Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend of Mrs Wells. Mr Nye was appointed sole executor. Mrs Wells left the bulk of her large estate to him. The only evidence of her instructions for the will was that given by Mr Nye, in whose offices the will and codicil were executed. On the death of Mrs Wells probate of the will and codicil was obtained by Mr Nye.
Lt Col Wintle, as assignee of a person entitled in the event of the intestacy of Mrs Wells, attacked the validity of the will and codicil. He did not do so by advancing a positive case, such as lack of capacity, undue influence or fraud. Instead, he put Mr Nye to proof that Mrs Wells knew and approved the contents of her will and codicil. The case was tried by Barnard J with a jury, who found in favour of the will and codicil. By a majority the Court of Appeal dismissed the appeal brought on the ground that the judge had misdirected the jury. In the House of Lords, Lt Col Wintle appeared in person.
Held: The appeal succeeded, on the strict ground of a misdirection to the jury by the trial judge. Directions were given for the revocation of the will so far as it related to the gift of residue to the solicitor.
The court ought not to pronounce in favour of the validity of a will where the circumstances under which the will was prepared raised a well grounded suspicion that it did not express the testator’s mind. The court must be vigilant and jealous in circumstances in which a person who has prepared – or, in the vernacular, has ‘had a hand’ in the preparation of – a will under which he or she takes a benefit and seeks to admit it to probate. Viscount Simonds said: ‘It is not the law that in no circumstances can a solicitor or other person who has prepared the will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed’.
Viscount Simonds
[1959] 1 All ER 552, [1959] 1 WLR 284
England and Wales
Citing:
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Cited by:
Cited – Ewing v Bennett CA 25-Feb-1998
The claimant appealed admission to probate of the will of the deceased, arguing that she had not had testamentary capacity when it was made.
Held: There was evidence of the beginnings of dementia, but at the tme when she had made the will, the . .
Cited – Thompson and others v Thompson and others FdNI 16-Feb-2003
The family sought to challenge the validity of the will, saying the testator lacked capacity, and that he had made the will under the undue influence of the beneficiaries.
Held: There was clear evidence that the testator, whilst changeable, . .
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Boudh v Boudh and Another CA 22-Mar-2007
. .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.181902
