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    Capacity: Knowledge: Signatures: Testators: Validity: Wills: Testamentary Capacity of Elderly Testator: Alternation of Signature on Will: Testator’s knowledge and approval of Will’s contents: Revocation of Probate: Forgery: Degree of mental impairment: Graphologists: Medical Experts: Conflicting evidence: Burden of Proof: Suspicious circumstances: Memory loss: Dementia

     

    The elderly testator had testamentary capacity at the time of the making of the challenged will, and that will had been validly executed despite the alternation of the testator’s signature.   However, the defendant had failed to discharge the burden, cast on him due to suspicious circumstances in the making of the will, of proving that the testator knew and approved of the contents of the will.

     

    The claimants (M) and (N) sought revocation of the grant of probate in respect of the 1999 will of which the defendant (R) was the main beneficiary.  

     
    The testator (T) had died aged 78 and was the mother of M and R and the grandmother of N.   The two beneficiaries of the 1999 will were N, who was to receive jewellery, and her uncle, R who was to receive the residue of the estate.  Under a 1994 will the residuary of the estate was to be left to M, R and N in equal shares.  In the 1994 will, T signed her name as “I Reynolds” but in the 1999 will it was signed as “I.R.Reynolds”.  The latter will was written out by a retired solicitor in the course of his voluntary work at the Citizens Advice Bureau. 
     
    M and N submitted that (1) T lacked testamentary capacity at the time she purportedly made the 1999 will; (2) the 1999 will was not validly executed and T’s signature had been forged; (3) T did not know and approve of the contents of the 1999 will.

     

    HELD: (1) Overall, the evidence of R’s expert as to T’s capacity was to be preferred.  Both experts agreed that T would have retained a sufficient grasp of the property of which she was capable of disposing by will. On other evidence, T retained a proper comprehension of those who might have claims to which she ought to give effect. Whilst T suffered from episodes of confusion the view of R’s expert was to be accepted, namely that T’s degree of mental impairment was of limited severity and that she retained testamentary capacity at the time of the 1999 will. 

     
    (2) T had applied her pen to the 1999 will for the purpose of signing it, although neither of the attesting witnesses gave any evidence as to the form her writing took. Even though T did not sign her name on the 1999 will in full, her signature of the will by application of her initials “I.R.R.” was a sufficient signature of it.  The 1999 will was validly executed and it made no difference that someone had later added the “eynolds” to her initials. 
     
    (3) The circumstances surrounding the making of the 1999 will aroused suspicion of a degree sufficient to case on R the burden of showing affirmatively that T knew and approved of the contents of the will.    It was at least surprising that T should leave the entirely of her estate to R at the expense of her other son and her beloved granddaughter, who were major beneficiaries under a will she had made less than five years before.  The reasons suggested by R and T’s decision to change the 1994 will were unconvincing.  The striking feature about the 1999 will was that R had played a key part in connection with its drafting and execution. 
     
    On the evidence, the solicitor wrote out the 1999 will in T’s absence and on the basis of R’s instructions.  There was no evidence from either of the attesting witnesses that T knew or approved the contents of the will and there were no facts to support and inference that T knew and approved the contents.  In drawing such a conclusion it was relevant that T underwent frequent episodes of confusion.

     

    Judgment for claimants.

     

    In the estate of Isobel Ruth Reynolds Deceased sub nom (1) Michael Roger Reynolds (2) Nicola Reynolds v Ronald Alan Reynolds (2005)

     

    Ch D (Rimer J) 14/1/2005

     

    “Lawtel”: 24.1.05