Jeffery & Anor v Jeffery

Testamentary capacity requires the testator to understand the nature and effect of making a will, the extent of the property disposed of, and the claims to which effect ought to be given. Where a duly executed will appears rational, capacity may be presumed unless the objector raises a real doubt; the propounder must then establish capacity.

Actual undue influence requires proof of coercion which overbore the testator’s free volition. Persuasion, advice and appeals to family feeling are insufficient. Knowledge and approval are determined from all the relevant evidence. The court may replace an executor only where special circumstances make that necessary or expedient.

The claimants, the executors of the deceased’s 2007 will, sought probate in solemn form. The defendant alleged that the deceased lacked testamentary capacity, did not know or approve the will, acted under Nicholas’s undue influence, and that the will was affected by fraud. He also sought the replacement of the executors and advanced alternative claims concerning earlier wills.

The action was retried after the court set aside an earlier judgment entered following the defendant’s failure to comply with a disclosure order. The central issues were whether the 2007 will was validly made and whether either executor should be replaced.

1. Capacity. Applying the principles in Banks v Goodfellow (1870) LR 5 QB 549, as explained in Hoff v Atherton [2004] EWCA Civ 1554, the deceased understood that she was making a will, understood the extent of her property, and understood the claims upon it. The medical and lay evidence showed no mental illness, medication effect or physical condition affecting those abilities. The claimants proved capacity, and the defendant raised no real doubt.
2. Undue influence. The defendant had to prove actual coercion which overbore the deceased’s will and induced a testamentary disposition she would otherwise not have made. Persuasion and advice do not suffice. The evidence was consistent with the deceased making the will freely and for rational reasons. The allegation failed.
3. Knowledge and approval. The court considered the totality of the evidence, including the solicitor’s explanation of the will’s provisions. The deceased understood and approved its contents. The approach described by Lord Neuberger MR in Gill v Woodall [2011] Ch 380 was taken into account.
4. Fraud and executors. No extrinsic fraud was established. Under section 116(1) of the Senior Courts Act 1981, there were no special circumstances making it necessary or expedient to replace either executor.
5. The 2007 will was valid. Probate was pronounced in solemn form and the claimants were given liberty to take the grant. The court did not need formally to determine the validity of the earlier wills.

The judgment concerned a retrial in the High Court following the setting aside of the court’s earlier judgment of 5 November 2012. No separate appellate decision is stated.