Mrs Eveline Dawson v Ms Ann Dawson
| Jurisdiction | England & Wales |
| Judge | Master Rhys |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] EWHC 341 (Ch) |
| Docket Number | Case No: PT-2019-001027 |
| Court | Chancery Division |
[2022] EWHC 341 (Ch)
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
DEPUTY Master Rhys
Case No: PT-2019-001027
In The Estate of William Alan Dawson (Deceased)
Ms Lauren Kreamer (instructed by Browne Jacobson LLP) for the Claimants
Mr Leigh Sagar (instructed by BLM Law LLP) for the Defendants
Hearing date: 11 th to 14 th January 2022
Judgment Approved by the court for handing down (subject to editorial corrections)
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By a Claim Form issued on 12 th December 2019, the Claimants sought an order for a grant of probate, in solemn form, of the contents of the purported last Will dated 27 th February 1989 (“the Will”) of William Alan Dawson deceased (“the Deceased”), who died on 10 th December 1994. The original of the Will has been lost, and the Claimants seek probate of a subsisting copy. The first Claimant (“Jo”) is the Deceased's widow, and the second Claimant (“Philip”) his son. The Defendants are the three daughters of the first Claimant and the Deceased – herein referred to as “Ann”, “Vicky” and “Liz” respectively. For the sake of convenience and clarity, and for the purposes of this judgment, I have adopted the names used by the parties themselves in their evidence. No undue familiarity is intended.
The Claimants' case, in a nutshell, is this. They say that the Will was validly executed, drawn up by a solicitor and in mirror form to that of Jo. It was kept in a locked suitcase at the Deceased's home, Bracken Lane Farmhouse, Retford, and retained until some time after his death. The original was then handed over to a solicitor, Mr Victor Oddie, and was subsequently lost. However, the solicitors who originally drafted the Will – Tracey Barlow Furniss & Co – have retained a copy of the executed document, and the Claimants seek probate of the copy in the absence of the original.
The Defendants' case is pleaded at paragraphs 7 and 8 of the Defence, which read as follows:
“7. The defendants are unable to admit or deny the contents of paragraph 8 of the Particulars of Claim and require the claimants to prove them. If, which is not admitted, the Will Document was a valid will:
(1) It cannot be found and the defendants rely on the presumption of law that it was destroyed animo revocandi;
(2) In paragraph 3.1 of a document described as a draft witness statement to be signed by the first claimant … it was stated that the Deceased and the first claimant made their wills at the same time in 1989 and executed them together. If, as should be inferred from the draft statement, the first claimant was in the same room at the same time as the Deceased signed the Will Document (and the defendants have no personal knowledge of this), that raises the suspicion as to the state of knowledge and approval of the contnts of the Will Document by the Deceased and the defendants put the claimants to proof that the Deceased knew and approved them.”
8. The defendants are unable to admit or deny the contents of paragraphs 9 to 19 of the Particulars of Claim and require the claimants to prove them.”
It will be observed that the defendants are asserting a positive case, as well as putting the Claimants to proof of their allegations that the Will (a) was validly executed and (b) was in existence at the date of death, but was subsequently lost. The positive case relies on (a) the presumption of revocation where a will cannot be found at death, and (b) a plea of want of knowledge and approval.
As to the plea of want of knowledge and approval, it appeared to me that the pleaded allegation might be regarded as wholly insufficient, bearing in mind the requirements of CPR Part 57.7(3). The only “particular” alleged is that the Deceased and Jo – at the time of the execution of the will his wife of some 36 years – were present in the same room when the wills were made. Given that the Will was drafted and witnessed by a solicitor, I find it difficult to see how an inference of want of knowledge and approval can be drawn from this solitary allegation. It is true that, in evidence, Liz stated that the Deceased was in the habit of signing documents placed before him by Jo, but these were documents relating to the day to day running of the farm. To be fair to Mr Sagar, who appeared for the Defendants, he said in his opening remarks that he was not proposing to place much emphasis on the plea, but it was not formally abandoned until his closing speech. I had therefore heard all the evidence that he was able to deploy in relation to the plea.
In addition to their defence of the claim, the Defendants also put forward a Counterclaim, seeking (a) an order that the Court pronounce against the Will, and (b) a declaration that immediately before his death the Deceased held a parcel of land (which they define as “the 16 acre” and to which I shall refer as “the 16 Acre Field”) upon trust for himself and Jo for their lives and thereafter on trust for the Defendants in equal shares. This counterclaim is grounded in proprietary estoppel. There are two preliminary points to be made.
First, although there is no formal grant of representation to the Deceased's estate (pending the resolution of the claim), all interested parties are before the Court. If the claim succeeds, the Claimants will be the Deceased's legal personal representatives. If it fails, there will be an intestacy, and the five parties. between them, constitute the entire class of intestate beneficiaries. Accordingly, any declaration made by the Court would bind the estate beneficiaries.
Second, the subject-matter of the estoppel claim has no direct connection with the Claimants' claim to prove the Will. It is free-standing and could have been raised as an entirely separate claim at any time. However, Mr Sagar has submitted in his closing remarks that any findings that I make as to the Claimants' credibility with regard to the estoppel counterclaim must necessarily affect my findings on the claim itself. He submits that the Claimants have lied in their evidence to the Court, and if I reach that conclusion, I should reject the claim, since proof of the claim depends almost entirely on the Claimants' own uncorroborated evidence. By the same token, if I accept the Claimants' evidence as to the circumstances of the execution of the Will, and the loss of the original document, I think Mr Sagar was constrained to accept that his clients were not in a position to put forward rebutting evidence.
The legal framework – proof of the (copy) Will in solemn form
Helpfully, Counsel are agreed on the relevant legal requirements. This is how Ms Kreamer's skeleton argument sets out the Claimants' task in this case:
“19. The Court will need to be satisfied as to the validity of the Will, in order to make a grant in solemn form of law. The Defendants require the Claimants to prove that the Will was valid, and invite the Court to rely upon the principle of animo revocandi, as well as to infer from the fact that the Deceased and Jo made their wills at the same time that there was want of knowledge and approval of the contents of the Will.
20. Section 20 of the Wills Act 1837 provides that “no will or codicil, or any part thereof, shall be revoked otherwise than…by the burning, tearing or otherwise destroying the same by the testator…with the intention of revoking the same”. It is clear from early authorities that both elements must be present: in Cheese v Lovejoy (1877) 2 P.D. 251 at [263] James LJ held that “all the destroying in the world without intention will not revoke a will, nor all the intention in the world without destroying; there must be the two”.
21. The editors of Williams, Mortimer & Sunnucks – Executors, Administrators and Probate (21st Ed.) explain at [11–13] that:
“The strength of the presumption as to the revocation of a missing will traced into the testator's possession varied according to the character of the custody that the deceased had over the will. It is a presumption that may always be rebutted by adducing evidence which raises a higher probability to the contrary. It may be shown that the testator had no opportunity or was incapable of destroying the will, or may establish a combination of circumstances leading to the conclusion that the testator did not himself destroy the will… [I]n modern cases the court has repeatedly held the presumption to be rebutted on a balance of probabilities and has leaned towards testacy (…see Royal National Institute for Deaf People v Turner [2015] EWHC 3301 (Ch)).”
22. It is clear that the burden of proving that the will was not destroyed animo revocandi is upon the party propounding its contents (see, e.g., Colvin v Fraser (1829) 2 Hagg. Ecc. 266 at [325]). The standard of proof is the balance of probabilities (see, e.g., Royal National Institute for Deaf People v Turner at [147]) and Singh v Vozniak [2016] EWHC 114 (Ch) at [71], both cases in which the presumption was rebutted on the evidence).
23. Importantly, it is further the case that the presumption that a will has been destroyed animo revocandi arises where the will is missing and it was last known to be in his possession. This is emphasised in Williams, Mortimer & Sunnucks at [11–29]: “where a will, or codicil, is last traced into the testator's possession and is not forthcoming at his death after all reasonable search and inquiry the presumption arises that he has destroyed it with the...
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