You must have more than a mere suspicion to invalidate a will

The High Court was faced with a case regarding the validity of a deceased's will based on a lack of testamentary capacity and undue influence. 

Background:

Mary Barbara Wadge (Mary) died in September 2018, at the age of 85, and was survived by her three children, Carolyne (the claimant), Vicky (the first defendant), and James (a son who has since passed away, and who is now represented by his widow, Svetlana). Following her death, a dispute arose regarding the validity of her will, which names Carolyne as an executor along with the HSBC Trust Company (UK) Ltd., which has renounced its executorship. Vicky has counterclaimed for a declaration against the will's validity, requesting that Mary's estate be administered under intestacy rules (as if no valid will existed) and for letters of administration to be granted.

The sisters' relationship fractured in 1994 due to an allegation about Carolyne’s husband. Mary initially tried to remain neutral, but in summer 1995, she had told Vicky that she believed Carolyne. After that event, Mary and Vicky's relationship became problematic. Vicky, however, claims that the relationship quickly mended, although the Judge found that contact was limited to infrequent visits with grandchildren, and the relationship never regained "mutual warmth and affection".

In July 1997, the birth of Vicky’s fourth child, Rosita, became the trigger for a further major disagreement between Vicky and Mary. Mary did not see Rosita for several months, and contact with Vicky's children remained "quite limited," despite them living only two hundred yards apart. There was no real relationship between Mary and Vicky. 

In 2003, Mary had a hip replacement, and Carolyne had significantly supported her while Vicky and Ian failed to be of help. There is also medical evidence as to the sadness this situation caused Mary. Carolyne and Vicky’s relationship finally broke down in 2005.

In June 2006, Mary passed a sentience test, showing no evidence of memory loss, and in 2008, she even became her late husband's full-time carer. Mary provided instructions for her will to the HSBC Bank in October 2008 when Carolyne was present. The will explicitly cuts Vicky out of the estate, under clause 8, but passes the residual estate to her children when they reach the age of 21. Carolyne received the share of the house. Clause 8 reads “I DECLARE that I have NOT made any provision in my will for my daughter Victoria Jones (Vicky) and I do not wish for her to benefit in any way (sic) from my estate.” Svetlana testified that Mary later expressed regret about the will and the desire to change it. However, the Judge found no evidence of this.

Decision:

The High Court rejected the challenges to the will and accepted it as having been duly executed and witnessed. Vicky’s counterclaim was dismissed. The Judge rejected the argument that Mary lacked testamentary capacity and rejected Dr. Thompson’s ‘expert’ opinion. While acknowledging Dr.

Thompson's academic credentials, the Judge considered his expertise limited because it appears to be entirely academic, lacking experience as a treating psychologist, as Dr. Thompson had never had the opportunity to examine Mary. The Court found Dr. Thompson's expert opinion unpersuasive and ultimately concluded that Mary did have testamentary capacity when she made the will, deeming the challenge to her capacity "groundless" and "unsavoury and disrespectful to the dead".

The Judge then turns to the doctrine of undue influence as it applies to wills, emphasising that it differs significantly from the equitable doctrine for lifetime transactions. First, the Court reiterated the key principles from Edwards v Edwards that there is no presumption of undue influence for testamentary dispositions. The Judge accepts that Mary had short-term memory problems and was physically and mentally worn in 2008, making her "more vulnerable to the exercise of pressure". However, this does not constitute evidence that adverse pressure was exercised.

Implications:

This judgement strongly reaffirms that the Banks v Goodfellow test remains the sole and definitive test for testamentary capacity in England and Wales, particularly for retrospective assessments of capacity at the time a will was made. It reiterates that memory impairment alone does not equate to a lack of capacity unless it fundamentally affects the testator's understanding of the act, their property, and the claims upon it.

The case highlights the importance of evaluating the precise expertise and practical experience of an expert witness. An academic background, no matter how impressive, may be given less weight if it lacks direct clinical experience, especially when dealing with nuanced assessments of an individual's mental state. The expert's inability to examine the testator personally significantly limits the weight of their opinion. Retrospective expert opinions are inherently challenging, and this case underscores the importance of any direct observations, should they be available.

The case strongly reiterates the absence of any presumption of undue influence in testamentary cases. The burden of proof remains firmly on the claimant to demonstrate that the facts are inconsistent with any other hypothesis than undue influence, although this presents a very high standard to pass.