Challenging a probate decision 10 years later on grounds of fraud

4 September 2018 | Applicable law: England and Wales

Owen Davies' family only found out about the November 2008 death of their late brother/ son four months after the event. His Belgian fiancée had gone as far as to text a response from his phone to say that he wouldn't be seeing them on Boxing Day but would 'explain later'.  The family failed however in a challenge to Owen's Will.

Years later, they are trying to set aside that decision because of compelling evidence that the original Court was misled.


Owen had been living in Belgium since 1991. He was engaged to Natalie. His three passions in life were described at trial as his cats, scrap metal and, over time, Natalie.

Owen's 1996 Will appointed his friend Adrian Morris as executor and left everything to an uncle, Clive. There was historic bad blood between Owen's immediate family and Clive.

It appears that Owen was subsequently under the impression that Natalie would inherit.

Natalie and Adrian collaborated to hide the fact of Owen's death from his family who only found out as a result of a telephone call from HM Coroner. That, unsurprisingly, contributed to a considerable degree of antagonism.

Original proceedings

Adrian started proceedings in England to prove the Will. The family opposed him. They did so on the basis, they said, that Owen had fixed his future life permanently in Belgium (in legal terms – had 'acquired a domicile of choice in Belgium'). The consequence of acquiring that domicile of choice would be that Belgian law applied and the Will (at least partially) invalid. Even if valid, because Belgium like many continental countries has forced heirship, his mother was entitled to a fixed share irrespective of any Will.

So the question of domicile – England or Belgium had to be decided.

Questions of domicile can take longer to determine than the substantive dispute (which is usually a 1975 Act claim for financial provision which may only be brought where the deceased died domiciled in England/Wales). This one took three days.

One judge memorably stated that

'In one sense there is no end to the evidence that may be adduced; for the whole of the man's life and all that he has said and done, however trivial, may be relevant in determining what his intention was at any given moment of time.'

And in the Court of Appeal Lord Justice Mummery said

'… the Court must look back at the whole of the deceased's life, and what he had done with his life, and what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that 'life must be lived forwards, but can only be understood backwards' resonates in the biographical data of domicile disputes.'

Generally domicile of origin is regarded as having 'an adhesive quality'. In other words it takes something special to convince the Court that someone has changed domicile (and with it the choice of which law applies to Wills and other succession issues).

The Judge hearing the family's case had taken into account Mr Morris' evidence that Owen's assets in Belgium consisted of 'one Belgian bank account with not much in it'.

The Judge had a host of other reasons which supported his conclusion that Owen had retained his English domicile. But many findings of fact as to Owen's intentions were based on the evidence given by Adrian whom the Judge found 'a reliable and truthful witness whose evidence I could rely on'.

New proceedings

Since 2011 it appears that Clive and Adrian have fallen out. As a result the family became aware that Owen had valuable assets consisting of a collection of motor vehicles, motorcycles, tools etc in Belgium.

The family claim that the original judgment was procured by Adrian's fraudulent evidence and have issued a claim to set it aside. Adrian applied to strike out the Claim on the basis that it has no realistic prospects of success.

Legal test for setting aside earlier judgment

There appear to be two competing legal tests a judge should apply in deciding whether the uncovering of fraudulent evidence means a judgment should be set aside.

One test is that the evidence now known to have been dishonest must have been 'material'. In other words it had to have constituted an 'operative cause of the Court's decision to give judgment in the way it did'. So, even if evidence was dishonest, if on its own it wasn't decisive, then the original judgment should stand.

The alternative test is whether the judgment is tainted by fraud. In other words, is there a 'real danger' that the fraudulent behaviour influenced the outcome. If there is, a re-trial should normally be ordered.

The Judge preferred the latter test.


The fact that Owen had more assets than originally disclosed at trial would almost certainly not in itself be sufficient to undermine the original 2011 decision.

But the fact that Adrian misled the Court on that issue tainted his evidence generally.

'I do not think that I can discount the real possibility (albeit not, I think, a probability) that [the Judge] would have reached a different answer if the facts, including [Adrian's] conduct, which are now presented, had been before him at the earlier hearing, with the consequence, that there is, on the evidence before me, a real danger that [Adrian's] dishonest evidence and conduct in respect of that hearing could have affected the outcome of those proceedings.'

And so Adrian's attempt to strike the family's claim out fails and the issue remains to be decided.


Owen's estate was not very large – as the Judge in 2011 stated 'The estate is not particularly large… This dispute is not about money'. Jarndyce v Jarndyce is the fabled example of seemingly interminable legal proceedings.

In How long is too long? Reversing an order 10 years after death we examined British Red Cross v Werry in which an order for financial provision under the 1975 Act was set aside on the grounds of a mistake ten years after the deceased's death.

Morris v Davies is testament to the Courts' willingness to provide a remedy to those who have been the victim of false evidence.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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