Analysis
The claimant and defendant are the two sons of Mr Igor Tociapski (the deceased), who died on 12 March 2010 and had made a will dated 20 June 2007 and a later will dated 13 May 2009 (the 2009 will). The 2007 will shared the estate between the two sons. The 2009 will gave the entire estate to the defendant. By a transfer dated 12 February 2010 (the transfer), the deceased gave to the defendant a property known as Hillcrest Cottage, in Northamptonshire.
The claimant sought to set aside the 2009 will on the grounds that the deceased did not know and approve its contents alternatively that the deceased was unduly influenced by the defendant. The claimant sought to set aside the transfer on the grounds of undue influence and on the grounds of non est factum (permission to amend to include this latter plea having been given at the hearing).
Accepting evidence of the claimant’s solicitor as to his efforts to serve the proceeding on the defendant, who it was supposed was in Australia or South Africa, the trial proceeded in the absence of the defendant, who played no part in proceedings.
Held:
(1) In light of the expert evidence of Dr Andrew Barker, consultant in old age psychiatry, it could not be concluded that the deceased lacked capacity to execute the 2009 will. However, capacity was impaired and this adversely affected the deceased’s ability to know and approve of the contents of the 2009 will.
(2) There was no reason for the testator to alter provisions of the 2007 will; the 2009 will departed from the deceased’s previous pattern of behaviour vis-à-vis his sons (of equal treatment or exclusion of the defendant); it was out of character for the deceased to include a provision explaining the exclusion of the claimant; the 2009 will was very much in the defendant’s interests who was active and instrumental in the preparation of the 2009 will; confirmatory letters and a draft will were unlikely to have been read by the deceased; the deceased was suffering from health problems at the material time and was isolated from his carer; the defendant had control of the deceased by reason of the latter’s frailty and domestic arrangements; there is no evidence from which the court can infer the will was read.
(3) These circumstances taken together excite the vigilance and suspicion of the court meaning that the defendant on whom the burden of proof lies must show to a high degree of proof that the deceased knew and approved of the 2009 will. The defendant failed to discharge this burden. It was accordingly unnecessary to consider undue influence in the context of the 2009 will.
(4) In respect of the transfer, the case is unusual as it is the claimant not the deceased who seeks to set aside the transfer. In respect of the allegation of undue influence, the claimant relied on the same evidence as was relied upon in relation to the challenge to the 2009 will. In particular, there was evidence that the transfer was executed at a meeting with the deceased the defendant attended and after a meeting at which the defendant alone informed the solicitors then acting that the deceased wished to make the transfer. In light of the aforesaid evidence, the transfer was one which called for explanation.
(5) The evidence in support of the defendant’s case that the transfer was an estate-planning measure was implausible as the deceased was unlikely to live for seven years after the transfer; and was not the sort of person who was likely to have had estate-planning in mind. There was no evidence the transfer was the result of full, free and informed thought.
JUDGMENT MR ISAACS QC: [1] The claimant and the defendant are the two sons of Mr Igor Tociapski, who died on 12 March 2010. The deceased made a will dated 20 June 2007, under which the claimant and the defendant are the only persons entitled to share in the deceased’s estate. The defendant is the …Continue reading "Tociapski v Tociapski [2013] EWHC 1770 (Ch)"