Re Wilson (dec’d) [2013] EWHC 499 (Ch)

Analysis

The testatrix Iris Wilson (Iris) made a will dated 31 August 2010 and died on 6 October 2010. Her will appointed the first defendant Mr Phythian as the sole executor and left her personal effects and the residue of her estate to the second defendant Mrs Phythian and the property known as North Lodge in Yalding Kent in equal shares to Mr and Mrs Phythian.

Mrs Lynda Turner (the claimant) the niece of Iris challenged the will on three grounds:

• Lack of proper execution.
• Lack of mental capacity.
• Lack of knowledge and approval of the contents of the will.

North Lodge was Iris’ main asset. It was bought using money from her brothers and mother in the 1970s. After Iris’ husband (Alf) died in September 2007 she rarely stayed at the property but refused to sell it but rather maintained it as a shrine to her husband. Iris owned lots of family memorabilia including Alf’s war medals.

Mrs Phythian met Iris in the 1950s when she was engaged to Iris’ twin brother John. After John broke off the engagement Mrs Phythian maintained occasional contact with Iris but for a long time this was limited to the exchange of Christmas cards.

After Alf died Mr and Mrs Phythian began visiting Iris. Mr Phythian helped Iris to maintain North Lodge and drove her to family events and they both kept her company.

The only evidence on how the will was made came from Mr Phythian. He said that Iris mentioned her wish to make a will on the way home from John’s funeral in June 2010. He prepared a work sheet with six typed questions that he then read to her and wrote down her answers on the work sheet. On the basis of this conversation he drafted the will. The will was signed with Mrs Naden (Iris’ sister) and Mrs Leslie, a neighbour, as the witnesses at Mrs Naden’s property.

Mrs Naden’s statement for the case had been prepared by her niece Mrs Jolly asking her questions and drawing up a draft statement based on this with no solicitor present.

Mr Phythian was very clear that all three signatories were present at the same time when the will was signed, Mrs Leslie was unsure as Mrs Naden was making drinks and Mrs Naden stated that she signed separately to the other two signatories.

Mr Phythian also helped Mrs Naden make her will in August 2010 and she left him all her stocks and shares. Mrs Naden thought the shares were worth £100-£200 but Mr Phythian knew they were worth almost £19,000.

Iris had been hospitalised for reactive depression caused by a family bereavement in 1977 and had a strong bereavement reaction on Alf’s death and was prescribed anti-depressants. After Alf’s death she would stay in bed all day and take her phone off the hook. At John’s funeral witnesses stated that she failed to recognise close family members. Mr Phythian stated that at John’s funeral Iris was frail but not confused and talked to him calmly.

Mr and Mrs Phythian argued that Iris’ contact with her family had fallen off before her death and she had become dependent on their help. Her intention to leave them North Lodge had been long-standing and unsurprising given the role they played in her life.

Mr Phythian also argued that a proprietary estoppel arose from Iris’ promise to leave North Lodge to him as although all his expenditure had been reimbursed he had spent money on petrol and road tolls in visiting Iris and dealing with North Lodge.

Held (setting aside the will and declaring Iris died intestate):

1. (1) No weight can be placed on Mrs Naden’s evidence as it is unlikely she has any independent recollection of the disputed events. The circumstances of making Mrs Naden’s will show a serious lack of judgement by Mr Phythian and is an additional factor that adds to the need to be vigilant as regards Iris’ will.
2. (2) Mr Phythian is not a dishonest person and both of the Phythians devoted a great deal of time assisting Iris. His disapproval of Iris’ family has generated an inappropriate sense of entitlement to Iris’ property.
3. (3) The will was properly attested. Mr Phythian had been present at the execution of Mrs Naden’s will and understood the formalities and it was in his interest to see that that it was properly signed.
4. (4) The claimant produced sufficient evidence in regards to mental capacity to shift the burden of proving capacity to Mr Phythian. Mr Phythian could not prove capacity. Mr Phythina was wrong to conclude that Iris’ calmness at John’s funeral meant she lacked feelings about John’s death. Iris was suffering an affective disorder brought on by her deep grief for John combined with her continuing fragile mental state arising from her age, fragility and continuing grief for Alf.
5. (5) There is no evidence apart from Mr Phythian’s of Iris expressing an intention to leave anything to the Phythains, nor that Iris read the will.
6. (6) The paucity of the will instructions raises concerns. There was no discussion about any items other than furniture and North Lodge and yet the will left everything to the Phythians. Iris did not give instructions leaving her personal effects including the war medals and family memorabilia to Mrs Phythian.
7. (7) There is no evidence of a family rift and since North Lodge was bought with family money it is unlikely Iris would have consented to leave it to a non-family member.
8. (8) No cogent evidence has been provided that Iris knew or approved the contents of the will.
9. (9) No proprietory estoppel arises given that there was no serious promise to leave him North Lodge nor any reliance by Mr Phythian.

JUDGMENT VIVIEN ROSE: Introduction [1] Mrs Iris Wilson (Iris) died on about 6 October 2010 in her flat in Poplar in East London. She was a widow, her husband of many years, Alf, having died in September 2007. Iris and Alf had no children but were members of a large extended family. Iris was one …

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