Mrs Maudlin Bascoe died on 29th August 2015. She was a mother of four: one child predeceased her in 2004, one died after her in 2017 (Beverley Smith) and two children remained – Mr Bradford Barnaby and Miss Patricia Johnson. In her Will which she made in 2005, Mrs Bascoe left Miss Johnson just £100. Beverley Smith was to receive £500 and the rest was left to Mr Barnaby. Mrs Bascoe’s assets were apparently worth approx £192k in 2003. The Telegraph states that the legacy to Mr Barnaby was worth ‘over £100k’.
Previously Mrs Bascoe had made a Will in 1992 which left Miss Johnson £10,000.
Miss Johnson disputed the validity of the 2005 Will on the basis of:
- Lack of Testamentary capacity;
- Undue influence by Mr Barnaby;
- Forgery of Mrs Bascoe’s signature;
- Want of knowledge and approval by Mrs Bascoe.
The 2005 Will
Mrs Bascoe made the 2005 Will with Mr Alphonso Constantine Wynter of the firm Hallmark Carter Atkinson Wynter (subsequently Hallmark Atkinson Wynter). She had been a client of the firm for many years, but initially contacted them to update her Will in 2002. It took some time for her to finalise her instructions and the size of the gifts to her daughters Beverley and Patricia varied during this period of uncertainty, although they were never substantial in contrast with the size of the estate.
Mrs Bascoe included an explanatory note in her Will in these terms:
“I have deemed it prudent to place within my will a note explaining the disparity in the amounts that I have left to my children and in particular the pecuniary legacies to my daughters Beverley and Patricia. Both my daughters, Beverley and Patricia, have shown very little care and concern for me in my later years and in particular they have both been rude, unpleasant and in some instances physically violent and abusive towards me and have verbally expressed their lack of care and concern with such statements as ‘you should be placed in a home and dead in there’. I therefore have no desire that they should benefit from my estate over and beyond the legacies I have made in this will.”
Mr Wynter who acted for Mrs Bascoe for at least 17 years including drawing up the 2005 Will, recalled that his client displayed some antipathy towards both of her daughters when he first met her. She also called Miss Johnson “facety” (which he understood to be patois for disrespectful) and “out of order”.
He recalled taking instructions for the 2005 Will both at his office and then at Ms Bascoe’s home. He noted that whilst her son Mr Barnaby accompanied his mother to Mr Wynter’s offices, Mr Wynter spoke to Mrs Bascoe at length and alone to ascertain her wishes. Further, when he saw his client at her home, he noted that Mr Barnaby was not there.
Mr Wynter suggested to Mrs Bascoe that the reasons for her testamentary intentions should be explained and so the “Explanatory Note” (above) was included in the Will. He had no concern that Mrs Bascoe was unduly influenced by Mr Barnaby or anyone else. He did not doubt that she had testamentary capacity to make and execute the 2005 Will, and he recalled reading it out to Mrs Bascoe before she executed it in front of the witnesses. The Will was witnessed by a solicitor at the same firm, and a receptionist. The solicitor provided evidence as to the validity of her signature as a witness to the Will, and the receptionist provided a statement.
Deputy Master Linwood commented that Mr Wynter gave his evidence in a clear, calm and assured manner, noting that he was thoughtful and answered with precision. He found Mr Wynter to be “a truthful witness.”
Of Miss Johnson, DM Linwood commented that she embellished her evidence and he found her to be “evasive and a wholly unreliable historian”. He notes: “she exaggerated and invented evidence and at times contradicted herself.”
Lack of Testamentary Capacity
Regarding testamentary capacity, the burden of proof when a Will is challenged is as set out In re Key  1 WLR at 2020. Where the Will is duly executed and appears rational on its face, the Court will presume the Testator had capacity to make it. The burden of proof then lies with the person who claims they did not. If they can raise a real doubt, the burden then shifts back to the person trying to present the Will as genuine.
Testamentary capacity for the purpose of making a Will is as set out in Banks v Goodfellow (1870) LR5 QB549 at p.565. The Testator must:
- understand the nature of the act [of making a Will] and its effects;
- understand the extent of the property of which he is disposing;
- be able to comprehend and appreciate he claims to which he ought to give effect;
- and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
In Sherrington v Sherrington and Others  EWCA Civ 326 Lord Justice Peter Gibson at para. 40 quoted Lord Penzance in Wright v Rodgers (1869) LR 1 PD 678 at p. 682:
“The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail on the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof.”
At  Lord Justice Peter Gibson says:
“Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless it has “the strongest evidence” in Lord Penzance’s words….In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witnesses indicated, viz. that the testator has signed in their presence and they have signed in his presence.”
DM Linwood noted that the 2005 Will was duly executed with an attestation clause, and the evidence of the witnesses was clear. He therefore found the 2005 Will to be rational on its face and noted that there was nothing to suggest otherwise, so a presumption of capacity existed.
Mrs Bascoe’s medical records indicated she was suffering from confusion from 2008. A diagnosis of vascular dementia was made by February 2009. Miss Johnson claimed that in fact she had dementia from 2001 or 2002, but there was no evidence to support this. Although the medical records did not support Miss Johnson’s claim that the symptoms of dementia started around 2001/2002, per Williams, Mortimer & Sunnucks – Executors, Administrators and Probate, 21st Edition at para 10.26, even “Slight evidence of mental incapacity will not disturb this presumption”.
The burden of proving that Mrs Bascoe lacked testamentary capacity therefore shifted to Miss Johnson who had claimed “…[she] was not in a fit mental state to sign the will of her free will…”. Medical evidence had undermined the proposition that her mother suffered from dementia since 2001. Further, Miss Johnson accepted that her mother had made a Lasting Power of Attorney in June 2011. Whilst there is a different test for capacity for making a Lasting Power of Attorney, the point remains that Miss Johnson must have considered her mother had sufficient capacity in July 2011 to make the LPA.
Miss Johnson claimed the medical records were not her mother’s but DM Linwood found this claim to be “fanciful and wholly unwarranted”. Further, he did not accept that the minor typographical errors, corrections or variations in the spelling of Mrs Bascoe’s first name (which were in fact consistently varied through her lifetime) were evidence of anything untoward. He concluded that Miss Johnson had “adduced no credible evidence to cast doubt upon the testamentary capacity of her mother in 2005”. In any case, if doubt had been cast, the medical records and evidence of Mr Wynter were sufficient evidence that Mrs Bascoe had capacity to make the 2005 Will.
Undue Influence by Mr Barnaby
Per Lewison J. in Re Edwards (deceased) there is no presumption of undue influence with gifts made in a Will. 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.
Undue influence in this context means influence exercised either by coercion, in the sense that the testator’s Will must be overborne, or by fraud.
Notably, the question is not whether the court considers that the Testator’s testamentary disposition is fair. The question, in the end, is whether in making his dispositions, the Testator has acted as a free agent.
Miss Johnson claimed that Mr Barnaby forced her other to sign the Will at the office of Mr Wynter. She then referred to an incident that supposedly occurred 4 years later in which she alleges Mr Barnaby harmed his mother and she called an ambulance at his request. No evidence was provided and DM Linwood considered her account “highly improbable” and in any case, not evidence of undue influence in respect of the Will made 4 years earlier.
Miss Johnson said in both the first defence and her second statement that Mr Barnaby “forced their mother to sign the 2005 Will”. Given that the Will was drafted by a solicitor with witnesses who had provided credible evidence, DM Linwood dismissed the accusation as having no basis, noting it “should never have been made”.
Want of knowledge and approval
Miss Johnson claimed the Will was invalid because Mrs Bascoe was not aware of the contents of the Will.
DM Linwood quoted Gill v Woodall and others  EWCA Civ 1430 which says:
“…in relation to the question of knowledge and approval, the fact that a will had been properly executed after being prepared by a solicitor and read over to the testatrix raised a very strong presumption that it represented the testatrix’s intentions at the moment she had executed the will; that the presumption was reinforced by policy considerations in support of the fundamental principle of testamentary freedom and the evidential difficulties presented by the fact that the testatrix could not be directly examined…”
DM Linwood found that a strong presumption arose due to Mr Wynter’s very credible evidence regarding reading the Will to Mrs Bascoe, who gave him instructions directly. He noted that the evidence from both her solicitor Mr Wynter and the two witnesses (one of which was a solicitor) was “clear and compelling”. He therefore concluded that there was no evidence from Miss Johnson that would reverse the burden of proving lack of knowledge – but, even if there were evidence to cast doubt, Mr Barnaby and Mr Wynter had already proved Mrs Bascoe’s knowledge and approval of the 2005 Will through the evidence of those three witnesses. He therefore dismissed the challenge.
A “2013 Will”
Miss Johnson additionally claimed she had seen a 2013 Will and she produced an unsigned copy. This was presented at a later date and not mentioned in her first four witness statements.
DM Linwood accepted evidence from Ms Manal Fouad of Ziadies Solicitors that whilst Mrs Bascoe had been in contact regarding a new Will, no Will was actually drawn up, and in fact, the Solicitors’ file confirms she did not have testamentary capacity anyway.
- DM Linwood concluded that the 2005 Will was rational and was read over by Mr Wynter to Mrs Bascoe who had testamentary capacity at the time.
- It was properly executed and the evidence of Mr Wynter, Miss Middleton-Albooye (the solicitor witness) and Ms Watson (the receptionist witness) could not be impugned.
- Accordingly the strong presumptions in favour of validity were present.
- Miss Johnson had come “nowhere near establishing the basis for any proper challenge” – presenting no documentary evidence from herself or independent third parties.
- Miss Johnson’s evidence had been “contradictory, self-serving and deliberately misleading”.
- DM Linwood therefore upheld Mrs Bascoe’s decision to leave her daughter just £100.
Whilst adult children often feel entitled to a share of their parents’ estate, the principle of testamentary freedom exists. A testator can leave their estate to anyone they choose, disinheriting children if they so wish.
Where a child has been disinherited or receives substantially less than expected, there are a number of grounds on which they can bring a claim. Miss Johnson attempted to argue technical grounds in order to have the 2005 Will invalidated, such as that her mother lacked testamentary capacity, did not understand the contents of the Will or was subject to undue influence. Unfortunately she failed to produce any credible evidence to support her claims.
Adult children alternatively may have a claim under the Inheritance Act but they must show that there is some good reason why they should receive a share of the estate beyond the mere fact of a blood relationship (In re Coventry (1980) Ch 461). For example, in Marks v Shafier, the claimant made a claim against the estate of a parent who abused them and this was held to be sufficient grounds. A track record of unsuccessful reconciliation attempts on the part of an estranged claimant could also be the basis for a claim: in Ilott v The Blue Cross , the mother’s refusal to entertain her daughter’s attempts to reconcile was a factor. Similarly in Nahajec v Fowler, the Court considered the estrangement between father and daughter which was a result of the father’s behaviour and her attempts to reconcile were rejected. By contrast, in Wellesley v Wellesley, Re Garland (Deceased) and Wright v Waters, the courts found that long estrangements where the claimants were to blame outweighed all of the other factors to be considered at Section 3 of the Inheritance Act.
One very clear message for clients to takeaway from this case is the importance of making a Will face-to-face with a legal professional. The evidence of the Will-writing solicitor Mr Wynter was crucial to this claim. Had Mrs Bascoe used a cheap DIY pack or online service, Miss Johnson’s claim may very well have succeeded.
Further, using a professional with knowledge of contested cases is essential. As experienced Will drafters and also advisors on contested Will cases, we can advise on a range of strategies when drafting your Will to reduce the likelihood of a claim being made.
- Barnaby & Wynter v Johnson (aka Smith)  EWHC 3344 (Ch) (In the Estate of Mrs Maudlin Bascoe (deceased)) – source: Bailii
- Marks v Shafier  All ER (D) 193 (Jul)
- Ilott (Respondent) v The Blue Cross and others (Appellants)  UKSC 17
- Nahajec v Fowler  EW Misc 11(CC)(18 July 2017)
- Wellesley v Wellesley & Ors  EWHC 11 (Ch) 
- Re Garland (Deceased)  EWHC 2 (Ch),  2 FLR 528
- Wright v Waters  EWHC 3614 (Ch)
- Inheritance (Provision for Family and Dependants) Act 1975