“Mrs Wilkins [the Deceased] quite upset throughout and explains that since Mr Wilkins died she has not seen her other daughter. This has upset her. She has not made a Will and I explained under the intestacy rules the two daughters would inherit. She does not want this. She wanted to give me instructions for her Will and I took some details. They are as follows:- 1. She wishes to be cremated. Before her husband died he sorted out pre-payment plans through Paul Wharton which covers this. 2. On her death she wants to appoint her daughter Karine Lisa Dunston [sic] as sole Executor. 3. She would like some items of jewellery to pass to the granddaughter Kayleigh […] 4. Subject to this the whole of her estate which includes her share of the property will pass to Corinne? 02:55 and if she does predecease down to her daughter Kayleigh […]”
“[The Deceased’s] daughter Corinne was there and she left the room and I then showed Mrs Wilkins the Will which she approved and I explained it to her in detail. She was happy with it and signed in the presence of myself and Megan.”
“14. Knowing and approving of the contents of one's will is traditional language for saying that the will “represented [one's] testamentary intentions” see per Chadwick LJ in Fuller v Strum[2002] 1 WLR 1097 , para 59. The proposition that Mrs Gill knew and approved of the contents of the will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will. 15. In Fulton v Andrew (1875) LR 7 HL 448 , 469, Lord Hatherley said that “when you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator …”
“When all is dark, it is dangerous for a court to claim that it can see the light.”
“9. The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost.”
"… a court should be very slow to find that a will does not represent the genuine wishes of the testatrix simply because its terms are surprising, inconsistent with what she said during her lifetime, unfair, or even vindictive or perverse"
“proof of the reading over of a will does not necessarily establish “knowledge and approval”
“There is no serious dispute about the law. The approach that I should adopt may be summarised as follows: i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence; ii) Whether undue influence has procured the execution of a will is therefore a question of fact; iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition; iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud. v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense; vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will; vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”
“Although the standard of proof is the civil standard, the balance of probabilities, and undue influence can be found by the court drawing inferences from all the circumstances, the cogency and strength of the evidence required to prove fraud is heightened by the nature and seriousness of the allegation.”
“Whilst Lewison J stated that what must be shown is that the facts are “inconsistent with any other hypothesis” other than undue influence, this is to overstate the position. The standard of proof is the normal civil one of the balance of probabilities. As counsel for Mrs Dunstans pointed out, an allegation of undue influence is a most serious one to make: see Re Good (deceased) Carapeto v Good[2002] EWHC 640 (Ch) . It is a species of fraud, which requires strong and cogent evidence to prove […]”. 61. As acknowledged by both Counsel, undue influence is typically established by way of inference. As HHJ Jarman KC, sitting as a Judge of the High Court, said in Jones v Jones[2023] EWHC 1457 (Ch) at paragraph 59: “Finally, I turn to consider whether the will was the product of undue influence exerted by Ceri Jones on her mother. There is no direct evidence of such influence in the present case, but as Mann J observed in Schrader v Schrader[2013] EWHC 466 (Ch) , there rarely is. Undue influence is more usually established by inference.”
“My gosh, no; definitely not”
“We had no idea what was in Nan’s will”
“As time went on, visits to Michelle became more and more difficult, and would often lead to confrontation. Corinne became verbally abusive, and Andrea and I felt that it was not worth us visiting as we were only putting Michelle under stress, upsetting her unduly because of Corinne’s behaviour.”
“It is not a question of what I think, it’s about what I know about her as a friend”
‘[…] tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.’
“If the last will is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for in solemn form or (if there is no earlier will) an intestacy declared. Where genuine doubts exist as to the validity of a testamentary document, the court may be willing as part of a compromise to pronounce against that document, but the court will not as part of a compromise be willing to pass over a testamentary document (either a will or codicil) which is apparently a valid document and as to which there is no evidence of invalidity. Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested.”