Case Study: The Validity of a Will – Nutt V Nutt 2018

On 19 April 2018, Master Clark gave judgment in the estate of Lily Rose Nutt. Our Senior Associate Kerry Hull delves into the specifics of this contested Will case.

Lily died aged 88 years on 25 February 2013. She was widowed and survived by three adult children, Christopher 73 years, Vivienne 71 years and Colin 64 years. Her two eldest children argued Lily’s penultimate Will dated 2005 was her final valid Will leaving her estate divided equally between the three children. Colin argued a later Will dated 7 April 2010 was her final valid Will to be admitted to Probate. This Will left the deceased’s house, being the main asset worth approximately £350,000 to Colin.

FAMILY BACKGROUND 

Colin lived with Lily for many years until a family fallout. He lost touch until about 2003. In 2004, Lily was diagnosed with Parkinson’s Disease. In 2007 she had a heart attack and in 2008 was diagnosed with Paget’s Disease, a bone weakening illness.

In the last decade of her life, Lily received care and support from her family, with Colin suggesting he provided most of this. This was disputed by Christopher and Vivienne who maintained that there was no reason for Lily to have made greater provision for Colin.

ISSUES IN DISPUTE 

Christopher and Vivienne argued:

• Whether the 2010 Will was executed by Lily;
• If so, whether Lily had testamentary capacity when executing the Will;
• If so, whether Lily knew and approved the contents of the 2010 Will;
• If so, whether the execution of the 2010 Will was procured by undue influence on the part of Colin.

The Wills Act 1837 s9 sets out the rules for due execution.It was for Colin in defending the claim to show the s9 requirements were satisfied. He relied upon the evidence of the two attesting witnesses and the Judge accepted their evidence. He accepted witness evidence that Lily had told others that she had made a Will leaving her house to Colin and accepted the Will was duly executed.

The test for testamentary capacity is that set out in Banks v Goodfellow and the burden of proof was on Colin. Lily’s medical records revealed the diagnosis of Parkinson’s and Dementia did not occur until around fourteen months after the final Will was executed. The Judge did not find that an earlier diagnosis affecting Lily’s memory was evidence persuasive to amount to lacking testamentary capacity.

In considering knowledge and approval, the Judge had regard to all the circumstances surrounding the 2010 Will. Lily had informed other witnesses of her intention of making a Will and leaving her home to Colin, and having prepared a Will to that effect, the Judge was satisfied that the principle of knowledge and approval had been fulfilled.

In turning to undue influence and whether Lily was unduly influenced by Colin into making the Will in the way that she did, the burden was on Christopher and Vivienne to show coercion and the Judge could find no evidence to suggest undue influence that Colin had a dominating or domineering personality. 

FINDINGS 

​Master Clark’s findings were that the 2010 Will was properly signed by Lily. There was no evidence to raise doubt as to testamentary capacity or knowledge and approval or that the content of the Will was in any way unrepresentative of Lily’s wishes. Colin was considered to be attentive towards Lily rather than domineering.

A Court will focus on whether a Will is valid, not on whether a Will is unjustified or unfair. This is determined from the circumstances at the time when instructions are given and the Will signed.

MORE INFORMATION 

If you need further advice relating to the validity of a Will, please contact our Contested Wills & Probate department for more information – call us or email by using the form to the right.This article was written by Kerry Hull, Senior Associate at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2018.