Jane Oliver v Rodney William Oliver
[2024] EWHC 2289 (Ch)
Carol Frances Gowing & Ors v Terence Arthur Ward & Anor
26 February 2024
[2024] EWHC 347 (Ch)
High Court
A family fought over a will. The grandchildren claimed their grandfather wasn't mentally capable of making the will when he wrote it out or that his children tricked him. The judge looked at the evidence, including medical records and witness statements. The judge decided the grandfather knew what he was doing and the will was valid. The grandchildren lost the case.
Key Facts
- •Frederick Ward ('Fred') died on 17 February 2020, leaving a will dated 28 November 2018 ('the 2018 Will') leaving the residue of his estate to his children Terence and Susan in equal shares.
- •Fred had a prior will dated 3 August 2011 ('the 2011 Will') leaving the residuary estate to his three children in equal shares.
- •Claimants are Fred Junior's five daughters, who claim the 2018 Will is invalid due to lack of capacity, lack of knowledge and approval, undue influence, and/or fraudulent calumny.
- •Fred suffered from various medical conditions including emphysema, COPD, heart disease, hearing impairment, and macular degeneration.
- •Susan was Fred's carer during the relevant period.
- •There was a strained relationship between the claimants and the defendants, particularly between Carol and Susan.
- •The 2018 Will was drafted by Elliots, Bond and Banbury ('EBB'), the same solicitors who prepared the 2011 Will.
- •Expert evidence was given by Dr Chris Hamilton (for the claimants) and Professor Alistair Burns (for the defendants) regarding Fred's testamentary capacity.
Legal Principles
Testamentary capacity is determined by the Banks v Goodfellow test.
Banks v Goodfellow (1870) LR 5 QB 549
The burden of proving undue influence lies on the person asserting it.
Edwards v Edwards [2007] EWHC 1119
In cases of testamentary disposition, there is no presumption of undue influence.
Edwards v Edwards [2007] EWHC 1119
The golden rule in will preparation suggests a medical assessment for aged or seriously ill testators.
Key v Key [2010] 1 WLR 2020
A will is presumed valid if duly executed and appears rational on its face; the objector must raise a real doubt about capacity.
Key v Key [2010] 1 WLR 2020
For fraudulent calumny to vitiate a will, the aspersions must be made knowingly false or without regard for truth, with the purpose of influencing the testator’s dispositions.
Edwards v Edwards [2007] EWHC 1119; Kunicki v Hayward [2017] 4 WLR 32
Knowledge and approval of a will's contents can be inferred from capacity and due execution, but additional evidence may be required depending on the circumstances.
Schrader v Schrader [2013] EWHC 466 (Ch); Wharton v Bancroft [2011] EWHC 3250 (Ch)
Outcomes
The claim was dismissed.
The court found that Fred had testamentary capacity when he made the 2018 Will, knew and approved its contents, and acted as a free agent; the allegations of undue influence and fraudulent calumny were not proven.