Poole & Anor v Everall & Ors

A will prepared by, and substantially benefiting, a carer requires particularly convincing evidence that the testator knew and approved its contents. Capacity to make a will is distinct from knowledge and approval: a testator may be capable of understanding relevant matters if appropriately assisted, while the court separately asks whether the will was actually understood and freely adopted. An apparently regular will carries a strong presumption of due execution, rebutted only by strong evidence. Testamentary undue influence requires coercion, and surrounding circumstances must support that inference as the only inference available. On the facts, the December will failed for want of proof of knowledge and approval. The February will was admitted to probate in solemn form.

David Poole, who had suffered serious brain and psychiatric injuries and whose financial affairs were managed by a deputy, executed a December 2012 will leaving 95% of his estate to Mark Everall, his long-term paid carer. His brothers challenged that will on grounds including defective execution, lack of testamentary capacity, want of knowledge and approval, and undue influence. They also sought proof in solemn form of an earlier February 2012 will, under which family members and charities benefited.

The central issues were whether the December will was duly executed, whether David had testamentary capacity and knew and approved its contents, and whether the February will should be admitted.

1. December will: The challenge based on execution failed. An apparently regular will, supported by a perfect attestation clause, attracts a strong presumption of due execution. The evidence did not amount to the strongest evidence required to displace that presumption, and the positive evidence supported the conclusion that both witnesses were present together when David signed.
2. Testamentary capacity: Applying the test in Banks v Goodfellow (1869-70) LR 5 QB 549, the propounders had to establish that David understood the nature and effect of making a will, the extent of the property disposed of, and the claims on his bounty. A formal contemporaneous medical assessment was desirable but not essential. Capacity to understand complex matters with suitable explanation is distinct from whether the testator actually received an adequate explanation, which belongs to knowledge and approval. David had capacity when he executed the December will.
3. Knowledge and approval: The burden remained on Mr Everall. The circumstances required particularly convincing evidence: David was vulnerable and suggestible; Mr Everall had prepared the will and stood to receive almost the whole estate; and the will removed earlier gifts to family and charities. Mr Everall’s evidence was self-serving and unsupported. The will was not adequately read or explained to David, and there was no satisfactory evidence that he understood the removal or reduction of the previous gifts. Knowledge and approval were therefore not proved.
4. Undue influence: In this context undue influence means coercion. The claimants had to show that coercion was the only inference available. That demanding test was not met, although the more likely explanation was that the will’s terms had been presented to David in a way which prevented full consideration of his previous intentions.
5. February will: The February 2012 will was admitted to proof in solemn form. Mr Lloyd had taken careful instructions, explained the relevant choices, and David’s decision not to include a gift to Mr Everall was not coerced.

There was a declaration for the February will and against the December will.