The recent High Court case of Ball v Ball highlights that where a testator who makes a will on the basis of a mistaken belief that is neither the product of an underlying capacity issue or fraud, disappointed beneficiaries are likely to have no redress through the courts unless they can argue want of knowledge and approval, which will often be too limited in its application to assist.
Barbara Olive Ball made her last will on 27 May 1992. She died some years later on 8 November 2013.
Mrs Ball had 11 children with her husband, James Sayles Ball, who predeceased her.
There was a rift in the family dating back to 1991, when three of the children, Barbara, Debra and Nigel, who were the claimants to this action, reported their father to the police for sexually abusing them when they were younger. Mr Ball was prosecuted and pleaded guilty to sexual abuse of the second claimant and to incest and indecent assault on the third claimant. There was apparently a suspended prison sentence.
Mrs Ball’s will made in 1992 excluded the claimants from benefit, dividing her estate between the remaining eight children and one of her grandsons. She lived for a further 20 years but never changed her will.
The claimants challenged the validity of Mrs Ball’s will on the basis of lack of capacity and undue influence. They also made a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
It was accepted at trial that Mrs Ball was not suffering any physical or mental illness sufficient to deprive her of testamentary capacity. The argument on lack of capacity was that Mrs Ball’s mental state was impaired as, when she made her will, she was labouring under a misapprehension or mistake that her husband was innocent when in fact he was guilty. Her capacity was lacking because of this serious misapprehension.
The judgment does not set out in detail the arguments raised on undue influence, but it appears that the choice Mrs Ball made; her lack of capacity based on the reasoning set out above; and the fact that the wills were made at the same time, in the same terms and with the same solicitors, were used to argue that she must have been acting under undue influence.
Reviewing the relevant case law, the judge found that, where a mistake is made but where, as here, there is no medical evidence of lack of capacity, the court ‘must be satisfied that no man in possession of his senses could have believed what it was that the [testatrix] believed’ (Boughton v Knight (1873) LR 3 P & D 63) and therefore that, in effect, the mistake ‘must be the product of insanity’. Referring to Re Belliss (1929) 141 LT 245, he found that a mistake does not, by itself, operate to invalidate a will. It can provide a basis upon which to say that the testator is suffering from an insane delusion or does not possess a sufficiently sound memory for the purpose of making a will, but ‘a mere mistake, without more, is not enough’.
In this case, there was no evidence of underlying delusions or insanity. Further, on the evidence, the judge found that, at the time of making the will, Mrs Ball was not labouring under a significant mistake as to the guilt of her husband.
The judge noted that, in probate cases, undue influence always has to be proved; it is never presumed. In this case there was no positive evidence that Mr Ball had pressured his wife to make the will. Importantly, the judge accepted the evidence that Mrs Ball was the dominant partner in the marriage and told her husband what to do, not the other way round. Having found that she had capacity, she was entitled to choose to disinherit her children in the circumstances. While the judge accepted that not every parent would have behaved in the same way and she could be criticised for doing so, her decision to disinherit was not ‘irrational’.
The judge noted that, in relation to a claim by adult children, the Act allows the court to make provision for reasonable maintenance, but not for ‘advancement’. What is ‘reasonable’ is to be judged in part by reference to need, but, following Ilott v The Blue Cross, there needs to be something else, whether a moral claim or some other circumstance.
In this case the judge considered the conduct of the deceased, or indeed her husband, did not create any moral obligation on her part to compensate them. Further, this was a very small estate where the claims of the applicants were not very different from those of the actual beneficiaries and the size of the estate meant an award could hardly make a significant difference (a division of the estate 12 ways would amount to £13,083 each). As there were no other special circumstances, the children’s 1975 Act claim failed.