Hubbard & anr v Scott & ors [2011] EWHC 2750 (Ch)








The claimants were default beneficiaries who, in the event, stood to benefit under the terms of the will of Albert Wiseman (testator) dated 25 November 1997. They and their mother, who were longstanding friends of the testator, visited him at his home after the death of his wife. However, their visits tailed off during the last years of his life and, at some stage after May 2006, a neighbour introduced the testator, then aged 84, to the third defendant who initially worked for him as a cleaner. There was a dispute of fact as to whether this occurred over three years or under three months before his death. The testator, who was lonely and increasingly housebound, welcomed her visits and a friendship developed, culminating in her moving into his house. While undoubtedly physically infirm, there was no suggestion of mental incapacity. Indeed, there was some thought of marriage. The second defendant, who was a friend of the third defendant, arranged at the testator’s behest (or so she said) for him to attend a firm of local solicitors to give instructions for a new will, and all three of them attended on the first defendant on 30 September 2009. The new will, drafted by the first defendant, left the testator’s entire estate to the third defendant. The testator returned to the solicitor’s offices, this time with the third defendant alone, to execute the new will on 5 October 2009. Just over a week later the testator was admitted to hospital and he died there on 16 October 2009. After his death, the third defendant gave the impression that she was more interested in the testator’s money than in him, and the claimants’ suspicions were aroused, culminating in their claim that she had exerted undue influence over the testator to make a new will in her favour, that had the effect of revoking the previous will in their favour.

Held (dismissing the claim)

There was no presumption of undue influence in the case of testamentary gifts, although no will would be admitted to probate if its execution was shown to have been procured by actual undue influence. The probate doctrine of undue influence was thus more stringent than the equitable doctrine enunciated in Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773. There had to be positive proof of coercion overpowering the volition of the testator. Persuasion, appeals to the affections or ties of kindred, sentiment of gratitude for past services, or pity for future destitution and the like were all legitimate; pressure of whatever character amounting to victimisation, domination or coercion were illegitimate. On the facts of this case, the claimants had not discharged the burden of proof to establish undue influence – there was no evidence, not even circumstantial evidence, of coercion or victimisation. It was not enough for the court to infer that the third defendant may have made appeals to the testator to make provision for her. The evidence was that the testator was happy, even jovial, when he gave instructions for, and subsequently executed, the new will. In circumstances in which the testator was elderly and lonely, with no-one for whom he was obliged to provide, it was perfectly rational for him to wish to benefit someone who had come into his life and of whom he was fond.

JUDGMENT MRS JUSTICE PROUDMAN: [1] The claimants are sisters, Mrs Hubbard and Mrs Martin. In this case they allege that the third defendant, Mrs Kruk, exerted undue influence over a testator, Mr Albert Wiseman (known as Bill), in making a will in her favour which had the effect of revoking a previous will in theirs. …
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Counsel Details

Joanna Toch (Lamb Building, Temple, London EC4Y 7AS, tel 020 7797 7788, e-mail, instructed by Haider Kennedy (25 Station Road, London SE25 5AH, tel 0800 014 8190), appeared on behalf of the claimants.

John Ross Martyn (New Square Chambers, 12 New Square, Lincoln’s Inn, London, WC2A 3SW, tel 020 7419 8000, e-mail instructed by B C Edwards & Co (77 High Street, Penge, London SE20 7HW, tel 020 8659 7227, e-mail, appeared on behalf of the defendant.

Cases Referenced