James v James (2018) Case summary

In this article, Rothley Law, explores the legal action that hit headlines in respect of proceedings being brought by Sam James (“Sam”) against his late father’s estate.
The case highlights the complexities of will disputes.

The Facts

On the facts publically available:

  • Allen James (“Deceased”) executed a Will in 2010 which disinherited his son Sam in favour of his wife and daughters;
  • The Deceased had been suffering from dementia for a number of years;
  • Sam claims that the will is invalid as a result of the Deceased lacking testamentary capacity and being subject to pressure.

Grounds of challenge

From media reports, the claim appears to have focused on the fact that the Deceased had dementia for a number of years prior to when he made the 2010 Will. As a result, Sam argued that the Will is invalid on the ground of lack of capacity in accordance with the leading case of Banks v Goodfellow. From our experience, a formal diagnosis of a mental illness is a helpful indicator of lack of capacity, but it is far from conclusive. The case law in this area shows that careful consideration must be given to the deceased’s condition on the actual day and time of making the Will. Capacity can fluctuate.  In the recent case of Burns v Burns [2016] EWCA Civ 37 the testatrix who had moderate dementia was held to have capacity.  Recent cases tend to show that judges will give greater weight to the evidence of the will writer and those who can offer contemporaneous evidence of capacity.

It is for that reason that practitioners involved in preparing a Will for an aged testator, or, as in this case, a testator with a diagnosed capacity condition, must have regard to the “golden rule” and ensure detailed file notes are kept and a referral to a suitably qualified medical practitioner is made (this will often not be the GP). If available, this evidence will be of significant importance in this case.

As indicated in the media reports, it is also likely that Sam argued that his father was subject to undue influence. This ground of challenge is hard to prove as the Claimant must prove coercion. On the facts of this case, it appears that Sam believed his father was being pressured by his wife and that his wife had previously intercepted another version of his father’s will and had him sign the version in dispute. These facts may be consistent with a claim for undue influence, but from our experience the difficulty is proving these facts with documentary evidence as often matters take place behind closed doors.


We see a lot of Will validly cases, but it is relatively rare for such cases to go before a court. This is due to the adverse cost risks and the fact that such private family matters are then opened up to the public. Mediation is often considered the best venue for these type of case to be resolved due to its informal and confidential structure.

As an alternative to disputing a Will, it is often helpful to consider making a claim against a particular asset by arguing that it effectively passes outside the estate. In this particular case there was a clear tone in the media reports that Sam considered that he was entitled to the Farm by virtue of promises made to him by the Deceased and due to the fact he committed many hours in managing the business.

Such claims give rise to arguments of proprietary estoppel and these facts should always be considered as an alternative to challenging the will directly.

The judgment in this case is not yet available so it remains to be seen how the court will resolve the issues in dispute and the cost order that will be made.