Itoweh Susan Ugolor & Ors v Cameron Eseh Ugolor & Anor

Probate claims remain inquisitorial even where a defendant is debarred. A facially regular will is presumed valid unless a recognised ground of invalidity is established. Testamentary capacity is distinct from knowledge and approval. The latter requires proof that the testator understood the will and its broad effect, assessed by considering the totality of the evidence. Suspicious circumstances may require affirmative proof from the propounder, but suspicion alone does not determine the claim.

In testamentary undue influence, no presumption arises from the relationship. The claimant must prove coercion or fraud on the balance of probabilities. A vulnerable relationship and an opportunity to exert influence are insufficient without proof that the testator’s volition was overborne.

The claimants challenged a homemade will said to have been made by the deceased on 21 March 2008. The principal beneficiary was the first defendant, one of her children. The challenge alleged want of testamentary capacity, want of knowledge and approval, and undue influence. The claimants also sought an account of money and rent allegedly retained by the first defendant, contending that he held the sums on constructive trust for the estate.

The first defendant was debarred from defending the proceedings after persistent non-compliance with court orders. The court nevertheless had to determine the validity of the will and consider all the evidence, including material filed by the absent defendant. The central issues were whether the will was valid and whether the first defendant was liable to account for pre- and post-death receipts.

1. Probate procedure. The probate jurisdiction is inquisitorial. A default judgment cannot be obtained in a probate claim under Civil Procedure Rules 1998, rules 57.10 and 57.11. The court must determine validity on the evidence and must resist speculation about the absent party’s motives, applying Killick v Poutney [1999] EWHC J0331-12.
2. Testamentary capacity. The governing test remained that in Banks v Goodfellow (1870) LR 5 QB 549. The deceased had to understand the nature and effect of making a will, the extent of her property, the claims upon her, and had to be free from an insane delusion influencing the disposition. The Mental Capacity Act 2005 had not displaced that test. The omission of a Nigerian property and unusual dispositions did not, without more, establish incapacity. The capacity challenge therefore failed (paras 61–76).
3. Knowledge and approval. Capacity does not necessarily establish knowledge and approval. The court adopted the single-stage approach: considering all relevant evidence and drawing inferences from its totality. Due execution and reading or signing are relevant but not conclusive. The will was prepared by the principal beneficiary, contained technical and confused provisions, disinherited connected children while benefiting adopted children with whom the deceased had no contact, and was executed when she was seriously mentally unwell. The suspicion was not allayed. The will was invalid for want of knowledge and approval (paras 77–96).
4. Undue influence. The issue was technically unnecessary, but was considered. Probate undue influence must be proved without presumptions. It requires coercion, fraudulent calumny, or equivalent conduct which overbears the testator’s volition. Influence, dependency, vulnerability and opportunity were insufficient on the evidence. The claim therefore was not established (paras 97–107).
5. Constructive trust and remedies. The evidence did not establish undue influence in relation to the charge over the property or a constructive-trust liability for mortgage arrears and receivership costs. The first defendant was nevertheless required to account for the £2,600 tenancy deposit paid by the estate and for post-death rents. He was ordered to pay £11,737.18, £49,400 and interest, and 75% of £70,546 on account of costs. Indemnity costs were justified by persistent and unreasonable non-compliance (paras 108–140).