Mrs Bascoe died aged almost 97 on 29 August 2015, leaving a will dated 27 April 2005. In her will she left:
- £100 to her daughter Ms Johnson;
- £500 to her daughter Ms Smith (who died in 2017); and
- The residue to her son Mr Barnaby.
She had also had another son who died in 2004.
Her will was drafted by her solicitor, Mr Wynter. It appointed Mr Wynter and Mr Barnaby as her executors. She also included an explanatory note with her will to explain why she left such small legacies to her daughters saying:
"Both my daughters, Beverley and Patricia, have shown very little care and concern for me in my later years and in particular they have both been rude, unpleasant and in some instances physically violent and abusive towards me and have verbally expressed their lack of care and concern with such statements as 'you should be placed in a home and dead [sic] in there'. I therefore have no desire that they should benefit from my estate over and beyond the legacies I have made in this will."
Ms Johnson, challenged the will on the grounds of:
- a lack of testamentary capacity;
- a want of knowledge and approval
- undue influence; and
Case law background
Recent case law has increasingly found in favour of validity, particularly where the will has been professionally prepared. The courts’ view appears to be that experienced solicitors would not prepare a will for a person if they feel they did not have capacity or were concerned about their understanding of the same.
In Hawes v Burgess in 2013 the judge said it would be a “very strong thing” to find that the testator did not have capacity to make a will when it had been prepared by an experienced and independent solicitor and this precedent has been followed in subsequent cases.
The decision in this case
The test as to whether a person has the requisite capacity to make a will is well known and longstanding, comprehensively set out in the 1870 case of Banks v Goodfellow.
Under that test, the testator should understand:
- the nature of his act and its effect
- the extent of the property of which he is disposing; and
- the claims to which he ought to give effect.
And 4. must not have a disorder of the mind or insane delusion, which ultimately brings about a disposal of his property which he would not have made if he had been of sound mind.
Ms Johnson tried to argue that her mother suffered with dementia and had lost capacity in 2001, but she failed to provide any evidence. The medical records revealed:
- The family noted confusion in 2009;
- A diagnosis of vascular dementia in February 2009;
- Mrs Bascoe had capacity to make a lasting power of attorney in June 2011; and
- Mrs Bascoe was deemed not to have testamentary capacity in April 2012.
The solicitor’s evidence was that he had no doubt as to capacity.
The judge preferred the medical records and concluded that Ms Johnson had adduced no credible evidence to cast doubt upon it.
Again, Ms Johnson was not able to adduce any evidence, save for one incident in August 2009 where she alleged Mr Barnaby harmed his mother (which he denied) citing this as evidence that he was controlling her. There was no evidence of this incident either in her medical notes, with the police or from other family members, and there were no other examples of such behaviour on his part.
This therefore could not be sufficient evidence of undue influence (for which the burden of proof is higher and requires a judge to be ‘beyond reasonable doubt’) in respect of a will made some four years earlier, even if the judge felt he could be confident that the incident took place which he said he could not be, going so far as to say it was “highly improbable”.
Miss Johnson sought to argue that the signature on the will was not her mother’s. The attesting witnesses were colleagues of the drafting solicitor who confirmed the signatures were theirs and the will was duly executed with an attestation clause. Their evidence was therefore accepted.
Want of knowledge and approval
The judge also dismissed this claim as the solicitor’s evidence was that he saw the testatrix to give instructions alone, and he went through the terms with her ahead of execution being confident she understood it and she signed it in his offices with his colleagues as witnesses:
For the reasons outlined above Miss Johnson’s claims were dismissed outright.
In summing up, the judge concluded:
“The 2005 Will is rational and was read over by Mr Wynter to Mrs Bascoe who had testamentary capacity at the time. It was properly executed and the evidence of Mr Wynter, Miss Middleton-Albooye and Ms Watson cannot be impugned. Accordingly the strong presumptions in favour of validity are present.
Miss Johnson has come nowhere near establishing the basis for any proper challenge; there is no documentary evidence which supports her and in particular nothing from independent third parties especially in contemporaneous documentary form. Her evidence has been contradictory, self-serving and deliberately misleading. That of her witnesses does not assist her in any respect. I have no hesitation in finding for the Claimants.”
Lessons to be learned
Often in cases such as these more than one ground is pleaded because it is difficult for claimants to establish precisely what happened and because the facts overlap. However, there is a greater risk of failure in this approach i.e. in trying to prove one ground, the risk is that another is disproved. For example, in this case Miss Johnson tried to argue both that Mr Barnaby had forced their mother to make the will and on the other that the signature to it was not that of her mother. The danger in attempting to plead everything is that a claimant is seen to be trying to ‘make the facts fit’ which was the result in this case. Claimants are generally better advised to focus on the one or two grounds which are likely to have the best prospects of success.
As in Hawes v Burgess this case also serves as a salutary reminder that a will cannot be challenged simply on the basis of perceived unfairness, inequality as between siblings (or other beneficiaries) or just because the terms are not to the liking of a disappointed beneficiary. Testamentary freedom overrides. The court will require the strongest of evidence to find a will to be invalid and it is extremely difficult to succeed where the medical records and solicitors’ evidence are all supportive of validity.
Lastly, Ms Johnson brought the claim herself without legal representation. The case highlights the importance of taking legal advice. A specialist solicitor would have been able to conduct an unemotional review of the evidence and would probably have concluded at the outset, there was no prospect of success saving a good deal of time, heartache and costs for all involved. On the question of costs, if she were successful Ms Johnson would have received £10,000 under the terms of the earlier will. Whilst her own costs will be negligible because she represented herself, the usual rule is that the losing party pays the winner’s costs and it is not uncommon for costs in this sort of litigation to run to £100,000 - 150,000. The claim therefore had neither commercial nor legal merit, and so should never have been brought.
Originally written for Trusts and Estates Law and Tax Journal