Sometimes, when challenging a will, it pays to run every possible argument – because you only have to succeed on one to achieve a positive outcome. But running bad arguments can undermine the force of arguments that might otherwise be compelling, and sometimes it's best just to accept your disappointment and not spend years and untold cost in litigation.
In Nutt & Nutt v Nutt, two siblings, Christopher and Vivienne, fought out a bitter dispute with their younger sibling Colin over which was their mother's last Will.
For reasons that are not clear from the Judgment, it took just over five years to get to trial, by which point Christopher was 73, Vivienne 71, and Colin 64.
Mrs Nutt had died in February 2013. She was 88. Serious health problems had marked the final decade of her life. All three children, to varying disputed degrees, shared the burden of supporting her.
In 2003, Mrs Nutt made a Will dividing her estate equally between the three. But in a 2010 Will, she left her home, worth circa £320,000, to Colin, and only then divided what was left equally. In reality there was nothing left to divide. Christopher and Vivienne challenged the Will on four grounds. They alleged failure to execute the Will properly, lack of capacity, lack of knowledge and approval, and Colin's undue influence.
Colin's longstanding friend, Steven, and Steven's sister, Valerie, had witnessed the Will. Both had given evidence in their witness statements that they had seen Mrs Nutt date the Will but the handwriting expert's conclusion was that she could not have done. There were also minor inconsistencies between their written evidence and their evidence under cross-examination but these were not sufficient to undermine the presumption in favour of due execution.
The challenge on the grounds of testamentary incapacity also failed. Detail in the medical records suggested onset of dementia but that is insufficient to raise a real doubt as to capacity. Christopher and Vivienne alleged that their mother could barely write her own name – but that was inconsistent with greetings cards annexed to the handwriting expert's report! Christopher and Vivienne gave evidence as to their mother's general confusion. But, again, that was undermined by Christopher's evidence (attempting to show the Will didn't reflect her wishes) that his mother had discussed her Will with him very shortly before her death.
There was no evidence as to who had written the Will and there was no evidence that it had been read to Mrs Nutt or that she had read it herself. That underpinned the knowledge and approval challenge, as Christopher and Vivienne sought to persuade the Judge that she could not safely infer that Mrs Nutt knew and appreciated the significance of what she was doing. However, Colin and Valerie's evidence again, and evidence from friends that she had talked to whilst walking her dog, demonstrated that Mrs Nutt had indeed known what she was doing.
The final challenge of undue influence required Christopher and Vivienne to prove that there was no alternative explanation other than that Colin had procured the Will by his undue influence. Here they made what the Judge described as 'a comprehensive attack on Colin's character' describing him as dominating and domineering. But the evidence fell short of what was needed. The independent evidence was that Colin was affectionate and attentive towards his mother and not aggressive or dominating.
Christopher and Vivienne lost comprehensively on every single argument.
We don't know what efforts, if any, were made to settle rather than litigate. Nor do we know if sage advice was ignored. But Nutt v Nutt is another reminder of how the bitterness that can mar probate disputes can often make reaching a commercial decision incredibly difficult.
