Couwenbergh v Valkova

In a contentious probate claim, a will that is regular on its face attracts a rebuttable presumption of due execution. Strong evidence is required to displace that presumption. Testamentary capacity requires more than understanding that a will is being made and what property is disposed of. The testator must understand the nature and effect of the act, the extent of the property, and the claims of persons who ought to be considered as possible beneficiaries. Evidence of cognitive deterioration may shift the burden to the propounder to prove capacity on the balance of probabilities. Where circumstances surrounding execution excite the court’s suspicion, the propounder must also prove knowledge and approval. A court may decline to determine that issue where capacity has already invalidated the will and the issue has not been properly argued.

The claimant challenged two October 1990 wills made by Alice Adam, which left her estate to the defendant, Dr Bilyana Valkova, or alternatively to her sister. The claimant alleged want of due execution, testamentary incapacity, and want of knowledge and approval. A first trial before Carnwath J resulted in probate of the later will, but the Court of Appeal subsequently set that decision aside and remitted the action for retrial after evidence raised doubt about execution. The central issues at the retrial were whether the 1990 wills were duly executed and whether Mrs Adam had testamentary capacity when they were made.

1. Disposition. The claimant succeeded in challenging the 1990 wills. The court found that they were duly executed, though with considerable hesitation, but that Mrs Adam lacked testamentary capacity when she signed them. The issue of knowledge and approval was not determined. Probate was pronounced in favour of the unchallenged 1978 will, and the grant obtained on the basis of the earlier judgment was to be revoked.
2. Due execution. A will regular on its face and containing a standard attestation clause gives rise to a rebuttable presumption of due execution. Following Sherrington v Sherrington [2005] EWCA Civ 326, the presumption is not displaced by mere lack of recollection or positive evidence falling short of the strongest evidence. The evidence concerning both sets of witnesses did not meet that standard.
3. Testamentary capacity. The governing principles from Banks v Goodfellow (1870) LR5 QB 549 required Mrs Adam to understand the nature and effect of making a will, the extent of her property, and the claims to which she ought to give effect. Boughton v Knight (1873) LR 3 P&D 64 confirmed the need to recall possible beneficiaries. The evidence of progressive dementia, memory loss, failure to recognise close relatives, and irrational resentment established that she could not recall persons who ought to have been considered. The burden therefore lay on Dr Valkova to prove capacity, and she failed to discharge it.
4. Knowledge and approval. The circumstances of execution excited the court’s suspicion, including the defendant’s role as sole intermediary with the solicitor and sole beneficiary. Under the principles explained in Sherrington v Sherrington [2005] EWCA Civ 326, the propounder would have had to establish knowledge and approval. The court declined to determine that issue because the finding of incapacity was sufficient and the issue had not been properly addressed in submissions. An allegation of undue influence could not be introduced under cover of a plea of want of knowledge and approval: Re Stott (Deceased) [1980] 1WLR 246.

1. Court of Appeal. The Court of Appeal set aside Carnwath J’s order following the 1998 trial and remitted the probate action for retrial. The judgment identifies the appeal as having succeeded, but does not state its neutral citation.
2. High Court (Chancery Division). At retrial, the court upheld the validity of the 1978 will, found the 1990 wills invalid for want of testamentary capacity, and directed revocation of the grant based on the earlier decision.