Turner v Phythian & Anor

A will may be invalid where the testator lacked testamentary capacity or did not know and approve its contents. Testamentary capacity requires understanding the nature and effects of making a will, the extent of the property disposed of, and the claims to which the testator ought to give effect, without a disorder of mind affecting those faculties. Where a will is duly executed and rational on its face, capacity may be presumed, but credible evidence raising a real doubt shifts the evidential burden back to the propounder. Circumstances in which a beneficiary prepared the will require particularly vigilant examination. Proprietary estoppel requires both a sufficiently clear assurance and reliance causing detriment.

Iris Wilson died leaving a will under which her personal effects, her principal property and the residue of her estate passed to Richard and Pamela Phythian. Her niece, Lynda Turner, challenged the will on the grounds of defective attestation, lack of testamentary capacity, and lack of knowledge and approval. She also opposed an alternative proprietary estoppel claim by Mr Phythian, who had helped Iris with her affairs and the upkeep of the property.

The court determined whether the will was validly executed, whether Iris had capacity when it was made, whether she understood and approved its contents, and whether Mr Phythian had acquired an equity despite the will’s invalidity.

1. The will was properly attested under section 9 of the Wills Act 1837. The evidence did not establish that the witnesses were absent from Iris’s presence when she signed.

2. The governing test for testamentary capacity was that stated in Banks v Goodfellow (1870) LR 5QB 549. Iris had to understand the nature and effects of making a will, the extent of the property disposed of, and the claims to which she ought to give effect. She also had to be free from a disorder of mind affecting those faculties.

3. Following the burden-of-proof approach in Key v Key [2010] EWHC 408 (Ch), the duly executed and facially rational will initially attracted a presumption of capacity. The evidence of Iris’s longstanding fragile mental state, severe bereavement reaction, physical frailty, contemporary concerns about her condition, observations at her brother’s funeral and the medical report raised a real doubt. The burden therefore shifted to Mr Phythian, who failed to establish capacity. The will was invalid on that ground.

4. The same lack of capacity meant that Iris could not know and approve the contents. Independently, the circumstances required the court to be particularly vigilant under Barry v Butlin (1838) 2 Moore’s Privy Cases 480. Mr Phythian had prepared the will, was its principal source of evidence, and was its exclusive beneficiary with his wife. The limited instructions, absence of independent advice and evidence concerning the family relationships did not provide cogent proof that Iris understood and approved the dispositions.

5. The alternative proprietary estoppel claim failed. Although Jennings v Rice [2002] EWCA Civ 159 was cited on the nature of the equity, there was neither a sufficiently clear promise that North Lodge would be left to Mr Phythian nor reliance on such a promise.

6. The grant of probate was revoked. Iris was declared to have died intestate. Letters of administration were granted to Mrs Turner and Pat Jolly, the Land Registry entries were ordered to be rectified, and an enquiry into estate assets in the defendants’ hands was ordered.