Burgess v Whittle & Anor (Substantive) [2025] EWHC 2633 (Ch)

Oliver appeared for the claimant in this contested probate matter.  The claimant client obtained probate of her mother’s last will in the face of challenges based on testamentary capacity, knowledge and approval, undue influence, and because the original will was not available.

The deceased died in 2017, aged 82.  She had survived her husband, and left three adult children – two daughters (the claimant and the first defendant) and a son (the second defendant).  In 1984 she had made a will leaving her estate between her three children equally.  In 2009, the deceased and the first defendant fell out and became estranged.  The deceased told her other children that she was going to remove the first defendant from her will.  Eventually in 2014 the deceased contacted a will writing service, and made a new will.  She changed the first defendant’s one third share so that it passed to the first defendant’s children instead.  The deceased’s health declined from 2015 onwards and for the last 18 months of her life she was in a dementia nursing home.

Following the deceased’s death the first defendant immediately placed a caveat on the estate.  Eventually, after many years, she alleged that the 2014 will was invalid because of lack of testamentary capacity, want of knowledge and approval, undue influence, and because there was only a copy of the will, not the original copy which had been lost at the probate registry.

The claimant issued proceedings in 2023 and the trial took place in 2025 before HHJ Paul Matthews.  Following issue, the first defendant sought an expert report on the deceased’s capacity which ultimately concluded that she had capacity.  The day before trial the first defendant conceded testamentary capacity, did not pursue her undue influence claim, and was otherwise neutral.

The judge concluded that the 2014 will was valid.  Not only was there a joint expert report establishing capacity, but there was nothing else in the medical records which pointed to a lack of capacity when the will was made.  Since the deceased had capacity and the will contained an attestation clause, knowledge and approval was presumed.

The judge was particularly clear that the first defendant had run an undue influence claim.  The alleged influence was by the wills consultant who had taken instructions for the will.  The judge concluded that such an allegation should never have been made and dismissed it.  Finally, the judge admitted the copy of the signed will to probate pending obtaining the original which had “disappointingly” been lost by the probate registry.