Knowledge & approval – Wharton v Bancroft [2011] EWHC 3250

 In Wills

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This case is interesting and important as it provides guidance to practitioners for, not only when a Will is challenged based on a want of knowledge and approval, but also for Norris J’s comments on the difficulty of complying in practice with the ‘golden rule’ even though capacity was not in issue in this case.

The facts

George Wharton was a successful businessman who died on 26 September 2008. He made his money in caravan parks. He was 78 when he died and had been married twice – once to the mother of two of his adult daughters and once, three days before his death, to his cohabitant of 32 years, Maureen, by whom he also had an adult daughter.

George did not carry out any IHT planning so when he was discharged from hospital with terminal cancer he consulted a solicitor who attended him at home to make a Will which was in contemplation of marriage to Maureen whom he later married that day.

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The solicitor attended upon George on his own in private and his Will provided that his whole £4 million estate would pass to Maureen. His daughters from his first marriage challenged the Will on the basis of want of knowledge and approval and undue influence by Maureen. Before trial they withdrew their claim for lack of capacity based on George’s advanced stage of cancer and the palliative care he was receiving.

The decision

  1. Want of knowledge & approval

The daughters claimed that George whilst capable of understanding did not in fact make clear to the solicitor what he wished to achieve so that when it was read back to him he did not understand its effect.

Norris J approached this issue following the Court of Appeal decision in Gill v Woodall in this way:

  • The burden of proof to establish knowledge and approval fell to the propounder of the Will
  • The fact that the Will had been properly executed after being read over to the testator by the solicitor who had prepared it raised a strong presumption in favour of it representing the testator’s intentions at that time
  • Merely proving that the Will was read over to the testator does not of itself necessarily establish knowledge & approval; it has to be considered in the particular circumstances of the case such that a court will always be particularly interested in suspicious circumstances and where a Will is complex to be reassured specifically as to knowledge and approval
  • Those therefore challenging a Will on this ground must produce evidence of circumstances which will arouse the suspicions of the court and it must be evidence of weight
  • A judge does not need to follow precisely the shifting legal and evidential burden but can draw such inferences as appropriate from the totality of the evidence rather than tracing a shifting evidential burden
  • He found that George had known & approved his Will even though he had made statements to his daughters suggesting he would provide for them these were not in themselves compelling because there was no consistency in his Will making approach over the years.
  1. Undue influence

Norris J criticised as ‘dangerous’ the usual way this is approach by saying that ‘an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis’, instead relying on the approach taken in Cowderoy v Cranfield [2011] that the evidence must be sufficiently cogent to persuade the Court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation.

He concluded on this basis there was no coercion, it was simply that imminent death had caused George to reassess his earlier statements and Wills.

  1. Golden Rule

Although capacity was not in fact argued in this case the daughters had referred to Key v Key so Norris J took the opportunity to say that the Golden Rule was irrelevant but he did suggest (obiter) that solicitors should be able to make their own professional decisions about a client’s testamentary capacity without necessarily being criticised for failure to follow the Golden Rule even when their client is ‘aged’ or seriously unwell.

He helpfully said that when preparing an urgent Will for a dying client it was not appropriate to expect a solicitor to conjure up a medical practitioner:

“He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think the solicitor is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a Will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that the ‘golden rule’ has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.”

Interestingly, the judge in a separate judgement ordered the daughters to pay both Maureen’s and the Executors’ costs on the indemnity basis.

The daughters and their lawyers had taken a commercial approach from the start about the strength of their case which had turned out to be wrong. Throughout the solicitors pursued the case by raising excessive enquiries into irrelevancies which stoked up the costs and then used the size of the accumulated costs to threaten Maureen.

The daughters’ solicitor also subjected the Executor who had prepared the Will to personal and professional criticism and again raised numerous irrelevant enquiries.

The daughters rejected a CPR Part 36 offer made by Maureen 15 months before the trial in which she had offered to pay each daughter £5,000 and to bear the Executors’ costs. Even though this was a tiny offer compared to the size of the estate (£4 million) had the daughters accepted it Maureen would have faced a total bill for all the parties’ costs of about £300,000!

In the end the total costs bill for Maureen and the Executors including success fees and an insurance premium was about £1 million.

Practice points

  • A clear mind and a strong grasp of the need for careful action are required when preparing a death-bed Will
  • Always address a possible want of knowledge and approval in cases where there is a large degree of self-interest in the preparation of the Will and consider separately coercion where that self-interest may have interfered with the testator’s free will
  • As ever contemporaneous notes are essential
  • The ‘golden rule’ does not always have to be adhered to and a failure to follow it should not be taken to be indicative of a lackadaisical approach to Will drafting
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