Will challenges brought on the grounds of lack of capacity, want of knowledge and approval and undue influence/fraudulent calumny are notoriously difficult to prove. In the absence of contemporaneous evidence, judges often have to rely on the evidence of expert witnesses, who very often have not met or medically examined the testator during their lifetime, and whose evidence will often be conflicting, as in this case.
The Testator (N), died in 2017 at the age of 94, leaving behind three sons. Her eldest son had three daughters, who became involved in a battle with their two uncles over N's last Will and her only asset of commercial value - her flat.
On 27 May 2015, N exercised her right-to-buy the council flat in Chiswick in which she had lived for 24 years. With limited funds to buy the 125 year lease, N borrowed around £140,000 from her three granddaughters and executed a charge securing the loan.
On the same day, N executed a declaration of trust in which she declared herself trustee of the lease, on trust for herself and her youngest granddaughter (then aged 16) as beneficial joint tenants, with the result that on N's death, her share would pass by way of survivorship to her youngest granddaughter. She also made her last Will leaving her residuary estate, totalling around £10,000, equally between her sons.
In August 2015, N, who had long since been registered blind and had poor hearing, had a fall which resulted in her losing the ability to make decisions for herself. Following the advice of medical staff, N was admitted to a nursing home where she remained until she died.
The claimant brothers, N's two youngest sons, brought a claim against their older brother and his three daughters, challenging the declaration of trust on the grounds of lack of capacity and undue influence. They also challenged the validity of the Will on the grounds of lack of testamentary capacity, want of knowledge and approval and undue influence/fraudulent calumny.
The claimants argued that N had suffered from dementia and was delusional at the time she made the declaration of trust and the 2015 Will, both of which were made before her fall. If neither document were upheld, the flat and N's remaining assets would pass in accordance with her 1993 Will, which gave a £10,000 legacy to the oldest son and divided the residue between the two claimant sons.
Despite being professionally prepared, there were no attendance notes of the 2015 Will signing meeting, and no capacity assessment had been undertaken.
Psychiatric experts were instructed by both sides to provide expert evidence, neither of whom had ever met or examined N. The evidence was inconsistent, with both experts having reached different conclusions as to N's testamentary capacity in their reports. Ultimately, the experts were not called to give evidence at trial as the claimants abandoned this element of the claim on day 3 of the trial, instead pursuing their claims relating to undue influence and fraudulent calumny.
After a thorough investigation into other available evidence, significant video recordings came to light of conversations that N had had with various family members. These demonstrated N's wish to buy her flat, to provide security for the rest of her life, and her determination to leave it to her youngest granddaughter. Critically, and unusually, there was video evidence of N signing both the 2015 Will and declaration of trust, the documents which put these wishes into effect.
The video evidence, together with the oral evidence of witnesses, was particularly crucial in the absence of any other contemporaneous evidence. From this, the Judge was able to form a clear impression of N, finding that she was stubborn and determined, with "strong, robust mental capacity and faculties" and would not have let anyone influence her.
The Judge stated that it was "clear beyond peradventure that she knew and understood perfectly well what she was signing".
The claimants' case was dismissed, with the Judge commenting that their evidence was "illogical, irrational and incoherent". In a further unusual twist, the claimants were ordered to pay 100% of the defendants' budgeted costs of defending the claim.
It is well-established that probate practitioners taking Will instructions should arrange a mental capacity assessment if they are in any doubt. Compliance with the Golden Rule when taking Will instructions from an elderly client or one with potentially compromised mental capacity, pursuant to Kenward v Adams  CLY 3591, can form persuasive evidence in a subsequent Will challenge, provided a positive assessment of capacity is made.
This case demonstrates the importance of contemporaneous evidence such as video recordings, particularly in those cases where no such capacity assessment has been undertaken, and/or no attendance note has been made of the Will execution meeting or solicitor's records have been destroyed.
With the increase in the use of smart phones and ease of creating video recordings, it would seem inevitable that reliance upon video evidence will increase over time. This is made all the more likely in view of the Government's very recent announcement to permit Wills to be executed via video-conferencing platforms, in response to the coronavirus (COVID-19) pandemic. This in itself could lead to an increase in the number of disputed Will claims being brought, in which video recordings are likely to be a central issue.
Read the approved Judgment.