2019 was a challenging year for those working in the Wills and probate sector. To begin with, the government’s proposed new fee structures and regulatory changes were, after a long period of sustained and vociferous criticism, abandoned. Next, HM Courts and Tribunals Service’s restructuring of the probate registry in the form of a centralised, digitised system caused delays and backlog, leading to consternation, frustration and considerable bad press.

Probate solicitors have, on occasion, borne the brunt of client frustration while at the same time having to negotiate their own way through uncertainty, change and government U-turns. This situation has been particularly acute for those dealing with probate in relation to charities and trusts as well as practitioners in the contentious probate sector.

Against this background of chaos, confusion and abandoned plans, it is amazing that contentious probate solicitors were able to get any case work done at all, but they have, and below we review two of the more interesting and important disputed Will and contentious probate rulings of 2019. Both relate to testamentary capacity in later life, an issue that is likely to become increasingly relevant as the decade develops, the population ages and the incidence of dementia increases.

Barnaby & Anor. v Johnson [2019] EWHC 3344 (Ch)

This case concerned the validity of a mother’s Will – i.e. whether she had mental capacity to make it and whether, in this light, she was subject to undue influence from one of her children at the time of its writing.

The court heard that the deceased, Mrs Bascoe, made a Will on 27 April 2005 (the 2005 Will) in which she bequeathed her daughter, Patricia Johnson, just £100, with the rest of her estate left to her son Bradford Barnaby – Mrs Bascoe’s other son had passed away in 2004 (before the Will was written) and her other daughter, who had been left £500, died in 2017.

The 2005 Will included a note explaining that Mrs Bascoe was only leaving a small fraction of her estate to her daughters because they had “shown very little care and concern” regarding her welfare and had “both been rude, unpleasant and in some instances physically violent and abusive”.

The claimants in the contentious probate case were Mrs Bascoe’s son, Bradford Barnaby, and solicitor (together, the two were the executors of Mrs Bascoe’s estate under the terms of the 2005 Will) who wished to propound the validity of the 2005 Will. If it were upheld as invalid, Mrs Bascoe’s daughter, Miss Johnson, would receive £10,000 under the terms of a 1992 Will.

It was left to the court to decide upon Mrs Bascoe’s testamentary capacity, whether there had been undue influence by Mr Barnaby, whether the 2005 Will contained a forged signature, and whether Mrs Bascoe had want of knowledge and approval of the 2005 Will.

Ultimately, the judge ruled that Miss Johnson had “come nowhere near establishing the basis for any proper challenge”. Furthermore, her evidence had been “contradictory, self-serving and deliberately misleading”. Lastly, the court was satisfied by evidence that Mrs Bascoe possessed mental capacity at the time of writing her Will; she was not diagnosed with dementia until 2008.

The 2005 Will was duly passed into probate.

Take home: Medical records and the testimony of Mrs Bascoe’s solicitor were crucial in supporting Mr Barnaby’s claim in respect of the validity of the 2005 Will. The question of forgery was dismissed without reservation by the judge who made note that it would have required collusion by all three of the signature witnesses. The judge noted that there was no basis for the allegation of forgery and it should never have been made, a fact which would not have improved the prospect of success for Miss Johnson.

Rea v Rea & Ors [2019] EWHC 2434 (Ch)

This was another sibling-related disputed Will claim concerning the validity of a parent’s Will. The claim was brought by Ms Rita Rea, concerning the Will her mother, Mrs Anne Rea, signed on 7 December 2015 (the 2015 Will) in relation to her £750,000 estate.

Rita Rea sought to enter the 2015 Will, in which she was left the entire estate, into probate. However, Mrs Rea’s three other children, all boys – David, Nino and Remo – disputed the 2015 Will, claiming their mother lacked testamentary capacity at the time of writing, that she did not know and approve of the Will’s contents, and that their sister Rita Rea had exerted undue influence over their mother.

They contended that another Will, made on 29 May 1986 (the 1986 Will), in which equal provision was made for all four of her children should instead be considered valid.

The 2015 Will included a declaration in which Mrs Rea stated that her sons did not assist with her care or offer any assistance. It also stated that Rita Rea was the testatrix’s sole carer and had been for many years. The declaration asserted that should the sons challenge the Will, Mrs Rea wished her executors to defend the claim as she did not wish her sons to benefit from her estate.

The court considered the legal issues in Gill v Woodall [2011] and determined that Mrs Rea knew and approved of the contents of the 2015 Will. Furthermore, it heard evidence from the testator’s solicitor and GP that she understood the language and implications of the Will.

Given the failure of the brother’s claims, the 2015 Will was allowed to pass into probate.

Take Home: While the case highlights a number of arguments which can be used to dispute a Will, it also demonstrates that any action of this is sort is complex to run and that evidence to support the arguments must be watertight or the action will fail.

Disputed Wills are likely to become more prevalent in the 2020s

The prevalence of dementia in our aging population is sadly increasing year on year. It is therefore predicted that the number of disputed Wills and contested probate claims will increase correspondingly, as more executors and potential beneficiaries seek to prove that the contents of a Will are invalid for want of knowledge and approval.

The two cases above, along with significant judgments in other cases, notably Parsonage v Parsonage & Ors, show the need for accurate and regular updating of Wills. They also demonstrate the complexity of these cases and that it is crucial to obtain advice from specialist solicitors for Wills and/or contentious probate solicitors should the validity of a Will need to be proved.