Gowing & ors v Ward & anr [2024] WTLR 901

Analysis

The deceased died in 2020 at the age of 91. He had three children, one of whom had predeceased him in 2015. The defendants were the deceased’s surviving children, the personal representatives of the deceased’s estate, and the equal beneficiaries of the residuary estate pursuant to a will made in 2018. The claimants were the granddaughters of the deceased (the children of his predeceased son). A family rift opened in 2015 following the death of the deceased’s son. The claimants contended that:

1. (a) the deceased lacked testamentary capacity;
2. (b) he did not know and approve of the contents of the 2018 will; and/or
3. (c) the 2018 will was made as a result of undue influence and/or fraudulent calumny (not pursed at trial) on the part of the defendants,

and that the deceased’s true testamentary intention was that his residuary estate be divided equally into three shares, with one third passing to the five claimants following the death of their father.

The deceased had made an earlier will in 2011 which left his residuary estate to his three children, under which, following the death of their father, the claimants would have inherited his share. The effect of the 2018 will was to disinherit them. The deceased had suffered from a number of physical ailments before, at and following the execution of the 2018 will, including chronic obstructive pulmonary disease, heart disease, hearing impairment, macular degeneration, urological issues and mobility issues. He had difficulties speaking clearly. The deceased had been in hospital regularly at the material time, including shortly before executing the 2018 will. He lived alone and was not able to leave his home alone. His daughter (one of the defendants) lived close to the deceased and was his carer at the material time. He had failed a mini-cognitive dementia screen in 2016, but there was nothing to suggest that he lacked testamentary capacity in his medical records. Solicitors attended on him to make the 2018 will (the same firm which made the 2011 will; a draft had been prepared in 2017 but not executed) who purported to apply the Banks v Goodfellow test and did not raise an issue with testamentary capacity. The claimants’ expert could not positively state an opinion that the deceased lacked testamentary capacity. The defendants’ expert gave a clear opinion that, on the balance or probabilities, the deceased had testamentary capacity.

Held:

1. (1) Claim dismissed. The court was satisfied that the deceased had testamentary capacity, and he knew and approved the 2018 will without undue influence or fraud.
2. (2) The approach to evidence was as set out in Shovlin v Site Civils & Surfacing Ltd [2023]:
   1. (a) the unreliability of memory and the weight put on recollections was recognised, and factual findings should be based on inferences drawn from the documentary evidence and known or probable facts;
   2. (b) it was acknowledged that witnesses may falsely record events that took place some time ago but with genuine belief that their recollection was accurate;
   3. (c) findings should be made by reference to all of the evidence, placing appropriate weight in the particular circumstances; and
   4. (d) where there was a paucity of contemporaneous documents, it was important to test the evidence against inherent probabilities and consider their consistency with other evidence and internal consistency.
3. (3) The deceased had made his testamentary intentions known in the past and it was known that a will was being made in 2018. Despite some criticisms of the solicitors who attended on the deceased in their approach to assessing testamentary capacity, their attendance notes and their failure to consider the 2011 will themselves or with the deceased, they were not aware of any reason to doubt testamentary capacity.
4. (4) The 2018 will was rational in its own terms and could not be said to be one that no reasonable testator could make. It was rational for the claimants to be left out even if that would be disappointing given the deceased’s views.
5. (5) The expert evidence and medical evidence did not cause real doubts about testamentary capacity.
6. (6) The 2018 will was executed with testamentary capacity and prepared by a solicitor, whose attendance note recorded that the deceased confirmed he was happy with it, giving rise to a presumption of knowledge and approval. It was executed 18 months after the 2017 will and those contents had become settled in the deceased’s mind. On the balance of probabilities, with regard to the totality of the evidence, the deceased knew and approved the 2018 will.
7. (7) The evidence did not come close to proving undue influence or fraud.

JUDGMENT MASTER BRIGHTWELL: [1] This claim concerns the testamentary dispositions of Frederick Ward (‘Fred’), who died on 17 February 2020 at the age of 91. He had three children, Fred (who predeceased him on 2 September 2015) (‘Fred Junior’), and the two defendants, whom I will refer to as Terence and Susan. Fred Junior had …

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