Maile v Maile [2025] EWHC 2494 (Ch)

Two grandsons challenged their grandmother's 2016 and 2017 codicils, which revoked an earlier gift of her Devon farm to them and restored equal division between her daughters. They also claimed proprietary estoppel. The High Court dismissed both claims and granted possession to the executrix.

Facts

Mary Elizabeth Stevens (the deceased) died in March 2020 aged 96, owning West Hook Farm in Okehampton (approximately 170 acres with a farmhouse and outbuildings). Her 2006 Will left live and dead stock to her grandsons (the Claimants, Steven and John Maile), pecuniary legacies of £10,000 to each granddaughter, and residue (including the Farm) to her two daughters, Ruth (the Claimants’ mother) and Sheila, equally. A 2011 Codicil diverted the Farm itself to the grandsons. The 2016 Codicil revoked the 2011 Codicil, reverting to the 2006 Will. The 2017 Codicil left Hook Meadow to Sheila but otherwise confirmed the 2006 Will.

In 2015, the deceased entered into a Partnership Agreement with the Claimants, principally for inheritance tax purposes. The Farm was introduced as ‘special capital’ credited to the deceased, and the Agreement contained an Option enabling surviving partners to purchase the Farm on a partner’s death. The Claimants never exercised the Option. Clause 20.2 required occupation to be given up within 12 months of the deceased’s death.

The Claimants sought to set aside the 2016 and 2017 Codicils on grounds of lack of testamentary capacity, want of knowledge and approval, and undue influence, and alternatively advanced a proprietary estoppel claim. Sheila, as executrix, counterclaimed for possession and mesne profits.

Issues

• Whether the deceased had testamentary capacity when executing the 2016 and 2017 Codicils.
• Whether she knew and approved their contents.
• Whether the Codicils were procured by undue influence by Sheila and/or the solicitor Mr Smale.
• Whether the Claimants had a proprietary estoppel claim based on assurances that the Farm would be left to them.
• Whether Sheila was entitled to possession and damages under her counterclaim.

Arguments

Claimants

The Claimants (represented by Mr Dumont KC) argued that the deceased lacked capacity, pointing to alleged confusion evidenced in secretly recorded conversations by John, Mr Smale’s attendance notes, and non-compliance with the ‘golden rule’. They argued she did not understand the effect of the 2016 Codicil (which did not itself spell out that the gift of the Farm was being revoked). They alleged Sheila covertly arranged the February 2016 meeting and exercised undue influence. On proprietary estoppel, they said the deceased had repeatedly assured them over many years that they would inherit the Farm, and they had relied on this by working on the Farm, living there, foregoing other opportunities, and Peter surrendering his Tenancy.

Defendants

Sheila (represented by Mr Learmonth KC) denied all probate grounds, emphasising the detailed attendance notes of the experienced solicitor Mr Smale and the agreement of both old age psychiatry experts that nothing in the medical records suggested incapacity. She contested the proprietary estoppel claim on every element, asserting there was no clear assurance, no reliance, and no net detriment given the substantial benefits the Maile family received. She also raised an ‘unclean hands’ defence based on forensic evidence that four of the deceased’s signatures had been simulated. She counterclaimed for possession and mesne profits.

Judgment

Testamentary Capacity

Applying the Banks v Goodfellow test as restated in Hughes v Pritchard and summarised in Leonard v Leonard, Michael Green J held the deceased had capacity. Both experts (Professor Burns and Dr Series) concluded she likely retained testamentary capacity. The judge accepted Mr Smale’s attendance notes as accurate and reliable, showing long and considered discussions. Though the golden rule was not strictly followed, this was not fatal. Forgetfulness and later apparent confusion did not equate to incapacity at the moment of execution.

Knowledge and Approval

Applying Gill v Woodall, the judge found the deceased knew and approved the Codicils. Mr Smale’s attendance note of 18 February 2016 showed a deliberate decision after lengthy private discussion to revoke the 2011 Codicil and revert to strict equality. His confirmatory letter of 19 February 2016 reinforced this. Subsequent recorded conversations were interpreted as the deceased using deflection to placate John rather than evidence of actual misunderstanding at the time of execution. The 2017 Codicil was similarly validly made.

Undue Influence

Applying Rea v Rea, the judge found no evidence of coercion. The allegation, particularly against the solicitor, should not have been made or pursued. The attendance notes disproved any conspiracy.

Proprietary Estoppel

Applying Thorner v Major, Guest v Guest, Winter v Winter, and Davies v Davies, the judge held there was no sufficiently clear and unequivocal assurance. Generalised statements made when the Claimants were young could not reasonably be interpreted as irrevocable testamentary promises. No reliance was established: Steven admitted he would have acted the same way regardless, and both continued working at the Farm after learning of the 2016 Codicil. On detriment, the Claimants and their family had received substantial benefits (free board and lodging, drawings, gifts totalling around £40,000, contracting fees of £70,000+ to the Maile Partnership, the Option), such that no net detriment was established. The judge also indicated he would have accepted the argument, derived from Horsford v Horsford, that entry into the Partnership Agreement was inconsistent with and extinguished any prior equity. The unclean hands defence (based on four forged signatures) was not required to be decided; while the signatures were likely simulated, responsibility could not be attributed to the Claimants.

Counterclaim

Clause 20.2 of the Partnership Agreement required occupation to be given up within 12 months of death. The judge rejected Ruth and Peter’s arguments based on section 38 of the Partnership Act 1890, section 12 TOLATA, and alleged licences. Sheila was granted possession. Damages were awarded on the basis of the unrefurbished rental value: £10,000 per annum for the Farmhouse (Claimants and Ruth and Peter jointly and severally liable) and £23,000 per annum for the rest of the Farm (Claimants only), both from 22 March 2021, with interest at 3% over base rate. The dilapidations claim was rejected as unpleaded and unproven.

Implications

The judgment reinforces several established principles. First, detailed and contemporaneous solicitors’ attendance notes, prepared by an experienced and independent practitioner, carry very significant evidential weight in probate challenges, particularly where corroborated by expert psychiatric evidence. Second, the golden rule remains a counsel of best practice rather than a rule of validity. Third, testamentary capacity is not a memory test, and later forgetfulness or confusion does not automatically undermine capacity at the moment of execution.

For proprietary estoppel, the case illustrates the courts’ careful scrutiny of alleged testamentary assurances, requiring them to be clear, unequivocal, and of a character that the testator would appreciate was being relied upon. Generalised statements made to young grandchildren over the years are unlikely to found such a claim. The decision also underscores that where claimants continue to act in the same way after learning an assurance has been withdrawn, proving reliance becomes very difficult. The judge’s observations about the inconsistency between partnership agreements (containing options and special capital provisions) and subsisting estoppel rights, following Horsford v Horsford, may be influential in future farming inheritance disputes.

The case is significant for practitioners advising on farm succession planning, demonstrating the importance of clear documentation, the role of partnership structures in tax planning, and the risks of informal assurances. It also serves as a cautionary tale about the costs and family damage wrought by such litigation, which the judge explicitly lamented.

Verdict: The Claimants’ probate and proprietary estoppel claims were dismissed. The court pronounced in solemn form for the force and validity of the 2016 and 2017 Codicils. Sheila’s counterclaim succeeded: possession of the Farm was ordered, with damages of £10,000 per annum for the Farmhouse (jointly and severally against the Claimants, Ruth and Peter) and £23,000 per annum for the rest of the Farm (against the Claimants), both running from 22 March 2021 with interest at 3% over base rate.

Source: Maile v Maile [2025] EWHC 2494 (Ch)