Ann Legg and Another v Aaron Burton and Others

JurisdictionEngland & Wales
JudgeHHJ Paul Matthews
Judgment Date11 August 2017
Neutral Citation[2017] EWHC 2088 (Ch)
Docket NumberCase No: C01BS110
CourtChancery Division
Date11 August 2017

[2017] EWHC 2088 (Ch)




Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR


HHJ Paul Matthews

(Sitting as a Judge of the High Court)

Case No: C01BS110

(1) Ann Legg
(2) Lynn Burton
(1) Aaron Burton
(2) Victoria Brooks
(3) Michael Burton

John Dickinson (instructed by BPS Law LLP) for the Claimants

Raj Sahonte (instructed by Barcan+Kirby LLP) for the Defendants

Hearing dates: 2–3 August 2017

HHJ Paul Matthews



This is my judgment on the trial of a claim about alleged mutual wills. The testatrix whose will, made in July 2000, is in question was a lady called June Clark. She died on 8 February 2016, having made a later will dated 12 December 2014, of which probate was granted on 22 April 2016. The claimants are the two daughters of the testatrix. The three defendants are two of the grandsons of the testatrix (sons of the second claimant) and the partner of one of them. The first defendant is the executor to whom probate was granted. The second and third defendants are executors named in the will who did not prove it, but to whom power so to do was reserved.


However, the claimants in this case allege that earlier wills made by the testatrix and her husband, Bernard Clark, on the 25 July 2000 are in fact mutual wills, falling within the scope of the equitable doctrine of the same name. Mr Clark died on 16 May 2001. In the years following his death, the testatrix made more than a dozen further wills, beginning in 2004. Under the will of 2014 that was proved, the first claimant receives a legacy of £10,000, and the second claimant receives a legacy of £30,000. Under the will of the 25 July 2000, the claimants share the testatrix's estate equally. The value of the testatrix's estate was sworn for probate at not more than £324,000 gross, £213,000 net. It is on any view below the county court limit of £325,000. However, during the trial I formed the view that the complexity of the factual and legal issues justified transferring the case from the county court to the High Court, and I so ordered. The major asset of the estate of the testatrix was the former council house occupied by the testatrix and her husband, purchased by them under the "right to buy" scheme of the 1980s.



The claim was commenced by claim form dated 20 May 2016, seeking a declaration that the estate of the testatrix was held on trust for the claimants in equal shares. The particulars of claim accompanying the claim form pleaded as follows:

"7. The execution of the Mutual Wills was subject to the agreement set out below.

8. Bernard Clark died on 16 May 2001, and under the terms of his Mutual Will, and in accordance with the agreement reached between him and the Deceased and as reflected by the Mutual Wills, all of his Estate passed to the Deceased. A Grant of Probate was not necessary to achieve this.

9. Despite the agreement reached between the Deceased and Bernard Clark, as reflected by the Mutual Wills, the Deceased executed the Later Will on 12 December 2014, by which she bequeathed the joint estate of Bernard Clark and herself to numerous Beneficiaries.

10. It had been agreed by the Deceased and Bernard Clark at the time that they executed the Mutual Wills that neither would revoke their Wills and that neither would be entitled to change the terms of their Wills or to bequeath their joint estates to anyone other than the beneficiaries detailed within the Mutual Wills.

11. That agreement was explained to the first claimant on the 25 July 2000 by both Bernard Clark and the Deceased. Later in the same day, the agreement was also explained to the second defendant by Bernard Clark and the Deceased in the presence of the first claimant."


It is important to notice that the only case made is that of mutual wills. No allegation is made (for example) that, in making the 2014 will that was proved, the testatrix lacked capacity, did not know and approve the contents of the will, or was subject to undue influence or other pressure in making it. That means that the only factual matters which are important in this case are those which relate to the circumstances of the making of the will in July 2000. This further means that the greater part, in fact nearly the whole, of the evidence in the witness statements put forward by the defendants, and a considerable amount of the evidence in the witness statements put forward by the claimants, is irrelevant.


A defence was filed on 20 June 2016. In part, it says this:

"It is denied that the Deceased and Mr Clark executed mutual Wills or that any agreement to enter into mutual existed [sic] and the Claimants are put to proof on this matter. The express terms of the 2000 Will, being both contemporaneous and verified by Mr Clark, unambiguously state that the trustees should 'pay [the] residuary estate to [the Deceased] absolutely and beneficially and without any sort of trust obligation', clearly distinguishing the 2000 will from mutual Wills."


At the pre-trial review in this matter on 12 July 2017, I heard an application to call the solicitor who attended on the testatrix in 2000, but decided, for reasons given at the time, that the application should be refused. I also decided that an application to exclude significant parts of the evidence as irrelevant should be adjourned to the trial judge, in the event, me.



The witnesses called at the trial were: the first claimant, Ann Legg, the second claimant, Lynn Burton, the first defendant, Aaron Burton, the second defendant Victoria Brooks, and the third defendant Michael Burton, and the cousin of the testatrix Maryanne Dean. Because of the importance of the oral evidence, I give my impression of the witnesses here.


Ann Legg was softly spoken and at first cautious as a witness. But she was clear, firm, open and straightforward in the evidence that she gave. Her style of answering did not change depending on whether the answers favoured her case or not. In my judgment, she was trying to help the Court to the best of her ability, and was telling the truth so far as she understood it.


Her sister, Lynn Burton, was a fluent but more enigmatic witness. I did not get the same impression of openness as I had with Ann Legg. She clearly weighed up the possible answers to questions and knew which answers favoured her case and which the other side. Whilst I do not think that she was telling me deliberate untruths, she gave me the impression of having convinced herself that she was in the right. I regret to say that I did sometimes have the impression that she was not telling me everything she knew.


Victoria Brooks was a voluble and opinionated witness, who clearly enjoyed being in control. But she listened carefully to questions, and gave clear and straightforward answers. Although she has a financial interest in the outcome of the case, and her own view of the rights and wrongs of the situation, I thought that, apart from Maryanne Dean, she was the most disinterested of the witnesses. Again, I thought that she was doing her best to assist the court, and telling me the truth, at least from her point of view.


Maryanne Dean was a cautious and careful witness who had relatively little of relevance to say. But I am sure that she was telling me the truth so far as she knew.


Aaron and Michael Burton were slow and relatively inarticulate witnesses. To my mind they seemed to be easily led. In my judgment it would not be safe to place any significant reliance on what they said, unless it was confirmed by an objective source. In fact, however, they had almost nothing relevant to say on the important issues in the case.



I will first set out here the facts which are either undisputed or are at least clearly established by the evidence, without the need for further discussion. On 25 July 2000 the testatrix and her husband (father of the claimants) each made a will, the one mirror of the other. Essentially each will gave the property of the maker to the surviving spouse absolutely, but in the case that the spouse did not so survive the maker, then to the two claimants in equal shares absolutely. I set out the relevant clauses later.


Those wills remained unchanged at the date of the death of the husband of the testatrix on 16 May 2001. Following his death, and beginning in 2004, but mostly in the years 2011–14, the testatrix made no fewer than 13 further wills. There were three in 2004 (two five days apart), four in 2011, one in 2012, one in 2013 and another four in 2014. In broad terms, these progressively favoured the defendants at the expense of the claimants, although the last one rowed back somewhat on earlier wills.


The most disputed allegation, which I must examine and on which I must rule specifically in more detail, concerns the making by the testatrix of the will of 25 July 2000. At that date, relations between the claimants and the testatrix were good, and the grandchildren were still minors, living with their mothers, the claimants. The claimants say that the testatrix and her husband (their father) expressly agreed that the wills that they were making could not be revoked, but were "set in stone". The first claimant was present before and also when the wills were executed, and the second claimant arrived shortly afterwards. The former gave evidence of what happened before and at the time of execution, and both gave evidence of what happened afterwards. Given their ages at that time, the grandchildren were in no position to give evidence to me now to the contrary.


After the death of her father, the claimants were involved as executrices with the administration of his estate. The first claimant did the majority of the work, because at that time the second claimant...

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