Proving a Will Can Be Such a Burden!

The recent appeal in the case of Lonsdale -v- Teasdale and others has emphasized the importance of knowing who has to prove what in disputed wills cases.

In civil litigation, the standard of proof is the balance of probabilities.  As a general principle, the burden of proving the underlying facts rests with the party asserting a particular case but in contentious probate cases, the burden can shift between the parties depending on the precise circumstances.

To begin with, although those alleging that a particular will is valid must satisfy the court that the will maker had testamentary capacity “if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it” presuming that the testator was mentally competent.  If, however, evidence of mental incapacity is produced, those supporting that will must establish positively that the deceased was of sound mind, memory and understanding in accordance with the well-known 19^th Century case of Banks -v- Goodfellow.

In this particular case, Mr Beswick had two children.  In his first 2014 Will, his wife was the main beneficiary and then his two children.  Unfortunately, by the time he came to make his final will in 2017 both his wife and his only son had died leaving his daughter (the claimant in the case) as the principal beneficiary.

The 2017 Will made within six months of the death of both his wife and his son left everything to a long-term friend who Mr Beswick referred to as “my step-son”.  Mr Teasdale (the defendant) was in fact present when the solicitors took instructions for the will.  The trial judge having said in terms that issues about the burden of proof in disputed wills cases were “often a difficult and knotty problem” decided to adopt an approach of looking at the evidence overall.  On that basis, the judge decided that the 2017 Will was valid.

In allowing the appeal, the appellate judge said that because there was ample material to raise a serious doubt as to the deceased’s mental capacity, the court should have approached the case on the basis that the defendant, who was arguing in favour of the 2017 will, had the burden of proving testamentary capacity and that had that been done, the result of the case would have been completely different.  Evidence of incapacity included:

• In January 2017, the DLVA had sought a GP’s report as to the deceased’s mental fitness to retain his driving licence.
• In June 2017, the GP had carried out a cognitive impairment test with the deceased scoring 20/28 in circumstances where a score of 8 and above indicates that somebody is above the cut off for cognitive impairment.
• According to his GP, the deceased had no insight into the extent of his memory problems.

Unfortunately, the solicitors who prepared the will were inexperienced, kept an incomplete will file and did not follow the golden rule of ensuring that they had obtained medical evidence of the testator’s capacity.  This was, to put it neutrally, unfortunate in circumstances where a number of potential red flags were present in that:

• The solicitors had not met the deceased before.
• He was brought in by someone who was not in fact his son.
• The new will represented a substantial change from the previous one in terms of cutting out the deceased’s only remaining close living relative.

Although in a lot of cases like this, judges probably prefer to make their decision without relying on the burden of proof this case demonstrates that at the margins that sort of analysis can still be critical to the outcome.

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The information given here is intended for general information purposes only and should not be taken as legal advice.

For specific guidance relevant to your situation, please contact our contentious probate specialist Paul Grimwood by calling 01895 207859 or emailing paul.grimwood@ibblaw.co.uk.