GAVIN BOAST v LINDA BALLARDI & Ors

A will is invalid for want of testamentary capacity where the testator could not understand the nature and effect of the act, the extent of the property, or the claims requiring consideration, or where a disorder or delusion affected the dispositions. The propounder bears the burden of proving capacity once a real doubt is raised. Evidence of rational execution is insufficient where material delusions may have influenced the testamentary decision and the solicitor failed to investigate that issue. A duly executed and facially rational earlier will may be upheld where the later will is invalid.

The claimant, the deceased’s great nephew and executor and beneficiary under a 2006 will, sought probate of that will and an order pronouncing against a later 2013 will. Under the 2013 will, the claimant received £15,000, while the residue was left on trust for the deceased’s two sisters, both of whom had predeceased him.

The claim was determined at first instance following a trial on written evidence. The central issues were whether the claimant had validly served the defendants and whether the deceased possessed testamentary capacity when he executed the 2013 will.

1. Service. The claimant validly served the Australian defendant under CPR 6.8(a), because she had provided a UK address for service. Service was not invalid merely because photocopies, rather than hard copies supplied by the court, had been sent. The introduction of electronic working meant that authorities requiring service of a sealed hard copy no longer applied.
2. Testamentary capacity. The applicable test was that stated in Banks v Goodfellow (1869-70) LR 5 QB 549. The testator had to understand the nature and effects of the testamentary act, the extent of the property disposed of, and the claims to which effect should be given. He also had to be free from a disorder or delusion that affected his affections, sense of right or testamentary dispositions.
3. Burden of proof. The propounder bears the burden of establishing capacity. Due execution and a rational-looking will raise a presumption of capacity, but the objector may discharge the evidential burden by raising a real doubt. The burden then returns to the propounder as a positive burden to prove capacity, applying Ledger v Wootton [2007] EWHC 2599 (Ch).
4. The claimant raised a real doubt, and the evidence established that the deceased lacked capacity when executing the 2013 will. His persecutory delusions concerning a family member extended to the claimant and caused the decision to exclude him from the residue. The solicitor’s contrary impression was insufficient because he had not investigated the deceased’s understanding of his property or whether the delusions affected the testamentary decision.
5. The court pronounced against the 2013 will and pronounced in favour of the duly executed and facially rational 2006 will, which was the deceased’s last valid will.