In Sharp v Hutchins (2015) the High Court upheld the contents of a 2013 will of elderly bachelor Ronald Butcher. Mr Butcher left his entire estate to a peripheral friend, leaving his one remaining family member, who was a beneficiary of an earlier will, disappointed.
The judgement investigated the test for determining a testator’s knowledge and approval for their will and concluded that the two-stage test for knowledge and approval should be cross checked when using the single-stage test from Gill v Woodall.
Facts
The Claimant brought proceedings asking the Court to pronounce in favour of a will dated January 2013, which was prepared by Mr Butcher, and left the entire estate to the Claimant. The Defendants were Mr Butcher’s cousin and two children of a close school friend who were the beneficiaries under an earlier will made in 2011. They challenged the 2013 will on the grounds of want of knowledge and approval on the part of Mr Butcher.
The Claimant, a builder, and Mr Butcher first met in a café in 2007 when Mr Butcher approached the Claimant for help with a leaking gutter, which the Claimant quickly fixed and did not charge Mr Butcher. Over the following years the Claimant struck up a friendship with Mr Butcher by occasionally visiting to help with ‘odd jobs’. The Claimant conceded it was not a ‘close’ relationship and the defence described the story of the friendship as ‘ludicrous and absurd’.
The 2013 will was witnessed by a financial advisor, who was visiting Mr Butcher by request, and a plumber who was carrying out work at Mr Butcher’s bungalow. The 2013 will, as with Mr Butcher’s previous wills, was prepared and executed without the assistance of a solicitor and using a template will. The will appointed the Claimant as the executor and sole beneficiary of Mr Butcher’s estate.
The Claimant gave evidence that during a visit to Mr Butcher in mid-January 2013, Mr Butcher supplied him the will and requested he read it. The Claimant was surprised by the contents and after asking Mr Butcher whether he was sure about the contents, Mr Butcher said he did not want to talk about it. Mr Butcher died unexpectedly a few months later.
Decision and Comment
The Judge concluded that she was ‘satisfied that the 2013 will was executed with the knowledge and approval of Mr Butcher and that he intended it to give effect to his testamentary wishes’, and pronounced for the 2013 will.
As well as satisfying the common law test of testamentary capacity formulated in Banks v Goodfellow (1870), a testator must know and approve the contents of his will for it to be valid.
The High Court held that, while the correct approach to determining a testator’s knowledge and approval of his will was the application of the single-stage test set out in Gill v Woodall (2010), the conclusions reached as a result could be cross-checked by applying the two-stage test adopted in Barry v Butlin (1838) which required the court to consider:
- Whether there were sufficient facts to excite the suspicion of the court.
- If the suspicion of the court was excited, whether that suspicion was allayed by the propounder of the will.
Applying the single-stage test, the judge found that there was sufficient evidence that the Claimant had discharged the burden of proving the testator’s knowledge and approval of his will. The judge then applied the two-stage test and reached the same conclusion.
The Judge found that any degree of suspicion surrounding the circumstances of the 2013 will was relatively low and the Claimant was able to comfortably establish that Mr Butcher knew and approved of the contents and effect of the will. This was assisted by the fact that the Claimant himself did not procure the changes to the will.
The Judge clearly upheld the fundamental principle that testators should generally be free to leave their estate to whoever they wish. Whilst it might seem strange that somebody would leave his entire estate to someone who was not a close friend or family, the ruling made clear that the role of the Court is not to engage in disapproval in relation to a testator’s intentions.
This case also reminds us that disappointed beneficiaries challenging a will on the grounds of want of knowledge and approval is not straightforward and requires more than a testator behaving unpredictably in how they elect to distribute their estate.
