Carolyne Mary Parfitt v Victoria Jane Jones & Anor

A will is valid if the testator understood the nature and effect of making it, the extent of the property disposed of, and the claims to which effect ought to be given. Memory impairment or a later diagnosis of dementia does not, without evidence of relevant impairment at the time, establish incapacity.

Testamentary undue influence requires proof that coercion or fraud overbore the testator’s free will. There is no presumption of undue influence. Suspicious circumstances concerning a will require the propounder affirmatively to establish knowledge and approval, but age, dependence, assistance from a beneficiary, or an unequal or disappointing disposition do not themselves invalidate a will.

Mary Barbara Wadge died in 2018, leaving three children. Carolyne sought probate of a will made in 2008. The will appointed Carolyne and HSBC Trust Company (UK) Limited as executors, made various specific gifts, divided the residue among other family members, and expressly excluded Victoria.

Victoria and Svetlana, representing the estate of James Wilkes, challenged the will on testamentary incapacity, undue influence, and want of knowledge and approval. Victoria also counterclaimed for intestacy and letters of administration. The central issues were whether Mary had testamentary capacity when instructions were given and the will executed, whether Carolyne had coerced or fraudulently influenced her, and whether Mary knew and approved the will’s contents.

1. The will was upheld. The court pronounced in favour of the will and dismissed Victoria’s counterclaim.
2. Under Banks v Goodfellow [1870] LR 5 QB 549, the relevant questions were whether Mary understood the nature and effect of making a will, the extent of the property disposed of, and the claims to which she ought to give effect. The evidential burden could shift where a duly executed and apparently rational will raised a real doubt, as explained in Hughes v Pritchard [2022] EWCA Civ 386. The court, rather than an expert, had to determine capacity.
3. Mary had some short-term memory problems, but the evidence did not show any relevant lapse of understanding in October or November 2008. The will and instructions were rational. Later confusion was often associated with urinary infections, cognitive tests before and after the will commonly indicated normal or near-normal function, and dementia was not diagnosed until 2011. A later diagnosis could not establish incapacity at the earlier date.
4. Testamentary undue influence was a question of fact. Under Edwards v Edwards [2007] EWHC 1119 (Ch), the burden lay on the person alleging it, with no presumption. The claimant had to show coercion which overbore Mary’s will, or fraud. Mary’s vulnerability and Carolyne’s assistance did not prove that pressure had been exercised. The will was readily explicable by the history of the family relationships and Mary’s own wishes.
5. The court was satisfied that Mary knew and approved the contents. Although Carolyne was present when instructions were given and was a principal beneficiary, she established that the will corresponded with Mary’s rational instructions. The principles in Fuller v Strum [2001] EWCA Civ 1879 and Hawes v Burgess [2013] EWCA Civ 74 required scrutiny of suspicious circumstances, but the evidence dispelled any suspicion.