Where a later will and codicil were executed when the testator was in failing health and unable to read, in circumstances where the proposed beneficiary was in control of the testator’s finances and had instigated the execution of the later will, the court was unable to endorse it as representative of the testator’s true intentions.

The claimant (K), a nephew of the deceased (G), who was named as the sole executor in an earlier version of G’s will, applied for a declaration that a later will and codicil were invalid. The earlier will had appointed K as executor and beneficiary of G’s entire estate. At the time, the will satisfied all necessary testamentary requirements for probate to be effective.

 

Both before and after the execution of the earlier will, one of G’s friends (M) had been helping G with his daily activities. As G’s health deteriorated M began to handle all his financial affairs, including the drawing of G’s pension, and M drew a carer’s allowance. Later, M introduced G to solicitors for the purpose of executing the later will.

 

The later will purported to divide the estate into portions: K would receive 50 per cent, and M and another of G’s friends would each receive 25 per cent.

 

At the time, G was suffering from various conditions that affected his hearing and his ability to read. Nevertheless, the solicitors were in no doubt as to his testamentary capacity.

 

Thereafter, M wrote to the solicitors on behalf of G intimating that he desired to execute a codicil to the later will. By that proposal M would receive 50 per cent of the estate and K would receive only 25 per cent. The codicil had to be read to G by the solicitors because he was unable to do so himself. The codicil was subsequently executed.

 

After G died, K issued the instant proceedings. K submitted that the implementation of the later will and codicil had been motivated by M’s intervention in G’s affairs and that the latter’s ill health prevented his being able to approve those executions.

HELD: Where a person was instrumental in the proposal of a will wherein he was a beneficiary, the onus was on that person to establish the righteousness of the transaction: that meant that he would have to satisfy the court that he was acting in the testator’s interests before such a will would be endorsed, Fuller v Strum (2001) EWCA Civ 1879, (2002) 1 WLR 1097 applied.

 

In other words, the court had to be satisfied that the will represented the true intention of the testator, free from outside influence or extraneous interferences.

 

In the instant case, the earlier will had been properly executed. There was, in that instance, no question of G’s testamentary capacity.

 

However, the later will and codicil had been executed when G was in failing health and where the whole process had been instigated by M. Furthermore, M had not adduced any reason or justification for the substantial reduction in K’s entitlement under the later will and codicil.

 

In those circumstances, M had not established that the later will and codicil represented G’s intention.

 

Accordingly, the earlier will would be admitted to probate in solemn form and K was entitled to the pronouncement against the later will and codicil.

Judgment for claimant

CAIRNS v FLANNERY & ANOR (2008)

Ch D (Sir Andrew Morritt (Chancellor)) 30/10/2008

 

Lawtel 3.11.08