State of play: wills and probate

The case concerned Jessica Schrader, who had two sons, Nick and Bill. On 12 April 2006, she made a will in which she left certain specific requests of minor items to grandchildren and others. Jessica also left her home (Southend Farm House) to her son Nick and ?the residue of her estate to Nick ?and Bill equally.

Jessica died aged 98 on 21 January 2008. She had made a previous will, executed on 1 October 1990, which contained small bequests, made no specific gift of Southend Farm House and gave the residue to her two sons equally. Therefore, the effect of the will made in 2006 was to give Nick the whole, rather than half the value of the house, and to deprive Bill of his half.

The will signed in 2006 was challenged by Bill. He claimed Jessica lacked capacity, the knowledge and approval of the terms of the will and had been subject to undue influence in relation to the disputed will.

The court heard that, throughout her life, Jessica "looked after herself well… and was fully mentally alert". However, in May 2005 she had a fall and was in hospital for several weeks.

Although Mr Justice Mann held that Jessica was becoming more frail, both physically and mentally, he concluded at the time she "understood the world around her, understood the people around her and had all the capacity necessary to make a will". In 2005, Nick gave up his job to move in and look after his mother.

Handwritten evidence

At about this time Jessica decided to make a new will, and Nick made the administrative arrangements. Mann J had no concerns about Jessica's testamentary capacity at the time that the will-writing service visited Jessica (as arranged by Nick). Following the visit, Jessica was sent a draft will. A number of amendments were made in pen to the draft, and the writing was, with three exceptions, identified by Nick as his own. As a result, Mann J ruled that ?Nick had been "closer to the activity ?of the creation of the will" by Jessica, and at the time represented a "forceful physical presence".

Mann J stated that Jessica's 2006 will was rational, and that the gift of Southend Farm House to Nick did not equate to a lack of capacity. He observed "testators do strange things and are entitled to be whimsical, capricious, vindictive, wrong in belief or their acts beyond explanation without that of itself proving lack of capacity". He also held that Jessica had the relevant knowledge of the will and approved its contents.

The third test Mann J had to consider was whether Jessica had been subject to the undue influence of Nick. He concluded that Nick was instrumental in weaving into his mother's mind the desirability of him having the house, "and in so doing took advantage of her vulnerability". As a result, she had been subject to undue influence. Mann J ruled against the 2006 will and in favour of the 1990 will.

This outcome is a helpful reminder about testamentary capacity: namely the Banks v Goodfellow test for capacity, having knowledge of and approving the terms of the will, and that there is no undue influence. There have been only a handful of rulings in favour of undue influence; such cases are further complicated if the testator is deceased.

However, this ruling also highlights that it is not always necessary to specifically identify a precise instance when pressure is applied or when it took place.

Jonathan Riley is a partner at Michelmores

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