Oliver v Oliver [2024] EWHC 2289 (Ch)

Jane Oliver challenged her late father William's 2015 will, which disinherited four of five children in favour of her brother Rodney. The court found William lacked testamentary capacity and was unduly influenced by Rodney, admitting the 2009 will to probate instead.

Facts

William Oliver died on 25 May 2018, aged 86. He had made three wills: in 1985, 2009, and 2015. The 1985 and 2009 wills were mirror wills with his late wife June, dividing his estate equally among his five surviving children. The 2015 will, drafted by Stephen Haggett of H&C Lawyers, placed the entire residuary estate into a discretionary trust with Rodney (the eldest son) as the sole initial beneficiary, effectively disinheriting the other four children.

After June’s death in 2014, William became increasingly dependent on Rodney, who lived with him at the family home in Cornwall. Rodney weaned William off prescribed medication (including omeprazole for acid reflux), put him on unorthodox regimes including drinking his own urine and hydrogen peroxide, isolated him from other family members (by changing phone numbers, fortifying the property, and installing non-functional doorbells), and persuaded William that his brothers Andrew and Kevin had committed fraud in relation to the family company, Drakelands Produce Ltd. These allegations were investigated at a board meeting on 17 June 2015 with the company’s accountant Gary Randall, who confirmed there had been no wrongdoing.

Rodney was ultimately arrested in April 2018 after admitting he had administered hydrogen peroxide to William and injected urine into his catheter during his final hospital admission. Rodney refused to engage with the litigation, returning correspondence with stickers asserting “freeman of the land” style objections.

Issues

Two claims were brought. The first, by Jane, sought a declaration that the 2015 will was invalid on three grounds: (i) non-compliance with section 9 of the Wills Act 1837; (ii) lack of testamentary capacity; and (iii) undue influence or fraudulent calumny. The second claim, by Jane and Kevin, sought reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, contingent on the 2015 will being valid.

Arguments

The claimants argued that William lacked testamentary capacity due to cognitive impairment caused by vascular disease and other health problems, that his views about his other children were delusional and based on Rodney’s unfounded allegations, and that his will was overborne by Rodney’s coercive control. Dr Andrew Barker, consultant old age psychiatrist, gave expert evidence that William suffered from vascular cognitive impairment affecting his “executive functioning,” rendering him unable properly to weigh relevant information. Rodney did not appear and filed no evidence.

Judgment

HHJ Paul Matthews (sitting as a High Court Judge) held:

Due Execution

Applying Sherrington v Sherrington [2005] EWCA Civ 326 and Wright v Rogers (1869) LR 1 PD 678, the presumption of due execution arose from the properly drafted attestation clause. Although a puzzling GP note of 18 September 2015 suggested one witness may not have signed on 14 September, this was insufficient to constitute “the strongest evidence” needed to rebut the presumption.

Testamentary Capacity

Applying the test in Banks v Goodfellow (1870) LR 5 QB 549, as confirmed in Hughes v Pritchard [2022] EWCA Civ 386, the judge found William failed the third and fourth limbs. He could not understand and appreciate the claims to which he ought to give effect because he understood everything through Rodney’s prism, could not weigh relevant information, and ceded decision-making to Rodney. Despite Mr Randall’s clear accounting explanations, William could not see that Rodney’s complaints were “fantasy and nonsense.”

On the fourth limb, William’s ischaemic heart disease, post-mortem evidence of moderate Alzheimer’s disease pathology, old ischaemic brain injury, and other conditions produced a significant reduction in executive functioning amounting to a disorder of the mind. His beliefs about Andrew and Kevin were delusions within the meaning discussed in Clitheroe v Bond [2021] EWHC 1102 (Ch): “irrational and fixed in nature,” from which he could not be reasoned out.

Undue Influence

Applying Edwards v Edwards [2007] EWHC 1119 (Ch) and Rea v Rea [2024] EWCA Civ 169, the judge held that even if William had capacity, his will was entirely overborne by Rodney. William was “so under Rodney’s thumb, and so in fear of Rodney’s leaving him” that he could not have done otherwise than go along with Rodney’s wishes. Rodney “overpowered William’s volition without convincing his judgment.” It was unnecessary to consider fraudulent calumny.

Outcome

The 2015 will was set aside. The 2009 will (whose terms were established by evidence, although Rodney refused to disclose the original) was admitted to probate in solemn form, with an order for reconstitution under rule 54 of the Non-Contentious Probate Rules 1987. The Inheritance Act claims consequently fell away.

Implications

The judgment illustrates how the courts approach probate claims where a dominant family member isolates and controls a vulnerable elderly testator. It confirms that vascular cognitive impairment affecting executive functioning (distinct from memory-based dementia) can found a finding of incapacity under the fourth limb of Banks v Goodfellow, even where the testator appears articulate and well-presented. The decision also demonstrates the evidential value of expert psychiatric review of medical records combined with lay witness evidence of behavioural change.

The judgment offers guidance on reconciling the apparent tension between Edwards v Edwards (requiring facts inconsistent with any other hypothesis) and Rea v Rea (requiring undue influence to be more probable than any other hypothesis), treating the two formulations as compatible once viewed through the civil standard of proof. It also reaffirms the procedural approach in Killick v Pountney and Devas v Mackay that where a claimant bears the burden of proving undue influence and the defendant does not participate, live evidence should generally be heard rather than determining the case on written evidence alone.

The decision is important for practitioners advising on will challenges involving elderly testators with cognitive decline and coercive family dynamics, particularly where a defendant refuses to engage with proceedings. It shows that standard protections (seeing the testator alone, independent witnesses, GP confirmation of capacity) may be inadequate where a testator is dependent on and fearful of losing a dominant relative.

Verdict: The probate claim succeeded. The 2015 will was held invalid for lack of testamentary capacity and, alternatively, undue influence. The court ordered that the 2009 will be admitted to probate in solemn form, with an order for its reconstitution under rule 54 of the Non-Contentious Probate Rules 1987. The Inheritance Act claim did not arise and was not considered further.

Source: Oliver v Oliver [2024] EWHC 2289 (Ch)