Factual and Procedural Background
This judgment concerns a probate claim about the estate of the deceased, who died on 13 April 2017. The parties are the three adult children of the deceased: the Plaintiff (the claimant), Defendant (the first defendant) and Defendant (neutral party) (the second defendant). The Plaintiff seeks to propound a will dated 12 June 2014. The Defendant originally defended the claim and counterclaimed to propound an earlier will dated 9 May 1984. The second defendant was neutral and did not actively contest the trial, but provided a witness statement and gave evidence supporting the Plaintiff.
A procedural issue arose at a pre-trial review concerning the capacity of one of the beneficiaries under the will trust (an adult referred to in the hearing materials as having autism). Because of timing and difficulty in obtaining a capacity report, the court directed that notices under the Civil Procedure Rules be served on the trustees of the will trust rather than on that individual. Notices were served on the Plaintiff and another beneficiary named in the 2014 will, who had been made trustees.
On the live pleadings the first Defendant challenged validity of the 2014 will on four bases: lack of testamentary capacity, want of knowledge and approval, undue influence by the wills consultant who took instructions, and loss of the original will (seeking admission of the 1984 will). During the proceedings, the Defendant accepted the expert report of a single joint expert on testamentary capacity and abandoned or became neutral on several of those challenges. The Plaintiff applied for letters of administration with the copy will annexed, limited pending discovery of the original.
Legal Issues Presented
- Whether the deceased had testamentary capacity when executing the 2014 will (the Banks v Goodfellow test).
- Whether the deceased knew and approved the contents of the 2014 will (knowledge and approval; presumption where due execution and capacity are shown).
- Whether the 2014 will was procured by undue influence (probate doctrine distinct from inter vivos undue influence).
- What consequence follows from the original 2014 will being lost after death — whether there is a presumption of revocation by destruction and whether probate can proceed on a copy or reconstruction.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff relied on the unchallenged expert report of a single joint expert (a consultant psychiatrist) to establish that the deceased had testamentary capacity when the 2014 will was executed.
- Given capacity and due execution, the Plaintiff submitted that the presumption of knowledge and approval of the will's contents arises and had not been rebutted.
- The Plaintiff argued that the original 2014 will had been in the possession of Company A (the will-writing firm), then Company B (the nominated executor), and subsequently was sent to the probate registry as part of an application for probate; the probate registry had confirmed holding the will in January 2023, so there is no presumption that the deceased destroyed it with intent to revoke.
- The Plaintiff sought a grant in solemn form of letters of administration with the copy will annexed, limited until the original is found, and offered (through counsel) to instruct local solicitors to extract and administer the grant despite living abroad.
Defendant's Arguments
- On the pleadings the Defendant had asserted lack of testamentary capacity, want of knowledge and approval, undue influence by the wills consultant, and that the earlier 1984 will should be admitted because the later original could not be produced.
- By the time of trial the Defendant accepted the single joint expert's opinion on capacity and therefore became neutral on the issues of capacity and knowledge and approval; the Defendant did not pursue a positive case of undue influence and accepted that the original 2014 will might have been lost after death and did not rely on the presumption of revocation by the deceased.
- In submissions the Defendant indicated a wish that, because the original could not be found, the earlier (1984) will should be admitted, but did not pursue the presumption that the deceased had destroyed the later will.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Banks v Goodfellow (1870) LR 5 QB 549 |
The classic legal test for testamentary capacity (understand nature/effects of act; know extent of property; comprehend claims to which one ought to give effect; absence of insane delusion). |
The court applied the Banks test as the governing standard for testamentary capacity and found, on the expert evidence, that the deceased met that test when executing the 2014 will. |
| Re Clitheroe [2021] EWHC 1102 (Ch) |
Confirmation that the Banks test remains the legal standard and is not displaced by the Mental Capacity Act 2005. |
Referenced to confirm that statutory capacity law did not alter the common law Banks test; used as background authority for applying Banks. |
| Re Belliss (1929) 141 LT 245 |
Illustration that mere mistake of fact does not negate testamentary capacity; capacity should not be set at too high a level. |
Used to support the court's approach that limited memory or errors do not necessarily undermine capacity. |
| Simon v Byford [2014] EWCA Civ 280 |
Observation that capacity depends on the potential to understand and is not equivalent to a test of memory. |
Cited to reinforce the correct approach to assessing testamentary capacity (focus on understanding rather than flawless memory). |
| Reeves v Drew [2022] EWHC 159 (Ch) |
Law on want of knowledge and approval: propounder must prove testator knew and approved contents; if capacity and due execution proved, presumption of knowledge and approval arises; suspicious circumstances may require affirmative proof. |
The court applied the presumption of knowledge and approval because capacity and due execution were established and no evidence was produced to rebut the presumption. |
| Edwards v Edwards [2007] WTLR 1387 |
Definition/distinction of coercion (probate undue influence): coercion overpowers the volition; distinguished from persuasion or appeals to affection. |
Used to explain the probate doctrine of undue influence and to note that the Defendant did not pursue such a coercion case at trial. |
| Wildmore v Wildmore (1938) 185 LT Jo 297 |
That probate may be obtained for a reconstructed or copy will where the original is destroyed after death (illustrative authority). |
Cited to support the proposition that loss of an original will does not necessarily prevent admission to probate and that reconstruction or admission of a copy can be possible. |
| Welch v Phillips (1836) 1 Moo PC 299 |
Where a will is last traced into the testator's possession and not forthcoming after death following reasonable search, there is a presumption of revocation by destruction (but it is rebuttable). |
The court acknowledged the presumption but found it inapplicable where evidence showed the original left the deceased's possession and was in the possession of third parties and later lost by the probate registry. |
| Re Edwards [2007] EWHC 1119 (Ch) |
Authorities on the burden of proof for undue influence in probate cases (it falls on the party alleging it). |
Quoted to explain that, because the Defendant did not pursue undue influence, that issue fell away. |
| Sherrington v Sherrington [2005] EWCA Civ 326 |
Illustration regarding the presumption of knowledge and approval (referenced as an example on the presumption). |
Cited as an example supporting the court's statement on the presumption in relation to knowledge and approval. |
| Non-Contentious Probate Rules 1987, rule 54 |
Procedural provision permitting admission to probate of a copy will where the original is unavailable. |
The court relied on the principle that mere loss of an original will does not prevent a grant and that a copy or reconstruction may be admitted. |
| Wills Act 1837, section 20 |
Statute addressing revocation of a will by destruction by the testator with intent to revoke. |
Referenced to explain the law that destruction by the maker with intent revokes a will; the court considered whether the presumption of such destruction applied and concluded it did not on the evidence. |
| Cotham School v Bristol City Council [2024] EWHC 154 (Ch) |
Procedural point about a party filing duplicate procedural forms when already a party (example cited by the court). |
Referenced briefly by the judge when noting a technical irregularity about the Plaintiff filing an acknowledgement of service while already a party; the point was not determinative for the outcome. |
Court's Reasoning and Analysis
The court proceeded by identifying the relevant legal principles and applying them to the evidence adduced at trial.
On testamentary capacity, the court applied the Banks v Goodfellow test. The court accepted the unchallenged expert report of the single joint expert (Attorney Burns) who concluded, on the balance of probabilities and applying the Banks criteria, that the deceased had capacity when instructing and signing the 2014 will. The expert acknowledged the presence of early-stage dementia due to cerebrovascular disease but concluded the symptoms were not sufficiently severe at the time to affect testamentary capacity; there was no evidence of an insane delusion or confusion around execution. On that basis the court found that the deceased had capacity when the 2014 will was executed.
Having found capacity and that the will had been duly executed in accordance with the Wills Act formalities (an attestation clause and two witnesses), the court held that the presumption of knowledge and approval applied. The court noted the legal position that if capacity and due execution are proved, knowledge and approval are presumed, though suspicious circumstances may require affirmative proof; no evidence was presented to rebut the presumption here and the first Defendant had become neutral on that issue.
The court addressed undue influence by explaining the probate doctrine (distinguishing coercion from legitimate persuasion). The Defendant did not pursue a positive case of undue influence at trial and the court observed that the original allegation, especially as directed at a professional, was unparticularised and should not have been made in that form. Because the allegation was not pressed and no evidence supported it, the court did not rely on undue influence in its decision.
On the loss of the original will, the court found on the evidence that the original 2014 will had left the deceased's possession and had been in the custody of Company A, Company B and their solicitors, and had been sent to the probate registry as part of an earlier application. The probate registry had apparently confirmed possession of the original in January 2023 but later stated it only held a copy; no explanation was given. The court concluded that the registry had the original in 2023 and had since lost it. Given that finding, and the absence of evidence that the deceased herself destroyed the will with intent to revoke, the presumption of revocation by destruction (Welch v Phillips) did not apply. The court therefore accepted that the mere absence of the original did not preclude a grant (Non-Contentious Probate Rules and Wildmore).
Taking these elements together, the court concluded that the Plaintiff had proved the necessary matters to propound the 2014 will on the evidence before the court and that probate should issue in the form sought, subject to a limitation while the original remains missing.
Holding and Implications
Holding: The claim succeeded. The court ordered that a grant issue to the Plaintiff of letters of administration with the copy of the 12 June 2014 will annexed, limited until such time as the original will is found. The core ruling may be stated as: GRANT TO ISSUE TO THE PLAINTIFF: letters of administration with the copy will annexed (limited pending discovery of the original).
Implications:
- Direct effect: The Plaintiff will receive a grant in solemn form limited as above; the 2014 will will be treated as propounded unless and until the original is produced or new evidence alters the position.
- The Defendant's challenges on capacity, knowledge and approval, undue influence and revocation were either not pursued or not established at trial; the court accepted the single joint expert's conclusion on capacity and found no basis to displace the presumption of knowledge and approval.
- No broader or novel precedent was established by this decision; the court applied established principles (Banks test for capacity; presumption of knowledge and approval; law on lost originals and revocation) to the particular facts. The judgment is principally fact-driven and confirms established authorities rather than creating new legal rules.
The summary above is confined to the matters addressed in the provided opinion. Where the opinion did not provide detailed argument or factual material on a particular point, that omission is reflected in the corresponding section of this summary.