Wills, Knowledge And Approval – Paynter & Or v Hinch [2013] EWHC 13 (Ch)

 In Wills

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wills constructionA Testator may want to prefer one child to others which can lead to argument between the children, but that preference in itself does not automatically show that they lacked knowledge and approval of their Will, particularly if there were valid reasons for such a preference – acknowledging years of care given by the favoured child as in this case.  Evidence will be needed to arouse the suspicion of the Court so the propounder would then need to actively prove such knowledge and approval.

The Facts

Abbie Hinch died on 6th April 2007 having made a number of Wills.  Her two most recent Wills were dated 24th January 1996 and 26th July 2004.  Abbie had four children, Stephen and Anthony by her first marriage and Victoria and Frank by her second marriage. Her son Anthony died before her.  Her 1996 Will was prepared by a solicitor and appointed Abbie’s daughter Victoria as her executor.  After two gifts of jewellery to her son Frank and the remainder of jewellery to Victoria, there were pecuniary legacies to two of Anthony’s children, with her bank account balances and residue being left equally to her three surviving children.

Frank lived with his mother for about six years until she returned back to the North East in around 1996 after the death of her second husband in 1990.  At that time, Victoria was living nearby and saw her mother almost every day.  Abbie had recovered from cancer in 1996 but was reliant on a wheelchair for mobility out of the house from about 2001 as she had advanced osteoarthritis particularly in her knees. Later in 1996 Frank gave up his job in the South East and moved in with his mother to act as her carer.  He continued as her carer until her death in 2007 and she remained mentally alert until 2007.  Victoria moved South in 2001/2002 so Frank was the only child living in the North East although both Stephen and Victoria remained in close regular contact.

The 2004 Will was prepared by a firm of Will writers from offices in Kent but who advertised nationally and who were subsequently compulsorily wound up and dissolved. The 2004 Will appointed Frank as the executor with residue to Frank and a gift over in default to Stephen and Victoria. Frank believed a Ray Grove from the Will writing firm may have visited twice but that he himself was not present at any meeting of Ray with his mother, although he did remain in the house.  He stated he could not remember any conversation with his mother about the 2004 Will other than she had told him Victoria was to have all her jewellery other than a ring he was to have, but he did remember a conversation about the EPA made in his favour at the same time as the 2004 Will.  It was impossible to trace Ray Grove or any attendance notes of his meetings with Abbie.

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The attesting witnesses were friends of Frank’s and Behrens J found them to be honest and reliable witnesses.  They gave evidence that Frank was around in the house when the Will and EPA were signed but not in the room.  Abbie told them of all the changes to the Will from the 1996 Will and that she wanted Frank to have her house as he had been her carer for many years.

Stephen and Victoria each gave evidence that Abbie had told them that her estate was to be left between the three of them.  Stephen’s daughter Haley said Abbie had told her she would be looked after out of the share of residue passing to her father.

Trevor Cook was in a relationship with Frank between 2001 and 2009 and would regularly stay the night so got to know Abbie well.  He gave evidence that he remembered a conversation where Abbie told Frank she was leaving the house to him and “I can recall hearing Frank say to Abbie that he thought that the others might not be happy with it and Abbie replying “leave them to me”.”  The estate was modest with the principal asset being the house and some further monies under £10,000 in total.

On 12th December 2007 Frank was granted probate of the 2004 Will but Stephen and Victoria later challenged it when they found out its terms on the basis that Abbie did not know or approve of the contents of it and sought that the 1996 Will should be proved.  They claimed that Frank was an alcoholic who dominated his mother and influenced what she did.

The Law

As always in this area Banks v Goodfellow (1870) LR 5 QB 549 applied:

It is essential that a testator shall:

  1. understand the nature of the act and its effects;
  2. understand the extent of the property of which he is disposing; and
  3. be able to comprehend and appreciate the claims to which he should give effect.

Behrens J stated that the law was well settled and uncontroversial in this area.

A testator must know that the instrument he signed was his Will and that its contents conformed to the intentions he conveyed to the draftsman. Knowledge and approval of the contents of a Will by a testator is presumed where the testator had capacity, the Will was properly executed and there is no apparent mistake in the wording of the Will.

The law had been considered in detail in Fuller v Strum [2002] 1 WLR 1097 and “was also summarised by Briggs J in Re Key [2010] EWHC 408 at paragraph:117

    1. As with testamentary capacity, due execution of an apparently rational and fair will, will ordinarily satisfy the burden of proof on the propounder, unless there are circumstances which excite the suspicion of the court.
    2. In such a case, the propounder may be required affirmatively to prove knowledge and approval.  This is an evidential rather than legal burden.
    3. The standard of proof is, as is in all civil proceedings, that of the balance of probabilities.  Nonetheless the task of satisfying that standard will generally vary in proportion to the degree of suspicion engendered by the circumstances.”

Fuller v Strum also showed that a Court could find that a Testator knew and approved part only of a Will, for example by a solicitor adding a new clause to a Will after explaining a draft version and not bringing this new clause to the attention of the Testator, although it would be rare to make such a finding.

The Decision

Behrens J did not find anything to arouse the suspicion of the Court so there was nothing to rebut the presumption of due execution of the 2004 Will.  He was satisfied that Abbie knew the contents of that Will and approved them on executing it.

A retired professor of geriatric medicine was instructed as a joint expert and based on the 2006 and 2007 diaries, Abbie’s medical records and the pleadings found no evidence of Abbie lacking capacity in 2004 or later.  Applying the Banks v Goodfellow test, it was his opinion that Abbie had the necessary capacity to make the 2004 Will.  Behrens J found nothing in her mental state to arouse the suspicion of the Court.

From Abbie’s diaries for 2006 and 2007 (no diary for 2004 was found nor for any other years) no evidence was found of any problem in the relationship between Abbie and Frank; indeed entries recorded a loving relationship with all three of her children. Stephen accepted in cross-examination that Abbie would tell Frank what she wanted him to do and he would do it.  None of Stephen, Victoria or Haley could name any incident when Frank had tried to control Abbie even when he’d had a drink.  Trevor described the relationship between Abbie and Frank as very good with much friendly banter between them and thought she remained mentally active until about 2 weeks before she died.  Behrens J found no evidence of any ‘tyrannical’ behaviour by Frank towards Abbie nor of any ‘improper influence’ by him over her.

A professionally drawn Will made by Abbie in 1990 divided residue between Frank and Victoria so in Behrens J’s opinion was significant as it showed she had not always treated her children the same.

Behrens J found no reason for holding that Abbie knew and approved only part of her 2004 Will.  Although the 2004 Will did not leave any jewellery to Victoria, a claim for rectification might have been the appropriate remedy to pursue if Frank had not given the jewellery as he had done to Victoria, rather than giving any reason for refusing to grant probate to that Will.

Practice Points

  1. Is there any suggestion that the deceased lacked capacity? If not there is a strong presumption in favour of the testator having knowledge and approval of what was signed.
  2. Is there any factual evidence of impropriety in the arrangements for the making of the Will such that you should be suspicious of proving it because the person who was involved in its preparation also benefits under it? Try and be as objective as possible.
  3. Is the Will simple to understand? If so there is a strong likelihood that the deceased knew and approved its contents. Conversely, the more complicated it is with trusts and detailed administrative provisions the harder it will be to show that the testator knew and approved it.
  4. If a client wants to favour one child in particular, record their reasons for this, such as rewarding them for years of care.
  5. Try and encourage testators to discuss leaving children out of their Will or their particular reasons for favouring one in particular with the whole family during their lifetime.  Although testators are understandably reluctant to have this conversation as it may sour their relationship with the children who do not benefit to the same extent, a reminder that the estate can be significantly reduced by the costs of a dispute, may prove some encouragement.
  6. If a ‘disappointed’ child wants to bring a claim of lack of knowledge and approval, ask them for hard evidence of circumstances that may arouse the suspicion of the court and thus throw the balance of proving knowledge and approval on the propounder.

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