Timothy Mundil-Williams v Richard John Williams
| Jurisdiction | England & Wales |
| Judge | Keyser |
| Judgment Date | 16 March 2021 |
| Neutral Citation | [2021] EWHC 586 (Ch) |
| Date | 16 March 2021 |
| Docket Number | Case No: PT-2020-CDF-000008 |
| Court | Chancery Division |
[2021] EWHC 586 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
In the Estate of John Williams deceased (Probate)
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
HIS HONOUR JUDGE Keyser QC
sitting as a Judge of the High Court
Case No: PT-2020-CDF-000008
Daisy Brown (instructed by Roger James Clements & Partners) for the Claimant
Gareth Thomas (instructed by Everett Tomlin Lloyd and Pratt) for the First and Fourth Defendants
Hearing dates: 9 and 10 March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Keyser QC
JUDGE Keyser QC:
Introduction
This is a dispute as to the identity of the last valid will of John Williams (“the testator”), who died on 27 September 2017 aged 91 years. He was survived by his four sons, who are the claimant and the first, second and third defendants; for convenience, I shall refer to them as Timothy, Richard, Thomas and Ifor respectively, and collectively as “the brothers”. The fourth defendant is Richard's wife; I shall refer to her as Susan.
On 21 July 2014 the testator signed a purported will (“the 2014 Will”) and a side letter (which has been referred to, not entirely accurately, as “the Letter of Wishes”). In these proceedings, Timothy asks the court to pronounce against the validity of the 2014 Will, on the ground that the testator lacked knowledge and approval of its contents, and in favour of an earlier will of the testator dated 5 October 1990 (“the 1990 Will”). No question arises concerning lack of testamentary capacity or in respect of any other potential vitiating factor, such as undue influence.
Thomas, who is represented by the solicitors who act for Timothy, does not contest the claim and has given evidence in support of it. Ifor also does not contest the claim: he filed an acknowledgment of service that said, “I do not wish to be involved in a court case with family members and would urge my brothers to seek mediation.” Richard and Susan do contest the claim and ask the court to pronounce in favour of the 2014 Will.
The trial was heard over two days on the Cloud Video Platform. I am grateful to Miss Brown, counsel for Timothy, and to Mr Thomas, counsel for Richard and Susan, for their helpful submissions.
The Law
The relevant law is not in issue, and I can take it quite shortly. A party who is propounding a will must prove that the testator knew and approved its contents at the time he signed it. In the ordinary case, knowledge and approval will be inferred from the facts that the testator had testamentary capacity and that the will was duly executed. In other cases, however, something in the circumstances will raise a suspicion in the mind of the court and more will be required before the burden is held to be discharged. In Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097, Peter Gibson LJ referred to circumstances in which the court's suspicions might be aroused by the nature of the testamentary provisions and continued at [33]:
“What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be ‘vigilant and jealous’ in examining the evidence in support of the will ( Barry v Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.).”
In the same case, Chadwick LJ summed the matter up at [65]: “The question is whether the court is satisfied that the contents do truly represent the testator's testamentary intentions.” (Cf. his detailed analysis of this question at [66]–[72].)
In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, commented as follows in the circumstances of the case before the court:
“12. As for want of knowledge and approval of the contents of the 2007 Will, the scope of the inquiry indicated by a long line of authorities gives rise to other questions distinct from lack of mental capacity to make the will: Wintle v Nye [1959] 1 WLR 284; Fuller v Strum [2001] 1 WLR 1097; Gill v. Woodall [2011] WTLR 251. The relevant questions to ask in this case are—
i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said ‘Yes.’
ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said ‘No.’
13. In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed.
14. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.”
It will suffice, I think, to confine further references to remarks in the judgment of Lord Neuberger MR (with which Jackson LJ agreed and Lloyd LJ concurred) in Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380:
“14. Knowing and approving of the contents of one's will is traditional language for saying that the will ‘represented [one's] testamentary intentions’ – see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the Will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will.
15. In Fulton v Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that
‘When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator’.
This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris deceased [1971] P 62, 77F–78B Hill J said that ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence.’ This approach was adopted in this court in Fuller [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2010] EWCA Civ 840, para 28.
16. There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their...
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