Andrew Morris Jenkins & Anor v Sarah Caroline Ingham Evans

Testamentary capacity is assessed by applying the Banks v Goodfellow test to the particular will, testator and estate. A rationally expressed and duly executed will gives rise to a presumption of capacity, but a real doubt shifts the evidential burden back to the propounder. The solicitor’s evidence may be highly significant, although it is never conclusive.

The so-called golden rule is guidance for solicitors, not a rule of law. Compliance is not essential to validity, and non-compliance does not establish incapacity. Knowledge and approval are generally established by proving capacity and due execution, subject to a holistic assessment where suspicious circumstances arise. Testamentary undue influence requires proof, on the balance of probabilities, that coercion or fraud caused the will to be made.

The claimants, acting as executors of Robert Glyn Evans’s estate, sought probate in solemn form of his will dated 31 March 2017. The defendant, his daughter, challenged that will on grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence. She alternatively sought recognition of an earlier will dated 17 February 2006 or intestacy.

The dispute concerned the replacement of the testator’s children as executors by two solicitors and the introduction of modest pecuniary legacies. The court also determined that an interest held by a trust established under the testator’s late wife’s will was an equitable charge over the property, rather than a beneficial or legal ownership interest. The central questions were whether the 2017 will was validly made and whether the defendant had established any ground for setting it aside.

1. The claim succeeded. The court pronounced in favour of the 2017 Will and directed that the defendant’s caveat cease to have effect.
2. Applying Banks v Goodfellow, the testator understood the nature and effect of making a will, the extent of his property, and the claims of those affected by it. The estate was simple and the will straightforward. The change of executors and the legacies were rational responses to the breakdown in relations between the testator’s children.
3. The golden rule was not observed, but Key v Key, Sharp v Adam and Burns v Burns establish that it is a matter of good practice rather than a legal requirement. Non-compliance did not invalidate the will. The experienced will-draftsman’s evidence, supported by attendance notes, correspondence and medical records, carried substantial weight.
4. Capacity and due execution meant that knowledge and approval were established in this case. The estimated value of the estate, which overlooked the equitable charge over the property, did not undermine that conclusion because the testator understood his assets and intended beneficiaries.
5. The defendant did not prove undue influence. A suggestion or advice about appointing professional executors did not amount to coercion. The evidence did not show that the testator’s will was overborne, nor that fraudulent calumny had caused the dispositions.
6. The trust’s interest in the property was an equitable charge securing repayment, not a beneficial ownership interest giving the defendant a right to control the property or to be consulted about the testator’s will.

This was a first-instance probate claim. The judgment records that an earlier application for permission to appeal a case-management order was refused by Richards J as totally without merit; no merits appeal was determined in this judgment.