Rosemary Anne Davina Elliott v Vanessa Anne Bateson & Anor

Testamentary capacity and due execution ordinarily support an inference that a testator knew and approved a will. Where circumstances arouse suspicion, the propounder must satisfy the court affirmatively, on the whole evidence, that the testator understood and approved its contents.

A solicitor who changes an intended outright gift into a life-interest trust must clearly explain the loss of access to capital and any dependence on a remainderman. An unapproved self-contained provision may be severed, but the court cannot rewrite a will by arbitrary deletion. Testamentary undue influence requires proof of coercion or fraud, not merely persuasion, and circumstantial evidence must make it more probable than competing explanations.

Rosemary Anne Davina Elliott challenged Mark Briant’s 2022 Will in two consolidated first-instance claims. She alleged that Mark did not know and approve its contents, alternatively that the will was procured by undue influence, and sought financial provision under Inheritance (Provision for Family and Dependants) Act 1975.

The will gave Rosemary a life interest in 50% of the estate, with the capital ultimately passing to Vanessa Bateson. The central questions were whether Mark understood the effect of that trust, whether the will should be admitted after any unapproved provision was severed, whether undue influence was proved, and whether any award under the 1975 Act remained necessary.

Disposition. The claim succeeded in part. The court found that Mark did not know and approve the life-interest trust, rejected undue influence, and made no award under Inheritance (Provision for Family and Dependants) Act 1975. Counsel were to be heard on the form of order and costs.

1. Knowledge and approval. A duly executed, professionally prepared will ordinarily supports an inference of knowledge and approval. Where suspicion arises, the propounder must prove affirmatively that the will reflects the testator’s testamentary intentions, applying the principles in Fuller v Strum [2001] EWCA Civ 1879, Hawes v Burgess [2013] EWCA Civ 74 and Gill v Woodall [2010] EWCA Civ 1430. The circumstances aroused suspicion. Mark was told that Rosemary could have access to the trust funds, but he would reasonably have understood that to include access to capital. The actual trust gave her no right to capital and made access dependent on Vanessa’s generosity. The explanation, letter and second meeting did not correct that misunderstanding.
2. Trust and severance. The court held that a fundamental change from an outright gift to a life-interest trust required careful explanation of its practical effect. Section 32 of the Trustee Act did not apply to the income-only trust. The possible use of the rule in Saunders v Vautier was not explained and depended on conditions that had not been addressed. Where only part of a will lacks knowledge and approval, a self-contained provision may be severed, but the court must not rewrite the will by arbitrary deletion. Applying Marley v Rawlings [2014] UKSC 2 and the remedy principle in Fuller v Strum [2001] EWCA Civ 1879, the words in clause 2(b)(i) concerning payment of income and the remainder of that clause after Rosemary’s name were to be struck out.
3. Undue influence. There is no presumption of undue influence in testamentary cases. The claimant must prove coercion or fraud. Circumstantial evidence is admissible, but the influence must be more probable than competing explanations. The court applied the more nuanced probability approach in Rea v Rea [2024] EWCA Civ 169, rather than requiring every alternative hypothesis to be impossible. The claim nevertheless failed because contemporaneous records, the solicitor’s evidence, the defendants’ generally honest evidence and legitimate reasons for changing the will provided reasonable alternative explanations.
4. Financial provision. The finding on knowledge and approval gave Rosemary all that she could achieve through her claim under the Inheritance (Provision for Family and Dependants) Act 1975. No further award was made.