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Nutt v Nutt, 2018 EWHC 851 Ch


On 19 April 2018, Master Clark handed down judgment in this unsuccessful probate claim. What was interesting about this case was that the Claimants attempted to overturn a will on almost every ground possible. The case highlights the need for strong evidence in order to overturn a will.


Lilly Nutt (“the Deceased”), had three adult children, namely, Christopher (aged 73), Vivienne (aged 71) and Colin (aged 64).  Christopher and Vivienne argued that the Deceased’s penultimate Will, dated 2005 (the “2005 Will”) was her final valid Will.  The 2005 Will split her Estate equally between the Deceased’s three children. 

Colin argued that a later will dated 7 April 2010 (“the Final Will”) was valid and should be admitted to probate.  The Final Will left the Deceased’s house to Colin.  The house was the main asset of the estate, so the Final Will resulted in the vast majority of the estate passing to Colin.

The Court therefore had to decide whether the Final Will was valid.

The Claim

The grounds upon which the Christopher and Vivienne claimed that the Final Will was invalid were:

1) Lack of Due Execution (whether it was actually signed by the Deceased)

The Claimants refused to accept that the Deceased had signed the Final Will. This assertion was based on minor inconsistencies between the witness statements of the attesting witnesses and their oral evidence at trial. This included such things as them previously not recalling the Deceased dating the will in their presence, but then saying that this happened when giving oral evidence.

Master Clark held that the Deceased had signed the Final Will, in accordance with the testimony of the attesting witnesses. Master Clark focussed on their evidence as a whole and considered that small details can easily and understandably be misremembered.

2) Lack of Testamentary Capacity (whether the Deceased had the requisite capacity to make a will)

The Claimants relied on the fact that the Deceased had been diagnosed with Parkinson’s and Dementia. Crucially however, the diagnosis did not occur until around 14 months after the Final Will was executed. The diagnosing doctor had noted that the Deceased had been suffering from memory problems for six months to a year prior to the date of the diagnosis, which the claimants argued should cast doubt on her capacity when the Final Will was signed.

The Judge did not find this evidence persuasive. Master Clark commented that even if it was correct that memory problems had been persisting for a year, the will had been signed two further months before that.

The Claimants’ own evidence, was not seen as credible by Master Clark, as it was contradicted by the attesting witnesses who said that the Deceased had explained the terms of her will and her reasons to them.

3) Lack of Knowledge and Approval (whether the Deceased actually knew what was in the will)

The Claimants argued that there was no evidence that the Deceased had known what the contents of her will were.

It appears clear that this argument did not stand up to scrutiny at trial, with one of the claimants admitting that a third party had told her that the Deceased had said she was changing her will to leave her house to Colin.

Master Clark concluded that it was clear that the Deceased intended to make a will leaving the house to Colin and, as the Final Will reflected that intention, he was satisfied that the Deceased knew and approved the contents of the Final Will.

4) Undue Influence (whether the Deceased was unduly influenced by Colin into making the will in the way that she did)

As with the other claims, the evidence put forward for this ground was weak. The claimants argued that Colin was of a domineering character, but when they were asked to provide examples they referred to such small things as Colin telling the Deceased to change into different shoes because she was too cold.

As Master Clark stated in her judgment, this kind of behaviour does not even come close to what is required to establish undue influence.

Other allegations were made, but not appeared to be substantiated with proper evidence.

Again, Master Clark appeared to have little difficulty dismissing this part of the claim.


This case shows the pitfalls of proceeding with a probate claim without proper evidence. It will rarely be enough in these types of claims to rely heavily on self-serving anecdotal evidence from the claimants themselves.

If you have any questions about this article, please contact Liam Brooke of our Contentious Private Client Department at 0113 336 3340 or liam.brooke@clarionsolicitors.com.


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