In the recent case of Gowing and Ors v Ward and Anor, the court took a perhaps surprising decision to uphold the last will and testament of Frederick Ward dated 28 November 2018, despite him failing a cognitive screening two years prior, and despite having been discharged from hospital only days before making his will.
This article provides the background and outcome of this case, exploring whether conclusive evidence is necessary to successfully rebut the presumption of validity of a will.
Frederick Ward (Fred Snr), passed away on 17 February 2020 aged 91. He had three children; Fred Jnr who predeceased him on 2 September 2015 leaving behind his five daughters, the claimants, and the two defendants, Terence and Susan.
On 8 September 2020, Terence and Susan obtained a grant of probate of their father's apparent last Will which had been executed on 28 November 2018. The 2018 will left the residue of the estate to Terence and Susan in equal shares, subject to specific gifts of chattels and pecuniary legacies of £50 to each of Fred Snr’s grandchildren.
Fred Snr had made an earlier will in August 2011 which left the residuary estate to Fred Jnr (who was still alive at the time), Terence and Susan in equal shares.
Between the 2011 will and the 2018 will, Fred Snr’s health had declined. Medical records reveal he suffered from heart disease, and both his hearing and his eyesight were impaired. Fred Snr’s capacity was assessed on numerous occasions and, on 25 October 2016, he failed a mini-cognitive dementia screen.
From mid-2018 onwards, Fred Snr was admitted to hospital on several occasions. He experienced eye problems around the time the 2018 Will was made and was hospitalised from 17 to 27 November 2018 - meaning that he was discharged from hospital just the day before the 2018 will was executed.
Fred Snr lived in a maisonette on the first floor and Susan, who acted as his full-time carer, lived in the neighbouring block until Fred Snr’s death in May 2019.
The claimants, Fred Jnr’s daughters, contended that Fred Snr lacked capacity to make the 2018 will which they claimed was irrational, and relied on his failing health and failed mini-cognitive dementia screen in 2016. They also brought claims that Fred Snr did not know and approve of the 2018 will’s contents and/or Susan and Terence had coerced him to execute the 2018 will in their favour, and/or that they had misled Fred Snr by feeding him false information in order to influence his decision making, known as 'fraudulent calumny'.
Their aim was for Fred Snr’s estate to be administered pursuant to the 2011 will through which they would receive their father’s share pursuant to section 33(1) of the Wills Act 1837 (as amended).
On the question of capacity, Judge Briggs stated that the court must put itself in the position of the testator. He acknowledged that some people would take the view that Fred Snr was morally obliged to leave his deceased’s son’s share of his estate to his son’s daughters, but the fact he did not do so could not be said to be a decision which no reasonable testator could make. The court took the view that Fred Snr’s decision for disinheriting the claimants was entirely rational given his feelings towards their behaviour and their fractured relationship with him after their father’s death.
On the question of whether Fred Snr knew and approved of the contents of the 2018 Will, Judge Briggs referred to the judgement of Chadwick LJ in the Hoff v Atherton case which provided that in order for the court to be satisfied that a testator knew and approved the contents of their will, it may require evidence that (a) the effect of the document had been explained to them, (b) the testator knew the extent of his property, and (c) that he understood and appreciated the nature and effects of his dispositions.
After reviewing the evidence available, the court concluded that Fred Snr knew and approved of the contents of the 2018 will, placing particular importance on two specific factors:
The claims to set aside the will on the grounds of undue influence and fraudulent calumny were both considered and dismissed together. Whilst accepting that Fred Snr’s frail physical condition and his social isolation did make him vulnerable to both, the court rejected the granddaughters’ claims that Susan and Terrence had prevented him from seeing family members and misled him into making decisions based on falsehoods. Instead, the court concluded that the 2018 will was the result of Fred Jnr's death and the limited contact between the granddaughters and Fred Snr thereafter.
This High Court judgment acts as another reminder of the significant evidential burden placed on claimants in order to successfully overturn a will when bringing an allegation of lack of testamentary capacity, lack of knowledge and approval, undue influence, and/or fraudulent calumny.
The judgment emphasises the need for conclusive evidence to successfully rebut the presumption of validity where the will is properly executed and appears rational. It is not enough to demonstrate that a will is unfair, it must be proven to be invalid.
For further information, please contact our disputed wills team.
