13 June 2018
The year has seen some interesting substantive law developments in the disputed wills field, most notably the clarification of the appropriate test for testamentary capacity in Re Walker, and more recently, the reining in of the expanded doctrine of Donatio Mortis Causa by the Court of Appeal in King v Chiltern Dog Rescue. Whilst substantive developments are exciting and covered widely in the legal press, it pays not to overlook interesting procedural aspects, which can be used to bolster the litigator's toolkit. There have been a few of note over the last six months…
Taylor v Bell, Leeds County Court, 16 February 2015 provides an unusual example of an application to vary a consent order in relation to a 1975 Act claim. Mr Gardiner's will made no provision for his son, Miles, who therefore applied for reasonable provision under the 1975 Act. His application was compromised and the consent order provided reasonable maintenance for Miles' sixth form college and university (undergraduate and postgraduate) education until 31 August 2014. The maximum sum payable under the order was £210,000.
For a variety of reasons including some linked to Miles's learning difficulties and injuries sustained in a road traffic accident seven weeks before the consent order, Miles's education did not progress as planned with the result that he did not graduate from Leeds College of Music when anticipated. In the event, he only received £112,443.21 from the estate. To further his career prospects (he was a talented singer and hoped to become an opera singer), he sought a variation of the consent order to fund the final year of the course at Leeds and a two year post graduate course at the Royal College of Music or the Guildhall School of Music in London. He estimated his expenses likely to be approximately £90,000.
Counsel for the executors cited various authorities to support his submission that there is a heavy onus and on Miles and additional hurdles for him to overcome before the Judge could set aside the order.
The Judge noted that Miles was not seeking to set aside the order but rather to vary the periodical payments under the express power in section 6 of the 1975 Act. Further, none of the authorities referred to were decisions on applications to vary a periodical payments order or in fact even decisions under the 1975 Act. As such the Judge was not assisted by the authorities and did not agree that Miles had to overcome specific hurdles before he could exercise his discretion under the Act. Instead he set out what he considered to be the important circumstances, which included, inter alia: the fact that the expressed purpose of the order was to provide maintenance for Mr Taylor until he finished his postgraduate studies; that £210,000 had been set aside for that purpose; and that Miles was a talented and committed singer with financial circumstances such that financial provision is reasonably required. One further relevant factor was that when the executors had realised all the funds would not be used they had distributed funds to the residuary beneficiaries, and therefore there were only limited funds left in the estate. The Judge found that variation would be appropriate, but limited the award to that available. Miles was awarded his costs of litigation at litigant in person rate. The Judge commented that the executors' costs of £23,000 approximately were unfortunate and disproportionate and allowed only £15,000 including VAT and disbursements from the estate.
This case is a useful reminder of the provision to vary an order for periodic payments under the 1975 Act, but also of the practical reality that any victory may be phyrric where funds have already been dissipated.
Where there is a dispute as to the validity of the deceased's purported last will, we are used to seeing caveats entered to prevent the distribution of the estate pending the determination of the claim. In Williams v Seals  EWHC 3708 (Ch) no caveat had been entered and instead the claimant entered a caution to prevent sale of property within the estate. The case provides a useful refresher on the court's approach to vacating a caution.
Arnold Seals made a will leaving his entire estate to Florence Williams, a childhood friend who he had befriended again following the death of his wife, and appointing her as sole executrix. The principal assets in Mr Seal's estate comprise a half share in Wallands Farm in Derbyshire (the other half held by family members), and the entire interest in further local real estate. Following Mr Seals' death, his three children issued a claim seeking a share in his estate under the 1975 Act. They subsequently indicated a will validity challenge in correspondence. The children registered cautions at the Land Registry against Wallands Farm and other real estate in Mr Seals' estate that was due to be auctioned for sale so that, in practice, the property could not be sold. Mrs Williams applied to have the cautions removed from the register.
The court applied the approach in Nugent v Nugent  EWHC 4095 (Ch). The jurisdiction of the court to order the vacation of an entry on the register was well established in those cases where the claim on which the entry was based had no real prospect of success. This was not such a case. The correct test where the claim has a real prospect of success is in three stages: to consider (1) whether the children had a seriously arguable case that they would succeed at trial in obtaining a proprietary interest in the property; and if so (2) whether either or both parties would be adequately compensated by a damages award; and if not (3) where the balance of convenience between the parties lies.
The Judge found that in order for the children to use the farm in any way they would need to raise funds to purchase the other half share. As they were of limited means there was no serious prospect of obtaining an order for the transfer of any interest in the land under a 1975 Act claim. There was a risk of decline in market value of the property if a sale was delayed due to the caution. Given their limited means, the respondents would not be able to compensate the estate for loss suffered if they lost at trial whereas Mrs Williams was more likely to be able to compensate the children for loss resulting from the cancellation of the caution were she to lose at trial. It was therefore appropriate to cancel the caution and permit the sale to proceed.
The decision in King v King  EWHC 2827 (Ch) provides a rare example of a successful summary judgment application in the contested wills sphere. Mr King and the appellant widow had cohabited since the 1960s. Mr King had made a will in 1991 in which he left his estate in its entirety to the appellant. In June 2005 Mr King made a new will dividing his estate between his two children from a previous relationship in equal shares, and giving the appellant the right to occupy the family home for life. Mr King and the appellant married in September 2005, thereby revoking the June 2005 will. Accordingly Mr King executed a new will in exactly the same terms in September 2005.
Mr King died in 2009 and the appellant contested the validity of the will, arguing for intestacy on the basis of want of knowledge and approval.
Mr Ellis, a solicitor who had drafted and was one of the executors under the September 2005 will, applied for summary judgment, submitting that the appellant's claim had no real prospect of success. At the summary judgment hearing the Master found in Mr Ellis's favour, stating that the circumstances of execution of the will and Mr Ellis's record of the deceased's instructions created a strong presumption in favour of the will and that the appellants' submissions had not created sufficient suspicion as to validity to rebut the presumption. The appellant appealed on the basis that the Master had not applied the right test for summary judgment and was wrong in law in relation to want of knowledge and approval – Mr Ellis had not provided evidence sufficient to discharge his burden of proof and the circumstances should have aroused the suspicion of the court such that it should not be disposed of on a summary basis.
The Court of Appeal dismissed the appeal, finding that the Master had applied the relevant test. On the question of burden of proof the court found that, since Mr King's testamentary capacity was not in question, so long as there were no suspicious circumstances, Mr King's knowledge and approval could be assumed from the fact that the will was duly signed and attested. On the question of suspicious circumstances, the Court of Appeal accepted the Master's findings that no suspicious circumstances arose. Accordingly the appeal was dismissed.
In Randall v Randall  EWHC 3134 (Ch) the court considers standing to bring a contentious probate claim. Mr and Mrs Randall were divorced in 2006. As part of the divorce proceedings they disposed of their claims for financial provision by a consent order providing that Mrs Randall would split any gift or inheritance over £100,000 received from her mother, Mrs Corrall, with Mr Randall. Mrs Corrall died leaving £100,000 to Mrs Randall and dividing the residue of the estate between her grandchildren. Mr Randall challenged the validity of the will. Mrs Randall argued that Mr Randall did not have standing to bring a probate claim to contest validity given he was not a beneficiary. The question of standing was dealt with at a preliminary hearing.
The court found that the claimant must show he has sufficient interest in the deceased's estate to give him legal standing to bring a contentious probate claim. This is a substantive requirement of the common law (rather than a procedural requirement). The claimant argued that 'sufficient interest' should be widely interpreted. Since a will is a public document, there is public interest in challenging a potentially fake will, and the broad test, such as that applied in judicial review proceedings, should apply. The Judge found that it was not appropriate to 'transplant' that broad approach into the field of probate claims. Judicial review claims are concerned with the abuse of public powers whereas probate claims are concerned with private rights between citizens.
The court then looked at the nature of Mr Randall's right under the consent order. The judge held that there could be no equitable assignment of part of Mrs Randall's interest in the estate as there was no obligation on Mrs Randall under the consent order until receipt of the inheritance. Further the court found that Mr Randall had no proprietary interest in the inheritance as indicated by the fact that the amount he would receive would not benefit or suffer with the rise and fall of any assets distributed to Mrs Randall in specie. Instead the court found that Mr Randall was a creditor of Mrs Randall in her personal capacity.
Finally the court considered whether a claim as creditor gives Mr Randall an interest in the estate. The judge reviewed the authorities and decided that, on a proper analysis, whether a person has an interest is to be determined by reference to the touchstones of (1) whether they are personal representatives, (2) the grant of representation and (3) the entitlement to a distribution of the estate. Whilst Mr Randall may be 'interested' in the estate, as a creditor he had no interest in the estate. Thus Mr Randall had no standing to bring a claim.
It is not uncommon for those without a direct interest to seek to claim in relation to an estate and it is always worth considering whether legal standing is an issue. The provisions of CPR 57.7 which requires that the claim form contains a statement of the claimants' and defendants' interest in the estate is a useful starting point but this case clarifies that this is in fact a substantive law point rather than a simply procedural issue. And so, we come full circle, back to substantive law…
First published 19 June in New Law Journal – N.L.J. 2015, 165(7657), 15-16.