Ginger v Mickleburgh [2026] EWHC 100 (Ch)

Michael Gwilliam's four daughters successfully challenged his 2014 will, which had reduced their inheritance in favour of his sister, nephew, and companion. The High Court held the will invalid for lack of testamentary capacity due to insane delusions caused by organic brain disease.

Facts

Michael Gwilliam died on 17 February 2022, aged 79, having suffered from dementia. The claim concerned a will executed on 3 December 2014 which appointed his sister Sheila and her son Robert as executors and left significant benefits to Sheila, Joan Brooks (his long-term companion), Sheila’s sons, and only 25% of residue between his four daughters (the claimants), conditional on no claim being made.

Michael’s relationship with his daughters had been harmonious until late 2013. Facing financial difficulties, he placed New House Farm on the market. Following a withdrawn sale to a Mr Trenchard in late 2013, Michael began reporting harassment — banging on windows, revving engines, lights shone on his land — which he attributed to the neighbouring Awre family, allegedly in cahoots with his ex-wife Christine.

In February 2014, after Helen contacted the GP, Michael was sectioned under the Mental Health Act 1983. He was diagnosed with Persistent Delusional Disorder and Mild Cognitive Impairment due to diffuse cerebrovascular impairment. After discharge he maintained his beliefs, came to regard his daughters (particularly Helen) as having conspired to have him sectioned in order to steal his property, and executed the challenged will. Sheila and Joan were present when instructions were taken by paralegal Julie Costley at the farmhouse on 4 November 2014.

Issues

The Court had to decide:

• Whether Michael lacked testamentary capacity at the time of executing the will, particularly under the fourth limb of Banks v Goodfellow — whether he was suffering from insane delusions which influenced his testamentary dispositions; and
• Alternatively, whether the will should be set aside for fraudulent calumny by Sheila and Joan, who were alleged to have poisoned Michael’s mind against his daughters by false statements.

Arguments

Claimants

The daughters argued that Michael was suffering from fixed, unshakeable delusions arising from organic brain disease (a stroke / late-onset schizophrenia) which caused him to believe his neighbours were persecuting him and that his daughters were conspiring against him for financial gain. They argued Sheila and Joan knew the delusions were false, or were reckless, and made false statements to induce Michael to disinherit his daughters.

Defendants

The defendants contended that Michael’s perceptions had a factual basis; that the daughters and Christine had falsely presented him to mental health professionals to seize his property; that Michael had capacity; and that any statements made by Sheila and Joan reflected their genuine beliefs rather than fraudulent misrepresentations.

Judgment

HHJ Leslie Blohm KC held the will invalid for want of testamentary capacity and declared that Michael died intestate.

Legal test

The judge applied Banks v Goodfellow (1869) LR 5 QB 549 as summarised in Goss-Custard v Templeman [2020] EWHC 632 and as further elaborated in Leonard v Leonard [2024] EWHC 321 (Ch). He noted that on the fourth limb, the burden lies on the challenger to establish an insane delusion arising from mental disease, fixed and incapable of contrary persuasion, and causative of the testamentary dispositions; thereafter the burden shifts to the propounder to show the delusion did not affect the will.

Findings on delusions

The judge found Michael genuinely believed (i) the Awre family and others were harassing him to force a sale of the farm, and (ii) his daughters, particularly Helen, were conspiring to have him sectioned to seize his property. These beliefs were false, fixed, incapable of rational persuasion, and caused by organic brain disease — likely a stroke causing late-onset schizophrenia and persistent delusional disorder, as supported by Professor Fox’s single joint expert report and contemporaneous medical records including Dr Ardagh-Walter’s discharge summary.

The judge found police investigations disclosed no evidence of the alleged nuisance; independent witnesses (Richard Brown, Mark Webster) confirmed Michael perceived events that were not occurring; and Robert Mickleburgh himself could not hear what Michael claimed to hear. The delusions could not be explained by tinnitus, lamping of foxes, or acute hearing.

Will-making process

The judge gave limited weight to the evidence of Ms Costley, the paralegal. She had not adopted the ‘golden if tactless rule’ of obtaining a medical opinion on capacity, despite knowing of Michael’s sectioning and his intention substantially to disinherit his next of kin. The judge accepted Mr Jolley’s evidence that he had not given an opinion on testamentary capacity and would have conducted a formal assessment had he been asked. Sheila and Joan were present during instructions; Joan’s address was the correspondence address; and Joan chased the draft will.

Causation

The judge concluded the delusions operated at the time of execution. But for them, Michael would likely have made no will at all, being averse to doing so, and his estate would have passed to his daughters on intestacy as he had long intended.

Fraudulent calumny

Although Sheila and Joan made many of the alleged statements, and those statements were false, and were made for the purpose of inducing Michael to disinherit his daughters, the judge found on balance that both women genuinely believed what they said. Citing Edwards v Edwards [2007] EWHC 1119 (Ch), Kunicki v Hayward [2016] EWHC 3199 (Ch), and Thomas Witter v TBP Industries Ltd [1996] 2 All ER 573, the judge held that genuine belief, however unreasonable, precludes a finding of fraud or recklessness. The fraudulent calumny claim therefore failed.

Implications

The judgment reaffirms the continuing vitality of the fourth limb of Banks v Goodfellow as a distinct ground for invalidating a will where delusions arising from mental disease have a causative effect on testamentary dispositions, even where the testator otherwise understands the nature of the act, the extent of property, and those with claims upon the estate.

The case illustrates the evidential significance of:

• Contemporaneous medical records and psychiatric diagnoses in rebutting a plea of capacity;
• Independent lay evidence that a testator’s perceptions had no factual basis;
• The failure to follow the ‘golden rule’ of obtaining a medical capacity assessment where an elderly or infirm testator makes a will substantially departing from prior intentions and disinheriting next of kin;
• The limited weight attached to a solicitor’s or paralegal’s assessment of capacity where they have not met the testator previously, communicate largely through a beneficiary, and rely on informal remarks from medical professionals not formally instructed to assess capacity.

On fraudulent calumny, the decision underscores the stringent requirement that the representor must know the statement is false or be reckless as to truth. Genuine, even if unreasonable or credulous, belief provides a complete defence — reflecting the high threshold for proving what is effectively a quasi-criminal allegation on the civil standard, applying Re Dellow’s Will Trusts [1964] 1 WLR 451.

The decision will be of interest to contentious probate practitioners advising on will challenges involving elderly testators with cognitive impairment, particularly where a sudden rupture with previously favoured beneficiaries coincides with the onset of psychiatric symptoms. It also provides a reminder to solicitors taking will instructions of the importance of independent capacity assessment where the circumstances raise concern.

Verdict: The Court held that the will of 3 December 2014 was void for want of testamentary capacity and declared that Michael Gwilliam died intestate. The alternative claim of fraudulent calumny failed because Sheila and Joan were found genuinely to believe the statements they made, notwithstanding that the statements were false and intended to induce Michael to disinherit his daughters.

Source: Ginger v Mickleburgh [2026] EWHC 100 (Ch)