The High Court recently considered the validity of a 2018 Will made by Pamela Abdelnoor (the Deceased) at the age of 96, following a claim brought by two of her children.
The 2018 Will was primarily contested by one of the Deceased’s grandchildren (Elten), a beneficiary under the 2018 Will and a previous Will made in 2012 (the 2012 Will). Elten argued that the 2018 Will should be declared invalid due to the Deceased lacking knowledge and approval as to its terms, as well as undue influence being applied.
The Court rejected the Defendant’s allegations based on the evidence and upheld the 2018 Will.
Abdelnoor v Barker (2022) EWHC 1468 (ch)
Case background
The Deceased had four children (Jason, Gillian, Carolyn, and Adam) with her late husband, Munir, and had eleven grandchildren.
Munir died in 2004. Prior to his death, he agreed with his children that he would leave them £50,000 each but expected them to invest that money to generate income for the Deceased during her lifetime.
Following Munir’s death, a Trust was created to give effect to that agreement. Three children each paid their £50,000 share into the Trust. However, their son Adam reneged on the agreement.
Following the death of the Deceased’s daughter Carolyn in 2010, the Deceased met with a Will drafter (Ms Braddel) to create the 2012 Will which divided her residuary estate equally between the four branches of her family, i.e. her three living children and Carolyn’s two children, Elten and Shelley.
In the years following the making of the 2012 Will, the Deceased became increasingly frail and had a 24-hour live-in carer. She suffered from recurrent urinary tract infections which left her very confused at times.
By 2017, the Deceased was suffering from numerous health conditions. However, at the time of making the 2018 Will, her capacity was not an issue. She sadly passed away in September 2019.
The 2018 Will
In November 2017, Jason contacted Ms Braddel to arrange a home visit to revise the Deceased’s Will with a view to treating all of her grandchildren equally.
During the meeting, the Deceased provided Ms Braddel with a card that set out her wishes in writing. The card was written by Jason as she was unable to do it herself but she confirmed it was reflective of her own wishes. She wished to divide her residuary estate into the four following equal parts:
- Jason (or his wife if he were to die prior to her)
- Gillian (or her three children if she were to die prior to her)
- Adam (or his two children if he were to die prior to her)
- To be divided equally between the surviving grandchildren
The effect of this was that Elten and Shelley would only be sharing from the “grandchildren pot” and would effectively receive less than the other grandchildren after the death of their parents. Ms Braddel advised the Deceased of this at the time and this was clearly recorded within the contemporaneous notes of the meeting.
Following the meeting, Ms Braddel did not immediately draft the Will as she raised concerns about whether the Deceased understood the ramifications of revising the Will as proposed. Ms Braddel wrote to the Deceased to confirm the proposed changes in layman’s terms and met with her on two further occasions at home to ensure she understood and was content with the revisions prior to signing. It was Ms Braddel’s evidence that she asked Jason to leave the room during those meetings.
The law
Knowledge and approval
A testator must know and approve of the contents of their Will.
Where a Will has been properly executed after being prepared by a solicitor and read over to the testator, this raises a very strong presumption that it represents their intentions at that time which can only be rebutted by the clearest evidence.
It was for the Claimants to prove that the Deceased knew and approved the contents of the 2018 Will.
Undue influence
There is no presumption of undue influence and it was for the Defendant to prove that the Deceased was coerced into making the 2018 Will. This is a particularly high threshold to meet and requires evidence of pressure that overpowers the volition of the testator.
Elten alleged that Jason put pressure on the Deceased to change her Will in 2018 so as to reduce significantly what was left to him and Shelley.
Decision
Whilst the High Court Judge criticised Jason’s witness evidence in which he made various allegations against Elten, the Judge found that overall, he was genuinely trying dutifully to carry out the Deceased’s wishes in respect of the 2018 Will.
Elten gave evidence stating that he spent considerably more time with the Deceased in the last years of her life than the other grandchildren and perceived the 2018 Will to be unfair.
Ms Braddel’s clear and consistent evidence (as the only witness without a financial interest in the proceedings) was crucial to the case.
It was found that:
- The Deceased knew and approved the terms of the 2018 Will; and
- The Deceased was not unduly influenced in making the 2018 Will because:
- There was no direct evidence of coercion and no evidence which showed that Jason unduly exercised his power to overbear the Deceased’s Will.
- The Deceased reasonably relied on her eldest son for oversight of her finances and affairs, particularly as her health deteriorated, and this did not amount to undue influence; and
- Ms Braddel took numerous and sufficient steps to satisfy herself that the 2018 Will reflected the Deceased’s wishes and no one else’s.
Comment
This case is a clear example of the high threshold which must be met to prove that an individual was coerced into making his or her Will and the necessity of such a threshold is in place in cases such as this, where the genuine intention to support and assistant a frail and elderly family member must be differentiated from allegations of coercion.
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Shrdha Kapoor is a Trainee Solicitor in our Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please contact Shrdha or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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