Corinne Dunstan v Andrea Ball

In a probate claim, the propounder bears the burden of proving knowledge and approval, assessed holistically from all relevant evidence. Proper execution, preparation by a solicitor and reading over of a straightforward will provide powerful evidence, but are not conclusive. Suspicious circumstances must be addressed, although an unequal or surprising disposition is not enough by itself.

Testamentary undue influence is a question of fact. There is no presumption. The challenger must prove coercion or fraud which overbore the testator’s free judgment. Fraudulent calumny requires dishonest aspersions about a potential beneficiary which materially poisoned the testator’s mind. The court should give effect to a valid testamentary disposition where the evidence permits.

The claimant, one of the deceased’s daughters and executrix under the disputed will, sought probate in solemn form of her mother’s 2016 will. The defendant, the deceased’s other daughter, counterclaimed on the grounds of want of knowledge and approval, undue influence and fraudulent calumny. A claim based on lack of testamentary capacity had been withdrawn.

The central issues were whether the deceased understood and approved the will, whether the claimant had overborne her free will or poisoned her mind against the defendant, and what procedural consequences followed from the claimant’s failure initially to call the attesting witnesses.

1. Undue influence and fraudulent calumny. The counterclaims failed. There is no presumption of undue influence in relation to a testamentary disposition, and the burden rests on the person alleging it. The facts did not show coercion, fraud or pressure which overbore the deceased’s free judgment. The claimant’s caring role gave her potential influence, but the evidence did not show that it was exercised to remove the deceased’s volition.
2. The defendant had chosen not to visit her mother after November 2015. The claimant had not prevented visits or communications and had not inappropriately discussed the defendant with the deceased. The deceased’s exclusion of the defendant was therefore not shown to result from undue influence or fraudulent calumny.
3. Knowledge and approval. The deceased was not materially hard of hearing, mentally unwell or cognitively impaired in June 2016. She was capable of giving instructions, understanding the will and deciding who should benefit. The will was straightforward. The attendance notes showed that she gave instructions, was shown the will, had it explained and engaged with its effect. The claimant’s involvement and the will’s unequal effect did not displace the conclusion that the deceased knew and approved its contents.
4. The court declined to draw an adverse inference from the initial absence of the attesting witnesses. Their attendance notes were reliable on the balance of probabilities, although the quality of the explanation could not be tested. The court expressed no concluded view on whether an attesting witness remains necessary where due execution is not disputed, but adjourned to enable Mr Robinson to give evidence, applying the public interest in upholding valid testamentary dispositions.
5. The parties subsequently agreed that the will should be pronounced in solemn form and probate granted to the claimant. Costs remained to be determined.