Martyn James v Lorraine Anne Scudamore

JurisdictionEngland & Wales
JudgePaul Matthews
Judgment Date03 May 2023
Neutral Citation[2023] EWHC 996 (Ch)
Docket NumberCase No: PT-2020-BRS-000094
CourtChancery Division
Martyn James
(1) Lorraine Anne Scudamore
(2) Raymond James
(3) Edward Ernest Ford
(4) Robert Martyn Litten James
(5) Rebecca Diane Litten James
(6) Elizabeth Rachel Litten James

[2023] EWHC 996 (Ch)


HHJ Paul Matthews

(sitting as a Judge of the High Court)

Case No: PT-2020-BRS-000094




Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Amy Berry (instructed by Coodes LLP) for the Claimant

James Kirby (instructed by Nalders LLP) for the First Defendant

Matthew Mills (instructed by Birkett Long LLP) for the Third Defendant

The other defendants did not appear and were not represented

Hearing dates: 28 February 2023 to 2 March 2023

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on 3 May 2023

Paul Matthews HHJ



This is my judgment on the trial of a probate claim, commenced by claim form issued on 29 September 2020. The claimant is one of the two sons by his first marriage of the deceased, Ivor Percy James, who died on 21 June 2010. His will dated 6 March 1998 and a codicil dated 26 December 2002 were proved by his second wife, Christine, on 28 July 2011. For convenience, but without intending any disrespect, I shall refer to the non-parties throughout by their given names. Ivor and Christine had no children together. She herself died on 24 February 2018.


The claimant accepts the validity of the will, but not the codicil. If valid, the codicil replaces the life interest given to Christine in the matrimonial home (with remainders over to the sons) with an absolute interest. The other son of Ivor, Raymond, is the second defendant to this claim, but has played no part in the proceedings. The claimant has three children by his former partner, Dianne James before they separated in 1998. They are the fourth to sixth defendants, and all of age, but likewise have played no part in the proceedings.


Christine's will appointed her niece Lorraine, the first defendant, as executrix, and she duly proved the will. By her will, Christine gave 70% of her residuary estate to her sister Diana, the first defendant's mother, and 30% to the claimant's children. Unfortunately, Diana died some six months after Christine, on 28 August 2018, appointing her husband, the third defendant, as her executor and making him her universal legatee. This means that the first defendant, by chain of representation, is now the personal representative of Ivor's estate, although Christine's position as beneficiary of that estate is now represented as to 70% by the third defendant and as to 30% by the fourth to sixth defendants.


The attesting witnesses of the 2002 codicil were Dawn Buckley and her husband Noel Buckley. He died in 2017. Dawn is the mother of Dianne, and thus the grandmother of the fourth to sixth defendants. She gave evidence before me. Noel (but not Dawn) had a son, Shaun, who also gave evidence before me. In 2002, Dianne was in a relationship with Martin Greenslade, whose mother Susan (“Susie”) made a statement for these proceedings, but did not give oral evidence.

The parties' positions


The claim and particulars of claim seek the revocation of the probate granted to Christine in relation to both the will and the codicil, and the grant of a fresh probate of the will alone. The claimant says that the 2002 codicil is invalid for non-compliance with the Wills Act 1837 in a number of respects. These were that the witnesses signed the codicil before Ivor did, and that the witnesses signed it on a different date to that stated on its face. It is also said that Christine gave all the instructions for the preparation of the codicil, and herself completed the signature of Ivor, who was suffering from the after-effects of a stroke at the time of purported execution.


The defence of the first defendant complains of procedural irregularities, lack of compliance with the pre-action protocol and the relevant practice direction, and denies that the codicil was not properly executed. It also alleges that the claim is brought too late, by reason of laches. The third defendant says that he has no knowledge of the circumstances of the execution of the codicil, and therefore has no positive case to put forward, but nevertheless requires the claimant to prove the allegations of invalidity.



Directions to trial were given by District Judge Wales on 20 July 2022. One important point to notice is that no permission was given for any expert evidence as to handwriting to be adduced. The claimant did not seek any such evidence, on the basis that the original codicil had been lost while in the possession of solicitors involved at an earlier stage. At the PTR before me on 9 January 2023 I gave permission for the claimant to rely at trial on supplementary witness statements of Dawn Buckley and Dianne James which had accompanied his application by notice dated 4 January 2023.


The trial itself was held before me at an attended hearing in Bristol, when Ms Amy Berry (instructed by Coodes LLP) appeared for the claimant, Mr James Kirby (instructed by Nalders LLP) appeared for the first defendant and Mr Matthew Mills (instructed by Birkett Long LLP) appeared for the third defendant. However, closing submissions were given in writing during the week of 6 March, and there was a remote hearing on Friday 17 March to deal with matters arising out of those. I subsequently invited, received and considered further submissions to deal with a discrete point of law, to which I shall refer later.

Procedural issues at trial


At the opening of the trial on 28 February 2023, I heard argument and gave rulings on two preliminary matters. One related to whether a small number of documents, for which legal professional privilege was claimed by the claimant, should nevertheless be inserted in the trial bundle. For reasons given at the time, I decided that those documents should indeed go in. The other was as to whether the court should give permission to the claimant to ask certain limited further questions of a witness (Dawn Buckley) in amplification of her written witness evidence, in light of the fact that there was to be no expert evidence in relation to handwriting at the trial. Again, for reasons given at the time, I decided to give that permission.


Issues also arose about the disclosure given by the claimant in this matter. These included very late disclosure (during the trial) of certain original documents not previously disclosed. Ms Melanie Grose, a partner in the claimant's solicitors, and head of its probate litigation department, made a witness statement about this, and was cross-examined on it. It is plain that there were severe failures in the preparation of this claim on the part of the claimant, in particular in relation to disclosure of documents. This led to some rather chaotic scenes at the trial as further documents were produced during the evidence itself. I accept that illness and other absences from work at the claimant's solicitors lay at the root of at least some of these failures, but they demonstrate to me that the system in place there was very far from robust.

How judges decide cases


For the benefit of the lay parties in this case I will say something about how English judges decide civil cases like this one. I borrow the following words largely from other judgments of mine in which I have made similar comments. First of all, judges do not possess supernatural powers that enable them to divine when someone is mistaken, or not telling the truth. Instead, they take note of the witnesses giving live evidence before them, look carefully at all the material presented (witness statements and all the other documents), listen to the arguments made to them, and then make up their minds. But there are a number of important procedural rules which govern their decision-making, some of which I shall briefly mention here, because non-lawyer readers of this judgment may not be aware of them.

Burden of proof


The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case (like this one), one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. But in a probate case the person propounding the will or codicil in contention must prove that it is valid. Here the claimant asserts that the 2002 codicil is invalid, and it is the first defendant who is in effect propounding it. So the legal burden of proving that the codicil is valid is borne by the first defendant. She is however assisted by certain presumptions of fact which operate in relation to wills and probate. I will deal with this in more detail later.


The importance of the burden of proof is that, if the person who bears that burden satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The decision is binary. Either something happened, or it did not, and there is no room for ‘maybe’. That may mean that, in some cases, the result depends on who has the burden of proof.

Standard of proof


Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case it is merely the...

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