Johnson v Johnson

For a will to be effective, the testator must have known and approved its contents. The court asks whether the document represents the testator’s true testamentary intentions. Due execution by a person of sound mind ordinarily gives rise to a presumption of knowledge and approval, especially where the will is straightforward and has no unusual features. That presumption may be displaced by evidence that the testator misunderstood the document, lacked relevant understanding, or was subject to circumstances creating real suspicion. The propounder bears the overall burden of proving knowledge and approval, applying the balance of probabilities.

The claimant challenged two wills made by his mother, Cacheta Johnson, in February and December 1999. He contended that she had not known or approved their contents because she was illiterate, virtually blind or lacked testamentary capacity. Permission to amend the pleadings to advance non-execution and capacity allegations was refused because of delay, prejudice and the weakness of the proposed case. The central issue was whether the December 1999 will represented Cacheta Johnson’s true testamentary intentions.

1. Outcome. The court declared that the will dated 21 December 1999 was Cacheta Johnson’s effective last will and testament. She therefore did not die intestate. The claim was otherwise dismissed.
2. Knowledge and approval. The requirement has its ordinary meaning. Following Fuller v Strum [2002] 1 WLR 1097, the question was whether the will truly represented the testatrix’s testamentary intentions.
3. Presumption and burden. Due execution by a person of sound mind, where the will is readily understandable and contains no extraordinary features, ordinarily supports a presumption that the testator knew and approved its contents. The presumption may be displaced by positive evidence of misunderstanding, lack of awareness of a provision, suspicious circumstances or exploitation of vulnerability. The overall burden remained on the propounder, and the standard was the balance of probabilities.
4. Application. The evidence established that Cacheta Johnson could read sufficiently to understand both wills, was not blind or virtually blind, retained sufficient understanding of her affairs and had testamentary capacity. The December will was short, comprehensible, consistent with the surrounding circumstances, based on her instructions and executed at the solicitors’ office. The court would also have found knowledge and approval of the February will if necessary.
5. Procedure and costs. The proposed challenges to execution and capacity had not been pleaded as required by the Civil Procedure Rules, Rule 57.7. Permission to amend was refused because of delay, lack of adequate explanation, prejudice and the weakness of the proposed case. The claimant was ordered to pay the proceedings’ costs, subject to detailed assessment and legal aid assessment.

First-instance judgment. Permission to appeal was refused because the case involved assessment of evidence and witness credibility and no principle of law was engaged. The claimant remained free to seek permission from the Court of Appeal.