References: [1968] 1 P 675
Coram: Scarman J
The onus of proof on the balance of probabilities as to whether the Will was duly executed and whether the Deceased knew and approved the contents of the Will is upon the Defendant. The legal requirement upon the Defendant to establish these facts is a safeguard in will cases against fraud upon the dead. The weight of the burden will vary with the weight of the suspicion to be dispelled; but in a matter as vital as this the law wears no cramping straight jacket. The Court’s vigilance is called whenever circumstances reasonably excite suspicion.
Scarman J said: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’
This case is cited by:
- Cited – Fuller -v- Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . . - Cited – Sherrington -v- Sherrington ChD ([2004] EWHC 1613 (Ch), Bailii)
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . . - Cited – Gill -v- Woodall and Others ChD (Bailii, [2009] EWHC B34 (Ch), [2009] EWHC 834 (Ch))
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . . - Cited – Gill -v- Woodall and Others CA (Bailii, [2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380)
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: 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 . .
