Codicils and consequences: Capacity, undue influence and proprietary estoppel in Maile v Maile

In a somewhat unusual case, marked by intergenerational tensions and shifting testamentary intentions, the recent High Court decision in Maile v Maile EWHC 2494 (Ch) underscores key evidentiary and strategic pitfalls to avoid, particularly where testamentary capacity, undue influence and equitable expectations are concerned.

Unlike the more typical inheritance disputes between parents and children, this case involved a claim brought by the deceased’s grandsons against their late grandmother’s estate. One of the deceased’s daughters, Sheila Kempthorne, was both a beneficiary and the executrix of the estate and hence was the main defendant to the claim.

The deceased owned a substantial family farm in Devon. The claimants (her grandsons) had lived and worked on the farm for much of their lives. Their mother and the second daughter of the deceased, Ruth Maile, also lived at the farmhouse and acted as the deceased’s primary carer, while the executrix lived nearby. In 2011, the deceased made a codicil amending a 2006 will, leaving her family farm to the claimants. This was however revised again in 2016 and 2017, which reinstated the original equal division of the estate between the deceased’s two daughters.

Following the deceased’s death in 2020, and shortly after the grant of probate, the claimants raised the following alternative claims:

• The deceased had made repeated promises she would leave them the farm in her will, and that they had relied on these to their detriment: working on the farm for little to no pay, investing their own funds and foregoing lucrative opportunities.
• The deceased lacked the mental capacity to make both the 2016 and 2017 codicils and so they were invalid.
• The deceased did not understand what she was signing in 2016 and 2017 and had not approved the contents of those codicils.
• The executrix and (very unusually) the deceased’s solicitor exercised undue influence during the preparation of the 2016 and 2017 codicils. As a result, those codicils should be set aside.

The claimants had entered a formal partnership with the deceased in 2015, which included an option to purchase the farm upon her death. However, they did not exercise that option at any point. Their claims were actively supported by their mother Ruth, who also gave evidence.

Sheila denied all claims and counterclaimed for possession of the farm and mesne profits, arguing that the claimants and their parents had continued to occupy the property unlawfully following the deceased’s death.

Proprietary estoppel

The doctrine of proprietary estoppel featured heavily in Maile v Maile and is frequently a common feature of inheritance disputes involving agricultural assets.

Proprietary estoppel is an equitable remedy that prevents a property owner from reneging on a promise or assurance about rights to land or property (hence why it is often a feature of farm inheritance disputes). To succeed in a claim, three elements must be proven: an assurance (a promise), reliance (the claimant must have acted based on that promise) and detriment (because of the promise, the claimant must show they suffered a loss or disadvantage). If these elements are established, the court may make an award to the claimant. This could be an outright transfer of the property in question, compensation or sometimes a right for the claimant to reside in the property.

The decision

In Maile, the judge rejected all the claims and allowed the counter claim by Sheila. The court found that the deceased had testamentary capacity when executing the 2016 and 2017 codicils and had understood and approved their contents. The judge placed particular weight on the solicitor’s detailed attendance notes and the absence of any medical evidence (including from the claimants’ own experts) suggesting incapacity. The undue influence claim was rejected outright as being pursued without conviction or evidence. As for proprietary estoppel, the claimants were unable to establish any clear or unequivocal assurances from the deceased, nor did they demonstrate that they had relied on any such promises to their detriment. In fact, the court noted that they continued to live and work on the farm after learning of the codicil changes, undermining their case on reliance and detriment.

Practical takeaways

Forgetfulness or confusion is not lack of capacity

The judge adhered to the principles from Banks v Goodfellow [1870], reaffirming that part of the test for testamentary capacity is whether the testator is able to understand the nature and effect of a will or codicil. The claimants relied, amongst others, on covert recordings of the deceased speaking to her solicitor in 2016 which seemed to indicate some degree of confusion about the 2016 codicil, but the judge found these insufficient to demonstrate incapacity. The judge interpreted this indecision as evidence of ongoing reflection and a desire to avoid upsetting close family members, indicating that the deceased understood the documents in front of her, if not every finer detail of them. Mere confusion, stemming from doubt or forgetfulness, was not sufficient to establish a lack of capacity.

Undue influence, a point to argue carefully

The judge drew on the recent Rea v Rea [2024] decision, applying the higher threshold of “nothing short of coercion on the balance of probabilities” to reject the claimant’s’ assertion of undue influence against the executrix and the deceased’s solicitor.  Moreover, the judge emphatically criticised the idea of the claimants using undue influence as a fall-back position. Undue influence, especially if it pertains to a solicitor, is a serious accusation to be pursued only with conviction.  As such, claimants should ensure that any undue influence claim is well argued, evidenced, and most importantly, the central plank of a case.

Good attendance notes are crucial evidence

In rejecting the probate claim, the judge placed significant weight on the solicitor’s attendance notes from meetings with the deceased, recommending their accuracy, clarity and neutrality in recording the deceased’s state of mind. The judgment underscores a key lesson for practitioners: in contentious probate, a well-prepared and maintained attendance note can be decisive. It not only evidences the testator’s capacity and intentions but also protects the solicitor from unfounded allegations. In cases involving elderly or vulnerable clients, detailed notes may be the best defence against future litigation.

Assurances for proprietary estoppel must be unequivocal

Drawing on recent cases such as Horsford v Horsford and Gladstone v White, the judge reminded the parties that any representation by a testator must be clear and have an element of immutability. The fact the claimants were second rather than first generation descendants played against them: vague statements such as “one day this will all be yours” indicated a general and vague intention, rather than a specific plan, as the claimants could eventually inherit the farm from their mother and aunt. In inheritance contexts, actionable assurances must convey a direct and immediate intention to confer property, not a future possibility contingent on other family dynamics.

Proprietary estoppel can be contracted out of:

In Maile, the defence barrister drew on virtually identical facts in Horsford v Horsford to argue that the claimants had relinquished their estoppel rights through the partnership agreement with the deceased. The agreement provided them with several rights and advantages, notably the option to buy the deceased’s farm on death. Once this formal agreement was signed, it became the governing legal framework between the parties, replacing any informal promises. This is a crucial point to consider for any potential proprietary estoppel claims, as many agricultural estates involve a partnership of some form. An equitable remedy might not be available if it is directly contradicted by a formal written provision.