Hubbard and another v Scott and others

[2011] EWHC 2750 (Ch) (reported at [2012] Wills and Trusts Law Reports 29).

30th June 2011

High Court


The claimants were beneficiaries under a Will of the deceased, Albert Wiseman, made in 1997. They and their mother were longstanding friends of the deceased, although they had seen less of him in later years In May 2006, when the deceased was 84, a neighbour introduced to the third defendant. She initially worked for him as a cleaner, but then became friendly with him, to such a degree that there was talk of marriage between them. The second defendant, a friend of the third defendant who was an executor, arranged at his request (as she said) for him to attend solicitors to make a new Will. He did so on 5 October 2009, making the third defendant his sole beneficiary. At the time, he was physically frail, but not mentally, and was on the solicitors’ evidence in a jovial mood. He died shortly afterwards, on 16 October. The claimants’ suspicions were aroused, and they claimed that the third defendant had exercised undue influence over the deceased, so that his new Will was invalid (the first defendant was the solicitor executor). Held: There was no presumption of undue influence in the case of testamentary gifts. There had to be positive proof of coercion overpowering the volition of the testator. On the facts, there was no such proof. Indeed, on the facts the making of the new Will had a perfectly rational explanation. The deceased was elderly and lonely. He had no-one else to whom he wished to leave his estate. The third defendant had come into his life, and he had become fond of her. The new Will was entitled to probate.

This case emphasises the basic principle that there are no presumptions of undue influence in probate. In probate, the rules about knowledge and approval cover some of the same ground, but for some reason the claimants (who were advised earlier by counsel other than counsel who represented them at the trial) did not plead them. Even if they had done so, on the facts as found a plea of want of knowledge and approval would have failed likewise. (For want of knowledge and approval, and undue influence in probate, see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, at 13-22 to 13-56 of the 19th edition, and Theobald on Wills, at 3-015 to 3-033 of the 17th edition).

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