Re Ashkettle [2013] EWHC 2125 (Ch)

Analysis

Mrs Louisa Ashkettle (the testatrix) died on 27 September 2007, aged 86. She left two wills dated 2 October 1986 and 18 January 1999. While the 1986 will left everything equally between her two sons (the claimants) and her daughter (the respondent), the 1999 will (the will) left everything to the respondent. The claimants stated that:

1. (i) the will was not properly executed;
2. (ii) the testatrix lacked testamentary capacity at its execution;
3. (iii) the testatrix did not know and approve the contents of the will; and
4. (iv) if their assertions at (ii) and (iii) were incorrect, then the will was procured by the respondent’s undue influence.

The testatrix had been diagnosed with Alzheimer’s disease in 1997, although there was an obvious decline in her mental health from 1995. The respondent had been party to the testatrix’s doctor’s appointments, which concerned her failing memory and which resulted in the diagnosis of Alzheimer’s. Despite this, the respondent maintained that the testatrix had testamentary capacity and that she understood and approved the contents of the will at the point of its execution. The judge found the respondent’s evidence in this regard to be lacking credibility.

The will provided a brief explanation for the exclusion of the claimants. It was prepared and executed by the testatrix’s solicitor, on her behalf. The solicitor could not remember the matter in detail but provided evidence of his usual procedure in taking instructions and executing a will. The will file had been destroyed and only a note relating to instructions taken for the preparation of an Enduring Power of Attorney remained. Medical evidence of capacity was not obtained at the time as the solicitor had no concerns as to the testatrix’s mental state.

The claimants provided contemporaneous written evidence and oral evidence demonstrating the mental deterioration of the testatrix from 1995 onwards. This clearly indicated that she would not have had testamentary capacity to make the will and nor could she have understand and approved its contents.

Held:

1. (1) As to formal validity, while the court considered the evidence to be weak it was accepted that the testatrix gave sufficient direction for her solicitor to sign the will on her behalf.
2. (2) As to testamentary capacity recent case law requires ‘the clearest evidence of a lack of capacity’ to go behind the judgment of an experienced and independent solicitor (Hawes v Burgess [2013] WTLR 453), however preparation by a solicitor is not conclusive.
3. (3) Based on the medical and witness evidence before the court, the claimants’ evidence was preferred and it was clear that by 1999 the testatrix was ‘unable to communicate in any meaningful way although she may have maintained a social façade sufficient to mask her deterioration’ from her solicitor.
4. (4) The question of want of knowledge and approval would only arise if the court was wrong on the question of testamentary capacity, however the court concluded that, for similar reasons, the testatrix did not know and approve the contents of the will.
5. (5) Letters of Administration with will annexed in relation to the will dated 2 October 1986 granted.

JUDGMENT CHRISTOPHER PYMONT QC: [1] This is a probate action by which the claimants ask the Court to pronounce against the validity of a will dated 18 January 1999 and the defendant (by a late counterclaim) seeks a grant of probate of that will in solemn form. The claimants’ claim also seeks a grant in …

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