Schrader v Schrader [2013] EWHC 466 (Ch)

Analysis

Jessica Schrader (the testatrix) died a widow aged 98. The testatrix’s two sons, the claimant (Nick) and the defendant (Bill), survived her.

By a will dated 1 October 1990 (the 1990 will), drafted by a firm of solicitors, the testatrix had made specific gifts of shares and savings bonds to her grandchildren and thereafter left her residue (on her husband having predeceased) to Nick and Bill in equal shares absolutely.

However, in or about May 2005, the testatrix suffered a fall and Nick moved into the testatrix’s property to act as her carer. On 12 April 2006, a further will, for which Nick made the administrative arrangements with a will writing company, was executed (the 2006 will). The 2006 will similarly made specific gifts to the testatrix’s grandchildren and divided her residuary estate between Nick and Bill – crucially, however, it also made a devise of the testatrix’s residential property (the main asset of her estate) to Nick absolutely.

Unaware of the 2006 will, steps were taken to administer the testatrix’s estate under the 1990 will. Accordingly, Nick sought to prove the 2006 will, the validity of which was challenged by Bill on the basis of capacity, want of knowledge and approval and undue influence.

Held (pronouncing against the force and validity of the 2006 will and in favour of the 1990 will):

1. (1) The 2006 will was rational on its face and there was no evidence to rebut the presumption of capacity (paras [75-81]): it was not necessary for the testatrix to have known the precise value of her property (para [81]), and the absence of any express explanation for a change in testamentary disposition was not sufficient to call the testatrix’s capacity into question (para [82]).
2. (2) The testatrix knew and approved the 2006 will: she gave rational instructions; she was able to itemise chattels as well as her real property; she knew her grandchildren and (most of) their addresses; she was able to make alterations to a draft of the 2006 will, which demonstrates an attention to detail; and the will was read to her by a professional will writer (and was relatively simple and easy to understand), and was properly executed (para [92]).
3. (3) It was to be inferred, from the following circumstances, that Nick unduly influenced the testatrix and took advantage of her vulnerability (paras [97-98]):
4. (i) Although not lacking capacity, the testatrix was vulnerable at the relevant time.
5. (ii) The testatrix was dependant on Nick.
6. (iii) Nick had a forceful and physical personality.
7. (iv) Nick held a belief that he and Bill had not been treated equally by their parents and was more likely to try to even things up.
8. (v) Nick was involved in the 2006 will’s preparation and made attempts to distance himself from this process in the course of evidence.
9. (vi) Nick failed to engage previous solicitors who might have known of family circumstances.
10. (vii) Nick failed to disclose the 2006 will until steps were taken to prove the 1990 will.
11. (viii) The source of an inaccurate explanation given by the testatrix for altering her testamentary wishes was likely to be Nick.
12. (ix) There was no other identified reason why the testatrix would, entirely of her own volition, wish to change her will.

JUDGMENT MANN J: Introduction [1] This is a probate action about the last purported will of Jessica Schrader (Jessica). She died aged 98 on 21 January 2008. In the disputed will dated 12 April 2006 she left certain specific requests of relatively minor items to grandchildren and others, left her house (Southend Farm House) to …

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