Royal National Institute for Deaf People (a company Ltd by guarantee No.00454169 and registered charity no.207720) and Others v Mr Alan Turner
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson |
| Judgment Date | 14 February 2017 |
| Neutral Citation | [2017] EWCA Civ 385 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2015/4121 |
| Date | 14 February 2017 |
[2017] EWCA Civ 385
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(His Honour Judge Behrens)
Royal Courts of Justice
Strand
London
WC2A 2LL
Lord Justice Henderson
Case No: A3/2015/4121
In the Estate of Dorothy Patchett Whelan (Deceased)
Vikram Sachdeva QC appeared on behalf of the Appellant
The Respondents did not attend and were not represented
This is a renewed application for permission to appeal in relation to the order for costs made by the trial judge, His Honour Judge Behrens sitting as a Judge of the High Court, on 18 November 2015, after he had handed down judgment in a probate action following a five-day trial.
The action concerned the estate of Mrs Dorothy Whelen who died on 9 February 2012 aged 92. Her estate was valued at some £1.8 million. The claimants were four charities which were the residuary beneficiaries under a professionally drawn will which she had made in 1982 ("the 1982 Will"). She also left a home-made will, or alleged will, dated 1 November 1999 ("the 1999 Will") under which the main beneficiary was her life-long friend, Mrs Hazel Turner. Comparatively modest pecuniary legacies were also given to members of Mrs Turner's family including her son, Alan Turner, who received a legacy of £5,000. The 1999[QC1] Will contained a standard form revocation clause.
The 1999 Will also appeared on its face to have been validly executed, in that it bore a printed attestation clause in short form and had apparently been signed by the testatrix in the presence of two attesting witnesses who were stated to have signed the document in the presence of the testatrix and each other. The two witnesses were a Mrs Tomalin and a Mr Hallam. Mrs Turner, who, as I have said, was the main beneficiary under the 1999 Will, and the two attesting witnesses, Mr Hallam and Mrs Tomalin, knew each other well because they were all teachers at a small language school run by Mr Hallam.
In the probate action the claimants were the four charities and the defendant was Alan Turner. In their Particulars of Claim the charities sought proof in solemn form of the 1982 Will and asked the court to pronounce against the 1999 Will on the basis that it had never been duly executed. In paragraph 9 of the Particulars of Claim, it was pleaded that neither Mr Hallam nor Mrs Tomalin had ever met the deceased or ever witnessed her signature, and that when they signed their names on the 1999 Will they each believed they were signing a will made by Mrs Turner because that is what Mrs Turner had asked them to witness and told them that they were signing. The Particulars also allege that on this occasion the only person in the room apart from the two witnesses was Mrs Turner.
In the claimants' subsequent Reply, the further detail was added that the witnesses had apparently given this version of events as long ago as July 2005 to a solicitor, Mr David Fellows, who was a partner of Calvert Smith and Sutcliffe, who I think were the solicitors who then acted for Mr Hallam. The claimants also advanced an alternative plea of want of knowledge and approval based on various potentially suspicious looking circumstances relating to the preparation and execution of the 1999 Will. These included the fact it was made on a home-made will form identical to the form which had been used by Mrs Turner and her late husband; the fact that no solicitor was involved; the fact that Mrs Turner apparently procured execution of the 1999 Will at her place of work and was present when it was executed; and that the terms of the 1999 Will were written by different people in different hands, and so forth.
In his Defence and Counterclaim Alan Turner denied that the 1999 Will was invalid and counterclaimed for probate to be granted of it. I draw attention to paragraphs 13 and 14 of the Counterclaim where, in relation to due execution, he pleaded that the evidence of the two attesting witnesses was unreliable, inconsistent, and had been developed reactively in response to disclosures made such that it was insufficient to rebut the presumption of due execution. He added that this presumption was supported by the evidence of Mrs Turner herself, who was present on the occasion when the 1999 Will was executed at her place of work in the presence of two work colleagues.
I observe at this point that, on the defendant's own case, Mrs Turner was present when the 1999 Will was executed. She must therefore have known whether the testatrix was there too, and, if she was not, it follows that the 1999 Will could not have been valid, whatever the attestation clause said. It was therefore implicit in the defendant's case that there must have been an occasion when the testatrix herself came to Mrs Turner's workplace and when the 1999 Will was duly executed. The witnesses must, on this version of events, have confused that occasion with a different one when they attended and witnessed Mrs Turner's own Will.
At the trial, Mr Hallam and...
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