Expert Witness Journal Dec 24 - Journal - Page 16
2024 – The Contentious
Probate Year in Review
It has been quite a year for cases of this kind, with at least 4 notable cases being reported before
most of us had even taken our summer holidays.
Lack of Capacity/Knowledge and
Approval
caution in dealing with an elderly testator renders her views
as to Jack's capacity worthless.”
Back in February we had the War & Peace-esque
Leonard v Leonard judgment, running to nearly 500
paragraphs. The most interesting parts for lawyers
may be;
Within a week of the judgment in Leonard landing,
we were treated to another case of this nature, albeit
this time an unsuccessful challenge.
In Gowing v Ward the five granddaughters of the
deceased (known as Fred) challenged Fred’s Will from
November 2018. At the time Fred made this Will, he
was approaching his 90th birthday. In his Will he left
the bulk of his estate to his two children, and in doing
so he almost entirely excluded his five granddaughters from receiving any part of his estate.
• Paragraphs 149 -164: a very helpful summary of the
four limbs in Banks v Goodfellow, including some
interesting pointers at paragraph 152;
• A detailed analysis of what “understanding the
nature and effect” of the Will in question means (paras
447-465); and
Not only did Fred’s five granddaughters challenge the
Will, on grounds he did not have capacity, and/or have
the requisite knowledge and approval of its contents,
they also claimed that Fred only made the Will as a result of “undue influence” being placed on him, and/or
that the Will was only created as a result of Fred’s
mind being “poisoned” against his granddaughters
(i.e. as a result of “fraudulent calumny”).
• The court’s assessment of how, when, and to what
extent expert evidence on the issue of capacity will be
helpful to the court in deciding the question at hand;
“Whilst there is possibly scope for experts in a case of this sort
to opine (as they did here) as to the inferences that might be
drawn from the evidence (as to, for example, the levels of
executive function required to write particular documents or
carry out specific tasks), and whilst I have on occasions found
it useful to record the experts' views on some of the documentary evidence, I consider that the court must be very wary indeed of placing much weight on such opinions. Ultimately it
is for the court and not an expert witness to determine what,
if any, inferences should be drawn from the documentary and
other evidence when seen in its proper context” (paragraph
141)
Ultimately, the Claimant’s case failed. They only
needed to make out their case in respect of one of the
four types of challenge in order to have the Will
declared invalid, but the court rejected each in turn.
On the issue of capacity, the contrast with the Will
writer in Leonard is stark; in Gowing the solicitor
recorded observations against each of the four limbs in
Banks in an important file note. This, coupled with
the expert evidence in the case, seemed to make for an
easy finding in favour of Fred having capacity.
And non-contentious private client lawyers would do
well to read the comments relating to the acts (and
omissions!) of the Will writer in this case. It is not uncommon in cases of this nature that a failure to follow
the “Golden Rule” is quickly brushed aside by judges.
But in this case – no doubt in no small part to various
other failings on the part of the Will writer – it clearly
influenced the judge’s finding that the Will was invalid
for lack of capacity;
Similarly the court seemed to have little hesitation in
dismissing the claims based on undue influence and
fraudulent calumny, with Master Brightwell stating
“the evidence does not come close to persuading me
that it is more likely than not that the 2018 Will was
procured by the undue influence (or fraud) of the
defendants….”
“I am unable to attach any weight to Ms Wells' evidence that
she was "totally satisfied" that Jack had testamentary capacity.
Ms Wells did not think to consult her supervisor, to see Jack
alone or to apply the Golden Rule, even when it was clear
that Jack was "struggling" to understand the provisions of the
Second Draft Will…..she did not apparently pick up on the
fact that communications from Jack and Margaret now
appeared largely to be emanating from Margaret….and she
made no suggestion that she should take Jack and Margaret
through the…Draft Wills in advance of their signature or
that she should attend at the signing of those wills, notwithstanding that by this stage it had been nearly a year since she
had last seen Jack….I accept the Claimants' submission that
this total lack of awareness on her part of the obvious need for
EXPERT WITNESS JOURNAL
A salutary reminder - a lot of weak claims do not
always add up to a strong claim.
As the clocks changed and the temperatures ticked
upwards, May brought the case of Davies v Watts. Not
the lead singer of the Kinks bringing a claim against
his old school mate David, but an unusually succinct
judgment upholding a Will that had been challenged
by a disinherited half-sister of the deceased, who only
learnt of her relation to the deceased after his death.
This was another case where there was some minor
but significant disagreement between the experienced
experts appointed by both parties. Again, notwithstanding one expert saying the testator may have had
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DECEMBER 2024
