Will conspiracies require civil standard of proof

Conspiracies to suppress a will must be proved to the civil, rather than criminal, standard of proof, the High Court has decided.

The case involved the girlfriend of a CAB manager in Surrey, who failed to prove that his children and brother had formed a conspiracy to suppress a will in her favour.

Giving judgment at the High Court in Ferneley v Napier and others [2010] EWHC 3345 (Ch), Mr Justice Mann ruled that the girlfriend's 'serious allegations' should be proved to the civil standard.

The court heard that Charles Napier, manager of Spelthorne CAB, met Rowena Ferneley when she joined the neighbouring volunteer bureau.

Napier died of cancer in 2008, having recently bought a cottage on the Isle of Wight. His family did not know whether or not he had left a will.

A search party consisting of Napier's brother, Derrick, and his girlfriend, his son Stephen and his wife went to the Isle of Wight to try and find one.

Ferneley told the court that two wills had been found, one of them leaving everything to her. The defendants said that only one will had been found, leaving most of his property to Napier's former mistress, but it was unsigned.

An electrician who was in the house at the time of the search and overheard a conversation about the contents of a will gave evidence in favour of the claimant.

Mann J said that Stephen Napier, a major in the Parachute regiment, was from time to time a witness who 'gave evidence that it is difficult to accept he gave accurately or honestly'.

Ferneley argued that she and Charles Napier 'planned a life together' but decided not to leave her husband and move into his bungalow in Ashford. She told the court that Napier promised he had left everything to her.

Mann J said Ferneley's 'serious allegations' required an appropriately high level of proof 'albeit still on the balance of probabilities'.

Mr Justice Mann said he did not think all the necessary conspirators would be 'capable of or willing to enter' into the conspiracy which would be required for Ferneley to succeed.

'The suppression conspiracy has not been sufficiently established, and I am not satisfied that the relevant standard of proof applicable to a finding of a missing valid will has been reached either.

'There are unexplained facts on each side of the case, whatever hypothesis one is testing, but the question for me is whether the claimant has proved her case to a sufficient standard. I find that she has not.'

Mann J concluded that the search party had found a draft will on the Isle of Wight, read and overheard by the electrician, but not an executed will in favour of Ferneley.

However, Mann J said the evidence about Napier's character and concern about wills made it likely that there was a valid will somewhere.

He dismissed the girlfriend's claim to prove a 2007 will. However, he did not pronounce in favour of an intestacy.

Sian Hodgson, solicitor at Penningtons in Basingstoke, acted for the defendants.

She said it was very rare for allegations of conspiracy regarding wills to go to trial.

'Because they rarely go to court, there is not a huge amount of case law,' she said. 'The case is helpful in clarifying which standard of proof applies in cases like this.'

Hodgson said that, following the judgment, the court had ordered that all the beneficiaries mentioned in the draft will should be contacted and given six weeks to provide evidence of a valid will in their favour.

Failing that, Hodgson said she would apply for a declaration of intestacy and the estate would pass to the children.