Bateman v Overy and Overy  EWHC 432 (Ch) (John Male QC sitting as a Deputy High Court Judge)
Summary and comment
We do not formally provide a case note upon this case relating to (inter alia) testamentary capacity, which is highly fact-specific, but note the decision of the Deputy High Court Judge upon the approach to be adopted to the determination of testamentary capacity. Counsel for the Claimant contended that the agreed medical expert evidence raises a real doubt about capacity and that this shifts the evidential burden on to the Defendants as propounders of the will. In so doing, he relied upon the well-known summary of the relevant principles by Briggs J in Key v Key
 EWHC 405 (Ch) at paragraph 97:
“97. The burden of proof in relation to testamentary capacity is subject to the following rules:
- While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.
- In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
- If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.
See Generally Ledger v. Wootton  EWHC 2599 (Ch) per HHJ Norris QC at paragraph 5.”
Counsel for the Defendants sought to rely upon what he said was the rather approach of the different approach of the Court of Appeal in Hawes v Burgess  EWCA Civ 74. He relied upon the following passages from the judgment of Mummery LJ:
“13…. [t]he court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed.
14. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law; the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.”
The Deputy High Court Judge rejected the suggestion advanced by Counsel for the Defendants, and proceeded in accordance with the approach set out in Key v Key. At paragraph 138, he held that, as he “read the earlier paragraphs 11 and 12 in Mummery LJ's judgment in Hawes, the passages cited by Mr Lonsdale deal with more general matters rather than with the specific issue of testamentary capacity. So, I will apply the approach set out by Briggs J in Key v. Key. However, I will step back at the very end of what I say on the issues about the 2011 will and test my conclusions against Mummery LJ's more general remarks.”