Gardiner v Tabet & Anor

For a will to be validly executed, the court must assess all the evidence on the balance of probability. An apparently duly executed will attracts a rebuttable presumption of due execution, stronger where it contains a full attestation clause.

Mental disorder does not of itself remove testamentary capacity. The question is whether the testator understood the act and effect of making a will, the extent of the estate, the relevant moral claims, and whether mental disorder or delusion prevented a rational disposition. Knowledge and approval concern whether the will represents the testator’s intentions. They may be inferred from due execution and capacity where circumstances are not suspicious, but must be affirmatively proved where suspicion arises.

The claimant sought to establish the validity of a document dated 29 May 2017 as the last will of Eric Tabet. The defendants, Eric’s siblings, disputed whether Eric had signed the document in the presence of two witnesses, whether he had testamentary capacity, and whether he knew and approved its contents.

The trial concerned the circumstances in which the document was prepared and signed while Eric was seriously ill with a brain tumour, together with the effect of the medical, lay, documentary and expert evidence. The central issues were due execution, testamentary capacity, and knowledge and approval.

1. Due execution. Section 9 of the Wills Act 1837 requires a will to be in writing, signed by the testator or at his direction, with the requisite intention, and signed or acknowledged in the presence of two witnesses. An apparently duly executed will attracts a rebuttable presumption of due execution. The presumption is especially strong where there is a full attestation clause, but a weaker presumption arises even without formal attestation. The court nevertheless had to determine the issue on all the evidence, bearing in mind the legal burden and the need for cogent evidence before finding serious deception. Sherrington v Sherrington [2005] EWCA Civ 326.
2. Testamentary capacity. The governing test was whether Eric understood the nature and effect of making a will, the extent of his property, and the claims to which he ought to give effect, and whether mental disorder or delusion prevented a rational disposition. A person with mental illness may retain capacity if the disorder does not affect those abilities. The test concerns the ability to understand matters when they are present to the testator’s mind; constant memory or recall is unnecessary. Banks v Goodfellow (1870) LR 5 QB 549; Simon v Byford [2014] EWCA Civ 280.
3. The evidence of medical practitioners, contemporaneous records, recordings, experts and lay witnesses was valuable but none was conclusive. The court should weigh the evidence together rather than apply a rigid hierarchy. Eric’s temporary improvement after steroid treatment, and his lucid periods when with friends and family, established capacity on the relevant date. He understood the nature of the will, his estate and the competing claims upon it.
4. Knowledge and approval. The requirement was whether the will truly represented Eric’s testamentary intentions. It was approached objectively and did not involve a value judgment about the fairness of the disposition. Although the circumstances required close scrutiny, the evidence established that Eric understood the simple contents of the will and approved them. Fuller v Strum [2001] EWCA Civ 1879.
5. The document was signed by Eric on 29 May 2017 in the presence of the two witnesses. Eric had testamentary capacity and knew and approved the contents. The claim therefore succeeded.

First-instance decision. No earlier procedural or appellate decision is stated in the judgment.