Maureen Wharton v (1) Timothy John Bancroft (2) Jameswilliam Douglas Bancroft and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Norris |
| Judgment Date | 08 December 2011 |
| Neutral Citation | [2011] EWHC 3250 (Ch) |
| Docket Number | Case No: HC10C00591 |
| Court | Chancery Division |
| Date | 08 December 2011 |
[2011] EWHC 3250 (Ch)
Mr Justice Norris
Case No: HC10C00591
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
Royal Courts of Justice
The Rolls Building
Fetter Lane
EC4A 1NL
Ms Constance McDonnell (instructed by Furley Page) for the Claimant
The First Defendant appeared in person.
The Second Defendant did not appear.
Mr Jeremy Cousins QC and Ms Michelle Stevens-Hoare (instructed by Wright Hassall LLP) for the Third Fourth and Fifth Defendants
Hearing dates: 19–22 and 26–28 July 2011
At the end of this judgment I pronounce in favour of the Will dated 23 September 2008.
On the morning of 23 September 2008 78 year-old George Wharton ("Mr Wharton") was discharged from hospital, knowing that he suffered from terminal cancer of the eye and liver and believing that he had only a very short time to live. He returned to "Chimneys" in Minster, Sheerness, Kent, a property which belonged to his company, White Horse Leisure Centres Ltd ("White Horse"), and which he shared with his partner of 32 years Maureen Wharton ("Maureen"). She was then aged 63. Although free to marry Maureen, Mr Wharton had not done so. She had formally adopted his surname in February 1982.
At home during the evening of 23 September 2008 Mr Wharton made, with the assistance of Mr Timothy Bancroft, a will ("the 2008 Will") in contemplation of his intended marriage to Maureen: and immediately afterwards Mr Wharton married Maureen at a ceremony conducted before two Registrars who attended the house.
At 10:40 pm on 26 September 2008 Mr Wharton died. By the 2008 Will he left the entirety of his estate to Maureen absolutely. He accordingly made no provision for either of the daughters born to him by the wife from whom he was divorced (the Third and Fourth Defendants, respectively "Vicki" (52) and "Gina" (48)), or for the daughter of another relationship (the Fifth Defendant, "Amanda" (39)). (I will refer to these defendants together as "the Daughters"). Nor did he make any provision for his grandchildren, even for the one of whose educational achievements he was most proud—Vicki's daughter, Prisca.
The principal asset in the estate was Mr Wharton's holding of 24,950 (99.8%) of the 25,000 issued shares in White Horse. White Horse traded as a holiday camp operator from two freehold caravan parks (Central Beach and Warden Bay on the Isle of Sheppey). These caravan parks had a combined open market value of £3.85 million. White Horse also owned other parcels of land: one was "Chimneys", and on another a "car boot fair" was regularly held. These assets underpinned the value of Mr Wharton's holding in White Horse, which was professionally valued for probate purposes at £4 million. Mr Wharton personally also owned another parcel of land in his own right, and some Spanish property which he had made the subject of a Spanish will (though that was revoked by the 2008 Will). But for his deathbed marriage, the entirety of Mr Wharton's estate would have been subject to inheritance tax, for which he had made no provision: but because of the marriage and the terms of the 2008 Will, none of it is so subject.
In November 2008 solicitors acting for Vicki and Gina indicated their intention to challenge the 2008 Will on the grounds of lack of testamentary capacity and undue influence: and in due course a caveat was lodged. That has led to the commencement of the present proceedings in which Maureen seeks to prove the 2008 Will in solemn form; and the Daughters assert by their Re-Re-Amended Defence and Counterclaim that at the time the 2008 Will was executed Mr Wharton did not know and approve its contents, or alternatively that its execution was obtained by the undue influence of Maureen, so that Mr Wharton executed a document that was contrary to his true wishes. Because the Daughters accept that Mr Wharton had the capacity to marry Maureen and lawfully did so, it is common ground that that marriage revoked all former wills: accordingly, if the 2008 Will is not admitted to probate then Mr Wharton will have died intestate.
It will be observed that the challenge to capacity has been abandoned. But the argument continues to be run in a shadowy form as appears from paragraph 7 of the current statement of case of the Daughters, which is in these terms:-
" At the time the 2008 Will was executed the Deceased did not know or approve of the contents of the same. In particular the Deceased did not understand the nature and effect of his execution of the 2008 Will, the extent of the property he would be disposing of by executing the same or the claims which he ought to give effect and the potential beneficiaries he ought to consider."
A deathbed marriage, a deathbed will, a large estate and the absence of any provision for issue may be expected to heighten family tension, to provoke indignation at a sense of unfairness, to encourage a trawl through family history (either to justify the provision made or to demonstrate that the will cannot really embody the testator's genuine wishes), and to encourage witnesses to become advocates in support of one side or the other. Each of those features was present in the instant case. I received the evidence of almost 40 witnesses. I concluded the hearing by commending Ms McDonnell and Mr Cousins QC on their conduct of the trial: and I would at the outset of the judgment restate my opinion. But for their sensible agreement to admit some evidence unchallenged (in the correct anticipation that I would regard it as peripheral) and their focused cross-examination and pertinent argument the parties might have been exposed to much greater trial costs: and without any benefit, because I am satisfied that all proper points were taken and each sides' case thoroughly tested by the other.
The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost.
I propose to deal first with the form and terms of the 2008 Will and then to deal with the circumstances of its production.
The text of the 2008 Will is in the hand of Mr Tim Bancroft and is written on both sides of a single sheet of paper. Clause 1 revokes all former wills and declares that the 2008 Will is made in expectation of Mr Wharton's intended marriage to Maureen. Clause 2 appoints the partners in Mr Bancroft's firm to be Mr Wharton's executors (and clause 7 contains a charging clause). In clause 3 Mr Wharton expresses the wish that his body be buried at his plot at Halfway Cemetery, Sheerness. Clause 4 is in these terms:-
"I give all my estate both moveable and immoveable whatsoever and wheresoever situated after payment of debts funeral and testamentary expenses ("my residuary estate") to Maureen Wharton absolutely."
In clause 5 Mr Wharton declared that he had made no provision "for either of my daughters Vicki Wharton and Jeanna Fagan" because he believed them to be adequately provided for. In clause 6 he declared that he had not maintained for many years any person other than Maureen. That completes the front of the page: on the back is the solicitors' charging clause and an attestation clause in these terms:-
"Signed by George Wharton in our presence and attested by us in the presence of him and of each other he having had this will read to him and having approved its contents"
Alongside that clause is the undoubted signature of George Wharton: and underneath it the signatures of Carole Hales (one of the Registrars) and of Joanna Bancroft (who was Mr Bancroft's wife and a managing clerk at his firm) as witnesses.
The process of creating and signing this document was overseen by Mr Bancroft. He and his brother James are the two partners in the firm of John Copland & Son, Solicitors. He attended upon Mr Wharton on 23 September 2008 and took instructions for the 2008 Will. He made some brief manuscript notes as he did so. Taking instructions, handwriting the will and overseeing the signature and attestation of the 2008 Will took about 45 minutes. The following morning Mr Bancroft spent one hour and 10 minutes preparing a detailed attendance note, in the course of which he had the opportunity to consult the files he maintained for White Horse concerning instructions given by Mr Wharton in connection with land transactions and employment issues. After the Daughters mounted a challenge to the 2008 Will Mr Bancroft was periodically quizzed by the different solicitors they from time to time retained (and his answers were recorded in correspondence from and attendance notes by those solicitors). He made a witness statement on 9 March 2010, and an expanded witness statement on 22 November 2010 (on which he had worked since the preceding August). He was cross examined for about three hours.
Mr Bancroft has a small financial interest in the outcome of this case: if the 2008 Will is upheld he and his brother will be the executors and will benefit from the charging clause. Mr Bancroft undoubtedly has a reputational interest in the outcome of this case: he is (amongst other things) a probate practitioner and must want to be seen to have done a good and effective job. Mr Bancroft had the...
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