The evidential burden

Monday, 01 July 2013
Oliver Auld on the validity of will disputes in England and Wales.

Disputes concerning the validity of a will are rarely straightforward; this is not because of their legal complexity, but as a result of the difficult findings of fact the court is required to make, often on the basis of limited evidence of the testator’s true intentions. There is a legal presumption that a will is valid if it appears so on its face, and in the absence of direct evidence from the testator, the claimant must usually rely on the witness evidence of friends, neighbours and family members. Such evidence can be partisan and may be unable to address the key issue: if there is one thing people are generally unwilling to discuss, it is the contents of their will. Until the witnesses give their evidence at trial, their reliability can also be uncertain, making the outcome of disputes difficult to predict.

A review of the law pertaining to England and Wales and some recent disputed will cases demonstrates how the courts tend to approach these evidential issues and how the absence of direct evidence can, where appropriate, lead to a judgment that a will is invalid.

Legal grounds

The legal grounds to challenge a will broadly comprise:

  • The will was not executed in accordance with s9 of the Wills Act 1837.
  • The testator lacked the requisite mental capacity to make the will at the relevant time.
  • The testator did not know and approve the contents of the will before executing it.
  • The testator was unduly influenced by a third party to make the will.
  • A third party procured the will by forgery or other means of fraud.

Claims under s9 rarely go to trial: if the witnesses are able to attest that the formalities were complied with, it can be difficult to contest their evidence.

In contrast, claims on the remaining grounds are more common: case history shows that the circumstances in which a will is made often give rise to claims on the basis of several alternative grounds. This is particularly so where the testator was elderly and potentially mentally infirm or vulnerable to exploitation. In undue influence and fraud cases, the burden of proof is always on the person making the allegation. Where fraud is pleaded, it must be proven to a higher degree of probability than the usual civil standard, on the balance of probabilities.

In testamentary capacity cases, if the will is rational on its face, the burden is on the person alleging incapacity

In testamentary capacity cases, if the will is rational on its face, the burden is on the person alleging incapacity. However if the testator had a history of mental illness, memory loss or confusion, the burden shifts to the person seeking to rely on the will. Similarly, if the testator had capacity and the will was duly executed, the burden is on the person challenging the will, but shifts to the person relying on it if the court believes the will was made in suspicious circumstances.

A review of the case law demonstrates that a challenge on the basis of want of knowledge and approval can benefit from both the evidential burden and the general lack of direct evidence that is common in will disputes, whereas claims on the basis of fraud, undue influence and testamentary capacity often fail on the same facts.


In Wyniczenko v Plucinska-Surowka [2005] EWHC 2794 (Ch), Krysytyna Wyniczenko challenged her aunt Maria’s last will on the grounds of lack of testamentary capacity, want of knowledge and approval, undue influence and forgery. The will left Maria’s estate to Stanislaw Plucinska-Surowka, a TV aerial repairman she had hired and purportedly befriended several years before the will was made, in highly suspicious circumstances: Stanislaw prepared the will himself, arranged for his friends to witness it, retained it after it was executed, and failed to inform any of Maria’s family (who were in Poland) of her death. However, there was a lack of any clear evidence of either mental illness or coercion, and the expert evidence on Maria’s signature was inconclusive. That notwithstanding, the suspicious circumstances surrounding how the will was made and the fact that there was no affirmative evidence that Maria was ever aware of its existence was sufficient basis for the court to infer she had neither known nor approved its contents.

Undue influence

A similar approach was taken by the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430. In that case, the testatrix, Joyce, and her late husband had made matching wills leaving their estates to each other on the first death and to the RSPCA on the second death, thus excluding their only daughter, Christine, from any benefit. Christine challenged the will on the grounds of want of knowledge and approval, or undue influence by Joyce’s late husband. The judge at first instance found the will invalid on the basis that the husband, an overbearing man, had coerced Joyce into leaving her estate as he wished.

However, the Court of Appeal preferred to find the will invalid on the basis that there was no affirmative evidence that Joyce ever knew and approved the contents of her will and that accordingly there was no need to consider undue influence. Joyce suffered from severe agoraphobia and although Joyce’s solicitor had read the will to her in his office before she signed it, the Court considered that she would not have been capable of comprehending it at the time, owing to her condition. The initial instructions to draft the wills were given by the husband alone and, although the solicitor had sent draft copies to their home before the meeting, there was no evidence that Joyce had ever read hers. The Court also accepted evidence that Joyce had made statements during her lifetime indicating that she was not aware that her estate would pass to the RSPCA on her death.

Testamentary capacity

The recent Court of Appeal decision in Hawes v Burgess [2013] EWCA Civ 74 highlights the comparative difficulties in establishing a claim on the ground of lack of testamentary capacity in contrast to want of knowledge and approval, despite the similarities in the evidential burden noted above. In that case, the testatrix, Daphne, had excluded her son, Peter (who was wealthier than his two sisters, Libby and Julia), from her will. Peter and Libby challenged the will on the grounds of lack of testamentary capacity and want of knowledge and approval. The Court at first instance determined that the will was invalid for lack of testamentary capacity, on the basis of expert evidence that Daphne was suffering from vascular dementia, which was likely to have impaired her ability to understand and deal with her property.

The Court of Appeal overturned the High Court decision on testamentary capacity. In spite of evidence of dementia, Mummery LJ said it was ‘a very strong thing ’ for the judge to find that Daphne lacked capacity when the will had been prepared by an experienced solicitor who had met her at the relevant time and had been satisfied that she had the requisite capacity. Mummery LJ also expressed caution at relying on medical evidence not based on any meeting with or medical examination of the testatrix at the relevant time, or at any time. Despite the solicitor having read the will to Daphne before she signed it, the Court of Appeal found that she did not know and approve its contents. The Court reached its decision largely on the basis that Julia (who had recently fallen out with Peter) was considered to have been a ‘controlling force’ behind the will, and had probably misled the solicitor about why Daphne purportedly wished to disinherit Peter. Above all, the Court found that Julia had failed to provide any affirmative evidence (other than the will) that Daphne had ever intended to exclude Peter from her estate.

Indirect evidence in undue influence claims

The case of Schrader v Schrader [2013] EWHC 466 (Ch), reported this March, offers a rare example of a case where the Court made a finding of undue influence where the alleged perpetrator was available for cross-examination (in most cases where undue influence has been found, the alleged perpetrator either did not attend trial or had died, as in the first instance decision in Gill). In Schrader, the High Court found that Nick, son of the deceased, had unduly influenced his mother, Jessica, to cut his more successful brother, Bill, out of the bulk of her estate, despite the lack of any direct evidence of coercion.

Instead, the Court formed its judgment on the basis of the mother’s vulnerability and dependency on Nick; Nick’s ‘forceful physical presence’ and ‘volatile’ personality; his misplaced belief that his parents had favoured Bill financially during their lifetimes; his attempts to distance himself from the preparation of the will at trial; and the lack of any identifiable reason for Jessica to disinherit Bill of her own volition. Although Schrader may be an exceptional case, it nevertheless further demonstrates a willingness by the courts to make adverse findings on the validity of a will on the basis of indirect evidence, where the circumstances of the making of the will are suspicious. 

Author block
Oliver Auld

Oliver Auld is a Solicitor at Speechly Bircham LLP.

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