Nutt & Anor v Nutt

In a probate claim, the propounder must prove due execution and testamentary capacity. Where a duly executed will appears rational, capacity is presumed unless the objector raises a real doubt; the propounder must then establish capacity positively. Knowledge and approval require a holistic assessment of all relevant evidence, rather than a separate two-stage inquiry. Testamentary undue influence is a question of fact. There is no presumption of such influence, and the claimant must show coercion or fraud on facts inconsistent with any other explanation.

The claimants sought probate of their mother’s 2005 will, which divided the residuary estate equally between the three children. The defendant relied on a later will dated 7 April 2010, which left the mother’s house to him and thereby revoked the 2005 will if valid.

The issues were whether the 2010 will was executed by the deceased, whether she had testamentary capacity, whether she knew and approved its contents, and whether its execution was procured by undue influence.

1. Execution. Under section 9 of the Wills Act 1837, the defendant bore the burden of proving the statutory requirements. The evidence of the attesting witnesses and other witnesses established that the deceased had executed the 2010 will.
2. Testamentary capacity. Applying Banks v Goodfellow (1869-70) LR 5 QB 5494, the court considered whether the deceased understood the nature and effect of making a will, the extent of her property, and the claims to which she ought to give effect, without a disorder or delusion affecting her decision. The later diagnosis of dementia did not itself establish a real doubt about capacity at the earlier date. The deceased’s contemporaneous conversations showed sufficient understanding. She had capacity.
3. Knowledge and approval. The court adopted the holistic approach approved in Gill v Woodall [2011] Ch 380. It considered the circumstances of execution, the deceased’s character and mental condition, and her repeated statements that she intended the defendant to receive the house. The absence of evidence that she read the will was not determinative. The overwhelming inference was that she knew and approved its contents.
4. Undue influence. Following the summary in Re Edwards [2007] EWHC 1119 (Ch), testamentary undue influence required proof of coercion, in the sense of pressure overbearing the testator’s free judgment, or fraud. The burden lay on the claimants, and the facts had to be inconsistent with any other explanation. The evidence showed affection and attentiveness, not domination or coercion.
5. The 2010 will was valid. The claim to establish the 2005 will therefore failed.