Throwing The Kitchen Sink At Will Disputes - Knowing When To Quit: Nutt & Nutt v Nutt

Sometimes, when challenging a will, it pays to run every possible argument - because you only have to succeed on one to achieve a positive outcome. But running bad arguments can undermine the force of arguments that might otherwise be compelling.

And sometimes it's best just to accept your disappointment and not spend years and untold cost in litigation.

In Nutt & Nutt v Nutt, two siblings, Christopher and Vivienne, fought out a bitter dispute with their younger sibling Colin over which was their mother's last Will.

For reasons that are not clear from the Judgment, it took just over five years to get to trial, by which point Christopher was 73, Vivienne 71, and Colin 64.

Mrs Nutt had died in February 2013. She was 88. Serious health problems had marked the final decade of her life. All three children, to varying disputed degrees, shared the burden of supporting her.

In 2003, Mrs Nutt made a Will dividing her estate equally between the three. But in a 2010 Will, she left her home, worth circa £320,000, to Colin, and only then divided what was left equally. In reality there was nothing left to divide. Christopher and Vivienne challenged the Will on four grounds. They alleged failure to execute the Will properly, lack of capacity, lack of knowledge and approval, and Colin's undue influence.

Colin's longstanding friend, Steven, and Steven's sister, Valerie, had witnessed the Will. Both had given evidence in their witness statements that they had seen Mrs Nutt date the Will but the handwriting expert's conclusion was that she could not have done. There were also minor inconsistencies between their written evidence and their evidence under cross-examination but these were not sufficient to undermine the presumption in favour of due execution.

The challenge on the grounds of testamentary incapacity also failed. Detail in the medical records suggested onset of dementia but that is insufficient to raise a real doubt as to capacity. Christopher and Vivienne alleged that their mother could barely write her own name - but that was inconsistent with greetings cards annexed to the handwriting expert's report! Christopher and Vivienne gave evidence as to their...