The following is something of a pick and mix selection of contentious probate disputes of interest that were decided last year.
James v James [2018] EWHC 43 (Ch)
The claimant in James v James, in addition to bringing a proprietary estoppel claim, challenged the last will of his father, Charles, on the grounds of lack of testamentary capacity.
The contemporaneous medical evidence consisted of the following:
- Charles had been “not as formidable as he had once been” from about 2004 onwards. Although there was no diagnosis of dementia, there had been discussion with his GP about memory loss in January 2005.
- His GP records noted that he had attended his surgery on 21 September 2007 and repeated himself several times, although he said his memory was not causing him trouble.
- He was referred to the Community Mental Health team in October 2009 by his GP, who noted that he had been suffering for some years from “short-term memory loss and spells of quite profound confusion“. The Community Mental Health nurse reported back to his GP, after visiting Charles at home, noting that he had experienced problems with his memory for the last 3 years and could no longer manage the farm or drive a car, although he occasionally drove a tractor.
- His patient records from January 2010, when he was treated for a shoulder injury, record, under previous medical history, that Charles had dementia/Alzheimers but there was nothing to say whether or not this was a formal diagnosis by a medical professional, rather than a comment by an accompanying family member that had been noted down.
- A year after giving instructions for his last will, in May 2011, he was seen by a doctor specialising in old age psychiatry who made a diagnosis of “probable moderate dementia with frontal lobe impairment” and said he did not think Charles “has the basic capacity to make decisions about his health care, where he lives or his finances”.
In May 2010, Charles gave instructions for a new Will. He saw a new solicitor, Ms Thomas, who had not acted for him previously. He and his wife gave their instructions for their Wills together. The solicitor’s attendance note made no reference to capacity having been considered, although it recorded that she was confident that Charles understood everything.
On the date of execution of the Wills, on 16 September 2010, Ms Thomas saw Charles and his wife separately. Charles expressed reluctance to sign the Will and said he could see little point in it and appeared to be concerned that he would die if he signed the Will. The merits of the Wills and the objective of balancing provision between their children, in light of lifetime gifts that had been made to two of their three children, were discussed in the presence of his wife. Charles stated that all he wanted to do was to make sure that his wife was provided for. He said that she could have the lot, but that he appreciated that the balance needed to be redressed between the children. He said he would sign if his wife was happy with it and both he and his wife signed their Wills.
The evidence of the solicitor was that Charles was interactive and showed no signs of confusion or ill health at the three meetings she had had with him and that she did not therefore consider that a medical opinion was required. She was happy that he had sufficient capacity. She did accept that his behaviour at the meeting when the Wills were signed was unusual, but did not consider that he lacked capacity and observed that he was happy with the terms of the Will.
Two experts gave evidence in respect of Charles’ capacity at trial on the basis of examining the medical records and other documents. They both agreed that he had moderate dementia at the time of making his Will and both agreed that he sufficient capacity to understand the nature and consequences of the testamentary act and the nature of his estate, but disagreed on the question of whether or not he had the capacity to appreciate the claims of his children. Both experts agreed that the situation was not clear cut and it was of no surprise to either of them that the other disagreed.
HHJ Matthews considered that there was sufficient evidence to raise a real doubt about the capacity of Charles, such that it was for the propounders of the Will to demonstrate, on the balance of probabilities, that he satisfied all three limbs of the test in Banks v Goodfellow. He concluded that Charles did possess the requisite capacity and that the Will was accordingly valid:
“116. I have taken into account all the evidence before me, including that of the experts. I accept that the testator suffered from memory loss and confusion from time to time, and even some irrational behaviour. But there is also considerable evidence of normal behaviour and rational thought. I am particularly struck by the evidence of Ms Thomas (which I accept) that immediately before signing his will the testator “appreciated that the balance needed to be redressed between their three children”, and that she explained to the testator the values of property which the children had already had and might expect to have under the wills as drafted. It is also a fact of some importance that the terms of the wills as executed corresponded closely to the terms of the instructions for the wills originally given by the testator some months before, in May 2010. I also bear in mind that, compared to some cases, this testator had relatively few claims upon his inheritance to consider, namely those of his wife and his three adult and emancipated children, and a fairly straightforward (if nevertheless valuable) estate to dispose of, largely consisting of land close by to him which he had worked on during his life and knew well, and some cash or cash-equivalent investments. The simpler the estate and the fewer claimants, the less difficult it is to dispose of, and accordingly the less acute the faculties required to do so successfully.
- In my judgment… the will which the testator instructed to be drafted and which in substantially the same form he executed demonstrates a rational and balanced approach to the disposal of the testator’s estate, bearing in mind the transfers that had already been made in 2007 to Karen and in 2009 to Sam (following the dissolution of the partnership) and later to Sandra. Of course, if it had been shown that the testator promised to give particular land to Sam then, whether or not Sam relied to his detriment on that promise, that would be a matter to be taken into account in assessing how far the testator had capacity to appreciate the claims on his inheritance. But, as I have already held, there was no such promise or assurance given to Sam.”
The judgment on costs in James v James (case citation [2018] EWHC 242 (Ch)) is also of interest.
Parties often mistakenly proceed on the assumption that all costs will come out of the estate. That should not be assumed to be the case; probate claims will generally have the character of adversarial litigation and the usual rule is that the losing party will pay the costs.
There are exceptions to the usual costs rules that apply in contentious probate, as stated in the case of Spiers v English [1907] P 122 Sir Gorell Barnes P:
“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them.”
The second of the contentious probate costs exceptions outlined in Spiers v English was held to apply in James v James with the result that the parties were ordered to pay their own costs of the contentious probate claim – a good outcome for Sam who would otherwise have been ordered to pay the costs of the proceedings.
The defendants had sought an order that Sam should pay the costs of the proceedings on the basis that he had engaged in what they characterised as “distinctly adversarial” conduct. They argued that the claimant’s doubts as to the testator’s capacity were not reasonable but were firm beliefs founded on a false premise. HHJ Matthews considered that the claimant’s conduct did not go that far, stating as follows:
“In my judgment, this case does not go so far. I accept that the claimant had a strong belief in his entitlement to inherit from his father. But I do not accept that he pursued the challenge to the will at all costs. He pursued the challenge to the will because there was a reasonable basis for doing so. There was medical evidence and factual evidence tending to suggest that the testator’s capacity was doubtful. The expert medical evidence (on both sides) reinforced that view. The fact that the so-called “golden rule” was not followed was also significant. There being no contemporary medical evidence, all that was left was for the court to decide. In my judgment, it was reasonable for the claimant to pursue the will challenge, even though, at the end of the day I have held that the testator had capacity to make his will when in fact he made it.”
Payne v Payne [2018] EWCA Civ 985
This was a dispute between the deceased’s son, John, from his first marriage and his second wife. John contended that a homemade Will apparently drawn in 2012 was the deceased’s last Will and issued a claim seeking probate in solemn form in respect of that Will. Mrs Payne contended that a homemade Will drawn in 1998 was the deceased’s last Will and counterclaimed for the court to pronounce in favour of the 1998 Will.
The 1998 Will was signed by the testator but it was not signed as such by the witnesses. Instead, the witnesses had inserted their names in capital letters on the Will.
There were a number of lapses in the preparation and case management of the case:
- Mrs Payne had not lodged a witness statement of testamentary documents (contrary to CPR 57.5);
- The original copy of the 1998 Will had not been lodged and remained at the probate registry;
- The witnesses to the 1998 Will were not called and there was no evidence from them.
At first instance, the judge dismissed both the claim and counterclaim. The claim was dismissed on the basis that the presumption of due execution in relation to the 2012 Will was displaced “by the manifest untrustworthiness of the claimant’s witnesses”. The counterclaim was dismissed on the basis that merely filling in the names of the witness did not satisfy the need for the 1998 Will to be signed by the witnesses. The judge noted that she might have reached a contrary view had the witnesses to the 1998 Will given oral evidence, but in the absence of evidence from them, the evidence of due attestation was inadequate.
The matter was appealed to the Court of Appeal, by which date both parties were acting in person. Fresh evidence was admitted consisting of evidence from one of the witnesses to the 1998 Will.
Held on appeal
- 9(d), Wills Act 1837 (as amended), provides that no Will is validly attested unless “each witness either – (i) attests and signs the Will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
- Henderson LJ (giving the lead judgment) held that the word “sign” in the amended subsection meant the same as the word “subscribe” in the original wording of the Act. There was no requirement for a “signature” in the sense of an identifiable and probably unique personal mark as when signing a cheque or other formal document.
- Bearing in mind the strong public interest in valid testamentary dispositions being upheld, the judge ought to have concluded that she could not safely pronounce against the 1998 Will without the original being produced to the court and without an opportunity for evidence to be given by at least one of the attesting witnesses.
- On the facts, the 1998 Will read as a whole gave every appearance of being validly executed, which was consistent with the oral evidence of the attesting witness. Accordingly, it would be pronounced for in solemn form.
- It was emphasised that it is essential that the rule about testamentary documents in CPR 57.5 is adhered to so that the court has available to it as soon as possible the material necessary to decide whether the existing parties are the correct parties, whether new parties should be added and whether notice of proceedings should be served on non-parties In this case, inspection of the original 1998 Will revealed that each witnesses name had been written in different coloured ink, which supported the conclusion that each witness had indeed written their name in witnessing the testator’s signature.
Gupta v Gupta [2018] EWHC 1353 (Ch)
This was a dispute between siblings concerning the validity of the last will of their mother, Urmila Gupta, which made unequal provision between them. She had made only one will, which the claimant asserted was invalid for want of knowledge and approval.
The will had been drafted by a former solicitor, Ms Sheikh, who was struck off the roll in 2009, on the grounds of dishonesty, forgery and impropriety, and who, since that time, has embarked upon a campaign of vexatious litigation resulting in a General Civil Restraint Order in 2008 (renewed ever since). When initially approached to assist in the case, she responded with an “enormously long tirade” against the justice system, peppered with “individual accusations of corruption and dishonesty against most of the senior judiciary”. The will file was not available and it was necessary to call Ms Sheikh to give evidence at trial.
The contention that the deceased lacked knowledge and approval focused on four contentions:
- The alleged dominance of her husband, Laxmi;
- The deceased limited understanding and her inability to comprehend written / spoken English;
- The physical and mental conditions which the deceased suffered from; and
- The absence of any good reason as to why she would want to create a disparity in the benefits received by her three children under the Will.
Held (Charles Hollander QC)
- The judgment, whilst it establishes no new law, contains a helpful review of the law relating to the requirement that a testator must know and approve of the content of their will.
- The judge cited with approval the following summary from Theobald on Wills on the requirement of knowledge and approval:
“A testator must know and approve of the contents of his will. This is because a will must be the result of the testator’s own intelligence and volition, though its contents need not originate from the testator provided he understands and approves them. But a will is invalid if its contents originate from another person and the testator executes it in ignorance of its contents.”
- Traditionally, the courts have analysed the question of whether or not a testator has executed a will with knowledge and approval of the contents in two stages. The first stage is to ask whether the circumstances were such as to ‘excite suspicion’ on the part of the court. If so, the burden is on the propounder of the will to establish that the testator had known and had approved the contents of the will. At the second stage, the court will consider, having regard to the degree of suspicion raised, whether there is enough evidence to allay the suspicions raised.
- The modern approach to the question of knowledge and approval, following the decision of the Court of Appeal in Gill v Woodall[2010] EWCA Civ 1430, is for the court to consider as a single question: did the testator understand (a) what was in the will when he or she signed it and (b) what its effect would be. All of the relevant evidence must be considered, and the court must draw such inferences as it can from the totality of the material in reaching its decision as to whether or not the propounder of the will has proved that the testator knew and approved its contents. This approach was approved and adopted.
- On the specific factual allegations, the judge found:
- Dominance of her husband: Whilst there was evidence supporting the view that Laxmi was the head of a traditional, male centred family, the relationship between Laxmi and Urmila was a close and loving one. It was apparent that in some spheres, Urmila had real influence over him. Given their close relationship, the Judge considered that it would be astonishing if Laxmi had not discussed with Urmila the content of their mirror Wills before execution. Whilst Urmila might have been prepared to go along with Laxmi’s wishes, that was not, in the absence of undue influence, a suspicious circumstance – on the contrary, as Lord Neuberger had considered on the facts of Gill, it provides an explanation for the terms of the Will.
- Language skills: There was a conflict in the evidence regarding Urmila’s English language skills. Some of the witnesses gave evidence that Urmila had only a handful of English words. However, the grandchildren who had lived with her gave evidence of Urmila holding conversations with them in English. The conflict in the evidence could be resolved on the basis that Urmila would naturally have conversed in her first language, Hindi, with people who could understand Hindi and did not have the confidence to express herself in English in a group, whereas she would have no choice but to speak English with those of her grandchildren who did not speak Hindi. There was further evidence from her carers indicating that she had at least a modest understanding of the English language.
- Physical / mental illness: Whilst there was evidence that Urmila had suffered from a range of physical health problems and, later in her life, dementia. There were no real signs of dementia at the time that she made her Will. It had not been shown that any health issue impaired her ability to know and understand the content of her Will.
- Absence of any reason for the disparity in benefits: The Judge did not consider that there was anything in this point. It was inescapable that Laxmi sought to create a disparity in benefits between his children. His reasons remained a matter of speculation, however Ms Sheikh in correspondence with him had flagged the point to him and it was clear that this was a deliberate intention on his part. It was not surprising that Urmila went along with his wishes, as head of the family. Moreover, Urmila’s Indian Will also did not make equal provision for her children.
- The solicitor’s evidence was predictably extraordinary in many respects (e.g. refusing to acknowledge that Henderson J who had extended the GCRO was actually a judge) and the judge held that he could not accept her evidence unless corroborated by other evidence. He had also heard from her secretary, Ms Varsani, who had given evidence that Ms Sheikh’s practice was to explain the will before execution. In circumstances where he considered that he could place no reliance on her evidence in relation to execution and in the absence of a will file, Charles Hollander QC posed himself the following three logical possibilities for the purposes of testing the position:
- (1) Ms Sheikh and Ms Varsani’s evidence is correct, and that Ms Sheikh explained the material terms of the will to Urmila and/or Laxmi did so.
- (2) No explanation was given to Urmila and she executed a will that she did not understand or approve and Laxmi stood by and permitted her to do so.
- (3) Urmila executed her Will not caring what its contents were.
- In the light of the evidence he had heard, he concluded that he had no doubt that Urmila would not have executed a will if she did not understand and approve its terms, and had no doubt that Laxmi as a fundamentally decent loving husband would not have permitted her to do so. He did not think that Ms Varsani would have agreed to witness the Will if she thought that the deponent did not approve or understand it and, whatever might be said about Ms Sheikh now, did not think that she would have done so in 1998 either (observing that her correspondence suggested that she was anxious that her clients should understand the content of the Wills). There was evidence that Urmila had visited the solicitor’s offices twice, indicating that she had been involved in giving instructions and had not merely turned up to sign the Will.
- Accordingly, no suspicious circumstances had been demonstrated and the Will would be admitted to probate.
DNA testing: Anderson v Spencer [2018] EWHC Civ 100 and Nield-Moir v Freeman [2018] EWHC 299 Ch
Finally, two of the cases that I found to be most interesting last year concerned the power of the court to direct DNA testing after death.
Until recently, it was unclear whether or not the court had power to direct DNA testing to establish parentage after death. Where the parentage of a living person is in issue in proceedings, s.20 of the Family Law Reform Act 1969 (“FLRA”) provides power to direct that scientific testing should take place and samples should be provided for that purposes in proceedings where parentage is in issue. However, this statutory jurisdiction does not apply after the death of the putative parent.
Following the case of Anderson (a decision of Mr Justice Peter Jackson as he then was, which was confirmed this year on appeal to the Court of Appeal), it has now been established that the High Court’s inherent jurisdiction can be used to plug the gap.
Anderson is a case in which the court allowed DNA testing to take place posthumously where the claimant wanted to have his DNA tested against a sample from a deceased man, whom the claimant had cause to believe to be his father, to establish whether or not the claimant had a genetic predisposition to a rare type of bowl cancer.
HHJ Matthews held in Nield-Moir v Freeman that the jurisdiction could also be used to direct a living person to submit to DNA testing for the purposes of establishing whether or not the deceased was her father for succession reasons.
The decisions in Anderson v Spencer and Nield-Moir v Freeman both weigh firmly in favour of the conclusion that justice is best served by establishing the truth of a person’s parentage by scientific testing, instead of relying upon narrative evidence and concepts such as the presumption of legitimacy, which applies where a child is born in the course of a marriage. The cases raise some very interesting issues concerning human rights and the scope of the inherent jurisdiction and you can read more about them in the post I wrote about the cases last year.
