Judicial sympathy: achieving just outcomes in contested probate cases

There is seemingly no common theme in the Chancery Division's recent crop of contentious probate cases, but a few decisions stand out which highlight judicial consistency. In addition to the usual disputes over execution of wills, judges have wrestled with the presumption against double portions, upheld a rare donatio mortis causa of land, and dealt with the laws of both India and Florida to bring much needed common sense to a claim which Walker J described, with remarkable restraint, as lacking in utility.

Presumption against double portions

In Re Frost (deceased) [2013] EWHC 435 (Ch), the High Court decided that despite the fact that two lifetime gifts made shortly before the death of the testator was roughly equivalent to what each donee could expect to receive by will, they were not in the character of portions.

Mr Frost made a will, in which he divided his estate between his three children: one share each to his two daughters, Linda and Susan, and one share to be distributed between his estranged son, Andrew, and Andrew's children.

Despite not expecting his estate to amount to much, shortly after making the will, he sold his only possession of value - a house, described by the judge as "extremely squalid" - which fetched the surprising amount of £353,480.

Never having this much money in his '¨life, he almost immediately gave his daughters £100,000 each, and died a few months later leaving it to the courts to decide whether that money should be brought into account as part of each daughter's share of the estate.

Whatever the mathematics of the situation might indicate, the judge found that the inter vivos gifts did not have the character of portions - they were made not in anticipation of the daughters receiving their share of the estate, but rather as recompense for the time and expense incurred by them in caring for the testator. Linda in particular expended a considerable amount of time and money in nursing Mr Frost through his last illness. The trouble is that most of this expense appears to have come after the gift was made.

The judge dealt with that by positing that Mr Frost must have realised that he would live with Linda and her family until he died, and expected Linda (a registered nurse) to take on the burden of caring for him.

It is difficult to escape the feeling that sympathy towards Linda, who took her father in and gave up her job to care for him, might have played some role in the judge's decision.

Gift of land

In Vallee v Birchwood [2013] EWHC 1449 (Ch) the High Court found that a valid donatio mortis causa of land had been made, despite the fact that the object of the gift - the donor's house - remained in his possession until his death, some four months later.

The donor, Mr Bogusz died in early December 2003 and left no will. He did, however, leave a daughter, Ms Vallee, who unfortunately then discovered that despite being his only child, she could not inherit his estate having been adopted by her father's friends when she was a child.

She asserted, however, that a valid donatio of the house (which was the main asset of the estate) was made by her father during her last visit prior to his death in August 2003. She argued that he parted with dominion over the house by handing her the key and the title deeds to it and telling her that he wanted her to have it, in contemplation of his impending demise which he correctly predicted to occur some time before her next visit at Christmas. The court agreed.

The only other decided case on a valid donatio of land is Sen v Headley [1991] 1 Ch 425, where the donor made the gift of a house from a hospital bed in which he expired three days later.

However, as the judge pointed out, modern case law does not demand that the donor did not have the opportunity to make a will, nor does it prescribe an amount of time between the gift and the death. Neither is parting with dominion the same as parting with possession, and there is nothing in law to stop a donor from enjoying the property in question after he has parted with dominion over it.

Whatever the merits of the legal argument might be, it seems to be stretching the definitions of both "impending death" and "parting with dominion" to claim that a house in which Mr Bogusz continued to reside for four months after purportedly giving it to his daughter could be the object of a valid "deathbed" gift.

One cannot help but feel that the inherent justice of Ms Vallee's claim together with a rather unsympathetic figure of her opponent - a so-called "heir hunter" who took on the administration in pursuit of financial gain - might have played some part swaying the court to her side of the argument.

Valid codicil

In Greaves v Stolkin [2013] EWHC 1140 the testator, having executed a will leaving his estate to one of his two sons in 2001, left informal instructions for provision to be made to his partner, Mrs Greaves. In 2007, despite having had solicitors acting for him for decades, he attempted to execute a home-made codicil to put that provision on a more formal footing, but he failed to sign it in front of attesting witnesses. This unfortunately led to the matter of provision being ultimately decided by the execution of a codicil in the hospital during the course of his last illness, when he may or may not have been suffering from delirium caused by a urinary tract infection. Unsurprisingly, this led to awkward questions being asked on the subject of his testamentary capacity. The medical experts, as per usual, were divided on the issue, and the medical records could be read either way.

Happily for Mrs Greaves, one of the attending solicitors was commendably thorough in both questioning the testator (using non-leading questions to satisfy himself of his capacity) and making a good note of the execution of the codicil. Save for the beneficiary son, the other witnesses of fact also gave evidence consistent with capacity at the time of execution, so despite both medical notes and contemporaneous e-mail correspondence indicating that the testator might have been confused for at least part of the day, the judge was able to find that the codicil was validly executed.

The case illustrates once again the difficulties of trying to find fault with testamentary documents prepared by independent professionals - a lesson '¨which, despite repeated statements by the judges that they will not readily upset dispositions made by such documents, disgruntled beneficiaries appear simply unwilling to learn.

Abuse of process

One must feel for the unfortunate settlor in Mahtani v Sippy [2013] EWHC 285 (Ch), for he had done everything in his power to agree with the main protagonists an "equitable and fair distribution" of his considerable wealth, with the stated aim of preventing legal disputes from erupting upon his death.

He went so far as to actually get his descendants' agreement to the settlement he created, a Family Arrangement subject to Indian law. Not only was he woefully unsuccessful in his goal, the dispute that did erupt when he died seems to be one of the most pointless quarrels the Chancery courts had ever had the misfortune to '¨deal with.

The purported claim was mainly for a declaration (which the court had no jurisdiction to make) in relation to a flat in Florida (which the defendants didn't own), and a mandatory injunction requiring the defendants to transfer said flat to the claimants (which under Floridian law, the defendants couldn't do).

One can only guess what really motivated this dispute - it could not have been inexpensive to run, particularly as it involved expert evidence on the laws of both India and Florida. The judgment makes interesting reading, if only because of the variety of inventive remedies sought by the claimant, but predictably enough the court agreed with Mrs Sippy, the second defendant, that the case ought to be struck out as an abuse of process.