27 March 2020 - Article
Or so it was reported by the media when the High Court found in favour of builder, Danny Sharp, in Smith v Hutchins.
Mr Butcher lived alone in London until his sudden death in 2013 aged 73. He had one surviving relative, a cousin, Joyce.
Mr Butcher made a number of wills in which he left his estate to Joyce, together with old and close family friends (the 'Family'). The most recent of these wills was made on 4 December 2011. His family friend, Evelyn, was appointed executor.
On 5 January 2013 he made a further will, leaving his entire estate to a relatively new friend, Danny Sharp.
Mr Butcher's body was discovered in May 2013. It is thought that he had died shortly after making the 2013 will, but that his body had lain undiscovered for a number of months. Despite being diabetic, a smoker and liking a drink, it was common ground that Mr Butcher was in good mental and physical health when he made his will.
After Mr Butcher's death, Evelyn challenged the 2013 will for want of knowledge and approval on the basis that it was a forgery. The forgery allegation was conceded when the original will was produced on the first day of trial.
According to the Family, Mr Butcher had no need for any more friends, had nothing in common with Danny, had never mentioned him to the Family and, being a DIY enthusiast, would have had no need for Danny's help as a builder. Whilst Danny said they used to chat about sport and boxing (Danny's son boxes for England), the Family claimed that Mr Butcher hated sport. The Judge was asked to find that the story of the friendship was improbable to the point of being 'ludicrous and absurd'.
The issue for the court to decide was whether to pronounce in favour of the 2013 will, as contended by Danny, or in favour of the 2011 will, as contended by Evelyn.
Although various matters had been in issue between the parties it was common ground that
- Mr Butcher had testamentary capacity at the time he executed the 2011 and 2013 wills,
- the 2013 will was duly executed in accordance with the provisions of section 9 Wills Act 1837,
- both the 2011 and 2013 wills read rationally,
- both parties were surprised at the contents of the 2013 will.
The Judge reviewed the evidence and found that the following circumstances assisted her:
- the 2013 will was duly executed when Mr Butcher had capacity, giving rise to 'the usual strong inference' of knowledge and approval;
- the form of the 2013 will was consistent with the manner in which Mr Butcher had procured and prepared earlier wills in 1991, 2003 and 2011;
- Mr Butcher had read the 2013 will, which he would have readily grasped as he was literate and had a good understanding of his financial and other affairs, and the document was short and easy to understand;
- although Mr Butcher remained close to the 2011 will beneficiaries, the relationship had changed in recent years;
- Danny was a friend of Mr Butcher, even if not a close one, and had visited him regularly;
- Mr Butcher clearly knew he was executing a new will as he had asked both witnesses to witness his signature to the 2013 will;
- A couple of weeks after he executed the will Mr Butcher handed it to Danny and asked him to read it, which was consistent with his wish to make Danny his executor and beneficiary.
In reaching her decision the Judge reviewed recent authorities on want of knowledge and approval, noting that the court's function was not to approve or disapprove the contents of a will but to 'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, … come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the (testatrix) knew and approved the contents of the document which is put forward as a valid testamentary disposition'.
Applying Gill v Woodall, the Judge found that the court should undertake a single-stage test, asking itself whether Mr Butcher understood the terms and effect of the will when signed. The two-stage test used pre Gill v Woodall, which required the court to decide such cases by reference to the legal and evidential burdens of proof, could then be deployed as a cross-check.
The Judge noted that a challenge on the grounds of want of knowledge and approval is not precluded by the fact that the parties had agreed that the testator had testamentary capacity. She drew on the useful distinction in Simon v Byford & ors that 'Testamentary capacity includes the ability to make choices whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed.'
On considering the evidence the Judge found, applying the single-stage test, that Danny had discharged the burden of proving that Mr Butcher understood the terms and effect of his 2013 will. Having applied the single-stage test it was not necessary to review the case with reference to the strict application of the legal and evidential burdens of proof.
In terms of the two-stage cross check, whilst the 2013 will beneficiaries had raised a prima facie case that there was no knowledge and approval by 'exciting the suspicion of the court', the degree of suspicion was low because this was not a case in which the will was procured by the person benefitting under it. Danny had amply rebutted the presumption.
The court pronounced for the 2013 will and dismissed Evelyn's counterclaim.
The case is a useful refresher of the court's approach in want of knowledge and approval cases. Araba Taylor, Evelyn's barrister, is talking about the case later this month. Please click here to register.