Ball & ors v Ball & ors [2017] WTLR 891

Analysis

The Deceased was married to James Ball. They had had eleven children, including the three claimants and eight of the nine defendants. In or around 1991, the family split, when the three claimants reported their father to the police for sexually abusing them when they were younger. The Deceased felt that the complaints were exaggerated, and was annoyed that they had been made public. As a result, on 27 May 1992 the Deceased made a will excluding those three claimants from benefit, dividing her estate between her eight remaining children and one of her grandsons. The will was professional drafted. Their father was prosecuted in respect of the sexual abuse allegations, and pleaded guilty to indecent assault upon the second claimant, and incest and indecent assault upon the third claimant. The Deceased lived a further 20 years, but never changed her will.

The Deceased died in November 2013, giving rise to a dispute about the validity of the will. Proceedings were issued on 5 November 2014. The claimants advanced their challenge to the will under three heads: lack of testamentary capacity, undue influence on the part of her husband, and a family provision claim under the 1975 Act. As to the first of those three heads, it was agreed that the Deceased was not suffering from any physical or mental illness which would have been sufficient to deprive her of testamentary capacity. However the claimants’ position was that her state of mind was such that her capacity was lacking because of the serious misapprehension under which she was laboring as to her husband’s guilt.

Held:

1. 1) A mistake did not by itself operate to invalidate a will. However it could provide a basis upon which to say that the testator was suffering from an insane delusion or did not possess a sufficiently sound memory for the purposes of making a will. However a mere mistake was not enough. In the present case, the Deceased was not suffering from a mistake as to the guilt of her husband. Even if the Deceased had been acting in the mistaken belief that her husband was innocent, then that would not be enough to show that she was suffering from an insane delusion or that she lacked sufficient memory to make a will.
2. 2) The testatrix did not make her will under the undue influence of her husband. The fact that they made mirrors at the same time with the same solicitors, and in similar terms, did not demonstrate any influence at all. The Deceased was the dominant partner in the marriage.
3. 3) As to the claim under the 1975 Act, all of the claimants could well do with a lump sum ot advance them in life, but none of them could be described as ‘below the breadline’ or in need of further income for their reasonable maintance. None of them were worse off than the witness-defendants, and on some measures better off. In short, this was a small estate, where the claims of the claimants based on their need were not significantly different from those of the actual beneficiaries of the estate. The will of the Deceased did not fail to provide them with reasonable financial provision for their maintenance.

JUDGMENT HHJ MATTHEWS: [1] This is my judgment on a claim arising out of an unfortunate family dispute about a will. The will is that of Barbara Olive Ball, and it was made on 27 May 1992, when she was 57 years old. She was born on 14 April 1935 and died on 8 November …

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