RAMZY EDMUND JASON ABDELNOOR & Anor v ELTEN HERBERT BARKER & Ors

In a probate challenge, the propounder must prove that the testator knew and approved the will. The court should assess all the evidence holistically. Proper execution, professional preparation, explanation and witnessing are highly significant, but are not conclusive.

There is no presumption of undue influence in relation to a will. The challenger must prove, on the balance of probabilities, that coercion overbore the testator’s free will. The testator’s age, frailty and dependence are relevant to the pressure required, but unfairness or a disposition benefiting the person involved does not establish coercion. The court must not substitute its view of fairness or equality for the testator’s wishes.

The claimants, executors and beneficiaries under the 2018 Will, sought probate in solemn form. The first defendant contested the will on the grounds of lack of knowledge and approval and undue influence. The testator was 96 when she made the will and physically frail, but testamentary capacity was not in issue.

The 2018 Will altered the distribution of the residue. It reduced the inheritance of two grandchildren whose parent had predeceased the testator, while benefiting her surviving children. The central questions were whether the testator understood and approved those changes and whether her eldest son had coerced her into making them.

1. Knowledge and approval. The claimants bore the burden of proof. Applying the principles in Gill v Woodall [2011] Ch 380, and the holistic approach explained in Simon v Byford [2014] EWCA Civ 280, the court considered the totality of the evidence rather than treating execution and reading as conclusive or applying a rigid two-stage test.
2. The will drafter was independent and careful. She met the testator on several occasions, identified that the proposed changes disadvantaged two grandchildren, explained that consequence in writing and in person, and read the operative provisions to the testator before execution. The court accepted that the testator understood the proposed distribution and knew and approved the will.
3. Undue influence. There is no presumption of undue influence in a testamentary case. The challenger bears the burden of proving coercion on the ordinary civil standard. The serious nature of the allegation affects the assessment of inherent probabilities and the strength of evidence required, but does not create a higher standard of proof. The court applied Re Good (deceased) Carapeto v Good [2002] EWHC 640 (Ch) and Re H (Minors) [1996] AC 563.
4. The phrase in Edwards v Edwards [2007] EWHC 1119 (Ch) suggesting that the facts must be inconsistent with every other hypothesis overstated the law. The correct test remained proof, on the balance of probabilities, that the testator’s will was overborne by coercion or fraud.
5. The son’s influence, involvement in arranging the will, financial benefit, hostility towards the challenger and the testator’s frailty did not establish coercion. A court must not decide what constitutes fair or equal treatment in place of the testator. The 2018 Will was valid and the counterclaim was dismissed.