David Lewis and his brothers Peter, Roger and Hugh had a history of conflict and estrangement which renewed around March 2012.

Background

In May 2010 Pamela Lewis instructed her solicitor to make a will dividing her estate into five equal shares with each of her sons to receive one share. The remaining share was to be divided between her seven grandchildren.

Pamela’s son Peter (a solicitor) prepared a Will for his mother in 2011 containing minor changes to her previous Wills. However, Pamela signed the document, and later Peter had her neighbours sign as witnesses putting the validity of the Will at risk.

Between 2012 and 2015, David instructed a solicitor to prepare several testamentary documents however it wasn’t clear if the instructions reflected David or Pamela’s intentions.

Pamela died in 2017. David sought probate on Pamela’s December 2014 Will and two 2015 Codicils (“2014 Will and Codicils). Pamela’s son Peter claimed she lacked testamentary capacity to make the 2014 Wills and codicils and did not understand or approve their contents. Peter sought Probate on a 2011 Will, along with two of the four following codicils (2011 Will and codicils) In the alternative if the Court found both Wills invalid, then Pamela’s July 2010 Will should be admitted for Probate.

The decision

At first instance, the Court found that Pamela had testamentary capacity but had not been shown to have known and approved the clauses of the 2014 will and its codicils which conferred powers on David. Accordingly, the Court admitted part of the 2014 Will along with three clauses of the August 2015 codicil into Probate. The 2010 and 2011 Will were not included in the grant ofbprobate but were used to confirm the testator’s testamentary capacity.

The Court expressed concern with Peter’s conduct in connection with the attestation of the 2011 will. As on the face of it, it may justify the referral to the Law Society for consideration of disciplinary action against Peter as a solicitor.

The Appeal

David appealed. The main issues in the appeal were:

• Whether the 2014 will had been read out loud to Pamela who then executed it;
• Whether, if so, the primary judge had erred in failing to find that she had known and approved the instruments.
• Whether the primary judge had erred in severing the 2014 will and one of its codicils.

The Court of Appeal rejected David’s appeal on grounds including that merely reading a will out loud to a capable testator does not mean that they know and approve the Will: additionally, the trial judge had not erred in severing the 2014 will and its codicils.

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