Capacity and Undue Influence Will Challenge – Case Commentary
A recent case shed light on challenging a will on grounds of testamentary capacity, knowledge and approval and undue influence.
Case background
In Jenkins v Evans [2025] EWHC 2438 (Ch), the Deceased had made a will in 2006 appointing his son and daughter as executors and leaving his estate to them equally.
In 2013, his son and daughter’s relationship had broken down, and by 2016, they were no longer talking to each other. The son therefore asked the deceased to consider appointing a professional executor. It is the son’s evidence that he only did this on one occasion.
The Deceased then made a new will in 2017. The will was made over a three-month period with his long-standing solicitor, and various changes were discussed and recorded in the solicitor’s attendance notes. The deceased appointed his solicitor and another partner as executors and introduced legacies totalling £23,000 while leaving his son and daughter as equal residuary beneficiaries.
In 2018, the daughter found out about the 2017 will and attempted to persuade the Deceased to make a further will in 2018, reverting back to the appointment of her and her brother as joint executors. The solicitor refused to proceed with the instructions because of his concerns about the daughter’s undue influence on the deceased.
After the deceased’s death, the daughter challenged the 2017 will on three grounds: testamentary capacity, knowledge and approval and undue influence. Undue influence was alleged by the daughter that both the solicitor and the brother unduly influenced the Deceased to appoint professional executors.
Case outcome
At trial, the daughter’s challenges to the 2017 will were dismissed, and the will was admitted to probate for the following reasons:
- Testamentary Capacity – the 2017 will was made in the presence of a solicitor who, in evidence, stated that he was in no doubt about the deceased’s capacity to make a will. This was also reflected in the attendance notes. The Judge therefore relied on Huges v Pritchard [2002] EWCA Civ 386, which states that an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions, produced a draft, has met with the deceased and is fully aware of the requirements of the law in relation to testamentary capacity, is likely to be of considerable importance. However, the evidence of the solicitor as to capacity is not definitive, and the Judge must evaluate all evidence in relation to capacity. In the present case, the daughter did not adduce medical evidence as to the Deceased’s mental capacity, and therefore, there was no evidence to doubt the evidence of the solicitor.
- Knowledge and approval – Reeves v Drew [2022] EWHC 159 (Ch) was summarised in that the propounder of a will must prove that the deceased knew and approved its contents at the time of execution. That burden is normally discharged relatively easily by proof of testamentary capacity and of due execution. Given that the Judge had found that the Deceased had testamentary capacity, coupled with the due execution, it was found that the 2017 will did represent his testamentary intentions.
- Alleged Undue Influence – The burden of proving undue influence lies on the person who asserts it, and it must be distinguished from mere persuasion. The Judge found that the suggestion of undue influence on the part of the solicitor was baseless. The solicitor put forward the basis upon which he was prepared to act as an executor, to which the deceased agreed. The Judge also considered that, given that the daughter’s share of the estate was not significantly eroded by the pecuniary legacies contained within it, it was not necessary to explore the difficult relationships between the deceased, the son and the daughter in depth. It was clear that the deceased was aware of the breakdown in the relations between his children and mindful of the need to address it in his will and not require them to make decisions together as executors. There was therefore no evidence of alleged undue influence.
The above decision is a good example of the weight that the court will give to evidence of the will draftsman in relation to capacity and undue influence, where there are contemporaneous attendance notes and oral evidence.
