Abdenoor v Barker – a new Will contest or Will dispute claim revealing the inherent dangers of a trial
Abdenoor v Barker  EWHC 1468 (Ch) Abdelnoor & Anor v Barker& Ors  EWHC 1468 (Ch) (14 June 2022) (bailii.org)
This was a claim against the legal validity of a Will dated 26 January 2018 on two grounds; lack of knowledge and approval and undue influence. In other words the deceased couldn’t or didn’t know and approve the Will that she purported to sign in front of two witnesses. In addition, her own wishes in relation to her estate were overborne by someone else so that the terms of the Will did not represent her testamentary intentions at all.
Strangely, there was no issue about her mental capacity to make the Will although (perhaps seeing the claim as it stood was weak) Counsel for the party maintaining the Will was invalid, attempted to include alleged capacity issues at the last minute (at the trial itself). The Court refused to grant permission for such a late change of tack.
It appears that a specialist Will draftsman (Ms Braddel) prepared and arranged for the execution of the Will. She may not have been a Solicitor, but she was a scrupulous notetaker and carefully recorded all that transpired during the course of the instructions to make the Will leading to its execution.
The legal grounds for contesting the legal validity of the Will
These were carefully recorded by the Chancery Master (Pester) who heard the case at trial.
Knowledge and approval
The principles governing the test for knowledge and approval were laid out by Lord Neuberger in Gill v Woodall  Ch 380 Gill v Woodall & Ors (Rev 1)  EWCA Civ 1430 (14 December 2010) (bailii.org)
(1) As a matter of common sense and authority, the fact that a Will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix’s intentions at the relevant time, namely the moment she executes the Will;
(2) When it is proved the Will has been read over to or by a capable testator there is a presumption of knowledge and approval which can only be rebutted by the clearest evidence.
An explanation of the difference between knowledge and approval and Testamentary Capacity
Helpfully, this is explained in the same decision by reference to Simon v Byfield  EWCA Civ 280 where Lewison J explained “Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made”.
There are no presumptions in relation to undue influence. The person alleging undue influence has to prove it; no ifs or buts.
The relevant principles are summarised in the decision of Lewison J in Edwards v Edwards  EWHC 1119 (Ch) (refer to our earlier analysis at CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – UNDUE INFLUENCE BY DISHONEST ASPERSIONS – Will Claim Solicitors)
However in brief:
(1) Undue influence means influence exercised either by coercion, in the sense that the testator’s will is overborne, or by fraud;
(2) Coercion is pressure that overpowers the volition without convincing the testator’s judgment…it is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate;
(3) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary to overbear the will so that the will of a weak and ill person may be more easily overborne than that of a healthy one;
(4) It is also a “species” of fraud which requires the strongest and most cogent evidence to prove it.
In summary, the person challenging the legal validity of the Will had to prove the testator was unduly influenced and didn’t know and/or understand what she was signing except (in relation to knowledge and approval) where there were grounds for suspicion.
These cases invariably turn on the evidence, the best of which (so far as the court is concerned) will come from those who are professional and independent (of the dispute). The Will drafter Ms Braddel was completely independent and therefore her evidence was accepted by the Master whose conclusions in that regard appear to have been bolstered by her scrupulous note-taking. Moreover the circumstances did not appear to be suspicious at all (whereby the burden of proving knowledge and approval might have fallen to those propounding the Will).
Of course, once the Will drafters evidence was accepted, there could be no question of the challenge to the legal validity on the basis of undue influence succeeding either, given her careful involvement throughout.
The dangers of trial
Very clearly those involved in the challenge to the legal validity of the Will in this case considered there was sufficient evidence to win that challenge at trial. Unfortunately this was not borne out by the findings of the court in this instance. We wrote about this in a previous blog highlighting how simple human failings can lead to disaster in Will dispute or Will contest claims that are taken to trial:
Fortunately, there are or should be opportunities to resolve even the most intractable of disputes, notwithstanding that Court proceedings have been issued and are very much live and kicking. For example, where there is a clear weakness in an opponents’ case which apparently his/her legal advisors are “ignoring”, one can ask the Court to adjudicate and provide guidance but without making a final decision. This process is called an “ENE” appointment or “early neutral evaluation”. Moreover, all of the parties can be “forced” to participate.
If you believe that you might have grounds to contest a will https://www.willclaim.com/claim-types/contesting-a-will-after-probate/, it’s important to get in touch with a professional who can help you through this challenging time and support you legally. At Will Claim Solicitors, we specialise in assisting our clients in contesting wills for estates most commonly based in England and Wales. Our expert solicitors are on hand to support you on a ‘no win, no fee’ basis, so get in touch to arrange your free claim assessment here https://www.willclaim.com/free-claim-assessment.