Analysis
Mr Wharton (D) had been married many years ago and had two daughters from that marriage, Victoria and Gina, (V and G) the third and fourth defendants. He had another relationship which resulted in a third child, Amanda (A), the fifth defendant. He divorced his first wife in 1977 and cohabited with the claimant, Maureen, (M) who took his surname but did not marry him until immediately prior to his death in 2008. Between 1979 and 1995 D made and executed three successive wills all leaving substantial property to M and providing for his children, and some of M’s children, in various ways. Relationships between D and his daughters were not always good. Until their mother died V and G had little to do with him and it appears that there was no contact with A for many years prior to D’s death. Relations between G and D broke down completely in 2003 and G only spoke to her father again the day before he died. D was, however, proud of V’s daughter and on several occasions spoke of funding her at university. On 13 December D was diagnosed with a malignant cancer of the eye and surgery was performed. He decided to make a new will. He told the solicitor that he was not married to M but that they had decided to get married if there was a serious problem with him (but not in the near future).
His instructions were that he and M wished to grant each other an enduring power of attorney and that ideally on the first death they wished the entire estate to be passed to the other then one fifth to each of the four daughters, V and A and C’s two daughters, and a fifth between all the grandchildren and great grandchildren (including those of G and of C’s estranged son). It seems that the intention was that the gift to children and grandchildren was to be a contingency gift and not to create life interests and remainders over. When he saw the draft will D wished to consider it and never signed it or gave further instructions. In May 2006 D was diagnosed as possibly having cancer of the liver. M had a breakdown and was admitted to hospital for a short while. In June 2006 D instructed the firm of the first defendant, Mr Bancroft (B), to carry out transactional and advisory business for his company. D and M also prepared standard form wills on 6 July naming D’s accountants as executors. D had filled his form in as giving ‘all his estate’ but did not identify a donee. He gave the residue to M and instructed he be buried with her. M prepared a mirror will naming D as her sole beneficiary. Both forms bore the identical date and were witnessed by the same people.
On the morning of 23 September 2008, D, by now 78 years old, was discharged from hospital suffering from the final stages of eye and liver cancer and knowing he had only days to live. He was visited by his doctor during the day and given medication to ease his pain. The doctor also confirmed that D had capacity to get married. B had business to conduct with D in relation to D’s company and phoned to speak to him. Instead, B spoke first to M who told him D had only days to live and that they intended to marry that evening. Neither D nor M immediately appreciated that marriage would revoke their existing wills, and B advised each of them individually of this consequence. Once the issue had been identified it was agreed that B would attend immediately with a view to preparing a new will for D. That evening B, with his probate clerk (J) (who was also his wife), attended on D. Also present were the superintendent register of the Canterbury Registry Office and Mrs Hales (H), a member of her staff. They were in the kitchen with M while B took instructions from D concerning his will. B took detailed notes and asked about D’s daughters V and G (he had no knowledge of A’s existence). He was assured that they were adequately provided for and that no one other than M was being supported by B. D confirmed that he had already made a will leaving everything to M a while ago and that he was unchanged in his wishes. From his interactions with D, B was satisfied that D had capacity to make the will and proceeded to prepare a handwritten will to that effect explaining what he was doing as he went along. Although D lost concentration part of the way through and got tired, by the time B got to the attestation clause D seemed to have recovered his focus. When B passed him the will to read, D reminded him that due to his failing sight the will would have to be read to him. B amended the attestation clause and J fetched H who read the will over to D and then witnessed it with J. D and M were then married. Since D was terminally ill, and possessed a substantial estate, B considered that it was very likely that there would be competing claims from M and V and G so the following day he prepared a detailed attendance note from his notes. On 26 September 2008 D died leaving an estate that was worth approximately £4 million. In November 2008, D’s children indicated that they intended to challenge the will on the grounds of lack of testamentary capacity and undue influence. M subsequently issued proceedings seeking to prove the will in solemn form and the daughters asserted by their re-re-amended defence and counterclaim that at the time the 2008 will was executed D did not know and approve its contents, or alternatively that its execution was obtained by the undue influence of M, so that D executed a document that was contrary to his true wishes. To support their claims they argued that B had taken instructions from M, that the previous wills and statements of the testator indicated his true testamentary intentions were not those set out in his will and that the drugs he had been given and his physical frailty made him susceptible to coercion. The hearing took 7 days and almost 40 witnesses were called.
Held
The will was pronounced valid [1, 120]
The fact that there had been a deathbed marriage was not suspicious. D had always planned to marry on his deathbed and had made that clear to a number of people. He clearly understood that that was a sensible way of avoiding inheritance tax, which would otherwise have been quite substantial. There was not the slightest doubt that D had the capacity to get married as certified by his doctor, that he chose to do so and his marriage was valid. It was also clear that he understood his marriage would revoke his then existing will. He had been engaged in the will-making process since 2005 and the fact of his making a will on his deathbed was not of itself suspicious or such as to raise the inference he was only making a will because he was subject to illegitimate pressure [89].
D knew he was making a will and was able to understand the terms of the will, which were clearly read out to him and on which he took a solicitor’s advice. M was not present when he gave instructions for the will, or signed it. The will properly reflected D’s wishes on his deathbed. Once the court had found that D knew and approved the terms of the will it had to consider whether D had been unduly influenced by M. There was some criticism from the daughters that B had not followed the ‘golden rule’ in getting a medical attendant to give an opinion on D’s capacity but the time available to him was very limited. A solicitor so placed could not simply conjure up a medical attendant. He had to obtain his client’s consent to the attendance of and examination by a doctor. He had to procure the attendance of a doctor (preferably the testator’s own) who was willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). B was not to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that D could marry [110]. There was no evidence to support coercion whether in the form of statements of testamentary intent, previous wills or the effect of drug treatment. A deathbed will in favour of a woman that D had treated as his wife for 32 years, and whom he had just chosen to marry, could not really be said to have been procured by undue influence [118].
JUDGMENT MR JUSTICE LIGHTMAN: [1] At the end of this judgment I pronounce in favour of the will dated 23 September 2008. [2] On the morning of 23 September 2008 78 year-old George Wharton (Mr Wharton) was discharged from hospital, knowing that he suffered from terminal cancer of the eye and liver and believing that …Continue reading "Wharton v Bancroft & ors [2011] EWHC (Ch) 3250"