On 14.8.14 Edward Murray sitting as a Deputy Judge of the Chancery Division handed down judgment in
King v King, King & Mark Ellis  EWHC 2827 (Ch).
The widow argued that the will was invalid on two grounds: (1) lack of knowledge and approval; and (2) that it had been procured by undue influence. Mark Ellis, who prepared the will and was an executor, successfully obtained summary judgment and the widow’s claim to revoke probate was dismissed. That decision was upheld on appeal.
The testator made a will in June 2005 leaving his estate to his two children but providing his partner with a right to occupy their home. His rationale was that she owned a property, had always collected the rent from that property and would leave it to her two children. The testator gave clear and unambiguous will instructions to a solicitor who was married to the testator’s niece. Neither the solicitor nor his wife benefitted under either will. The testator then married his partner which revoked the will. In September 2005 he made a new will in the same terms. Both wills were executed at the solicitor’s offices and witnessed by another solicitor and a secretary. The testator did not tell his wife that he had made either will.
Many years after the testator died and probate had been granted the widow sought to attack the will.
Before Master Teverson it was argued that the widow had no real prospect of succeeding on her claim. Four reasons were put forward: (i) The will was prepared by a solicitor and summarized to the testator before execution which created a strong presumption that it represented his intentions at the date of execution. (ii) The testator gave clear instructions as to the distribution of his estate and the rationale for that distribution in respect of the June 2005 and September 2005 wills. They were recorded in attendance notes prepared by the solicitor. (iii) There was an issue about the quality of the testator’s eyesight but the widow was inconsistent in her descriptions of its extent. She did admit he could read albeit with a magnifying glass. (iv) Mark Ellis had adduced clear evidence that the testator “understood what he was doing and its effect” per Chadwick LJ in Hoff v Atherton  WTLR 99, para 64. In relation to undue influence the widow had failed to articulate any sustainable case simply asserting that there was a connection between Mark Ellis and the testator by marriage.
The Master accepted on a summary disposal that the widow had failed to advance a case that rebutted the strong presumption that the September 2005 will represented the testator’s intentions at the time he executed it. He relied on a passage in Williams Mortimer & Sunnucks, para 13-28, that whilst it might be preferable for the will to be read over to the testator and for that to be recorded on the face of the will it was not essential "if the court is satisfied that the testator gave instructions for his will and that those instructions are embodied in it." Here there was evidence from Mark Elis that he had read the will over to the testator albeit it was not recorded on the will.
The widow appealed on the issue of knowledge and approval only. It was argued on behalf of the widow that: (1) the wrong test had been applied to determine the summary judgment application; (2) Mark Ellis’ evidence was insufficient to discharge his burden of proof as executor and the factual matrix aroused the suspicion of the court so that summary disposal was inappropriate.
The first ground was misconceived because not only did the Master recite the correct test but he clearly applied it.
In relation to the second ground the burden of proof is on the person propounding the will; albeit here the widow was seeking to revoke probate. Where there are no circumstances arousing the suspicion of the court knowledge and approval will be established by proving testamentary capacity and due execution. The Judge repeated the words of Viscount Simmonds in Wintle v Nye  1 WLR 284,
“In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It might be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”
There were no suspicious circumstances here that would engage the rule in Barry v Butlin (1838) 11 MooPC 480 and place the additional affirmative burden on Mark Ellis to establish that the testator knew and approved the contents of his wills. The Master had sufficient evidence to conclude that the ordinary test was satisfied.