Wood and Another v Smith and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE SCOTT |
| Judgment Date | 20 February 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0220-8 |
| Docket Number | 92/0166 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 1992 |
[1992] EWCA Civ J0220-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR. DAVID GILLILAND Q.C.
(sitting as a Deputy High Court Judge)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Butler-Sloss
and
Lord Justice Scott
92/0166
In The Estate of Percy Winterbone Deceased
and
and
MR. R. HEDLEY MARTEN (instructed by Messrs Lovell Son & Pitfield, London Agents for Messrs Robinson & Allfree, Broadstairs)) appeared on behalf of the Appellant (First Defendant).
MR. T. DUMONT (instructed by Messrs Girlings, Margate) appeared on behalf of the Respondents (Plaintiffs).
Lord Justice Scott will deliver the judgment of the court.
This is an appeal against the judgment of Mr. David Gilliland Q.C. (sitting as a Deputy High Court Judge of the Chancery Division) given on 27th June 1990. The learned deputy judge had before him a probate action in which the first defendant, Mr. Clive Smith, sought to obtain probate of a manuscript document bearing the date 18th April 1986, and said to be a testamentary disposition made by the deceased, Mr. Percy Winterbone. The deputy judge refused to admit the document to probate. He did so on two grounds: first, that the document had not been duly executed in accordance with the requirements of section 9 of the Wills Act 1837, as substituted for the original section by section 17 of the Administration of Justice Act 1982; and, secondly, that the deceased lacked testamentary capacity.
The first defendant is the principal beneficiary under the document and, on this appeal, challenges the deputy judge's conclusions on both of the grounds I have mentioned.
The background facts, as found by the deputy judge, are these. The deceased was born on 28th July 1903. He died on 20th April 1986 at the age of 82. He had never married and had no family or, at least, no family with whom he was in touch. For a number of years prior to his death he lived at 150B, High Street, Margate, a property which he owned. He had at one time used the property as a guest house and a number of people, who had at one time or another resided in the guest house, had become friends of his. The deceased's closest friend at the time of his death appears to have been the first defendant, a man now in his forties, who, when giving evidence, described himself as an unemployed seaman. The first defendant had known the deceased for some seven years and said in evidence that for the three or three and a half years before the deceased's death he had been looking after the deceased. The first defendant did not live at 150B High Street, but lived elsewhere in Margate.
On 21st February 1986 the deceased had a fall in his house and, as a result, suffered serious burns to his left shoulder and arm. The first defendant, after consulting the deceased's doctor, took the deceased to the local hospital where the burn was attended to. Arrangements were made for the deceased to take up residence in a residential home for the elderly known as Samuel Saye House, owned and managed by a Mr. and Mrs. Tinker. On 22nd February 1986 the deceased was transferred from the hospital to Samuel Saye House. There he remained until 18th March 1986 when, no doubt because his condition had deteriorated, he was transferred back to hospital. He died in hospital on 20th April 1986, two days after the date of the document to which I have referred.
The deceased's friends included three ladies whose names recur in the narrative. There was Mrs. Gwendoline Harvey who lives in Erith. Mrs. Harvey is the second defendant but has taken no part in the proceedings. There was Miss Sharon Hughes with whom the deceased had been very friendly and who, it is said, he had at one time wanted to marry. Miss Hughes had lived in a flat underneath the deceased's own rooms at 150B High Street. There was also Mrs. Patricia Gilmore, a friend of some thirty years standing.
Two other individuals whose names appear in the story should be identified. There was Mr. Terence Morgan, an unemployed building worker. Mr. Morgan was a friend of the first defendant and had become acquainted with the deceased through the first defendant. He had, at the time of the deceased's death, known the deceased for about three years. Finally, there was Miss Marita Calagarri, who described herself as an unemployed ship's cook. She had met the deceased while looking for accommodation. She visited the deceased on six or seven occasions while he was in hospital.
On 30th June 1978 the deceased signed a professionally drawn will. The will had been prepared on the deceased's instructions by a firm of Margate solicitors, Girling Wilson and Harvey. His signature was duly witnessed by two of the clerks in the firm. By this will the deceased appointed Mrs. Mary Wood and Mr. John Seveld to be his executors. They are the plaintiffs in these proceedings. We have not been told what, if any, relationship they had to the deceased, or why they were appointed.
The dispositive contents of the will include:
(i) Pecuniary legacies of £1,000 each to the two executors, and of £2,000 to a Mr. Clarke, the deceased's stockbroker;
(ii) provision for 150B High Street and its contents to be retained to provide a residence during their respective life-times of two ladies, Mrs. Donelly and Mrs. Willett;
(iii) a settled legacy of £10,000 to provide for the maintenance of 150B High Street during the residence there of the two ladies;
(iv) a settled legacy of £2,000 for a specified animal charity; and
(v) a gift of residue in equal shares to two specified charities.
On 26th August 1988 this 1978 will was admitted to probate in the Brighton District Probate Registry. The grant of probate was expressly "limited to expire upon the date upon which the codicil dated 18th April 1986 be proved". This was a reference to the document, the subject of these proceedings, the status of which was, on 26th August 1988, still undecided.
The deceased's estate includes the property, 150B, High Street, and investments valued in March 1986 at about £105,000. There may also be funds in bank or building society accounts but we have not been given any details of these.
I now come to the two issues in the case.
Execution of the 18th April 1986 document
Evidence about the execution of this document was given by Mr. Morgan and Miss Calagarri. The deputy judge accepted their evidence about what had happened and, in his judgment, at page 11B-G, rehearsed at some length the relevant evidence. A summary of what took place is as follows. The deceased, while Mr. Smith was, fortuitously and temporarily, out of the room, asked Mr. Morgan to hand him a piece of paper. Mr. Morgan understood the deceased to want to make a will and handed him a piece of paper. The deceased spent about 25 minutes writing on the piece of paper. His handwriting was very shaky. From time to time Miss Calagarri had to wipe the sweat from his forehead. The content of this document, as written by the deceased, is as follows:
"My Will by Percy Winterbone of 150 High Street, Margate. I bequeath my house as above to Mr. Clive Smith together with half the value of my shares the total of which are just under £17,000. The other half to be divided as to 3/4 to Mrs. G. Hughes"—
with a line through the word "Hughes"—
"Harvey of 37 Cobham House, Boundary Street, Erith. Also to Clive Smith of 4 Trinity Square my car. Also to Clive Smith the balance of cash in the Nationwide Building Society and Westminster Bank".
During a pause in the writing, while the deceased was taking a drink of water, he asked Mr. Morgan if Mr. Morgan knew Miss Sharon Hughes' address. Mr. Morgan said that he did not. The deceased then continued writing. When he had finished writing the deceased asked Mr. Morgan and Miss Calagarri to sign the document as witnesses. Mr. Morgan said to the deceased that he, the deceased, had not yet signed. The deceased replied that he had already signed at the top of the document. He was referring to his name, "Percy Winterbone", in the sentence "My Will by Percy Winterbone of 150 High Street, Margate". The deceased added that he could sign the document anywhere. Miss Calagarri then signed and passed the document to Mr. Morgan. Mr. Morgan signed and handed the document back to the deceased. The deceased then said that the date, 18th April, should be placed on the document. So Miss Calagarri added the words "on 18th April 86" just below Mr. Morgan's signature. The deceased then asked Mr. Morgan to keep the document and said "If anything happens to me, you should give it to a solicitor after my funeral".
All of this happened while Mr. Smith, the principal beneficiary, was fortuitously out of the room. The preparation and signing of the document took about half an hour.
I have endeavoured to summarise the evidence as given by Mr. Morgan and Miss Calagarri. As I have said, the judge accepted this evidence. The judge said, at page 14 of his judgment:
"…having observed carefully both Mr. Morgan and Miss Calagarri give their evidence I am quite satisfied that in relation to the question of execution the description of events which they have given is correct. I do not think there is any question of them having embroidered on these events in any way".
The question is whether or not the document, prepared and signed as it was, satisfies the requirements of the substituted section 9 of the Wills Act 1837. The substituted section...
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