Analysis
The claimant issued probate proceedings seeking orders pronouncing against the validity of a will dated 11 June 2013 and in favour of an earlier will dated 15 March 2006. The claimant was the sole executor under both wills, and the sole beneficiary of the earlier will. The later will gave rise to a partial intestacy of residue, under which the defendants were the beneficiaries.
The claimant issued probate proceedings challenging the 2013 will for lack of testamentary capacity. Four defendants had consented pre-action and one had acknowledged service, not contesting the claim. No other defendant acknowledged service. The claimant applied for an order under the Administration of Justice Act 1985, s49, which was refused. Instead, the Master directed a trial on the written evidence alone. The first trial was adjourned to enable proof of evidence of service to be filed. The adjourned hearing was again adjourned twice to allow the attesting solicitor’s file and complete medical records to be put in evidence.
The medical records showed that the testator had a close relationship with the claimant until late 2011 when he moved in with one of the defendants. In early 2012 he was diagnosed with dementia, paranoid delusions and psychotic thinking. His doctor considered that he had lost capacity to manage his property and financial affairs in March 2012. In April 2013 he wrote to his solicitors giving instructions for a draft will. They insisted he be assessed by a doctor, but sent a draft will in May 2013. The testator executed the will without having been so assessed. The solicitor recorded various delusional statements by the testator but noted that had a doctor not given the earlier diagnosis, he would have considered the testator had sufficient capacity.
None of the defendants were represented.
The issues to be determined were:
- (1) Had the necessary defendants been properly served?
- (2) Should the court declare against the validity of the 2013 will for lack of testamentary capacity?
Held:
- (1) All defendants had been properly served. Practice Note: Since the introduction of electronic working pursuant to PD51O, the court no longer provides hard copies of the claim form once issued. The court electronically seals the claim form and returns it to the claimant’s electronic working online account, from which sealed copies may be printed. Authorities to the effect that valid service may only be effected by service of a sealed hard copy (eg Civil Procedure (2022) para 6.3.2) are no longer correct.
- (2) The 2013 will would be set aside for lack of testamentary capacity. The evidence showed that the deceased had lost capacity in 2012 when he was assessed. His correspondence with the will-drafting solicitors demonstrated irrational persecutory delusions about the claimant’s wife and, by extension, the claimant, which were causative of his decision to alter his will. The assessment of the solicitor on the day on which the will was executed was not reliable; the solicitor had failed to investigate the effect of the deceased’s paranoid delusions or to obtain the assessment of a qualified medical officer.
The court pronounced in favour of the 2006 will.
JUDGMENT MASTER CLARK: [1] This is my judgment following the trial on written evidence of this probate claim brought by claim form dated 12 July 2019. [2] The deceased, Edward Henry Charles Smith died on 24 January 2016, aged 97. He was unmarried and had no children. The claimant, Gavin Boast, is the deceased’s great …Continue reading "Boast v Ballardi & ors [2022] WTLR 1203"