Carlton Aldo Watts v Jobyna Watts
| Jurisdiction | England & Wales |
| Judge | Master Clark |
| Judgment Date | 03 April 2023 |
| Neutral Citation | [2023] EWHC 679 (Ch) |
| Docket Number | Case No: PT-2020-000334 |
| Court | Chancery Division |
[2023] EWHC 679 (Ch)
Master Clark
Case No: PT-2020-000334
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Justin Holmes (instructed by NWL Solicitors) for the Claimant
Matthew Tonnard (instructed by B P Collins LLP) for the Defendant
Hearing dates:, 19 October 2022, 17 February 2023
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10am on 3 April 2023 by circulation to the parties or their representatives by email and by release to The National Archives.
This is my judgment on the preliminary issue ordered to be tried by my order dated 27 May 2022:
“Whether the will dated 8 February 2000 (“the 2000 will”) is a forgery.”
Parties and the issue
The claimant, Carlton Aldo Watts, is the son of the deceased, Eustace Fitzgerald Watts, who died on 29 April 2008, aged 92. The defendant, Jobyna Watts, is the claimant's mother and the deceased's widow. At the date of the trial, she was aged 92. For the sake of clarity, and without intending any disrespect, I refer to the claimant as “Carlton” and the defendant as “Mrs Watts”.
The 2000 will is, in the events that have happened, straightforward in its application: the deceased's entire estate is left to Mrs Watts, who is appointed sole executrix. On its face it is signed by the deceased, and witnessed by B Goodsir, legal secretary and Sarah Evans, solicitor, both of Lane Heardman, solicitors.
The particulars of claim allege that the signature of the deceased on the 2000 will is a forgery, and that the deceased did not execute it. By re-amendment, the claimant provided particulars of this allegation based on the evidence of his expert, Mr Douglas A. Cobb. These are set out as particulars of paragraph 3 of the Amended Particulars of Claim, and are considered at paragraphs 50 to 68 below.
At trial, Carlton also sought to base his case on circumstantial evidence as to:
(1) the existence of an earlier will made in 1994 (“the 1994 will”) under which, Carlton alleges, he was a one-third beneficiary, together with Mrs Watts and Fraser;
(2) the quality of his relationship with his father: said to be good, or at least such as not to cause his father to wholly exclude him from his will;
(3) Mrs Watts' behaviour towards the deceased.
This circumstantial evidence is, in my judgment, of marginal relevance. The key factual issue is whether the 2000 will was made by the deceased, and in particular, whether the signature on it was made by him.
Legal principles
Due execution
Section 9 of the Wills Act 1837, in the version in force in 2000, provides that:
“No will shall be valid unless—
(a) It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) Each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
Whilst an attestation clause is not strictly required, where a will includes such a clause and, on the face of it, has been validly executed, the strongest evidence is required to show that it was not validly executed (see Sherrington v Sherrington [2005] EWCA Civ 326, [2005] W.T.L.R. 587 at [40–41] and Royal National Institute for Deaf People and others v Turner [2015] EWHC 3301). Although the parties referred me to 2 decisions in which it has been held that, where forgery is alleged, the burden of proof is on the person propounding the will, insofar as these are inconsistent with Sherrington, these are not binding on me. In any event, Carlton accepts that because the 2000 will is regular on its face and apparently duly executed, the effective burden of proof is on him.
Witnesses of fact
Carlton was the only witness of fact in support of his claim. His evidence was only as to circumstantial matters. He was unable to explain the inconsistencies in his statements of case as to the terms of the trust alleged by him – see paragraphs 19 to 23 below. He believes that his mother has committed a criminal offence and should be prosecuted, even though, as explained below, the police have investigated his complaints and decided to take no action. He alleged in his particulars of claim (and continued to allege in his oral evidence) that Mrs Watts only found out about the 1994 will in 1998 or 1999, when it is clear from the records of the solicitors who prepared the 1994 will that Mrs Watts made her own will with them on the same date. My evaluation of Carlton's evidence is that he holds a fixed belief that his mother has dishonestly and unfairly deprived him of his entitlement to his father's estate, and that this has coloured and distorted his view of the factual matters relevant to this case. For this reason, I do not consider him a credible witness, and only accept his evidence when supported by independent contemporaneous documentation.
3 witnesses of fact were called on behalf of Mrs Watts
(1) Sarah Evans, the solicitor whose name appears as a witness of the 2000 will – her evidence is discussed in paragraphs 26 to 30 below;
(2) Mrs Watts herself;
(3) her son, Fraser Watts (“Fraser”).
Mrs Watts
Mrs Watts has no direct knowledge of the making of the 2000 will. Her memory of past events was poor: she could not recall the contents of the deceased's earlier wills, even though she made wills at the same time with the same solicitors, and is likely therefore to have known their contents at the time. Her Defence and Amended Defence reflect that position.
She was cross-examined on the inconsistency between her statement in the Amended Defence that before his death the deceased “maintained control of all joint assets, including sums held in bank accounts, and the Defendant was dependant on the Deceased's decision making”; and the deceased's medical records as to his condition in October and December 2007 which record physical and mental incapacity which would have prevented him from doing so.
Neither her failure to remember the deceased's earlier wills, nor to recall the severity of his condition at the end of his life are in my judgment significant. They reflect the failing memory of a person of Mrs Watts' reasonably advanced age. In any event, even if I accepted that Mrs Watts' evidence prevented her from being a credible witness, that falls far short of justifying the inference that she forged or procured the forging of the 2000 will.
Fraser Watts
Fraser Watts gave his evidence in a straightforward manner, and there is no reason to consider him other than a truthful witness.
Factual background
The deceased was born on 10 July 2016. In the 1940s he married his first wife and there were 4 children of that marriage.
The deceased met Mrs Watts in the 1950s, when she was working as a dancer at the Windmill Theatre in London's West End. He and Mrs Watts married in 1955, so by the date of the 2000 will had been married for 45 years. They had 2 sons, Carlton and Fraser.
will
On 27 May 1988 the deceased and Mrs Watts each made wills. No copy of those wills was in evidence, and as noted, Mrs Watts has no recollection of their contents.
On 30 March 1990, the deceased transferred 6 properties in Hounslow into the joint names of himself and Mrs Watts, 2 more properties already being jointly owned.
Alleged trust
Carlton seeks to rely upon a declaration of a trust of which he was a beneficiary, which he says the deceased made in 1990. However, his case as to the effect of that trust is inconsistent.
§12 of the Amended Particulars of Claim dated June 2022 states that in 1990:
“… the Deceased executed a trust in relation to his rental properties. [Carlton] and [Fraser] were witnesses to the execution of the trust document which caused all the properties to be held on trust beneficially for [Carlton], [Mrs Watts] and [Fraser] in equal one-third shares each”
By contrast, §21 of the Reply to Amended Defence dated July 2022 states:
“In 1990 [Mrs Watts] was gifted 50% of the properties into a trust. On the Deceased's death, [Carlton] was due to take the Deceased's place on the Trust.”
These two descriptions, produced 1 month part, are entirely conflicting. Fraser's evidence was that it was “nonsense, absolute rubbish” that the deceased had declared a trust over his rental properties. In addition, even though Carlton first raised a challenge to the 2000 will in 2009, 11 years before this claim was brought, there is no reference to an alleged trust in his solicitor's correspondence, or any other documents recording or evidencing Carlton's complaints about his mother. There is no documentary evidence recording or evidencing the alleged trust.
I am not therefore satisfied on the evidence before me that a trust of which Carlton was a beneficiary was created by the deceased. However, even if it were, it would be of marginal relevance. Indeed, it could be said that if the deceased had provided for Carlton by way of a trust, then that would reduce or obviate the need to include Carlton in his testamentary dispositions.
will
On 27 April 1994, the deceased and Mrs Watts made new wills and the 1988 wills were destroyed. As noted, Mrs Watts has no recollection of the contents of the 1994 will, and there was no copy in evidence. However, there is indirect evidence as to its contents – see para 36 below.
During 1999, the...
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