Mrs Bascoe died aged 97 in 2015 leaving a will made in 2005 in which she left £100 to her daughter Ms Johnson and the residue to her son Mr Barnaby. A solicitor made her will, and she left a note explaining her lack of provision for Ms Johnson, which she attributed a lack of care and concern and rudeness and unpleasant treatment towards her. Ms Johnson sought to challenge the will on all possible grounds being a lack of testamentary capacity, want of knowledge and approval, undue influence and forgery.
She was unsuccessful on every ground.
In summing up, the Judge concluded:
"The 2005 Will is rational' and, having been validly executed, '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."
Often in cases such as these more than one ground is pleaded because it is difficult for people 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, Ms 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 person trying to contest a will is trying to 'make the facts fit', which resulted in this case. People looking to dispute a will are generally better advised to focus on one or two grounds that are likely to have the best prospects of success.
This case also serves as a salutary reminder that a will cannot be challenged simply based on 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 most substantial evidence to find a will to be invalid. It is extremely difficult to succeed where the medical records and solicitors' evidence are all supportive of validity. Case law has historically found it to be 'a very strong thing' to overturn a will which has been professionally prepared. This remains the trend.
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.
While her costs would 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.
There were two other significant will validity cases in 2020 concerning testamentary capacity.
Goss-Custard v Templeman & Ors  EWHC 632 (Ch)
Lord Templeman was a very well renowned member of the judiciary, and his legacy in respect of private client law continues to dictate best practice today. Lord Templeman is particularly known for his advent of the "golden rule" surrounding testamentary capacity. Despite this history, ironically, after he died in 2014, there was a dispute over his own will. The root of the argument was whether Lord Templeman had testamentary capacity when he made his will in 2008.
Lord Templeman started to experience memory problems so far back as 2006, but he was never tested for, and therefore diagnosed with, any problems. His condition deteriorated over the remaining years of his life. He made his will in 2008. Expert evidence given to the court suggested that, despite the anecdotal evidence that Lord Templeman may have struggled with some elements of recall around the time, his short-term memory problems did not mean he did not have sufficient testamentary capacity.
Lord Templeman's Will was professionally prepared, and his solicitor recorded that he had no concerns about his client's capacity. The Golden Rule was, however, not followed. This is "that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings". The family sought to argue the fact that Lord Templeman had not ensured his own rule was followed, when he made his new will at age 88, was evidence of his own lack of capacity.
This was given short shrift by the Judge who confirmed that a failure to follow the rule is not automatic evidence of a lack of capacity and that people who are able to give advice to others do not always need to follow it themselves, particularly in cases where they do not consider that they need to.
This case is also of interest to professional practitioners because of the personalities involved. Contentious probate disputes, by their very nature, are emotionally charged and can escalate, often beyond proportion to the value in the estate. Lord Templeman was an eminent and distinguished member of the legal community, and his son who brought the dispute was also a retired barrister. This goes to show that, even in legally minded families, disputes can and do arise.
Clitheroe v Bond  EWHC 1185 (Ch)
Jean Clitheroe had three children, Debra, Susan and John. In 2009, Debra died of cancer. Jean was deeply affected by Debra's illness and death and, "took to her bed" on Debra's death and remained bedridden until her death in 2017.
Jean made two wills in similar terms, one in 2010 and another in 2013 and, in both, John inherited the residuary estate. Susan did not receive any significant benefit under the terms of either of these wills. The reason that Jean gave to her solicitor for this decision was that she considered Susan to be a shopaholic and a spendthrift and she felt she would squander her inheritance.
Susan sought to claim her mother lacked testamentary capacity as she was suffering from a complex grief reaction due to Debra's illness and untimely death in 2009 causing her to form insane delusions regarding Susan and otherwise poisoning her mind against her.
The court applied the principle recognised in Key v Key  that an affective disorder, such as a complex grief reaction, can impair a person's capacity. The court also considered the meaning of an insane delusion in relation to the test laid down in Banks v Goodfellow. The court held that the 2010 and 2013 Wills were invalid on the basis of a lack of testamentary capacity and that Jean had therefore died intestate. This meant that Jean's estate would be equally divided between John and Susan as her two surviving children.
This is an interesting case for both contentious probate solicitors and private client solicitors as a reminder of the importance of their evidence.
In this case, the will drafting solicitor had not attempted to take instructions from Jean in person, and John had been involved throughout the process and knew of the content of the wills, and no professional opinion had been obtained as to capacity. The courts were critical. Practitioners have to be particularly careful when clients have recently suffered a bereavement and err on the side of caution and obtain an opinion about capacity if there is any doubt whatsoever or where potentially contentious instructions are given.