Ashkettle & Anor v Gwinnett

Testamentary capacity requires the testator to understand the nature and consequences of making a will, the extent of the property disposed of, and the claims of those who might expect benefit. A will may be valid despite being unfair or irrational, but surprising or inexplicable terms may materially weaken the evidence of capacity and knowledge and approval. Where an objector raises a real doubt about capacity, the evidential burden shifts to the person propounding the will. Evidence from an experienced solicitor is important but is not conclusive unless based on a proper assessment and accurate information.

This first-instance probate action concerned the validity of a will dated 18 January 1999 made by Louisa Ann Ashkettle. Under that will, her estate passed to her daughter, Rosalind Gwinnett, while her two sons were excluded. The sons sought probate of an earlier will dated 2 October 1986, which divided the estate equally between the three children.

The challenged will was alleged to be invalid because it was not properly executed, Mrs Ashkettle lacked testamentary capacity, she did not know and approve its contents, and it was procured by undue influence. The court first considered execution, capacity, and knowledge and approval. Undue influence arose only if the will was otherwise valid.

1. Execution. The evidence, although weak, established that Mrs Ashkettle gave a sufficient direction for the solicitor to sign the will on her behalf. The will was therefore, albeit tentatively, treated as properly executed. The court applied Barrett v Bem [2012] Ch 573 concerning the need for a positive direction or instruction.
2. Testamentary capacity. The governing principles were derived from Banks v Goodfellow (1870) LR 5 QB 549. Mrs Ashkettle had progressive dementia, could no longer communicate meaningfully by the end of 1998, and was unable to appreciate the extent of her estate or the moral claims of her sons. The terms excluding the sons were irrational and inexplicable in the context of her family history. They were not reasonably explained as caprice or vindictiveness.
3. The court adopted the approach summarised in Cowderoy v Cranfield [2011] EWHC 1616 and applied the evidential-burden reasoning in Key v Key [2010] 1 WLR 2020. The sons had raised a real doubt about capacity, shifting the evidential burden to the propounder. That burden was not discharged. The court went further and found that Mrs Ashkettle lacked testamentary capacity when the will was made.
4. The observations in Hawes v Burgess [2013] EWCA Civ 94 did not make the solicitor’s opinion conclusive. It had to be based on proper assessment and accurate information. Here, the solicitor’s brief and partly filtered dealings did not establish capacity.
5. Even if Mrs Ashkettle had capacity, she did not know and approve the will’s contents. She did not read it herself, could not properly absorb it when read, and there was no reliable evidence that she understood the property disposed of, the effect of the will, or the reasons for excluding her sons. The court therefore pronounced against the 1999 will, granted letters of administration with the 1986 will annexed, and dismissed the counterclaim. Undue influence did not require determination.

First-instance decision. The judgment does not state any prior appellate history.