Cutting a long story short: Reform of witness evidence in the Business & Property Courts
In cases where there might be doubt about the validity of a Will there are a number of grounds on which the Will might be challenged, depending on the circumstances. There might be concerns about the testator’s mental capacity, whether they knew they were making a will or understood its terms, or about whether a key beneficiary has applied undue influence to procure a Will in their favour. There might even be concerns about whether the Will is genuine at all, and whether there has been a fraud or forgery. Very often the relevant facts will overlap between the different grounds, with the result that those seeking to challenge a will may do so on several grounds in the alternative.
However, bringing a claim on multiple grounds where the evidence doesn’t support it can be a risky strategy, as highlighted in the recent case of Barnaby v Johnson  EWHC 3344 (Ch). In a comprehensive judgment handed down by Deputy Master Linwood on 9 December 2019 the Defendant was held to have “come nowhere near establishing the basis for any proper challenge” to her late mother’s will.
The facts of the case concerned the will of Mrs Bascoe dated 27 April 2005 (“the 2005 Will”), under which the Defendant (Mrs Bascoe’s daughter) received a legacy of only £100. The remainder of Mrs Bascoe’s estate was left to the Claimant (Mrs Bascoe’s son). Mrs Bascoe also had another son who had died in 2004 and another daughter who had died in 2017 (who had been left £500 under the 2005 Will). Mrs Bascoe made the 2005 Will through a solicitor who had, by then, acted for her for around 17 years. She appointed the solicitor and the Claimant as executors of her estate. Mrs Bascoe included an ‘explanatory note’ in her will to explain why she was including such small pecuniary legacies to her daughters, saying that they had “shown very little care and concern” towards her and had “both been rude, unpleasant and in some instances physically violent and abusive”.
The Claimants (Mrs Bascoe’s son and the solicitor, as the personal representatives of Mrs Bascoe’s estate) issued a claim to propound Mrs Bascoe’s 2005 Will, and that claim was opposed by the Defendant. If the 2005 Will was found to be invalid, the Defendant would have received a legacy of £10,000 under an earlier will made by Mrs Bascoe in 1992. The Defendant alleged the 2005 Will was invalid on the grounds of:
(i) Lack of testamentary capacity
(ii) Undue influence by the Claimant
(iii) Forgery of Mrs Bascoe’s signature on the 2005 Will; and
(iv) Want of knowledge and approval of the terms of the 2005 Will.
The judge ruled in favour of the Claimants, finding that there was no documentary evidence or evidence from independent third parties to support the Defendant’s case. He was scathing in his assessment of the Defendant’s evidence, judging it to be “contradictory, self-serving and deliberately misleading”.
In respect of Mrs Bascoe’s testamentary capacity, the judge was persuaded (i) by the comprehensive and detailed medical records which showed an actual diagnosis of dementia in 2008, several years after the 2005 Will, and (ii) by the evidence of the solicitor, who was “long experienced in the making of wills”, that he was certain Mrs Bascoe did have capacity to make the 2005 Will. In the circumstances there could be “no other conclusion” than that Mrs Bascoe had the necessary testamentary capacity.
The Defendant claimed that the Claimant had forced Mrs Bascoe to sign the will. To support that allegation of undue influence by the Claimant, the Defendant relied on an alleged incident in 2009 in which the Claimant harmed his mother and an ambulance was called. The judge found it “highly improbable” that the incident took place and in any event he considered that one incident over 4 years after the execution of the will could not amount to evidence of undue influence. The judge found the Defendant’s evidence to be “wholly untrue” and concluded that there was “no evidence whatsoever to amount to undue influence”.
The Defendant alleged that the signature on the 2005 Will was forged, because it did not look like Mrs Bascoe’s signature on her passport (despite claiming as above that Mrs Bascoe had signed the will, but had been forced by the Claimant to do so). The allegation of forgery was unsupported by any expert evidence and the judge dismissed it “without reservation”.
Finally, the judge also dismissed the Defendant’s challenge on the basis of want of knowledge and approval. He found the evidence of the solicitor and the attesting witnesses to be “clear and compelling”. He accepted the evidence that the will had been properly executed after being prepared by a solicitor and read out to Mrs Bascoe, who then signed it the same day, which raised a strong presumption that the will represented Mrs Bascoe’s intentions. There was no evidence to reverse that presumption, and even if there had been, Mrs Bascoe’s knowledge and approval of her will had been proved through the evidence given by the attesting witnesses and solicitor.
The judge concluded that the 2005 Will was “rational” and was read over to Mrs Bascoe by the solicitor, at a time when she had testamentary capacity. The 2005 Will was “properly executed” and the evidence of the solicitor and attesting witnesses “cannot be impugned”.
Accordingly, the Defendant’s failed spectacularly in her attempt to challenge the validity of Mrs Bascoe’s will. This case serves as a reminder that the court will expect to be presented with compelling and persuasive evidence before it will consider setting aside a will.
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