Rowe v Clarke

Hearing dates: 18, 19 July 2005

APPROVED JUDGMENT

Introduction

This action relates to the presumption that a will traced to the possession of the testator, but not forthcoming at his death, is presumed to have been destroyed by the testator with the intention of revoking it.

The basic facts are that the testator Barrie James Clarke (whom I shall call 'Barrie') lived in the same house as the claimant Mark Andrew Rowe ('Mr Rowe') for a period of about 10 years before his death. Mr Rowe claims that this was a homosexual relationship. On 28 June 2000 Barrie made a will in favour of Mr Rowe, and sent a copy to Mr Rowe's mother. That copy survives and is in evidence before me, but the original is not. Barrie died on 20 January 2004, and on 14 April 2004 his brother Kenneth Anthony Clarke ('Kenneth Clarke') obtained a grant of administration on the footing of intestacy. It is common ground that Kenneth Clarke is solely entitled to the estate in the event of intestacy. Now Mr Rowe applies for probate in solemn form of the will made in 2000 (by the copy sent to his mother at that time) and for revocation of Kenneth Clarke's grant of administration. Kenneth Clarke resists that by saying that his brother should be presumed to have destroyed the will with intent to revoke it.

At this stage it is convenient to set out a summary of the law from Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (18th edition), paragraph 14–29:

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 intention of revocation (animo revocandi). The burden of proving, in these circumstances, that the will was not destroyed animo revocandi is upon the party propounding its contents.

In the present case it is therefore for Mr Rowe to persuade me, on the balance of probabilities, that Barrie did not deliberately revoke the will by destroying it. The two practical alternatives to that destruction are either that Barrie lost the will, or even destroyed it, but without any intention to revoke it, or, as will appear, that the will was still in existence at Barrie's death but was then removed by Kenneth Clarke and fraudulently suppressed or destroyed by him. Little was said during the hearing about the first of those alternatives, but it is not one which I can ignore.

The strength of the presumption depends on the level or degree of security, or lack of it, with which the testator had custody of the will during his lifetime. I shall therefore need to make findings about where and how Barrie looked after the will during his lifetime and, having assessed the strength of the presumption in this case in the light of that finding, examine all the relevant facts to decide whether I am persuaded on the balance of probabilities that it was (1) fraudulently removed after Barrie's death, or (2) lost or destroyed without revocation, or (3) destroyed with intent to revoke in accordance with the presumption.

Witnesses

I heard evidence from several witnesses, all of whom had served witness statements and were cross-examined on them. On Mr Rowe's side I heard evidence from Mr Rowe himself, from Father Patrick Zammit (the parish priest at the church sometimes attended by Barrie and Mr Rowe), Anthony Page (a friend of Barrie's who for a time shared the ownership of a flat in St Malo with him), and from Mr Rowe's mother Mrs Marina Rowe. There was also evidence of due execution of the will by the two witnesses who attested it. On the other side I heard evidence only from Kenneth Clarke himself.

Mr Rowe is in his early forties. He gave his evidence in what I can, with some understatement, describe as a combative, over-hasty and emotional way. He is easily agitated and highly excitable. His cross-examination by Miss Sarah Harrison (who appeared before me for Kenneth Clarke) was not unduly hostile, but at times he seemed close to breakdown in the witness box. He seldom gave a direct answer to a direct question. But in my view this was not driven by evasiveness in the ordinary sense of the term but rather by a misplaced eagerness to answer some other accusation which he perceived to lie concealed in the original question.

I must mention one other aspect of his evidence. It is part of Mr Rowe's case that he was Barrie's partner in a homosexual relationship. And yet during their life together at Barrie's house they both represented to the local authority, on several occasions, that Mr Rowe was Barrie's tenant, resulting in the regular receipt of housing benefit. Miss Harrison cross-examined Mr Rowe on this, pointing out that if he and Barrie were living together as partners in a homosexual relationship they were not entitled to housing benefit and appeared to have conspired to obtain it by fraud. Mr Rowe's various responses to this line of questioning, apart from accusing Miss Harrison (without foundation) of homophobia, were that (1) Barrie had been the dominant partner in this matter, having had experience in local government (which itself was the case), and that it was Barrie who had led him unwillingly into describing himself as a tenant for this purpose, (2) that 'legally' he was the tenant (and had to have a status of some sort), and ultimately (3) simply that 'Barrie needed the money'.

I have no doubt that Mr Rowe's evidence before me, that he was Barrie's partner in a homosexual relationship, is true. Other witnesses confirm that they were generally open about the situation. It is not impossible that he was also his tenant (though if they were also in a relationship this would disentitle them to housing benefit). But the exchange as whole showed a casual attitude to the truth in other circumstances which meant that I have had to treat his evidence with considerable caution. The other side of this coin is that Mr Rowe is not secretive and wears his heart on his sleeve. He tends to reveal his thoughts and attitudes with unusual openness.

Father Zammit gave his brief evidence quietly and diffidently. Essentially his evidence was no more than that Barrie and Mr Rowe were parishioners of his, and he knew that they lived at the same address. In his witness statement he states that he knew them as partners, but in the witness box he said that he knew only that they shared the house. He says that, if he had been asked to bless their relationship, he would have refused to do so. I accept his evidence as true.

Anthony Page's evidence was brief and largely uncontroversial. He and Barrie had owned a flat together in St Malo for about nine years, and the flat had been sold at Barrie's request in 1999. This evidence has been useful in putting a date to a letter written by Barrie to his brother. Mr Page stated that Barrie represented his relationship with his brother Kenneth Clarke as not close, and that he regarded Kenneth Clarke and his family as disapproving of his homosexual relationship with Mr Rowe. I accept Mr Page's evidence as true also, though recognising that it is only hearsay evidence of Barrie's relationship with his brother.

Mrs Marina Rowe is something of a contrast to her son. She is thoughtful, quietly spoken and generally composed. I regard her generally as a witness of truth, but on occasion she was inclined to be defensive when faced with hard questions in cross-examination, though not at all in the same way as her son.

Kenneth Clarke could hardly be more different from Mr Rowe as a witness. He gave his oral evidence in the briefest possible terms, doggedly and unemotionally, playing his cards, so to speak, close to his chest. In other words he revealed little of his character, and this has made it difficult to evaluate some of his evidence.

The facts

I turn now to a detailed account of the factual evidence. Kenneth Clarke has given some background information about his brother in his witness statement. Barrie was born in 1944, so that he was 59 years of age at his death. They were brought up in the Stockport area. After leaving school Barrie had started in the railways and became involved with the trade union. In the mid 1960s, after a period working in Germany, he worked as a Labour Party agent in the Huyton area (where Harold Wilson, the Prime Minister of the time, was MP), and soon moved south to Gravesend, working for a time at Transport House. Later Barrie became a member of Kent County Council, serving for a time as chairman. Mr Page records that Barrie worked for the Police Federation as a public affairs adviser for a time until the mid 1990s and did some occasional work for the Federation after that time.

When Barrie moved south he was still in his twenties, and from this time he saw far less of his brother Kenneth Clarke. There is evidence that they remained in contact with each other throughout the remainder of Barrie's life, with Kenneth Clarke claiming that they were on good terms and that they spoke regularly on the telephone. But in my judgment the relationship was distinctly cool, with occasional telephone calls and the exchange of Christmas cards being about the sum of it. They met from time to time at funerals, but neither Kenneth Clarke nor any member of his family had visited him at his house in Dartford (which he acquired on 17 March 1987). Nor did any of them visit him in hospital on the two...