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Nutt -v- Nutt [2018] EWHC 851 (CH)

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On 19 April 2018 Master Clark handed down Judgment in the case of Nutt –v- Nutt [2018] EWHC 851 (CH).

The case involved the Estate of Lily Rose Nutt (“Lily”) who was born on the 4th November 1924 and who died on 25 February 2013 aged 88.

In 1943 Lily married Christopher Richard Nutt who died in 1982 and together they had three children, Christopher, Vivienne and Colin.

Colin lived with his parents until May 1990.  There was then little contact between him and his mother until 2003. 

In early 2004 Lily was diagnosed with Parkinsons Disease, in 2007 she suffered a heart attack and in 2008 she developed Paget Disease which causes a weakening of the bones.

As a result of the various illnesses with which Lily was diagnosed towards the end of her life, Lily received a lot of support from her family.  Her older children Christopher and Vivienne argued that the children supported her equally during this period but her youngest son Colin maintained that he provided the majority of the assistance.

In 2005, Lily made a Will leaving her entire estate equally amongst her three children.

However, following Lily’s death, Colin produced an envelope which he said that his late mother had given to him shortly before she died with the proviso that it was not to be opened until after her death.

Colin suspected that it contained a new Will but honoured his late mother’s wishes, storing the envelope in his girlfriend’s safe until after Lily passed away.

It transpired that the envelope did contain a Will which his mother had signed in 2010 some five years after the 2005 Will.

The 2010 Will left Lily’s house worth approximately £400,000 to Colin outright as opposed to being left equally between the three siblings as previously described in the 2005 Will.

Christopher and Vivienne were, however, suspicious of the 2010 Will as there was no explanation about who had prepared it, Vivienne’s name had been mis-spelt in the 2010 Will and Lily’s previous wish, expressed in the 2005 Will, that her ashes should be laid to rest beside her deceased husband, was not included in the 2010 Will.

Colin and Vivienne also argued that Colin was domineering towards their late mother and had applied pressure on her to sign a new Will in his favour in 2010.

Colin asserted that his late mother always knew her own mind and had been keen to leave him the house because his two, older siblings already owned their own homes whereas Colin did not.

In making a decision, the Judge, Master Clark had to consider the following:

Did Lily sign the 2010 Will correctly and was the 2010 Will a legally valid document?

Did Lily have the requisite testamentary capacity to sign the 2010 Will?

Did Lily know of and approve the contents of the 2010 Will?

Did Colin unduly influence Lily to sign the 2010 Will?

When challenging the testamentary capacity of a person, it is important to note the following:

  • The burden is on the person seeking to propound the Will to establish capacity;
  • Where a Will is properly executed and appears rational on its face then the Court will presume capacity;
  • The evidential burden then falls upon the objector to raise a real doubt as to capacity;
  • Once a real doubt arises the burden shifts to the propounder to establish capacity.

Finally in respect of the allegation that Colin had unduly influenced his late mother to sign the 2010 Will, Master Clark said

  • In a case of testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
  • Whether undue influence has procured the execution of a Will is therefore a question of fact;
  • 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;
  • 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;
  • Coercion is pressure that overpowers the volition without convincing the testator’s judgement.  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 judgement, discretion or wishes, is enough to amount to coercion in this sense;
  • 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.
  • The question is not whether the Court considers the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his dispositions, the testator has acted as a free agent”.

When considering all the facts of the case and the legal factors and tests as described above, Master Clark found as follows:

  • The 2010 Will was properly signed by Lily;
  • There was no evidence to raise a real doubt as to Lily’s testamentary capacity.  Lily had detailed conversations about the 2010 Will, which demonstrated that she had the necessary understanding to make a Will;
  • In the circumstances Master Clark found it to be inconceivable that Lily would not have read the 2010 Will and satisfied herself as to its contents before inviting witnesses to attest her signature;
  • Christopher and Vivienne’s claim was not supported by any independent witnesses able to give evidence as to Lily’s testamentary wishes at the relevant time.
  • There was insufficient evidence to establish undue influence.  Instead it was found that Colin was “affectionate and attentive towards his mother; and not aggressive or dominating”.
  • The 2010 Will itself provided an explanation as to Lily’s reasoning as it confirmed that Colin did not own his own house, but Christopher and Vivienne did.  A further reason may have been that Colin was physically nearer to Lily and more available to provide help when needed.
  • The 2010 Will was the valid Will and as such Colin inherited his late mother’s house and the terms of the 2005 were no longer applicable.

When deciding whether or not a Will is valid, the Court will apply the available evidence so as to satisfy the legal tests referred to above.  It is worth remembering that it is not the Court’s role in such circumstances to make a decision as to whether or not the terms of a Will are fair or justified.

If you have any concerns about the circumstances surrounding a loved one’s last Will and Testament following their death, and whether or not there are grounds to contest the Will, please contact Nicola Parr on 01636 675591 who is an Associate Solicitor who specialises in all aspects of contentious probate.

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