PT-2023-BRS-000112 - [2025] EWHC 2633 (Ch)

It will be seen that the number of factual matters with which I need to deal is relatively limited, compared with other probate disputes. On the basis of the evidence I find the following facts. The deceased was born on 6 November 1934, and died on 13 April 2017, aged 82 years. She married her husband Frank Rowell in 1957, and they had three children, the claimant and the two defendants. Frank died in 1994. The deceased had worked for many years for Barclays Bank. They provided a free will-writing services for their employees. On 9 May 1984 the deceased, using this service, made a will giving her entire residuary estate (with the exception of a specific gift of jewellery to the claimant) to her husband if he survived her, but otherwise to such of her children as should survive her, and if more than one in equal shares, with a substitutionary gift over to the children of any such child who should predecease her. In fact, of course, Frank did predecease her, and so the gift of residue to her three children would thereafter have taken effect.

Unfortunately, the first defendant and her mother did not have an easy relationship, and there were some arguments between them. In 2009 they became badly estranged. It is not necessary for me to go into the details of or the reasons for this, but the estrangement was sufficiently serious that the deceased subsequently told the claimant on a number of occasions that she intended to change her will so as to exclude the first defendant from benefit. In fact, however, the deceased did nothing about it until 2014.

In January or February 2014, the deceased contacted Future Legal Services Ltd (“FLS”), a will writing company. A meeting was arranged between the deceased and Tom Wansbrough, a wills consultant employed by FLS, but it had to be postponed because of Mr Wansbrough’s illness. The deceased therefore met Mr Wansbrough (alone) for the first time on 12 May 2014. At that meeting he took the deceased’s instructions and completed a will instruction form, which was then signed by the deceased.

After the first meeting, but before the second (referred to below), the deceased told the second defendant of her intention to make a new will using FLS. The second defendant told the claimant of this. Both the claimant and the second defendant had concerns about the use of this company, although those of the claimant were apparently allayed following a telephone conversation with Mr Wansbrough, in which the latter agreed to visit the deceased again with the second defendant present. The second meeting between the deceased and Mr Wansbrough took place on 20 May 2014, when the second defendant was indeed present. The deceased repeated the instructions which she had already given.

Mr Wansbrough thereafter provided those instructions to FLS, who drafted the will and sent it to the deceased. It was executed by her on 12 June 2014. It contains at the end an attestation clause in proper form, and is signed by the deceased and two witnesses. The latter appeared to be a retired couple living not far away from the deceased. On the evidence, I find that the will was duly executed as a matter of fact, and in accordance with the formal requirements of section 9 of the Wills Act 1837.

Neither the claimant nor the second defendant had any concerns at that stage about the deceased’s capacity to make a will. She was living independently, administering her own medication and managing her own finances. The report of Prof Burns, instructed as a single joint expert (who in the usual way never saw the deceased during life), concludes on the material before him that she did indeed have capacity to make a will on the Banks v Goodfellow test. In light of the first defendant’s own position at trial, I do not need to deal with this report in detail, but I may say that I have no hesitation in accepting Prof Burns’ evidence.

He says that, in his opinion and on the balance of probabilities, the deceased would have had the ability (i) to understand the nature of a will and its effects, (ii) to know the extent of her estate, and (ii) to be aware of her family members and to appreciate who would have a claim on her estate. He then concluded:

“12.5

In my opinion, [the deceased] had a disorder of mind, namely dementia due to cerebrovascular disease. However, I think at the time she instructed and signed her will, she was in the very earliest stages of the condition and her symptoms were not severe enough to affect negatively her testamentary capacity.

12.6

There is no evidence that [the deceased] had an insane delusion. There is no evidence that she was confused around the time she instructed and executed her will.”

The evidence in this case makes clear that, in order to demonstrate a lack of testamentary capacity, it is simply not enough to show that the deceased person was indeed suffering from some form of mental disorder, such as cerebrovascular disease. It is necessary to show, further, that the effects of that disorder were sufficiently serious to negate testamentary capacity. A disorder may be slight at first, and become more serious only later. Here the expert assessment is that, regardless of what happened later, at the time of making the 2014 will, the deceased’s disorder of mind was not serious enough to rob her of testamentary capacity.

On this basis I find that the deceased did indeed have capacity to make a will at the time of the execution of the 2014 will. In these circumstances, it is not necessary for me to deal with the decline in her health in the following three years, ending with her death in a nursing home on 13 April 2017.

The terms of the 2014 will provide for the directors, members and beneficial owners of any share of Abbotts Wills and Probate Services Ltd of Hertford to be “the Executors and Trustees of this my Will” (although only one of them was to prove the will). However, there is also provision appointing the claimant and Matthew to be “the trustees of this Will and of any trust that might arise under it”. Once again, the will contains a specific gift of jewellery to the claimant.

The deceased gave the residue of her estate in four parts. She gave a one third share to the claimant, and a one third share to the second defendant. In each case there was a substitutionary gift over in case of the predecease of the claimant or the second defendant. Thirdly, she gave a one sixth share of the residue to Matthew with a similar substitutionary gift over in case of his predeceasing her. Finally, she gave a one sixth share of the residue to her trustees to hold on certain trusts for the benefit of Richard during his life, including powers to pay or apply the income or capital to him or for his benefit, and otherwise to accumulate the income to capital, and after Richard’s death to apply the income and capital of the one sixth share for the benefit of such of the other beneficiaries as the trustees think fit, and to distribute the whole of the share within five years of Richard’s death.

After the deceased’s death, Abbotts Wills and Probate Services Ltd appointed solicitors to apply for probate. That application to the probate registry was filed on 12 July 2017. But the first defendant had already lodged a caveat on 4 May 2017, about three weeks after the death. So its application was halted while the caveat was in place. As it happened, Abbotts Wills and Probate Services Ltd was struck off the companies register on 8 November 2020 and dissolved on 17 November 2020. The claimant and Matthew decided that they should themselves apply for a grant of administration, and instructed their own solicitors. A warning to the caveat was then entered by the claimant and Matthew on 11 June 2021 and an appearance to the warning by the first defendant on 24 June 2021. There then followed many months of inconsequential correspondence between the siblings. During this time, in February 2023, Matthew decided that he was no longer willing to apply for a grant because his relationship with the first defendant (his mother) was at risk. Ultimately, on 7 September 2023, the claimant issued the claim.

There is a question as to what happened to the original 2014 will. The evidence satisfies me that, at the time of the death of the deceased, it was not in her possession at all, but instead in that of FLS, which sent it to Abbotts Wills and Probate Services Ltd on 22 May 2017. That company provided it to the solicitors instructed to apply for probate. The solicitors completed the IHT returns on 12 July 2017. The oath was sworn on the same day, and refers to “the original last Will” being produced. The solicitors sent “the original will dated 12 June 2014” to the probate registry with their application for probate, as evidenced by their letter dated 12 July 2017. The probate registry confirmed subsequently in an online conversation with the claimant on 18 January 2023 that it still held the will.

However, on 12 April 2024, the probate registry emailed to say that it did not hold the original will, but merely a copy. No explanation was given by the registry as to what had happened to the original. This is disappointing. A government body charged with documenting the transmission of estates on death should be able to do better than this. Nevertheless, for present purposes I find that the probate registry had the original will in its possession in 2023, and has since lost it.

Since the nominated executor, Abbotts Wills and Probate Services Ltd, is no longer in existence, the claimant puts herself forward for a grant in solemn form of letters of administration with the copy will annexed, limited until such time as the original will is found. Although she lives in Australia, the claimant confirmed through counsel that, if her claim succeeded, she intended to instruct solicitors in this country to extract the grant and to administer the estate on her behalf.