Stanislaw Wyniczenko v Krysytyna Plucinska-Surowka
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 2005 |
| Neutral Citation | [2005] EWHC 2794 (Ch) |
| Docket Number | CASE NO: HC04C01757 |
| Court | Chancery Division |
| Date | 18 November 2005 |
[2005] EWHC 2794 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
His Honour Judge Behrens
CASE NO: HC04C01757
In the Matter of the Estate of Maria Rowinska Deceased
This is a probate action. It arises out of the death of Mrs Maria Rowinska who died on 10th April 2002 at the age of 87. The estate comprises a house worth approximately £500,000, savings of £200,000, a property in Poland that has not been valued but is thought to be worth about £50,000 and various items of personal property. It has been estimated that the value of the estate is of the order of £750,000. It will, of course, be subject to Inheritance Tax.
. Stanislaw Wyniczenko, the Claimant, is the sole beneficiary named in a will Maria Rowinska is purported to have made on 19 th February 2002 some 7 weeks before she died.
. Krysytyna Plucinska-Surowka is the niece of Maria Rowinska. She lives in Poland. She was named as an executor in an earlier will dated 4 th August 1993. It will be necessary to look at the provisions of that will later in this judgment. It made a number of bequests—many of them charitable in favour of Polish Catholic charities. It is also made a number of bequests to relatives in Poland including a gift of £40,000 to Krysytyna Plucinska-Surowka herself.
. At the beginning of the trial Krysytyna Plucinska-Surowka sought to challenge the will on 4 grounds.
She contended that Maria Rowinska's signature on the will was not genuine. She is supported in that view by a handwriting expert—Mrs Phillippa Lavell—who concludes that there is very strong evidence that the signature was produced by someone other than Maria Rowinska. Stanislaw Wyniczenko disputes that the will is forgery. He says he was present when it was signed by Maria Rowinska; so were the 2 attesting witnesses. Furthermore Dr Audrey Giles—the handwriting expert instructed by him—regards the evidence as conflicting.
She contended that Maria Rowinska did not know and approve the contents of the will before she signed it. It is common ground that the will was prepared by Stanislaw Wyniczenko and that he is the sole beneficiary under it. It is thus common ground that this is a case where the suspicion of the Court is aroused. In those circumstances the court must examine all of the circumstances of the case with the utmost care to see whether the testatrix did know and approve the contents of the will. Krysytyna Plucinska-Surowka contends that Stanislaw Wyniczenko has not so satisfied the court. Stanislaw Wyniczenko contends that he has.
She contended that Maria Rowinska did not have the mental capacity to make a will. She relied on the fact that Maria Rowinska was 87, frail, physically incapacitated and suffering from cancer. There is evidence that she was becoming confused. Stanislaw Wyniczenko accepts the evidence of her frailty but contends that it did not affect her mental capacity. He relies on the evidence of her GP—Dr Tailor—who saw her regularly. Dr Tailor in fact saw her on 18th February 2002—the day before the will was said to be executed and was able to give evidence as to her mental state then. He also relies on the evidence of the District Nurse—Mrs Phillips—who saw her both before and after the date on which the will was said to have been made.
She contended that Stanislaw Wyniczenko exercised undue influence over Maria Rowinska in order to make her execute the will. Stanislaw Wyniczenko denies the allegations of undue influence.
. In the afternoon of the second day of the trial after Dr Tailor and Mrs Phillips had given evidence Mr Noble on behalf of Krysytyna Plucinska-Surowka indicated that he was not pursuing the defences of incapacity and undue influence and abandoned them.
. As is by no means uncommon in this sort of case there are significant conflicts of evidence both as to the nature of the relationship between Stanislaw Wyniczenko and Maria Rowinska, the extent to which he was providing caring services and as to precisely what her wishes were at the material time.
Representation
. Stanislaw Wyniczenko was represented by Mr Giles Harrap; Krysytyna Plucinska-Surowka by Mr Philip Noble. Both Counsel produced full and helpful skeleton arguments containing references to a number of recent authorities. I am most grateful to them.
Witnesses
. A number of witnesses were called to give evidence before me. Stanislaw Wyniczenko gave evidence in support of his case. He then called the 2 attesting witnesses Wojciech Zasada and Malgorzata Zasada, Maria Rowinska's GP, Dr Tailor, and the District Nurse, Mrs Phillips.
. Krysytyna Plucinska-Surowka gave evidence. She then called 2 supporting witnesses Irena Abramowicz and Danuta Chomiak both of whom were involved with the care of Maria Rowinska and gave significantly different evidence as to the extent of the care given by Stanislaw Wyniczenko and as to conversations that they had with Maria Rowinska.
. Many of the witnesses had a very poor command of English and I was greatly assisted by a really excellent interpreter.
. Finally the 2 handwriting experts, Mrs Phillippa Lavell and Dr Audrey Giles, gave evidence in support of their respective views.
The Facts
Maria Rowinska
. Maria Rowinska was born in Poland. She married twice. Her first husband survived the concentration camps but died in Poland fairly soon after the war. She came to England in the 1960's with her second husband—Zbigniew Rowinska. Polish remained her first language and there are differing accounts of the extent to which she was able to speak and understand English.
. It is clear from her earlier wills that she had a number of relatives in Poland. These include her elder sister—Aldona Burkhardt, her niece Krysytyna Plucinska-Surowka, another niece—Barbara Doktorczyk—and the 2 children of Krysytyna Plucinska-Surowka.
. Her second husband died in 1986 and she remained living in England on her own thereafter.
. There is no doubt she was lonely after her husband died. She talked from time to time about returning to Poland but never did. She was close to her sister who died in October 2001.
. She was also in reasonably frequent contact with her niece Krysytyna Plucinska-Surowka. There was regular (monthly) telephone contact and letters from Krysytyna Plucinska-Surowka to her aunt. She had not in fact seen her niece since 1996.
Earlier Wills
. Maria Rowinska made 4 wills before 2002:
18 th July 1979
. Her first will was made in 1979. It is on a home made will form and is in English. In it she makes 4 specific bequests to her husband of what appear to be all of her assets. There is then provision for what would happen if she and her husband die simultaneously. Half of the estate in both of the wills goes to one family the other half goes to Pope John Paul and charity. There is an inference that her husband made a will in equivalent terms on the same day.
22 nd June 1982
. This is a short professionally drawn will leaving her whole estate to her husband.
12 th May 1988
. This will is typed in Polish on a home made will form. It is not wholly straightforward to follow in that it contains references to savings in different amounts. One of the references is to date in 1991—i.e. 3 years after the date of the will.
. It appears to give half of the house and her personal belongings and jewellery to her sister—Aldona Burkhardt. It makes small legacies to Krysytyna Plucinska-Surowka, Barbara Doktorcyzk and one other person. The remainder of the estate passes to catholic charities in Poland.
4 th August 1993
. This is a professionally drawn will. It appoints Krysytyna Plucinska-Surowka and a Polish solicitor to be executors. It contains detailed instructions in relation to Maria Rowinska's remains. She does not want them cremated. She wishes to be transported to Poland to be buried next to her husband. It contains a number of detailed bequests. Many of these are charitable in favour of various catholic churches in Poland. Some are for specific purposes—such as the maintenance of graves or the saying of masses. She makes a number of legacies to relatives in Poland. The 2 largest are legacies of £40,000 each to her sister—Aldona Burkhardt—and niece—Krysytyna Plucinska-Surowka. There are, however small legacies for Barbara Doktorcyzk and one other person. The residue passes to the Catholic University of Lublin for bursaries for students of theology law and philosophy with a proviso for the education of the 2 children of Krysytyna Plucinska-Surowka.
The health of Maria Rowinska
. As already noted the allegation of incapacity has been abandoned. The state of health of Maria Rowinska remains relevant both in relation to her ability to sign the will in the way it is alleged that she did, and secondly on the issue of want of knowledge and approval.
. Maria Rowinska was born on 29 th December 1914. She was registered as a patient at Hillcrest Surgery, Acton for many years certainly from 1996. By the end of 2001 she was suffering from 2 conditions—polymyalgia rheumatica and hypertension. The polymyalgia affects the upper muscles of the upper limbs—shoulders and arms—the pelvic and upper thigh muscles.
. In his witness statement Dr Tailor expressed the opinion that many of Maria Rowinska's visits to the surgery were because she was lonely and wanted a chat. Her symptoms did not warrant a visit to the doctor. He said that she spoke in English and was able to communicate her symptoms to him. He describes her as complaining that her legs were paralysed when in fact they were not. He says that she was very demanding and wanted things done her way. One of the problems he had with Maria Rowinska was that she would not take her pills.
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Table of Cases
...v Culver [2006] EWHC 923 (Ch), [2006] 1 WLR 2674, [2006] 4 All ER 345, [2006] WTLR 931 223, 226–227 Wyniczenko v Plucinska-Surowka [2005] EWHC 2794 (Ch), 8 ITELR 385, [2005] All ER (D) 245 (Nov) 67 X v Germany (1981), Application No 8741/79, 24 DR 137, ECommHR 145–146 Yearworth v North Bris......
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Knowledge and Approval
...it is judicially satisfied that the paper propounded does express the true wish of the deceased. In Wyniczenko v Plucinska-Surowka [2005] EWHC 2794 (Ch), the testatrix, who was Polish, moved to England with her husband in the 1960s. She remained in contact with her family in Poland and in p......
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Testamentary Capacity and Intention
...and evidence to displace it varies according to the circumstances of the case. For example, in Wyniczenko v Plucinska-Surowka [2005] EWHC 2794 (Ch), the testatrix made a new will, differing from her previous one by excluding charitable bequests and a gift to her niece (who was the claimant)......