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(p. 70) 4. Making a Will: Capacity and Intention 

(p. 70) 4. Making a Will: Capacity and Intention
Chapter:
(p. 70) 4. Making a Will: Capacity and Intention
Author(s):

Brian Sloan

DOI:
10.1093/he/9780198757924.003.0004

Note: An update has been made available on the Online Resource Centre (August 2017).

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In order to make a valid will a testator must have the capacity (4.1) and intention (4.2) to make a will. Moreover, the required formalities must be satisfied (the subject of Chapter 5).

4.1 Capacity to make a will

To have capacity means that a person is legally competent to make a will. What makes a person competent to make a will? First, the testator must have attained the required minimum age and, secondly, he must possess the necessary level of mental competence.

4.1.1 Age

Section 7 of the Wills Act 1837 (as amended) provides that ‘no will made by any person under the age of 18 years shall be valid’ (under the original s. 7 the relevant age was 21). The current minimum of 18 years was introduced by the Family Law Reform Act 1969 and applies to wills made after 1969. A number of common law jurisdictions do allow minors to make wills, if married, or even if they are contemplating marriage to a particular person.

Should there be a maximum age limit? Given the importance of will-making, the idea of having an upper age limit may have some point. Many aged testators may be somewhat confused in their thinking, even though they satisfy the relatively undemanding test of mental competence necessary to make a valid will (see 4.1.2). Should such testators have an unrestricted right to make a will? It would be difficult to suggest any particular age as a dividing line. Admittedly, statute has done precisely that at the other end of the age-scale, but there is a difference: whereas there is an element of consensus as to when minors reach an age at which they can generally be regarded as sufficiently mature and responsible, no such consensus is likely as to when old age begins to diminish mental faculties. A possible compromise, however, is to require persons of a certain age—say 80 or over—to acquire a doctor’s certificate as to their mental competence in order to make a will, something that already happens in practice in many cases (but without the element of compulsion). Thus old age would not be a bar per se but would put the onus on aged testators to demonstrate a basic level of mental fitness to make a will. But (p. 71) then exceptions would be necessary to cater for emergency situations and death-bed wills.

There is an important exception to s. 7 of the Wills Act 1837: persons who are in actual military service or who are seamen at sea are entitled to make a will below the age of 18 (see 10.1.1).

4.1.2 Mental competence

4.1.2.1 The Banks v Goodfellow test

The classic exposition of the degree of mental competence required to make a will in English law is contained in Banks v Goodfellow (1870) LR 5 QB 549, at 565 per Cockburn CJ:

It is essential … that a testator shall understand the nature of the act and its effects; 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.

The Mental Capacity Act 2005 contains a test for capacity applicable for various purposes, and it was thought by some that this was broadly similar to the Banks v Goodfellow test and could safely be applied as an alternative. It was nevertheless held in Re Walker [2014] EWHC 71 (Ch) that there were important differences between the two tests and that the statutory one was not intended to apply when a potential testator’s capacity was being retrospectively assessed during probate proceedings. This meant that ‘the correct and only test for testamentary capacity, where what is in issue is the validity of the will executed by the deceased, is the common law test set out in Banks’ (para. 50). In the slightly earlier decision in Fischer v Diffley [2013] EWHC 4567 (Ch), however, the 2005 Act was regarded as having supplemented the common law test, and P. Reed, ‘Capacity and Want of Knowledge and Approval’ in B. Häcker and C. Mitchell (eds), Current Issues in Succession Law (2016) has suggested that inconsistency between the test for capacity applied retrospectively and that used to determine whether a statutory will should be made for someone who is still alive (see 10.1.2) is undesirable.

The Banks v Goodfellow test is a working guide: no test could be expected to do more in as complicated an area as that of the functioning of the human mind. It is important to note that (for present purposes) the court is concerned with capacity to understand relevant matters rather than actual understanding (Hoff v Atherton [2004] EWCA Civ 1554). It appears that the Banks-competent testator must possess a ‘sound and disposing mind and memory’. That requires four criteria to be satisfied. According to Cockburn CJ at 565–67, unless otherwise stated, the testator must:

  1. (a) ‘understand the nature of the act and its effects’: the testator must understand ‘the nature of the business in which he is engaged’. Thus he must be aware that he is engaged in a testamentary act, i.e. expressing wishes—normally concerning the disposition of property—that will take (p. 72) effect on his death. It is a broad understanding that is required of the testator: he need not view the will ‘with the eye of a lawyer’.

  2. (b) ‘understand the extent of the property of which he is disposing’: the testator must have ‘a recollection of the property he means to dispose of’. Again, it is a general awareness that is required: the testator need not recollect every item of his property. In Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263, a case concerning the lengthy will of a wealthy but illiterate testator, Coleridge J stated (at p. 276) that ‘a specific and accurate knowledge of every atom of his property’ was not required of the testator but that ‘he ought to know generally the state of his property and what it consists of’. The required level of recollection will depend on the circumstances: a testator with extensive proprietary assets may be expected to have the awareness appropriate to the amount of property that he owns.

  3. (c) ‘comprehend and appreciate the claims to which he ought to give effect’: the testator must recollect ‘the persons who are the objects of his bounty’. Thus the testator must at least be aware of the existence of persons who might be considered to have a moral claim on his estate—whether relatives or friends—even if he chooses not to benefit them. In Harwood v Baker (1840) 3 Moo PC 282, 13 ER 117, the testator appears to have suffered a stroke after visiting the Bank of England. A few days later he executed a will shortly before he died in which he left all his property to his wife, thus excluding a number of relatives. The will was held to be invalid because the testator, in the opinion of the court, was too ill to give sufficient consideration to the potential claims of his relatives. Erskine J stated (at p. 120) that the question before the court was whether the testator was capable of recollecting who were his relatives, of understanding ‘their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property’. The case is not authority, however, for saying that testators must engage in a careful exercise of recollecting all their relatives and friends in order to make a valid will. Capacity is ‘not to be equated with a test of memory’ (Simon v Byford [2014] EWCA Civ 280, para. 40). The testator must, however, have a recollection of ‘the manner’ in which the property is to be distributed between ‘the objects of his bounty’. It is not altogether clear what ‘manner’ comprises, but most probably it refers to the division of the testator’s estate: he must be broadly aware of how he has shared out his estate. That may require an understanding of the closeness of his ties with potential beneficiaries and the nature of their claims: Boughton v Knight (1873) LR P & D 64. In that case Hannen J stated (at pp. 65–6) that apart from the need to recall ‘fitting objects of the testator’s bounty’, a testator had to have ‘an understanding to comprehend their relationship to himself and their claim upon him’.

  4. (d) be in a position whereby ‘no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—… 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’. This has been interpreted as a separate requirement to (c) above: Kostic v Chaplin [2007] EWHC 2298 (Ch). In (p. 73) Sharp v Adam [2006] EWCA Civ 449, while the testator ‘understood that everyone would expect him to include his daughters as beneficiaries under the will; that they would be disappointed and hurt if he did not; that people would find this surprising; and … with this understanding … clearly communicated a decision not to include them as beneficiaries’, the Court of Appeal upheld the judge’s conclusion that the testator’s natural affection towards his daughters had been poisoned by the effects of severely debilitating progressive multiple sclerosis.

According to Re Key [2010] EWHC 408 (Ch), para. 95, ‘[w]ithout in any way detracting from the continuing authority of Banks v Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision-making’, which in the case at hand was found to include the effects of bereavement. Lack of testamentary capacity is now regarded as broadly arising from two grounds: firstly, failure of the mind to develop sufficiently to entertain the notion of making a will, as for example in persons born with very limited mental capacity; and secondly, where there is mental impairment. The latter may be present for a variety of reasons, encompassing dementia, delirium, physical illness, and psychosis. Of these, dementia is by far the most common, and a frequent ground for probate actions. It is a disease in the brain associated particularly with older people, the chief manifestation of which is memory disorder. The causes of dementia are manifold but Alzheimer’s disease and Parkinson’s disease underlie a significant proportion of cases (see J. Ross-Martyn and N. Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 20th edn (2013), paras. 13-05–13-16). It should be emphasised, however, that evidence that the testator was suffering from dementia at the time of the will’s execution is not in itself sufficient to lead to a finding of lack of capacity. In Ewing v Bennett [2001] WTLR 249 the testatrix executed her will when she was in the early stages of dementia (periodic forgetfulness being the main problem). Her mental condition deteriorated rapidly thereafter but this was strictly irrelevant to the question whether she had capacity at the time of the execution. The Court of Appeal upheld the will.

Although the test in Banks v Goodfellow may now be regarded as somewhat one-dimensional, the courts continue to regard the test as the indicator of the level of mental competence required. Despite the age of the Banks test, the Court of Appeal in Sharp v Adam [2006] EWCA Civ 449, para. 82 did ‘not consider on reflection that the Banks v Goodfellow formulation needs to be reformulated’, and J. Brook, ‘The Neighbour, the Carer and the Old Friend—The Complex World of Testamentary Capacity’ in H. Conway and R. Hickey (eds), Modern Studies in Property Law (forthcoming, 2017) argues that its complexity is useful in evaluating the circumstances of even modern cases. In Wood v Smith [1993] Ch 90, CA, the testator made a will two days before he died. He was aged 82 and had been transferred to hospital following a serious accident in his home. There was compelling evidence—especially from a solicitor who had visited the testator shortly before the latter died—that the testator was confused and incoherent. The court held that the onus of establishing testamentary capacity had not been discharged: there was insufficient evidence that the testator was able to comprehend the extent of his property or the nature of (p. 74) the claims of those he was excluding. On the other hand, not every form of mental illness will be fatal to testamentary capacity, as Banks v Goodfellow made clear. For example, in Brown v Pourau [1995] 1 NZLR 352, the testatrix’s will was upheld even though she was occasionally subject to trances in which, believing that a Maori curse had been placed on her, she talked to ‘the spirits’ and ‘the fairies’.

Whether a testator is Banks-competent may depend on the level of complexity of a will. Consider In the Estate of Park [1953] P 112, CA, where the testator was aged 78 and in very poor health. He had been seriously affected by two strokes so that he was unable to look after his financial affairs—he had previously been a successful businessman—and became forgetful and occasionally confused. Eventually he decided that he wanted to marry the cashier at his club, whom he scarcely knew. When he informed his chauffeur of his intentions the latter responded: ‘Well, I don’t think you even know the lady yet, sir.’ But the testator was not to be discouraged and three weeks later the couple married at Kensington register office. The testator executed a new will at the reception following the wedding—an unusual form of diversion at such gatherings. He died some days later. The will, a complicated one, was held to be invalid on the grounds of lack of mental competence (although the marriage was upheld). The Court of Appeal drew a distinction between simple and complicated wills, implying that the mental competence required would differ accordingly. The simplicity of the will in Hoff v Atherton was one factor invoked to justify its being upheld.

4.1.2.2 A testator can be capricious

It is not a rule of English law that a testator must make a sensible will. As long as the Banks v Goodfellow test is satisfied a testator can make a will that is eccentric, or lacking in judgment. As Hannen J said in Boughton v Knight, ‘the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives’ (at p. 66). Similarly, in Bird v Luckie (1850) 8 Hare 301; 68 ER 375, Knight Bruce VC described the position thus (at p. 378):

no man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise, or the good. A testator is permitted to be capricious and improvident, and is, moreover, at liberty to conceal the circumstances and the motives by which he had been actuated in his dispositions. Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.

There are numerous examples of capricious and eccentric testators in English law. Shakespeare notoriously left his wife his ‘second-best bed’ in the will traditionally attributed to him. Some regard a will as an opportunity to express strong feelings. For example, the will of Henry, Earl of Stafford—who accompanied James II into exile—described his wife as ‘the worst of women’ and guilty of ‘all crimes’. He left her ‘five and forty brass halfpence, which will buy a pullet for her supper’. One will provided ‘To my son William one shilling and I hope he burns his fingers with it’ (for these and other examples see J. Turing, (1982) 79 LSG 1361).

Although eccentricity, caprice, or foolishness are not in themselves fatal to a will, they are nevertheless best avoided. Apart from the considerable anxiety that such (p. 75) wills may cause to family and friends, their validity will be more difficult to establish. As it was put in Cowderoy v Cranfield [2011] EWHC 1616 (Ch), para. 133, ‘if the provisions of a will are surprising, that may be material to the court’s assessment of whether the testator did have capacity’. The propounders may have the onus of establishing the mental competence of the testator who has made a capricious will: it is less likely that they will be able to rely on the presumption—applicable to rational wills—that the testator was mentally competent (see 4.1.2.5). Furthermore, even if formally valid, the capricious will may be more easily challenged under the Inheritance (Provision for Family and Dependants) Act 1975 on the grounds that it does not make reasonable provision for the applicant. That said, a testator is in prima facie perfectly free to prefer inter alia non-family members to whom he or she became close (Blackman v Man [2007] EWHC 3162 (Ch)) over members of his or her family, however disappointed those family members might be.

4.1.2.3 Delusions

A will may be invalid if it was made while the testator was suffering from a delusion. What is a delusion? It is an irrational belief which cannot be eradicated by rational argument. In Dew v Clark (1826) 3 Add 79; 162 ER 410, Nicholl J described a delusion as follows (at p. 414):

Wherever the patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination; and wherever, at the same time, having once so conceived, he is incapable of being, or at least of being permanently, reasoned out of that conception; such a patient is said to be under a delusion.

It is not every delusion that will negate testamentary capacity, only those that influence a testator in making the provisions of his will and prevent him from being Banks-competent. In Dew v Clark the testator gave his daughter, his only child, a small gift out of his large estate. He treated her with great cruelty in her youth and appears to have formed an irrational aversion to her, describing her inter alia as ‘a fiend, a monster, Satan’s special property’ and ‘a very devil’. The evidence suggested, however, that the daughter was of exemplary character. It was held that the will was invalid since the meagre provision for the daughter was clearly influenced by the testator’s delusion. Similarly, in Boughton v Knight (above) a will which left the bulk of the estate to virtual strangers was held invalid because of the testator’s insane dislike of his sons. These cases do not decide that a testator cannot disinherit his children. He can do so—he can even be capricious—provided that he is not acting under a delusion. Thus, if the daughter in Dew v Clark really had been as the testator imagined her to be, the will would have been valid.

A variety of interesting delusions can be found in the reports. In Waring v Waring (1848) 6 Moo PC 341, 13 ER 715, the testatrix had a multitude of delusions, the most extraordinary of which was that the then Prime Minister used to visit her house, disguised as a fish-pedlar, in order to have ‘an improper connection’ with her. In Smee v Smee (1879) 5 P & D 84, a testator believed that he was the son of George IV and that his father had defrauded him to the advantage of his brothers by preventing him from benefiting from a trust fund. In his wills the testator excluded his brothers from any benefit. In directing the jury, Hannen P stated (p. 76) (at p. 92) that the verdict should be against the will ‘unless your minds are satisfied that there is no reasonable connection between the delusion and the bequests in the wills’. The jury found against the will. In Battan Singh v Amirchand [1948] 1 All ER 152, PC, the testator made a will in which he declared that he had no relatives; he left his property to two friends. He was in the last stages of tuberculosis and died the following day. His statement was incorrect: he had four nephews to whom he had left his property in a will made only five weeks earlier. The Privy Council found against the last will since it was ‘the product of a man so enfeebled by disease as to be without sound mind or memory at the time of execution and that the disposition of his property under it was the outcome of the delusion touching his nephews’ existence’ (pp. 156–7). In Re Nightingale (1974) 119 SJ 189, a testator who was dying from cancer cut out his adopted son—the principal beneficiary under his previous will—from his second will. There was evidence that during the six weeks between the execution of the two wills there were two occasions on which the testator tried to sit up in bed while struggling for breath. On each occasion the son had pushed him gently back onto his pillows. The court pronounced against the later will on the ground that most probably the father made it while under the delusion that the son was trying to murder him (there was a paucity of evidence as to what the testator really thought).

Perhaps the most remarkable case of all is Smith v Tebbitt (1867) 1 P & D 398. The testatrix left the bulk of her huge estate to a Dr Smith, her doctor, and comparatively little to her sister, her only next-of-kin. The testatrix suffered from monomania. She believed inter alia that she was part of the Holy Trinity—she was the Holy Ghost and Dr Smith was the Father; that she would give birth to the Saviour, for which event she provided baby-linen; that she was the Bride of Christ and the Virgin Mary; that she would one day possess Buckingham Palace and Windsor Castle; that the final judgment would take place in her own drawing-room, with her sitting in judgement on her fellow creatures; that Dr Smith had at one time resurrected her, giving her a new body; and that her sister was ‘a child of the devil’ who would have ‘the hottest place in hell’ and whom the Father (i.e. Dr Smith) had told her to ‘cut off’. Not surprisingly the court held that the will was invalid as it had clearly been influenced by the delusions concerning Dr Smith and the testatrix’s sister.

A more modern (and slightly less outlandish) example of a delusion is provided by Kostic v Chaplin. There, Mr Kostic left his net estate of £8.2 million (before inheritance tax) to the Conservative Party Association in the hope that it would establish in memory of his father a cultural institution to promote ‘the Christian Democratic values of love, truth and freedom’. Unfortunately, he suffered from an untreated delusional disorder causing him to believe that ‘there was an international conspiracy of dark forces against him’, specifically ‘“an international sex-vice ring” which was trying to poison or drug him’ in which his son (the sole residuary beneficiary under earlier wills) was implicated. Henderson J held that Mr Kostic’s ‘natural affection for [his son] had been poisoned or distorted by his delusions to such an extent that he was wholly unable to dispose of his property in the way which he would have done if of sound mind’ (para. 208).

No matter how deluded a testator may be, he has capacity provided that the delusion did not affect the making of the will. In Banks v Goodfellow the testator left most of his estate to his niece who had lived with and cared for him. The testator (p. 77) was afflicted by two particular delusions: first, that he was being pursued by devils or evil spirits, and, secondly, that a man long dead ‘still pursued and molested him’. However, the testator was capable of managing his affairs—especially the leasing of his property in the Lake District—and had given sensible instructions about the drafting of his will. The court upheld the will, Cockburn CJ stating (at p. 566):

a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will.

The distinctions between caprice and delusion, or between delusions that affect testamentary capacity and those that do not, can in theory be easily drawn. In practice, however, the dividing line may be much more difficult to draw. As Fust J said in Mudway v Croft (1843) 3 Curt 671; 163 ER 863, at 866, ‘the same acts which would constitute insanity in one eccentric individual might not do so in another’. Both the capricious and the deluded testator act in the same way: they make eccentric provisions. But the deluded testator does so because he is driven by an irrational belief—one that no rational person would hold. But then what is meant by a ‘rational person’, and what are the limits of a rational person’s thinking? Another complicating factor is that rationality is tested by how the outside world—more specifically, the judge—views the testator’s beliefs and actions. Obviously the judgment can be made only on the evidence before the court. Yet there may have been some explanation—which has not come to light—which would make the testator’s provisions seem rational. Suppose that Arthur excludes his wife from benefiting under his will because he believes that she is ‘in league with the devil’. Assuming there is no evidence for his belief, the will is unlikely to survive: Arthur’s delusion affected his provisions. But what if Arthur knew that his wife had been an active member of a secret Satanic cult, and he had kept the information to himself? Can it still be said that his will is ‘irrational’?

4.1.2.4 When must the testator have capacity?

The basic rule is that the testator must be mentally competent when the will is executed. If competence at the relevant time is established, the fact that the testator lacked such competence before or after the execution will not invalidate a will. Hence a will made in a lucid interval is valid. In In the Estate of Walker (1912) 28 TLR 466, the testatrix had been declared a ‘lunatic’ and was kept under supervision. She suffered from delusions by virtue of which she was potentially violent and dangerous. However, she took an intelligent interest in general topics, kept corresponding with relatives and friends, and in other respects was ‘a shrewd, clever woman’ with an excellent memory. She made a will attested by three doctors who were prepared to certify that she was mentally competent to make a will at the time of the execution. The will was upheld. Chambers and Yatman v Queen’s Proctor (1840) 2 Curt 415; 163 ER 457, concerned a barrister of the Inner Temple, alleged to be of ‘strange and eccentric habits’ (i.e. the barrister, not the Inner Temple). He suffered from various delusions, principally that he was an object of ‘scorn and contempt’ to his friends and the whole world—not an uncommon delusion—and that he would be disbarred because he had concealed (p. 78) the fact that his father was ‘only a chemist’. He made a perfectly sensible will, his conduct when executing the will being described by the witnesses as ‘cool, collected and rational’. The following day he executed himself: he committed suicide. The court upheld the will as it was satisfied that it had been made in a lucid interval.

There is an important exception to the rule that the testator must be mentally competent when the will is executed. Where a competent testator gives instructions as to the making of his will but then loses mental competence before the will is executed, the will is nevertheless valid if the instructions were given to a solicitor, the will was prepared in accordance with those instructions, and the testator executed the will while understanding that he was executing a will for which he had given instructions. The rule was enunciated in Parker v Felgate (1883) 8 PD 171 by Hannen P (at p. 173):

If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out’.

In that case the testatrix, a young woman in her late twenties, contracted Bright’s disease. She consulted her solicitor and gave him instructions to draft a will in which she gave the bulk of her estate to a children’s hospital in preference to relatives. Before the will could be executed the testatrix lapsed into a partial coma from which she was occasionally roused. On one such occasion her doctor rustled the will in front of her face and said, ‘This is your will’. It was then signed on her behalf with her consent. The court found that the testatrix did not ‘remember and understand’ the instructions given to the solicitor and that she could not have understood the clauses in the will. Nevertheless the will was upheld since she understood that ‘she was engaged in executing the will for which she had given instructions’. The rule in Parker v Felgate was applied by the Privy Council in Perera v Perera [1901] AC 354, where the instructions were given to a licensed notary (an official with jurisdiction over the authentication of documents such as wills). In Battan Singh v Amirchand (see 4.1.2.3) the instructions were given to a lay intermediary to pass to the solicitor. On the facts the Privy Council refused to apply the rule in Parker v Felgate. Lord Normand stated (at p. 155):

the principle enunciated in Parker v Felgate should be applied with the greatest caution and reserve when the testator does not himself give instructions to the solicitor who draws the will, but to a lay intermediary who repeats them to the solicitor. The opportunities for error in transmission and of misunderstanding and of deception in such a situation are obvious, and the court ought to be strictly satisfied that there is no ground for suspicion, and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity.

(p. 79) The rule in Parker v Felgate appears to be confined to where instructions are given to a solicitor (or notary) or to an intermediary to give to a solicitor. Given that the rule constitutes a major exception to the fundamental principle that the testator should have capacity when the will is executed, it would be inadvisable to extend it further. However, in the Irish case, Re Glynn [1990] 2 IR 326, the rule was applied where the testator instructed two friends—neither of whom was legally qualified—to draw up his will (they were not intermediaries). Reed, ‘Capacity and Want of Knowledge and Approval’, p. 174 has suggested that the rule ‘sits very unhappily with the concepts under the [Mental Capacity] Act which require the person to have capacity at the material time that the transaction is being carried through’. Conversely, Brook, ‘The Neighbour, the Carer and the Old Friend—The Complex World of Testamentary Capacity’ suggests that Parker could contribute towards meeting the requirement of supported decision-making in the UN Convention on the Rights of Persons with Disabilities. In Perrins v Holland [2010] EWCA Civ 840, in any case, it was confirmed that the rule forms part of English law on the basis of its antiquity and the judicial preference for giving effect to transactions, particularly where the testator has no further opportunity to express wishes. As regards the extent to which the instructions given were sufficiently ‘settled’, all that was necessary was the absence of a change of mind between the giving of the instructions with capacity and the signing of the will.

4.1.2.5 The burden of proof

the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.

This basic principle was stated by Parke B in Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, at 1090. The legal burden of proof must be satisfied on a balance of probabilities. However, if the will is rational on its face, there is a presumption that the testator was mentally competent to make the will. The evidential burden of proof then shifts to the party opposing the will to rebut the presumption by evidence to the contrary. If such evidence is forthcoming, the burden of proof shifts back to the propounder. The position can be illustrated by Symes v Green (1859) 1 Sw & Tr 401; 164 ER 785. The testator made a will which was challenged by his nephew, his only relative, who had been excluded. As the will was rational and correctly executed, it was presumed to have been made by a mentally competent testator. However, evidence was produced that when he made the will the testator was suffering from insanity, induced partly by his belief that he was destined for ‘eternal perdition’ as he had partaken in a church sacrament while ‘unworthy’. The evidence rebutted the presumption of mental competence. Thus the burden of proof shifted to the propounder, who was unable to satisfy the court of the testator’s mental competence. Re Key is a more recent example of a ‘rational’ will that was declared void because of a failure by the propounders to discharge the shifted burden of proof. In Burgess v Hawes [2013] EWCA Civ 94, it was emphasised that the court should be very slow to find an absence of testamentary capacity where a rational will was prepared by an experienced independent solicitor who met the testatrix and explained it to her (cf. Re Ashkettle [2013] EWHC 2125 (Ch)).

(p. 80) What if the will is irrational on its face? It seems that the testator will be presumed to have lacked mental competence, but this presumption is probably weaker than the presumption of capacity which arises from a rational will. As usual, appropriate evidence can rebut the presumption. In Austen v Graham (1854) 8 Moo PC 493; 14 ER 188, the testator left only a small gift to his brother, his only relative, and the residue of his estate to the Turkish Ambassador to be applied for the benefit of the poor in Constantinople and for the erection of a cenotaph in the city ‘with a light burning, and a description of the Testator engraved thereon’. The Privy Council thought that these provisions might be considered ‘absurd and irrational in a native of England and a Christian according to English habits’, but they were explained by the fact that the testator had in early life adopted ‘the manners and mode of living of a Mohamedan’.

The evidential burden of proof may also be affected by the presumption of the continuance of a mental state. If the testator is shown to have been mentally competent prior to the making of a will, it is presumed that he continued to be competent at the time of execution. If, on the other hand, the testator is known to have suffered from serious mental illness before the will was executed, the presumption arises that the illness continued so that the testator lacked capacity at the time of the execution. The presumption may be rebutted by evidence showing that the testator had recovered his mental competence before executing the will, or that the execution occurred during a lucid interval. In Cartwright v Cartwright (1793) 1 Phill 90; 161 ER 923, the will of the testatrix was rational on its face: hence the presumption arose that she was mentally competent to make it. However, proof that she had been declared insane six months prior to its execution led instead to the presumption that her mental state continued at the time of execution—a reversal of presumptions: Nevertheless, the will was upheld because of evidence that the testatrix had ‘full and complete capacity to understand what was the state of her affairs and her relations, and to give what was proper in the way she has done’ (at p. 933).

4.1.2.6 Effect of mental incompetence

If a testator lacked the mental competence to make a will, the effect is that the whole will fails. But if it is shown that the incapacity affected only part of the will, then exceptionally the rest of the will may be upheld, as occurred in In the Estate of Bohrmann [1938] 1 All ER 271. The testator, diagnosed as a paranoid psychopath, was a man of ‘exceptional acumen in managing his private affairs’. He left substantial gifts to charity in his will and subsequent codicils. In the last codicil he inserted a clause revoking gifts to English charities and substituted American charities. At the time he was suffering from a delusion that he was being persecuted by the London County Council, his local authority, and that he might be dispossessed of his home because of a grudge held against him by one of the authority’s valuers. Langton J upheld the codicil with the omission of the offending clause. This decision broke new ground: a testamentary instrument apparently had never been divided before in similar circumstances. The judge justified his approach thus:

It has been the practice in this court for many years to delete from instruments of testamentary disposition anything which the court is satisfied is not brought to the knowledge and approval of the testator. I conceive that I am doing no more now in declaring for this codicil without clause 2 than I should be doing in deleting from the codicil something which I believe was never brought to his knowledge and approval as a sane, balanced man. (p. 282)

(p. 81) This decision reflects the traditional preference of English judges for upholding wills or codicils wherever possible. It also adds a measure of flexibility to the options available to a judge—for that reason it is to be welcomed. However, it is questionable how confident a judge can be in deciding that a testator is simultaneously mentally competent as to one part of the will but not another.

It is obviously good practice in cases where there is any doubt as to a testator’s mental capacity to arrange for the testator to be examined by an experienced medical practitioner. In Kenward v Adams (1975) The Times, 28 November, Templeman J suggested a ‘golden if tactless rule’ in cases where the testator was old and infirm (applicable equally where there is doubt as to his mental state): the making of his will should be witnessed and approved by a medical practitioner, who should satisfy himself as to the capacity of the testator and make a record of his findings. The advice was repeated in Re Simpson (1977) 121 SJ 224, where a testator, suffering from Parkinson’s disease and close to death, made a will which was held to be invalid for want of knowledge and approval. In Buckenham v Dickinson [1997] 4 CL 661 a will was made by a testator aged 93 who was practically blind and very deaf. No doctor was present when the testator executed the will but his solicitor had arranged for the will to be read aloud to the testator prior to the execution, with the question occasionally put to him whether he understood and approved of the contents. The will was held to be invalid on the grounds of lack of mental capacity. The judge, who had acted as counsel in Re Simpson, regarded it as significant that the solicitor had not followed the ‘golden rule’ that a medical practitioner should be present when there are doubts about the testator’s capacity. If this was not feasible, a solicitor should comply as closely as possible with the golden rule and should at least ask the testator open questions to establish whether he understood and approved of the provisions.

The Law Reform Committee’s Report, The Making and Revocation of Wills (LRC Report No. 22, 1980), expressed the hope that the ‘golden if tactless rule’ would continue to be followed but did not recommend that the rule should be enacted. The Committee feared that complications could arise regarding the confidential relationship between solicitor and testator, and added:

Further, because a complicated will dealing with large amounts of property requires a greater degree of mental alertness than a simple will dealing with a small estate, the doctor might well have to be told of the terms of the will and possibly also of the testator’s family situation which may be relevant, in order to assess whether or not the testator had sufficient capacity to make the kind of will he in fact made. In our view many testators might well take exception to revealing the contents of their wills or their family circumstances to unknown medical practitioners. (para. 2.19)

Such testators are also likely to object to the fee that is likely to be charged by the medical practitioner concerned, and the practice of many private client solicitors (not to mention that of the medical practitioners themselves) might grind to a halt if every elderly and infirm client had to be subject to the ‘golden rule’. In Re Burns [2016] EWCA Civ 37, para. 47, it was emphasised that while the ‘golden rule’ is ‘a prudent guide for solicitors dealing with a will for an aged testator or one who has been seriously ill’, it ‘does not constitute a rule of law but provides guidance as to a (p. 82) means of avoiding disputes’, and ‘is not a touchstone of validity or a substitute for established tests of capacity or knowledge and approval’.

It should always be borne in mind that if a person is mentally incapable of making a valid will, a ‘statutory’ will may be made on his or her behalf by the Court of Protection under the Mental Capacity Act 2005 (see 10.1.2).

What if the testator made the will while under the influence of drink or drugs? There is no presumption that a person addicted to alcohol lacks testamentary capacity: Ayrey v Hill (1824) 2 Add 206; 162 ER 269. But if evidence is forthcoming that the will was executed while the testator was under the influence of drink, the propounders must prove that the testator had the necessary mental competence. In In the Estate of Heinke [1959] CLY 3449, the testator made a codicil in a public house during a bout of heavy drinking. He revoked a substantial gift to a woman who had been ‘his housekeeper and mistress’ for the last 16 years of his life. Sachs J held that the codicil was void on the ground that the deceased had not been of sound mind, memory, and understanding when he executed it and did not know and approve the contents. On the other hand, in Chana v Chana [2001] WTLR 205 the court upheld a will which was executed when the testator, a heavy drinker who later died of alcoholic liver disease, had been drinking but apparently was not drunk. It was held that the fact that he had been drinking was insufficient to demonstrate that he lacked capacity: for drunkenness to vitiate the execution of a will it must have such an effect on the testator that he does not know the nature and quality of the act which he is carrying out. This, presumably, is another way of saying that the testator must have lacked a sound and disposing mind and memory. The same principles are likely to apply if the will was made by a testator while under the influence of drugs.

4.2 Intention to make a will: animus testandi

4.2.1 Introduction

It is a fundamental principle that a will is invalid unless the testator had the intention to make it—he must have the animus testandi when he executes the will. More specifically, the requirement is that the testator must have intended that his wishes—as expressed in the appropriate form—should take effect on his death. It follows that these wishes must be entirely the result of his volition: the testator must know and approve of the contents of his will. Hence animus testandi can be vitiated by factors such as fraud, mistake, undue influence, or failure to understand fully the dispositions in the will. In d’Eye v Avery [2001] WTLR 227 the testator had suffered a massive stroke which left him unable to communicate (he became a patient of the Court of Protection). He made a will, with the help of a former dancing partner, but probate was refused since, although he had sufficient capacity to make the will, he did not fully understand the provisions therein and thus lacked knowledge and approval. This case provides an instructive illustration of the difference between capacity and animus testandi: the testator had capacity but insufficient understanding for the court to find that he intended his disposition to have testamentary effect. Judge Colyer QC took the view that capacity was a general (p. 83) ability to do something, whereas knowledge and approval required an awareness and appreciation of a specific instrument.

If a testator uses the services of a solicitor to make a will, it is very likely that the animus testandi is present. The intention is perhaps less obvious in the case of a home-made will but even then one can assume that people are unlikely to go through the rigmarole of executing a will unless they intended to make one. Therefore, a presumption arises that a document which appears on its face to be a will—executed in accordance with the required formalities—was made with animus testandi. The presumption is rebuttable. In Lister v Smith (1868) 3 Sw & Tr 282; 164 ER 1282, at 1285, Wilde J stated:

if the fact is plainly and conclusively made out, that the paper which appears to be the record of a testamentary act, was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the Court should turn it into an effective instrument.

Suppose that Arthur, a law lecturer, wanting to demonstrate to his students how to make a will, executes one in class. It leaves all his property to the students in the class. Can they propound the will on his death? Only if he executed the will with animus testandi, which on the facts would be very unlikely. In Nichols v Nichols (1814) 2 Phill 180; 161 ER 1113, the children of the deceased propounded the following document as the last will of the deceased: ‘I leave my property between my children; I hope they will be virtuous and independent; that they will worship God, and not black coats.’ The mention of ‘black coats’ was a reference to lawyers: the deceased, a solicitor himself, was in the habit of ridiculing the way that lawyers ‘employed a vast number of unnecessary words’. The document was executed after a convivial dinner when the deceased wanted to illustrate how short a will could be. Evidence showed that the deceased never again alluded to the document (which was kept by a witness) and that he subsequently regarded himself as not having made a will. Not surprisingly the court pronounced for an intestacy.

4.2.2 Wishes intended to take effect on death

The testator must make an expression of wishes—normally disposing of his property—to be carried out on his death. Thus, if he executes a document and there is no evidence that it is intended to take effect on death, the document lacks testamentary character and thus cannot constitute a will. In Hodson v Barnes (1926) 43 TLR 71, the testator wrote ‘17—1925. Mag. Everything i possess.—J.B.’ It was held that these words were insufficient to show animus testandi as they could not be said to dispose of property on his death. In In the Estate of Knibbs [1962] 1 WLR 852, the testator, a barman on a liner (who in principle could have made a ‘privileged will’ exempt from the usual formality requirements; see 10.1.1), was chatting about his sister Iris with the head barman. The testator stated that she had always been good to him and that ‘If anything ever happens to me, Iris will get anything I have got’. In deciding that the words were ‘the (p. 84) mere exchange of gossip’ spoken without animus testandi, Wrangham J stated (at pp. 855–56):

in order to be a testamentary act there must be a statement of the deceased’s wishes for the disposition of his property which is not merely imparted to his audience as a matter of information or interest, but is intended by him to convey to that audience a request explicit or implicit to see that his wishes are acted on.

Cases such as Hodson v Barnes and In the Estate of Knibbs vividly illustrate the necessity for there to be testamentary intention, but they seem distinctly ungenerous. Had the testator in Hodson v Barnes written the word ‘to’ before ‘Mag.’ that may have sufficed; similarly, if the barman in Knibbs had expressed a request, e.g., ‘I want Iris to get everything’. In Re Jones [1981] Fam 7, the words uttered by a mortally wounded soldier—‘If I don’t make it, make sure Anne gets all my stuff’—were held sufficient. That the validity of a will should turn on such fine distinctions is questionable and is bound to lead to hard cases such as Re Knibbs. A more readily justifiable decision is In the Estate of Beech [1923] P 46, CA. The testator wrote two letters—while on active service in France in the First World War—in which he incorrectly summarised the provisions of an earlier will. The issue arose whether the letters could have testamentary effect. The Court of Appeal held that the letters lacked animus testandi as they were simply an expression of what the testator thought that he had done. Similarly in Re Donner’s Estate (1917) 34 TLR 138, the deceased spoke to a fellow officer about making a will shortly before participating in offensive action on the Somme in 1916. The deceased was informed (incorrectly) that if he died intestate his mother would inherit all his property. He responded, ‘That is just what I want. I want my mother to have everything’. It was held that his statement did not show animus testandi since the deceased was simply confirming what he understood to be the legal position.

Although a testator must express a wish intended to take effect on death, it is not necessary that he should have intended to make a will admissible to probate under English law. In Re Berger [1990] Ch 118, the Court of Appeal granted probate to documents written by the deceased in Hebrew and known as zavah. They contained religious exhortations to his family and dispositions of property. They were intended by the deceased to be enforceable in the Jewish rabbinical court, but there was no indication whether he intended them to be enforceable in the English courts. Nevertheless the zavah’s execution conformed with the formalities required under the Wills Act 1837; and it did contain directions as to the disposal of the deceased’s property on his death, thus showing animus testandi.

Moreover, a testator can have animus testandi even though he is not aware that he is making a will: Milnes v Foden (1890) 15 PD 105, at 107, where Hannen P stated that it was not necessary ‘that the testator should intend to perform or be aware that he has performed a testamentary act’. In Re Stable [1919] P 7, the deceased, a young soldier who was engaged to be married, consulted his family solicitor about making a will shortly before going to the front in France. The solicitor’s grasp of the law was somewhat inadequate since the deceased was informed that as he was a minor he could not make a will (but see 10.1.1.6). Soon afterwards, while visiting an acquaintance, he said to his fiancée, ‘If anything happens to me, and I stop a bullet, (p. 85) everything of mine will be yours’. Clearly the deceased did not think that he was making a will as he had been told that he was too young to do so. Nevertheless it was held that his statement was made with animus testandi since he expressed his wishes as to what should be done with his property in the event of his death. However, was Re Stable correctly decided on the facts? It is arguable that the deceased’s words did not demonstrate animus testandi since they can be interpreted as simply conveying information rather than expressing a request to be effected on death. Wherein lies the difference between ‘Iris will get anything I have got’ (Re Knibbs, will invalid) and ‘everything of mine will be yours’ (Re Stable, will valid)? It may have lain in the fact that in Re Stable the words were actually spoken to the beneficiary rather than about the beneficiary, and thus can more easily be interpreted as having a dispositive effect than those in Re Knibbs. That said, Re Stable was applied in Re Servoz-Gavin [2009] EWHC 3168 (Ch), where a seaman had said to his cousin Christine: ‘You listen to me. If anything happens to me, I want everything to go to Auntie Anne.’ He also said that he had tried without success to impress the same point upon ‘Auntie Anne’ herself. Some years later, he said to Christine: ‘What I told you before still applies. If anything happens to me, if I snuff it, I want everything to go to Auntie Anne.’ Judge Peter Langan QC held (para. 42) that ‘[t]he actual words used, the seriousness with which [the seaman] spoke … and the fact that [Christine] was a person who could be relied upon to carry out his wishes, combine … to show that the test of intention has been easily satisfied’. The judge considered the facts of the case to be ‘a very long way removed’ from those of Re Knibbs, which concerned ‘the mere exchange of family information’ rather than the implicit conveyance of a definite request.

4.2.3 Conditional wills

4.2.3.1 Will inoperative unless condition satisfied

Testators sometimes make wills conditional on the occurrence of some specified event. The basic rule is that such wills take effect only if the condition is fulfilled. If it is not, there is no animus testandi. For example, in In the Goods of Hugo (1877) 2 PD 73, a married couple executed a joint will ‘in case we should be called out of this world at one and the same time and by one and the same accident’. It appears that they were nervous about undertaking a lengthy railway journey, there having been a number of serious railway accidents beforehand. They survived the journey. On the husband’s death over two years later the issue was raised whether the joint will had revoked an earlier will of his. It was held that the joint will was inoperative as it was conditional upon a contingency that never occurred. A similar decision was reached in Re Govier [1950] P 237. A married couple made a joint will at a time (May 1941) when the county of Devon—where the parties were living—was subject to severe bombing raids. They were conscious of the risk of being killed together by the same bomb. The will stated, ‘In the event of our two deaths’ and then appointed an executor and made a number of bequests. The will did not refer to the possibility of one spouse surviving the other. It was held that the will was conditional on their dying together; hence it had no effect (the husband survived the wife). The judge concluded that the words ‘in the event of our two deaths’ referred to the couple dying together and were not simply expressing a general contemplation of death sometime in the future. In In the Goods of Robinson (1870) LR 2 P & D 171, a seaman on a return voyage from London to Sicily made a will in a French port ‘in case anything should happen (p. 86) to me during the remainder of the voyage from hence to Sicily and back to London’. He survived the journey and died two years later. The will was held to be inoperative: it had been made dependent on an event that had not occurred (the court sensibly refusing to interpret the phrase ‘in case anything should happen to me’ literally).

4.2.3.2 Motive or condition?

Where a testator expresses a motive or reason for making a will rather than a condition, the position is different: the will is regarded as unconditional. But the distinction between motive and condition may not always be obvious. Consider In the Goods of Spratt [1897] P 28: the testator, a British soldier serving in New Zealand in 1864 during the Maori War, wrote a letter to his sister stating that if the war continued ‘the chances are in favour of more of us being killed, and as I may not have another opportunity of saying what I wish to be done with any little money I may possess in the case of an accident, I wish to make everything I possess over to you … Keep this until I ask you for it’. The testator died many years later, long after the conclusion of the Maori War. The court held that as the testator’s intention to make a will was not conditional the will was operative. Jeune P explained (at p. 30) that a will is conditional if it is ‘clearly expressed to take effect only on the happening, or not happening, of any event’; it is unconditional if the testator says that he is led to make his will by reason of the uncertainty of life in general, or for some special reason. The judge then addressed the position where the distinction was not clear:

But if it be not clear whether the words used import a reason for making a will or impress a conditional character on it, the whole language of the document, and also the surrounding circumstances, must be considered. In such cases there are two criteria which are especially useful for determining the problem: first, whether the nature of disposition made appears to have relation to the time or circumstances of the contingency; and, secondly, where the contingency is connected with a period of danger to the testator, whether it is coincident with that period, because, if it is, there is ground to suppose that the danger was regarded by the testator only as a reason for making a will, but, if it is not, it is difficult to see the object of referring to a particular period unless it be to limit the operation of the will.

Applying these tests, the phrase ‘in case of an accident’ was held to point only to the reason for making the will. The fact that the testator asked his sister to keep the will until he asked for it was regarded as significant: it showed that he did not have in mind any particular time when the will was to cease to be operative. This decision was followed in Re Panapa [1993] 1 NZLR 694, where the testatrix made a will ‘in anticipation of my marriage’ to her intended husband. She died the following day (the day prior to the intended wedding). It was held that the will had not been made conditional on the marriage. The phrase ‘in anticipation of’ expressed a reason for making the will, not a condition (the testatrix did not want the will to be revoked by the marriage).

4.2.3.3 Proof of the condition

Proof that the testator intended a conditional will must appear on the face of the will, although extrinsic evidence is admissible to resolve any ambiguity in the expression of the condition in the will: Re Govier (see 4.2.3.1). But extrinsic evidence (p. 87) is not admissible to prove that a will appearing on its face to be unconditional is in fact conditional. In Corbett v Newey [1998] Ch 57, CA, the testatrix made it clear to her solicitor that she wanted to make inter vivos gifts of her farms in Cornwall and instructed him to prepare a new will excluding any reference to the farms. Moreover, she emphasised that she regarded the transactions as interrelated and that she did not intend to sign the new will until the inter vivos gifts were in place. She eventually executed the new will but, because of a misunderstanding over the relevance of dating a will, the execution occurred before the inter vivos gifts had been made. The issue arose whether the new will was a conditional will operative only on completion of the inter vivos gifts. It was held that the testatrix had failed to make an effective new will. She could not by words or conduct outside the terms of the will impose a condition postponing the will’s operation. A conditional will was possible only if the condition appeared on the face of the will. Moreover, the testatrix lacked the animus testandi to make an unconditional will since when she signed it she did not intend to create a document which would operate unconditionally, as explained by Waite LJ (at p. 65):

Since a will operates from the moment of execution, it necessarily follows that to possess the necessary animus testandi the testator must intend that this dispositive (although revocable and ambulatory) regime will be called into play immediately—and not postponed to, or made dependent upon, some future event or condition. That is why—surprising though the distinction may be at first sight to a layman—it is possible to have a will which is on its face conditional, and yet impossible to have a will which though unconditional on its face purports, through some direction imposed externally by the testator at the time of its execution, to be made conditional in its operation.

4.2.4 Knowledge and approval

Since a testator must have animus testandi in order to make a will, it follows that he must know and approve of the contents of his will. The will must ‘truly represent the testator’s testamentary intentions’ (Strum v Fuller [2001] EWCA Civ 1879, para. 59, approved in Marley v Rawlings [2014] UKSC 2). This is a fundamental requirement of every will, as was made suitably clear by Lord Penzance in Cleare v Cleare (1869) 1 P & D 655, at 657:

That he knew and approved of the contents is a proposition implied in the assertion that a will was made by him. For if a man were to sign a paper of the contents of which he knew nothing, it would be no will … That the testator did know and approve of the contents of the alleged will is therefore part of the burthen of proof assumed by every one who propounds it as a will.

Knowledge and approval is thus a general requirement: failure to prove it will result in the failure of the whole or part of the will, as in d’Eye v Avery (see 4.2.1). In Strum v Fuller [2001] EWCA Civ 1879, it was considered to be possible but rarely appropriate to pronounce against only part of a will, and that such a power should not be used to express disapproval of the propounder.

(p. 88) 4.2.4.1 The presumption

The legal burden of proof is on the propounder of the will; but if the will is shown to have been duly executed and made by a testator of the necessary mental capacity, a presumption apparently arises that the testator knew and approved of the contents: Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089. The effect of the presumption will be to shift the evidential burden to the person challenging the will, who must then produce evidence to rebut the presumption. If such evidence is forthcoming the burden of proving knowledge and approval reverts to the propounder: Cleare v Cleare (see 4.2.4). In practice, knowledge and approval will be presumed in the vast majority of wills admitted to probate. As Lord Neuberger put it in Gill v Woodall [2010] EWCA Civ 1430, para. 14, ‘[a]s 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 testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will’.

The presumption probably does not arise when the circumstances are suspicious or abnormal (see further 4.2.5), e.g., if a person who prepares a will takes a benefit under it (Poole v Everall [2016] EWHC 2126 (Ch)). Neither does the presumption arise in the case of a will signed by another person on behalf of the testator, or a will made by a blind or illiterate testator. The propounders of a will made by the blind or illiterate must show that the testator knew and approved of the contents of the will (r. 13 of the Non-Contentious Probate Rules 1987). Reading the will provides strong evidence (though not conclusive) of knowledge and approval, and should be recited in the attestation clause as this will raise a presumption that the testator did know and approve of the contents. In Sherrington v Sherrington [2005] EWCA Civ 326, despite some oddities in the performance and conduct of the drafting, it was considered, ‘in the absence of any clear or cogent evidence to the contrary’, to be ‘nothing short of fanciful’ to conclude that the testator did not know or approve of the will’s contents when he had ample opportunity to read it (para. 98). But other proof may suffice. Consider In the Goods of Geale (1864) 3 Sw & Tr 431; 164 ER 1342, where the testator, who was deaf, dumb, and could neither read nor write, conversed with his family and friends by signs well understood by all of them. A will was drafted for him at his request. It was upheld on proof of the signs used. For example, to indicate money the testator touched his pockets; to indicate all his property or all things, he looked around while raising his arms with ‘a sweeping motion all round’; to indicate his wife he pointed to the ring-finger of his left hand and crossed his arms—females were indicated by crossing arms, males by crossing wrists (see also Fincham v Edwards (1842) 3 Curt 63; 163 ER 656).

4.2.4.2 The time factor

When must the testator know and approve of the contents of the will? It must be at the time when the will was executed: Hastilow v Stobie (1865) 1 P & D 64. However, where the testator did not have knowledge and approval at the time of execution but did so when instructing his solicitor to prepare a will, the rule in Parker v Felgate (see 4.1.2.4) is applicable: Perrins v Holland. For example, in In the Estate of Wallace [1952] 2 TLR 925, the testator wrote out a document, headed ‘Last wish’, which provided that the beneficiaries were ‘to have all I am possed [sic] of’. In accordance with his instructions a will was drafted embodying the terms of the ‘Last wish’. It was (p. 89) executed the day before the testator’s death, when his condition had deteriorated. The evidence established that he knew and approved of the contents of the ‘Last wish’, and that when he executed the will he understood what he was doing and accepted the will as a document that carried out his wishes. The will was upheld.

4.2.4.3 An older approach to proof

Where proof of knowledge and approval is required, i.e., when the presumption has been rebutted or does not arise, the court must be satisfied by proof that the will was made by a free and capable testator. The most common form of proof is evidence showing that the testator read over the will when executing it, or that it was read over to him. At one time evidence of reading over the will was regarded as conclusive proof of knowledge and approval: Guardhouse v Blackburn (1866) 1 P & D 109. That such a rule should have become established is surprising, given the potential for abuse and the uncertainty as to what ‘reading over’ might entail. The rule began to lose its force when in Fulton v Andrew (1875) LR 7 HL 448 the House of Lords held that there was no ‘unyielding’ rule of law that ‘all further enquiry is shut out’ on proof of reading over. More recently Latey J held in Re Morris [1970] 1 All ER 1057 that reading over is still regarded as weighty evidence, but not conclusive.

4.2.5 Suspicious circumstances

Traditionally, affirmative proof of knowledge and approval is necessary whenever circumstances exist which ‘excite the suspicion of the court’, as Lindley LJ stated in Tyrrell v Painton [1894] P 151, CA. He continued (at p. 157):

wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.

This ‘rule’, sometimes described as ‘the suspicious circumstances doctrine’, requires the propounder of the will to prove knowledge and approval at the outset of the case: the normal presumption of knowledge and approval is not operative. The case law shows that the rule is concerned with the circumstances surrounding the execution of a will.

In Gill v Woodall, para. 22, however, Lord Neuberger described the value of the ‘two-stage’ approach, of establishing whether there were suspicious circumstances and then whether the propounders had allayed those suspicions, as ‘questionable’. He considered preferable the approach outlined by Sachs J in the unreported 1956 case of Re Crerar, namely that the court should ‘consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, … 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’. Perhaps oddly, Lord Neuberger also appeared to approve Sachs J’s further assertion that ‘[t]he fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in (p. 90) the circumstances, but in law those facts are not conclusive, nor do they raise a presumption’, which may not be consistent with Lord Neuberger’s other remarks in Gill. Reed, ‘Capacity and Want of Knowledge and Approval’, p. 188 opines that the Gill approach means that ‘attacking wills on the basis of want of knowledge and approval may have a greater chance of success’. Despite all of this, Lord Neuberger found it ‘none the less convenient’ to follow the two-stage process adopted by the judge below in Gill, since ‘the answer should be the same’ as if a single question had been posed (para. 23).

Although Lord Neuberger’s suggested one-stage approach has not universally been taken up (see, e.g., Elliott v Simmonds [2016] EWHC 732 (Ch), para. 72), in Re Burns the Court of Appeal (para. 56) confirmed it to be unnecessary for the judge to follow the two-stage approach (see also Cowderoy v Cranfield). It was nevertheless also confirmed in Re Burns that affirmative evidence would be required where there were suspicious circumstances, albeit that sometimes not very much evidence is required (Boudh v Bodh [2007] EWCA Civ 1019). The nature of such circumstances is therefore worthy of separate discussion, even if the law on their relevance is not entirely clear.

4.2.5.1 Will prepared by beneficiary

In Barry v Butlin (see 4.1.2.5) Parke B stated (at p. 1090):

If a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.

In this case the testator executed a will prepared for him by his attorney under which the latter took a substantial legacy. Nothing was given in the will to the testator’s son, his only next-of-kin. On the facts, the court’s suspicions were removed by evidence that inter alia the testator had been very friendly with the attorney for some time, that the will was executed ‘fairly and openly’ in the presence of ‘respectable witnesses’ (including a doctor), that comparison with an earlier draft showed that the testator’s mind ‘was employed on the subject’ and ‘cognizable’ of the contents, and that he had long broken off relations with his violent son.

The leading case on suspicious circumstances is Wintle v Nye [1959] 1 All ER 552, HL. It is as famous a case as any in succession, having featured in newspaper headlines and been the subject of television programmes. The case concerned a solicitor, Nye, who prepared a will and a codicil for an elderly testatrix under which Nye in effect took the bulk of her large estate as residuary beneficiary. She was ‘unversed in business’ and totally reliant for advice on Nye who had acted as the family solicitor and had known her for many years. The will was complicated and rather beyond the understanding of the testatrix (who was described as of limited intelligence). No independent advice was received by the testatrix, and Nye did little or nothing to persuade her to seek it. The execution of the will was witnessed by his clerks. He retained the will and did not give her a copy. The subsequent codicil revoked charitable legacies thus increasing the size of Nye’s residuary benefit. (p. 91) Although the will and codicil were upheld at first instance and by the Court of Appeal, the House of Lords held that there was a heavy burden on him in these circumstances to prove that the testatrix knew and approved of the contents of the will and the codicil. Viscount Simonds stated (at p. 557):

It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined.

This case turned on the issue whether the testatrix knew and approved of the contents of the will and codicil. It was strictly not about undue influence or fraud (see 4.2.7), neither of which was alleged. Nye was opposed by Colonel Wintle, who initially had no locus standi but acquired it by persuading one of the testatrix’s cousins to assign to him any interest which that cousin might have in the estate. The challenge to the will took an unusual form even before the commencement of proceedings. Wintle, an eccentric war hero with a colourful past, physically assaulted Nye, for which he was sentenced to six months’ imprisonment. And then after he had lost at first instance, following his release, Wintle sacked his legal team and proceeded on his own through the Court of Appeal and the House of Lords, thus further adding to his already considerable reputation for ingenuity and bravado. He persuaded the House of Lords that Barnard J, the judge at first instance, had misdirected the jury by failing to draw sufficient attention to Nye’s alleged misconduct. This should have resulted in a re-trial. Thus the decision represented a points victory for Wintle if not quite a knock-out blow. Nye, however, withdrew from the contest, presumably not wishing to risk another trial which the public would have perceived to be a contest between a dashing war hero and amateur advocate on the one hand, and a dodgy solicitor on the other.

An illuminating account of this remarkable case, rich in background detail, is provided by R. Kerridge, ‘Wills Made in Suspicious Circumstances: The Problem of the Vulnerable Testator’ [2000] CLJ 310. He argues inter alia that Wintle v Nye ‘encourages dishonest pleading’ (p. 333), making the point that it is a fiction to plead lack of knowledge and approval when a case is really about fraud and/or undue influence. However, although exploiting an elderly testatrix of limited intelligence may be questionable conduct, it does not necessarily demonstrate fraud or undue influence. Thus, to describe the plea of lack of knowledge and approval in such circumstances as ‘dishonest’ seems rather harsh. In Re Stott [1980] 1 WLR 246 a similar approach was taken to that in Wintle v Nye. Kerridge regards Re Stott as another example of ‘trying to get to the right result by the wrong route’ (p. 327): there the court allowed a plea of lack of knowledge and approval to proceed in circumstances where, in Kerridge’s view, the case was really about fraud or undue influence. He makes the same claim about Wyniczenko v Plucinska-Surowka [2005] EWHC 2794 (Ch), where the will was prepared on the computer of the sole beneficiary, was in English (a language that the Polish testatrix did not speak well), and (p. 92) made no provision for her family or her church (R. Kerridge, ‘Undue Influence and Testamentary Dispositions: A Response’ [2012] Conv 129).

Wintle v Nye was followed in Re Dabbs [2001] WTLR 527, where the testator executed a will which had been prepared for him on a computer by the claimant, a major beneficiary under the will. Less than a month later the testator was found dead in his car in his garage, with hosepipes feeding exhaust fumes into the car. The claimant was interviewed by the police in connection with the death, but was not charged. It was held that extreme vigilance was required in these circumstances in determining the validity of the will: the greater the suspicion, the greater is the burden of dispelling that suspicion. Nevertheless, the will was admitted to probate since the heavy burden of showing that the testator knew and approved the will had been discharged on the facts. The burden was also discharged in Ewing v Bennett [2001] WTLR 249, where the court attached considerable significance to the fact that the testatrix’s solicitor—who was not a beneficiary—took particular care to satisfy himself that the testatrix knew and approved the contents of her will.

The relationship between the preparer of the will and the testator may affect the application of the suspicious circumstances doctrine. That said, the mere fact that it is very common for spouses to leave property to each other, or for parents to benefit their children, will not prevent the application of the doctrine to preparers falling within those categories. In Franks v Sinclair [2006] EWHC 3365 (Ch), the testatrix’s son (a solicitor) conceded that the doctrine applied to him in circumstances where he had drawn up a will substantially benefiting him and excluding a nephew with whom he was not on speaking terms and to whom the testatrix was very close (in contrast to the previous will). The testatrix had not received independent advice, and the judge dismissed the son’s reading of the will to the testatrix as ‘something of a performance, designed to establish the validity of the will in a formal sense, rather than to make sure that [the testatrix] clearly understood what she was signing’ (para. 63). The son failed to allay the suspicions.

The smaller the benefit to the preparer of the will, the lesser will be the degree of suspicion. For example, Parke B gave the opinion in Barry v Butlin (see start of this section) that if a man ‘of acknowledged competence and habits of business’ left a legacy of £50 to his attorney out of an estate of £100,000, this would be a suspicious circumstance ‘of no weight at all’ (p. 1091). However, standards of professional conduct may have become more exacting since Barry v Butlin was decided. According to the Solicitors Regulation Authority’s SRA Code of Conduct 2011, a solicitor may tend to have complied with the SRA’s Principles by ‘refusing to act where [his or her] client proposes to make a gift of significant value to [the solicitor] or a member of [the solicitor’s] family, or a member of [the solicitor’s] firm or their family, unless the client takes independent legal advice’ (IB 1.9).

These guidelines reflect the decision in Re A Solicitor [1975] 3 QB 475, where a solicitor was struck off the Roll of Solicitors for failing to advise two sisters-in-law to seek independent advice when they sought to make wills partially in his and his family’s favour. However, the suspicious circumstances doctrine does not apply where a solicitor claims the benefit of a standard exemption clause in a will. In Bogg v Raper (1998) The Times, 22 April, it was held that it did not excite suspicion that a solicitor, when drafting a will for a client, should include a standard exemption clause from liability for negligence. The exemption clause simply defined the extent of potential liability and did not confer a benefit on the solicitor (p. 93) for the purposes of the suspicious circumstances doctrine. This appears to be a generous decision based on a somewhat narrow concept of benefit. The avoidance of potentially crippling liability can clearly be regarded as a benefit without straining the meaning of the word unduly; indeed, the expression ‘the benefit of an exemption clause’ is commonly used in legal parlance. On the other hand, it can be said in favour of the decision that the doctrine, as originally expounded in Barry v Butlin, was clearly aimed at the scenario where a preparer of a will takes a gift under the will.

4.2.5.2 Other suspicious circumstances

Affirmative proof of knowledge and approval will be required in situations analogous to those where a will is prepared by a beneficiary, e.g., where it is prepared by a close relative of a beneficiary. In Tyrrell v Painton (see 4.2.5) the testatrix made wills in favour of the defendant, a trustee of her marriage settlement, with whom she was on friendly terms. She later became dissatisfied with him and made another will, mainly benefiting her cousin. Two days later, her health deteriorating, she was visited by the defendant’s son and his friend, ‘a strange young man’. She executed a will—while she was exhausted and drowsy—in favour of the defendant. It was written in the son’s handwriting and was witnessed by the son and his friend. The Court of Appeal held that the rule which threw upon the propounder of a will (prepared by a beneficiary) the burden of showing that it was the true will of the deceased was not confined to cases where the will was prepared by a beneficiary. It extended to any ‘well-grounded suspicion’ (per Davey LJ, at p. 159). Moreover, on the facts the evidence of the attesting witnesses was insufficient to remove the suspicion: thus the will failed. In Thomas v Jones [1928] P 162, the testator’s solicitor prepared a will which included a residuary clause substantially benefiting the solicitor’s daughter. The will was prepared after lengthy interviews with a testator whose mental capacity was failing; no attempt was made to obtain independent medical advice as to the testator’s competence. The residuary clause was excluded from probate.

In Re Ticehurst (1973) The Times, 5 March, an elderly testatrix made a new will leaving her three houses to relatives (rather than to her tenants as under the previous will). The new will was prepared by a solicitor after correspondence between him and the testatrix. However, as her eyesight was poor, she used the wife of a nephew as an amanuensis to conduct the correspondence. The nephew was one of the recipients of a house under the new will. There was evidence that a draft of the new will was read over to the testatrix prior to execution, but this was held insufficient to override the court’s suspicions: the whole will failed.

In Re Evans [2016] EWCA Civ 37, the facts that the testatrix was elderly and had displayed some signs of mental impairment (notwithstanding that she had testamentary capacity), that her letters instructing the relevant solicitor were ‘sketchy and in fragile writing’ and in one case misdated, and that her son who stood to benefit from the change effected by the will he sought to propound both had access to documents from the testatrix’s former solicitors and accompanied her to the execution appointment, were held to be suspicious enough to require affirmative proof of knowledge and approval. Such proof was provided, however, by the fact that she was seen alone by an experienced solicitor who, ‘although not searching in his enquiries, read the simple will over to her’.

(p. 94) Gill v Woodall illustrates that suspicious circumstances can be present where the major figure aside from the testatrix neither draws up the will nor necessarily stands to benefit from it, and even where the beneficiary connected to that figure is not a human one. Mr and Mrs Gill had left their farm to the survivor in the first instance and then to the RSPCA, excluding their only daughter, despite Mrs Gill describing that Society as ‘a waste of time’ and ‘a bunch of townies’. Mrs Gill’s agoraphobia and its effect on the execution meeting with her solicitor and the fact that she later acted as though family members would inherit the farm, in combination with other factors including the surprising nature of the will, were sufficient to constitute suspicious circumstances surrounding a will that complied with her domineering husband’s wishes. The possibilities (which the Court of Appeal rejected in any case) that Mrs Gill attended a previous meeting with her solicitor or that she read the draft will in advance of the execution meeting, and the fact that the will was read to her at the execution meeting, were not enough to allay the suspicion in this ‘exceptional’ case.

4.2.6 Mistake

A testator may lack knowledge and approval of the whole or part of his will because of a mistake on his part. However, it is not every mistake which will affect knowledge and approval. It is thus important to differentiate between the types of mistake that occur.

4.2.6.1 Mistake as to whole will

This occurs where the testator executes a will by mistake. Such cases are rare, but one was recently considered by the Supreme Court. In Marley v Rawlings, a solicitor drew up mirror wills for Mr and Mrs Rawlings and mistakenly presented each with the other’s will to sign. The mistake was not discovered until after the death of the second spouse (Mr Rawlings), and the couple’s two legal children sought to challenge the will from which they had been excluded.

The Supreme Court held that ‘the will, as literally interpreted, plainly did not represent Mr Rawlings’s intentions: accordingly, he cannot have known or approved of its contents, as it stood’ (para. 43). The Court chose not to decide whether it could nevertheless be interpreted to give effect to Mr Rawlings’ real intentions, but did reject (consistently with Re Meyer [1908] P 353 but apparently inconsistently with Guardian, Trust, and Executors Company of New Zealand v Inwood [1946] NZ LR 614) the suggestion that the parts of the will attributing it to Mrs Rawlings could simply be deleted. Part of a will could be removed on the basis of want of knowledge and approval where the part was self-contained and, while it was also possible to delete a ‘simple word or expression’ mistakenly inserted, it would be ‘quite inappropriate to invoke this principle in order to justify selecting phrases and provisions for deletion from a will intended to be signed by someone else, to enable the will, effectively by happenstance, to comply with the testator’s intentions’ (paras. 46–47). That said, the Court was able to rectify the will so that it could be upheld as Mr Rawlings intended (see 4.2.6.5).

4.2.6.2 Mistake as to legal effect

It is the contents of a will that the testator must know and approve, not the consequences. Hence a mistake as to the legal effect of the testator’s provisions does (p. 95) not affect the validity of the will (or part of it). The justification for this rule may be that it prevents litigation arising about what exactly the testator was aiming to achieve, a question which would be difficult to answer in the regrettable absence of the chief witness. Nevertheless the rule inevitably results in hard decisions. Consider Collins v Elstone [1893] P 1: the testatrix left two wills and a codicil to the first will. The second will disposed of only a small policy of life insurance, but did contain a clause revoking all previous testamentary dispositions. The testatrix did not wish to revoke any earlier dispositions but was assured by an executor (who had prepared the second will) that the second will had no application to earlier dispositions. The advice was honestly given but erroneous and disastrous in its consequences. It was held (with regret) that since the testatrix knew and approved of the inclusion of the revocation clause—even though she did not understand its effect—the clause was part of the will and thus revoked the earlier will. Although one can readily appreciate how the court reached this decision, it is clear that its consequences were very different from what the testatrix had intended. If this case were decided today, it is possible that any disappointed beneficiary could have an action for negligence against an executor in such circumstances.

4.2.6.3 Mistake as to contents

If any part of a will has been included by mistake without the testator’s knowledge and approval, it can be omitted from probate provided the sense of the rest of the will is not thereby altered. In Re Phelan [1972] Fam 33, the testator was the perfect lodger—he made a will leaving all his property to his landlady and her husband. A few weeks later he made three more wills (executed on the same day) each disposing of a block of shares in the couple’s favour. He had mistakenly become convinced that it was necessary to dispose of each block of shares by separate wills. The three wills were made on will forms, each of which contained a revocation clause which the testator failed to delete. The court held, somewhat generously, that the revocation clauses could be omitted since the testator had no knowledge and approval of them—he was in effect mistaken as to the contents of his will. A similar decision was reached in In the Goods of Oswald (1874) 3 P & D 162, where a testatrix executed a later will not realising that it contained a revocation clause—she did not read the will over, neither was it read to her. The court held that the revocation clause in the later will could be excluded from probate since its presence was unknown to the testatrix. The distinction between the above cases and Collins v Elstone (see 4.2.6.2) is that in the latter case the testatrix was aware of the presence of the revocation clause. But should cases turn on this distinction? Would it not be preferable if the test was whether there was a true intention on the facts to revoke prior dispositions?

A mistake as to the contents of a will may arise through a clerical error (e.g., word processing) made either by the testator or by another person such as a professional adviser. Consider In the Goods of Boehm [1891] P 247, where a testator instructed that a bequest should be given to each of his unmarried daughters ‘Georgiana’ and ‘Florence’. The conveyancing counsel who drafted the will made the unfortunate mistake of inserting the name ‘Georgiana’ in both the bequests. The court held that the name Georgiana could be omitted from the bequest intended for Florence since the error was never brought to the testator’s notice. That bequest would then (p. 96) contain blanks (instead of ‘Georgiana’) which the court of construction would have in its power to construe as intended to benefit Florence. The court of probate lacked, at that time, the power to insert words. Now, however, words may be added by rectification in some circumstances (see 4.2.6.5).

What if the clerical error results in the omission of a part of the will? In Re Morris [1971] P 62, clause 7 of the testatrix’s will contained 20 pecuniary legacies, numbered from 7(i) to 7(xx). Later she instructed her solicitor to draft a codicil revoking clauses 3 and 7(iv), but a clerical error resulted in the omission of ‘(iv)’: thus the codicil appeared to revoke the whole of clause 7. When the testatrix was executing the codicil she cast her eyes over it but did not notice the omission. The court held that since the testatrix had not intended to revoke the whole of clause 7—glancing through the will being insufficient to show knowledge and approval—the reference to ‘7’ would be omitted. Nor was she bound by the mistake of the draftsman as it had been made without his knowledge and approval. Clause 7 was thus preserved in its entirety—not quite what the testatrix intended but closer to her intentions than revoking the whole clause. The court of probate could not add ‘(iv)’ since at the time it lacked the power to insert words.

4.2.6.4 Remedies: omission

Where a testator lacks knowledge and approval because of a mistake as to the contents of the will, there are two possible remedies—omission and rectification. As we have seen already, the court can omit words from probate if they were not intended by the testator to be part of the will. But the sense of the remainder of the will must not be altered as a result (the omitted words will be regarded as blank spaces). The Supreme Court in Marley v Rawlings, para. 48, was anxious to guard against ‘a word game with haphazard outcomes’. Thus omission is more likely in the case of independent, severable parts of the will such as revocation clauses, as in Re Phelan (see 4.2.6.3), or particular expressions. In Morrell v Morrell (1882) PD 68, the testator instructed that all his 400 shares in his family company should pass to his nephews. Conveyancing counsel misunderstood the instructions and drafted the gift as comprising ‘forty’ shares. There was no evidence that the testator had read the will before executing it. It was held that since the testator had not approved the inclusion of ‘forty’, the word could be omitted from probate with the result that all the shares in the company passed to the nephews. Compare, however, Re Horrocks [1939] P 198: the testatrix left the residue of her estate in trust for such ‘charitable or benevolent’ objects in Preston as her trustees should select. The word ‘and’ should have been used instead of ‘or’: as it stood the gift would fail for uncertainty due to its not being exclusively charitable. Had the solicitor drafted the will mistakenly, not realising the effect of the word ‘or’, the mistake would have been as to legal consequences, and thus not remediable. Not surprisingly it was claimed that the mistake was a clerical error in typing the will, and probate was sought with the omission of ‘or’. The court refused, holding that the phrase ‘charitable benevolent’ would have a cumulative meaning—the omission would thus alter the sense of the remainder of the will.

At the time Re Horrocks was decided the court was considered to lack the power to rectify the will by replacing ‘or’ with ‘and’. It was said that words could only be omitted, not replaced, since to allow otherwise would be to give the court the (p. 97) power to make wills, something not intended by the Wills Act 1837. The inability to add words was again illustrated by Re Reynette-James [1975] 3 All ER 1037, where a typing error by a solicitors’ firm resulted in gifts being bequeathed to the wrong beneficiary. The gifts were omitted from probate. A partial intestacy thus arose under which the intended beneficiary (the testatrix’s son) benefited, thus being partly compensated for the loss of the gifts. Templeman J regretted what he saw as the absence of the power to rectify wills. That said, in Marley v Rawlings, Lord Neuberger (with whom all the other members of the Court agreed) said that ‘[a]s at present advised, [he] would none the less have been minded to hold that it was, as a matter of common law, open to a judge to rectify a will in the same way as any other document’, since ‘no convincing reason for the absence of such a power has been advanced’ (para. 28). It will become clear, however, that Parliament resolved the situation in 1982.

4.2.6.5 Remedies: rectification

Decisions such as Re Horrocks, Re Morris, and Re Reynette-James (see 4.2.6.4) invited consideration of the statutory introduction in probate cases of a power to rectify wills, that is, to amend them by substituting or adding words. The concept was not entirely new since the court of construction has long been able to construe wills as though they contained words not actually written in them (see 7.2.1.2). The introduction of a power of rectification was considered by the Law Reform Committee (Interpretation of Wills, LRC Report No. 19, 1973). The Committee recommended that rectification should be possible in two instances—clerical error and failure to understand the testator’s instructions. These recommendations were enacted by s. 20 of the Administration of Justice Act 1982, applicable to testators dying after 31 December 1982. Section 20(1) provides:

If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

  1. (a) of a clerical error; or

  2. (b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.

Under s. 20(2), an application for rectification shall not be made ‘after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out’. The phrase ‘is first taken out’ has been construed as meaning ‘is first effectively taken out’ in an identical provision in the Inheritance (Provision for Family and Dependants) Act 1975, namely s. 4 of that Act, and has been affected by the Inheritance and Trustees Powers Act 2014, sch. 3. The period of six months is intended to achieve a reasonable balance between the interests of those who wish to have the will rectified and those content to take under the unrectified will. The court has a discretion to allow applications outside the normal period. In Re Chittock [2000] WTLR 643, it was held that applications for an extension of time were governed by the same guidelines as in the case of late applications under s. 4 of the 1975 Act (see 9.2.3, especially Re Salmon [1981] Ch 167). The late application in Re Chittock was allowed because the wife of the (p. 98) testator had been under a serious misapprehension as to the value of the estate that she would inherit, no distribution had yet taken place, and it was in the interests of justice to extend the time limit for rectification.

In Marley v Rawlings, the sons challenging the apparent will sought to argue that the document in question was not in fact even a ‘will’ for the purposes of s. 20 because it did not comply with s. 9 of the Wills Act (see Chapter 5) and did not have Mr Rawlings’ knowledge and approval. While this argument found favour in both the High Court and the Court of Appeal, the Supreme Court rejected it on the basis that s. 9 was satisfied because Mr Rawlings intended it to be his will and signed it in the presence of two witnesses on that basis. The Supreme Court went further and held that neither s. 9 nor the knowledge and approval requirements have to be satisfied in order for s. 20 to be applicable. If the sons’ submission had ultimately been successful, it surely would have been an undesirable limitation on the power of s. 20 where its substantive requirements were made out.

What is a ‘clerical error’? The statute does not provide a definition, but clarification is to be found in the case law. According to Blackburne J in Bell v Georgiou [2002] EWHC 1080 (Ch), para. 8, cited by the Supreme Court in Marley v Rawlings:

The essence of the matter is that a clerical error occurs where someone, who may be the testator himself, or his solicitor, or a clerk or typist, writes something which he did not intend to insert or omits something which he intended to insert … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.

Blackburne J continued that the remedy ‘will not be available where the mistake occurs, inter alia, because the testator never had any intention relevant to the events which actually occurred or he failed to appreciate the legal effect of the words used in his will’. In Marley v Rawlings, para. 77, Lord Neuberger was anxious that ‘clerical error’ be given a wide meaning, ‘namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise)’. While he accepted that his definition of the term was broader than Blackburne J’s, he held that ‘the notion that a wholesale replacement of the provisions of a will’, as required in Marley, ‘is permissible under section 20(1)(a) is demonstrated by the fact that it is difficult both as a matter in principle, and also in practice, to see where the line should otherwise be drawn’ (para. 73). He asserted, however, that s. 20(1)(a) should not be interpreted so that it significantly overlaps with s. 20(1)(b).

As regards s. 20(1)(b)—failure to understand the testator’s instructions—the Law Reform Committee (1973) explained (para. 21):

In our view, where it can be established, first, that the will fails to embody the testator’s instructions, and secondly what those instructions were, it ought to be open to the court to rectify the will so as to make it embody them. Those instructions, if faithfully carried out, may not achieve what the testator really wanted. That is another question. But if the testator said to his solicitor: ‘I want my wife to have my house for her life and (p. 99) then it is to go to my son John’, and if the solicitor draws a will which, on its literal construction, leaves the house to the wife absolutely, then we see no reason why the court should not be able to rectify the will.

In Sprackling v Sprackling [2008] EWHC 2696 (Ch), the deceased’s will provided that he wished to leave one farm to his wife, ‘to include the fishing lake with access to the car park’, and another to his son if the testator’s brother predeceased the testator. The deceased’s children successfully argued that the deceased intended to leave to his wife only the first farmhouse, within its curtilage of garden and paddocks (and not the whole farm), in addition to the fishing lake and its car park together with access rights over the relevant farmland. It was also agreed that he intended to leave the second farm to his son in the event that the testator predeceased his brother, rather than the other way around. These intentions in relation to the first farm were expressed in a draft will that the testator had drawn up himself, and his intentions were found not to have changed before he signed the formal will. It was held that the solicitors involved in drafting the testator’s last will had failed to understand his instructions, and that it could therefore be rectified under s. 20(1)(b).

The standard of proof required in a claim for rectification is the usual civil standard—the balance of probabilities. However, in Re Segelman [1996] Ch 171 Chadwick J stated (at p. 184): ‘the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary’.

How would cases decided before the enactment of s. 20 be decided now? Re Morris would clearly be a strong candidate for rectification under s. 20(1)(a): the court could add ‘(iv)’ after ‘7’ in the provision concerning clause 7, thus achieving exactly what the testatrix intended. In Re Horrocks rectification would depend on the nature of the mistake made. If it was a clerical error then clearly the court could substitute ‘and’ for ‘or’ under s. 20(1)(a); but rectification would probably not be possible if the original inclusion of ‘or’ rather than ‘and’ was because of the solicitor’s failure to appreciate the legal effect of using one word rather than the other (assuming he had applied his mind to the effect of the provision). Rectification would clearly be available in Re Reynette-James to correct the clerical error whereby gifts were given to the wrong beneficiary (similarly In the Goods of Boehm).

Section 20 is a modest provision allowing rectification in two particular cases only, albeit that Marley v Rawlings shows that transposing the entire contents of another document into the affected one is permissible if it is necessary to remedy one of those particular defects. It is a matter of regret that the Law Reform Committee did not recommend a wider scope for rectification (see, e.g., E. Drummond, ‘Whose Will is it Anyway?’ [2014] Conv 357). For example, s. 20 does not appear to apply where there is uncertainty as to the meaning intended by the testator, or where he misunderstood the legal effects of the words used. Issues of construction aside, in these cases the only available remedy—and a very limited one—is omission of words from probate. Misunderstanding the effect of the words used is perhaps the most likely reason why rectification might be needed, so it is all the more surprising that it was omitted from s. 20. Cases such as Collins v Elstone (see 4.2.6.2) would probably be unaffected by s. 20 and thus decided the same way.

(p. 100) There is now apparently a close relationship between rectification and the liberal approach to construction now taken by the courts (see Chapter 7). As Lord Neuberger pointed out in Marley v Rawlings, however:

it is by no means simply an academic issue of categorisation. If it is a question of interpretation, then the document in question has, and has always had, the meaning and effect as determined by the court, and that is the end of the matter. On the other hand, if it is a question of rectification, then the document, as rectified, has a different meaning from that which it appears to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms (eg if there had been delay, change of position, or third party reliance).

para. 40

He was also clear that the process of construction should be completed before rectification is considered, although B. Häcker, ‘What’s in a Will?—Examining the Modern Approach Towards the Interpretation and Rectification of Testamentary Instruments’ in Häcker and Mitchell (eds), Current Issues in Succession Law (2016) points out that the Law Reform Committee sought that exactly the opposite should be true, and points out the advantages of such an approach. She also argues that ‘it will rarely be necessary or possible to rectify a will in order to supply the testator’s words with the meaning he intended them to bear’ (p. 165). The Law Commission’s wills projects will include rectification in their scope.

4.2.7 Fraud and undue influence

A testator lacks animus testandi if he makes his will as the result of the fraud or undue influence of another person. Fraud and undue influence may be conveniently considered together as there are important similarities between them. For example, the consequence of proving that a will (or part of it) was made either through fraud or under undue influence is that the will fails either wholly or partially (for the argument that a constructive trust may arise in these circumstances, see R. Kerridge, [2000] CLJ 310, at 330). Moreover, persons alleging fraud or undue influence must have clear proof otherwise they may be heavily penalised in costs.

The basic difference is that fraud misleads the testator whereas undue influence coerces him.

4.2.7.1 Fraud

Fraud consists of intentionally misleading the testator, thereby affecting the making of his will or its provisions. The testator must have been deceived: a failed attempt to deceive him is irrelevant. The case law on fraud is somewhat thin, indicative of the rarity of this means of challenging a will due to the gravity of the allegation and the availability of easier and less gladiatorial alternatives—alleging lack of knowledge and approval on the grounds of mistake, mental competence, or even suspicious circumstances. Kerridge is apparently incorrect, however, to state that ‘no English court has ever found fraud in a will case’ ([2012] Conv 129, at 132 n. 12).

In Allen v M’Pherson (1847) 1 HLC 191; 9 ER 727, the testator, having made large bequests to the appellant in his will, executed a final codicil containing a much (p. 101) smaller gift. It was alleged that this was the result of false representations being made about the appellant’s character to a testator ‘feeble in mind and in body from age, and his previous habits of drinking wine and spirits’. It was held that this was a clear case of fraud. Lord Lyndhurst stated (at p. 735):

There cannot be a stronger instance of fraud than a false representation respecting the character of an individual to a weak old man, for the purpose of inducing him to revoke a bequest made in favour of the person so calumniated.

In Wilkinson v Joughin (1866) LR 2 Eq 319, the testator married a woman who was already married. She deliberately concealed the fact from him, the court refusing to believe her claim that she thought that her previous husband had died. In his will the testator described her as his ‘wife’. It was held that the gift to the woman was void because of her fraud. However, a gift to her daughter—described by the testator as his ‘stepdaughter’—was upheld since she was an innocent legatee. Compare In the Estate of Posner [1953] P 277, where the facts were similar apart from the crucial difference that the testator was not deliberately misled since neither party knew at the time of their marriage that the wife was still a married woman. The gift to the ‘wife’ was upheld since there had not been any fraudulent assumption by her of the character of wife.

It is clear from the cases on fraud that there must be a deliberate misleading of the testator. Should it matter whether he was deliberately deceived or not? Arguably it should not. The important question should be whether the testator’s will represents his true intentions: was he misled or not in making his provisions? Once it is established that he was misled, and that the deception influenced his provisions, why should it matter how the deception arose? However, clearly it would be inappropriate to describe innocent deception as ‘fraud’; it could be regarded perhaps as a case of mistake as to contents caused by error of fact (see 4.2.6.3).

Need it be the testator who is misled? Presumably not: misleading the testator’s solicitor, for example, might suffice. Moreover, while Kerridge apparently seeks to distinguish forgery from fraud ([2012] Conv 129, at 132 n. 12), it seems likely that attempting to deceive even after the testator’s death can amount to fraud—for example, where a person alters the will or forges one: see Re Raphael [1973] 1 WLR 998.

4.2.7.2 Undue influence

In the law of succession ‘undue influence’ has a different meaning than the one it bears in some other areas of the law: it means coercion, duress. Animus testandi is obviously lacking where a will (or part of it) is made by a testator who is coerced. Persuasion, however, is legitimate; and in practice the problem is in determining whether the influence exerted on the testator amounted to persuasion or coercion. Suppose, for example, that Arthur is contemplating making a will in favour of his local zoo. His wife, Mabel—very much the dominant partner—is furious when she discovers his intentions. She tells him to make the will in her favour ‘or else’. Arthur complies. Has he been persuaded or coerced? It is not unnatural for spouses to press their claims, especially when in competition with a zoo. On the other hand, if the evidence points to Arthur being totally dominated by his wife and very concerned about the consequences posed by the threat of ‘or else’, the facts (p. 102) may point to coercion. The test is whether the testator was led or driven, as explained by Wilde J in Hall v Hall (1868) 1 P & D 481, at 482:

pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else’s.

In that case the will of a prosperous farmer and land valuer failed because it was proved that it had been made for the sake of peace in consequence of the violence and threats from the sole beneficiary, his wife.

The leading case on undue influence is Parfitt v Lawless (1872) 2 P & D 462, where the relevant principles were fully considered. The testatrix made a will under which the chief beneficiary to her large estate was a Roman Catholic priest. It is possible that the testatrix intended that the property should be used for saying masses or other religious purposes. The priest had resided for many years with the testatrix and her husband as domestic chaplain, and for most of the time acted as her confessor. There was no evidence, however, that the priest had influenced the testatrix in the making of the will, or that he had exercised any role in her business affairs. The court held that as there was no evidence of undue influence the will was valid. It was argued against the will that the relationship between the testatrix and the priest raised a presumption of undue influence, an analogy being drawn with the equitable rules applicable to inter vivos gifts (whereby a relationship of trust and confidence coupled with a transaction that ‘calls for explanation’ can give rise to such a presumption: Hammond v Osborn [2002] EWCA Civ 885). However, the court distinguished wills from inter vivos gifts, first, because in the case of the latter there is ‘a transaction in which the person benefited at least takes part’ whereas in the case of a legacy the beneficiary often has ‘no part in or even knowledge of the act’. Lord Penzance continued (at pp. 469–70):

A more material distinction is this: the influence which is undue in the cases of gifts inter vivos is very different from that which is required to set aside a will. In the case of gifts or other transactions inter vivos it is considered by the Courts of equity that the natural influence which such relations as those in question involve, exerted by those who possess it to obtain a benefit for themselves, is an undue influence … The law regarding wills is very different from this. The natural influence of the parent or guardian over the child, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing, and is a free agent. There is nothing illegal in the parent or husband pressing his claims on a child or wife, and obtaining a recognition of those claims in a legacy, provided that the persuasion stops short of coercion, and that the volition of the testator, though biased and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the domination of another.

(p. 103) The importance of Parfitt v Lawless is that:

  1. (a) it establishes that no presumption of undue influence arises from proof of a relationship—however close—between the testator and the other party; and

  2. (b) it emphasises that to prove undue influence it is necessary to prove coercion, i.e. that the testator was not a free agent—that his volition was overborne.

(a) No presumption. Undue influence cannot be presumed from the relationship between the parties. In Craig v Lamoureux [1920] AC 349, PC, a husband was instrumental in having a will prepared for, and executed by, his very ill wife under which he was the sole beneficiary. She died two days later. Undue influence was alleged against the husband but it was not proved since there was no evidence of coercion. However, there is old authority that a presumption of undue influence can arise from the circumstances surrounding the will’s execution. For example, in Mynn v Robinson (1828) 2 Hagg Ecc 169; 162 ER 823, the presumption arose—and was not rebutted—from proof that the will of a married woman was procured by the ‘active agency’ of her husband nine days before her death while she was in an extremely weak state. The husband had a record of deceptive behaviour, and the will wholly departed from a previous will made only a few months earlier. The presumption arose not from the relationship between husband and wife but because of the suspicious circumstances of the will’s execution, which were equivalent to those discussed at 4.2.5.

Concern has been expressed about anecdotal evidence of undue influence being brought to bear on elderly testators by some proprietors of residential and nursing homes. The Justice Committee recommended in Report on Home Made Wills (1971) that a presumption of undue influence should arise where testators aged 60 or over left property—other than small gifts—to persons who were providing them with residential care under a contract. This recommendation has not been followed. It is certainly offensive to the vast majority of those who provide residential care, and patronising to middle-aged testators (but see R. Kerridge [2000] CLJ 310, at 330–1). It is also true that informal care may provide a perfectly good reason to benefit someone by will (B. Sloan, ‘Reversing Testamentary Dispositions in Favour of Informal Carers’ in Häcker and Mitchell (eds), Current Issues in Succession Law (2016)).

There has been vigorous academic debate in recent years about whether the distinction between the undue influence doctrine inter vivos and testamentary dispositions is anomalous and therefore whether a relational presumption of undue influence should be introduced in the testamentary context (P. Ridge, ‘Equitable Undue Influence and Wills’ (2004) 120 LQR 617; F.R. Burns, ‘Reforming Testamentary Undue Influence in Canadian and English Law’ (2006) 29 Dalhousie Law Journal 455; L. Mason, ‘Undue Influence and Testamentary Dispositions: An Equitable Jurisdiction in Probate Law?’ [2011] Conv 115; R. Kerridge, [2012] Conv 129). A major difficulty with such an extension is that an important measure of whether an inter vivos transfer calls for explanation, namely whether the donor has improvidently divested himself of his assets, cannot realistically be applied in a context where a testator has no further need of the property and his estate must be distributed somehow.

(p. 104) (b) Coercion. In Wingrove v Wingrove (1886) 11 PD 81, Hannen P stressed (at pp. 82–83) that it was insufficient to prove that a person has the power to coerce the testator—it had to be shown that the power was exercised. Coercion could take various forms:

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.

Coercion, then, may range from direct physical threats to a more subtle domination over the testator’s mind. But the test is always—was the testator’s volition overborne? In Schrader v Schrader [2013] EWHC 466 (Ch), a comparatively recent but also rare case where undue influence was made out, the purported 2006 will of Jessica Schrader left (aside from some minor items) her house to her son Nick, and the residue in equal shares to Nick and her other son Bill, albeit that the residue was ultimately of little value. Her previous 1990 will treated the residue in the same way but made no specific gift of the house. The judge found that Nick had feelings of hatred towards his brother, as well as an unjustified feeling that they had been treated unequally by their parents throughout their lives. Nick gave up work and moved into Jessica’s house to look after her after she suffered a fall in 2005. The will-writer who took instructions for the 2006 will recalled that ‘Jessica informed her that she wanted to alter the distribution of her estate because Nick had sold his house [though it was in fact sold by his trustee in bankruptcy] and moved in with her and was contributing towards the cost of maintaining her house, and she wanted to ensure that he had somewhere to live after her death’. That said, Mann J found that although ‘he was a caring son who tended to his mother’s needs’, he had a ‘short fuse’ and that ‘his physical presence and personality around the house would be likely to produce a significant degree of subservience in an anxious, dependent, increasingly frail elderly lady in his care’. The judge considered it ‘entirely plausible that he would get cross with her from time to time and that she should be anxious about him and anxious to please’.

The factors that Mann J held to give rise to his inference of undue influence were (para. 97): Jessica’s vulnerability as a lady in her mid-90s who was more uncertain after her fall (notwithstanding that she had testamentary capacity); her dependence on Nick that, although not total, meant that she ‘would have been very worried about his moving out and ceasing to look after her’; the engagement of a will-writer rather than her previous firm of solicitors, the reasons (given by Nick) for which were found to be unsatisfactory; the inaccuracy in Jessica’s understanding of the reasons for Nick’s house being sold, which was likely to have been caused by Nick; the fact that Nick’s way of thinking provided the only identified reason why Jessica would have changed her will; Nick’s own anxiety (as he saw it) to even up the provision made for Bill and himself; his misleading attempts to distance himself from the will’s preparation; his failure to disclose the existence of the 2006 will until steps were taken to prove (p. 105) the 1990 will; and the fairly blunt attempt made by the will-writer to establish whether there was any undue influence in the case. The judge admitted that it was ‘not possible to determine any more than’ the general sowing of ideas and taking advantage of vulnerability, and that it was impossible to determine ‘the precise form of the pressure, or its occasion or occasions’, but he was also confident that ‘it is not necessary to do so’ in order to find undue influence. In Re Harden [1959] CLYB 3448, the undue influence consisted of the domination of the testatrix by a man who purported to have occult powers as a medium: he passed messages from ‘the other side’ as to how the testatrix should dispose of her estate in two wills made by her. The court pronounced against them.

The weaker the testator—whether physically, mentally, or both—the easier it will be to prove undue influence. In Hampson v Guy (1891) 64 LT 778, CA, the testamentary dispositions of an elderly testatrix of feeble mental capacity were held invalid on the grounds of undue influence exercised by the nuns of a convent at which she resided. Kay LJ stated (at p. 780):

the amount of influence which would induce a person of strong mind and in good health to make a will according to the wishes of the persons who were attempting to induce such a testator must be very much greater than the amount of inducement which would improperly influence the mind of a person who was weak partly from mental infirmity and partly from ill-health.

4.2.7.3 Burden of proof

Anyone who challenges a will on the grounds of fraud or undue influence must prove the allegation—the onus is not on the propounder to disprove such allegations: Boyse v Rossborough (1857) 6 HLC 2. Although the usual civil standard of proof applies—the balance of probabilities—strong evidence of fraud or undue influence must be adduced since the allegation imparts an element of moral condemnation. As it was put in Schrader v Schrader, para. 96, ‘[t]he allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger’. Thus adverse inferences should not be drawn against a party, against whom an allegation of undue influence has been made, simply because of that party’s failure to appear in the proceedings or to be represented: Killick v Pountney [2000] WTLR 41. If allegations are made on insufficient evidence, the party making them (or possibly his legal adviser) runs the risk of being penalised in costs. In Re Cutcliffe’s Estate [1959] P 6, CA, an old and very ill testator executed a will in favour of his stepdaughter (with whom he had previously quarrelled) and two female companions when she brought a prepared will for him to sign. Undue influence was alleged against the stepdaughter, the evidence suggesting that the testator was frightened of her and that a crescendo of words ‘sign, sign, sign’ was apparently heard while the testator was executing the will. The court disbelieved the evidence and Hodson LJ stated (at p. 21):

where pleas of undue influence and pleas of fraud are made, the probability, at any rate, if they are unsuccessfully made, is that the people who make such charges and fail will be condemned in the costs not only of that charge but of the whole action.

(p. 106) Although it is entirely understandable that the courts might wish to penalise unfounded allegations of fraud and undue influence in costs, the consequence is likely to be that such allegations will be infrequently made. This may be seen as depriving the potentially vulnerable testator of the protection afforded by the grounds of fraud and undue influence. In practice it is preferable for the challenger of a will to allege lack of knowledge and approval arising from suspicious circumstances, whenever possible, rather than fraud or undue influence. If there is evidence of suspicious circumstances the onus shifts to the propounder to show knowledge and approval on the part of the testator; hence the challenger is not saddled with the difficulty of proving fraud or undue influence with the attendant risks. Wintle v Nye is a case in point (see 4.2.5.1). If in that case the will had been challenged on the grounds of fraud or undue influence, the challenge would almost certainly have failed. But because the allegation was that the will was made in suspicious circumstances (of which there was evidence), the onus fell on the propounder to remove the suspicion by proving knowledge and approval by the testatrix, a task which the propounder was unable to do. In In the Estate of Fuld (No. 3) [1968] P 675, Scarman J stated (at p. 722):

It may well be that positive charges of fraud and undue influence will not feature as largely in the pleadings of probate cases, now that Wintle v Nye has been decided, as they have done in the past; clearly it would be preferable if they did not.

4.2.7.4 Overlap with suspicious circumstances?

Should fraud and undue influence be treated separately (as here) or should they be regarded as aspects of the rule concerning suspicious circumstances (see 4.2.5)? Clearly, a layman would describe fraud and undue influence as examples of suspicious circumstances. Moreover, in Vout v Hay [1995] 125 DLR (4th) 431, the Supreme Court of Canada (per Sopinka J, at p. 439) took a very wide view of the suspicious circumstance doctrine:

The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will; (2) circumstances tending to call into question the capacity of the testator; or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud.

However, the English courts have tended to confine suspicious circumstances to cases where the beneficiary was involved—directly or indirectly—in the preparation of the will, yet no fraud or undue influence was proved. Moreover, the differing rules on the burden of proof (see 4.2.7.3) indicate that fraud and undue influence are not regarded as synonymous with suspicious circumstances.

In Gill v Woodall, moreover, Lord Neuberger thought it ‘rather unreal to consider arguments as to the nature and extent of the influence [the testatrix’s husband] exerted on his wife to persuade her to leave the farm to the RSPCA, when I have just concluded that she did not know that she was doing that very thing’ (para. 66). This suggests that in order to be unduly influenced per se, the testator must have both testamentary capacity and knowledge and approval of the will.

(p. 107) 4.3 Conclusion

It is obviously of fundamental importance that a testator has capacity to make a will, and that the will represents his genuine testamentary intention. Litigation is frequent in this area, no doubt causing much family strife for those involved. Judges must do their best retrospectively to protect vulnerable testators from pressure and undue suggestion. But they must also maintain a healthy scepticism about the claims of those who stand to gain from the intestacy rules or a previous alleged will by challenging the apparent last will. As Norris J recognised in Wharton v Bancroft [2011] EWHC 3250 (Ch), para. 85, claims such as absence of testamentary capacity and undue influence can be ‘a cry of anguish dressed up in legal language’.

The Law Commission’s ‘Wills’ project seeks to ‘reduce the likelihood of wills being challenged after death, and the incidence of litigation’ inter alia ‘by taking account of developments in … the medical understanding of capacity’ (http://www.lawcom.gov.uk/project/wills/). It remains to be seen whether it will be successful.

Further Reading

J. Brook, ‘The Neighbour, the Carer and the Old Friend—The Complex World of Testamentary Capacity’ in H. Conway and R. Hickey (eds), Modern Studies in Property Law (Hart Publishing, Oxford 2017)Find this resource:

    B. Häcker, ‘What’s in a Will?—Examining the Modern Approach Towards the Interpretation and Rectification of Testamentary Instruments’ in B. Häcker and C. Mitchell (eds), Current Issues in Succession Law (Hart Publishing, Oxford 2016)Find this resource:

      R. Kerridge, ‘Wills Made in Suspicious Circumstances: the Problem of the Vulnerable Testator’ [2000] 59 CLJ 310Find this resource:

        P. Reed, ‘Capacity and Want of Knowledge and Approval’ in B. Häcker and C. Mitchell (eds), Current Issues in Succession Law (Hart Publishing, Oxford 2016)Find this resource:

          B. Sloan, ‘Reversing Testamentary Dispositions in Favour of Informal Carers’ in B. Häcker and C. Mitchell (eds), Current Issues in Succession Law (Hart Publishing, Oxford 2016)Find this resource: