1. Royal National Institute for Deaf People (A company Ltd by guarantee no. 00454169 and registered charity no. 207720) and Others v Adrian Alan Turner
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] EWHC 3301 (Ch) |
| Docket Number | Case No: HC-2014000160 |
| Court | Chancery Division |
| Date | 18 November 2015 |
[2015] EWHC 3301 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE ESTATE OF DOROTHY PATCHETT WHELEN (DECEASED)
7 Rolls Building
New Fetter Lane
London EC4A 1NL
His Honour Judge Behrens sitting as a Judge of The High Court
Case No: HC-2014000160
Richard Wilson (instructed by Royds LLP) for the Claimants
Simon Myerson QC and Benjamin Fowler (instructed by Kelsall & Company) for the Defendant
Hearing dates: 2 – 6 November 2015
Introduction
This is a probate action arising out of the death of Dorothy Whelen ("Mrs Whelen") who died on 9 February 2012 aged 92. The Claimants are the residuary beneficiaries under a will dated 21 October 1982 ("the 1982 Will"). The Defendant, Alan Turner, is a relatively small beneficiary under a homemade will which is alleged to have been executed on 1 November 1999 ("the 1999 Will"). The principal beneficiary under the 1999 Will was Hazel Turner ("Mrs Turner") who is Alan Turner's mother. Other beneficiaries include two of Alan Turner's brothers, Philip and Glen Turner and Robin Summers. The estate is valued at approximately £1.8 million pounds.
The principal relief sought by the Claimants is a grant of probate in solemn form of the 1982 Will. The Claimants challenge the validity of the 1999 Will on two grounds.
First, the Claimants contend that the 1999 Will was not executed in accordance with s 9 of the Wills Act 1837. In particular they contend that it was not signed by Mrs Whelen in the presence of 2 witnesses (s 9(1)(c)) and that the two witnesses who attested the will (Mr Hallam and Mrs Tomalin) did so at the request of and in the presence of Mrs Turner in the belief that they were witnessing Mrs Turner executing her own will. Both Mr Hallam and Mrs Tomalin assert that Mrs Whelen was not present when they attested her will (s 9(1)(d)).
Alan Turner does not accept this analysis. He points to the fact that his mother and Mrs Whelen were lifelong trusted friends. They had been to school together; they had been bridesmaids at each other's weddings. Mrs Whelen had no close relatives and had expressed a wish to leave her property to Mrs Turner. Mr Hallam and Mrs Tomalin did not raise the question of any irregularity in respect of the 1999 Will until 2005 some 6 years later. Whilst they have made further witness statements the later accounts have included details not included in the original 2005 witness statements. In all the circumstances he invites the court to treat their evidence with caution and to rely on the presumption of due execution.
Second, the Claimants contend that Mrs Whelen did not know and approve the contents of the 1999 Will. They contend that this is one of those cases which "excite the suspicion of the Court". In those circumstances it is for Alan Turner as the person propounding the 1999 Will to prove affirmatively that Mrs Whelen knew and approved the contents of the 1999 Will. They contend for a number of reasons that the will fail in that task. Alan Turner does not accept that the 1999 Will excites the suspicion of the Court and thus he seeks to rely on the presumption of due execution. If, contrary to that submission, the suspicion of the court is "excited" he contends that in all the circumstances the court can be satisfied that Mrs Whelen knew and approved the contents of the 1999 Will.
The matter does not end there. The terms of the 1982 Will are not in dispute. However, an issue has arisen as to whether it has been revoked. Although a copy of the 1982 Will was found in Mrs Whelen's house after she died the original will cannot be found. If the 1999 Will was validly executed there is no dispute that it validly revoked the 1982 Will. However, if the 1999 Will was not validly executed an issue arises whether Mrs Whelen revoked the 1982 Will by destroying it. This is an issue between the Claimants as residuary beneficiaries under the 1982 Will and Mrs Whelen's next of kin who would be entitled under an intestacy. Alan Turner is not related to Mrs Whelen with the result that it will make no difference to him whether or not the 1982 Will was revoked. He will only succeed if the 1999 Will was validly executed.
On 20 December 2013 the Claimants and the next of kin reached a confidential agreement in relation to the estate. In those circumstances the next of kin have elected not to take part in the proceedings.
In those circumstances Mr Wilson submitted that Alan Turner should not be permitted to cross-examine or make submissions on this issue. Whilst I saw the force of the submissions I did not accept them. For reasons I gave on the first day of the trial I permitted Alan Turner to participate in this issue. In summary I felt that Alan Turner was already a party and plainly had an interest in the question of the execution of the 1999 Will and thus was in no way intermeddling in the proceedings. Furthermore, the question of whether Mrs Whelen destroyed the 1982 Will might be relevant to the question of whether she knew and approved the contents of the 1999 Will.
Finally there is an application under s 116 of the Senior Courts Act 1981 that the interest of Mr Godfrey (who was named as the executor of the 1982 Will) be passed over in favour of the Claimants. This application only arises if the Claimants succeed in establishing their entitlement to a grant of the 1982 Will. If they do there is no opposition to the s 116 application and I can deal with it quite shortly.
The facts
Background
Mrs Whelen was born on 1 July 1919. Mrs Turner was born some 7 months later on 29 February 1920. It is not in dispute that they were life-long friends. According to Mrs Turner they met in 1925 at Sunday school. They attended the same school and remained friends all their lives.
Mrs Turner married in 1940. Mrs Whelen married in 1948. Each was a bridesmaid at the other's wedding. At this time they were both living in Halifax.
Mrs Whelen remained in the UK. She moved first to Lymington and then to Hampton Court. Mrs Turner emigrated to Argentina in the mid 1950s and lived abroad for 22 years teaching English as a foreign language.
Mrs Whelen worked at some time for the International Wool Secretariat in London.
Mr Whelen was a qualified surveyor, an auctioneer and was involved in property dealing. Much of his property dealing was carried on with an accountant, Robin Summers ("Mr Summers"). As a result Mr Summers became a close personal friend and advisor to Mrs Whelen.
After she returned to England Mrs Turner taught at a language school in Richmond. Whilst there, in about 1991 she met a fellow teacher Mr Hallam.
In August 1997 Mr Hallam set up his own small language school in Richmond. Mr Hallam described it as a boutique school accredited by the British Council. He generally employed about 3 teachers apart from himself. In the summer months there would be up to 45 students but in other months there were less than 15. The students were usually young and often only attended for a matter of weeks. Amongst the teachers employed by Mr Hallam were Mrs Tomalin and Mrs Turner. Mrs Tomalin was employed full time from 1998 to 2007. Mrs Turner was employed from 1997 to 2005 on a part time basis. She worked from 9.30 – 12.30.
In his first witness statement Mr Hallam described Mrs Turner as a reliable trusted member of staff, highly regarded by her colleagues and her students. He considered her to have the highest standards of integrity and regarded her as a close friend.
The 1982 Wills
Mr and Mrs Whelen each made wills in October 1982. The wills were professionally drawn and prepared by a solicitor — Mr Godfrey, a partner in the firm of Lake Parry & Treadwell ("LPT") of Pall Mall, London.
Mr Whelen's will appointed Mrs Whelen as his sole Executor (in the events that have happened). He left his estate entirely to Mrs Whelen. In the event of her predeceasing him, he left his estate in equal shares absolutely to the four charities who are the Claimants, namely, The Royal National Institute for the Deaf, now called The Royal National Institute for Deaf People, The Royal National Institute for the Blind now called The Royal Institute of Blind People, The Marie Curie Memorial Foundation now called Marie Curie Cancer Care and The Chester Beatty Research Institute now called The Institute of Cancer Research: The Royal Cancer Hospital.
Mrs Whelen's will was a mirror of her husband's. She appointed Mr Whelen to be the sole Executor but if he predeceased her, or was unable or unwilling to act then Mr Godfrey was to be the sole Executor. She left her entire estate to Mr Whelen but if he predeceased her, she left her estate in equal shares to the same four Charities that Mr Whelen had named in his Will.
On 14 October 1982 Mr Godfrey sent the unexecuted wills to Mr and Mrs Whelen with instructions as to the due execution of the wills. The wills were executed on 18 and 21 October 1982 respectively.
On 1 November 1982 Mr Whelen sent both executed wills to Mr Godfrey for safekeeping. He indicated that copies would be retained at their home, Tiltyard Cottage, Hampton Court.
LPT's records indicate that on 2 May 1989 both of the wills were sent to Mr and Mrs Whelen.
Mr Whelen died on 3 June...
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