Wills & Succession

# Wills & Succession — LLB Topic Notes

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## 1. TESTAMENTARY CAPACITY

The test for testamentary capacity derives from **Banks v Goodfellow (1870) LR 5 QB 549**. Cockburn CJ held that a testator must: (1) understand the nature of making a will and its effects; (2) understand the extent of the property being disposed of; (3) comprehend and appreciate the claims of those who ought to be considered; and (4) suffer from no disorder of the mind that poisons their affections, perverts their sense of right, or prevents exercise of their natural faculties — no insane delusion shall influence the disposition.

The Banks v Goodfellow test remains the governing standard and has **not** been displaced by the Mental Capacity Act 2005: confirmed in **Fiona Burgess v Julie Elizabeth Whittle & Anor [2025] EWHC 2633 (Ch)**, where the court applied the four-limb Banks v Goodfellow test and expressly noted that the MCA 2005 does not affect it.

The same point was confirmed in **Clitheroe v Bond [2022] EWHC 2203 (Ch)** (appeal following [2021] EWHC 1102 (Ch)), which arose from a dispute over the estate of Jean Clitheroe (d. 2017). The court conducted a detailed analysis of capacity where the testator's condition was in issue.

In **GARETH HUGHES v CARYS PRITCHARD [2022] EWCA Civ 386**, the Court of Appeal considered the proper weight to give to a drafting solicitor's evidence and a medical practitioner's capacity assessment. The will in question (2016) was held invalid for lack of testamentary capacity, and an earlier 2005 will was admitted to probate. The court emphasised that capacity is judged at the moment of execution and that the solicitor's evidence, while relevant, is not conclusive.

In **Jennifer Baker & Anor v Diane Hewston [2023] EWHC 1145 (Ch)**, the court considered the relationship between the Banks v Goodfellow common law test and the Mental Capacity Act 2005 in a case involving a 91-year-old testator. The court found the testator had capacity despite a dementia diagnosis, distinguishing between legal testamentary capacity and clinical incapacity.

### Insane Delusion
Capacity may be vitiated if an insane delusion — a belief that no rational person would hold and that cannot be corrected by evidence — influences the disposition. See the Banks v Goodfellow test, limb 4, applied in **Ritchie & Ors v Joshlin & Ors [2009] EWHC Ch 709**: the court examined whether the testatrix (d. 2006, estate >£2.5m) suffered irrational beliefs that affected her testamentary dispositions.

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## 2. KNOWLEDGE AND APPROVAL

A testator must know and approve the contents of their will at the time of execution. This is a separate requirement from capacity. The court will raise a suspicion where there are circumstances suggesting the testator may not have understood what they signed — the burden then shifts to the propounder to remove that suspicion.

**Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch)**: the court pronounced against a 2014 will on the ground that the testator (d. 2017, aged 91) lacked knowledge and approval of its contents, preferring the 1990 will. The case illustrates that knowledge and approval is a live issue distinct from capacity.

**Dunstan v Ball [2024] EWHC Ch 2105** (also cited as **Corinne Dunstan v Andrea Ball [2024] EWHC 2105 (Ch)**): the court considered all three principal grounds for setting aside a will — want of knowledge and approval, undue influence, and fraudulent calumny — arising from a dispute between two daughters over their mother's 2016 will. The ratio confirms the burden and threshold applicable to each ground.

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## 3. UNDUE INFLUENCE AND FRAUDULENT CALUMNY

Undue influence requires coercion that overbears the testator's free will. It must be affirmatively proved; suspicious circumstances alone do not suffice.

Fraudulent calumny is a distinct ground: it involves making false representations to the testator about a potential beneficiary, causing the testator to exclude or reduce that person's gift.

**Sharon Jane Sharpe v Wayne Terrance Dyson & Anor [2022] EWHC 2462 (Ch)**: the defendants alleged the 2019 will was procured by Mrs Sharpe's fraudulent calumny. The court examined whether false statements had been made to the testator (Mr Dale, d. 2020) causing him to disinherit his former partner's sons in favour of Mrs Sharpe.

**Henrietta Ingram & Anor v Simon Timothy Abraham & Anor [2023] EWHC 1982 (Ch)**: the testatrix (Joanne Abraham, d. 2021) had executed a 2019 will leaving her residuary estate entirely to her brother (the first defendant), who had drafted it, changing from an earlier 2008 will that split the estate equally between her two children (the claimants). The court found, on the facts, that the 2019 will was validly executed with capacity; the undue influence claim failed.

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## 4. WILL FORMALITIES — SECTION 9, WILLS ACT 1837

A will must be: (a) in writing; (b) signed by the testator or by another person in the testator's presence and by their direction; (c) the testator intends by their signature to give effect to the will; (d) the signature is made or acknowledged in the presence of two or more witnesses present at the same time; (e) each witness either attests and signs, or acknowledges their signature, in the testator's presence.

**The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch)**: the central issue was whether two individuals validly attested the will of Professor Robert Whalley (d. 2018) on 3 May 2018 in accordance with section 9 of the Wills Act. The court found the 2018 will was **not** validly attested and revoked the grant of probate. The case is a modern application of the s.9 presence and attestation requirements.

**Euro Securities & Finance Ltd v Stephen Barrett & Ors [2023] EWHC 51 (Ch)**: while principally a deed-attestation case under s.1 Law of Property (Miscellaneous Provisions) Act 1989, the court's analysis of what constitutes valid attestation by a witness in the presence of the party is directly analogous to s.9 Wills Act requirements.

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## 5. RECTIFICATION OF WILLS

Under s.20 Administration of Justice Act 1982, a will may be rectified where it fails to carry out the testator's intentions because of a clerical error or failure to understand the testator's instructions.

**Steven Leslie Pead v Prostate Cancer UK & Ors [2023] EWHC 642 (Ch)**: the claimant sought rectification of the 2016 will of James Murray McKay (d. 2021) under s.20 AJA 1982 on the ground of clerical error, and also asked the court to construe clause 11 concerning distribution of the residuary estate. The court granted the rectification application.

**Clarke v Brothwood & Ors [2006] EWHC Ch 2939**: a straightforward rectification claim under s.20 AJA 1982 where the executor sought to correct a clear drafting error in a will. All parties recognised the error; the court granted rectification, confirming that s.20 applies to clerical errors even where the draftsman is the applicant's firm.

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## 6. CONSTRUCTION OF WILLS — INTESTACY FALLOUT

Where a gift partially or wholly fails (e.g. for want of knowledge and approval), the relevant portion falls into residue or intestacy.

**Theodora Richefond & Ors v Hope Dillon & Ors [2023] EWHC 2796 (Ch)**: the court held that the will of Kenneth Grizzle was valid in part but that the gift of residue failed because Kenneth did not know and approve it. His residuary estate therefore devolved under the rules of intestacy, passing in shares to his five children.

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## 7. FAMILY PROVISION — INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

### Eligible Applicants (s.1)
(a) spouse or civil partner; (b) former spouse/CP not remarried; (c) cohabitant for 2+ years immediately before death; (d) child of deceased; (e) person treated as a child of the family; (f) dependant.

### Standard of Provision
Spouse/CP: "such financial provision as it would be reasonable in all the circumstances for [them] to receive, whether or not that provision is required for their maintenance." All others: the maintenance standard.

**Thompson v Ragget & Ors (Rev 1) [2018] EWHC 688 (Ch)**: Joan Thompson, a cohabitant of 33 years, claimed under the 1975 Act after her partner Wynford Hodge (d. 2017) left his entire estate to tenants of one of his properties. The court applied the s.3 factors. A cohabitant applies under s.1(1)(ba) and is assessed against the maintenance standard.

**Tish & Ors v Olley & Ors [2018] EWHC 1069 (Ch)**: former wife and children of the deceased applied under the 1975 Act. The case required construction of a clause in the 2014 will before the court could determine the extent of any shortfall. Illustrates the interaction between will construction and family provision.

**Hulya Kars v Lewis John Brown & Ors [2026] EWHC 31 (Fam)**: former spouse of the deceased (d. intestate, December 2021) claimed reasonable financial provision. The court applied the maintenance standard applicable to former spouses not falling under the higher "surviving spouse" standard. The case demonstrates the layering of intestacy rules with the 1975 Act.

**The Estate of Neil Douglas Archibald (deceased) & Anor v Alistair James Stuart & Anor [2023] EWHC 2515 (Ch)**: raised the question of whether a s.1(1)(e) dependant's claim could be pursued by the claimant's estate after he died mid-proceedings, and whether permission should be granted out of time under s.4 of the 1975 Act. The court considered standing, survivorship of claims, and the discretion to extend time.

**Begum v Ahmed [2019] EWCA Civ 1794**: Court of Appeal considered the s.4 time limit — claims must be brought within 6 months of the grant of probate. The District Judge and Circuit Judge refused an extension; the Court of Appeal reviewed the correct approach to the discretion to extend time, confirming that good reason must be shown and listing the relevant factors.

**AB v B & Anor [2025] EWHC 1891 (Fam)**: widow applied for capital provision under the 1975 Act on the "divorce analogy". The estate was held on discretionary trusts with income to the claimant. The case illustrates that a surviving spouse may seek outright capital where income provision is insufficient, and that the court applies the divorce analogy to assess the appropriate quantum.

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## 8. SECRET TRUSTS

### Fully Secret Trusts
A fully secret trust arises where the will appears to make an outright gift but the legatee has agreed, before the testator's death, to hold on trust for identified beneficiaries. Three requirements: (1) testator's intention to impose the trust; (2) communication to the trustee during the testator's lifetime; (3) acceptance (express or implied) by the trustee.

**Ottaway v Norman [1972] Ch 698**: Brightman J held that a valid fully secret trust existed over a bungalow left by will to Eva Tanner: Harry Ottaway had communicated to her that she should leave it to his son and daughter-in-law on her death, and she had agreed. The trust was enforced in favour of the son. However, no trust arose over property acquired after the original communication — insufficiency of evidence as to later acquisitions.

### Secret Trusts and Joint Trustees
**Re Gardner (No 2) [1923] 2 Ch 230**: Romer J held that where secret trust instructions were communicated to two joint trustees but only one accepted, the trust was enforceable against the accepting trustee only. The non-accepting trustee held on resulting trust for the estate. Establishes that the secret trust obligation is personal to each accepting trustee.

### Half-Secret Trusts
A half-secret trust appears on the face of the will as a trust (the trustee is named as such) but the terms are not stated. The communication of terms must precede or be contemporaneous with the execution of the will — communication after execution does not bind: Re Keen (1937) (not in corpus, doctrine only).

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## 9. DONATIO MORTIS CAUSA

Three conditions for a valid donatio mortis causa (DMC): (1) the gift must be made in contemplation (though not necessarily expectation) of imminent death; (2) the gift must be conditional on death occurring — it is revocable while the donor lives; (3) there must be delivery of the subject matter or dominion over it.

**Sen v Headley [1991] EWCA Civ 13**: the Court of Appeal upheld a DMC of a house, holding that delivery of a box containing the title deeds constituted sufficient delivery of dominion. The deceased had told the donee "the house is yours" while terminally ill. The court confirmed that DMC can apply to real property and that delivery of documents granting control over property (keys, title deeds) satisfies the dominion requirement.

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## 10. ESTATE ADMINISTRATION

### Executor's Duties and Remuneration
**Estate of Moralee [2012] UR 2012_038**: an executor applied for directions on whether to pay legal fees and on the right to remuneration from an insolvent estate. The case confirms that executors have a prior claim over costs incurred in administration (the executor's right of indemnity) but that remuneration under a charging clause is subject to the solvency of the estate.

### Approval of Estate Accounts
**Adrian John Gill v Malcolm Kirk Gill [2023] EWHC 641 (Ch)**: a claim by the executor under CPR r.64.2 for approval of final estate accounts after a protracted family dispute. The court's jurisdiction to determine questions arising in the administration of a deceased's estate confirms the role of Chancery in supervising PRs.

### International/Domicile Issues
**Brigita Morina & Ors v Elena Nikolayevna Scherbakova & Ors [2023] EWHC 3253 (Ch)**: a probate claim concerning the estate of a Russian businessman (d. Belgium 2017) with worldwide assets. The claimants sought a grant of probate in solemn form of a 2015 will drawn up in London, and declarations as to domicile. The case illustrates how the English court determines domicile for succession purposes and applies English succession law to worldwide moveables where England is the domicile.

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## KEY STATUTES (cross-reference)

| Statute | Key sections |
|---|---|
| Wills Act 1837 (as amended) | s.9 (formalities), s.15 (witnesses cannot benefit), s.18 (revocation on marriage), s.18A (divorce), s.20 (obliteration/alteration), s.33 (lapse — issue of predeceased beneficiary) |
| Administration of Estates Act 1925 | s.46 (intestacy distribution order), s.47 (trusts for issue) |
| Inheritance (Provision for Family and Dependants) Act 1975 | s.1 (applicants), s.2 (orders), s.3 (factors), s.4 (time limit), s.9 (anti-avoidance: contracts to leave) |
| Administration of Justice Act 1982 | s.20 (rectification of wills) |
| Mental Capacity Act 2005 | Does not displace Banks v Goodfellow test |