Chalik v Chalik

The case of Chalik v Chalik involved a contest over the validity of a will that excluded the second of two sons. The deceased, who had struggled with memory and self-care, created a brief and simple will with the assistance of a solicitor who did not speak English or her native language. The first son, who was the deceased's live-in carer, was dominant and controlling, leading to questions about whether he exerted undue influence on the deceased. The court had to determine the testamentary capacity of the deceased, the enforceability of an unattested deed of loan, and whether the first son's withdrawals from the deceased's estate were loans or improper withdrawals. Additionally, the court had to consider a family provision claim by the second son, who argued that the will was invalid and sought final provision from the estate.

The legal issues in this case centred around the deceased's testamentary capacity, the enforceability of the unattested deed of loan, and the nature of the first son's withdrawals from the deceased's estate. The court had to weigh the expert report on the deceased's capacity against the evidence of the solicitor who drafted the will. The court also had to consider whether the circumstances allowed for an inference of pressure or coercion, distinguishing between undue influence in probate and equity. In terms of the unattested deed of loan, the court had to determine whether it was enforceable as a contract, considering factors such as consideration, payment, and intention to create legal relations. Finally, the court had to decide whether the first son's withdrawals were loans or improper withdrawals, given his role as the deceased's guardian and power of attorney.

The court found that the deceased had testamentary capacity, despite her memory struggles, as there was no significant cognitive decline demonstrated in the evidence. The expert report was given less weight due to the solicitor's lack of knowledge and approval, and the simplicity of the will. The unattested deed of loan was not enforceable due to the absence of consideration and payment, and the court found that the first son's withdrawals were improper, not loans. The family provision claim was dismissed as the proceedings were not commenced within the time limit, and the court found that the first son's dominant and controlling behaviour did not amount to undue influence.

The final orders of the court were that the will was valid, the unattested deed of loan was not enforceable, and the first son's withdrawals from the deceased's estate were improper. The family provision claim was dismissed, and no order was made for final provision to the second son.