After a 15-day trial spread over six weeks, the High Court overturned the purported 2019 Will of self-made millionaire and racehorse owner Reg Bond, resolving a long-running dispute between his four children about the family fortune.

This note highlights some of the key lessons from this dispute, which will interest charity legacy officers faced with or bringing probate claims concerning testamentary capacity or lack of knowledge and approval.

Background

In 1966, aged 22, Reg received £350 compensation for an accident which blinded him in one eye.  He turned that into one of the UK's largest tyre wholesalers, Bond International, based in Pocklington near York, now with an estimated revenue of £400 million.

A brain tumour in 2010, followed by a fall and mini stroke, left Reg in a wheelchair and dependent on round-the-clock care.  

Reg's wife Betty died of cancer in 2015.  

Reg and Betty had always intended that their four children, Lindsay, Mike, Greg and Charlie, who all worked in the family business, would inherit equally.  Reg gave Betty's shares to his four children.

When a proposed buyout fell through, Lindsay and Mike negotiated an exit, with Greg and Charlie staying in the business.  

However, concurrently, Charlie, with the assistance of solicitor Duncan Rann (who at the time claimed to be New York qualified but, it transpired had been suspended since 2009), organised a series of transactions whereby Charlie secretly took control of his father's finances, avoiding Reg's longstanding family solicitor, including creating a new Lasting Power of Attorney removing Lindsay as attorney in place of Charlie, and a new Will in 2019 cutting Lindsay and Mike out by giving Reg's shares in the business to Greg and Charlie.  

Lindsay and Mike only found out that they had been cut out after their father passed away in 2021.  When they objected, Charlie and Greg issued proceedings against them to propound the 2019 Will.

Lindsay and Mike counterclaimed that Reg did not have testamentary capacity to make the 2019 Will, and that he did not know and approve its contents.

Charlie and Greg also refused to pay Lindsay and Mike what they were owed under the terms of their exit from the business.

The judgment

The Judge found that by 2019 Reg lacked the necessary capacity to make a valid will.  

The Judge also found the numerous suspicious circumstances, including elaborate attempts to maintain secrecy, meant that, even if he was wrong about capacity, Charlie and Greg failed to establish that Reg knew and approved the 2019 Will.  

The 2017 Will dividing Reg's estate equally between his four children will now be admitted to probate instead.  

The legal test for testamentary capacity is found in Banks v Goodfellow, which has been the position for 150 years.

The law

Testamentary capacity:

The legal test for testamentary capacity is found in Banks v Goodfellow, which has been the position for 150 years.

It provides four 'limbs' which the testator must be able to satisfy.

1. They must be able to understand the effect of the will they are signing;
2. They must be able to understand the extent of the property they are disposing;
3. They must be able to comprehend the nature of the claims of others;
4. They must have no disorder of the mind which perverts their sense of right or prevents using their natural faculties in disposing of their property by will.  No insane delusion should bring about a disposal which they would not have otherwise made.

Burgess v Hawes

In Burgess v Hawes the court said that a will prepared by an experienced and independent solicitor following a meeting with the testator and where the will was read back to the testator should ‘only be set aside on the clearest evidence of lack of mental capacity’.

Hughes v Pritchard

In Hughes v Pritchard the court found that if a will is rational on its face, the court will presume that the testator had capacity: 

'Where the will is explicable and rational on its face, the conclusion reached by an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, has met with the testator, is fully aware of the requirements of the law in relation to testamentary capacity and has discussed the draft and read it over to the testator, is likely to be of very considerable importance when determining whether the testator has testamentary capacity.  It is a very strong thing […] to find that such a testator was not mentally capable of making a will.'

Reeves v Drew

In Reeves v Drew, another recent case where a professionally drafted will was successfully overturned, the family of Kevin Reeves disputed his 2014 will on the grounds that he had been unduly influenced and lacked knowledge and approval of its content.

The 2014 will left 80% of his estate to his daughter Louise, and only 20% to his other daughter Lisa.  This division differed dramatically from his previous will which had divided his estate more equally.

The court ruled that Kevin had not understood the terms of his 2014 will and had not intended to alter his testamentary disposition.  The court found that the will had not been read through to Kevin and, as such, Louise had exploited her father's poor literacy.

The judge also made several fundings in relation to the conduct of the solicitor, whom he described as 'reckless and quite possibly dishonest.'

The judge found that, while the involvement of a solicitor can strengthen the presumption of validity of a will, in this case the situation was 'quite the reverse' due to the court's concerns surrounding the solicitor's evidence.  

Leonard v Leonard

In Leonard v Leonard, Jack Leonard was married for 40 years to Audrey.  They had four children.  Audrey died in 1998 and the following year Jack married Margaret, who had three children with her late husband. A long and happy second marriage followed.

Avid helicopter pilot and Man City fan, Jack made a 2007 will, drafted by solicitors, leaving a reasonably complex estate (including foreign assets, a helicopter leasing company, and pub) to, in broad terms, his children and Margaret in five equal shares. 

Jack was subsequently recommended to a 'chartered tax advisor' in 2013 (by which time he was suffering from dementia).  She prepared, in a prolonged process, a new will which Jack signed in October 2015 giving Margaret a life interest and dividing the reversion seven ways between his four children and Margaret's two surviving children and her deceased daughter's children (meaning that his biological children would not benefit as much from his estate).

Jack's children successfully challenged the 2015 will.

The will drafter had not seen or spoken to Jack for over a year before he executed his 2015 will.  It was a complex will that included trust structures which would have required a high level of understanding. 

The will drafter, who was not a solicitor but a tax advisor, had not followed the Golden Rule (which states that where there is an elderly testator or someone who has been seriously ill, it is advisable that a medical practitioner assess their capacity to make a will and that they make a clear record of their findings).   

'…[the] total lack of awareness on [her] part of the obvious need for caution in dealing with an elderly testator renders her views on capacity worthless'. 

Bond v Webster

In Bond the 2019 Will was drafted by a professional, although she was a 'legal executive' rather than a 'solicitor'.

The will drafter did not have an attendance note of the meeting at which she claimed Reg told her that he wanted to cut out Lindsay and Mike.  She had also had contact with the principal beneficiary, Charlie, and was quite clearly in his camp.  She allowed Reg's carers (who were also in Charlie's camp) to be in the room with him when he purportedly gave instructions, for example, to increase the cash gifts to them.  It was clear that instructions to make a drastic change to Reg's previous Will had not come from him direct.  She obtained information from Charlie, Duncan Rann, Charlie's wife, and Reg's carers.  

At trial, her supervising solicitor Duncan Rann (who was also Charlie's solicitor) appeared not to know whether or not he had been acting for Reg, and there were question marks about the dating of documents.  Mr Rann had taken instructions from Charlie on behalf of Reg.  It also became clear that Duncan Rann had held himself out as New York qualified when he knew that he had been struck off.

The Judge said that 'alarm bells should have been ringing very loudly in Ms Martin's head as to whether Reg really knew what was going on and intended these to be his testamentary dispositions.'  He also found that she did not 'have a good grasp as to how testamentary capacity is tested' and did not record her own assessment in her attendance notes.

The Judge summarised that:

'In short, I do not feel able to place the sort of weight on Ms Martin's assessment of Reg's capacity in relation to the 2019 Will that the Claimants invite me to do.  It alone does not satisfy me on the balance of probabilities that Reg had capacity.  I do not think that she was acting wholly independently of the side of the family that were substantially benefitting from the 2019 Will and she was prepared to involve them in the process while being told to keep it all from the other side of the family.  She was also prepared to receive instructions from people other than Reg as to what was to go into the will and Reg's voice and input is almost undetectable.  In that situation, Ms Martin should have been far more cautious about accepting that Reg had capacity and should have complied with the Golden Rule and got an opinion at the time of the execution of the Disputed Documents, which might have avoided this unfortunate litigation.'

Lesson 2: the importance of disclosure 

Video evidence

The fallibility of witness evidence is now specifically acknowledged in the Civil Procedure Rules (Appendix to Practice Direction 57AD 1.3), which states

'Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

1. is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but
2. is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore
3. is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.'

In contrast, there is a strong reliance on documentary evidence.  The disclosure stage has become, as a result, a key part of litigation.  

Harrison v Barrett

A recent case law example of the importance of video evidence is Harrison v Barrett (2023).  In that case the testator Julie Harrison lived alone.  Her only daughter, Candice Harrison, installed cameras Julie's home (with her permission) after Julie told her there had been visitors to the property and she could not remember who they were.  

Julie had made a will which left £400,000 to her nephew Jonathan Greenwood, some pecuniary legacies and residue to Candice.  Julie challenged the will on the basis that her mother lacked capacity and on the basis that Jonathan had unduly influenced her mother. 

Julie produced video evidence in the proceedings from the covert cameras.  The nephew was recorded following a visit by Julie to the doctor (which her daughter had arranged) saying:

'Oh that is three years of work [big sigh]…dear god' and 

'We were so, so close to getting this all sorted out'.

Later in the same conversation Jonathan is recorded suggesting to Julie that she might want to change her will to leave him more money.  He also repeatedly referred to Candice taking control of Julie's money and her house, and also played on her fears of having to move into a care home.

Partly due to the strength of the video evidence, the Judge held that the will was procured by undue influence and that Julie lacked testamentary capacity.

Bond v Webster

The disclosure process was particularly important in the Bond case.  As our clients were not involved in the will drafting process, we were reliant on documents arising in disclosure to evidence our clients' case that Charlie, Greg and Duncan Rann had masterminded and implemented a covert scheme to obtain a new will from Reg which cut out Lindsay and Mike.  

Videos arose during that disclosure process which appeared to have an impact on the Judge's decision to overturn the 2019 Will.

Greg and Charlie tried to rely on videos showing Reg happy at the races, doing physiotherapy and with his carers.  The Judge agreed that the video 'shows Reg in a very good mood, but he does not really say anything and he is in a friendly environment' and that they 'demonstrate further that Reg was not very with it and had, by then, a generally unsophisticated approach to life, needing to be cajoled into action.'

Greg and Charlie also disclosed a video that Greg had covertly recorded of Reg signing a power of attorney.  The Judge said 'Those videos … have had an impact on me in relation to Reg's capacity.  From [the videos] I would not have been satisfied as to Reg's capacity to sign … and Greg's reasoning for videoing this backfired.'  'He looks tired, disengaged and confused.  He was surrounded by people … and I believe he would have felt some pressure to sign.'

Other evidence

Bond v Webster

The will drafter's files (including handwritten notes) and WhatsApp messages formed an important part of disclosure in the Bond case.

They revealed (from time recording entries) contact between the will drafter and Charlie (even though she had insisted in her Larke v Nugus letter that she had not had any contact with him).  

They showed that Charlie had set up a secret Gmail address to correspond about the will.  Although it had apparently not been used.

They emphasised the extent to which Charlie had Reg's carers spy on Lindsay and Mike and conceal from them the fact that Reg was making a new will.

For example, the carers steamed open post addressed to Lindsay regarding Reg and Charlie asked one of the carers to 'park the horsebox on the left as you pull into our house please.  So you cannot see the cars from the road.'

The contemporaneous WhatsApp messages were key.  On the date of a key meeting, Charlie asked Reg's carers to make sure that he was 'fresh' for the meeting.  And during the meeting, one of the carers sent a WhatsApp message to Charlie to say that a carer was in the meeting with Reg and the will drafter 'keeping him right.'  Afterwards, the carer confirmed to Charlie 'Reg was great today, don't worry.'

The will drafter's file revealed a handwritten note that the will drafter had written that Reg's shares were not to go to Lindsay and Mike.  The will drafter said that those instructions came from Reg, but it was clear from the other scribbles on the note that the instructions were in fact from a meeting she had had with Duncan Rann.

Conclusion

The bar for overturning a professionally drafted Will remains high, but these cases demonstrate clear lines of attack, including caution where a new professional is involved rather than the testator's longstanding solicitor, cases where the professional appears to have a relationship of some kind with one of the beneficiaries, poor / incomplete attendance notes and a failure to get a medical practitioner to properly assess and record their capacity to make a will.  

<< BACK TO HOMEPAGE