Jenkins & Anor v Evans [2025] EWHC 2438 (Ch)

This blog was co-authored by Claire Brierley and Annabel Lake.

This case provides a striking example of how a seemingly straightforward validity challenge can evolve into a complex dispute. It demonstrates how personal relationships can shape and complicate legal processes, ultimately leading to a costly battle over relatively limited financial stakes.

Background

Robert Glyn Evans died on 25 January 2021 (the “Deceased”) leaving his son, Nicholas Charles Ingham Evans (“Nicholas”) and his daughter, Sarah Caroline Ingham Evans (the “Defendant”).

The Deceased prepared a Will in 2006 (“the 2006 Will”) which appointed Nicholas and the Defendant as Co-Executors and left the residue to be divided equally between them.

From 2013 onwards, Nicholas and the Defendant’s relationship broke down and by 2016, they were no longer speaking to each other. Nicholas had a single conversation with the Deceased and conveyed his concerns about sharing the role of executor with the Defendant and suggested that he consider appointed a professional executor to neutrally administer the estate.

The Deceased then prepared a subsequent Will in 2017 (“the 2017 Will”) which provided:

• For the appointment of two professional executors to administer the estate (the “Executors”)
• For the following pecuniary legacies to be paid
• Three legacies of £1,000 to the Deceased’s housekeeper, the grammar school in Salisbury where he had been headmaster and to his local church
• £10,000 each to each of his two grandsons
• For the residue to be divided equally between Nicholas and the Defendant

The Claim

The Defendant lodged a Caveat against the estate on 19 March 2021, which challenged the Probate application of the Executors, preventing them from obtaining Probate. The Executors entered a Warning to the Caveat, and the Defendant thereafter entered an appearance on 25 June 2021 where she set out her reasons why the Caveat should remain in place. After the appearance, the Caveat became permanent and a claim was then issued on 20 October 2021 by the Executors who were named as claimants.

The Defendant lodged a counterclaim on 25 July 2022 which sought to revoke the 2017 Will and to establish that the Deceased died intestate, or alternatively, to uphold the 2006 Will. This challenge was said to be on the ground of lack of testamentary capacity and want or knowledge and approval. The Defendant also alleged undue influence by Mr Fleming, one of the executor’s (the “First Claimant”) in seeking to have himself appointed, and by Nicholas for suggesting the appointment of a professional executor. The Defendant claimed that the Deceased never mentioned the legacies to her and stated the Will made ‘11th hour legacies to my brother’s family without any cool-off period’.

Legal Principles

Lack of Testamentary Capacity

The legal test which applies was established in Banks v Goodfellow (1870) LR 5QB 549 and requires that a person making a Will must:

1. Be able to understand the nature of making a Will and its effect.
2. Be able to understand the extent of the property of which they are disposing.
3. Be able to comprehend and appreciate the claims to which they ought to give effect.
4. Have no disorder of the mind that perverts their sense of right of their natural faculties in disposing of their property by will.

The party propounding a will bears the legal burden of proof to prove capacity. However, where a will is rational on its face and duly executed then capacity will be presumed. It is then for any objector to provide any evidence to the contrary.

Want or Knowledge and Approval

For a Will to be valid, the person making the will (the Testator), must know, understand and approve the contents of the document as reflecting their wishes.

Undue Influence

Undue influence happens when someone applies pressure, manipulates, or coerces the Testator into changing it in a way that benefits them or someone else. The burden of proving that there has been undue influence with regards to the preparation of a Will is on the party who alleges it.

The Case

In this case, Judge Russen submitted that the only point which could be made in support of the Defendant’s validity challenge of the 2017 Will was that the golden rule was not observed. The golden rule was established in Kenward v Adams (1975) CLY 3591 and is widely regarded as a key best practice standard for solicitors. It advises that whenever there is any uncertainty about a testator’s mental capacity - particularly when they are elderly or living with significant health issues - a medical professional should be asked to assess and confirm that the individual has the requisite capacity to prepare a will. Here, although the Deceased was elderly at the time of preparing the Will, it was clear on the information available that he had the requisite testamentary capacity to do so. Accordingly, Judge Russen rejected the Defendant’s claim that the Deceased lacked capacity.

Judge Russen confirmed that, given his finding on the Deceased’s testamentary capacity, coupled with the due execution of the 2017 Will, it was clear that the Deceased also knew and approved the contents of the 2017 Will.

Furthermore, Judge Russen concluded that there was no evidence to support undue influence in this case, particularly given that Nicholas only mentioned his concerns regarding the Co-Executorship once, and that he had no knowledge of the gifts to his children prior to the Deceased’s passing.

Accordingly, the Defendant’s counterclaim was dismissed and Judge Russen pronounced in favour of the 2017 Will, removing the Defendants caveat.

The financial impact of the 2017 Will on the Defendant was calculated to be £11,500, the costs incurred by the estate alone in bringing and pursuing the claim will no doubt have been significantly more than that. This case provides a helpful reminder as to  the importance of proportionality, and how individuals bringing a claim should weigh up the economic risks associated before bringing a claim even when acting in person.

The case also clarifies that although obtaining expert opinion on capacity will assist a capacity challenge, a lack of, will not automatically invalidate a Will.