![CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – BOND AND BOND V WEBSTER, DADDY, BOND AND BOND [2024] EWHC 1972 (Ch) A RUN THROUGH THE LEGAL PRINCIPLES](https://www.willclaim.com/wp-content/uploads/2024/08/august-23-800x300.webp)
CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – BOND AND BOND V WEBSTER, DADDY, BOND AND BOND [2024] EWHC 1972 (Ch) A RUN THROUGH THE LEGAL PRINCIPLES
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, run through the legal principles in Bond and Another v Webster and others
Over view – Bond and Another v Webster and Others [2024] EWHC 1972 (Ch)
This is a claim against the legal validity of a Will and Codicil prepared by a firm of Solicitors who also took steps to have the testator assessed for capacity by his treating doctor. It appeared on its face to be a difficult task to overturn these and yet they were ruled invalid. We blogged for the first time on this decision very recently; since it appeared to go against the tenor of the relatively recent decision of the Court of appeal in Hughes v Pritchard and Ors [2022) EWCA Civ 386;and yet, as we noted, there appeared to be factual matters associated with the preparation of the Will and Codicil which made the decision in Bond, one which could stand alone on its facts.
Our earlier blog appears here:
The legal principles
This is a very good case for practitioners to review since the lawyers involved (Counsel in particular) really are at the top of their game.
Legal testamentary capacity
In Bond, Mr Justice Michael Green, confirmed the legal principles provided in Banks v Goodfellow where Cockburn CJs Judgment serves as the foundation and whilst the Mental Capacity Act 2005 contains a statutory test for the making of decisions generally, it did not affect and has not overridden the Banks test for capacity. Mr Justice Green though appeared to prefer the formulation of the test that was added by the Court of Appeal in a decision called Sharp v Adam [2006] WTLR as follows:
“It is obvious…that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects, [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] 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.”
However, whilst it is stated that for a testator to have capacity, he/she must understand and comprehend etc, the courts do not determine it in this way – otherwise it is possible that most Will challenges would succeed (and probably wrongly), because in most instances it will not be possible to prove understanding and comprehension (without bringing the testator back from the dead!).
Rather, courts have found (and the decision in Bond is no different) that (as per paragraph 466 in Bond):
“Capacity is concerned with the ability or potential to understand or recall”
This means in practice that it is never necessary to prove, for instance, that the testator could understand the “extent and nature” of his estate; rather, he/she must be capable of understanding it. This said, if (perhaps by way of example) he/she mistakenly believed he/she owned a particular property which was subsequently bequeathed then that could well serve to indicate no capacity at all.
The Golden Rule
This is referred to next from paragraph 468 in Bond and we are taken by Mr Justice Michael Green to the Judgment of Templeman J, as he then was, in Re Simpson (1977) 121 SJ 224. The relevant passage is copied below:
“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and finding.
There are other precautions which should be taken. If the testator has made an earlier will this should be considered by the legal and medical advisers of the testator, and if appropriate, discussed with the testator. The instructions of the testator should be taken in the absence of anyone who may stand to benefit, or who may have influence over the testator. These are not counsels of perfection. If proper precautions are not taken injustice may result or be imagined and great expense and misery may be unnecessarily caused.”
However, and as cautioned elsewhere, by, for example, Briggs J, as he then was in Key v Key [2010] EWHC 408 (Ch) the Golden Rule should not be taken too far in terms of judging capacity. Further, and as discussed at paragraph 470 (of Bond), Templeman J only referred to a “medical practitioner”; there is no need for a formal assessment by a psychiatrist. A GP’s assessment may be sufficient but “the doctor does need to know the Banks test in order to assess testamentary capacity at the time of the making of the will”. Moreover and whilst the Court of Appeal in Hughes v Pritchard [2022] Ch 339 seemed to find it unnecessary to explore changes in testamentary intention with a testator, Mr Justice Michael Green in Bond seemed to go a little further by opining (at paragraph 472):
“It seems to me that it would be a natural matter to discuss with a testator, and if it was not, there would need to be a plausible explanation for not doing so”.
Knowledge and Approval
This is considered but more briefly (than legal testamentary capacity) from paragraph 480 in Bond. At paragraph 480 the following is cited to explain the difference between knowledge and approval and testamentary capacity:
“The distinction between capacity and knowledge and approval was neatly explained by Lewison LJ in Simon v Byford, supra at [47]: “Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made“. Knowledge and approval is shorthand for the will representing the testamentary intentions of the deceased: see Gill v Woodall [2011] EWCA Civ 1430; [2011] Ch 380 at [14]”.
In other words did the testator know and approve of the choices he/she had apparently made. A Will containing incomplete or confusing dispositions (perhaps by referring to other documents outlining the division of a particular property to be made by the Executor but which is shown not to exist), may very well reveal no knowledge and approval at all.
Very plainly, this sort of finding is going to be linked in a very similar way to lack of (testamentary) capacity.
A two stage approach to capacity and knowledge and approval?
A two stage approach to determine testamentary capacity and knowledge and approval is often considered by practitioners to be correct, whereby:
1. firstly the burden of proof is determined;
2. secondly, the evidence presented by the party with the burden of proof is assessed.
In general, it would appear that if the Will propounder (the Will supporter who is usually the person benefitting from it) has the burden of proof and is obliged to produce evidence, there is much more of a risk that he/she will fail with the Will being declared invalid. This was the position in Key v Key [2010] EWHC 408 (Ch) and was the eventual outcome in Bond.
However in Bond Mr Justice Michael Green (at paragraph 482), citing with seeming approval, comments by Lord Neuberger MR in Gill v Woodall [2010] EWCA Civ 1430, appeared in accept and adopt the more “holistic” approach which Lord Neuberger advocated whereby:
“He said that the court should approach matters in a more holistic way to see whether, after considering “all the relevant evidence available and, drawing such inferences as it can from the totality of that material“, those propounding the will have established that the testator knew and approved its contents. Lewison LJ said in Simon v Byford, supra at [47] that: “It is a holistic exercise based on the evaluation of all the evidence both factual and expert.””
The burden of proof
The question of which party must prove testamentary capacity and/or knowledge and approval is dealt with in Bond as per the following.
Testamentary capacity
At paragraph 477 of Bond Mr Justice Michael Green cites with approval the formulation of Briggs J in Key v Key:
- As to the burden of proof, Briggs J in Key v Key, supra, at [97] explained it as follows:
(i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity;
(ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity;
(iii) if a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.
Knowledge and approval
At paragraph 481 of Bond Mr Justice Michael Green provides the following formulation:
The burden of establishing knowledge and approval is on the person propounding the will. That burden is normally discharged by proof of testamentary capacity and due execution, but where the circumstances attending the preparation and execution of a will or as to its contents are such as to excite the suspicion of the court, the propounder must affirmatively prove knowledge and approval so that the suspicious circumstances are removed and the court can be satisfied that the will represents the last wishes of the testator: see Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097 at [30]-[34] per Peter Gibson LJ, [64]-[72] Chadwick LJ, and [77]-[78] Longmore LJ. The greater the suspicion, the harder it is for the propounder to dispel it: see Wintle v Nye [1959] 1 W.L.R. 284, at 291.
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