Cooper, Re

A will is not invalid merely because the testator is elderly, seriously ill, or physically frail, or because a prudent solicitor failed to obtain medical evidence. Testamentary capacity remains a question of fact, assessed on the evidence as a whole.

Where circumstances arouse suspicion, the propounder must affirmatively prove that the testator knew and approved the will. Suspicion varies in degree, and the evidence required to dispel it varies accordingly. Testamentary undue influence requires coercion or improper pressure. Bodily or mental infirmity, without independent evidence of improper influence, is insufficient.

The claimants sought revocation of probate of Florence Edith Cooper’s will dated 11 August 2001. They alleged lack of testamentary capacity, want of knowledge and approval, and undue influence. They sought to establish an earlier will dated 26 November 1999, which was accepted to be valid and unimpeachable.

The 2001 will left Mrs Cooper’s house and contents to her neighbours, Norman and Margaret Emery, while the earlier will left the residue, including the house, to the claimants. The principal issues were whether Mrs Cooper had capacity, whether she knew and approved the contents of the later will, and whether it had been procured by improper pressure.

1. Claim dismissed. Probate was upheld and the court pronounced for the will dated 11 August 2001.

2. On testamentary capacity, the propounders bore the evidential burden of proving affirmatively that Mrs Cooper had capacity. The test in Banks v Goodfellow (1870) LR 5 QB 549 required her to understand the nature and effects of making a will, the extent of the property disposed of, and the claims to which she might give effect. The evidence of the solicitor who prepared the will, supported by contemporaneous notes and other witnesses, established those matters. Later deterioration did not prove incapacity on the date of execution.

   The so-called golden rule, described in Kenward v Adams and Simpson, Schaniel v Simpson (1977) 121 Sol Jo 224, was prudent guidance rather than a determinative legal requirement. Failure to obtain a medical assessment did not invalidate the will. The court’s task remained to decide capacity as a question of fact on the whole evidence, consistently with the observations in Hoff and Others v Atherton [2004] EWCA Civ 1554.

3. On knowledge and approval, the unusual circumstances required affirmative proof that the will represented Mrs Cooper’s testamentary intentions. The solicitor had read the will through with her line by line, and her comments showed understanding of her relatives, legacies, and intended benefit for the Emerys. The discrepancies between earlier instructions and the executed will did not establish lack of knowledge or approval. The approach in Michael Fuller v Strum [2001] EWCA 1879 was applied: suspicion must be dispelled by scrutiny of all the circumstances, with the intensity of the inquiry depending on the degree of suspicion.

4. On undue influence, the claimants had to prove improper pressure. Testamentary undue influence requires coercion, as explained in Wingrove v Wingrove (1885) 11 PD 81. Physical or mental weakness may make improper pressure easier to establish, but cannot do so without independent evidence of such pressure, as explained in Killick v Pountney and Anor (31 March 1999). The evidence did not establish coercion. The circumstances were not inconsistent with the will having been made freely, applying Boyse v Rossborough (1857) 6 HLC 2.