Helen Ginger & Ors v Robert Mickleburgh & Ors

A will is invalid where a testator’s disorder of mind produces fixed delusions that causatively affect testamentary dispositions. The challenger must establish the relevant mental disease, the fixed and unpersuadable nature of the delusion, and its causative effect. Once such delusions are established, the propounder must show that they did not affect the will.

The evidence of a solicitor who took instructions may assist, but its weight depends on the circumstances, the solicitor’s knowledge of the testator’s medical history, and the reliability of the process. The prudent practice of medical examination before execution is especially important where capacity is in issue. Fraudulent calumny requires a false representation about a beneficiary, made to the testator to induce a testamentary alteration, with knowledge or recklessness as to falsity and causation.

The claimants, the deceased’s four daughters, challenged the validity of their father Michael Gwilliam’s 2014 will. They alleged that he lacked testamentary capacity because fixed persecutory delusions caused him to act adversely to them. Alternatively, they alleged that the will was procured by fraudulent calumny by Sheila Gwilliam and Joan Brooks.

The defendants, who were substantially benefited by the will, defended its validity. The court considered the deceased’s medical history, expert evidence, witness evidence, the circumstances in which instructions were taken and the later letter of wishes. The central issues were whether the Banks v Goodfellow requirements were satisfied and whether fraudulent calumny had been proved.

1. Testamentary capacity. The court applied the four requirements in Banks v Goodfellow: understanding the nature and effect of the act; understanding the extent of the property; comprehending and appreciating the claims to which effect ought to be given; and freedom from a disorder of mind or delusion that affected the disposition. Capacity to understand concerns potential understanding, not actual memory.
2. The fourth limb is separate from the cognitive limbs. The claimant had to establish that Michael suffered from an insane delusion or disorder of mind arising from mental disease, that it was fixed and incapable of contrary persuasion by reasonable efforts, and that it causatively affected his testamentary dispositions. Once that was shown, the burden shifted to the will’s propounders to establish that the delusion had not affected the will.
3. Michael’s beliefs that the Awre family harassed him, that his daughters acted in a mercenary conspiracy, and that they sought to have him sectioned were false, fixed and delusional. They continued when the will was made and prevented him from properly considering his daughters’ claims. The medical history, independent witnesses, police investigations and expert evidence outweighed the contrary evidence.
4. The evidence of an experienced solicitor who took instructions can carry considerable weight, but its value depends on a close examination of the circumstances and the solicitor’s knowledge of the testator. Here the solicitor had limited contact with Michael, knew of his recent sectioning and medical history, relied incorrectly on informal comments by a mental-health nurse, and failed to obtain appropriate medical confirmation. Her evidence therefore carried relatively little weight. Applying the prudent practice of medical examination, the court found that the procedure was inadequate.
5. Fraudulent calumny. The court applied the requirements summarised in Kunicki v Hayward. The claimants proved that Sheila and Joan made false statements about them to Michael for the purpose of inducing a less favourable will. However, the court found that both defendants genuinely believed the substance of their allegations, despite their unreasonable and inaccurate views. They were therefore not fraudulent, and this alternative challenge failed.
6. The will was void for want of testamentary capacity. Michael died intestate. Consequential matters, permission to appeal and any extension of time were adjourned.