On 19 April 2018 Master Clark handed down Judgment in the above matter. The case centred around the Estate of Lily Rose Nutt (“Lily”) who died on 25 February 2013 aged 88.
Lily had three adult children: Christopher (73), Vivienne (71) and Colin (64). The older children (Christopher and Vivienne) sought an Order that the Will dated 2005 (the “2005 Will”) was Lily’s final valid Will. The 2005 Will split her Estate equally between the three children. Colin (the youngest child) argued that a later Will dated 7 April 2010 (“the 2010 Will”) in fact revoked the 2005 Will. The 2010 Will left Lily’s house to Colin. The house being the main Estate asset worth approximately £350,000.
Family background
Lily was born on 4 November 1924. She left school at 14 and went to work in Selfridges. In 1943 she married Christopher Richard Nutt who died in 1982.
Colin lived with his parents until May 1990. There was then little contact between him and his mother until 2003. In early 2004 Lily was diagnosed with Parkinsons Disease, in 2007 she suffered a heart attack and in 2008 developed Paget Disease (a bone weakening illness).
In the last decade of her life Lily received a lot of support from her family. Christopher and Vivienne argued that the children supported her equally. Colin maintained that he provided the majority of the assistance.
The issues
The main issues of the case were:
- The validity of the 2010 Will – did Lily sign it properly?
- If she did, did she have the requisite mental capacity?
- If so, did Lily know of and approve the contents of the 2010 Will?
- If so, was the signing of the 2010 Will procured by the undue influence of Colin?
Legal tests
Master Clark set out a useful summary of the applicable legal principles, which is a helpful reminder of the various tests to be satisfied:
- Requirements for signing of the Will
Section 9 of The Wills Act 1837 provides that: “no Will shall be valid unless –
- it is in writing, and signed by the Testator, or by some other person in his presence and by his direction; and
- it appears that the Testator intended by his signature to give effect to the Will; and
- the signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
- each witness either:
- attests and signs the Will; or
- acknowledges his signature,
in the presence of the Testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary”.
Testamentary capacity
Master Clark confirmed that the applicable test is that as set out in Banks v. Goodfellow (1869-70) LR 5 QB 5494:
“It is essential to the exercise of such a power that a Testator:
- Shall understand the nature of the act and its effect;
- Shall understand the extent of the property of which he is disposing;
- Shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object
- That no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”
In respect of the burden of proof:
- The burden is on the person seeking to propound the Will to establish capacity;
- Where a Will is properly executed and appears rational on its face then the Court will presume capacity;
- The evidential burden then falls upon the objector to raise a real doubt as to capacity;
- Once a real doubt arises the burden shifts to the propounder to establish capacity.
Knowledge and approval
Master Clark relied upon the one stage/holistic approach set out by Lord Neuberger in Gill v. Woodall which confirmed that the Court should: “Consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the Will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the Testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption”.
Undue influence
The law was summarised by Lewison J in Re Edwards [2007] EWHC 1119 (CH):
“There is no serious dispute about the law, the approach that I should adopt may be summarised as follows:
- In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
- Whether undue influence has procured the execution of a Will is therefore a question of fact;
- The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a Claimant bears in proving undue influence as vitiating a testamentary disposition;
- In this context undue influence means influence exercised either by coercion, in the sense that the testator’s Will must be overborne, or by fraud;
- Coercion is pressure that overpowers the volition without convincing the testator’s judgement. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgement, discretion or wishes, is enough to amount to coercion in this sense;
- The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case, simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness sake to do anything. A “drip drip” approach may be highly effective in sapping the will.
- The question is not whether the Court considers the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent”.
Master Clark’s findings
- The 2010 Will was properly signed by Lily;
- There was no evidence to raise a real doubt as to testamentary capacity. Lily had detailed conversations about the 2010 Will, which demonstrated that she had the necessary understanding to make a will;
- In the circumstances Master Clark found it to be inconceivable that Lily would not have read the 2010 Will and satisfied herself as to its contents before inviting witnesses to attest her signature;
- Christopher and Vivienne’s claim was not supported by any independent witnesses able to give evidence as to Lily’s testamentary wishes at the relevant time.
- There was insufficient evidence to establish undue influence. Instead it was found that Colin was “affectionate and attentive towards his mother; and not aggressive or dominating”.
- The 2010 Will itself provided an explanation as to Lily’s reasoning as it confirmed that Colin did not own his own house, but Christopher and Vivienne did. A further reason may have been that Colin was physically nearer to Lily and more available to provide help when needed.
- The 2010 Will was the valid Will.
Conclusion
Where the validity of a will is in dispute the Court will focus on the relevant period i.e. when the instructions for the preparation of the will were given and when the document was signed. Careful attention should be given to obtaining evidence from the relevant period.
The Court especially values the witness evidence of independent witnesses i.e. those who have no interest in the outcome of the proceedings. This is the type of witness evidence to concentrate on when preparing a case for trial.
Finally the Court is mindful that in a validity claim it is not for it to determine whether a will is justified or fair, but only to consider the evidence available and decide whether the document is valid.
