Hawes v Burgess & Anor

A person propounding a will must prove that the testator knew and approved its contents. The court considers the whole of the evidence and asks whether suspicious circumstances have been dispelled on the balance of probabilities.

Professional preparation, explanation and due execution provide powerful evidence of validity, but they are not conclusive. Affirmative proof may still be required where a beneficiary controlled the instructions, supplied material misinformation and remained present during the solicitor’s meetings, particularly where the testator’s health and capacity were deteriorating.

The deceased’s 1996 will divided her residuary estate equally between her three children. A 2007 will, prepared by an independent solicitor after arrangements made by one daughter, excluded the deceased’s son from residue. The daughter was found to have controlled the instructions and supplied inaccurate information about lifetime provision for the son.

HHJ Walden-Smith QC pronounced against the 2007 will for lack of testamentary capacity and want of knowledge and approval, and pronounced for the 1996 will. The daughter appealed without challenging the primary findings of fact. The issues were whether those findings justified either ground of invalidity and whether the evidential strength of professional preparation and execution had been properly recognised.

1. The appeal was dismissed unanimously. The trial judge was entitled to find that the person propounding the 2007 will had failed affirmatively to establish that it represented the deceased’s testamentary wishes. The finding of want of knowledge and approval therefore stood.

2. The court must evaluate the totality of the relevant evidence and draw such inferences as are justified on the balance of probabilities. A will prepared by an independent and experienced solicitor, read and explained to the testator and duly executed presents a markedly stronger case for validity than a will made without those safeguards. Those circumstances nevertheless remain evidential and are not conclusive: Gill v Woodall [2011] WTLR 251 applied.

3. The circumstances justified requiring affirmative evidence of knowledge and approval. The deceased had remained close to her son and had never expressed an intention to remove his residuary share. The appellant arranged the solicitor’s appointments, attended both meetings, was the controlling force behind the instructions and supplied inaccurate information concerning lifetime provision for the son. The deceased had not seen the draft before execution. Her deteriorating physical health, mental state and capacity reinforced those concerns.

4. The evidence did not dispel the court’s suspicions. The solicitor’s preparation, explanation and supervision of execution were given appropriate weight, but did not overcome the combination of the appellant’s involvement, the misinformation incorporated into the will and the deceased’s condition.

5. Mummery LJ and Sir Scott Baker expressed serious doubts about the separate finding of lack of testamentary capacity. Where an experienced independent solicitor has met the testator, supervised execution and contemporaneously assessed capacity, strong evidence is required before the will is set aside for incapacity. Particular caution is appropriate with retrospective medical opinion from an expert who never met or examined the testator. The court reached no concluded view on that ground because want of knowledge and approval was sufficient to determine the appeal.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously on the ground that the trial judge was entitled to find want of knowledge and approval. The court expressed no concluded view on testamentary capacity: [2013] EWCA Civ 74.

2. Central London County Court: HHJ Walden-Smith QC pronounced against the validity of the 2007 will for lack of testamentary capacity and want of knowledge and approval, and pronounced for the validity of the 1996 will.

3. Permission to appeal: Lewison LJ granted permission on 14 February 2012.