Barnaby & Anor v Johnson (aka Smith)

Where a will is duly executed and rational on its face, capacity is presumed. The objector must raise a real doubt; the burden then returns to the propounder to establish capacity. A compliant attestation clause gives substantial evidential support to due execution.

Testamentary undue influence requires proof that coercion or fraud overbore the testator’s free judgment. Mere persuasion, family pressure or an apparently unequal disposition is insufficient. Proper execution, instructions taken by an experienced solicitor, and reading the will to the testator strongly support knowledge and approval.

The claimants, as personal representatives of Mrs Maudlin Bascoe’s estate, sought probate of her will dated 27 April 2005. Ms Patricia Johnson challenged the will on testamentary capacity, undue influence, forgery, and want of knowledge and approval. She also raised an alleged later will dated 2013.

The court considered the evidence of the drafting solicitor, attesting witnesses, medical records and family members. The central questions were whether the 2005 will was validly executed, whether Mrs Bascoe had testamentary capacity and acted freely, and whether she understood and approved its terms.

1. Procedural breach. Although Ms Johnson had breached an order requiring evidence about wills, the court allowed her to participate. The breach was serious, but the claimants suffered no prejudice, had prepared for a defended trial, and excluding her risked unfairness and satellite litigation contrary to the overriding objective.
2. Testamentary capacity and execution. Applying In re Key [2010] 1 WLR 2020, the duly executed and rational will raised a presumption of capacity. Ms Johnson produced no credible evidence or expert evidence sufficient to raise a real doubt. The medical records, the drafting solicitor’s evidence and the surrounding circumstances independently established capacity. The attestation clause and witness evidence supported the presumption of due execution under Sherrington v Sherrington [2005] EWCA Civ 326, and the alleged spelling and date alterations did not undermine validity.
3. Undue influence. The burden lay on Ms Johnson to prove coercion or fraud. Undue influence in probate requires pressure which overbears the testator’s volition without convincing judgment; mere persuasion or appeals to affection are insufficient. The evidence did not establish coercion, fraudulent calumny or any conduct inconsistent with Mrs Bascoe acting as a free agent. The alleged incident relied on was unsupported and occurred years after the will.
4. Forgery and knowledge and approval. The forgery allegation was unsupported and contradicted by the evidence of the drafting solicitor and attesting witnesses. The will had been prepared from Mrs Bascoe’s instructions, read over to her, and signed in the presence of the witnesses. Applying Gill v Woodall [2011] EWCA Civ 1430, these circumstances raised a strong presumption that she knew and approved the will’s contents. That challenge also failed.
5. Alleged 2013 will. The court found that no such will, whether draft or executed, had been established. The claimants succeeded and the 2005 Will was upheld.

The judgment is a first-instance decision. Earlier interlocutory orders of Deputy Master Lloyd and Deputy Master Henderson are described, but no appeal from this decision is stated.