Wharton v Bancroft & Ors (Rev 1) Neutral Citation Number [2011] EWHC 3250 (Ch)

A 78-year-old terminally ill man made a deathbed will leaving his entire £4m estate to his partner of 32 years, whom he married hours later, excluding his daughters. The court upheld the will, rejecting challenges based on want of knowledge and approval and undue influence.

Facts

George Wharton, aged 78 and suffering from terminal cancer of the eye and liver, was discharged from hospital on 23 September 2008 knowing he had only days to live. That evening, with the assistance of solicitor Mr Timothy Bancroft, he executed a will (the ‘2008 Will’) in contemplation of marriage to his partner of 32 years, Maureen Wharton, and married her immediately afterwards in a ceremony conducted at their home. He died three days later.

The 2008 Will left his entire estate (principally 99.8% of the shares in White Horse Leisure Centres Ltd, valued at approximately £4 million) to Maureen absolutely. No provision was made for his three daughters: Vicki and Gina (from his marriage to Dorothy), or Amanda (from an extra-marital relationship). The deathbed marriage eliminated inheritance tax liability.

The Daughters challenged the 2008 Will on grounds of want of knowledge and approval and undue influence. Testamentary capacity was not disputed, and the validity of the marriage was accepted (meaning that, if the Will failed, Mr Wharton would die intestate).

Issues

The court had to determine two principal issues:

• Whether Mr Wharton knew and approved the contents of the 2008 Will, particularly the single disposition leaving everything to Maureen absolutely.
• Whether the execution of the 2008 Will was procured by the undue influence of Maureen, such that it did not represent Mr Wharton’s true wishes.

Arguments

The Daughters’ case

The Daughters argued that Mr Wharton’s drug regime (Tramadol, Co-codamol) impaired his understanding; that Maureen had orchestrated the will-making process through her influence over Mr Bancroft; that Mr Bancroft came to the task with a preconceived notion (drawn from 2007 correspondence) favouring an absolute gift; that the will ignored claims (particularly Amanda, whose existence was not disclosed) that Mr Wharton ought to have considered; that earlier wills and statements showed a consistent intention to benefit his daughters and granddaughter Prisca; and that Mr Wharton’s terminal illness rendered him vulnerable to coercion.

Maureen’s case

Maureen argued that the will was properly prepared by an independent solicitor, read over to Mr Wharton by an independent Registrar, and reflected his freely expressed wishes. She was not present when instructions were taken. Mr Wharton himself confirmed that his previous (2006) will leaving everything to her still represented his wishes.

Judgment

Norris J pronounced in favour of the 2008 Will. He set out the legal framework, drawing on Gill v Woodall [2010] EWCA Civ 1430 for knowledge and approval, and Edwards v Edwards [2007] WTLR 1387 and Cowderoy v Cranfield [2011] EWHC 1616 for undue influence. He noted that proof of proper execution of a will prepared by a solicitor and read over to the testator raises a very strong presumption that it represents the testator’s intentions.

Knowledge and approval

The judge found the evidence of Mr Bancroft (supported by contemporaneous attendance notes), Joanna Bancroft, and the Registrar Carole Hales reliable. Maureen was not present when instructions were taken. Mr Bancroft asked open questions about relatives and elicited clear instructions. The Will was read over slowly and clearly by an independent person, and Mr Wharton confirmed his approval. The unchallenged expert evidence of Professor Jacoby established that the medication would not have caused confusion or impaired capacity. Mr Wharton’s momentary loss of concentration passed before the Will was read over. The absence of Amanda was deliberate, not forgetful. Each of the ‘threads’ of the Daughters’ argument was rejected.

Undue influence

The judge held that undue influence required proof of coercion overpowering the testator’s will, not mere persuasion. Although Mr Wharton’s terminal illness created opportunity, there was no evidence that opportunity was taken or that it produced the 2008 Will. Earlier wills showed no consistent pattern (the 1995 Will had favoured Gina at a time before estrangement). Casual statements about testamentary intentions were unreliable indicators of true intention. The 2006 Will, which Mr Wharton affirmed on his deathbed, had been a genuine expression of intent and not the product of coercion. The judge noted criticism of Mr Bancroft’s failure to follow the ‘golden rule’ of having a medical attendant assess capacity was misplaced, since capacity was not in issue and the practical realities of a deathbed will made strict compliance impractical.

The judge concluded that it was unsurprising for a man to leave his entire estate to the woman he had treated as his wife for 32 years and whom he had just chosen to marry.

Implications

The decision reaffirms that a properly executed will, prepared by a solicitor and read over to the testator, carries a strong presumption of knowledge and approval which can only be displaced by cogent evidence. It demonstrates that deathbed wills, while requiring careful scrutiny, are not inherently suspicious, particularly where the testator has capacity, gives clear instructions to an independent solicitor, and the disposition is consistent with the testator’s relationships.

The judgment provides practical guidance on the ‘golden rule’ (the desirability of a medical attendant verifying capacity), indicating it is not an inflexible requirement, particularly in deathbed situations where time constraints and client consent may make it impracticable. The case also illustrates the court’s cautious approach to reconstructing testamentary intention from casual conversations or historic wills, and emphasises that undue influence requires proof of coercion, not merely persuasion or opportunity.

The decision is particularly relevant to probate practitioners handling deathbed wills, to families where ‘common law’ relationships have endured while legal children have become estranged, and to contested probate actions generally. It also contains a pointed observation from Norris J about the desirability of pursuing negotiated Deeds of Family Arrangement in such cases to reduce litigation costs and facilitate reconciliation.

Verdict: The court pronounced in favour of the validity of the 2008 Will and dismissed the Daughters’ counterclaim. The Will was admitted to probate in solemn form, with Mr Wharton’s entire estate passing to Maureen Wharton absolutely.

Source: Wharton v Bancroft & Ors (Rev 1) Neutral Citation Number [2011] EWHC 3250 (Ch)