Fiona Burgess v Julie Elizabeth Whittle & Anor

Testamentary capacity requires the testator to understand the nature and effects of making a will, the extent of the property, and the claims to which effect should be given, without an insane delusion affecting the disposition. Mental disorder alone is insufficient; its effect must be serious enough to negate capacity. Where testamentary capacity and due execution are established, knowledge and approval are presumed unless suspicious circumstances require affirmative proof. Loss of the original will does not prevent probate where the evidence shows that it was not lost or destroyed by the testator with an intention to revoke it. A grant may issue on a copy will, limited until the original is found.

The claimant, one of the deceased’s three adult children, sought probate in solemn form of a will dated 12 June 2014. The first defendant initially challenged the will on grounds including lack of testamentary capacity, want of knowledge and approval, undue influence, and loss of the original. She later accepted the expert evidence establishing capacity, became neutral on knowledge and approval, withdrew the undue-influence case, and accepted that the original might have been lost after death. The court determined whether the 2014 will was validly executed, whether the presumptions concerning knowledge and approval and revocation applied, and whether probate could be granted on a copy.

1. Validity and capacity. The court accepted the unchallenged expert evidence that the deceased satisfied the Banks v Goodfellow test when she executed the 2014 will. Cerebrovascular dementia did not itself establish incapacity; the evidence had to show that its effects were sufficiently serious to negate testamentary capacity.
2. Knowledge and approval. The will was duly executed under section 9 of the Wills Act 1837. In those circumstances, and absent a successful challenge or suspicious circumstances requiring affirmative proof, the presumption that the deceased knew and approved the contents applied.
3. Undue influence. The probate doctrine requires coercion which overbears the testator’s free judgment, or fraudulent calumny. The burden rests on the party alleging it. The allegation was withdrawn and, on the material before the court, should not have been made in its unparticularised form.
4. Lost will. The original had been in the possession of the probate registry after the deceased’s death and was subsequently lost by the registry. The presumption of revocation by destruction therefore did not arise. Mere loss was no bar to probate; rule 54 of the Non-Contentious Probate Rules 1987 permitted admission of a copy.
5. Order. The claim succeeded. A grant of letters of administration with the copy will annexed was to issue to the claimant, limited until the original was found.