WILLS THAT WHIFF CONTENTIOUS PROBATE
AND RELATED ISSUES
Introduction
In this lecture we will consider some of the problems that can arise with wills and
some of the solutions. It is important to bear in mind that there is often more than
one solution, with the Inheritance (Provision for Family and Dependants) Act 1975
(as amended by the Inheritance and Trustees Powers Act 2014, which will take
effect from 1st October 2014 1 ) offering another simpler procedure. This lecture
does not deal with the 1975 Act but an earlier lecture given by me this year deals
with the position of Spouses, a copy is available from Zoe.
Funeral Arrangements
No one owns a dead body Reg.-v-Sharpe (1857) 26 LJMC 47. (Williams-v-
Williams inf) There exists on the executor and presumably by implication the
Administrator 2 a duty and right to arrange disposal which apparently arises at
common law. This seems to give rise to a right to possession of the body. The right
extends to those entitled to a grant even if they have not taken one out, and in the
same order, Holtham-v-Arnold (1985) 2 BMLR 123. In the case of minor children
1
The principle areas of change for this legislation are in relation to the position of the spouse on
Intestacy (no more life interest, enlarged specified sum in place of the former legacy and changed
definition of personal chattels) and under the IHA 1975, where Child of “the marriage or CP” is
broadened to include less formal relationships, at the same time the definition of a dependent is
also broadened so that it does not have to be so one sided.
2
You would have to be quick with that grant though.
then the parents have the duty and right to act, Clarke –v-London General
Omnibus Co Limited [1906] 2 KB 648.
Failing their acting anyone living with the deceased prior to the death
(householders) owes that duty and if the deceased was alone then the local
authority, or the hospital if death took place there. In Lewisham NHS Trust-v-
Hamuth [2006] All ER Defendant 145 the common law duties were recognised and
where there was a probate dispute which had prevented the executor named in
the disputed will taking out a grant the hospital was deemed entitled to arrange the
funeral even though the form it might take was not that wished by the deceased in
his will. The putative executor therefore was not able to prevent a burial. It was thus
also in Laing-v-John Poyser [2012] EWCA 1240.
If no one else then the local authority.
In general a testators wishes do not bind the executors Williams-v-Williams (1882)
20 ChD 659, Buchanan-v-Milton [1999] FLR 844. However this was thought
doubted in Borrows-v-HM Coroner for Preston [2008] EWHC 1387 where Art 8 of
the ECHR was held to be engaged in relation to the wishes of the deceased.
Subsequently Ibuna-v-Arroyo [2012] EWHC 428 has rejected the application of the
ECHR to dead persons.
A person may consent to the removal of organs at any point prior to death in writing
or indeed orally during his last illness. Obviously this will not apply where there is to
be an inquest unless the coroner directs.
Disposal of a body can only be done by a licensed operator under the Control of
Pollution Act 1974 and the Environmental Protection Act 1990, but subject to that it
is not necessary to have planning permission to be buried in your back garden (it is
thought), although permission would certainly be required for more than two.
Consider a certificate of lawfulness.
The Cremation (Amendment) Regulations 2000 now mean that body parts returned
after burial can be cremated, and do not have to be buried with the body.
Cremation was always lawful it turned out in R-v-Price (1884) 12 QBD 247. The
Cremation Acts 1902 to 1952 required that Cremation took place within a building
but a walled enclosure was a “building” for a cremation said the CA in Ex P Ghai
[2011] 5913
You can apply to the Court, where persons equally entitled, argue over how the
body should be disposed of Fessi-v-Whitmore [1999] 1 FLR 767. (Parents arguing
over disposal of 12 year old, where a gruesome if Solomonic proposed solution did
not find judicial favour). Hartshorne-v-Gardener 2008 2 FLR 1681. Factors will
include, wishes of the deceased, closest connection, wishes of friends and family,
generally common sense. In Hartshorne, it was said that the Court should act in a
similar way as it would in relation to disputes between trustees.
Equitable Claims in the Context of The Death
These are not contentious probate claims, but an action against the PRs as
representing the Deceased4. Once again if you are a PR and have a claim, you
should stand down, if there are no PRs to sue, consider applying to court for them
to be appointed.
Typically these may consist of allegations of constructive trust, resulting trust or
estoppels. The effect of all of these is to remove property from the estate by the
Claimant saying that the property belongs to him and not the estate. They are most
relevant for the purposes of probate and offer a route where by the “back door” oral
wills become possible.
3
Presumably not what Pharell meant by a room without a roof.
Proprietary Estoppel
This sometimes arises in situations where the deceased has promised the
Claimant that “all this will be yours after my days” or has made some other kind of
promise in relation to goods, land, choses in action, or other property5. For some
reasons these cases often seem to involve farms 6 . The Leading Case is now
Thorner-v-Major [2009] UKHL 18.
Such a promise, or even such a belief encouraged or acquiesced in by the
Deceased can ground a proprietary estoppel claim, as long as the Claimant has
acted in reliance to his detriment as in Re Basham [1986] 1 WLR 1498. Gillett-v-
Holt [2001] CH 110. The reliance on the promise must be a reasonable reliance.
However the promise need not be the only reason why the Promisee acts to his
detriment. (Wayling, inf).
We can start this interesting and difficult topic by looking at some of the cases
which have had particular reference to probate. The principles however are very
similar to those which are found in inter vivos examples of Proprietary Estoppel and
so we will examine those also. We need to look at how you establish the interest
and then how you quantify it. In terms of how you establish it there are two principle
requirements first the assurance or promise and second the detrimental reliance.
Establishing the Interest- the Assurance7
Proving the Conduct or words which have created the belief
Typically and usually such a case is based upon assurances made by the
deceased or owner of the property in question to the Claimant. Obviously if the
5
Proprietary estoppel is not limited to realty e.g. Re Foster, Hudson-v-Foster [1938] 3 All ER 357.
Davies-v-Davies 2014 CA is another one, adds nothing new.
7
Just to repeat myself, it doesn’t have to be an assurance sometimes silence in the face of a
mistake as to legal rights made by the Claimant will be enough. See Aspden-v-Levy [2012] EWHC
1387.
6
Court having heard the evidence, or more rarely having considered statements,
does not believe the Claimant then the case will fail Gordon v Mitchell and Gordon
[2007] EWHC 1854 (Ch)
In that case the claimant (G) applied for an order to enable him to realise his
purported interest in a garage under the doctrine of proprietary estoppel. G had
been living with the first defendant stepfather (S), second defendant mother (M)
and third defendant older brother (B). S had owned a garage where he and B
worked as mechanics, before he bought a new garage. G alleged that he had left
school at the age of 13 and had worked in both the old and the new garage, while
the defendants insisted that G had only ever worked in the new garage. G also
claimed that S had given him and B an assurance that, in return for their both
working hard in the new garage on low wages, they would acquire a share in the
garage when he retired. G further alleged that when they complained about their
low wages, they were given general assurances that the garage would be theirs
one day. S denied that he had made an assurance to G or B about transferring the
garage to them. There were also further disputes between G and the defendants
as to the facts of various events. G ceased employment with the garage.
He issued proceedings to claim his purported interest. G submitted that S had
made a specific assurance to him that he would receive shared control of the
garage on the basis that he accepted a lower wage, and that such an assurance
fulfilled the prerequisites of the doctrine of equitable proprietary estoppel. G also
argued that he had received further general assurances about the garage.
The Court held that the burden of proof of establishing that such assurances had
been given lay with G. However, it was clear that G had deliberately misled the
court on certain issues, namely what age he left school and started working at the
garage, and where his evidence conflicted with that of the defendants, it was to be
rejected. Therefore, it was accepted that S had not made an assurance to G that
he would be given shared control of the garage on S's retirement, whilst any other
assurances did no more than suggest that the garage might one day pass to G
under the terms of S's will. As a result, G had failed to establish that he had
received any assurances that satisfied the test under the proprietary estoppel
doctrine and he was not entitled to a share in the garage.
Thus a Claimant in such a case has to prove that what was said to him was
actually said and moreover the Court will carefully scrutinise what was said by
whom, where and when.
From a practical perspective, you need when preparing these sorts of cases to set
out in detail the words that were used, what they were meant to mean and what
they were understood to mean, in some cases it will be obvious in others less so.
Corroboration is important, where third parties heard the conversations or
assurances you need to call them in every case. The Court may draw adverse
inferences from the failure to call witnesses who could have corroborated what the
Claimant says.
The quality of the words used
One of the leading cases is Coombes-v-Smith 1987 1 FLR 352 [1986] 1 WLR 808
where Mr Jonathan Parker QC as he then was said
“For a statement of the relevant principles applicable to the doctrine of
estoppel by acquiescence, I refer to the much-cited passage in the judgment of
Fry J in Willmott v Barber (1880) 15 ChD 96, quoted by Scarman LJ in Crabb v
Arun District Council at p. 194E in the report of the latter case, where Fry J lists
the five elements or requisites necessary to establish the required degree of
fraud or unconscionableness, as follows:
1. The plaintiff must have made a mistake as to his legal rights.
2. The plaintiff must have expended some money or done some act on the faith
of his mistaken belief.
3. The defendant must know of the existence of his own right which is in
consistent with the right claimed by the plaintiff.
4. The defendant must know of the plaintiff's mistaken belief in his right.
5. The defendant must have encouraged the plaintiff in the expenditure of
money, or in the other acts which he has done, either directly or by
abstaining from asserting his legal right.
It is implicit in Fry J's analysis that the act or acts done by the plaintiff on the
faith of his mistaken belief, the doing of which has been encouraged by the
defendant, must be acts by which the plaintiff has prejudiced himself or acted
to his detriment - see per Dunn LJ in Greasley v Cooke at p. 1314, where he
said:
'There is no doubt that for proprietary estoppel to arise the person claiming
must have incurred expenditure or otherwise have prejudiced himself or
acted to his detriment.'
Such a representation must usually be a clear one that the party seeking the equity
will obtain rights in relation to property which is specific, or at least is understood in
specific terms in return for the doing of things which will amount to a detrimental
reliance. Once again Coombes-v-Smith is relevant, a similar promise of “always
having a roof over your head” was made there but as Mr Jonathan Parker QC
observed it was not enough “In the first place, there were in the instant case no
words of gift. The defendant never said (as did the plaintiff in Pascoe v Turner): 'The
house is yours and everything in it'. Believing such a statement would clearly give
rise to a mistake as to legal rights. Secondly, in Pascoe v Turner the judge found
that the plaintiff as donor stood by knowingly while the defendant improved the
property thinking it was hers. No comparable finding is open to me in the instant
case.” At 363.
This was followed in similar vein by the case of Lissmore-v-Downing [2003] 2 FLR
308 in which the claimant, Miss Lissimore, lived for almost 8 years with the
respondent, Mr Downing, a founder member of Judas Priest (a rock band). Many
years before meeting Miss Lissimore, Mr Downing had purchased a large country
estate, including a substantial property and 380 acres of agricultural land. When
the couple met, Miss Lissimore was living with her husband in a small property, but
in the process of obtaining a divorce from him. Within months Miss Lissimore
moved in with Mr Downing and eventually gave up her job as a pharmacist's
assistant, relying on Mr Downing for financial support. She did not invest the
£12,500 which she received from her divorce settlement, spending most of it on a
car. After the couple had been together for over a year, Mr Downing made a will
which included a provision for Miss Lissimore. When the relationship broke down
after 8 years together, Miss Lissimore registered a caution against the estate.
Shortly afterwards she made an originating application seeking a declaration of
ownership and an order for sale of the estate, and a Part 8 claim under the Trusts
of Land and Appointment of Trustees Act 1996, seeking a declaration of the nature
and extent of her interest in the estate. She based her claim upon an assertion that
Mr Downing had said and done things upon which she had relied to her detriment,
thus raising a proprietary estoppel. She eventually valued her claim at a lump sum
to provide her with a home worth about £150,000, plus a modest cushion for
contingencies. Mr Downing denied that she had any interest in the property. The
Court dismissed the claim holding that in order to establish proprietary estoppel in
relation to property, the basic rule was that a representation or assurance by the
owner of the property, or an expectation of the claimant which had been known of
and encouraged by the owner, must relate to some specific property, or some part
of the property which was objectively ascertainable. A generalised promise of future
support would not do 8 . The second rule in proprietary estoppel concerned
detriment: there had to have been conduct on the part of the claimant which was in
some sense detrimental or prejudicial, which went beyond what might normally be
expected of the relationship between the parties and which suggested that it was
induced by some sort of assurance and which could be seen, with the benefit of
hindsight, to be sufficiently substantial to render it unconscionable for the owner of
the property to deal freely with the property Mr Downing had not made any
statement intended to mean that Miss Lissimore was to receive a share of the
8
A similar promise of” financial security” similarly failed to work because it was too vague in Laytonv-Martin [1986] 2 FLR 227.
estate, and at the time Miss Lissimore had not understood him to have made such
a statement. Divorced from a direct assurance about the estate, none of the other
statements made from time to time by Mr Downing could sustain a proprietary
estoppel claim. None of the conduct relied on by Miss Lissimore was induced by
any assurance made by Mr Downing. Had it been necessary to reach a decision
on detriment, it would have been that on balance no substantial detriment had
been suffered.
The case illustrates that the words used, whilst they do not need to be so precise
or certain as to give rise to a right of action in contract nevertheless must be such
that the deceased (or the property owner as the case may be) can reasonably be
found to have intended the words to be relied upon so as to engender a belief as
to the existence of the Claimant’s rights in the property in question and also that the
Claimant could reasonably assume that those words were intended to confer upon
him, or otherwise vary his, legal rights in that property.
Thus words which are vague or do not relate the actual creation or variation of
rights, may not be enough 9 , as in the Downing Case above. This has direct
application to cases involving wills because a promise to “remember you in my will”
does not necessarily create any actual rights. A Will only speaks from death and up
until then it can freely be changed, and thus promising to put someone in a will
does not create and cannot ordinarily be assumed to create any legal rights.
Unfortunately it all depends on the facts and how those facts are understood by
the parties, very similar sounding “promises” can give rise to widely differing results.
An example of this is Taylor-v-Dickens [1998] 1 FLR 80610. The facts were that
Claimant had worked for the deceased (Mrs Parker) whilst she was alive, at her
home. Mrs Parker told Mr Taylor that she was leaving the home and some money
to him and Mr Taylor began to do more work for Mrs Parker. In September 1991
9
But see the Gillet case below
Be careful of this case, it was disapproved of in Gillet, but is probably supportable in a narrow
way on its fairly unique facts. There was an appeal against the judgement, but it was settled before
the case came on.
10
Mrs Parker executed a will leaving her residuary estate to Mr Taylor. Mrs Parker's
health began to deteriorate and a home help, Mrs Bosher, befriended Mrs Parker.
In 1993 a new will was made but the residue was again given to Mr Taylor. In 1994
Mrs Parker changed solicitors to Dickens & Co who became the executors of her
will. In October 1994 Mrs Parker was concerned that her house and garden were
being used by Mr Taylor in a way contrary to her wishes. In January 1995 Mrs
Parker told Mr Dickens that she wished to leave her residuary estate including her
home to Mr and Mrs Bosher in equal shares. Mr Dickens therefore prepared a new
will for Mrs Parker which she executed, in these terms. After Mrs Parker's death Mr
Taylor discovered that Mrs Parker had changed her will, and he issued a writ
against the estate in which he claimed the net residuary estate of Mrs Parker and a
transfer of Mrs Parker's home, or in the alternative, damages. The Claimant based
his claim in part on contract, but that failed for obvious reasons11, he also argued
Proprietary Estoppel, but this too failed for as the Court (HH Judge Weeks QC)
observed, there was no equitable jurisdiction to hold a person to a promise simply
because the court thought it unfair, unconscionable or morally objectionable for him
to go back on it. The Judge declined to follow Re Basham, which I consider in
detail below. Mr Taylor knew that wills were revocable12 and that Mrs Parker could
change her mind. There was a difference between saying you will make a will and
saying you will not revoke a will. This was a case where Mrs Parker said she would
make a will and did. Then she made another one, revoking the former!
It might have been different had the Claimant thought that a will was irrevocable
and Mrs Parker knew of that belief, but in the ordinary course of things it seems
clear that a promise to do or give something by will may not be enforceable. This
was a hard case, in that the judge found that Mr Taylor had undertaken
considerable work for which he had not paid and without which the deceased
would have necessarily gone to a home. It has been criticised in other cases, but it
can also be supported by virtue of the fact that the Claimant knew that the promise
11
Although you can as a matter of law bring an action for breach of contract to make a will in a
particular way as recognised in Parker v Clark [1960] 1 WLR 286
12
The Judge said “His wife gave evidence that on no less than three occasions she told him not to
count his chickens before they were hatched” page 822, how right she was.
was one which by it’s nature was mutable or revocable as the evidence plainly
showed.
The case of Re Basham13 had taken a broader view. And it is the broader view that
is now the correct one, although the Taylor case is probably still correct on it’s facts.
The facts of Re Basham were that the plaintiff's mother married the deceased in
1936 when the plaintiff was 15. She lived with them until her marriage in 1941. She
continued to help them to run their business and was never paid but understood
that she would inherit the deceased's property when he died. In 1947 the plaintiff's
husband was considering moving to a job with a tied cottage but the deceased
was opposed to that, saying that he was willing to help them get another suitable
house. Shortly afterwards the deceased purchased a tenanted cottage with money
provided largely by the plaintiff's mother. She died in 1976 and the deceased
moved into the cottage which had become vacant. Shortly afterwards there was a
boundary dispute between the deceased and his neighbour and the plaintiff took
advice from her own solicitors, the deceased having told her that it was for her
benefit because the house was hers. The plaintiff and her family lived near the
deceased and although the plaintiff's husband did not get on well with the
deceased, he provided food for him, kept the garden in order and helped the
plaintiff with work about the house. The plaintiff bought carpets for it and laid them
herself and regularly prepared meals for him. She was told by the deceased that
she would lose nothing by doing those acts for him. A few days before his death
the deceased indicated that he wanted to make a will leaving money to the
plaintiff's son and that she was to have his house. The remainder of his estate
consisted of cash, money on deposit in the national savings bank, and furniture
and other chattels. The deceased died intestate and the plaintiff claimed a
declaration against two of his nieces who were administrators de bonis non of his
estate, that she was absolutely and beneficially entitled to the house and to the
deceased's furniture and other property.
The Court held in that case that the principle of proprietary estoppel was not limited
to acts done in reliance on a belief relating to an existing right, but extended to acts
13
[1986] 1 WLR 1498
done in reliance on a belief that future rights would be granted; and that a
proprietary estoppel could be raised in relation to the grant of rights over residuary
estate; that, accordingly, since the plaintiff had established that she had acted to
her detriment in reliance on her belief, encouraged by the deceased, that she
would ultimately benefit by receiving the deceased's property on his death, she
was absolutely and beneficially entitled to the deceased's residuary estate,
including the house.
The case is interesting for another point, in that the Defendant argued, as they
often do in this type of case that the services were done out of natural love and
affection and not due to the assurances, so that there was in effect no reliance. We
will cover this point below, but it in Basham the judge was content with the fact that
the services seemed to go beyond what would be accountable to natural affection
in the case of a non blood relation. This will frequently be the case.
The case of Gillett-v-Holt [2001] Ch 210 is interesting because of the more
generous approach adopted in that case. The plaintiff spent his working life as farm
manager for and as a friend of the first defendant, a landowner of substantial
means, who made repeated promises and assurances over many years, usually on
special family occasions, that the plaintiff would succeed to his farming business
including the farmhouse in which the plaintiff and his family had lived for over 25
years. After 1992 relations between the plaintiff and the first defendant deteriorated
rapidly. In 1995 the plaintiff was dismissed and the first defendant made lifetime
dispositions to the second defendant, in whose favour he also altered his will,
making no provision for the plaintiff. The plaintiff sought equitable relief based on
proprietary estoppel. The judge dismissed the plaintiff's claim holding that there had
been no irrevocable promise that the plaintiff would inherit. The Court (of Appeal)
took a somewhat more generous tack than had the Judge in Taylor holding that the
fundamental principle that equity was concerned to prevent unconscionable
conduct permeated all the elements of the doctrine of proprietary estoppel; that
although the element of detriment was an essential ingredient of proprietary
estoppel, the requirement was to be approached as part of a broad inquiry as to
whether repudiation of an assurance was unconscionable in all the circumstances;
that, where assurances given were intended to be relied on, and were in fact relied
on, it was not necessary to look for an irrevocable promise since it was the other
party's detrimental reliance on the promise which made it irrevocable; that, when
ascertaining whether promises and assurances repeated over a period of many
years as to future rights over property were sufficient to found a successful claim
for equitable relief, it was necessary to stand back and look at the claim in the
round; and that, on the facts, the defendant's conduct had given rise to an
estoppel, and the minimum equity to do justice to the plaintiff was for the first
defendant to convey to him the freehold of the farmhouse together with a sufficient
sum of money to compensate for his exclusion from the rest of the farming
business.
Some of the key facts of this case were that the young Claimant at 16 went to live
in the Defendant’s (leasehold) farm in 1956 having known him as a golf caddie for
some time. He decided not to go to agricultural college but to learn his trade as a
farmer at the Defendant’s farm, where he was shown the farm business by the
Defendant and ran some side businesses on his own, e.g. selling eggs. He also
ran many aspects of the farm as he moved into his 20s. In 1964 the Claimant
became engaged and the Defendant slowly started to retire from the management
of the farm. In 1964 also he told the Claimant that he wanted him to take over the
farm and that it would be his after the Defendant’s death. He told the Claimant’s
father that he would see the Claimant was secure if anything happened to him. In
1971 at a Christening of the Claimant’s son the Defendant said that this would
ensure the farm would continue to the next generation. The Defendant had also
been in touch with the landlord about allowing the Claimant to succeed to his
agricultural tenancy and had set up a company in order to defray the tax charges
otherwise due on his death, with the Claimant taking some of the shares in that
company. In 1973 the Defendant told everyone at a dinner that the Claimant would
be getting his estate when he died. Further re assurances albeit of a less definite
character occurred in 1973 and 1974 consisting of the Defendant telling the
Claimant that he would leave the farm in the will to the Claimant and also that the
Farm was “all yours”. In 1979 there was correspondence with the landlords
confirming the intention. In 1984 the Defendant at his 70th birthday party stated
that the Claimant and his family had a very secure future. In 1989 as the Defendant
was going into hospital the Defendant repeated that the farm was all the Claimant’s.
From 1992 however things changed and the Defendant turned his affections to a
Mr Wood, who over time replaced the Claimant. In addition the Claimant fell under
suspicion of criminal activity at the farm which was never pressed by the police
however and of which there was little evidence.
In the light of the Taylor case it was argued for the Defendant that the promises
were not irrevocable and that the Claimant knew that to be the case, but this
argument did not succeed in defeating the claim.
The Court of Appeal held that “the doctrine of proprietary estoppel cannot be
treated as subdivided into three or four watertight compartments”
It added “the quality of the relevant assurances may influence the issue of reliance,
that reliance and detriment are often intertwined, and that whether there is a distinct
need for a "mutual understanding" may depend on how the other elements are
formulated and understood. Moreover the fundamental principle that equity is
concerned to prevent unconscionable conduct permeates all the elements of the
doctrine. In the end the court must look at the matter in the round.” Per Robert
Walker LJ at 225 In this case he held that the promises made were intended to be
relied upon and were, and although some of them might have been revocable
others were plain and did not relate to mere intention to leave property in the will.
Moreover and this is a key point it is the Claimant’s detrimental reliance that makes
a promise irrevocable (at 229). There was no need to look for any “mutual
understanding”, such an element may very well be present in some cases but by
no means all and it is not necessary.
In the case of Jennings-v-Rice [2002] WTLR 367, [2003] 1 FCR 501 the only live
issue before the Court of Appeal was the issue of quantification, but it is worth
noting because the estoppels was grounded upon an old lady who over the
course of many years had promised the Claimant that he would “allright” after her
death although he also said that she told him that “all this would be yours” in
relation to her large country house. The court found that there was an equity but he
didn’t get the house however, as we note below on quantification.
Establishing the Entitlement -Detriment, General Observations
Detriment must be pleaded and proved. The issue of detriment becomes fixed as
at the time the promissory seeks to resile from his promises (Gillet at 232 and the
discussion of Jones-v-Watkins 26 November, 1987 NR). The central issue is
whether it is unconscionable for the promisor to go back on what he has said.
In Gillett at page 232 Robert Walker LJ said
“The overwhelming weight of authority shows that detriment is required. But the
authorities also show that it is not a narrow or technical concept. The detriment
need not consist of the expenditure of money or other quantifiable financial
detriment, so long as it is something substantial. The requirement must be
approached as part of a broad inquiry as to whether repudiation of an assurance is
or is not unconscionable in all the circumstances.”
Establishing the Interest –Detrimental Reliance
You need to show that in consequence of the Claimant’s understanding the
Claimant has acted to his or her detriment. The causal link is of course essential.
But it does not need to be the only reason why the Claimant acted, nor the
dominant one. As long as it is some inducement that will suffice.
There must be a causal link between the assurance/belief and the detriment,
however once it is established that the deceased made the assurances intending
that they were to be relied upon the presumption will be that they did induce the
detriment, as Lord Denning said in Brikom Investments-v-Carr [1979] QB 479 at pp
482/3 “when a person makes a representation intending that another should act on
it: 'It is no answer for the maker to say: "You would have gone on with the
transaction anyway." That must be mere speculation. No one can be sure what he
would, or would not, have done in a hypothetical state of affairs which never took
place. . . . Once it is shown that a representation was calculated to influence the
judgment of a reasonable man, the presumption is that he was so influenced.'”
Again in Wayling-v-Jones (1993) 69 P & CR 170
Balcombe LJ said
"(1)
There must be a sufficient link between the promises relied upon and the conduct
which constitutes the detriment—see Eves v Eves [1975] 1 WLR 1338, 1345C-F,
in particular per Brightman J Grant v Edwards [1986] Ch 638, 648-649, 655-657,
656G-H, per Nourse LJ and per Browne-Wilkinson V-C and in particular the
passage where he equates the principles applicable in cases of constructive trust
to those of proprietary estoppel. (2) The promises relied upon do not have to be
the sole inducement for the conduct: it is sufficient if they are an inducement—
Amalgamated Property Co v Texas Bank [1982] QB 84, 104-105. (3) Once it has
been established that promises were made, and that there has been conduct by
the plaintiff of such a nature that inducement may be inferred then the burden of
proof shifts to the defendants to establish that he did not rely on the promises—
Greasley v Cooke [1980] 1 WLR 1306; Grant v Edwards [1980] Ch 638, 657."
The facts of Wayling-v-Jones were “The plaintiff and the deceased lived together in
the deceased's house14 from 1971 to 1975 and then separated for a year. In 1976
the deceased bought a café with a flat above. The plaintiff at his request returned
and helped him run the café. The deceased made a will leaving the plaintiff the flat,
the café and the freehold of his house. Thereafter they changed both residence
and business several times, the plaintiff continuing as the deceased's companion
and chauffeur and helping with the running of the current business. In return he
received pocket money and expenses together with free clothing. The deceased
repeatedly promised to leave the plaintiff his business and told him that he would
14
Clive House, 56 Marine Terrace, Aberystwyth.
update his will, but he never did so15. In the event, after the deceased's death in
September 1987 all that the plaintiff received was a car and some furniture. The
plaintiff's claims based on proprietary estoppel were dismissed on the ground that,
although the plaintiff had believed that he would inherit the deceased's property,
that this belief had been encouraged by the deceased and that he had suffered
detriment in not receiving adequate wages, nevertheless he had failed to prove that
he had suffered that detriment in reliance on his belief. This was based on the
judge allowing a line of cross examination in which the plaintiff admitted that he
would have carried on living with the deceased even if the deceased had not made
the promises, these questions related to the relationship however rather than the
work which the plaintiff undertook for the deceased.
The plaintiff appealed and the appeal was allowed. The Court of Appeal stated that
(1) Where a person acted to his detriment in reliance on a promise made by
another the principle of proprietary estoppel applied, provided that there was a
sufficient link between the promises relied upon and the conduct constituting the
detriment. The promises relied upon did not have to be the sole inducement for the
conduct. Once it had been established that promises had been made and there
had been conduct by the plaintiff of such a nature that inducement might be
inferred, then the burden of proof shifted to the defendant to establish that the
plaintiff had not relied on the promises. (2) On the facts it was clear that the
promises had been made, that the plaintiff's conduct was such that inducement
might be inferred, and that, since the plaintiff had stated in examination-in-chief that
he would have left the deceased if the promises had been withdrawn, the
defendants had not discharged the burden of establishing that the plaintiff had not
relied on the promises. It followed that the judge had fallen into error and the
plaintiff's claim based on proprietary estoppel succeeded.
15
“He told the plaintiff that the hotel was bought for the plaintiff to run, and to inherit after the death
of the deceased. The deceased did then put up the plaintiff's pocket money to £60 per week and
continued to pay the plaintiff's other expenses, and the plaintiff managed the hotel for the deceased,
whose health deteriorated in the last years of his life. The plaintiff mentioned to the deceased that
his work deserved more money and received the reply: 'It'll all be yours one day'. The deceased told
the plaintiff that he would alter his will to substitute the Royal Hotel, Barmouth for the Glen-y-Mor
Hotel, but he never did so before his death (aged 72) on 14 September 1987.
The judge’s error was to confuse the sexual relationship between the two men,
which would have gone one regardless of the promises with the “business”
relationship which saw the plaintiff working for low pay for nine years on the
expectation of succeeding to the premises.
There is no necessary correlation between the detriment and benefit the Claimant
obtains (although typically there will be); in the Midland Bank –v- Cooke case the
Claimant paid 7% of the purchase price but got a 50% share, this is unusual, more
typically the Court will pay close attention to the detriment.
The detriment need not be financial; Chan Pui Chun-v-Leung Kam Ho [2003] 1
FCR 520 in which the Claimant in reliance on promises as to a half share in two
properties abandoned a career and moved in with the Defendant as well as helping
him with the properties. Conversely in Grant-v-Edwards [1986] 1 Ch 63816 moving
in with someone on it’s own was not regarded as enough, Nor in Coombes-v-
Smith [1986] 1 WLR 808, an estoppel case.
Because of the wide interpretation of detriment manual or other work or
expenditure can be enough, Cooke-v-Head [1972] 2 All ER 38 Court of Appeal
17
but it is a question of fact and degree, in Cooke the evidently formidable Claimant
demolished a building, in addition to other work. In Midland Bank-v-Dobson [1986]
1 FLR 171, Court of Appeal, the court did not think that decorative work of the kind
ordinarily done for the benefit of the occupants was sufficient nor household bill
payments in the ordinary course of events.
Household bill payments where people are sharing accommodation should not be
sufficient unless they are well above and beyond what is usual, and in particular
where for example a couple are just sharing expenditure, it is unlikely that any
sufficient detriment will appear therefrom, Grant-v-Edwards (supra)
It is necessary to go to some effort to prove that what you have done has monetary
value, the Court will often have regard to the value of services. In Gillett the
16
17
Grant-v-Edwards is a useful case for the Defence, taking an almost cynical line.
A constructive trust case
Claimant went to the extent of having his work valued by a professor of agriculture,
Professor A K Giles OBE. Professor Giles was able to show that the Claimant in
that case was underpaid in relation to farm managers, and that this was something
that had gone on for much of the 40 years of his involvement with the Claimant, he
prepared tables setting out comparisons. In Jennings-v-Rice (above) the judge
seemed to have regard to commercial care rates although it is not clear where this
material came from. In some cases recourse could be had to the tables of
information used by PI practitioners on earnings, care and nursing costs. In others
experts may be necessary.
Quantifying the Interest
Historically it was said that the award which the court would make would be the
minimum equity that is necessary to do justice between the parties.18 Although in
some cases that can be interpreted to mean that the mistaken belief is “made true”,
in many others something less is awarded, the court has to carry out a balancing
exercise taking into consideration the expectations of the Claimant and the needs
of the other parties to a degree. The court can do just about anything it needs to
do to “satisfy the equity” and that include ordering a transfer of property, declaring a
trust or life interest, or paying a sum of money. The court will tend to prefer a
“clean break” where practicable and that can mean a reluctance to impose
complex settlements where it feels that a sum of money paid as a lump sum would
be more appropriate.
There are cases like Pascoe-v-Turner [1979] 1 WLR 431 in which an imperfect gift
was ordered perfected so that the Claimant got all that he expected and where in
Basham a Claimant was led to believe by her step father that in return for taking
care of him all his days she would get his estate and he died intestate, then the
Claimant was awarded the whole estate. In Jennings-v-Rice [2003] 1 FCR 501.
The Judge was faced with a Claimant who had been promised by the Defendant
that he “would be allright” after her death as well as more overt statements that “all
this would be yours”. The Claimant gamely sought the entire estate of the
deceased which was considerable, including a large house and other assets; the
Judge awarded him an amount comparable to the commercial value of his services,
£200,000. The Court of Appeal upheld the decision holding that there had to be
proportionality between the detriment expended by the Claimant and the award. It
is clear that the Court will balance competing interests, and this may be another
reason where the Claimant gets less than he thought appropriate. In the same vein
is Suggit-v-Suggit [2012] EWCA 1140.
In Campbell v Griffin[2001] W & TLR 981, Mr Campbell moved in to live as a lodger
with a Mr and Mrs Ascough in 1987. They had no children and the relationship
developed to the extent that they treated him as their child. They frequently told him
that whatever happened he would have a home for life. Despite attempts by Mr
Ascough to provide for Mr Campbell, the Ascoughs' house passed on his death to
his wife. When she died the property passed under an old will to her nieces. The
court concluded that Mr Campbell's claim to an equity, having regard to the
principles of proprietary estoppel, had been established. Robert Walker LJ gave the
leading judgment with which the President and Thorpe LJ agreed. He came at
page 10 to consider the extent of the equity. "Sledmore v Dalby is a good
illustration of the flexible nature of the court's jurisdiction. But on the facts of this
case I do not consider that Mr Campbell's rent-free occupation has had the effect
of extinguishing his equity. Nevertheless I see considerable objections to Mr
Sisley's proposal that Mr Campbell should be granted a life interest in 26 St
Boltolph's Road for so long as he wishes to live there. In the first place such an
order would be disproportionate: Mr Campbell has a moral (and, as I see it, a legal)
claim on the property, but it is not so compelling as to demand total satisfaction,
regardless of the effect on other persons with claims on the Ascoughs' estate. In
the second place it would be administratively inconvenient. It would produce a
situation of a trust of land (under the Trusts of Land and Appointments of Trustees
Act 1996) which would probably involve disproportionate legal expenses (including
trustees' remuneration) and might well lead to further disputes (especially in relation
to Mr Campbell's keeping the property in good repair and condition). In exercising
its discretion the court can have regard to the need for a "clean break": Pascoe v
Turner [1979] 1 WLR 431, 438-9. Taking these and all other relevant
circumstances into account, I have come to the conclusion that it would not be
right to confer on Mr Campbell (who began as a lodger with one out of four
bedrooms) a right in respect of the whole house which might hold up the
administration of the estate for a whole generation and might also have the effect of
eliminating the other beneficiaries' interests because of mounting interest on the
County Council charge. That charge (with accrued interest) now amounts to about
£64,000. The present value of the house, unencumbered with vacant possession,
is about £160,000. The court has a very wide discretion in satisfying an equity
arising under the doctrine of proprietary estoppel. That discretion includes power to
award a fixed sum charged on the property. I would declare Mr Campbell is entitled
to the sum of £35,000 charged on the property, but that he must give up
possession of the property to enable it to be sold by Mrs Ascough's executors,
and that interest on the sum of £35,000 should not start to run until 56 days after
Mr Campbell has given vacant possession in order to enable the house to be sold.
The sum payable to Mr Campbell will not by itself enable him to buy a freehold
house in Worthing, but it will assist him with rehousing himself."
Note Also Gillett, above in which the Claimant got one of the farms plus £100,000,
and not the whole farming business, even though it was the Claimant’s expectation
but it is not clear how the Court of Appeal reached the result on quantum or how it
compared to the detriment. In Gillet of course the Defendant was still alive and had
to be taken into consideration, the expectation of the Claimant only arose on death
or retirement at best. In the Wayling-v-Jones case (above) the Claimant had
worked for 11 years for the deceased as a waiter/chauffeur for 28 pounds a week
pocket money (1976 to 1987) his expectation was that he would get the small
guest house in Aberystwyth and he was awarded just that, no great attention was
paid it seems to valuing his work or the undervalue or making any comparison with
the value of what he got.
New Cases on Proprietary Estoppel
These cases are more the straight kind of Proprietary Estoppel, as opposed to the
kind that we need to be concerned with, but they are included for completeness.
There has been some recent case law note especially Douglas Clark-v-Keith Clark
[2006] EWHC 275 ChD. Claimant and Defendant were brothers and ran a family
haulage business, Claimant wanted to bring it all to an end being in poor health but
Defendant wanted to continue. Claimant owned some land part of which was used
for the companies haulage yard and access to the yard was via Claimant’s land,
having been so since 1980’s when the current location was constructed at some
expense.
The issue revolved around whether Claimant could terminate Defendant’s use of
the land. The Claimant argued that he had made no statement concerning the
permanency of the use of the access route or otherwise when the yard was
constructed in it’s current location back in the 1980’s.
The judge applied Taylors Fashions-v-Liverpool Victoria Trustees [1982] 1 QB 133
which followed the line of cases supportive of “silent” estoppel where the silence
amounts to a passive encouragement of expense on the strength of a mistaken
belief. He found that Claimant had never said anything to indicate that his
permission was likely to be temporary, and the Defendant and more importantly the
family Company had incurred substantial costs in moving to that location. With
regard to the remedy the judge then applied the Jennings-v-Rice [2003] 1 FCR
501 notion of minimalism but differently and more in terms of “proportionality”. He
felt would not be just to grant Defendant a perpetual license, and he held that the
permission originally granted would become revocable once the business stopped
using the yard, or ceased to be viable or to be used to provide a living for both
brothers. Because on the facts the company did not need to use part of the
Claimant’s land, he could get that back but the access route would remain
available to the company.19
In Thorner-v-Major et Ors [2009] 1 WLR 776 the issue was whether certain
assurances made by a farmer were capable reasonably of giving rise to a belief on
the part of the Claimant that such that he should inherit a farm which had passed
to the Personal Representatives following the intestacy of the farm's owner (P). P
had made a will leaving the residue of his estate, including his farm, to the Claimant.
However, following a falling out with one of the beneficiaries P destroyed the will.
The Claimant had worked on P's farm for 30 years with no remuneration and
believed that he would inherit the farm. He brought a claim on the basis that the
estate was bound by conscience to give him the farm and asserted a claim by way
of Estoppel. The Claimant gave evidence that P had handed him a notice relating
to life insurance policies "for death duties" and that that amounted to a promise,
representation or assurance. The judge found that P did intend the Claimant to
inherit the farm and that P's words and conduct gave rise to an estoppel in The
Claimant’s favour. The Personal Representatives appealed on the grounds that the
judge (i) was wrong to find that an estoppel in relation to property to be left by will
could be based on conduct or standing by, or anything less than a clear promise
or assurance that the Claimant would inherit; (ii) was wrong to hold that P handing
the Claimant the notice was sufficient to affect the conscience of P and to found
estoppel; (iii) placed undue weight on the expectation and detriment on the
Claimant's part rather than having regard to the nature and quality of the
assurances or conduct which gave rise to that expectation; (iv) made an award that
did not correctly satisfy the estoppel because it gave the Claimant more than the
minimum necessary for the purpose; the award of the whole farm was
disproportionate in the light of the fact that the Claimant had not farmed the land,
but had only helped P to do so. The Court of Appeal reversed the decision on the
basis that the words used were not sufficiently precise to give rise to a reasonable
expectation that the Claimant would benefit but the House of Lords upheld the trial
19
This is reminiscent of the purposes of the trust arguments used in the case of joint proprietors in
Trusts of Land and Appointment of Trustees Act 1996 cases.
judge, adding that provided the parties knew what was meant it did not matter if an
objective analysis of the words used would not make someone else think that there
was to be a transfer of the property, looking at the facts of each case and the
characteristics of the parties was therefore important.
Constructive Trust
In the context of Probate disputes this may often bear similarity to Proprietary
Estoppel Cases, the doctrines are very closely related. The basis of a claim is that
the owner of property and the claimant had a common intention (often an actual
agreement) that the property should be owned partially or sometimes wholly by the
Claimant, and the claimant reasonably relied on that agreement, combined with
detriment to the Claimant based on that intention. Typically there are the following
scenarios
1. Express Common Intention combined with detrimental reliance
2. A Common Intention which is inferred, but nevertheless real, again with
detrimental reliance
3. A course of conduct from which it can be inferred or even imputed that
there was a common intention, which emerges from the same material that
would usually be used to support detrimental reliance.
All 3 are difficult to prove Stack-v-Dowden [2007] UKHL 17, 3 particularly so and is
likely only to arise from a relationship of proximity combined with extensive evidence
that the parties must have intended to share the property. Very often you can
almost apply the “officious bystander” test. Are the things that were done by the
claiming party the kind of things that only an owner, or someone who thought they
were an owner, might have done? Or were they done just to facilitate the use of the
premises by the claiming party James-v-Thomas [2008] 1 FLR 1598.
Where the claiming party pays mortgage instalments, or assumes the responsibility
of an owner of land in some other way, that will amount to the best evidence for the
inferral of a common intention.
In many cases these claims are likely to arise out of informal quasi matrimonial
relationships and can be further considered in that basis.
All of the comments about detriment made above in relation to Estoppel are equally
applicable.
Remedy in the case of a constructive trust
Usually the Court will apply the agreement that was made between the parties or
otherwise draw its own inferences from the course of conduct between them.
(Stack).
Resulting Trust
These sometimes used to be referred to as “springing trusts” and refer, so far as
this context is concerned, to a situation where there has been a gratuitous transfer
of property, or where one person buys land with money supplied by another.
Absent other factors (eg loan or proof of gift) then the presumption will be that, that
which has been transferred is held in trust for the transferor or payer as the case
may be.
Note that in any context anyone who asserts to be a donee must prove it, Seldon-
v-Davidson 1968 1WLR 1083.
The presumption of advancement sets out certain relationships where a gift is
presumed, eg parent and child.
Other Claims
Bear in mind that property often passes at death outside of any will primarily where
a) There has been a Donation Mortis Causa
Donatio Mortis Causa
This is basically a gift which is conditional upon death. These seem like unlikely
creatures but they keep popping up all the time, I have therefore included a section
on them, but in outline a DMC requires 4 things.
i)
the gift must be in contemplation of the death of the donor, in
other words he should believe that he is going to die soon (but
not from suicide Dudman-v-Dudman [1925] Ch 553 )
ii)
gift must be on condition that it only becomes absolute on the
death of the donor
iii)
there must be some sort of actual or symbolic delivery eg keys to
a car
Note that the property must be such that it can pass by delivery, although
delivery of a document can be enough so land can pass this way too Sen-v-
Hedley [1991] ChD 425“A donation mortis causa is a singular form of gift. It
may be said to be of an amphibious nature, being a gift which is neither entirely
inter vivos nor testamentary, It is an act inter vivos by which the donee is to
have an absolute title to the subject of the gift not at once but if the donoro
dies. If the donor dies the title becomes absolute not under but as against his
executor. In order to make the gift valid it must be made so as to take complete
effect on the donor’s death. The court must find that the donor intended it to be
absolute if he died but he need not actually say so”. Beaumont-v-Ewbank
[1902] 1Ch D 889 at 892 per Buckley J.
In the leading case of Sen-v-Headley [1991] Ch. 425 it was held by the Court
of Appeal that donatio mortis causa applied to gifts of land. It was said in
general terms by Nourse LJ that;
“There have been several judicial statements of what, in general terms, is
necessary to constitute a donatio mortis causa: Cain v. Moon [1896] 2 Q.B.
283, 286 (Lord Russell of Killowen C.J.); In re Craven's Estate [1937] Ch.
423, 426 (Farwell J.); and Delgoffe v. Fader [1939] Ch. 922, 927
(Luxmoore L.J.). Regard must also be had to what was said by this court in
Birch v. Treasury Solicitor [1951] Ch. 298, the most authoritative of the
modern decisions. If the question whether the subject matter is capable of
passing by way of donatio mortis causa is put on one side, the three
general requirements for such a gift may be stated very much as they are
stated in Snell's Equity, 29th ed. (1990), pp. 380-383. First, the gift must be
made in contemplation, although not necessarily in expectation, of
impending death. Secondly, the gift must be made upon the condition that
it is to be absolute and perfected only on the donor's death, being
revocable until that event occurs and ineffective if it does not. Thirdly, there
must be a delivery of the subject matter of the gift, or the essential indicia of
title thereto, which amounts to a parting with dominion and not mere
physical possession over the subject matter of the gift or the essential
indicia of title thereto, which amounts to a parting with dominion and not
mere physical possession over the subject matter of the gift. “
The Contemplation of Death
The cases are not precise about how impending the death has to be, in Re
Craven’s Estate [1937] Ch. 423 Farwell J made the following observations;
“Generally speaking, it is not permissible by the law of this country for a
person to dispose of his or her property after his or her death except by an
instrument executed in accordance with the provisions of the Wills Act,
1837. One exception to the general rule is the case of a donatio mortis
causa, but in order that it may be valid certain conditions must be exactly
complied with; otherwise the attempted donatio is not effected and the
property remains part of the property of the testatrix at her death passing
under her will. The conditions which are essential to a donatio mortis causa
are, firstly, a clear intention to give, but to give only if the donor dies,
whereas if the donor does not die then the gift is not to take effect and the
donor is to have back the subject-matter of the gift. Secondly, the gift must
be made in contemplation of death, by which is meant not the possibility of
death at some time or other, but death within the near future, what may be
called death for some reason believed to be impending. Thirdly, the donor
must part with dominion over the subject-matter of the donatio.”
Don’t forget that capacity is required to make any donation mortis causa or for
that matter an inter vivos gift. In general there is a clear distinction in law
between capacity to conduct an inter vivos transaction and capacity to make a
will. Capacity to make a will has always been much higher, but some
transactions are analogous and therefore attract a similar threshold.
1. There are several leading cases on the issue of capacity and gift, in general the
law with regard to capacity to make a gift and the approach to it is discussed in
the case of Re Beaney [1978] 1 WLR 770 in which Martin Nourse QC as he
then was said.
“In the circumstances, it seems to me that the law is this. The degree or extent
of understanding required in respect of any instrument is relative to the
particular transaction which it is to effect. In the case of a will the degree
required is always high. In the case of a contract, a deed made for
consideration or a gift inter vivos, whether by deed or otherwise, the degree
required varies with the circumstances of the transaction. Thus, at one extreme,
if the subject matter and value of a gift are trivial in relation to the donor's other
assets a low degree of understanding will suffice. But, at the other extreme, if
its effect is to dispose of the donor's only asset of value and thus, for practical
purposes, to pre-empt the devolution of his estate under his will or on his
intestacy, then the degree of understanding required is as high as that required
for a will, and the donor must understand the claims of all potential donees and
the extent of the property to be disposed of.”
2. The facts of Re Beaney were that the deceased, whose mental condition
began to deteriorate from 1970, executed a transfer to the defendant, her
eldest daughter, of a house which represented her only asset of value. The
Claimant, her two younger children, had married and left home. The defendant
had lived largely away from home until just before her father's death in 1971,
when she had returned home in order to look after her mother.
3. The transfer was executed while the deceased was in hospital for a short
period and it was executed in the presence of the defendant, a solicitor and
an old friend of the deceased's husband. The deceased was told that if she
executed the transfer it would have the effect of giving the house to the
defendant absolutely. She was twice asked whether she understood what
would happen and whether that was what she wanted, and she answered
affirmatively. She apparently signed her name quite easily and all three
persons present said they thought that she understood what she was
doing. Medical evidence was adduced that she was suffering from an
advanced state of senile dementia and her mental state was such that she
could not have understood that she was making an absolute gift of the
property to the defendant. The deceased died intestate in 1974.The case
has been followed recently in Cattermole-v-Prisk [2006] 1 FLR 693.
b) The property is Joint Property. Note that a will disposition is not normally
enough to sever a joint tenancy Carr-v-Isard 2007 WLTR 409.
c) The property represents the proceeds of (typically) a policy of insurance or a
pension which has been nominated by the Deceased to another person. As
a rule these are totally outside the estate.
d) Where there is an equitable claim (dealt with above)
It is worth noting that whilst a) and b) can be “dragged” back into the estate for the
purposes of the Inheritance Act 1975 1975 Act provision c) cannot be and also
there is no mechanism under the general probate law to “drag” back any of them,
except for the benefit of creditors in relation to Insolvent Estates. So that where an
estate is small but with large donationes or a large joint property, the 1975 Act is
the way to go if available.
Contentious Probate Defined
According to CPR 57.1 (r (2) (a))
A contentious probate claim is one for
ii) The grant of probate of the will or letters of administration of the estate of a
deceased person
ii) The revocation of such a grant, or
iii) A decree pronouncing for or against the validity of an alleged will”
It is this narrow sense of contested probate that we are primarily looking at, but you
should note two commonly confused other areas of challenge to the disposition of
an estate. These are the Inheritance Act 1975 which provides for Family Provision
and another area of challenge altogether, namely the assertion of some equitable
right in relation to the deceased’s property. It is not unusual for all 3 types of action
to be run at once, which can cause procedural difficulties.
CPR 57 now also provides the basis for all actions relating to estates including
cases under the Inheritance Act 1975. However that does not make IHA cases
contested probate Claims. “Proper” Contested Probate claims, where issued,
should nearly always be made in the High Court, Chancery Division where a
modified Part 7 Procedure applies.
Procedure in Probate Matters
1. The vast majority of wills are admitted to probate under the non-contentious
procedure, the court merely grants probate or letters of administration, it is
purely procedural and largely a paper procedure. It is also known as
Common Form probate.
2. Where there are circumstances such as a challenge to the will or the
Registry is not happy about it, then a more prolonged form known as the
Solemn Form is used, and this is basically a trial of the will in the High Court
in the Chancery Division, where the party seeking to proof or propound the
will seeks to prove the constituent elements before a judge. The issues and
matters which need to be proved are set out in following paragraphs.
3. CPR 57 is the rule dealing with probate actions. All cases are assigned by
CPR 57.2 to the Multi track.
Before the action starts
Bringing in the Will -The Subpoena
4. Where any testamentary documents are believed to be in the hands of any
party then Section 123 of the Senior Courts Act 1981 enables a witness
summons, still referred to as a subpoena in the NCPR to be obtained by an
application without notice made to the probate registrar.
As with most
applications under the NCPR you normally make your application with a
draft order annexed to a draft affidavit. The order when issued, should have
a penal notice endorsed. Normally the recipient files the original of the
document with an affidavit, or simply swears that he does not have it.
(Once the action starts, then you would of course apply to the DJ or Master
as opposed to the registrar).
5. It is also possible to have that person, or anyone else, such as the
draftsperson or the witnesses compelled to turn up and answer questions,
same principles apply (Section 122 SCA 1981)
Bringing in the Will - the Citation.
6. The Citation is used when you want an executor to get on with
administration or to prove a testamentary document or lack of one. There
are 3 kinds of Citation,
a. The Citation to accept or refuse a Grant of Probate or Administration
aka the “get out of the way” citation used by someone with a lesser
right to move someone with a higher right out of the way.
b. Citation to take Probate, for intermeddlers
c. the Citation to Propound aka the “Put up or shut up” is the one you
would use when you know someone has a testamentary document
which you suspect is not valid for some reason, in other words you
want them to show their hand. This is most interesting and the most
pertinent to a contested probate case.
7. You can cite the Executors and beneficiaries to propound a Will that has not
been proved if you genuinely believe that the Will is invalid. See for example
Jolley v Jarvis Sands [1964] P 262 and Morton v Thorpe (1863) and Re
Bootle (1901) 84 LT 570.
8. A citation of any type may be issued by the Principal Registry or by a District
Registry and must be settled by a District Judge or Registrar. (NCPR 1987
Rule 46 (1)). The application for the issue of a citation may be made in
person or by post. Everyone with an interest in the document should be
cited.
9. Every averment in a citation with such information as the District Judge or
Registrar may require must be verified by an affidavit of facts sworn by the
citor or, in special circumstances and with leave of the District Judge or
Registrar by the citor’s solicitor. (Rule 46(2)). It should be noted therefore
that ordinarily the affidavit must be sworn by the citor himself personally.
The affidavit should not be sworn before a citation is settled so that it can be
corrected if it does not cover the required facts.
Every Will or purported
Will referred to in a citation must be filed (lodged).
10. A citation must be served personally unless otherwise directed (NCPR, Rule
46 (4)). A Certificate of Service should be endorsed.
11. A person who has been cited then enters an appearance at the Registry
from which the citation is issued by lodging Form 5 to the NCPR. The Form
sets out the name, address and interest claimed by the citor as shown on
the citation. It should also give the full name, address and details of the
interest of the citee himself including the date of the Will under which such
interest arises.
12. The citee must serve a sealed copy of the appearance on the citor by
delivering it at the citor’s address for service or by sending it there by post
or otherwise. The time for appearance is 8 days after service of the citation
but it can be extended.
13. In the case of a citation to propound a Will then any person is cited must
issue a Writ (Claim Form) if he wishes the Will under which he is interested
to be admitted to Probate. If that person appears but does not proceed to
propound the Will then the citor should apply to the District Judge or
Registrar for an Order for a Grant as if that Will was invalid (NCPR1987, Rule
47(7)(c)). Such an application is made by summons which is served on the
citee who has entered the appearance. If however the citee does not
appear the citor files Affidavit of Service and applies to the District Judge or
Registrar without notice for an Order for a Grant on the basis that the Will is
invalid. (NCPR 1987, Rule 48(2)(a)).
Caveat
14. Caveats. A caveat is used to stop a grant being issued to someone not
entitled to it, although they are commonly used to buy time when carrying
out further investigations. Although a prelude to contentious applications
they are actually governed by the NCPR, notably rule 44. There is a form
(form 3) in the schedule to the NCPR. You lodge it at any registry, there is a
fee (£20 as of now). It lasts 6 months although you can ask for it to be
extended, a further £20 is payable. If a probate action is started it continues
until the conclusion.
15. If a party attempts to extract a grant during the currency of a caveat the
application will be stayed. The extracting party can then seek to issue a
“warning” by using form 4 of the NCPR schedule, it must be issued at the
Leeds District Probate Registry, there is no fee. The Caveatee must serve
the sealed copy of the warning that he gets back from Leeds on the
Caveator.
16. The caveator who receives the warning can either withdraw the caveat,
“enter an appearance” or issue a summons for directions in the specified
form, this latter step is taken where you have no contrary interest but object
to a grant to that person.
17. You “enter an appearance” by using form 5, within 8 days. Again it must be
issued at the Leeds District Probate Registry. It must show that you have an
interest contrary to the caveatee. You must serve the caveatee at once.
18. Entering an appearance in effect brings the non-contentious procedure to
an end. It blocks any grant and the only solution is a probate action. If all
you intend is an IHA claim then you should normally allow the grant to be
issued so that you can bring your claim, in fact from October 2014 you will
be able to bring a claim before it is issued.
Other Investigations
19. Where you are tasked to investigate any Probate Issue then the ACTAPS
protocol, available online and in written form, is a useful guide to the steps
to be taken. Apart from fully ventilating the issues between the parties, any
solicitors or others involved in drawing the will can be asked to supply full
details of the circumstances of instruction, preparation and execution. The
letter which asks for these particulars is often referred to as a Larke-vNugus letter after Larke-v-Nugus [2000] WTLR 1033.
20. Since 1959 the Law Society has recommended that where a dispute arises
as to the validity of a Will the Testator’s solicitors should make available a
statement of his or her evidence regarding instructions for the preparation
and execution of the Will and surrounding circumstances. The Court of
Appeal has itself endorsed and recommended this approach in the case of
Larke v Nugus [2000] WTLR 1033.
21. The Law Society’s Practice Notes for Disputed Wills issued on 6th October
2011 which itself incorporates many of the provisions of the case of Larke.
The Procedure in the High Court
22. If you do not follow the above procedure then a grant will be issued. If that
happens, don’t worry, issue a Claim Form in the High Court seeking a
revocation of the grant. Always use Part 7. The jurisdiction is in the High
Court, Chancery Division,20 and of course there is a Cardiff District Registry
and a full time Chancery Judge in Cardiff. There is no Limitation Period.
23. Once it is done then no grant can be issued until the court orders it and the
party seeking to extract will need to issue a Claim Form asking the
Chancery Division to grant probate to him. Always use part 7.
24. Where the Claim Form procedure is used then all parties who might be
affected by the outcome should be joined or at least given notice so that
they can be joined in if necessary. Issue the Claim Form out of the local
Chancery District Registry- Cardiff.
25. The court will itself arrange for production of the relevant testamentary
documents from the probate registry at which they have been filed. Notice
of the proceedings is sent by the issuing court to the central probate
registry.
26. Apart from the heading of the action which is as provided in CPR PD 57
para 2.1 the action continues as a part 7 claim which will be assigned to the
multi track. There are no default judgements, there always has to be a trial,
but it can proceed on paper alone.
27. One important feature which is different from the norm for part 7 claims is
the need for the claimant to file with the papers a statement dealing with
testamentary documents, these used to be known as affidavits of scripts.
Basically they exhibit such documents as you have and state that apart from
20
There is a county court jurisdiction which I am trying not to mention, it only applies to county
courts which also have a chancery district registry and where the net estate is £30,000 or
less
the ones you refer to (or if you don’t have any, the ones you know about)
you know of no other testamentary documents. All Defendants must file
such evidence as well, with their acknowledgements of service. This is
simply a procedure for the court to know what testamentary documents are
out there. It is not something to get worked up about. Thus CPR 57.5 (1)
requires the lodging in court of any testamentary document of the deceased
in the possession of any party. CPR 57.5 (3) provides for every party to
make the statements referred to above in this paragraph.21
28. Remember to ask for what you want, e.g. a grant of probate or the grant
revoked and a grant of letters of administration. There are other more limited
grants that you may obtain,
29. Consider applying for a grant of letters of administration pending the
resolution of proceedings under section 117 of the Supreme Court Act
1981, once proceedings are issued.22
Grounds of Challenge to a Will
Note that it is much easier to attack a will on formalities or knowledge and approval
rather than allege fraud or undue influence etc. Focus on those issues where
practicable. Note also that there is a considerable degree of overlap between the
various grounds. Fortunately, historically at least, the courts have been reluctant to
21
A precedent for this statement is in the practice direction.
Note also the existence of grants ad colligenda bona. These are limited grants for the purposes of
“minding” the estate pending the resolution of any disputes. It is always a grant of letters of
administration, even where there is a will with executors appointed and is limited expressly using the
words “limited for the purpose only of collecting and getting in and receiving the estate..” .It should
be applied for wherever there is some form of dispute or argument which will hold up administration
of an estate. The alternative is that some solicitors try to run the estate without one which is a
mistake. The procedure for obtaining such a grant is set out in NCPR 52, and essentially is an ex
parte, no fee application supported by an affidavit which explains why it is necessary and suggests
a suitable person to act in this capacity. Note that as stated, there cannot be any distribution under
such a grant, this is purely to hold the fort until the problems are resolved. Where proceedings have
been commenced in court then a similar result can be achieved by application under CPR 23 in the
proceedings under S.117 of the Supreme Court Act 1981
22
be strict about pleading these points and in a contested probate claim the party
opposing the will does not have to specifically plead them Re Stott [1980] 1 WLR.
However the new CPR 57 may be less congenial. You certainly need to plead
fraud or undue influence and with particularity, but the mere fact that you hint at
them in your argument about knowledge and approval does not mean that you
then have to plead them, unless you intend running them as separate arguments.
The grounds of challenge are as follows
1. The will was not made in the form and manner prescribed by law
2. That at the date of the execution of will the testator lacked mental capacity
3. That at the date of the execution of the will the testator did not know and
approve of the contents of the Will
4. That at the date of the execution of the will the testators mind was
overborne by fear, fraud or undue influence so as to negative his intention
(Fraud or Undue Influence
5. Revocation
One Cautionary note, cases that fall within categories 2, 3 and 4 tend to be
somewhat arbitrary.
The Formal Requirements
In essence these are the requirements of Section 9 the Wills Act 1837 as
amended by the Administration of Justice Act 1982. Note that before the Act there
were no prescribed formalities, not even signature and the only issue therefore was
as to testamentary intention,
1. Note the existence of Privileged Wills (Section 11 of the Wills Act), Soldiers
on military operations (Iraq?), Sailors at sea etc. these are exempt and can
be oral, made under age etc. Military operations includes aiding the civil
power at least where there is an element of insurgency Re Jones [1981]
Fam 7.
2. Section 9 requires that the will be in writing, signed by the testator 23 or
some other person at his direction 24 and on his behalf, in a form which
manifests his intention to make a will and that the signature of the testator is
made or acknowledged in the presence of two witnesses who are present
at the same time and who each then sign, attest or acknowledge their
signature in the presence of the testator.
3. Note that the Will does not have to be dated to be valid, although the
Registrar will not admit it to probate without evidence (usually in signed
witness form or affidavit) as to the date of execution. Nor does it matter
where the signature is placed, In The Goods of Mann [1942] P 146 the
testatrix had not signed the will but had signed the envelope it was
enclosed in intending that the signature should be her signature of the will
(on the evidence of the attesting witnesses). Both the envelope and will
were admitted to probate as one will. More frequently one sees wills signed
at the top etc, it does not matter provided the other formalities are included,
but a missing attestation clause whilst not fatal does have an impact as we
shall see.
4. Signing the wrong will was not fatal in Marley-v-Rawlings [2014] 2 WLR
213, albeit rectification was employed as a remedy. Need it be, if the
intention is clear? The Jersey Courts were way ahead of us, in Re Vautier
2000 JLR 351 (cited below).
23
what amounts to a signature is a matter for evidence, so that a thumb print was held to be such
in Re Parsons [2002] WTLR 237 but only where there was evidence that that was how the testator
tended to sign documents.
24
Another also can sign for him but evidence that it was done at his direction is then required.
5. It is vital that the testator signs or acknowledges his signature in the
presence of the two witnesses who are both there at the same time25. So
you have to have a point in time when all 3 are in the room, and the testator
then acknowledges or signs. Note Couser-v-Couser [1996] 1WLR 1301.
The facts of Couser illustrate this. The testator wrote a will by completing a
printed form. After signing it he took it to the home of a married couple who
were friends of his for them to attest it as witnesses. The testator
acknowledged his signature to the wife in the absence of the husband, and
she signed as the first witness. However, she told the testator that she did
not think the will had been validly executed and she urged him to use the
services of a bank. The husband entered the room later. His wife told him
that she had already signed and she walked to the other side of the room.
The testator then acknowledged his signature to the husband, who signed
as the second witness. At that time the wife was standing about 10 feet
away in the same room and she continued to voice her doubts about the
validity of the procedure. It was held that when a will was not irregular on its
face and the intention of the testator was clear, there was a heavy burden
on anyone seeking to rebut the presumption of regularity, and the court
ought not to search for defects in what had occurred; that valid
acknowledgement of a signature under the Act required that there should
be visual contact between the parties concerned; that the events whereby
the execution of the will had taken place constituted a continuous
functioning of the three parties so that, when the testator acknowledged his
signature a second time after the husband's arrival he did so in the
presence of the wife, and her repeated protestations about the validity of
the will constituted an acknowledgement of her earlier signature; and that,
accordingly, the testator had acknowledged his signature in the presence of
two witnesses present at the same time who had both duly attested, and
the will had been validly executed. In respect of its comments on the
strength of the presumption of regularity this case has been somewhat
overtaken, see below.
25
And this means conscious and able to see. It follows that blind witnesses are not acceptable.
6. Anyone who can see can be a witness, even a child, subject to capacity
issues. Note that a gift to a witness in the will is made void by S.14 of the
Wills Act. So also is a gift to a spouse of the witness. Note also the CIVIL
PARTNERSHIP ACT 2004.
7. As we saw from the Couser case provided the will is or appears regular and
there is an attestation clause then there will a presumption in favour of
regularity26. Note however that the burden of proof always remains on the
party seeking to obtain the grant. It is simply the case that the presumption
assists in discharging this. Often and usually it will be determinative and it is
often said that clear evidence is needed to shift this presumption. However
anything like for example an irregular attestation clause will reduce the
impact of this presumption. Moreover anything which makes the will or
anything about it seem odd, unusual or out of the ordinary will in practice
receive close scrutiny. The probate registry is pretty alert. If they have any
doubt they will tell the party seeking to prove the will to go and prove it in
court i.e. in solemn form. That having been said the court bends over
backwards to support a will and the presumption was given full weight in
Channon-v-Perkins December 2005 CA. In Sherrington v Sherrington
(2005) EWCA Civ 326 , Times, March 24, 2005 [2005] WTLR 587 it was
held that The strongest evidence was required to rebut the presumption of
due execution of a will.
8. The facts of the Channon case were that the witnesses could not
remember ever signing the will and indeed therefore went on to say that the
attestation had never even happened although they did not deny that the
signatures which appeared on the will were in fact theirs. It was held that
where a will had been on its face properly executed in accordance with s.9
of the 1837 Act and represented the testator's intentions there were no
26
This springs from the Latin maxim omnia praesumuntur rite esse acta which basically means that
anything that needs to be done a certain way is presumed to have been done properly unless
shown otherwise.
good reasons for holding that the will had not been properly executed on
extraneous evidence (that is the very word of the witnesses themselves!).
The reasons for this were First, the practical reason that time diminished the
reliability of witnesses and the greater the passage of time the less accurate
the evidence would be (so that the documentary evidence is in effect
preferred). The witnesses also had no interest under the wills which they
had attested. Secondly, there was the matter of principle that rebutting the
presumption deprived the testator of giving effect to his wishes where he
had taken care that they should take effect in accordance with the
requirements of the law. Although the judge at first instance had referred to
the fact that one of the witnesses could not remember the execution of the
will as "remarkable" he had not suggested that that witness was dishonest.
In relation to their evidence both witnesses acknowledged that the
signatures were their own but denied any recollection of signing that will or
any other will. The Court of Appeal said that the fact that a witness could
not remember signing a document tended to crystallise in his or her mind a
view of the event that it had not happened at all. Moreover, in the present
case there had been a significant period of 7 to 9 years between the
execution of the will and the evidence of R and W. The CA said that it would
have been better if the judge had taken a more inquiring attitude to the
various possibilities as to what could have occurred27. The CA said it was
impossible to lay down any rule but where a will was valid on its face and
recollections were poor it might behove a judge to inquire into such
possibilities. In all the circumstances, taking the evidence as a whole the
judge could not properly have reached the conclusion that such evidence
satisfied the high test in Sherrington.
9. You should note that in both those cases there was evidence to show that
the will that was before the court did in fact represent the wishes of the
testator as expressed to solicitors during their lifetimes, the importance
where available of copy instructions and the will preparation file together with
27
It looks like the CA were suggesting the judge should have been more inventive!
attendance notes cannot be overstated in this connection and indeed
generally in the case of wills. Not that evidence from the solicitor who
prepared the will, taken from memory would be unhelpful, if you can get it.
The force of the attestation clause
10. While it is clear from the old cases such as Henson v Parker (1844), Reed
Thomson (1846) all of which are discussed in chapter 12 of Williams
Mortimer and Sunnucks (20th Edition – 2013), it is clear that the witnesses
need not even be told that the document is a Will but merely that there
would be some discussion so that there is some acknowledgement in
some form that the signature that is on the document in question is that of
the testator.
11. The attestation clause is itself evidence of due execution see the case of
Kentfield v Wright [2010] EWHC 1607 when it was said that only the
“strongest evidence” could rebut it.
12. However it that it cannot be concealed that there are cases in which that
evidence was indeed strong enough such as Ahluwalia v Singh [2012]
WTLR 1. In the leading case of Reece Sherrington (Court of Appeal) [2005]
WTLR 587 and Channon v Perkins [2006] WTLR 425 substantial
comments were made by the Judges in favour of the full force being given
to the presumption to execution of a Will. Peter Gibson LJ said in the
Sherrington case “it is not in dispute that if the witnesses are dead, the
presumption of due execution will prevail. Evidence that the witnesses have
no recollection of having witnessed the Deceased’s sign will not be enough
to rebut the presumption. Positive evidence that the witness did not see
the testator sign may not be enough to rebut the presumption unless the
Court is satisfied that it has “strongest evidence” in Lord Penzance’s words.
The same approach should allow Judgment be adopted towards evidence
that the witness did not intend to attest but he saw the Deceased sign
when the Will contained the signature of the Deceased and the witness and
an attestation clause. This is because of the same policy reason, but
otherwise the greatest uncertainty would arise in approving a Will.
In
general, if a witness has the capacity to understand, he should be taken to
have done what the attestation clause and the signatures of the testator and
the witness indicated namely that the testator has signed in their presence
and they have signed in his presence. In the absence of the strongest
evidence, the intention of the witness to attest is inferred from the presence
of a testator’s signature on the Will (particularly where …. It is expressly
stated and in witness of the Will the testator has signed), the attestation
clause and underneath that clause the signature of the witness.”
Capacity
1. Normally a testator must be 18 unless the will is privileged. A testator can
validly make a will on and from any part of his 18th Birthday. The old rule at
common law was that a person came of age on the eve of his or her
birthday.
2. The Mental Capacity Act 2005 (MCA 2005) came into force on 1 October
2007. Section 2 of the MCA 2005 provides that a person lacks capacity in
relation to a matter if at the material time he is unable to make a decision for
himself in relation to the matter because of an impairment of, or a
disturbance in the functioning of, the mind or brain. It does not matter
whether the impairment or disturbance is permanent or temporary.
3. In Scammell v Farmer [2008] it was held (albeit obiter dicta) that sections 16
to 18 of the MCA 2005 relate to the power of the court to make or authorise
the making of wills on behalf of persons who lacked capacity, not the
ascertainment of whether a particular testatator had capacity when a will
was made. Therefore, it appears that Banks v Goodfellow remains good
law. However, the Code of Practice issued by the Lord Chancellor under
MCA 2005 states that judges may adopt the new definition if they think it is
appropriate.
4. In the general law a person is presumed of mental capacity unless proved
otherwise, this presumption applies in non-contentious cases, although the
Registry can still make enquiries. In contested probate claims it has been
commented that is a there is a rebuttable presumption of incapacity which
is in most cases easily rebutted. This is not the view taken in most books,
especially Williams on Wills 9th Ed 2008 which comments that capacity is
presumed unless it (ie capacity as opposed to the will as a whole) is called
into question. The way it is put in Sutton-v-Sadler (1857) 3 CBNS 87 is that
it is for the propounding party to prove capacity but that unless there is
evidence of incompetency the will must be found for, which seems a bit
pointless as burdens of proof go. What I think is clear is that the issue only
really becomes live when there is some reason to doubt it such as illness,
great age, or perhaps a rather bizarre will.
5. The test for capacity in will cases is higher than in contractual or other areas
of law and requires
a) that the testator understands the nature of the act of making a will
and its affects
b) that he understands the nature and extent of the property of which
he is disposing
c) he must be able to understand the extent of those who may have a
moral claim on his estate and the nature of such a claim, whether he
includes them in his will or not
6. The leading case on this remains Banks-v-Goodfellow (1870) LR 5 QB 549.
This case sets out the above criteria. It is usual to admit medical evidence,
but note the limitations of it, and note that most medical practitioners will not
be aware of the terms of the test. They need to be able on capacity
generally and then more closely comment on the Banks-v-Goodfellow tests.
The Law Society and the BMA have published a joint booklet.
7. Hoff-v-Atherton [2005] WTLR 99 is a recent case dealing with capacity, it
left the old law undisturbed, but confirmed the distinction between capacity
and knowledge and approval as separate concepts. Interestingly Chadwick
LJ suggests that the capacity to understand in line with the Banks test is
what is needed and there is no need to go on to prove that the testator
possessed actual understanding of the components of the Banks test. It will
of course still be necessary to go on to prove actual knowledge and
approval, but with the assistance of the presumptions set out below.
8. The fact that the testator has delusions does not necessarily matter, eg
someone who believes they have been abducted by a UFO, or are
Napoleon, if this does not affect their testamentary decision making, in other
words relevancy. Where a testator imagined his son was trying to kill him,
and so revoked his will and made another excluding him that second will
was declared invalid Re Nightingale (no 2) (1974) 119 SJ 189. It can simply
be the case that one clause only is effected by the delusion so that the rest
of the will is admitted to probate.
9. If the testator suffered from a mental illness with good and bad days, the
court will not usually assume the will was made during a good episode.
Medical evidence and good impartial witness evidence will be required. The
attending solicitor will be a good witness (assuming he has taken good
notes) as will those in constant daily contact. Don’t expect witnesses to
have read Banks-v-Goodfellow. Break it down. Build up a picture from a
number of witnesses. If you are going to call any medical evidence you
should usually get a GP statement and in some cases that is all you are
going to need.
10. In the case of Re Adam Sharp-v-Adam [2005] EWHC [2006] WTLR 1059
the claimant beneficiaries, (S and B) sought for proof in solemn form of the
will of the deceased (X). X suffered from secondary progressive multiple
sclerosis. At the time he made his will in 2001 he was paralysed and unable
to speak. Instructions were taken in the form of closed questions (yes or no)
from his solicitor. The will was executed in the presence of his doctor and
the will was signed by another solicitor who had been asked to attend. The
will provided that the two main beneficiaries were to be S and B, who were
employees of X, and provided for a legacy for a carer. The will excluded X's
adult daughters, the first defendant (G) and second defendant (E). The
exclusion of G and E was contrary to earlier wills made by X, in particular a
will made in 1997 when X's condition was less severe. Apart from a two
month period approximately nine years prior to the making of the instant will,
when X and G and E's mother were separating, there was no evidence that
difficult relations existed between X and G and E. G and E had remained in
regular contact with X and visited him until he died. G and E challenged the
authenticity of X's will on the grounds of (1) want of knowledge and
approval; (2) want of testamentary capacity.
11. The Court (N Strauss QC as a High Court Judge) held that on the evidence,
X had understood the terms of the will, approved them and had authorised
the solicitor to sign the will on his behalf. (2) In the light of the factual and
expert evidence, X did not have testamentary capacity. He was able to
understand that he was making a will, he knew the identity of the persons
on whom he should confer his benefits and probably understood sufficiently
the nature and extent of his property and understood the effects of the will
he made. However, he lacked the capacity to arrive at a rational judgment
taking into account all the circumstances. It was likely that there had been a
temporary poisoning of his natural affection for G and E, or a perversion of
his sense of right, the nature of which nobody could satisfactorily explain.
Accordingly, it was not possible to conclude that the will as a whole had
been rationally made or that X's natural feelings for his daughters or his
sense of right were unaffected by a disorder of the mind. (3) The terms of
an earlier 1997 will were declared valid. Upheld by CA
12. The useful point to be extracted here is that what the testator was doing
“looked funny” it did not accord with earlier instructions and there was no
obvious reason why, that coupled with illness seemed to be enough, but I
am concerned about the Re Adam Case as I think it makes it impossible to
be really certain about capacity in terms of taking instructions. The Golden
Rule 28 had been applied but to no avail. Moreover experts not present at
the making of will were preferred in their view to those who had been
present.
13. As ever, there is an “on the other hand”, seen in Re McClintock 2005
[EWHC] in which the claimant (E) sought to have revoked the grant of
probate of the first will made by his brother, the deceased (M). The
defendant (S), M's niece-in-law, sought grant of probate in solemn form in
respect of a second will or, in default of that, in respect of the first will. M
had lived in a care home and made two wills a few days apart with the help
of the staff. The first will did not nominate an executor. Staff checked the
text with a solicitor, and in the second will S was nominated as executor
after consultation with M. Otherwise, the terms of the wills were identical
and bequested the whole of M's estate to S. E submitted that (1) in respect
of both wills, M lacked testamentary capacity when he made them, or
alternatively, that they were made without his knowledge or approval; (2) the
contents of the wills was surprising in preferring a niece-in-law as sole
beneficiary over blood relations. However the Court decided that (1) At the
time of the making of the wills M was suffering from a degree of cognitive
28
“In the case of an aged testator or a testator who has suffered a serious illness, there is one
golden rule which should always be observed, however straightforward matters may appear, and
however difficult or tactless it may be to suggest that precautions be taken: the making of a will by
such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself
of the capacity and understanding of the testator, and records and preserves his examination and
finding. Kenward-v-Adams (1975) The Times 29 Nov.
impairment even if not amounting to dementia. However, if there was
dementia it was showing only very early signs and was not so severe as to
deprive M of testamentary capacity. Nor was M deprived of testamentary
capacity by confusion flowing from an infection or medication at material
times. (2) It was not surprising that M should leave his estate to S, who, with
her husband, had been closest to him in his last years. (3) M knew and
approved of the contents of the wills and had agreed to the suggestion that
S should be his executor. (4) M's second will, as his last, should be
admitted to probate in solemn form. Thus in this case the court disposes of
the “it looks funny argument” over the actual disposition, and everything else
seemed to fall into place.
14. Some recent cases have broadened the kind of psychiatric symptoms that
can be regarded as having an impact on testamentary disposition decision
making, without impacting on the Banks test. These include Key-v-Key
[2013] WTLR 623 where the will was made a week after the death of Ts
wife, to whom he had been married 65 years. Re Wilson [2013] WTLR
899, another grief case, which had led to an affective disorder. Note also
Simon-v-Byford [2014] EWCA 1490 CA.
15. The facts of Simon-v-Byford were that the appellant Simon appealed
against a decision ([2013] EWHC 1490 (Ch), [2013] W.T.L.R. 1615) that his
late mother (M) had testamentary capacity and knew and approved the
contents of her will when she executed it in 2005. Under the will, apart from
a legacy to M's housekeeper, her estate was divided equally among her
four children (in the case of one who had died, his family trust was the
beneficiary). However, under previous wills made in the 1990s, S was to
receive a greater share than his siblings: a flat owned by M and her shares
in the family company were to be bequeathed to him. A letter from M at the
time indicated that she had favoured him because of his "unstinted help"
and because he had "proved himself to be the one who should hold the
reins of the Company". M had executed the 2005 will on the occasion of
her 88th birthday. S was not present at the time, but his two siblings were
(the third sibling had died in 2004). The experts called before the judge
agreed that by December 2005, when the disputed will was made, M was
suffering from mild to moderate dementia, to such a degree as to put her
testamentary capacity in doubt. However, having heard evidence from
those present on M's birthday, the judge concluded that she had
testamentary capacity and knew and approved the contents of her will. He
concluded, among other things, that this had been one of her "good" days,
that she knew that her previous will did not leave her property equally but in
some way benefited S, and that she "took a conscious decision, consistent
with her lifelong philosophy, that she wanted to divide her property equally
[between her children], and not to look back at past dispositions". S argued,
among other things, that the judge's finding that M "was not capable of
remembering her reasons for preferring [him] in her previous will, or its
terms" required a finding that she lacked capacity. However the appeal was
dismissed. Capacity depended on the potential to understand. It was not to
be equated with a test of memory. What S's submission really amounted to
was a memory test. In fact the classic formulations of testamentary capacity
limited themselves to requiring the testator to understand no more than the
extent of his property. They did not require him to understand the
significance of his assets to other people, Harwood v Baker 13 E.R.
117, Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 and Hoff v Atherton
[2004] EWCA Civ 1554, [2005] W.T.L.R. 99 followed. As to M's shares in
the family company, their significance was that if they all went to S in
accordance with the previous will, deadlock in the company would be
prevented, whereas if they were divided equally among the children
deadlock would be possible. However, the authorities did not go to the
length of requiring an understanding of the collateral consequences of a
disposition as opposed to its immediate consequences. Further, the judge's
finding of knowledge and approval was unassailable. His starting point was
one of "initial suspicion", given that the will was prepared and executed
without a solicitor and without M having been medically examined.
However, having heard the evidence, he held that his initial suspicion had
been dispelled. He found it clear that M knew that she was making a will,
took a conscious decision to make it and approved its terms. That
conclusion was fully supported by the evidence.
16. It is a mistake to get too carried away with medical evidence, or to compile,
as some people do a list of diseases which can impact on capacity, any
disease or disorder can, it need not even be a disease or disorder. The key
is always to understand and explain the disposition actually made.
17. The only way to reconcile the case law is to apply the Jones test, does that
will make sense? Does it do what you would expect, or what the testators
previous wills or wishes pointed towards, or does it do something at odds
with those expectations? If it does indeed do something “funny” then is
there a rational explanation? If not, then either capacity may have been
missing, or the testator did not really know and approve what he was doing.
18. The relevant time for capacity to be present is at the time of execution. Note
the rule in Parker-v-Felgate (1883) 8 PD 171. This states that provided
capacity is shown when the testator gave instructions, he does not need full
capacity for the moment of execution (whether he or someone else does it)
as long as he appreciates he is being asked to execute a will done in
accordance with his earlier instructions. Followed more recently in Re
Perrins [2011] Ch 270
Knowledge and Approval
19. It is necessary to establish, that the testator knew and approved the
contents of the will. In a straightforward case this is done by showing that
he read it over, or that it was read over to him. If there is capacity plus
proper formalities then it can be presumed, and often is inferred anyway
from the surrounding evidence, this approach has been confirmed recently
by the Court of Appeal in Hoff-v-Atherton [2005] WTLR 99. Typically there
can be problems with mistakes, in the case of deaf or blind testators and
where there are suspicious circumstances 29 . There is great scope for
confusion between this type of challenge and one based on fraud or undue
influence. Fraud or Undue Influence will also mean automatically that the will
must fail on this ground also but the same is not true vice versa. Usually the
combination of the proof of capacity and of due execution will produce a
presumption of knowledge and approval Re Estate of Fuld No 3 [1968]
P675. Note also that where solicitors were involved in drafting, you should
always get hold of the actual testator client’s file, and look at the instructions
given and attendance notes, the fact that the will is in accordance with the
instructions taken professionally and after advice is clearly a matter of great
import.
20. The question is did the testator appreciate what he was doing when he
signed the will, Gill –v- Woodall [2011] Ch. 380; [2011] 3 W.L.R. 85; Note
also Burgess-v-Hawes [2013] WTLR 453.
21. The facts of Burgess were that the appellant (J) appealed against a decision
([2012] W.T.L.R.423) that a will which her deceased mother (D) had
executed in 2007 was invalid. In 1996, D had made a will providing for her
residuary estate to be divided equally between her three children (J, E and
P). In 2007, J made a solicitor's appointment, as a result of which D made a
new will, dividing her residuary estate equally between J and E30. By that
29
What amounts to suspicious circumstances is of course a question of fact, there is the so called
rule in Barry-v-Butlin (1838) 2 Moo PC 480 in which it was said that if another person had prepared
the will and also benefited then the court would be “vigilant and jealous”. That did not mean that
such circumstances were a bar to admission to probate see Hart-v-Dabbs [2001] WTLR 527
merely that in the case the court looked carefully at surrounding evidence supportive of actual
knowledge of the contents. In that context it is helpful, but not always sufficient, if the witnesses can
say whether or not the testator gave any indication of having read the will or knowing it’s contents.
30
Jones’s law applies.
point, D's health was declining. The solicitor was independent and
experienced in drafting wills. His attendance note stated that D was "entirely
compos mentis". The solicitor did not send the will to D before execution,
but explained it to her before she executed it. J remained in the room with D
at both meetings with the solicitor. The will stated that limited provision was
made for P because of the substantial lifetime provision D had made, or
would shortly be making, in his favour. The judge found that J had provided
inaccurate information to the solicitor about that. J had fallen out with P
when the 2007 will was made. D remained close to P until her death in
2009, but never told him about the later will, even though she told him that
she had given £1,000 each to J and E. The judge found that J was the
"controlling force" in the instructions for the drafting of the 2007 will. She
found that D lacked testamentary capacity according to the test in Banks v
Goodfellow (1869-70) L.R. 5 Q.B. 549, because she knew she was making
a will and appreciated the extent of her property, but was incapable of
understanding the claims arising to which she ought to give effect. That was
based on evidence from a professor of old age psychiatry that D had been
suffering from vascular dementia. The judge also found that D wanted
knowledge and approval of the contents of the 2007 will. J submitted that
(1) a will which had been prepared by a solicitor, read over to the testator
and properly executed raised a very strong presumption that it represented
the intentions of the testator, but the judge had failed to give specific
reasons for her conclusion that D did not know and approve the contents of
the 2007 will; (2) That there was not any basis for the finding of lack of
capacity. However the Appeal failed, with the CA holding that (1) The judge
had properly directed herself on the law on want of knowledge and
approval. The will had been made in circumstances which justified the
court's insistence on evidence that D knew and approved its contents. P
had taken a share of the residuary estate in the 1996 will. Although J and P
had fallen out, D and P had not. They remained close until P's death, yet D
never told him about the new will, even though she told him about gifts
which she had made to her daughters and not to him. J had made the
solicitor's appointment, taken D to the offices, and remained in the room
when D gave instructions and executed the will. That all happened without
the knowledge of E and P, at a time when there was a rift between P and J.
J had been found to be the source of inaccurate information supplied to the
solicitor about sums paid, or to be paid, to P in his lifetime. Further, D had
not had an opportunity to check and approve the contents of the draft will
before she went to the solicitor's office to execute it. Those particular
factors, in addition to the judge's findings on the deteriorating state of D's
physical health, her mental state and her diminishing capacity, were
sufficient to support her overall conclusion on D's want of knowledge and
approval of the contents of the 2007 will, (2) The issue of testamentary
capacity was a difficult one. The courts should not too readily upset, on the
grounds of lack of mental capacity, a will that had been drafted by an
experienced, independent lawyer. Such a will should only be set aside on
the clearest evidence of lack of mental capacity. The court had to 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 had neither
met nor medically examined the testatrix, and particularly in circumstances
when that expert accepted that the testatrix understood that she was
making a will and also understood the extent of her property. Although it
had been for the judge to decide what weight should be given to the
evidence that she had heard, the instant court had doubts about whether
the judge's findings justified the conclusion that D lacked the mental
capacity to understand the claims to which she ought to give effect
regarding P, Banks v Goodfellow considered. However, it was unnecessary
to express a concluded view on that because the judge had properly
directed herself on want of knowledge and approval
Knowledge and Approval, can mistakes trigger a possible finding?
22. The Court will ignore typos and simply read in what was meant. It will also read
in words which are obviously missing. An extreme case is Re Phelan [1971] 3
All ER 1256. There the testator for reasons best known to himself made out 4
wills each dealing with different aspects of his estate. Each one was on a will
form which contained a revocation clause. The court ignored the revocation
clause in the last 3 and admitted all 4 to probate. Consider also Re Vautier
(2000-01) ITELR 566. (Mutual wills mistake as to wills prepared and executed).
In Martin-v-Brothwood [2007] WLTR 329 the question of what amounted to a
“clerical error” arose, it was suggested by Counsel that an error by the testator
would not be automatically corrected but one which was in effect a
mistranscription by the draftsman would be. The Court rejected that idea and
held that any obvious mistake could be corrected, whether it was made by the
draftsman or the testator, since in many cases it would not be possible to tell.
Uppermost in the Court’s mind was the wish to avoid a partial intestacy.
23. Note that the District Judge (probate registry) has a power to rectify wills in a
non-contentious procedure under NCPR 55, essentially this is a paper only
procedure, and all relevant parties are notified by the DJ. It is not available
where a probate action has been commenced. It is suitable where the
relevant parties simply require the situation clarified.
24. However bear in mind that the Court’s power to rectify a will is a statutory
power under Section 20 of the Administration of Justice Act 1982. The
grounds are that the will does not carry out the wishes of the testator by
reason of a clerical error, or by reason of a failure to understand the
instructions given by the testator. Although there is a power to extend time
the application must usually be made within 6 months of the grant. All the
PRs must be joined and the grant must be lodged (the CPRs deal with this
in CPR 57.12 and in paragraph 10 of the PD for CPR 57).
Knowledge and Approval -Disability
25. This is in a sense related to (and often will be factually related to) capacity. In
essence however it is simply the case that the court will require evidence
satisfying it that the will really is the testator’s intentions. NCPR 13 directs
the DJ (Registrar) to satisfy himself that a blind or illiterate testator had the
necessary knowledge of the contents of a will. In some cases, of course,
the DJ (Registrar) will not know if the testator was blind or illiterate. He might
of course be alerted by the use of the modified attestation clauses which
are usually present in professionally drafted wills. In many cases the
presence of such a clause in a professionally drafted will by reputable
solicitors will be enough to satisfy the Registrar.
Knowledge and Approval -Suspicious Circumstances
26. If things seem suspicious in or about a will then this can in some cases
prevent a will being admitted to probate. The leading case is the
entertainingly named Barry-v-Butlin (1838) 2 Moo PC 480 where the
testator left his son out of his estate and left his entire estate to Mr Butlin
although he did leave amounts to his brother and solicitor. Although the son
failed to make out his claims of fraud or conspiracy the court found that in
every case it was for the propounding party to show that the will was indeed
the will of a free and capable testator and the court will be “vigilant and
jealous” where the party propounding both benefits from the will and also
played a hand in preparing the will. In such cases it was held that the
propounding party would have to remove the suspicion which attended
such cases. This case was followed in Wintle-v-Nye [1959] 1 WLR 284, in
which a woman who was elderly named the solicitor who prepared the will
as her sole executor and residuary legatee. There was no evidence as to
the instructions except from the solicitor, there was nothing against him
except suspicion but it was enough on the facts to prevent the will being
given effect to.
27. Buckenham-v-Dickinson [2000] WTLR 1083 is a case where the court was
concerned with a complex new will made by a testator who suffered from
blindness, deafness and hardening of the arteries which impacted on his
thinking. Although the change in the disposition of the estate was not really
suspicious the real problem came from execution. The solicitor who
prepared the new will had acted honestly but had received the instruction
from the testators wife rather than the testator he had read it over to the
testator who simply grunted in response to questions. The court felt that the
plethora of medical conditions and the manner of preparing the will and it’s
execution led the Court not to be satisfied on the issue of knowledge and
approval. It was added by the Court that very elderly testators should have
their wills witnessed by medical practitioners who could first satisfy
themselves as to their capacity. Another similar case is D’eye-v-Avery
[2001] WTLR 227. Note that these are not capacity cases but knowledge
and approval cases.
28. Classic case is where the preparer of the will also benefits from it in a
substantial way. In such a case the proponent of the will has to bear the
burden of removing the suspicion based on credible evidence. Even in the
absence of evidence implicating the proponent, a failure to give a good
explanation will prevent probate being granted.
29. Severability of portions of a will which are discrete and of which the Testator
did not know and approve was discussed in Marley-v-Rawlings [2014] see
above. Note that incorporating lots of boiler plate standard clauses by
reference is just asking for it, IMHO.
Undue Influence
30. Just to confuse you this concept in the case of wills is related to but quite
distinct from the equitable doctrine of the same name in the general law.
31. The main point of difference is that there is no presumption of undue
influence in the way that Equity presumes it with regard to certain
relationships. So that gifts in a will between client and solicitor, husband and
wife etc do not give rise to any such a presumption. Instead this is more
factually based, the issue is whether the testators mind was being
dominated by some party or by pressure or harassment inflicted by them.
Even this however, although not presumed can be inferred, such as where
a person has care and control over a frail and elderly person who proceeds
to leave them a substantial gift (Jennings-v-Cairns [2003] WTLR 959). There
is a considerable cross over with knowledge and approval and it is often
hard to tell them apart. The question is whether the will represents the free
and informed thought of the deceased. Strictly speaking an allegation of
Undue Influence must be pleaded and proved by the party opposing the
will. It is hard to be specific about what will amount to undue influence in the
context of probate. It is said that the test is would the testator if they could
speak say “it is not my wish but I must do it” Winsgrove-v-Winsgrove (1885)
11 PD 81. A more recent case is Killick-v-Pountney [2000] WTLR 41 in
which the testator resided with the Defendants as their lodger but was
related to the Claimant whom he had left everything in his will. Subsequently
he told the Claimant that he had been banned by the Defendants from
seeing him on pain of losing his lodgings ( by then he was in hospital and
87). At some point after that the Defendants sent for a solicitor who made a
new will leaving substantial sums to them even though they owed the
Claimant money. Thereafter the testator died. Claimant sued as the
executor of the previous will and the Defendants did not defend. The
undefended trial was held on paper and not surprisingly undue influence
was held to have vitiated the second will.
32. In most cases undue influence is difficult to prove although the latter case
exemplifies how it can be inferred.
33. Wright-v-Hodgkinson [2005] WTLR 435 is a recent case, although it is inter
vivos. Claimant who was an elderly bachelor formed a friendship with the
Defendant who was 37 years his younger. Claimant allowed Defendant to
keep farm equipment rent free on Defendant’s land. In 1993 the Claimant
executed a will in Defendant’s favour. In 1994 Claimant invited Defendant
and family to share his property with him. Defendant then had Claimant’s
solicitor prepare a transfer of a half share of the property which was done
and effected. Inevitably they fell out and Claimant wanted his half share
back. In that case the Claimant succeeded because on the Randall-vRandall31 basis of a relationship in which party placed trust and confidence
in the other there was a presumption of undue influence where the
transaction was one which was not reasonably accountable for on the basis
of friendship, charity or the ordinary motives on which people act.
Fraud
34. Fraud in the context of wills is just a sub type of Undue Influence and
consists of typically poisoning a testators mind by such things as false
allegations about a potential beneficiary. Forgery is a sub type of Fraud and
applies to cases where a signature is alleged to have been forged. The
evidence of a handwriting expert is usually determinative.
Revocation
A will can be challenged on the grounds that it is revoked.
On the issue of revocation you will need to consider SS 18 and 20 of the Wills Act
1837 as amended.
All wills are revocable even the ones which say that they cannot be revoked, in
some cases that can lead to separate action for eg, breach of contract to make a
will, establish a right by estoppel or to enforce a mutual will, but that does not mean
the will is not revoked effectively.32
31
[2005] WTLR 401. This restates the Etridge test RBS-v-Etridge [2001] UKHL 44 this classified
undue influence in the general law as 1 actual undue influence 2a presumed from certain categories
of relationship and 2b presumed from a proven relationship of trust and confidence.
32
Note that the doctrine of dependent relative revocation applies and that may mean that even a
destruction with animus will be negatived if it was done conditionally and that condition has not
Failure to revoke a will can mean that any number of them are admitted to probate.
The methods of revocation are
a) Subsequent will.
- Usually there will be a revocation clause which again is usually given effect to
although not if the court considers that the testator did not intend to note the Re
Phelan case above. (an example of discrete application of Knowledge and
Approval.
- It is in fact always a case of working out what the testator intended to do
- The Court will not regard the expression “last will and testament” or “last and only
will and testament” as necessarily revoking previous wills Simpson-v-Foxon [1907]
P54
- In cases where there is no or no sufficient revocation clause the court will have to
do it’s best, looking for example at things such as consistency and since the
Administration of Justice Act 1982 extrinsic evidence, including conversations,
legal instructions etc.
b) Total destruction – by burning tearing etc. Note that crossing out never works33.
Note that everything depends once again on the intention of the testator but that
partial destruction may in general revoke only partially. A will with a section carefully
cut out was admitted to probate in Re Everest [1975] Fam 44. A will screwed up
and thrown in the bin with the words “this is revoked” written all over it was
admitted to probate in Cheese-v-Lovejoy (1877) 2 PD 251. Note that destruction is
not enough unless accompanied by an “animus revocandi” which is an intention to
revoke. Evidence about this can be hard to find but the burden of proving
revocation rests on the party asserting it. Above all note that the destruction must
be done by the testator or by someone in his presence and at his direction.
c) Marriage or Civil Partnership but not Divorce or Annulment. Note the effect of
divorce or annulment is in effect to cut out the former spouse by a fiction that he or
materialised, e.g. where testator destroys a will thinking he has made a new one which turns out not
to be valid.
33
It is fair to say that complete obliteration of the signature so that no part of the signature can be
seen even with mechanical aid, would prevent admission to probate. Note that alterations and
intelineations made after execution are invalid (Section 21 Wills Act) and that unattested alterations
will be presumed to have been made after execution.
she died on the date of the divorce or annulment (Law Reform (Succession) Act
1995). In relation to marriage, a will made in contemplation of a marriage to a
particular person is of course not revoked, but not a will made in contemplation of
marriage in general, even if the will says that “this will is made in contemplation of
marriage” Sallis-v-Jones [1936] P 43
d) The lost will. Strictly this should be dealt with under destruction because the
effect of a will which is lost and which was known to be in the custody of the
deceased before death is to produce a presumption that it has been revoked by
destruction. Note that this presumption has no application where the will was last in
the possession of a third party Chana-v-Chana [2001] WTLR 206. In Re Dickson
[2002] WTLR 1395 a will which had undoubtedly been prepared could not be
found, but evidence about the occasional loss of documents by the deceased,
coupled with statements made about the will being in existence before his death
led the court to hold that the presumption was rebutted. In Rowe-v-Clarke [2006]
WTLR 347 it was said that the presumption of destruction with intention of
revocation was of varying strength depending on how organised a testator was
with his papers, and that where he was a disorganised individual who often lost
papers it was very weak. This was also the case in Nicholls-v-Hodson 2007 WLTR
341 (Evidence that testator was an alcoholic who was disorganised) and in Wrenv-Wren 2007 WLTR 531, where the evidence was that the testator had done
nothing after making the lost will to indicate any revocation and had acted in
general terms in ways that were consistent with it’s continued existence. The net
result is that the presumption of revocation in the case of a lost will must be
regarded as a weak presumption, which takes effect only where it is the most likely
explanation on the facts.
Costs Orders
1. Costs usually follow the event even in a probate action, but some other
order, including payment out of the estate may be made where
a. The claim resulted from a mistake by the deceased or from his
inattention
b. The claim is some other parties fault
c. There were reasonable grounds for opposing the will, typically where
there is contradictory evidence about execution or some other issue
which could only be resolved at trial
d. The Cross Examination Notice procedure is used (CPR 57.7 (5)), this
is where a Defendant serves a defence simply stating that he
requires the Will to be proved in Solemn Form and is subject to the
further proviso that the acts reasonably and has reasonable grounds
to continue to defend the proceedings.
2. The law on this is generally considered in Kostic-v-Chaplin 2007 EWHC
2909