Lonsdale v Teasdale & ors [2021] WTLR 1309

WTLR Issue: Winter 2021 #185








The claimant was the daughter of the deceased. The deceased had made a will dated 15 September 2017 of which the residuary beneficiary was D1, a friend of the deceased. A letter of intent stated that the claimant was not to benefit. The claimant, relying on medical evidence which included a poor score in a cognitive impairment screening test and a letter from the deceased’s GP opining that the deceased had likely suffered from dementia for a number of years before executing the 2017 will, challenged the 2017 will on the basis of a lack of testamentary capacity due to memory issues, and D1’s undue influence. She brought a claim for a grant of probate in solemn form of her father’s will dated 10 June 2014, of which she was the sole beneficiary.

The claimant was represented by counsel. D1 appeared as a litigant in person. D1 was unable to finish cross-examination of the claimant due to dyslexia. At the suggestion of the claimant’s counsel, with which the judge agreed, D1 handed his pre-prepared list of questions to the judge, who reformulated them and put them robustly to the claimant. The judge, at the claimant’s counsel’s suggestion, opted not to address the burden of proof for fear of getting ‘too bogged down’, instead opting to make findings from a review of the evidence overall. The claimant’s claim was dismissed, and the 2017 will was pronounced for in solemn form, with probate stayed pending any appeal or further order. Permission to appeal was refused by the judge for the reason that ‘correct analysis and weighting of all available evidence to lead to conclusion that testator had testamentary capacity’. Permission to appeal was granted by Snowden J on three grounds:

  1. (1) the decision on testamentary capacity was wrong;
  2. (2) the manner in which the district judge conducted the trial constituted a serious procedural irregularity in that he adopted the role of an advocate; and
  3. (3) the judge failed to apply the proper burden of proof.


Allowing the appeal:

  1. (1) The court is positively obliged to adopt such procedure at any hearing as considered appropriate to further the overriding objective under CPR 3.1A(4), and that included putting or causing to be put questions to witnesses which appear to the court to be proper (CPR 3.1A(5)(b)). The level of assistance given to litigants in person in order to equalise access to justice to all parties is constrained by the requirement that the court must at all times be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided. The judge should not approximate their role to one of an advocate, even temporarily. The cross-examination assistance to D1 was helpful and proper and the questions asked were fair. The fact they were put robustly did not make the conduct of the trial unfair. The claimant’s counsel had a duty to object to any unfairness emanating from the judge or otherwise but did not do so during evidence. Moreover, the judge allowed re-examination of the claimant on matters where she was not able to answer fully in cross-examination, which cured any procedural irregularity. The question from the bench to the claimant’s counsel that the Larke v Nugus letter had not been included in the bundle despite being pleaded because the claimant’s counsel did not want it included was not improper and involved no improper insinuation (paras 24-33).
  2. (2) Once a real doubt of testamentary capacity was raised, the evidential burden was on the party propounding for the will to demonstrate capacity. The judge erred in treating the burden of proof as being the claimant’s, not D1’s, and on the evidence the judge should have concluded that D1 had failed to satisfy the court that the 2017 will had been executed with testamentary capacity. The 2014 will was therefore proved (paras 34-38, 43-47).
JUDGMENT HHJ CADWALLADER: Introduction [1] This is an appeal from the order of the District Judge dated 19 November 2020 and made in the County Court at Liverpool. By that order, he dismissed the Claimant’s claim for the grant of probate in solemn form of the will dated 10 June 2014 of Charles Beswick deceased, …
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Counsel Details

Elis Gomer (St John’s Buildings Barristers’ Chambers, 21 White Friars, Chester, CH1 1NZ, tel 01244 323 070, email clerk@stjohnsbuildings.co.uk) (who did not appear below) for the appellant.

Michael Barrow (Linenhall Chambers

Cases Referenced

  • Banks v Goodfellow (1869-70) LR 5 QB 549
  • Drysdale v Department of Transport (Maritime and Coastguard Agency) [2014] EWCA Civ 1083
  • In re G (a child) [2015] EWCA Civ 834
  • Michel v The Queen [2009] UKPC 41
  • Prescott v Potamianos & anr [2019] EWCA Civ 932
  • Serafin v Malkiewicz & ors [2020] UKSC 23

Legislation Referenced

  • Civil Procedure Rules 3.1A(4), 3.1A(5)(b)