The will was executed at a notary's office in Central London, attended by Defendant 1, Defendant 2, and others. The will was prepared by Defendant 7, an American attorney, who asserted the deceased had capacity and was not unduly influenced, although he did not provide detailed evidence of the will's preparation process.

The deceased's estate included substantial assets, notably a bank account in the United States with over $13 million derived from the sale of property investments, and significant property holdings in England and abroad. Despite the will's provisions, large sums were withdrawn from the key bank account post-execution and transferred to Defendant 4, with no explanation provided by Defendants. The litigation proceeded with oral evidence from the Claimant and the expert doctor, with other Defendants largely not participating.

Legal Issues Presented

1. Whether the will executed on 1 May 2020 constituted a valid will, specifically whether the deceased had testamentary capacity at the time of execution.
2. Whether the deceased had knowledge of and approved the contents of the will.
3. Whether the will was procured by undue influence exerted by Defendant 1 and Defendant 2.
4. Whether the will should be set aside on the ground of fraudulent calumny due to false allegations against the Claimant.

Arguments of the Parties

Claimant's Arguments

• The deceased lacked testamentary capacity at the date of the will's execution due to dementia.
• The will was invalid for want of knowledge and approval of its contents by the deceased.
• The will was executed under undue influence exerted by Defendant 1 and Defendant 2, who controlled the deceased.
• The will was the product of false beliefs about the Claimant's character, amounting to fraudulent calumny.

Defendants' Arguments

• Defendant 7 asserted in a Defence Form that the deceased was not unduly influenced and had capacity, although no detailed evidence or documentation was provided regarding the will's preparation.
• A solicitor (Defendant 7's associate) stated in a letter that the deceased's mental faculty remained intact and opposed the proceedings, but this letter lacked detail and appeared unaware of ongoing Court of Protection proceedings.
• Other Defendants did not participate or respond to the litigation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Banks v Goodfellow (1870) LR 5 QB 549	Test for testamentary capacity requiring understanding of the extent of estate and moral claims of potential beneficiaries.	The court accepted the expert's application of the Banks test and held it remains the applicable test for retrospective determination of testamentary capacity despite the Mental Capacity Act 2005.
Clitheroe v Bond [2021] EWHC 1102 (Ch)	Confirmation that the Banks test has not been overridden by the Mental Capacity Act 2005.	The court agreed with the view that the Banks test remains authoritative for testamentary capacity.
Walker v Bodmin [2014] EWHC 71 (Ch) and James v James [2018] EWHC 43 (Ch)	Distinction between capacity tests for living transactions under the Mental Capacity Act and testamentary capacity under Banks.	The court adopted the distinction, applying Banks for testamentary capacity.
Gill v Woodall [2011] Ch 380	Approach to knowledge and approval of will contents; presumption arising from proper execution and reading of will.	The court applied Gill's approach, rejecting the presumption of knowledge and approval due to the deceased's incapacity and circumstances of execution.
Fulton v Andrew (1875) LR 7 HL 448	Presumption of knowledge and approval when a capable testator has had the will read over and executes it.	The court noted the presumption does not arise here as the deceased was not a capable testator.
Gregson v Taylor [1917] P 256	Presumption of knowledge and approval can only be rebutted by clearest evidence where will is read to capable testator.	The court held this presumption did not apply due to the deceased's incapacity.
Edwards v Edwards [2007] All ER (D) 46 (May)	Criteria and approach for determining actual undue influence in will execution.	The court applied Edwards to find actual undue influence by Defendants 1 and 2 over the deceased.

Court's Reasoning and Analysis

The court carefully considered the evidence surrounding the deceased's mental capacity, the circumstances of the will's execution, and the conduct of the Defendants. The expert medical evidence from the consultant psychiatrist was given significant weight, particularly as the expert had direct access to the deceased shortly after the will's execution and had reviewed medical records. The expert concluded that the deceased suffered from dementia and lacked capacity to understand the extent of his estate or the moral claims of beneficiaries as at the date of the will's execution.

The court rejected assertions by Defendant 7 and the solicitor's letter as unsupported and lacking detail. It found the deceased's mental state in May 2020 was substantially the same as in August 2020 when assessed. The deceased's manifest lack of knowledge of his substantial financial assets and his irrational and unfounded belief that the Claimant was dangerous distorted his testamentary capacity.

Regarding knowledge and approval, the court found no presumption arose from the will being read over and executed because the deceased was not a capable testator and was unable to retain or understand the will's contents. The reading by the notary did not allay the court's suspicions, given the deceased's severe visual impairment and cognitive state.

The court found that the will was procured by actual undue influence exerted by Defendant 1 and Defendant 2, who controlled access to and decisions of the deceased. The deceased was acting under their direction, not his own volition, both in executing the will and in transferring substantial funds to Defendant 4. The Defendants' obstructive conduct towards independent assessments and investigations supported this conclusion.

Finally, the court considered the claim of fraudulent calumny, that false and reckless allegations against the Claimant had been fed to the deceased to exclude him from the will. The court found no evidence that Defendant 1 or Defendant 2 originated the relevant allegations and rejected this claim.

Holding and Implications

The court held that the will purportedly executed on 1 May 2020 was INVALID on the grounds that the deceased lacked testamentary capacity, did not have knowledge of or approve the contents of the will, and that the will was procured by undue influence exerted by Defendant 1 and Defendant 2.

The court rejected the claim that the will failed on grounds of fraudulent calumny. The direct consequence is that the will cannot stand as the valid testamentary disposition of the deceased's estate. No new precedent was established; the decision applies established legal principles to the specific facts of this case.