Beverley Francis Wilson v Angella Rose-Marie Spence
| Jurisdiction | England & Wales |
| Judge | Master Dray |
| Judgment Date | 07 February 2022 |
| Neutral Citation | [2022] EWHC 158 (Ch) |
| Docket Number | Claim No: PT-2021-000211 |
| Court | Chancery Division |
[2022] EWHC 158 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
IN THE ESTATE OF ERNEST FRANCIS DECEASED
Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
DEPUTY Master Dray
Claim No: PT-2021-000211
The Second Claimant (in person) for the Claimants
Dilan Deeljur (instructed by Solomon Shepherd) for the Defendants
Hearing dates: 11 & 12 January 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties or their representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10.30 am on Monday 7 February 2022.
Introduction
Ernest Francis (the Deceased) was born on 10. 4.1934 in Jamaica. He came to the UK many years ago, certainly by the early 1980s (if not before). He lived at 63 St Pauls Road, London N17. He died on 2. 5.2019 in London. These proceedings concern the entitlement to his estate.
The Deceased married Theodosia (née Smith, and also formerly known as Diana Smith) in London on 26. 4.1989. Theodosia had, it appears, 11 or 12 children by multiple men other than the Deceased. The Defendants are two such offspring and, as such, are step-children of the Deceased.
The First Claimant is the mother of the Second Claimant. The Claimants maintain that they are, respectively, daughter and granddaughter of the Deceased. The Defendants say, however, that the Claimants are, like them, step-relations of the Deceased.
Based on the evidence I have received, it is conceivable that the First Claimant is indeed the step-daughter (rather than daughter) of the Deceased, being a child of Theodosia by another man. On this basis the Second Claimant is a step-granddaughter of the Deceased. However, the evidence in this respect is somewhat obscure.
I have seen what it said to be the Jamaican birth certificate of the First Claimant (Supplementary Bundle (SB), p.31). It identifies the child in question as Beverly [sic, not Beverley] Elizabeth Henry and records her mother as Diana Smith (i.e. Theodosia). No father is named on the certificate, although one Ernest Henry, who is said to have been present at the birth, is the stated informant.
The First Defendant and Mr Samuel Smith (as to whom see below) say that they knew the First Claimant as Beverley Henry in Jamaica and that it is only when she came to the UK that she adopted the name Beverley Francis. As I note below, I did not hear from the First Claimant.
For present purposes it is not necessary for me to reach a finding on the point (and Mr Deeljur accepted that not much turns on it), and I do not do so. What is nonetheless clear from the evidence is that the Deceased (and indeed the rest of the family, including the Defendants) regarded the Claimants as his daughter and granddaughter (rather than as step-relations) at all material times.
After the death of the Deceased the Defendants, on the footing that (as they maintain) the Deceased died intestate, obtained a grant of letters of administration on 23. 5.2020. I return to this below.
By these proceedings, issued on 9. 3.2021, the Claimants seek the revocation of that grant. They also seek a grant of probate in their favour, relying on what is said to have been the Deceased's last will dated 5.12.2018 (the 2018 Will).
The 2018 Will is a document prepared by a Leicester-based company known as Simple Wills of which Philip Izzard was and remains a director and Genevieve Frost was at the relevant time an office manager.
The 2018 Will is expressed to appoint the Claimants as the Deceased's executors. By clause 6 it provides that the whole of the Deceased's residuary estate (after payment of debts and expenses) is to pass to the First Claimant. There are substitutionary provisions in clause 7 and 8 which apply if that gift fails; pursuant to them the Second Claimant would acquire a third of the estate. Clause 9 is a curious index-linking provision. It purports to index-link “the said monetary bequest” but there is no such bequest. It thus appears to have been included in error. Clause 10 is a declaration that the Deceased made no provision for his son Jonny Francis.
The 2018 Will is regular on its face. It is apparently signed on each of its 3 pages by the Deceased (in a clearly shaky hand using imperfectly formed, individual capitalised letters) and is purportedly witnessed at its end by Dansi Hall, a café assistant, and by Angelina Johnson whose address is given as 53 Durban Road E17 5EA.
By their Defence the Defendants resist the claim. They specifically deny that the Deceased made the 2018 Will. They contend that the 2018 Will was not made on 5.12.2018 and was not actually witnessed as it purports to be. They contend that the supposed witnesses did not attend any signing, and that the Second Claimant arranged for witnesses to sign the document in the absence of the Deceased. They maintain that any evidence to the contrary is untrue. They also dispute that the Deceased had testamentary capacity to make, and that he knew and approved of the contents of, the 2018 Will. Of course, if I find that the 2018 Will was not made and witnessed as alleged (and hence is invalid on that basis), the other contentions rather fall away in terms of their importance.
The Claimants take issue with the Defendants' challenge to the validity of the 2018 Will.
The parties' cases in outline
Shorn of much detail, the Claimants' case is as follows:
(1) By way of background, the Deceased had made an earlier will dated 26. 4.2015 (the 2015 Will) by which he had appointed his then carer, Colin Anthony Rodrigues, as executor. That will (drawn by Your Concern UK Ltd, the former name of Simple Wills) gave 25% of the estate to Theodosia (or, in the event of her predeceasing the Deceased, to her issue) and the remaining 75% to the First Claimant. It excluded Jonny Francis, said to be the Deceased's son, from any inheritance.
I add that the 2015 Will records that it is witnessed by Ayub Omar, assistant sub-postmaster, and Hitesh Patel, shop owner. Neither Claimant was involved in or knows anything of the preparation or execution of the 2015 Will. I have not heard from Messrs Omar and Patel.
(2) The Deceased expressed a desire to update his will in the light of deaths of both Mr Rodrigues and Theodosia. This is recorded in a note made by Mr Izzard (as to which see below).
(3) Mr Izzard visited the Deceased at his home. The Second Claimant was present. Mr Izzard took instructions from the Deceased. He made a file note of this visit.
(4) Ms Frost telephoned the Deceased whilst he was in hospital in late November 2018 to confirm the instructions previously given to Mr Izzard.
(5) On 5.12.2018, in the evening, having returned from home from hospital that day, the Deceased executed the will at his home in the presence of the two named witnesses (Ms Hall and Ms Johnson). Again, the Second Claimant was present. There are photographs of him signing the will.
(6) The Deceased was of sound mind and knew what he was doing.
(7) The 2018 Will is valid.
Stripped to its essentials, the Claimants' case appears a simple one, and one which it might reasonably be expected to be difficult to controvert.
Similarly reduced to its core, the Defendants' case is that:
(1) To the extent relevant, the 2015 Will was invalid. The signature it bears is not that of the Deceased, and the Deceased did not have capacity at the date it was purportedly made.
(2) In the circumstances described below, there is reason to doubt whether and when Mr Izzard took instructions from the Deceased.
(3) The Deceased was in hospital from 3.11.2018 to 5.12.2018.
(4) The Deceased was not in a fit state to make, or to be aware of and understand the contents of, the 2018 Will on 5.12.2018.
(5) The Deceased could neither read nor write (something which is common ground). That, coupled with his ill health generally (including the fact that he was blind in one eye and had poor vision in the other), meant that he could not have signed (and did not sign) the 2018 Will.
(6) Samuel Smith, a step-son of the Deceased, who lived with him at 63 St Pauls Road and had been his principal carer for some years, received the Deceased when he was brought home from hospital by the ambulance service on 5.12.2018 and was in the house all the evening. Mr Smith let no-one into the property, and nobody attended.
(7) Hence the 2018 Will could not have been, and was not, signed or witnessed as alleged.
(8) The 2018 Will is invalid, both in form and in substance.
It will be seen that the Defendants' account of events is manifestly at odds with that advanced by the Claimants.
The trial
I heard the trial over 1.5 days on 11 and 12 January 2022. The trial was held in person in court 4 in the Rolls Building.
The Claimants, although represented by Legal Rights Partnership at times, were represented at the trial by the Second Claimant acting in person. She was assisted at times by Natasha Pichon (with my permission).
The Defendants were represented by Mr Dilan Deeljur of counsel.
Legal principles
Due execution
Due execution concerns the formal validity of a will.
The relevant principles are:
(1) By section 9 of the Wills Act 1837, in essence (and so far as is material for current purposes) a will must be signed by the maker and the maker's signature must be made or acknowledged in the presence of two or more witnesses present at the same time; and each witness must attest and sign the will or acknowledge their signature in the presence of the maker.
(2) The propounder of a will must prove due execution (including witnessing) of the same. That is one of the...
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