Poole & anr v Everall & anr [2016] EWHC 2126 (Ch)

WTLR Issue: November 2016 #164







This was a challenge to the formal and substantial validity of the last will of David Poole (the testator) dated 26 December 2012 (the December will) on the grounds of want of due execution, want of knowledge and approval, lack of testamentary capacity and undue influence.

The testator (who died on 19 March 2013) had suffered severe physical and psychiatric injuries following a motorcycle accident in 1985. The December will had been prepared by Mr Everall, the first respondent, who had been the testator’s paid carer/’supporting landlord’ since 1994. The December will left 95% of the testator’s estate to Mr Everall. The testator’s estate included a personal injury award of over £1m. The December will represented a significant departure from the testator’s previously expressed testamentary intentions.

The claimants were the testator’s brothers and had benefitted under previous wills. The testator had a deputy of the Court of Protection for property and affairs, a solicitor named Mr Lloyd. An earlier will executed in 2003 left shares of residue to Mr Everall and to the testator’s brothers, established a discretionary trust in favour of a woman described by the testator as his ‘partner’, and made gifts to certain charities. The testator had intended to make a new will in 2007 with the aim of increasing the proportions passing to his brothers and to his partner, and reducing the proportions passing to charity, though in fact no such will was ever executed.

The most recent will prior to the December will was the one dated 29 February 2012 (the February will), which had been prepared by Mr Lloyd on the testator’s instructions. At the time, the testator was considering bringing an injunction for harassment against one of his brothers. The testator proposed making a substantial gift to Mr Everall. The deputy expressed reservations about the proposed large gift to Mr Everall (in light of his position as a paid carer). Following this meeting with the deputy, the testator contacted Mr Lloyd’s office and stated that ‘a bit of bullying’ by Mr Everall had been going on. The proposed gift to Mr Everall was not included in the draft will executed by the testator, though the testator was advised by the deputy that he could revisit this decision in the future if he wished to do so.

At the deputy’s instigation, the testator’s capacity to make a will was assessed in February 2012, and the doctor concluded that he did have capacity, and would continue to have capacity. The will was brought to the testator to be executed on 29 February 2012 and the attendance note records that the deputy went through the will carefully with the testator and ensured he understood its contents. There was some discussion of making a gift to Mr Everall’s partner, but the testator ultimately decided not to do so. Therefore the February 2012 will did not make any provision for Mr Everall.

In mid-2012, the testator raised concerns about the deputy’s handling of the testator’s money which apparently originated from Mr Everall. In June 2012, the testator raised the possibility of writing a new will giving a modest share to Mr Everall. The deputy prepared a draft will in accordance with these instructions. Mr Everall took a number of steps to prevent the deputy from seeing the testator, with the consequence that the deputy took no further steps to take instructions from the testator. The testator did not pursue making a new will with either Mr Lloyd or any other solicitor.

Mr Everall took a number of steps to complain about the deputy including meeting with social workers, leading to a visit by a Court of Protection visitor. Neither the council nor the visitor suggested impropriety on the part of the deputy and the visitor expressed the view that she was fully satisfied with the deputy’s management of the testator’s affairs.

According to Mr Everall, in December 2012, the testator stated that he wished to make a new will and did not wish to use a solicitor. This led Mr Everall to prepare a draft will using an online service and, according to Mr Everall, this was executed by the testator in the presence of witnesses.

Although both witnesses to the will had stated in correspondence that they had not been present at the same time when the will had been signed, at trial they gave evidence that they had been present at the same time.

Held (pronouncing against the validity of the December will and in favour of the February will):

  1. 1) The presumption of due execution applied, and the strongest evidence was required to rebut this presumption. The attesting witnesses had both given positive evidence of the execution of the will. The evidence was not sufficient to rebut the presumption of due execution.
  2. 2) The testator has been assessed as having capacity in February 2012 and in December 2012 the deputy had considered that the testator had testamentary capacity. The contemporaneous assessment of the testator’s capacity by an experienced solicitor carried great weight. Taking the evidence of capacity as a whole, the testator did have capacity to make the December 2012 will.
  3. 3) Where a testator required an explanation in order to understand the nature and effect of what he was doing, he was capable of understanding those relevant matters and therefore had the relevant capacity. Whether he in fact understood those matters was a question of knowledge and approval, not capacity, and was a separate inquiry (Hoff v Atherton [2004] EWHC 177 (Ch) considered).
  4. 4) The testator had understood that he was executing a will. The question was whether he had a sufficient understanding of its contents and their effect so that it could be said truly to represent his freely formed intention. The will had been prepared without the assistance of a solicitor and accordingly Mr Everall bore the burden of proving knowledge and approval by positive evidence.
  5. 5) In cases where the will had been prepared by, or on the instructions of, a person who stands to benefit under it, the court will require particularly convincing evidence that the testator knows and approves of the contents of the will. The vigilance of the court was engaged where a vulnerable and suggestible person who had impaired capacity made a will in which a large portion of his estate is given to a person upon whom he had been dependent for his care. This was particularly the case where the will had been drafted by the same person and not apparently discussed with anyone else except the carer’s partner, and where the terms of the will are a departure from previously expressed and long-established testamentary intention.
  6. 6) The testator was vulnerable to suggestion and had difficulty recalling those whom he intended to benefit without being reminded. Accordingly, the court could not be satisfied that he truly understood and intended the terms of the will unless relevant matters had been drawn to his attention. These included the fact that the new will removed previous gifts to family and charities and significantly reduced a gift to his partner. On the balance of probabilities, the testator did not know and approve of the contents of his will.
  7. 7) (Obiter) the claimants bore the burden of proving undue influence, which can be inferred from surrounding circumstances. Since there is rarely any direct evidence of undue influence in the context in which a will comes to be executed, the circumstances must be such that the only inference from them is that the testator was coerced into making it. It is not sufficient that coercion is a possibility, or even the most likely explanation. The circumstances did not support this inference.
JUDGMENT HHJ DAVID COOKE: Introduction [1] This case concerns a will executed by David John George Poole (whom I will refer to as David, as he has been throughout the case) on 26 December 2012 (the December will). David died on 19 March 2013, aged 46. The will was prepared by the first defendant Mr …
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Counsel Details

Paul Burton (Three Stone, Ground Floor, 3 Stone Buildings, Lincoln’s Inn, London WC2A 3XL, tel 020 7242 4937, e-mail clerks@threestone.law), instructed by Quality Solicitors Parkinson Wright (Haswell House, St Nicholas Street, Worcester WR1 1UN, tel 01905 721600, e-mail worcester@parkinsonwright.co.uk) for the claimants.

The first defendant appeared in person.

The second defendant did not appear and was not represented.

Legislation Referenced

  • Mental Capacity Act 2005
  • Mental Health Act, s117
  • Wills Act 1837