Contentious Wills & Probate Case Law Roundup 2020: Part II
Legal update written by Anna Metcalfe.
VALIDITY
Capacity
Two validity cases in particular stood out last year and both turned on whether or not a testator suffered from ‘insane delusions’ rendering their wills invalid. There are fewer reported cases giving guidance on this strand of the Banks v Goodfellow test (most cases I deal with revolve around old age psychiatry) so these recent cases are worth some scrutiny.
In Templeman, deceased [2020] EWHC 632 (Ch), (19th March 2020) the last will of Lord Templeman was challenged by his youngest son. Lord Templeman made a codicil in 2004 to a 2001 will. He then executed a new will in 2008, around 6 years before his death.
Lord Templeman had two sons from his first marriage, and two step-daughters (who sought to propound the 2008 will) from his second marriage to Sheila. He became aware that Sheila would likely leave her property (called Mellowstone and which pre-dated their marriage) to him on her death. To address what he perceived to be this injustice he executed the 2004 codicil which provided that (in the event he did so inherit) each of his grandchildren would receive £20,000 and Sheila’s residuary beneficiaries would receive £120,000. Any greater value of Mellowstone would fall into his own residuary estate, which was to be shared by his two sons, Peter and Michael. Two months after Sheila’s death, he then executed the 2008 will. By this will he left Mellowstone in its entirety to his stepdaughters, left no legacies to his grandchildren or to Sheila's residuary beneficiaries and, after some modest gifts, the entire residue of his estate was left to his sons. However this residue was less than they would have received under the 2001 will (as amended by the 2004 codicil). It was common ground that Templeman had suffered memory problems for 8 years before his death.
The Defendant sons contended that there was no rational explanation for the 2008 will. The explanation Lord Templeman gave to his solicitor was that Mellowstone really belonged to Sheila’s family and should be left to them, was, they say, irrational. This is because this was the same explanation given for the 2004 codicil. They contended that Lord Templeman had forgotten his arrangements in 2004 and was acting under an illusory belief that he had not provided in his will for the eventuality that he inherited Mellowstone. He accordingly lacked testamentary capacity.
Farncourt J addressed the question whether or not, unlike the criteria (in Banks v Goodfellow) of understanding the nature of the act of making a will and its effect and the extent of the estate to be disposed of, the criterion of comprehending and appreciating the claims upon a testator requires actual comprehension, not merely the capacity to understand. He reviewed the law in this area and firmly aligned himself with authority that a capacity to understand, rather than actual understanding, was sufficient.
He also felt a failure of memory about previous intentions fell far short of a ‘delusion’. The sons relied heavily on Re Belliss (Polson v Parrott) [1929] TLR 452 for the proposition that an illusory belief is equivalent to a delusion. In that case, an elderly testatrix made a last will in secret, in which she departed for the first time from equal provision for her two daughters that she and her husband had made in previous wills and in lifetime gifts. The last will professed to provide equality in her dealings with her daughters; in fact it did not, because the testatrix was subject to a mistaken impression, amounting to a delusion, that for years she had given more financial assistance to one daughter than to the other.
But Farncourt J rejected the application of this authority, stating:
“This was not a case a mistaken belief that was capable of being corrected. It was a case of an illusory belief from which Mrs Belliss could not be shaken and which deprived her of reason. I therefore reject the suggestion that Re Belliss stands as authority for the proposition that a mere mistaken belief, which is the product of forgetfulness, is inimical to testamentary capacity. In my judgment, the President was not using the phrase “illusory belief” as meaning “mistaken belief”, but as denoting a kind of fixed belief, similar in character as an insane delusion, which the testator does not have the mental powers to overcome”
In Lord Templeman’s case, he made a simple mistake, which was attributable to his poor memory and not to any mental illness or fixed belief, which he had not the capacity to sort out in his mind. It did not deprive him of testamentary capacity.
The case of Clitheroe v Bond [2020] EWHC 1185 (Ch) (a decision of the High court of 21st May 2020) may be less high profile, and about a more modest estate, but the judgment provides really useful guidance about this strand of incapacity and how it is to be approached. The testator, Jean, had three children, Debs, John and Sue. Debs died in 2009 of cancer. Jean made wills in 2010 and 2013 which both largely benefitted John and excluded Sue. She clearly documented her reasons for excluding Sue which included her being a ‘spendthrift’ and a ‘shopaholic who would just fritter it away’, her not contacting or caring for Jean, and an alleged ransacking of Debs’ property by Sue after her death. Jean’s estate was worth around £350,000.
Sue argued that both wills were invalid on the grounds of fraudulent calumny (that Jean excluded Sue on the basis of false beliefs induced or encouraged by John) or that Jean was suffering from a grief reaction as a result of Debs’ death which lead to her suffering insane delusions about Sue which influenced her wills.
Deputy Master Linwood concluded that Jean did have false beliefs about Sue, but that there was no direct evidence they were induced by John. Rather, these false beliefs were irrational and not based on fact and amounted to delusions which influenced her to cut Sue out. Both wills were accordingly invalid on the basis of lack of capacity. Fraudulent calumny failed.
Of interest in the judgment is a detailed consideration of the correct definition for an insane delusion within the Banks v Goodfellow test. In particular, Deputy Master Linwood prefers a definition set out in Williams, Mortimer and Sunnucks which is ‘a fixed false belief of morbid origin inconsistent with the patient’s cultural or educational background’, a test based on Boughton v Knight (1873) LR 3 PD 64 which states:
“perhaps the best legal test for determining whether a delusion is present in a person’s mind is this “you must necessarily put to yourself this question and answer it, ‘Can I understand how any man in possession of his senses could have believed such a thing? And if the answer you give is, ‘I cannot understand it.’ Then it is of the necessity of the case that you should say the man is not sane”.
He preferred this formulation to one in Williams on Wills that “a delusion is a belief in the existence of something which no rational person could believe and, at the same time, it must be shown to be impossible to reason the patient out of the belief”. It was the latter part of this sentence (my emphasis added) that Deputy Master Linwood considered was not supported by authority, would lead to uncertainty, could lead to nonsensical courses of action and would risk reversing the burden of proof. It would be wrong for a lack of challenge to defeat a clear delusion where the testator may have kept their belief to themselves. Rather, the approach was correctly identified in Williams, Mortimer and Sunnucks and there is no requirement to seek to prove a negative. This was important in Clitheroe because although Jean’s ‘reasons’ for excluding Sue were documented (being a shopaholic etc.), it was found there were more serious underlying delusions about Sue’s role in Debs’ death which Jean kept to herself and therefore hadn’t been challenged during her lifetime.
Further useful guidance was given on the approach to be taken by experts in assessing capacity retrospectively. The task faced by the court, and to which experts should address themselves, is to determine whether or not on the balance of probabilities and on the available evidence the deceased had testamentary capacity. This could not be approached by applying the standard required for a clinical diagnosis during the deceased’s lifetime. The absence of a lifetime psychiatric assessment did not preclude a finding that the deceased was suffering from an affective disorder.
The judgment also reminds us of the shifting burden of proof. A rational will properly executed is presumed to have been made validly. If there is evidence to displace this presumption, the onus is on the party propounding the will to establish that a testator was of sound mind. In the particular case of insane delusions, Deputy Master Linwood noted that “where it is established that the testator suffered from them the person propounding the will bears the burden of proving that the testator was free of them or that they did not affect particular dispositions.” In Clitheroe, John’s expert accepted he could not say that Jean did not have a depressive disorder, rather that there was not enough information in the medical records to be confident that she did. This did not discharge the burden of proof on John.
I understand that John Clitheroe has permission to appeal the decision on the ground that that the MCA 2005 is the correct test for testamentary capacity rather than Banks. Watch this space.
Forgery
In 2020 there were two key decisions dealing with forgery, and in particular, where the burden of proof lay in cases where forgery was alleged.
The first was Re Brunt (Deceased) [2020] EWHC 1784 (Ch) which received particular media attention because of the involvement of an office cat. The Deceased died intestate aged 35 in 2007 and the estate was administered accordingly. In 2018 a will from 1999 was discovered by a cat knocking over a pile of papers in a solicitor’s office. The Deceased’s uncle sought to propound this will. Unusually, it was not signed by the Deceased but by a “Howard Day’ as his enduring power of attorney. Mr Day had previously been convicted of fraud.
The expert evidence concluded there was ‘strong’ evidence that the 1999 will was signed at a much later date.
Master Teverson held that given the unusual circumstances, i.e. the decade of delay before the will was ‘discovered’ and it being signed by the testator’s EPA, convincing evidence was needed to defeat the allegation of forgery. This meant the evidential burden lay with the Claimant seeking to propound the 1999 will (reversing the usual position that the burden of proof lies on the person alleging forgery).
Perhaps surprisingly (although I would recommend reading the judgment for a full appraisal of the facts), the will was upheld. The judge gave more weight to the factual evidence pointing towards validity than the expert evidence suggesting otherwise. This is a reminder that witness evidence should not be underestimated and that expert evidence, particularly in forgery cases, is rarely conclusive.
I understand that an appeal against this decision has been upheld and a retrial ordered on the basis that the master had erred in his approach to the assessment of the evidence at trial. The decision is as yet unreported.
Because of the successful appeal, the costs decision at first instance has necessarily been overturned, but is still noteworthy and was not the basis of the appeal. This is because the first exception to the general rule as to costs in probate claims (that they follow the event), as set out in Spiers v English [1907] p.122, was applied. This is where the testator has really been the cause of the litigation and that the circumstances lead reasonably to an investigation of the matter. It is unusual in itself for this exception to be applied, but even more unusually, Master Teverson found that the conduct of Howard Day (the testator’s EPA who signed the will) should be treated as part of, or an extension of, the testator’s conduct, and that the fact he signed the will was bound to be a source of family argument and suspicion and caused the litigation. All costs were awarded from the estate. It will be interesting to see if the same approach is taken upon the conclusion of the re-trial.
Another case where a ‘missing’ will was found in unusual circumstances was Face v Cunningham [2020] EWHC 3119 (Ch). In this case, a photocopy of a will was discovered under a bedspread on a bed in a spare room. I enjoyed the introduction to this judgment by HHJ Hodge QC:
“If the late Sir Arthur Conan Doyle, or his worthy modern-day successor Mr Anthony Horowitz, were to write up the events which have led to this present, unhappy litigation, they would no doubt have titled the resulting chronicle "The Case of the Missing Original Will”…
The Claimant, one of three siblings, sought to propound this ‘missing’ will, which effectively gave her the estate and disinherited her siblings. Curiously, the will itself contained detailed reasons for the dispositions. The Defendants alleged that the ‘missing’ will had been forged. The judge found that the Claimant had conspired with the two ‘attesting witnesses’ to forge a will in her favour. He found them all to be completely incredible witnesses. The expert handwriting evidence was neither here nor there.
The important takeaway from this case is that the judgment turns on its head the widely accepted proposition that the burden of proof in forgery cases rests on the person who alleges it (and even counsel for the Defendants accepted this as the law). However, HHJ Hodge QC said:
“I do not accept that the burden is on a person alleging forgery to establish that fact (albeit to the civil, rather than the criminal, standard of proof). It is a formal requirement of the validity of a will that (amongst other things) it is in writing, it is signed by the testator (or by some other person in his presence and by his direction) and it is duly witnessed. It therefore seems to me that the burden must rest on the party propounding a will to establish that it has been validly executed and witnessed. That is one of the formal requirements for proof of a will. I can well understand that where a will is challenged on the grounds of fraud or undue influence, the burden is on the party asserting that; but where the forgery of a will is alleged, then the ultimate burden of proving that the will is not a forgery must rest on the party propounding the will, as part of the formal requirements of proving that the will was duly executed by the testator and was duly witnessed”.
Costs were awarded against the Claimant on an indemnity basis and a transcript of the judgment was sent to the CPS. Ouch!
It will be interesting to see whether this case is referred to in the re-trial of Brunt.
Another forgery defence succeeded in 2020, and that was Ball v Sisson [2020] 1 WLUK 544. This case turns on its facts and doesn’t raise anything of note, other than that the usual burden of proof was considered to be upon the person alleging forgery.
