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Wills and probate

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14 February 2008 / Paola Fudakowska , Adam Cloherty , Paula Hewitt
Issue: 7308 / Categories: Legal News , Public , Legal services , Wills & Probate
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Kostic v Chaplin & Others [2007] EWHC 2209 (Ch), [2007] All ER (D) 119 (Dec)

The deceased, B, made wills in 1971 and 1974 and a codicil in 1984 leaving his estate to his only son, Z. Those wills were apparently revoked by subsequent wills created in 1988 and 1989 in which B left his entire estate, worth £8.2m, to the Conservative Party Association (CPA). It was common ground that B had, from about the mid-1980s, suffered from a delusional disorder, believing that “dark forces” were conducting a “sinister and highly organised international conspiracy” against him in which various family members, including Z, were implicated. Part of B’s delusions involved him believing that only the Conservative Party, through the agency of Margaret Thatcher, could save the country from such dark forces.

After B’s death in October 2005, Z brought a claim alleging that the 1988 and 1989 wills were invalid because B lacked the testamentary capacity to execute them.
The claim succeeded. Applying Banks v Goodfellow (1871) LR 11 Eq 472, once an insane delusion was made out, the 1988 and 1989 wills should “be regarded with great distrust”. The presumption against the wills was “all the stronger” because they were “inofficious”; by leaving all his fortune to the CPA, B had plainly disregarded the claims of his close family members, for whom he would normally be expected to have affection. Mr Justice Henderson was left “in no real doubt” that the decision to disinherit Z “was heavily influenced by his delusions”, especially in the light of Z’s implication in the apparent conspiracy. Accordingly B lacked testamentary capacity when he made the 1988 and 1989 wills and probate was granted of the 1974 will.
Since he found that B’s decision was influenced by the delusions, the judge found it unnecessary to consider what he called the “fine distinction” between whether, for the will to be valid, it only had to be shown that the delusions did not in fact influence the dispositions in the will, or whether it also had to be shown that the delusions were not likely to influence those dispositions. That joy will have to await another occasion.
 
Costs
In relation to costs, the judge held that in contentious probate actions, the long-established exceptions to the usual costs rule had survived the introduction of the Civil Procedure Rules (CPR), namely: (i) that if a person who made the will, or persons who were interested in the residue had really been the cause of the litigation, or responsible for the litigation, a case was made out for costs to come out of the estate; and (ii) that if the testator and persons interested in the residue were blameless but where circumstances led reasonably to an investigation of the matter, then the costs might be left to be borne by those who had incurred them. Henderson J also identified a trend of more recent authorities to narrow rather than extend the circumstances in which the first exception is held to apply.
Issue: 7308 / Categories: Legal News , Public , Legal services , Wills & Probate
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