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Barnaby v Johnson - Why the “kitchen sink” approach can send you down the drain

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By Kirsty Manley

In Barnaby v Johnson [2019] EWHC 3344 (Ch), the defendant challenged her mother’s Will on four different grounds. This is a risky strategy for success, especially if you are lacking in evidence…

Mrs Bascoe died in 2015. She had four children. Her surviving son is the Claimant, Mr Barnaby. Her surviving daughter is Mrs Johnson, the Defendant.

Mrs Bascoe left a Will dated 27 April 2005. Mrs Johnson was left a legacy of £100 and the remainder of the estate was left to Mr Barnaby. If the 2005 Will was deemed invalid, Mrs Johnson would have received a legacy of £10,000 from Mrs Bascoe’s 1992 Will.

When drafting her Will, Mrs Bascoe left a note to explain why she had changed both of her daughters’ legacies so drastically. The note said they had “shown very little care and concern” towards her and they had “been rude, unpleasant and in some instances physically violent and abusive”.

The Claimant issued proceedings to have the 2005 Will authenticated. Mrs Johnson disputed the validity of this Will on four different grounds:

  1. Lack of testamentary capacity;
  2. Undue influence (by Mr Barnaby);
  3. Forgery of Mrs Bascoe’s signature; and
  4. Want of knowledge and approval.

Mrs Johnson did not seek any legal advice and she defended the proceedings as a litigant in person. The court found as follows and dismissed her case:

Testamentary capacity

“[Patricia Johnson] has adduced no credible evidence to cast doubt upon the testamentary capacity of her mother in 2005. She has not put before the court any expert evidence as would usually be expected in such a claim… in the absence of any expert or counter evidence, there can be no other conclusion other than Mrs Bascoe had testamentary capacity.” 

Undue influence

“Importantly, had there been any basis for her claim of undue influence by her brother, she could have done something at the time – she did not. Neither did she record her concerns… Accordingly, there is no evidence whatsoever to amount to undue influence.”

Forgery

“I dismiss without reservation the allegation of forgery. There is no basis for it and it should never have been made.”

Knowledge and approval

“I accept […] that Mrs Bascoe gave [her solicitor] instructions for the 2005 Will alone. Once it was drafted and ready for execution he read it out to her. She then the same day signed it in his offices but with a different solicitor and the receptionist as witnesses who themselves signed after she did. The evidence of all three of them is clear and compelling… the Claimants have proved Mrs Bascoe’s knowledge and approval of the 2005 Will through the evidence of those three witnesses.” 

Mrs Johnson had thrown everything and the kitchen sink at her defence and attempted to challenge on multiple grounds with weak evidence. The Judge criticised her approach by stating she “came nowhere near establishing the basis for any proper challenge” and her evidence was “contradictory, self-serving and deliberately misleading”.

A challenge to any Will is difficult and requires compelling and persuasive evidence. A legal team can assist you at an early stage to assess the strength and value of your evidence. Mrs Johnson did not obtain legal representation and this judgment clearly demonstrates the need for specialist legal advice before embarking on a claim to challenge a Will.

For further information, please contact kirsty.manley@twmsolicitors.com

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