The testator (T) died in 2010 aged 86 with an estate of £391,573. The claimant (C) was the elderly sister of T’s late wife and sought to propound his last will dated November 2009, which left the estate as to two thirds to her and one third to the first defendant (D1), T’s daughter, who was also executor along with the second defendant. The third and fourth defendants (D3, D4), T’s two sons, challenged the validity of the 2009 will on grounds of lack of testamentary capacity and/or fraudulent calumny allegedly perpetrated by D1 (who was the beneficiary under C’s will). D3 and D4 therefore sought to propound a 2003 will, which left the estate to all three children (D1, D3, D4). D1 received the same benefit and took no part in the proceedings, save as witness.
In June 2009 T was admitted to hospital with an infection with mild confusion, scoring 28/30 in a Mini Mental State Examination, and suffered hallucinations. T was subsequently diagnosed with Lewy Body disease, causing fluctuating capacity, and cerebrovascular disease.
T told D3 that D1 had been stealing from him, though it later transpired she had not been. Subsequently D1, D3 and D4 disagreed about how T’s affairs would be managed, causing a rift between them. T instructed solicitors to sell his bungalow, and make a codicil to his 2003 will appointing solicitors as his executors in place of his three children; a medical certificate confirming capacity to make a will and sell his bungalow was obtained from a psychiatrist. D3 and D4 resisted attempts by D1 and T to mend the rift, and T cut off contact with them.
In September 2009 T gave instructions to solicitors for a new will excluding D3 and D4, and to send a letter threatening to obtain a non-molestation order against them. In October 2009 T gave further instructions to the solicitors for a will excluding D3 and D4, but due to the family rift (rather than because of any doubts about capacity) the solicitors wished to obtain a medical certificate first. T changed solicitors, and in November gave instructions for the 2009 will to them. The will was executed with the solicitor and T’s GP as witnesses; both were satisfied as to his capacity, as were other solicitors who had met him. The parties’ expert witnesses agreed that T would have had testamentary capacity ‘on a good day’, and that on the balance of probabilities the 2009 will was executed on a ‘good day’.
Held, pronouncing for the 2009 will in solemn form:
- 1) Testamentary capacity requires ‘a disposing memory’ so that the testator is capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty, and that the testator not be labouring under a delusion (which the parties agreed could be defined as ‘a false fixed belief of morbid origin inconsistent with the patient’s cultural or educational background’).
- 2) T knew the details of his estate, save for one minor error, was aware of the state of his family, and understood the change being made from his previous will. He was coherent in discussions with his solicitors, and there was no evidence of any delusion; the evidence suggested that the 2009 Will was made on a ‘good day’. T did not lack testamentary capacity.
- 3) Fraudulent calumny is established if it is shown that one person has poisoned the testator’s mind against another, who would otherwise be a natural beneficiary of the testator’s bounty, by casting aspersions on his character, either knowing that the aspersions are false, or not caring whether they are true or false. The burden of establishing fraudulent calumny was on the party alleging it, and the cogency and strength of the evidence required to prove it is heightened by the nature and seriousness of the allegation.
- 4) D3 and D4 alleged that D1 had cast such dishonest aspersions on their characters by telling T that they were hassling him for his money; by telling him they had left his bungalow untidy; by telling him that a letter from D3’s daughter was orchestrated as a ploy by D3; and by telling him that D3 and D4 were ‘snooping round getting addresses’. Although T’s ability to evaluate and weigh up facts was reduced by his disease, insofar as D1 had told T any of these things, she believed them to be true. T was reasonably offended and frightened by D3 and D4’s continued assertions that he lacked capacity to make decisions for himself, and reasonably regarded their rift with D1 as relevant to his wishes.
Per curiam it was disproportionate and not in line with the overriding objective to litigate a modest estate such as this over five days before a High Court judge, with one party incurring £500,000 costs including success fee.JUDGMENT PROUDMAN J: Introduction  Eric Arthur Boyes (known as Bill), who was born on 12 August 1923, died on 22 May 2010. The claimant (known as ‘Paddy’ – I will refer to people by their first names for convenience sake and without intending any disrespect) was the testator’s sister-in law, namely the sister of …