Smart Phone Video Recordings Form Vital Evidence In Will Challenge Trial

Published date18 November 2020
Subject MatterLitigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
Law FirmVeale Wasbrough Vizards
AuthorMs Fiona Lawrence

The defendants, represented by VWV, successfully defended all claims following a five day trial. The outcome turned on crucial video evidence of the testator, which was found to capture her level of understanding and robustness of character and mind.

Will challenges brought on the grounds of lack of capacity, want of knowledge and approval and undue influence/fraudulent calumny are notoriously difficult to prove. In the absence of contemporaneous evidence, judges often have to rely on the evidence of expert witnesses, who very often have not met or medically examined the testator during their lifetime, and whose evidence will often be conflicting, as in this case.

The Will

The Testator (N), died in 2017 at the age of 94, leaving behind three sons. Her eldest son had three daughters, who became involved in a battle with their two uncles over N's last Will and her only asset of commercial value - her flat.

On 27 May 2015, N exercised her right-to-buy the council flat in Chiswick in which she had lived for 24 years. With limited funds to buy the 125 year lease, N borrowed around '140,000 from her three granddaughters and executed a charge securing the loan.

On the same day, N executed a declaration of trust in which she declared herself trustee of the lease, on trust for herself and her youngest granddaughter (then aged 16) as beneficial joint tenants, with the result that on N's death, her share would pass by way of survivorship to her youngest granddaughter. She also made her last Will leaving her residuary estate, totalling around '10,000, equally between her sons.

In August 2015, N, who had long since been registered blind and had poor hearing, had a fall which resulted in her losing the ability to make decisions for herself. Following the advice of medical staff, N was admitted to a nursing home where she remained until she died.

The Claim

The claimant brothers, N's two youngest sons, brought a claim against their older brother and his three daughters, challenging the declaration of trust on the grounds of lack of capacity and undue influence. They also challenged the validity of the Will on the grounds of lack of testamentary capacity, want of knowledge and approval and undue influence/fraudulent calumny.

The claimants argued that N had suffered from dementia and was delusional at the time she made the declaration of trust and the 2015 Will, both of which were made before her fall. If neither document were upheld, the flat and N's remaining assets...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT