Charles Steven Bond & Anor v Denise May Webster & Ors

In a contentious probate claim, the propounder must prove testamentary capacity where the evidence raises a real doubt. The Banks v Goodfellow test remains applicable notwithstanding the Mental Capacity Act 2005. Capacity depends on the ability to understand the nature and effect of making a will, the extent of the estate, and the claims to which effect ought to be given, together with the absence of a relevant insane delusion.

Knowledge and approval is assessed holistically. Suspicious circumstances, vulnerability, beneficiary involvement and an inadequate explanation of substantial changes from earlier wills may prevent the propounder proving that the document represents the testator’s true wishes. Non-compliance with the Golden Rule is not itself fatal, but may be significant in the overall assessment.

Reginald Charles Bond’s sons, Charles and Graham, sought to uphold a will made in November 2019 and a codicil made in December 2019. The documents substantially favoured them and excluded Reg’s other two children, Michael and Lindsay, from succession to the principal business interests.

Michael and Lindsay challenged the documents on the grounds that Reg lacked testamentary capacity and did not know and approve their contents. The dispute concerned the circumstances in which instructions were obtained, the involvement of persons benefiting under the documents, Reg’s cognitive impairment and the complexity of the family business transactions. The central issues were whether the 2019 Will and Codicil were valid and, if not, whether the August 2017 Will should be admitted to probate.

1. Disposition. The claimants failed to prove that Reg had testamentary capacity or that he knew and approved the contents of the 2019 Will and Codicil. The court pronounced against their validity and pronounced in solemn form for the force and validity of the August 2017 Will.
2. Capacity. The common-law test in Banks v Goodfellow remained applicable. Reg’s frontal-lobe syndrome and treatment produced cognitive and behavioural changes and fluctuating capacity. The court was not satisfied that he understood the extent of his estate or the effect of leaving the bulk of it to two children, contrary to the equal treatment adopted in earlier wills.
3. The complexity of the Buy Out, the changes in the company structure and the creation of TWDHL were not adequately explained to Reg. The evidence did not establish that the instructions for the principal gifts came voluntarily and directly from him. The will-making process was instead substantially controlled by Charlie, Mr Rann and persons aligned with Charlie.
4. The court placed limited weight on Ms Martin’s assessment because she did not record a proper capacity assessment, relied on instructions obtained through others and failed to comply with the Golden Rule. Dr Khan’s letter was not a testamentary-capacity assessment and could not resolve the evidential concerns.
5. Knowledge and approval. Assuming capacity, the same evidence established numerous suspicious circumstances. Reg was not shown to have read the will, the explanation of the principal gift appeared only at the final stage, and the effect of excluding Michael and Lindsay from the bulk of the estate was not clearly explained. The claimants therefore failed to prove that the 2019 Will represented Reg’s true testamentary wishes. The Codicil fell with the 2019 Will.