Factual and Procedural Background
The Claimants, the children of the deceased from his first marriage, challenge the validity of a will executed by the deceased in October 2015 ("the 2015 Will") and seek to admit an earlier will from 2007 ("the 2007 Will") to probate. The primary issues concern whether the deceased had testamentary capacity when executing the 2015 Will and whether he knew and approved its contents. The 2015 Will notably reduced the financial benefit to the Claimants compared to the 2007 Will, instead providing substantial benefits to the deceased's second wife and her family (the Defendants).
The 2015 Will was prepared over two years by a Chartered Tax Adviser without solicitor involvement or proper capacity checks, despite the deceased being in his early 80s and showing signs of cognitive decline. The Defendants assert the deceased had full testamentary freedom and capacity. The 2007 Will is to be admitted if the 2015 Will is invalid.
The deceased had a successful career, substantial wealth, and complex family relationships involving his children from his first marriage and his second wife and her family. Over time, he engaged in extensive financial and estate planning involving various professionals, including Barclays advisers and Ms Wells, the Chartered Tax Adviser who drafted the 2015 Will. The deceased was diagnosed with vascular dementia in 2015 and died in 2019. The estate is valued at approximately £5.4 million.
The procedural history includes late disclosure of documents by the Defendants, leading to trial delays and additional evidence. Both parties were represented by senior counsel at trial. The court heard extensive witness and expert evidence addressing the deceased's mental capacity, testamentary intentions, and the circumstances surrounding the making of the 2015 Will.
Legal Issues Presented
- Did the deceased have testamentary capacity at the time of executing the 2015 Will?
- Did the deceased know and approve the contents of the 2015 Will at the time of execution?
Arguments of the Parties
Claimants' Arguments
- The deceased lacked testamentary capacity when executing the 2015 Will due to dementia and cognitive decline.
- The deceased did not know or approve the contents of the 2015 Will, which contained errors and provisions inconsistent with his intentions.
- The 2015 Will was out of character, notably in its provision for the second wife's family at the expense of the deceased's own children.
- Ms Wells failed to comply with professional standards, including the "Golden Rule" requiring medical assessment of capacity for elderly or ill testators.
- Late disclosure of relevant documents impeded a full and fair trial.
Defendants' Arguments
- The deceased had testamentary capacity and full freedom to dispose of his estate as he wished.
- The 2015 Will reflected the deceased’s genuine intentions, including provision for his second wife and her family.
- The deceased understood the 2015 Will and approved its contents at execution.
- The rule in Parker v Felgate applies, preserving the validity of the 2015 Will because the deceased had capacity when giving instructions.
- The Claimants have not raised a real doubt about testamentary capacity.
- Some late-disclosed documents are of no assistance to the Claimants and should not affect the court’s decision.
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 involving understanding of the nature of the act, extent of property, claims on estate, and absence of mental disorder affecting will. |
Applied as the foundational test for assessing the deceased's testamentary capacity, divided into four limbs. |
| Sharp v Adam [2006] EWCA Civ 449 |
Reaffirmed Banks test and emphasized that irrational or inexplicable wills may indicate lack of capacity or knowledge and approval. |
Used to assess whether the 2015 Will was irrational and whether that raised doubt about capacity and knowledge and approval. |
| Simon v Byford [2014] EWCA Civ 280 |
Clarified distinction between testamentary capacity and knowledge and approval; emphasized holistic evaluation of evidence. |
Guided the court’s approach to evaluating evidence and distinguishing capacity from knowledge and approval. |
| Hughes v Pritchard [2022] Ch 339 |
Recent application and clarification of Banks test, including the separate nature of the fourth limb concerning disorder of mind affecting moral sense. |
Supported the court’s approach to the four limbs and the importance of evaluating rationality and moral faculties. |
| Hawes v Burgess [2013] EWCA Civ 19 |
Emphasized that professionally prepared wills are less likely to be successfully challenged; non-compliance with prudent procedures may reduce weight of evidence. |
Applied in assessing the weight to be given to Ms Wells’ involvement and the lack of solicitor oversight. |
| Fuller v Strum [2001] EWCA Civ 1879 |
Burden on propounder to prove knowledge and approval where circumstances excite suspicion; possibility of severing invalid parts of a will. |
Referenced in relation to burden of proof and knowledge and approval of the 2015 Will, including discussion of clause severance. |
| Parker v Felgate 8 PD 171 |
Rule preserving validity of a will if testator had capacity when giving instructions, will reflects those instructions, and testator understood execution. |
Considered and rejected by the court on the facts, as the 2015 Will did not fully reflect instructions and the deceased lacked capacity at relevant times. |
| Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) |
Guidance on the fallibility of memory and importance of contemporary documents over oral evidence. |
Applied in weighing contemporaneous documents more heavily than witness recollections. |
| Wrangle v Brunt [2021] EWHC 368 (Ch) |
Emphasized that contemporaneous documents are a better guide to truth than fallible oral testimony. |
Supported the court’s approach to evidence evaluation. |
| Martin v Kogan [2020] FSR 3 |
Supported holistic evaluation of evidence in capacity cases. |
Referenced to support the court’s methodology. |
| Hoff v Atherton [2004] EWCA Civ 1554 |
Clarified that capacity concerns ability to understand, not mere memory; relevant evidence may relate to events prior or subsequent to will execution. |
Guided the court’s understanding of capacity requirements and evidence scope. |
| Cowderoy v Cranfield [2011] EWHC 1616 (Ch) |
Confirmed that unfair or inexplicable wills may raise questions of capacity or knowledge and approval. |
Applied in assessing the 2015 Will’s provisions and their rationality. |
| Gill v Woodall [2011] Ch 380 |
Confirmed freedom of testamentary disposition; emphasized that knowledge and approval is a matter of proof where suspicion arises. |
Guided the court’s approach to knowledge and approval and capacity burden of proof. |
| Edkins v Hopkins [2016] EWHC 2542 (Ch) |
Holding that forgetting family members’ names does not necessarily negate testamentary capacity. |
Referenced in considering the deceased’s memory lapses and capacity. |
| Gardiner v Tabet [2021] EWHC 563 (Ch) |
Clarified the fourth limb of Banks test concerning disorder of mind affecting moral sense and testamentary disposition. |
Applied in analyzing whether the deceased’s dementia perverted his moral sense in making the 2015 Will. |
| Crerar v Crerar (1956) 106 LJ 694 |
Endorsed holistic evaluation of evidence to determine knowledge and approval. |
Supported the court’s approach to assessing knowledge and approval. |
| Mundil-Williams v Williams [2021] EWHC 586 (Ch) |
Discussed the court’s jurisdiction to admit a will with omission of words not reflecting testator’s intentions. |
Referenced in submissions on potential severance of clause 9(f) of the 2015 Will. |
Court's Reasoning and Analysis
The court conducted a comprehensive factual and evidential analysis, focusing on the deceased’s mental capacity and knowledge and approval of the 2015 Will. The court acknowledged the deceased’s intelligence, character, and affection for both families but found significant evidence of cognitive decline due to mixed vascular and Alzheimer’s dementia diagnosed in 2015, with symptoms evident from at least 2013.
The court scrutinized the extensive documentary evidence, including correspondence, drafts of wills, and medical reports, alongside witness and expert testimony. It found multiple indicators of memory lapses, confusion, and executive dysfunction impairing the deceased’s ability to understand complex matters. The deceased repeatedly showed difficulty comprehending the trust structures proposed by Ms Wells, failed to correct errors in draft wills, and demonstrated confusion about family relationships and asset values.
The court found Ms Wells’ professional involvement deficient, noting her failure to apply the "Golden Rule" of obtaining medical capacity assessments, her inadequate supervision, and her lack of solicitor qualifications. The court gave little weight to her assurances of the deceased’s capacity given these deficiencies and the absence of any meeting or explanation at the time of execution.
The court accepted that the deceased understood the general nature of making a will but concluded he lacked the ability to comprehend the complex provisions of the 2015 Will, including the trust arrangements, the revocation clause, and the hotchpot provisions—particularly those affecting his son’s inheritance of the US Property. The deceased’s failure to understand or act on requests for instructions regarding the US Property was significant.
The court rejected the Defendants’ reliance on the Parker v Felgate rule, finding that the deceased lacked capacity even at the time of giving instructions and that the 2015 Will did not fully reflect those instructions. The court also rejected the argument that the 2015 Will could be saved by severing problematic provisions, finding the will’s inconsistencies and omissions too extensive.
The court emphasized the distinction between testamentary capacity and knowledge and approval, finding that the Defendants failed to prove on the balance of probabilities that the deceased knew and approved the contents of the 2015 Will. The circumstances, including the deceased’s age, dementia, the absence of professional guidance at execution, and the inconsistencies between instructions and the will’s terms, raised a well-grounded suspicion.
Ultimately, the court applied the four limbs of the Banks test transaction-specifically to the 2015 Will, concluding that:
- The deceased understood the act of making a will but not its complex nature and effect;
- He had a general idea of his property but showed memory lapses and confusion;
- He comprehended the moral claims generally but was unable to appreciate the detailed implications;
- He suffered a disorder of the mind (dementia) that perverted his moral sense, particularly in relation to his son’s inheritance.
The court found that the deceased lacked testamentary capacity as at 28 October 2015 and did not know or approve the contents of the 2015 Will.
Holding and Implications
The court’s final decision is to pronounce in favour of the 2007 Will and against the validity of the 2015 Will, thereby DISPOSING OF the challenge to the earlier will.
The direct effect is that the 2007 Will stands as the deceased’s last valid testamentary disposition, with the 2015 Will excluded from probate. The decision does not create new precedent but reaffirms established principles regarding testamentary capacity, knowledge and approval, and the evidential approach required in complex cases involving cognitive decline. The judgment also highlights the importance of professional diligence in will preparation and the need for medical assessment in cases of potential incapacity.
The court expressed regret at the divisive nature of the proceedings and encouraged the parties to seek agreement on the order if possible.