Wharton v Bancroft & Ors (Rev 1)

A properly executed will, prepared by a solicitor and read to a capable testator, ordinarily attracts a very strong inference that it records the testator’s intentions. Suspicious circumstances may require further proof, but the propounder retains the ultimate burden of establishing knowledge and approval from the evidence as a whole.

Probate undue influence requires coercion which overbears the testator’s freedom of action. Persuasion is insufficient. The challenger must prove, by cogent evidence on the balance of probabilities, the opportunity and actual exercise of coercion in relation to the will and that the coercion caused its execution.

A terminally ill testator executed a handwritten will prepared by his solicitor. It left his entire estate to the woman with whom he had lived for 32 years and whom he married immediately afterwards. His marriage would otherwise have revoked his existing wills. He died three days later.

The widow sought to prove the will in solemn form. Three daughters challenged it for want of knowledge and approval and alleged that the widow had procured it by undue influence. Testamentary capacity, due execution and the validity of the marriage were ultimately undisputed. The principal questions were whether the testator understood and sanctioned the dispositive terms and, if so, whether his decision resulted from coercion.

1. The 2008 Will was valid, and the counterclaim was dismissed. The testator knew and approved its contents, and the widow had not procured it by undue influence. The court therefore pronounced in favour of the will.

2. The propounder bore the overall burden of proving that the testator understood that he was making a will containing the stated dispositions and that the document represented his testamentary intentions. Capacity and due execution permitted knowledge and approval to be inferred. Because a solicitor had prepared the will and an independent person had read it slowly and clearly to the testator before execution, a very strong inference arose that it represented his intentions. The daughters nevertheless remained entitled to identify suspicious circumstances requiring positive proof beyond that inference: Gill v Woodall [2010] EWCA Civ 1430 and Hoff v Atherton [2004] EWCA Civ 1554 considered and applied.

3. The evidence of the will-making process was compelling. The testator gave the simple instruction that everything should pass to his intended wife. The solicitor took instructions from him alone, asked about relatives and dependants, and accurately expressed the instruction. After a brief period of tiredness, the testator recovered his concentration, reminded the solicitor that his eyesight prevented him from reading the document, listened carefully while it was read aloud and confirmed that it was correct. The medical and factual evidence established that medication had not impaired his understanding.

4. The previous wills, informal statements about benefiting family members and the omission of one daughter did not displace that conclusion. Earlier testamentary intentions had varied, and casual statements about intended dispositions were unreliable. The testator deliberately excluded the daughter whom he did not mention and understood that an absolute gift to his wife left nothing to anyone else.

5. Undue influence required proof of coercion which overpowered freedom of action without convincing the testator’s will. Persuasion did not suffice. The court had to consider the testator’s physical and mental strength, while requiring cogent evidence that coercion, rather than another explanation, caused the will. That involved opportunity, actual influence concerning the will, influence going beyond persuasion, and causation: Edwards v Edwards [2007] WTLR 1387 and Cowderoy v Cranfield [2011] EWHC 1616 applied.

6. Although terminal illness afforded an opportunity for influence, there was no cogent evidence that the widow exercised coercion or that coercion produced the will. An absolute gift to a partner of 32 years, made immediately before marriage and consistently with inheritance-tax planning, was not inherently suspicious. The testator’s sanction was voluntary and expressed his last true wishes.

This was a first-instance probate claim arising after the testator’s daughters lodged a caveat and challenged the 2008 Will. The claimant sought proof of the will in solemn form. No appellate history is stated in the judgment.