Tociapski v Tociapski

Where circumstances surrounding execution of a will arouse suspicion, the propounder bears the burden of proving that the testator knew and approved its contents. Testamentary capacity and due execution do not by themselves establish knowledge and approval. The court must consider the whole factual and expert evidence, including dependence, frailty, mental disorder and the absence of a satisfactory explanation for a substantial change in testamentary provision.

An inter vivos transfer may be set aside for undue influence where a relationship of trust, confidence, dependence or vulnerability gives rise to an evidential inference that the transaction calls for explanation, and the other party fails to provide sufficient evidence of full, free and informed thought. A solicitor’s involvement is relevant but is not conclusive.

The claimant and defendant were the two sons of the deceased. The defendant was executor under both a 2007 will, which divided the estate between the sons, and an alleged 2009 will, which left the whole estate to him.

The claimant sought to invalidate the 2009 will, revoke probate, and set aside a 2010 transfer of Hillcrest Cottage to the defendant. The defendant took no part in the proceedings. The issues were whether the deceased knew and approved the 2009 will, whether it was procured by undue influence, and whether the transfer could be set aside for undue influence or non est factum.

1. The court proceeded with the trial in the defendant’s absence under CPR Part 39.31.

2. The circumstances surrounding the 2009 will were sufficient to arouse the court’s suspicion. They included the substantial departure from the 2007 will, the deceased’s frailty and dependence on the defendant, his impaired judgment and probable mental disorder, the defendant’s involvement in preparing the will, and the lack of a rational explanation for excluding the claimant.

3. Although the deceased had testamentary capacity and had duly executed the 2009 will, the defendant had not established, on the balance of probabilities, that the deceased understood its contents or effect. Reading the will over to him was insufficient in the circumstances. The will was therefore set aside for want of knowledge and approval. It was unnecessary to determine undue influence in relation to the will.

4. The court accepted that the deceased lacked mental capacity when he executed the transfer. It outlined the heavy burden applicable to non est factum, namely that the person invoking the doctrine must show an inability, through no fault of his own, to understand the purport of the document. Because the point arose late and was insufficiently argued, the court declined to decide it.

5. Applying the principles in Royal Bank of Scotland v Etridge (No. 2) [2001] UKHL 44, the court held that the transfer called for explanation. The deceased’s dependence and vulnerability, the defendant’s control and involvement, and the implausibility of the suggested estate-planning explanation meant that there was insufficient evidence of full, free and informed thought. The transfer was consequently set aside for undue influence.