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Couwenbergh v Valkova [2008]

This case is a long delayed probate retrial concerning which of three Wills should be admitted to probate in respect of the estate of Alice Adam. In 1978 Mrs. Adam executed the first of the Wills under which she appointed Mr Couwenbergh her executor and, after a £500 legacy to her brother Eugen, left the remainder of her estate in equal shares to Eugen's two
sons, his daughter Barbara (i.e. to her two
nephews and niece) and to Mr Couwenbergh. There was no issue concerning the validity of that Will, the original of which had gone missing.
The question raised during the case was
whether the 1978 Will was revoked by one or other of the two Wills executed in October 1990. By the first of those Wills, dated 19 October 1990, Mrs Adam gave the whole of her estate to Dr Valkova whom she appointed to be her executrix. The gift was conditional on Dr Valkova surviving Mrs Adam by 28 days, failing
which she gave the whole of her estate to Dr Valkova's younger sister. The Will was
incorrectly witnessed and the solicitor who
prepared the document, Mr Browne, prepared a fresh engrossment of it. This later Will was dated 24 October 1990. It bears the signatures of two Italian brothers as attesting witnesses. Material to these events is that Mr Browne was
not present at the time of the execution of
either Will; indeed, and surprisingly, he never saw Mrs Adam but took her and provided the engrossed copies of the two Wills entirely through Dr Valkova.
When Mrs Adam died the claimant challenged the 1990 Wills in what was to be a seventeen year legal battle.
The 1990 Wills were challenged on three
1. Incorrect execution by Mrs Adams according to the formalities in the Wills Act 1837.
2. Testamentary incapacity of Mrs Adams i.e. she lacked the capacity to be making a Will at that time.
3. That Mrs Adams did not know and did not approve of the Will’s contents.

Whilst the court dismissed a claim that the
latest Will was incorrectly executed, the court did hold it to be invalid as Mrs Adams lacked capacity at the time of execution. Mrs Adams was assessed before her death to be increasingly physically immobile and most
importantly to have had moderate to severe dementia. According to the claimant, Mrs Adams frequently had difficulties recognising persons who should have been familiar to her,
including himself. Justice Blackburne stated in his judgement that
“the law does not call for a perfectly balanced mind, nor is a Will to be pronounced against merely because the testator was moved by capricious, frivolous, mean or even bad motives. If the Will appears rational on its face
and is executed correctly then the court will presume that the testator was mentally
competent. The burden of proof then rests on the parties seeking to challenge testamentary capacity to provide evidence on such. But once there is evidence before the court which
credibly calls capacity into doubt, the burden then shifts back to the party seeking to uphold the Will to adduce evidence to the contrary. Given the obvious mental health of Mrs Adams,
the burden therefore rested on Dr Valkova to demonstrate capacity.
Justice Blackburne held that on the facts, Dr Valkova had failed to overcome this burden and Mrs Adam clearly lacked the testamentary capacity to execute the 1990 Wills.

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