Daniel Bryan Sharp v Evelyn Valerie Hutchins

JurisdictionEngland & Wales
CourtChancery Division
JudgeMs Lesley Anderson
Judgment Date01 May 2015
Neutral Citation[2015] EWHC 1240 (Ch)
Docket NumberCase No: HC-2013-000398

[2015] EWHC 1240 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

IN THE ESTATE OF RONALD HUBERT BUTCHER DECEASED

The Rolls Building

7 Rolls Building, Fetter Lane, London EC4A 1NL

Before:

Ms Lesley Anderson QC sitting as a Deputy High Court Judge

Case No: HC-2013-000398

Between:
Daniel Bryan Sharp
Claimant
and
Evelyn Valerie Hutchins
Defendant

Jennifer Seaman (instructed by Ratcliffes, Sittingbourne) for the Claimant

Araba Taylor (instructed by Premier Solicitors, Bedford) for the Defendant

Hearing dates: 27 (reading day), 28 and 29 April 2015

Ms Lesley Anderson QC sitting as a Deputy High Court Judge:

Preliminary

1

This is a probate action concerning the testamentary wishes of Ronald Hubert Butcher ("Mr Butcher"). As observed by Peter Gibson LJ in Fuller v Strum [2002] 1 WLR 1097 at [32]:

"Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who wish to challenge the will are often not able to give evidence of the circumstances of the will."

2

The issue for the Court is whether to pronounce in solemn form in favour of a will dated 5 January 2013 ("the 2013 Will") as contended by the Claimant on the Claim or in favour of a will dated 4 December 2011 ("the 2011 Will") as contended by the Defendant on the Counterclaim. The Defendant challenges the 2013 Will for want of knowledge and approval on the part of Mr Butcher.

3

The Claimant is Daniel Bryan Sharp, the Executor and sole beneficiary under the 2013 Will. He is known generally as Danny and I refer to him as such in this judgment.

4

The Defendant is Evelyn Valerie Hutchins ("Evelyn"), the Executor and one of three beneficiaries under the 2011 Will. The other beneficiaries are Evelyn's brother Peter Alan Rogers ("Peter") and Joyce Gilkerson ("Joyce") who is a cousin of Mr Butcher on his mother's side.

Agreed Matters

5

Although as I shall explain, some of these matters had been in issue on the pleadings, by the time of the trial before me it was common ground as a matter of fact that:

5.1. Mr Butcher had capacity at the time he executed both the 2011 Will and the 2013 Will;

5.2. The 2013 Will is duly executed being executed by Mr Butcher in the presence of two witnesses who have attested to his execution in accordance with s9 Wills Act 1837;

5.3. Both the 2011 Will and the 2013 Will read rationally;

5.4. Both parties were surprised as to the contents of the 2013 Will.

6

In particular, although Evelyn had initially contended that Mr Butcher's signature was a forgery, this point was conceded on her behalf on the first day of the trial. The background to the concession is that the parties had been permitted by the Order of Master Bragge dated 24 April 2014 to adduce the evidence of a single joint expert in the field of handwriting. The expert instructed was Robert Radley MSc, C Chem, FRSC, FCSFS, FSSoc Dip, FAE, RFP who is a Registered Forensic Practitioner specialising in the examination of handwriting and documents at The Radley Forensic Document Laboratory Limited. His report dated 5 November 2014 confirms that in his opinion there was strong evidence to support the proposition that Mr Butcher signed the 2013 Will and he considered it unlikely that another individual had copied his general signature style. Faced with that evidence, Evelyn had no realistic choice but to make the concession.

7

The pleaded issues between the parties were further narrowed by the production, on the first day of trial, of the original of the 2011 Will. That meant it was no longer necessary for me to consider the argument advanced on behalf of Danny in connection with Evelyn's Counterclaim that, absent the original, it was to be presumed that the 2011 Will had been revoked by Mr Butcher during his lifetime.

Relevant law

8

Section 9 of the Wills Act 1837 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.

9

It is also common ground that as a matter of law:

9.1. It is a fundamental principle of English law that people should in general be free to leave their property as they choose and so the Court should be cautious before accepting that a will is open to challenge;

9.2. Before a will is admitted to probate the Court must be satisfied that the testator knew and approved its contents at the date he executed it. Knowledge and approval is different from capacity – Hoff & Ors v Atherton [2005] WTLR 99 at [62] per Chadwick LJ;

9.3. As the propounder of the 2013 Will, it is for Danny to satisfy the Court, on the balance of probabilities, that Mr Butcher understood the nature and effect of, and sanctioned the dispositions in the 2013 Will;

9.4. In the ordinary case, proof of testamentary capacity and due execution is sufficient to establish knowledge and approval which is then assumed – see Williams on Wills 10 th (2014) at [5.1] to [5.4], Barry v Butlin (1838) 2 Moo. P.C. 480 at 484 and Fuller v Strum, supra at [77];

9.5. But affirmative evidence of knowledge and approval is required in cases where the circumstances relevant to the preparation and execution of the will (but not extraneous circumstances) "excite the suspicion of the Court" – see Williams, supra, Fuller v Strum at [33] and Re R (Deceased) [1951] P. 10 at 17;

9.6. It is not essential to prove that a will originated with the testator and therefore proof of instructions may be dispensed with, provided that it is proved that the testator completely understood, adopted and sanctioned the disposition proposed to him and that the instrument itself embodied that disposition – see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20 th ed) at [13.25];

9.7. It is important to note that the Court is not engaged in some form of approval or disapproval – its task is to assess the evidence and to reach conclusions as to the facts on the balance of probabilities and, as Ms Taylor stressed, the question is whether the contents do truly represent the testator's testamentary intentions.

10

Prior to the decision of the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430 it was generally thought appropriate to apply what is referred to as a two stage test to the issue of knowledge and approval. It is convenient in this regard to set out what Lord Neuberger MR said at paragraph [21]:

"The judge approached the issue of knowledge and approval on a two stage basis. He first asked whether Dr Gill had established sufficient facts "to excite the suspicion of the court", which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the will. This approach accords with Parke B's analysis in Barry v Butlin 2 Moo PC 480, quoted by Lindley LJ in Terry v Painton [1894] P 151, 156–157, referred to above, and it is reflected in the approach in a number of other cases."

11

Although Lord Neuberger in Gill did not rule out use of the two stage approach for the future, it is clear from the judgment at [22] that he favoured instead a single stage approach:

"Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in Re Crerar (unreported) but see (1956) 106 LJ 684, 695, cited and followed by Latey J. in In re Morris, decd [1971] P 62, 78 namely that the court should

"consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.""

12

The so-called single stage approach was considered and applied by Norris J. in Wharton v Bancroft [2011] EWHC 3250 Ch at [27] to [29], a passage relied on by both Counsel before me:

"27 The overall burden lies on the claimant to produce evidence sufficient to prove the 2008 Will. Certain evidential presumptions may assist in the discharge of that burden: but the circumstances may indicate that the propounder is required positively to prove what in other circumstances might be presumed or inferred from proof of other facts.

28

The daughters in their Re-Re-Re Amended Defence and Counterclaim assert that Mr Wharton did not know or approve the contents of the 2008 Will. My approach to that issue (informed by the familiar authorities as reviewed and commented on by the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430) is as follows:-

(a) The assertion that...

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