Bancroft v Wharton: Validity of a Deathbed Will

The recent decision in the case of Bancroft v Wharton [2011] EWHC (Ch) 3250 highlights the difficulty of proving whether a Will reflects the true wishes of the testator after the event. It also demonstrates the costs and time which may be spent arguing over the provisions of a Will.

The deceased, Mr Wharton, had been married and had two children from that marriage. He had another relationship which resulted in a third child. He then cohabited for 32 years with Maureen Wharton, who took his surname but did not marry him.

On 23 September 2008, Mr Wharton (who was 78 by that time) was discharged from hospital suffering from the final stages of eye and liver cancer. He returned home, and during the evening made a Will and subsequently married Maureen (the Will was made in contemplation of the marriage and so was not revoked by marriage). He had capacity to marry.

On 26 September 2008, Mr Wharton died leaving his entire estate to Maureen, but nothing to any of his children or grandchildren (despite apparently promising that they would be taken care of and that one of his granddaughter’s educational costs in particular would be covered). Given that his estate was worth in the region of £4 million, this came as quite a bitter blow to his children, who indicated in November 2008 that they intended to challenge the Will on the grounds of lack of testamentary capacity and undue influence. They also threatened claims under the Inheritance (Provision for Family & Dependants) Act 1975.

Maureen Wharton subsequently issued proceedings seeking to prove the Will in solemn form, in order to get it admitted to probate. It is quite clear that feelings were running high on both sides. Over 40 witnesses were called to give evidence, and the trial took 7 days in the High Court.

The Will was drafted and advised upon by Mr Bancroft, a local solicitor, who had been dealing with business matters for Mr Wharton. He had made detailed attendance notes of his conversations which were helpful to the court given that the hearing was almost 3 years after the signing of the Will.

It was down to Maureen, as the person proving the Will, to show that Mr Wharton knew and approved of the contents. She produced evidence that the Will was read over to Mr Wharton (whose eyesight was failing). There was no question that Mr Wharton had capacity and that the Will had been properly executed. In addition, Mr Wharton had explained in his Will that he had chosen not to make any provision for two of his daughters as he believed them to be adequately provided for, and he had not maintained anyone other than Maureen for many years.

The Court found that the fact that there had been a deathbed marriage was not unusual – that Mr Wharton had always planned to marry on his deathbed and had made that clear to a number of people. He quite clearly understood that that was a sensible way of avoiding inheritance tax, which would otherwise have been quite substantial. The Court also held that it was clear that Mr Wharton knew he was making a Will, although his daughters argued that for a number of reasons (such as his drug regime) he could not have understood the exact terms of that Will. However, the Court found that Mr Wharton was able to understand the terms of the Will, which were clearly read out to him and on which he took a solicitor’s advice. Maureen was not present when he gave instructions for the Will, or signed it. The Court’s decision was that the Will properly reflected Mr Wharton’s wishes on his deathbed.

Once the Court had found that Mr Wharton knew and approved the terms of the Will it was necessary to consider whether Mr Wharton had been unduly influenced by Maureen. There was some criticism from the daughters that Mr Bancroft had not followed the ‘golden rule’ in getting a medical attendant to give an opinion on Mr Wharton’s capacity but the time available to him was very limited. The judge concluded that a deathbed will in favour of a woman he had treated as his wife for 32 years and whom he had just chosen to marry could not really be said to have been procured by undue influence.

The 2008 Will was therefore held to be valid.

This case has recently been before the Court again for a hearing on costs. The daughter’s who challenged the validity of the Will will ultimately end up paying the costs of Maureen, Mr Bancroft, and the executors.

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