Olins v Walters

JurisdictionEngland & Wales
JudgeLord Justice Rimer,Lord Justice Maurice Kay,Lord Justice Sedley,Lord Justice Mummery :,Lord Justice Dyson
Judgment Date04 July 2008
Neutral Citation[2008] EWCA Civ 782,[2007] EWCA Civ 1347
Docket NumberCase No: A3/2007/2361,Case No: A3/2008/0258
CourtCourt of Appeal (Civil Division)
Date04 July 2008

[2007] EWCA Civ 1347





Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Rimer

Lord Justice Sedley and

Lord Justice Maurice Kay

Case No: A3/2007/2361

Andrew Robert Olins
Harold Walters

Mr Mark Blackett-Ord (instructed by IBB Solicitors) appeared on behalf of the Appellant.

Mr Mark Warwick (instructed by Messrs Nabarro) appeared on behalf of the Respondent.

Lord Justice Rimer

This is an application for permission to appeal. It is made by the claimant, Andrew Olins, against Mann J's order of 26 September 2007 refusing him permission to amend his particulars of claim so as to assert certain additional causes of action. As the trial is to be heard in a window opening on 5 th November, which is this Monday, the hearing of the application has been expedited, although it is perhaps not obvious that Mr Olins was deserving of such favoured treatment, he having waited until 17 October before issuing his appellant's notice. The hearing has been fixed on the basis that, if permission were granted, the court would proceed to hear the appeal immediately afterwards and we have had the benefit of written and oral arguments not just from Mr Blackett-Ord, for Mr Olins, but also from Mr Warwick, for Harold Walters, who is the defendant to the claim and the respondent to this application. The background to the proceedings is as follows and I shall, for convenience, refer to the family members by their first names.


Harold is 95. He is the widower of Freda, who died on 30 May 2006 aged 93. They had been married for almost 72 years. They had two daughters, Leone and Rosalind, both of whom are married and have children. The claimant, Andrew, is one of Leone's children. Harold is his grandfather.


Freda and Harold both made wills in 1953. Their essential effect was that they left their respective estates to each other. Andrew's case is that on 11 March 1988 they made new wills, although Harold now (as I understand it) disputes that Freda's will was validly executed. Those wills, or purported wills, were also in substantially similar form. They were prepared by Anthony Quinn & Co, solicitors. Each will disposed of the equivalent of the nil rate band on discretionary trusts for the family and left the residue to the surviving spouse if that spouse survived for 30 days, failing which it was to be divisible as one third to Leone, one third to Rosalind and one third to the five grandchildren. Each will appointed the surviving spouse as executor together with Andrew. He was then 24 and was training to be a solicitor and was doing his articles with Anthony Quinn & Co. The attesting witnesses to each will were, or were purportedly, Harold Lewis and Patricia Podger. Harold's case in the claim appears to be that Freda signed her will in the absence of these witnesses, who only purported to witness it later.


The story then moves to 1998. Andrew's case is that Freda and Harold wished to vary the dispositions made by the 1988 wills. He prepared codicils for execution by them, which he says accorded with the instructions they gave him at a meeting in February 1998. Freda and Harold purportedly executed the codicils on 8 May 1998. They are in virtually identical form. Their apparent purpose was to re-designate the disposition of their respective residuary estates. Each testator still left the residue to his or her spouse, conditional upon the spouse surviving for 30 days. The new provisions were that, subject to that, the residuary estate of each testator was to be left as to one third to Leone for life with remainder to her children, both as to capital and income, in equal shares; as to another third, on like provisions for Rosalind and her children; and as to the remaining third, upon trust for all the grandchildren in equal shares.


Clause 2 of Freda's codicil provided that:

“This Codicil is made pursuant to an agreement made between my husband and me for the disposal of our property in a similar way by mutual testamentary dispositions.”


Clause 2 of Harold's codicil contained a provision in like form. The attestation clause purported to record that the execution of codicils was witnessed by Harold Lewis and Patricia Podger, the same people who had witnessed, or purported to witness, the 1988 wills. Andrew claims he left it to Freda and Walter to organise the execution of the codicils themselves. On 23 May 1998 Harold returned the codicils to Andrew, whose evidence is to the effect that Harold expressly confirmed to him that they had been executed in the presence of the two witnesses.


Freda died on 20 May 2006. Andrew and Harold were her named executors under her 1988 will. Harold then raised an issue about the codicils, putting in question whether he and Freda ever signed them and saying that they did not reflect their intentions. That led to Andrew's commencement of the present claim on 16 March 2007. He sought probate in solemn form of Freda's 1988 will and 1998 codicil. He also sought declarations (i) that the two 1998 codicils took effect as mutual wills, and (ii) that Harold held Freda's estate “on the trusts identified within the mirror Codicils,“and an injunction restraining Harold from making any inter vivos disposition calculated to defeat the terms and effect of the codicils. There are, therefore, two limbs to the claim; first, a probate claim and, secondly, a claim asserting rights under the mutual wills doctrine.


Harold's defence and counterclaim denied that Freda's 1988 will was validly executed. It also denied that her 1998 codicil was validly executed, alleging that Freda was not present when Mr Lewis and Ms Podger purported to witness its signing. It denied that Freda and Harold made any contract having the result that they had created wills that were either irrevocable or became irrevocable on the death of the first to die. It denied that there was any such agreement as that referred to in clause 2 of Freda's codicil. By a counterclaim, Harold asked the court to pronounce against Freda's purported will and codicil, and instead to pronounce in favour of her 1953 will as being her true last will. Under that will, Freda's estate goes to Harold. It of course also goes to Harold under the 1988 will and 1998 codicil, assuming they were valid, because Harold survived the necessary 30 days. The central relevance of Andrew's bid to prove the 1988 will and 1998 codicil is that it would enable him to set up the mutual wills claim, in which he has a personal beneficial interest.


Harold's denial of the validity of the 1998 codicil, and of any agreement by him and Freda to make mutual wills, led to the production in early May 2007 of proposed amended particulars of claim. On 17 May, and at the request of Harold's solicitors, Andrew provided some further information about the new allegations. There was a case management conference on 8 June, when it appears that an informal application for permission to make the amendments was made; and we are told that counsel then appearing for Andrew withdrew the application on the basis that a formal application for permission to make the amendments, either in their original form or a revised one, would then be issued. Their withdrawal was, by inference, at least in part to do with the fact that Master Moncaster was critical of the amendments. The promised application was later issued on 20 July and came on for hearing before Mann J on 25 and 26 September. It sought permission to make the amendments in their original form, save only for one (for present purposes immaterial) modification which I need not detail. As I have said, the judge refused to allow the amendments and it is against that decision that permission to appeal is sought.


The amendments are contained in additional paragraphs 19 to 24 of the particulars of claim, although Mr Blackett-Ord has now abandoned his client's application in respect of the last sentence of paragraph 23 and the whole of paragraph 24, to which I need not refer. He maintains the remainder of the application.


Paragraph 19 pleads a change by Harold of his solicitors on about 28 March 2007. Paragraph 20 refers to the assertions in Harold's Defence that Freda's 1988 will and 1998 codicil were invalid by virtue of section 9(c) of the Wills Act 1837 (want of proper execution), and that clause 2 “did not create a mutual wills agreement.” Paragraph 21 pleads that both those assertions were inconsistent with (a) a letter of 11 August 2006 from Harold's former solicitors (which acknowledged that the two codicils had created mutual wills), and (b) a letter of 21 March 2007 from Harold asking Andrew to confirm whether and when he would be getting on with obtaining probate “for Grandma's estate.”


Paragraphs 22 and 23 (excluding from the latter the last sentence, which is no longer pursued) then plead as follows:

“22. If (which is not admitted) Freda's Will and Codicil are, by virtue of section 9(c) of the Wills Act 1837 (as amended) invalid for want of proper execution, Andrew contends that:

22.1. the enforceability of the mutual wills agreement is not dependent on the validity of Freda's Will and/or Codicil;

22.2. further and/or alternatively, at the time that Freda and Harold signed their Wills on or about 11 March 1988 and Codicils on about 18 May 1998, Harold orally and/or by conduct made representations to Freda to the effect that their Wills and Codicils would be or had been validly executed and, by reason thereof, Harold is estopped from denying the truth of his representations; and


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