Solveig Anne Tucker v Anne Felton-Page & Ors

Testamentary capacity is task-specific and is determined judicially from the whole evidence. The Banks v Goodfellow criteria require understanding of the act and its effects, the property, the claims of potential beneficiaries, and freedom from a disorder or delusion affecting the disposition. Medical evidence assists but does not determine the issue.

The “golden rule” is good practice, not a rule of law, and compliance is not conclusive. Knowledge and approval concerns actual understanding and approval of the will’s contents. In probate costs disputes, costs normally follow the event, but the second probate exception may justify no order while reasonable investigation continues.

The claimant initially sought to propound the deceased’s 2013 Will. The first defendant challenged it on grounds including want of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny. The claimant discontinued, but the counterclaim remained and required determination of the validity of the 2013 Will and, if appropriate, the 2006 Will.

The court determined the validity issues on the papers. It also decided consequential costs issues, including the probate exception, the costs of a valuation-related hearing and the second defendant’s claimed executor’s indemnity.

1. Validity. The court pronounced against the 2013 Will. Applying Banks v Goodfellow, testamentary capacity was an issue-specific question for the court, assessed on the whole evidence. The expert evidence was highly persuasive but did not usurp the judicial function. The deceased lacked testamentary capacity when the will was made.
2. The “golden rule”, discussed in Sharp v Adam, is a rule of solicitors’ good practice. It does not give conclusive status to medical evidence. It was not satisfied because there was no contemporary medical certification of task- and time-specific capacity and no consideration of the previous will or the radical change in disposition.
3. The want-of-knowledge-and-approval challenge failed. The relevant question was whether the deceased knew and approved the actual will, including the nature and approximate extent of her estate and the proportions given to beneficiaries. Her lack of capacity could not be used to invalidate choices already made for this separate inquiry.
4. No finding was made on undue influence or fraudulent calumny. Those serious allegations were tried on the papers without cross-examination, and the will had already been invalidated on less contentious grounds.
5. Costs. Under CPR rule 57.11(2)(a), the discretion was not at large. Costs normally followed the event, subject to the probate exceptions. The second exception applied while it was reasonable for the claimant to investigate capacity. That period ended on 24 February 2023, when her own properly instructed expert’s opinion should have aligned with the adverse expert evidence. Thereafter the proceedings were ordinary hostile litigation and the claimant had to pay the defendants’ costs on the standard basis. Indemnity costs were refused.
6. The second defendant was ordered to pay 25% of the other parties’ costs of the January 2024 valuation hearing. He was technically right that the valuer lacked procedural status, but his refusal to cooperate was unhelpful in light of the court’s expectation that valuation would assist settlement. He was denied an executor’s indemnity for steps taken after filing and serving a neutral defence.

First-instance judgment of the High Court (Chancery Division). No appellate history is stated in the judgment.