Validity of Wills

 In Wills

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Gupta v Gupta [2018] EWHC 1353

Case Summary from LawSkills | Private Client specialist trainersOne of the deceased’s sons, Rakesh, sought to pronounce against the Will of his mother for want of knowledge and approval of its contents. Mr Gupta had been born in India in 1924, and died in 2009. He was married to Urmila, born in India in 1930, and they had three children. Urmila did not make any other Will in relation to her English estate, although she did also make an Indian Will in relation to her Indian estate. If this claim succeeded, her English estate would fall to be administered under the intestacy rules, and would be divided equally between her three children.

The facts

Mr and Mrs Gupta had moved to England in 1957, and had lived here ever since. They established a business here in the 1960s. One of their children, Naresh, lived with his parents together with his wife and children. As the 1990s progressed, Urmila’s health deteriorated. Her principal carer was her husband, but the daughter-in-law who lived with her cared for her too. After 2000 she began to suffer from dementia, and in 2006 suffered from a stroke. In 2009 Mr Gupta died, and Urmila died in 2014.

An unusual problem had arisen in this case in that the solicitor who had prepared the Will in question had since its preparation been struck off, and a lot of the papers relating to the instructions had been lost. The Judge took the view that the evidence given by this ex-solicitor could not be safely relied upon unless corroborated.

In November 1998 Mr Gupta and Urmila executed mirror Wills. Urmila’s Will provided for Naresh to receive a cash sum equivalent to the nil rate band, and for the residue of her estate to go to her husband. If he did not survive her, as happened, then her house was left to Naresh, and after certain small pecuniary legacies (including one to her daughter), the residue was to be divided equally between Naresh and her other son Rakesh. The Will had an unusual attestation clause, noting that the testatrix was able to read but unable to write as a result of a tremor, so the Will was signed by her making her thumb print on it.

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Mr Gupta and Urmila continued to visit India for months at a time until 2003/4, which was their last visit. In January 2004, the couple made Wills in India relating to their Indian property.

The Gupta family had always been very close, but in recent years there had been increasing tensions between Naresh and Rakesh. Rakesh seemed to have been deeply hurt by the imbalance in favour of Naresh in his parents’ mirror Wills, which he discovered on his father’s death.

Following Urmila’s death, both Rakesh and Naresh signed the IHT form in February 2015, the premise of which was that Urmila’s English Will was valid. In December 2015, Rakesh wrote to the solicitors who had been instructed by the executors, alleging that Urmila had lacked testamentary capacity and said he was trying to obtain her medical records. In the light of this, these solicitors ceased to act.

In June 2016, Rakesh alleged for the first time that Urmila’s Will was invalid for lack of knowledge and approval, and issued a claim in February 2017.

The only issue in this case was whether Urmila’s Will was invalid due to lack of knowledge and approval. Rakesh said there were four background matters which ought properly to excite the suspicion and vigilance of the court in this regard:

  • The dominance of Mr Gupta
  • Urmila’s limited understanding of written / spoken English
  • The physical and mental health conditions Urmila suffered from, and
  • The absence of any good reason why Urmila would want to create such a disparity of benefits received by her three children under the Will.

The law

In Fuller v Strum [2002] 1 WLR 1097, Peter Gibson LJ said:

“What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion [has been aroused], it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled.”

The authorities cited in that case followed a long line of authority that there should be a ‘two stage’ approach to knowledge and approval claims. There was a presumption in favour of knowledge and approval so that (1) it was for the challenger to a Will to raise suspicious circumstances, and (2) (only if the burden of proof had thus been passed to him) for the propounder of the Will to discharge the burden of showing that the testator did in fact know and approve if his Will.

In the later case of Gill v Woodall [2011] Ch 380, however, Lord Neuberger MR rejected the two stage test:

“As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the will.”

The two statements can be reconciled, the Judge decided, if Lord Neuberger was taken as stating that while there was no legal presumption in favour of knowledge and approval in such circumstances, there is a very strong evidential presumption in favour of knowledge and approval where the Will had been prepared by a solicitor and read over to the testator.

The decision

The construction issue

Although the Judge was not asked to decide on the construction of the nil rate band gift in Urmila’s Will, he made certain pertinent comments as he clarified that point. While the testatrix must know and approve of the contents of the Will, she need not understand their legal effect. It followed that the testatrix may know and approve of a Will even if she was mistaken as to its meaning. It was not a requirement of the plea (in this case of knowledge and approval) that it must be established that the testator must have appreciated the legal effect of the words used in the document in issue.

A finding of knowledge and approval did not require that a testatrix had a lawyer’s grasp of technical language. It was sufficient if the solicitor had explained the meaning of the Will to her.

The witnesses

The Judge heard evidence from no less than 10 members of the Gupta family, including all 6 grandchildren — two children of each of Urmila’s three children. He found all 6 children to be excellent witnesses. Although their evidence was not necessarily to the same effect, they had all been seeking to give helpful and truthful evidence. The Judge also accepted the evidence of Naresh’s wife, who had lived with Urmila.

Although the evidence of Urmila’s three children was largely accurate, where necessary the Judge preferred that of Naresh to Rakesh.

The suspicious circumstances alleged

The Judge did not accept that Rakesh had in fact shown any suspicious circumstances at all in relation to Urmila’s knowledge and approval of the Will.

There was evidence that Mr Gupta saw himself as the head of a traditional Indian family. But it was also apparent that in some spheres Urmila had real influence over him. For example, it was she who had driven the decision to stay in England after the first few years. The Judge accepted that on business matters Mr Gupta would make the decisions, and the mirror Wills probably reflected what he wanted, but the fact that one partner was accustomed to go along with the wishes of another was not, in a case where there is no undue influence, a suspicious circumstance. On the contrary, it provided an explanation for the terms of the Will.

Turning to Urmila’s understanding of English, there was a contrast between the evidence of various family members. Some stated her English to be very limited, others that she was able to converse in English. The Judge noted that her Hindi was obviously much better than her English, but it appeared she was able to express herself in English when she needed to.

Even though her health was declining, Urmila continued to travel to India for 5 years after she executed her Will. The Judge did not accept that there were any real signs of dementia until at least 2000. He did not accept that any physical or mental frailty in 1998 had any material effect on her ability to have knowledge and approval of the contents of her Will.

Nor did the Judge see anything to the point that there was no good reason for Urmila to create a disparity under her Will. It was inescapable that Mr Gupta sought to create such a disparity. As he was head of the family, it was not surprising that Urmila went along with his wishes. Nor had Urmila treated her children equally under her Indian Will.

The execution of the Will

In the light of the evidence before him, the Judge had no doubt that Urmila would not have executed the Will if she did not understand and approve its terms. He also had no doubt that Mr Gupta as a fundamentally decent loving husband would not have permitted her to do so. In these circumstances, the Judge was satisfied that the Will was executed with the knowledge and approval of Urmila. He did not consider there were any suspicious circumstances shown concerning the execution of the Will.

Therefore, the claim failed.

Practice points

  1. It is worth noting the Judge’s comments that:
    1. While the testatrix must know and approve of the contents of the Will, she need not understand their legal effect.
    2. It followed that the testatrix may know and approve of a Will even if she was mistaken as to its meaning.
  2. It was also interesting that the Judge found that the fact that one partner was accustomed to go along with the wishes of another was not, in a case where there is no undue influence, a suspicious circumstance. On the contrary, it provided an explanation for the terms of the Will.
  3. Clients will need to understand that there is a high threshold to cross if the presumption of knowledge and approval is to be rebutted.

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