Judge: Vos J
Citation:  EWHC 1942 (Ch)
The claimants in this case sought an order decreeing probate of a will made by D in 2007. D died in 2010 at the age of 76 (having been divorced from her husband ten days earlier). She was survived by her two sons, N and A. A filed a defence asserting that all wills and codicils executed by D since 1980 were invalid on the grounds of lack of testamentary capacity, and that D therefore died intestate. He also alleged that D’s wills were written under undue influence from N. N was one of the main beneficiaries of the will D made in 2007, along with A’s three children.
On the facts of the case, Vos J had no difficulty finding that D had testamentary capacity in 2007. Applying the tests in Banks v Goodfellow (1870) LR 5 QB 549 he had no doubt on the evidence that D fully understood that she was making a will, the extent of her property, and the claims on her property to which she ought to give effect (paragraph 236). Vos J noted that the evidence of the solicitors, barristers, and doctors, and of the family members all pointed in one direction. He rejected A’s argument that D was rendered incapacitous by her mental state and medication and stated that “[D] never suffered from any mentally incapacitating complaint, even if she did experience occasional anxiety and mild depression. If people suffering from such complaints were unable to make wills, a large percentage of the population would be so inhibited.” Vos J similarly rejected A’s claim that N had subjected his mother to undue influence, describing this as simply false and wholly unsupported by any evidence (paragraph 248). The 2007 will was regularly executed under sound legal advice, and D plainly and obviously, on the evidence, knew of and approved its contents. Vos J considered that A was unable to accept that D had voluntarily and intentionally decided to disinherit him, as she clearly had. He directed that N and his wife be at liberty to take the grant of probate.
Comment: This case highlights the obvious hurdles confronting a party seeking to challenge testamentary capacity without objective evidence to support their case. It also demonstrates the difficulties that face judges hearing complex cases where parties are unrepresented, as A was in this case. Although Vos J ultimately concluded that A’s claims were entirely without foundation, he anxiously scrutinised each and every argument he raised in the course of his detailed judgment.