Tucker v Felton-Page & Ors [2025]

This claim explores the ever-growing concerns over testamentary capacity of a testator who drastically changes their will prior to their death. However, it also looks into the cost exceptions in probate cases.

In the case of Tucker v Felton-Page, the parties were in a dispute over the validity of a Will produced in 2013 by the deceased, Ms Pamela Moore. Ms Moore passed away in 2014. She was the aunt of both the claimant and first defendant and suffered from dementia and severe visual impairment prior to her death. Ms Moore did have earlier Wills executed in 2006 and 1997 in which the first defendant had interest. The 2013 Will drastically changed the distribution of her estate, particularly in favour of the claimant, Ms Moore’s other niece. The claimant sought an order to propound the 2013 Will as the valid last will, however the first defendant contested this. The first defendant sought to set aside the 2013 Will alleging a lack of testamentary capacity, undue influence and fraudulent calumny, while also propounding the 2006 Will. The second and third defendants remained neutral throughout as they were appointed as Executors under the 2013 Will.

As the parties progressed the litigation, both instructed experts to provide evidence following an analysis of the medical records of Ms Moore. Ultimately, the experts agreed that the deceased lacked the requisite testamentary capacity at the time she signed the 2013 Will.

Moreover, the High Court also noted that the Golden Rule was not adhered to during the execution of the 2013 Will. Considering Ms Moore’s age and the drastic changes she wished to make to her Will, it would have been prudent for the Will writers to obtain medical evidence to prove the Ms Moore had the necessary capacity to change her Will.

After the experts ultimately concluded that the deceased did not have capacity at the time of making the Will, the claimant later served a Notice of Discontinuance, which was accepted by the first defendant, however the Court required a formal application under CPR57.11(2) for permission to discontinue. The claimant maintained she had been reasonable in bringing the claim despite discontinuing it due to insufficient prospects of success. Although the claimant no longer sought to propound the 2013 Will, the Court was still required to determine its validity and, if invalid, to pronounce the 2006 Will in solemn form, which would be binding on all interested parties.

What did the court find and what was their analysis? The court carefully applied the established test in Banks v Goodfellows to determine capacity. The court ultimately agreed with the experts and found that the deceased did not have testamentary capacity.  The absence of a contemporaneous medical certificate if following the Golden Rule and a failure to consider prior wills further undermined capacity.

Moving onto the knowledge and approval, the Court was able to distinguish this from capacity and found no want of knowledge and approval, dismissing this ground of challenge.

Regarding the claim for undue influence and fraudulent calumny, the court did acknowledge that the deceased was vulnerable but refrained from making findings due to the trial being conducted on the papers rather than with the benefit of witness evidence and the serious nature of the allegations requiring oral evidence and cross-examination.

Notwithstanding the above, this case is also delved into the cost exceptions of probate cases. The usual practice is that the ‘loser’ pays the ‘winner’s’ costs. However, probate has recognised exceptions, namely where: (1) the testator’s actions caused the dispute, or (2) a party had reasonable grounds to investigate the validity of the Will.

As stated above, both parties instructed their own experts, who initially, supported their positions. It was therefore considered reasonable for the claimant to investigate the dispute up until the experts conferred and ultimately agreed that Ms Moore did not have testamentary capacity at the time of executing the Will. Consequently, the Court ruled that the claimant would face no order for costs for the investigative phase up until February 2023. However, after this period, when the Claimant’s own expert changed their preliminary view and the claimant continued to pursue the claim, the hostile litigation rules applied.

Consequently, the Court pronounced against the 2013 Will due to lack of testamentary capacity and pronounced the 2006 Will in solemn form. The Court therefore held that the Claimant was entitled to no order for costs for the investigation up to the period of 24 February 2203, after which she was liable to pay the costs of the defendants on the standard basis. The second defendant was ordered to pay 25% of the costs occasioned by a valuation hearing in January 2024 due to acting unhelpfully. The second defendant was denied an indemnity for his costs from the estate beyond his defence filing date, reflecting his neutral role.

Whilst no new legal precedent was established in this case, it was a decision that applied established principles to the facts of the case and clarified the application of costs exceptions in these contentious probate proceedings involving expert evidence and discontinuance.