A recent decision of Mark Herbert QC, sitting as a deputy High Court judge of the Chancery Division, dismissed a daughter’s claim to overturn her father’s will. The decision affirms the leading decision of Wharton v Bancroft [2011] EWHC 3250 (Ch) in cases based upon want of knowledge and approval.

The decision, reported as Re Devillebichot (Deceased) [2013] EWHC 2867 (Ch) was a dispute about the validity of a will made less than 2 weeks before the death of the Testator; François Devillebichot.

The Claimant, Chloe Brennan, was François’ sole but illegitimate daughter.

If the will was valid Chloe would share the estate with François’ four siblings. If the will was invalid Chloe would be the sole beneficiary of the estate.

Of the 5 main grounds upon which a will is usually challenged, Chloe raised a challenge on 4:

• Want of due execution
• Want of testamentary capacity
• Want of knowledge and approval
• Undue influence

Chloe’s belief, bordering on an expectation, was that she would inherit her father’s estate on his death; she claimed he had reassured her that her financial position would be secure. He had assisted her with her financial difficulties in the past but that financial support had stopped some years before the disputed will was executed.

It was accepted that François was also on good terms with his siblings although it seems he kept his relationships with Chloe and his siblings in separate silos. There was evidence that some of the defendants did not know of Chloe’s existence.

In December 2009 François underwent a laryngectomy and had his voice box removed. Thereafter he was only able to communicate at any length using written notes. Although a challenge on grounds of capacity was pleaded by Chloe, everyone agreed that although the Testator suffered with serious health issues including cancer he was intelligent, lucid and did not suffer from insanity or delusions.

The terms of the disputed will were simple:

• £100,000 to Chloe
• A specific legacy of a flat to the Testator’s sister
• Residue split ¼ to each of the Testator’s sisters

The approximate net value of the estate was £580,000.

Background to Drawing up the Will

François’ sister Anne took the lead from 2008 onwards to discuss with François drawing up a will for him and what its terms might be. Discussions were again had in 2009 and 2010 when Anne bought 3 will packs from a stationer – one for herself, one for her sister Jacqueline and one for François. At that time it was believed that François’ cancer would not return.

However on 7^th January 2011 François’ cancer was confirmed as terminal.

Anne’s account was that François indicated to her using gestures in answer to her questions about the terms of the will he wished to make. Her account was that François’ intentions corresponded with the terms (set out above) of the disputed will.

Challenge For Want of Due Execution

Readers will be familiar with the provisions of the Wills Act 1837 dealing with the execution of wills:

Section 9           Signing and attestation of wills

No will shall be valid unless—

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either—

(i)attests and signs the will; or

(ii)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.]

The draft will (filled in by Anne following François’ instructions with a standard form attestation clause) was presented to François while he was in hospital following an emergency admission. It was accepted that the two intended executors took François through the terms of the draft will in isolation from Anne and François’ other beneficiaries. Through a combination of broken speech, gestures and written notes François indicated his intention was that Chloe’s legacy would be £100,000. This was relayed back to Anne who filled in the blank space on the draft will with £100,000 before it was taken back to François to review and execute, witnessed by the two executor.

Chloe was not present at the time the will was executed, being at home in Oxfordshire.

Chloe does not rely on positive evidence of her own in regard to the circumstances in which the deputed will was or was not made…She relies instead on inference and some circumstantial evidence” paragraph 32

There is evidence of colossal distrust between the two sides, and it is evidence that the siblings for good reasons or none, treated Chloe with less consideration and respect than would normal be excepted towards their elder brother’s only child.” paragraph 33

However, the judge was satisfied the siblings’ evidence, while suffering from some minor and unimportant inconsistencies, was not dishonest or the result of a fraudulent conspiracy to uphold the will of which they were beneficiaries.

Challenge for Want of Testamentary Capacity

Evidence of a doctor was admitted as evidence as to François capacity. The doctor was not François’ GP, not a specialist in capacity issues or psychiatry nor was her attendance upon him anything to do with his will. Her sole visit was to discuss his wishes regarding his wishes regarding resuscitation. The doctor confirmed that she could be understood by François, he was lucid in what he did communicate to her and did not appear to have any difficulty hearing her in a normal register.

Chloe did not cross-examine the doctor and did not adduce contrary medical evidence of her own to support her contention that François lacked testamentary capacity.

Importantly, numerous hospital records in the period in which the will was executed refer consistently to François being ‘alert’ despite his ailment and frailty.

The judge concluded:

…François was capable of understanding that he was making a will, the extent and nature of his estate, and the persons having claims on his bounty…all of whom he mentioned in the disputed will.” Paragraph 57

Her [the doctor’s] evidence was consistent with the evidence of nearly all other witnesses and documentary evidence…he was not insane or suffering from delusions…he was intelligent, numerate, sophisticated, had adequate hearing and was capable of communicating…” Paragraph 52

Challenge for Want of Knowledge and Approval

Chloe sought to rely upon the case of Barry v Butlin that a party (i.e. François’ sister Anne in this case) who writes or prepares a will under which they take a benefit shouldexcite the suspicion of the Court.

Much has been written about the requirement of knowledge and approval – not all of it correct. A recent useful summery of the law (to which the judge referred) can be found in Wharton v Bancroft [2011] EWHC 3250 (Ch) paragraph 28:

(a) The assertion that the testator did not “know and approve” of the Will requires the Court, before admitting it to proof, to be satisfied that the testator understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.

(b) The burden lies on the propounder of the will to show that the testator knew and approved of the Will in that sense.

(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution.

(d) The Court of Appeal observed in Gill v Woodall [2011] Ch 380 that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.

(e) But proof of the reading over of a will does not necessarily establish “knowledge and approval”. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.

(f) The party challenging the will must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.

(g) It is not for the challenger to positively prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.

(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.

 The judge accepted that François knew and understood he was making a disposition of property that belonged to him and which he wished to give away on his death.

 While it is a separate requirement for validity, a positive finding of knowledge and approval is clearly helped by the cumulative effect of findings of capacity and due execution. In Woodall it was suggested by Neuberger MR that a will executed in such circumstance is not easily open to challenge.

The so called ‘Golden but tactless rule’ is not a rule of law but a rule of good practice. It was clearly not complied with in this case as no solicitor was engaged in the will drafting exercise. That was not fatal, looking at the matter in the round – including the history of the relationships between the testator and all the parties the judge concluded:

I do not regard it as irrational or suspicious that François had divided loyalties all his adult life, and recognised them at the last” paragraph 69

 

The highest that Chloe can genuinely put this part of her case is that there is no positive evidence that François appreciated…the effect that his will would have on Chloe herself…the law does not require a testator to be shown to have knowledge and approval of every effect and consequence of his will” paragraph 71

 Challenge for Undue influence

Undue influence is a notorious high hurdle to surmount, requiring ‘coercion’ or ‘pressure’ that overpowered the testator’s freedom of action. Mere persuasion is insufficient.

The burden is such that the evidence must support a conclusion that undue influence must be the only explanation for the resultant will rather than there being some other explanation.

While the judge was content to find that there were ample opportunity for and examples of influence, the threshold into undue influence was not crossed.

“I find persuasion but not coercion” paragraph 75

Conclusions

• While a Court will be suspicious of a will that appears to have been prepared by a beneficiary, where there are findings of testamentary capacity and due execution, it will be very difficult to mount a successful challenge on the ground of want of knowledge and approval.

• The impact of François’ decision to limit Chloe’s share of his estate to £100,000, was not a ground that could invalidate the will on any of the grounds raised. Reading between the lines, in circumstances where there had been a history of financial support to Chloe, including during period of her intermittent poor health and a suggestion of need, the judge was very careful not to make any finding that might prejudice a claim for want of reasonable provision under the Inheritance (Provision for Family and Dependants) Act 1975.