Following a person’s death, there may be a dispute about whether that person’s last will is valid. Relatives or close friends of the deceased may have concerns about whether the will properly reflects the deceased’s wishes and in some cases, court proceedings may be required in order determine whether a will should be admitted to probate or whether the estate should be administered on the basis of an earlier will, or if none, on an intestacy. Similar concerns can also arise in relation to gifts made by the deceased shortly before he or she died.
There are several grounds for challenging the validity of a will or a lifetime gift, two of which were recently considered in the case of Tociapski v Tociapski  EWHC 1770(Ch).
The facts of the case are briefly as follows:
The deceased, Igor Tociapski, died on 12 March 2010 leaving a will dated 13 May 2009 (“the 2009 will”) under which he appointed his son, Boris, as sole executor, and as sole beneficiary of his estate.
Mr Tociapski had executed a previous will on 20 June 2007 (“the 2007 will”) under which Boris had also been appointed sole executor. The key difference between the two wills, however, was that under the 2007 will the deceased left his estate to be divided equally between his two sons, Boris and Paul. Paul was not included as a beneficiary under the 2009 will.
Paul claimed that the 2009 will was invalid on the grounds that (1) Mr Tociapski did not know or approve its contents at the time that he executed it and (2) when he executed it he was subject to undue influence exerted by the defendant (Boris). Paul claimed that the 2009 will should therefore be set aside and the estate administered in accordance with the earlier 2007 will.
Paul claimed additionally that Mr Tociapski’s transfer of a property known as Hillcrest Cottage to Boris on 12 February 2010 (only a month before he died) should also be set aside on the ground that when he made the transfer he was subject to undue influence by Boris. Paul also claimed that this was a case of non est factum due to Mr Tociapski’s lack of capacity at the time that he made the transfer.
The expert evidence of an old age psychiatrist (which was accepted by the court) was that whilst it could not be concluded that Mr Tociapski lacked the requisite capacity to execute the 2009 will, his capacity was impaired and this impacted adversely on his ability to have known and approved the contents of his will.
Taking the claims in turn:
A testator must know and approve the contents of his will. Generally, proof of testamentary capacity and due execution will establish a testator’s knowledge and approval of the contents of his will. However, this presumption can be rebutted where suspicious circumstances surround the preparation or execution of the will. The wording often referred to in older cases is that the circumstances are such as “to excite the vigilance and suspicion of the Court”.
In this case, Paul relied on a number of matters to support his case, including the fact that there was no reason for Mr Tociapski to change his 2007 will. Mr Tociapski’s previous wills had always included Paul, but not always included Boris. No real reason was given for excluding Paul this time.
The original instructions for the 2009 will were given to solicitors by Boris (as opposed to by Mr Tociapski) who was “active and instrumental” in its preparation, and the 2009 will was clearly in his interests. Paul also alleged that letters and a draft will sent to Mr Tociapski by his solicitors in April 2007 were unlikely to have been read by Mr Tociapski who was suffering particularly with glaucoma and could not read for himself. In addition, a nurse visiting Mr Tociapski found it difficult to gain access to him and was not able to visit him at all from 1-4 May 2009, the inference being that Boris was able to keep him isolated. Finally Paul claimed that Boris had control over Mr Tociapksi because of Mr Tociapski’s frailty, illnesses, his general dependence on Boris and their domestic arrangements.
The court found that these factors were sufficient to excite the vigilance and suspicion of the court and therefore a very high degree of proof was required for Boris, with whom the burden of proof lay, to show that Mr Tociapski knew and approved the contents of the 2009 will.
The court considered all the evidence, including the factual evidence given by Paul and expert evidence from a consultant in old age psychiatry. However, what is perhaps interesting in this case, and arguably a factor in the court’s decision, was that the defendant, Boris, took no part in the proceedings. He did not acknowledge service of the proceedings nor file a defence. He did not appear at the hearing and was not represented. Evidence was provided by Paul’s solicitor that Boris had been served with the proceedings, but at the time of the hearing his whereabouts were unknown. Boris did not therefore put forward any evidence to address the claims.
In the circumstances, the court found that Mr Tociapski did not know and approve the contents of his 2009 will and it should be set aside. The court held that as a result of Mr Tociapski’s total dependence on Boris whilst being frail and elderly and probably mentally disordered, the reading of the 2009 will to him was insufficient to establish that he either understood what he was doing or its effect.
In the circumstances there was no need for the court to consider whether the 2009 will was procured by Boris’s undue influence. Instead, the court considered the issue of undue influence in relation to the claim with regard to setting aside the lifetime transfer of the property.
The principles surrounding undue influence claims in the context of lifetime gifts were laid down in the case of Royal Bank of Scotland v Etridge (No. 2)  UKHL 44. In that case the House of Lords held that there were two forms of undue influence : firstly “improper pressure or coercion, such as unlawful threats” and secondly a transaction which “arises out of a relationship between two persons, where one has acquired over the other a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage”.
The House of Lords went on to say that equity is particularly concerned about relationships where one party has placed trust and confidence in another.
The party asserting undue influence has the burden of proof. However, if they make out that a relationship exists where one person has influence over another and that a transaction exists which cannot readily be explained by the ordinary motives of ordinary persons in that relationship, the court will then infer that the transaction can only have been procured by undue influence. The burden of proof then shifts so that it falls on the party defending the claim.
In Tociapski, as well as the points raised above in terms of the claim for lack of knowledge and approval, Paul claimed that Mr Tociapski was dependent on Boris because of his health complaints which included diabetes, impaired eyesight, a stroke, chronic angina, double incontinence and difficulties with mobility. Paul claimed that Boris’s behaviour was irrational and violent and that Mr Tociapski lived in fear of him, that Boris changed Mr Tociapski’s solicitors when a draft will prepared by earlier solicitors did not accord with his wishes and finally there was no explanation “rational or otherwise” for the 2009 will to be made in the terms that it was.
The court disagreed with Paul’s argument that Mr Tociapski had no reason to enter the transfer. Evidence came to light from Mr Tociapski’s solicitors, who were involved at the time of the transfer, that the execution of the transfer was apparently an estate planning measure and to the extent that the transfer was indeed such a measure then there would have been a legitimate reason for it.
However, the court held that this explanation was implausible. There was no realistic likelihood of Mr Tociapski surviving for seven years and indeed little chance of him surviving for even after a short time after the transfer was executed and this would have been apparent to the solicitors involved. It was also questionable whether estate planning would have been within Mr Tociapski’s contemplation and understanding. Finally, on the figures provided by Boris for the property, the maximum saving achieved by the transfer would only have been £10,000, making estate planning even more implausible.
In the circumstances (and again in the absence of any evidence from Boris himself), the court held that the transfer of the property should be set aside by reason of undue influence.
Whilst a claim of non est factum was raised, it was not ultimately argued before the court to any extent.
A successful plea of non est factum enables a party to avoid an agreement if that party was permanently or temporarily unable, through no fault of his own, to have any real understanding of the meaning of agreement irrespective of whether or not this inability arises from any incapacity (Saunders v Anglia Building Society  AC 1004 and considered in Hackett v Crown Prosecution Service  EWHC 1170 (Admin)).
In this case, it was the claimant and not the deceased who was seeking to set aside the transfer, which was unusual. The non est factum point only arose late in the course of argument and was not argued to any great extent. Instead the court chose to decide the issue in relation to the transfer of the property on the ground of undue influence.
Claims of lack of knowledge and approval and undue influence are often pleaded together or in the alternative. There is perhaps a view, rightly or wrongly, by practitioners that an undue influence claim (particularly in the context of wills where the burden of proof falls on the claimant to show actual undue influence) is difficult to prove and that a claim for lack of knowledge and approval is easier.
Whether that is the case or not, these two grounds on which the validity of a will may be contested are separate and distinct. There will inevitably be some overlap in the facts on which each claim relies, but each claim must be pleaded separately.
The burden of proof for each claim must also be considered separately and will again depend as to whether the undue influence claim is being raised in relation to a lifetime transfer or gift under a will. As explained above, if in the context of a lifetime gift the party asserting undue influence can make out the appropriate relationship and a transaction which cannot readily be explained, then the court will infer that the transaction can only have been procured by undue influence and the burden of proof will fall on the defendant to prove otherwise. For claims in relation to gifts under wills, the burden of proof always falls on the person propounding the claim, regardless of the relationship between the persons involved and explanation for the gift.
For claims for lack of knowledge and approval as explained above if the circumstances surrounding the preparation and execution of the will are suspicious then the burden of proof will fall on the person seeking to uphold it.
In the circumstances, the evidence of a defendant to a claim under either head will be key.
Boris, the defendant in Tociapski, did not take any part in the proceedings and as such no evidence was put forward on his behalf to advance his case to uphold the 2009 will and the lifetime transfer made by Mr Tociapski, even though the burden of proof had shifted onto him. In the circumstances, as, in simple terms, it was not for Paul to make out his case with regard to the invalidity of the 2009 will but for Boris to make out his case for its validity, it is difficult to see how, in the absence of any evidence from Boris that the court could have come to any different conclusion.
This begs the question whether, had Boris been located and had he taken part in the proceedings, what evidence he would have put forward and whether this would have been sufficient to change the result in this case.
Having said that, the fact that a defendant takes no part in proceedings does by no means mean that a claimant is bound to be successful in his claim. The court is bound to consider all evidence in a matter and make its finding accordingly. If the burden of proof falls on a claimant and he has not proved his case then the court will not find in his favour.
We do not know in this case whether Boris actively decided to take no part in the proceedings or whether, despite the evidence from Paul’s solicitors that Boris had been served with proceedings, he did not in fact have knowledge of the existence of those proceedings (his whereabouts at the time of the hearing were not known).
Whether to take an active part in proceedings or not is often a tactical decision for a defendant. Instead of pleading a positive case in favour of the validity (or invalidity) of a will or other testamentary document, a defendant may be advised to simply defend a claim by giving notice of an intention to cross examine the attesting witnesses to the will as opposed to adducing any evidence in support of his position. This would not only reduce a defendant’s own legal costs but may provide him with some costs protection in relation to the claimant’s costs as well.
On the other hand, putting forward a strong positive case (on the basis that there is evidence to support the defendant’s position) is more likely to strengthen a defendant’s position and to encourage settlement negotiations and an earlier resolution of the matter.
It is often difficult when initially instructed and when investigations as to the circumstances surrounding the preparation and execution of a will are only at an early stage to be able to advise on what grounds a claimant has to challenge the validity of a will and with whom the burden of proof will lie. Lack of knowledge and approval and undue influence are only two of a number of possible grounds (which include lack of testamentary capacity, want of due execution and fraud). It is sensible therefore to complete any such investigations so that the facts of the matter are clear before applying the law to the facts in order to see whether the necessary grounds for setting aside a will can be made out. More than one ground can be pleaded either together or in the alternative but care should be taken not to include all grounds (unless there is clear evidence to do so) as this could be seen as a “scattergun approach” which could potentially weaken any claim.
Once faced with a claim a defendant will then need to consider whether to actively defend those proceedings, or depending on where the burden of proof lies, simply not to take an active part in the proceedings.
Every case will depend on a thorough examination of the facts and evidence. However, Tociapski may act as a warning to potential defendants who may be considering whether or not to actively take part in proceedings. Put simply, if, as a defendant, you do not put forward any evidence to support your position, particularly if the burden of proof falls on you, it will be difficult to see how a court could find that you have discharged that burden and find in your favour.
This article was published in Trusts & Estates Law & Tax Journal in March 2014.