Suspicious, irrational and unfair: When will the court intervene on a Will that a disinherited child claims is invalid?

Ryan Taylor Senior Associate in our Private Wealth Disputes team in London, looks at the decision in Wilkinson and others v Hicken [2023] EWHC 1983 (Ch) in which the High Court rejected a claim to set aside a will on the basis of lack of capacity and lack of knowledge and approval.

Background

Wilkinson and others v Hicken [2023] EWHC 1983 (Ch) concerned the validity of the last will dated 15 February 2018 (the “Will”) of Norman Walter Gill (“Norman”), which left the residue of his estate to a charitable trust (the “Charitable Trust”). The primary purpose of the Charitable Trust is to benefit the people of the city and county of Leicester.

Norman was described in the judgment following a trial on written evidence only as “a successful and driven businessman” but one who, in 1979, had sought to hire two hitmen in an attempt to murder his wife, Mary.

Norman had a noted history of psychiatric problems including depression, alcoholism, paranoia and “morbid jealousy syndrome” and so, rather than being imprisoned, he was, instead, sectioned under the Mental Health Act 1959.

Norman’s eldest daughter, Jessica, sought to contest the Will on the basis that Norman lacked testamentary capacity and did not know or approve the content of the Will.

Unsurprisingly, Norman’s relationship with both Mary and his children was troubled to say the least.

Following a series of earlier wills which variously left his estate to his four children and established trusts for the benefit of his family, by the end of 2013 Norman’s relationship with his children had entirely broken down and, in 2018, he executed the Will. In the Will he gifted £5,000 to each of his children, gave substantial legacies to extended family members, friends, associates, and carers totalling some £2 million and left the remainder of his estate to the Charitable Trust.

Norman died a little over a month later, on 30 March 2018, after having suffered a stroke, leaving a net estate of some £5.3 million.

Jessica’s case

It was Jessica’s case that Norman lacked testamentary capacity and/or did not know or approve the content of the Will. In summary, Jessica alleged that:

1. the Will was not rational on the basis that it excluded Norman’s children and grandchildren, contrary to his earlier wills which sought to leave most of his estate to family;
2. Norman suffered from a personality disorder which affected his ability to have natural affection for his children and grandchildren;
3. Norman was 84 and terminally ill with colon cancer at the time of executing the Will and also suffered from a number of other medical conditions, which Jessica claimed significantly impacted upon his decision making; and
4. the person who prepared the Will failed to take proper instructions from Norman or to ensure that he understood the effect of the provisions made in the Will.

Jessica issued proceedings on 8 December 2020.

In anticipation of a proposed mediation, the claimants, who were the trustees of the Charitable Trust, obtained a medical report from a consultant old age psychiatrist, who concluded that Norman was not suffering from any mental disorder or mental illness which might have affected his testamentary capacity. The report added that it was unlikely that he suffered from a personality disorder.

Mediation

The parties attended mediation in an attempt to settle the dispute and a settlement was reached whereby Jessica irrevocably and unconditionally accepted the validity of the last will with the claimants agreeing to pay her the total sum of £700,000 free of inheritance tax. However, as court proceedings had already been issued, and with other parties ostensibly affected by the validity or otherwise of the Will, under the relevant court rules (paragraph 6.1 of Practice Direction 57 of the Civil Procedure Rules) the court directed a trial on the written evidence with a view to propounding the Will and obtaining a grant “in solemn form”, thereby validating the Will and preventing future challenges.

Jessica’s claims

In response to the written evidence, Jessica put forward submissions focused primarily on her claim that the medical report was misleading because the expert had not been provided with all the relevant documents at the time of preparing the report, including evidence of communications between Mr Gill and his children.

The court agreed the expert’s report was factually incorrect for the reasons submitted by Jessica but nonetheless held that the expert’s findings as to capacity were correct.

The judgment

The court considered that Norman terminating his relationship with his children did not itself render the Will irrational. It attached significant weight to evidence provided by witnesses which portrayed Norman as a difficult person who had very firm views on most things. Following his unsuccessful attempt at reconciling with his children for the final time, he had accepted that there was nothing further that could be done and therefore chose to make a new will.

The court noted in particular the following:

1. an attendance note on the will file confirming that Norman was taken through the Will in detail before it was executed;
2. Norman’s decision to disinherit his children and grandchildren may be seen as unfair, but it was not irrational in the context of his persisting personality traits and failed attempts at reconciliation;
3. the Will followed the same format and pattern of his earlier wills; and
4. the court could not identify any suspicious circumstances under which the Will had been executed.

Given the terms of the settlement reached at mediation, and despite Jessica’s apparent about face and attempts to put in further evidence to dispute the Will, it appears that she would still receive her £700,000 payment on the basis that a binding settlement, subject to the propounding of the Will in solemn form, had been reached.

Conclusion

This case is an example of how it is not enough for a will simply to be “unfair” to render it invalid. There needs to be something more, to incite suspicion over whether the will reflects a person’s intentions at the relevant time or some irrationality in their mind.

Further, and despite any separate agreement between the parties, the decision as to the validity of a will which is placed before the court is one for the court to make if a grant in solemn form is sought. The rationale behind this is twofold:

1. the person making the will is dead and so cannot testify as to its validity so the court will do so in their place; and
2. the determination of this question often affects potential beneficiaries who are not themselves parties to any claim.