Contentious probate update

In recent years there have been numerous contentious probate claims fought out both at first instance and in the Court of Appeal. Only last month saw a probate case decided by the Supreme Court.

Notwithstanding that the principles applicable to such claims are often derived from cases of some antiquity (often decided by the ecclesiastical courts), how those principles should be applied continues to occupy the time of the Chancery Division and the appellate courts.

Due execution

The problem of what happens when testators make wills at the same time, but each signs the wrong one, was explored by the Supreme Court in Marley v Rawlings [2014] UKSC 2.

A couple made mirror wills and mistakenly executed the will of the other. At first instance and in the Court of Appeal it was held that this defect could not be remedied by rectification because the document was not a ‘will’ within the meaning of section 20 of the Administration of Justice Act 1982 because it did not comply with section 9 of the Wills Act.

Section 9(a) provides that a will is valid if it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and section 9(b) states that it must appear that the testator intended by his signature to give effect to the will.

The Supreme Court rejected the arguments
that had found favour with the courts below and instead rectified the will so that it read as the will of Mr Rawlings.

Lord Neuberger considered that section 20 of the Administration of Justice Act 1982 applied because the mistake was a “clerical error” of perhaps the most obvious kind. The decision was a triumph for common sense, but also consistent with legal principle.

Forgery

There have been numerous forgery cases recently. All probate cases are intensively fact sensitive,
but none more so than those where there is
an allegation the signature of the testator has been forged.

The burden of proof is still the civil standard, but because forgery is inherently improbable, there is a high bar to establishing it. Handwriting evidence from a forensic document examiner is almost always required, but it will never be conclusive.

In Re Gale [2010] EWHC 1575 (Ch) a codicil was found as a result of forensic examination to have been backdated to a date on which the testatrix was likely to have had capacity.

In Haider v Syed [2013] EWHC 3917 it was the facts surrounding the execution of an alleged will in India which the court found sufficiently incredible that it refused to admit the will to probate. The expert evidence there proved conclusive.

In Watts v Watts [2014] EWHC 668 (Ch) one of the witnesses who said she did not see the deceased sign but did see her son was believed.

On the other hand, in Salmon v Williams-Reid [2010] EWHC 1315, the fact that there was only inconclusive evidence from the joint expert and no supporting evidence was not enough and in Re Christou [2014] EWHC 79 (Ch) the judge believed the solicitor who said he had instructions for the will and the witnesses to the will.

Capacity

Most challenges to wills proceed on the basis
that the testatrix lacked capacity. However, there has been a warning shot from the Court of Appeal in Burgess v Hawes [2013] EWCA Civ 94. “My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity,
a will that has been drafted by an experienced independent lawyer.

“If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity.

“The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.”

There does appear to be a strong desire on the part of courts to uphold wills, even those made by a testator suffering from dementia and where no solicitor or doctor has been involved, and the court found that the testatrix was not capable of remembering the reasoning for the terms of her previous wills, as was the case in Simon v Byford [2014] EWCA Civ 280.

However, sometimes the court is not convinced of capacity as was the case in Markou v Goodwin [2013] EWHC 4570 (Ch). The case was notable because those propounding the will relied on the rule in Parker v Felgate (1883) 8 PD 171 to the effect that a will is valid if the testator has testamentary capacity at the time when he gives instructions for the preparation of the will to the will draftsman,
the will is prepared in accordance with those instructions and the testator, when he executes
the will, is capable of understanding that he is executing a will for which he has given instructions.

Attempts to kill off the rule failed a few years ago in Perrins v Holland [2011] Ch 270

Want of knowledge

The Court of Appeal in Gill v Woodall and the RSPCA [2011] Ch 380 has recently explained knowledge and approval as meaning that the will must represent the testamentary intentions of the testator. It also advocated approaching the matter in a holistic way assessing all the evidence, rather than adopting the two-stage approach traditionally employed by the courts of seeing whether there are circumstances that arouse the suspicion of the court and then whether those suspicions have been dispelled.

This approach was applied by Norris J in Wharton v Bancroft [2012] EWHC 91 (Ch), but
not by the Court of Appeal in Burgess v Hawes,
a point noted by Newey J in Greaves v Stolkin [2013] EWHC 1140 (Ch).

Undue influence

It is traditional wisdom among probate practitioners that a plea of undue influence is unlikely to succeed. Unlike attacks on lifetime gifts procured by undue influence, there is no presumption applicable – something Proudman J pointed out in Hubbard v Scott [2011] EWHC 2750.

However, the plea succeeded in Schrader v Schrader [2013] EWHC 466 (Ch). There the judge was prepared to infer from the surrounding circumstances that the will had been procured by the undue influence of a son over his mother. Whether the case surmounted the very high hurdle for proving undue influence set by the case of Re Edwards [2007] EWHC 1119 (Ch) that the facts have to be inconsistent with any other hypothesis is perhaps debatable. SJ