Case Summary (Challenge to Validity of Will): Elliott – v – Simmonds & Anr High Court of Justice (Chancery Division) [2016] EWHC 732 (Ch)

September 13, 2016

Wills and Probate

Case Summary (Challenge to Validity of Will): Elliott – v – Simmonds & Anr  High Court of Justice (Chancery Division) [2016] EWHC 732 (Ch)

In this case, an adult daughter of a deceased Testator intimated a challenge to the validity of the last Will on the basis of lack of testamentary capacity, want of knowledge and approval and/or undue influence by the sole beneficiary under that Will.  She entered a caveat but then did nothing either to commence proceedings or to remove the caveat.  This forced the beneficiary to take proceedings seeking a decree of probate in solemn form and an order that the caveat should cease to have effect.  The daughter, who did not raise any positive case, insisted on the last Will being proved in solemn form and, for that purpose, invoked her right to cross examine the attesting witnesses. 

As the last Will was regular on its face, signed by the testator and by the attesting witnesses, a presumption arose that it was formally valid and there was no evidence, much less “strongest” or even “strong” evidence, that it had not been duly executed.  As regards testamentary capacity, the Solicitor who took instructions for, drafted and witnessed the execution of the last Will was, on the facts of the case, in a better position than most to judge whether there had been signs of deterioration in the Testator’s mental acuity.  On the balance of probabilities, the Testator had the testamentary capacity to make the Will.  As regards his knowledge and approval of its contents, there was a further presumption that this was satisfied as the Will had been duly executed by a Testator with the requisite capacity. 

posted by Christopher Parker | September 13 2016