Michael Barrett v Hanora Bem and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Vos |
| Judgment Date | 19 May 2011 |
| Neutral Citation | [2011] EWHC 1247 (Ch) |
| Docket Number | Case No: HC07C01351 |
| Court | Chancery Division |
| Date | 19 May 2011 |
[2011] EWHC 1247 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Vos
Case No: HC07C01351
Mr Mark Warwick (instructed by Hatch Brenner) for the Claimant
Mr Gabriel Buttimore (instructed by Teacher Stern LLP) for the first Defendant
The 2 nd to 7 th Defendants did not appear and were not represented (save that the 5 th and 7 th Defendants gave evidence for the Claimant)
Hearing dates: 5 th, 6 th, and 9 th May 2011
Introduction
This is the retrial of this action ordered by the Court of Appeal on 4 th October 2010. I previously gave judgment (the "Judgment") for the Claimant, Mr Michael Barrett ("Michael") on 9 th October 2009, pronouncing against the validity of a will (the "2004 Will") allegedly made by Mr Martin Lavin (the "Deceased" or "Martin") in favour of his elder sister Mrs Anne Liston ("Anne") on the day he died, namely the 11 th January 2004. In this judgment, I shall seek to use broadly the same abbreviations and terminology as I used in the Judgment.
The Court of Appeal (Jacob, Wall and Rimer LJJ) ordered a retrial before me, because new evidence came to light between my Judgment and the appeal hearing, in the form of a statement dated 26 th October 2009 from Staff Nurse Pearl Hawadi ("Nurse Hawadi"). In the broadest of outline, Nurse Hawadi said in that statement that Martin had indeed signed the 2004 Will, but when he tried to do so, his hand had been shaking so much that it had been steadied by either Anne or Anne's daughter, the first Defendant, Ms Hanora Bem ("Hanora"). Nurse Hawadi's statement was supported by two further statements that were put before the Court of Appeal, contradicting what they had previously said about the signing of the 2004 Will, from the other witness, Staff Nurse Norhafiza Haris ("Nurse Haris"), and from Hanora.
Since the Court of Appeal ruled, further expert evidence has been produced from both sides as to whether the signature on the 2004 Will could have been what has been termed a "guided hand signature". The conclusion of both experts, Mr Robert Radley ("Mr Radley") and Dr Audrey Giles ("Dr Giles") was that there " is conclusive evidence to support the view that the questioned signature on the [2004] Will … was not produced in the manner described in the recent witness statements (namely with [Anne] merely assisting [Martin] so as to steady his shaking hand)".
As if these developments were not sufficient, since the Court of Appeal ruled, a further will made by Martin has come to light. It is not now disputed that that will (the "2002 Will") was made by Martin on 2 nd October 2002, having been drafted by solicitors acting on the instructions of his bank, HSBC. The 2002 Will appointed HSBC Trust Company (UK) Limited as executor and trustee, left Martin's property at 574 Greenford Road, Greenford, Middlesex UB6 8QU ("574 Greenford Road") to Mr James Lavin (who is in fact Thomas James Lavin and known as "Jimmy"), the son of one of Martin's brothers, Mr Owen Lavin ("Owen"). The balance of the estate was to be divided between:-
i) Mr Eamonn Barrett ("Eamonn"), the son of Mrs Kathleen Barrett ("Kathleen"), one of Martin's sisters;
ii) Ms Imelda Lavin ("Imelda"), the daughter of Owen; and
iii) The daughter of Ms Bernadette Lavin deceased ("Bernadette"), who was herself another daughter of Owen.
The central issue in this retrial remains whether the 2004 Will complies with the requirements of section 9(a), of the Wills Act 1837 ("section 9(a)") so that it is " in writing, and signed by the testator, or by some other person in his presence and by his direction". The focus has, however, moved from the first limb of section 9(a) alone to both the limbs of section 9(a). And for reasons that will become apparent, despite the fact that Mr Mark Warwick, counsel for Hanora, amended his Particulars of Claim on 29 th March 2011 so as to delete paragraph 5 which had previously pleaded that " [Martin] did not know and approve the contents of the [2004 Will]", knowledge and approval remains a serious and important issue. Whatever the state of the pleadings, Hanora must prove knowledge and approval if she is to succeed in establishing the validity of the 2004 Will.
If the 2004 Will did satisfy section 9(a) and if Martin did know and approve of the contents of the 2004 Will, then Michael's claim will fail and the estate will pass to the heirs of Anne. If not, it is now common ground that the court should pronounce in favour of the undisputed 2002 Will.
At this retrial, some time has been spent exploring allegations of lack of integrity surrounding Martin's estate. I shall need to make some findings in relation to these allegations, but suffice it to say at this stage that they do not much redound to the credit of either of the main protagonists.
The position is now rather more complex than it was at the first trial, since there has been evidence from 3 witnesses that Martin was assisted in the signing of the 2004 Will. Thus, the question is not simply, as it was before: did Martin sign the 2004 Will or was his name written by someone else? I shall need to consider whether Martin was assisted in signing it, or whether Anne or someone else signed it alone, and if so, whether Martin directed that Anne should sign it on his behalf and whether, in that event, it is necessary to show that Martin then acknowledged that signature.
Factual background
It is common ground that, with the exception of my findings about the central issue that I have already identified, the factual findings that I made in the Judgment stand. They have not been challenged. In those circumstances, I do not intend to repeat them in this judgment. The findings made in my previous Judgment, save as to how the 2004 Will was signed, can and should be read in to this judgment. For the sake of context, however, I have included in the following chronological account some events already mentioned in the Judgment. With that introduction, I will turn to deal with the events that are relevant to the determinations that I will have to make, acknowledging that some of the facts are simply relied upon in seeking to discredit Michael on the one side and Hanora on the other.
On 12 th June 1934, Martin was born in Ballymote, County Sligo, in the Republic of Ireland, and in about 1951, Martin came to live in England. He worked for Wimpey during much of his life often travelling abroad, and in November 1992 Martin retired. Martin never married.
On 7 th March 2002, Mr Thomas Liston ("Thomas"), Anne's only son and Hanora's only brother died of a brain tumour at the age of 46. Hanora had written out Thomas's will shortly before he died, leaving Anne his house worth some £200,000, and what was in his bank and building society accounts to Hanora. It is noteworthy that Martin witnessed this manuscript will prepared by Hanora for Thomas the day before he died, and that the will did not include any revocation clause.
On 2 nd October 2002, Martin made his 2002 Will, witnessed by two HSBC staff. The 2002 Will was stored for safekeeping with HSBC.
On 26 th September 2003, Anne made her last will appointing Hanora and her son Matthew Bem ("Matthew") as executors and trustees, and leaving half her residuary estate to Hanora and half to Hanora's three children (including Matthew).
On 11 th January 2004, Martin allegedly made the 2004 Will, some 3 hours prior to his death at the age of 69. The 2004 Will said:-
" I, Martin Lavin, of 574 Greenford Road, Greenford, Middx, declare this to be my last will + testament, and I cancel all others. I would like to leave everything I have to my sister, Anne Liston, of 95 Mansell Road, Greenford. I want Anne Liston to deal with probate. I wish to be buried in Ireland".
On 14 th January 2004, Hanora informed HSBC of Martin's death. It appears that at or about this time, someone (most likely to have been Anne or Hanora) also informed HSBC that Martin had made a new 2004 Will prompting HSBC's probate department to write to the branch on 19 th January 2004 saying that the 2002 Will they held had been revoked by a later will, that matters were in Anne's hands, and that the 2002 Will " should now be treated in the same way as any other safe custody item and be released to the executors in due course".
On 13 th April 2004, Hanora wrote to a solicitor in Ballymote called Mr Johnston, enclosing completed indemnity and withdrawal forms concerning an Irish bank account that Martin had held, and saying that she was writing on Anne's instructions " as unfortunately her health, both physically and emotionally is not good at the moment". Hanora told me that Anne was not particularly ill at that time, having had a bout of 'flu, but otherwise only suffering from some constipation. She showed me a photograph of her mother on holiday in Tunisia at the end of April or the beginning of May 2004 looking fit and well. In June 2004, however, Anne was diagnosed with bowel cancer.
On 15 th June 2004, probate of Martin's 2004 Will was granted to Anne, certifying that the estate did not exceed £240,000, and that its net value did not exceed £230,000. It is now known that Martin had more than £100,000 in cash deposits at HSBC, Halifax and AIB, not counting whatever was invested in Ireland, and that the probate value of 574 Greenford Road was at least £200,000, so that this certification was false.
On 25 th June 2004, the 2002 Will and a sealed envelope were withdrawn from HSBC's safe keeping. In addition, on the 1 st July 2004, £55,326.07 was withdrawn from Martin's accounts at HSBC and paid into Anne's account with...
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