Bowerman v Bowerman [2025] EWHC 2947 (Ch)

Alastair Bowerman challenged his parents' 1999 wills, alleging his father lacked testamentary capacity following a severe stroke and his mother was unduly influenced by his brother Ben. Master Clark dismissed the claims, finding laches barred the father's will challenge and no coercion was proven regarding the mother's will.

Facts

John and Jean Bowerman, a married couple who ran Godlingston Manor Farm in Dorset as a partnership from 1949, both executed wills in 1988 which made provision for their three sons, Ben, David and Alastair. In 1994, John suffered a severe and debilitating stroke, leaving him with expressive dysphasia (he could only say ‘yes’, ‘no’ or short neutral words such as ‘um’ or ‘aha’), significant physical disability, and periodic episodes of heart failure.

In 1998, John and Jean assigned most of their partnership interests to Ben and GMS, retaining only 1% each. In December 1998, Ben contacted Humphries Kirk (HK) — his own solicitors, not his parents’ — to arrange new wills. The 1999 wills, drafted by Mr Mount of HK, removed the equal provision for the three sons previously contained in the 1988 wills, leaving residuary estates to the surviving spouse absolutely.

John executed his 1999 will on 22 April 1999, the very day Dr Caruana found him acutely unwell with worsening heart failure and arranged his emergency hospital admission that afternoon. Jean executed her will on 26 May 1999. John died in 2004; Jean died in 2012. Alastair commenced proceedings in August 2022, obtaining permission to amend to challenge the wills in March 2023.

Issues

The court had to determine:

• Whether John had testamentary capacity when executing his 1999 will;
• Whether John knew and approved the contents of his 1999 will;
• Whether the claim in respect of John’s will was barred by laches and acquiescence;
• Whether Jean knew and approved the contents of her 1999 will;
• Whether Jean’s 1999 will was procured by Ben’s undue influence.

Arguments

Alastair’s case

Alastair contended John lacked capacity owing to his stroke and the acute heart failure episode on 22 April 1999, and did not know or approve contents he could not properly read or articulate instructions for. As to Jean, Alastair argued she was not business-minded, relied on Ben, and was subjected to conduct (evidenced by her diaries) that overbore her free will, particularly Ben’s temper, controlling behaviour, and the fact that HK were Ben’s solicitors.

Ben’s case

Ben asserted John had capacity and knew and approved his will, that Jean knew and approved her will and was not unduly influenced, and that Alastair was in any event barred by laches and acquiescence, having known the contents of the wills shortly after they were made and having expressly disavowed any intention to challenge John’s will at a meeting on 26 October 2004.

Judgment

John’s will — capacity

Master Clark applied the test in Banks v Goodfellow (1869-70) LR 5 QB 549 and the burden of proof principles from Ledger v Wootton [2007] EWHC 2599 (Ch). Although Mr Mount and Ms Randall believed John had capacity, neither had conducted a formal assessment, and neither attendance note recorded that John could only communicate via monosyllabic replies. Dr Caruana’s clear and accepted evidence was that on 22 April 1999 John was experiencing an acute episode of heart failure requiring emergency hospital admission, during which he lacked capacity to make a will. The Master found that had the solicitors spoken to Dr Caruana that day, they would have been told John lacked capacity. John accordingly lacked testamentary capacity.

John’s will — knowledge and approval

Applying Gill v Woodall [2011] Ch 380, the Master found John also did not know and approve the will’s contents, being unable to read and understand Mr Mount’s letter of 21 April 1999 or the will itself, and noting the substantive changes originated from Mr Mount rather than John.

Laches

Despite these findings, the Master held Alastair’s challenge to John’s will was barred by laches. Following Re McElroy [2023] EWHC 109 (Ch) and James v Scudamore [2023] EWHC 996 (Ch), the 18½-year delay was inexplicable; Alastair’s health and the 2015 Restraining Order (which expressly permitted communication through solicitors) provided no proper explanation. Alastair had expressly disavowed any challenge at the October 2004 meeting, and the executors had administered John’s estate in reliance on that disavowal. Further, any consequential recovery claim against Jean’s estate would itself be defeated by laches, rendering the probate challenge ‘utterly academic’.

Jean’s will — knowledge and approval

The Master was satisfied Jean knew and approved her will’s contents: Mr Mount’s 21 April 1999 letter explained its effect, Ms Randall went through the provisions, Jean had a lengthy discussion with Mr Mount on 24 May 1999, and she attended HK’s offices to execute it. Nothing about the circumstances was suspicious.

Jean’s will — undue influence

Applying Re Edwards [2007] EWHC 1119 (Ch), the Master rejected the undue influence challenge. Jean’s diary entries, though revealing a sensitive and sometimes anxious woman who experienced painful incidents with Ben, post-dated the 1999 will by 5 to 6 years, contained no suggestion the will had been procured by pressure or that she regretted executing it, and did not evidence coercion overbearing her will. The circumstances of preparation and execution — Mr Mount initiating the changes, Jean declining to sign on 22 April, discussing the will with Mr Mount in Ben’s absence, and executing it at HK’s offices — were inconsistent with coercion.

Implications

The decision illustrates several important points:

• Interaction of capacity findings and laches: The judgment confirms, following Re McElroy, that even where a successful challenge to testamentary capacity could be made out on the merits, a probate claim may nevertheless be dismissed where laches would defeat any consequential equitable relief, rendering the challenge academic.
• Solicitor’s duty in capacity cases: The case highlights the importance of a structured capacity assessment by solicitors taking instructions from seriously ill testators, and the insufficiency of reliance on general impressions or indirect medical reassurance obtained through intermediaries.
• Expressly disavowing a challenge: A clear statement by a potential challenger that they do not intend to challenge a will, relied upon by executors administering the estate, may contribute to a successful laches defence.
• Undue influence threshold: The judgment reaffirms the high burden on those alleging testamentary undue influence; evidence of a difficult or controlling relationship, post-dating the will and unaccompanied by contemporaneous evidence of coercion at the time of execution, is unlikely to suffice.
• Limits of diary evidence: Diary entries made years after a will’s execution, even those recording distressing incidents, carry limited weight where they do not connect the conduct described to the making of the will.

The case will be of particular interest to private client practitioners advising elderly or seriously ill testators, and to contentious probate practitioners considering the viability of long-delayed will challenges where the challenger has had knowledge of the contents, taken legal advice, and taken no timely action.

Verdict: Alastair’s claims challenging the 1999 wills of John and Jean Bowerman were dismissed. The court pronounced for both 1999 wills in solemn form. Although John was found to have lacked testamentary capacity and not to have known and approved his will, the challenge to his will was barred by laches; Jean was found to have known and approved her will, which had not been procured by undue influence.

Source: Bowerman v Bowerman [2025] EWHC 2947 (Ch)