Forfeiture Act 1982 & s.46A AEA
The rule applies to murder, manslaughter and aiding suicide, but not clear whether it applies to other forms of unlawful killing.
Re Giles, Re Royse, Re K - the application of the rule does not depend on the moral blameworthiness of the offender
Re Houghton - clear that the forfeiture rule does not apply to a person found not guilty by reason of insanity
Re Sigsworth, Re Callaway - the offender is disqualified from taking under any resulting intestacy
s.47(1) AEA - the offender could not be regarded as having "predeceased" the intestate
Forfeiture Act 1982 - give court a discretion to modify the application except murder
court can grant total relief
Re K - battered wife
Dunbar v Plant - aiding suicide to man, full relief given
Re Murphy - dim res manslaughter, application rejected, moral culpability
s.2(4) - not only beneficial interest under victim's will or intestacy, the power to modify also applies to interests arising from JT, nomination, deathbed gift, or trust.
s.2(3) - proceeding to modify must be brought in within 3 months of the conviction.
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Intestacy rule
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Re Segelman -
Abstract: A solicitor drafted a will on S's behalf establishing a trust
fund to be used for the assistance of the poor and needy of a class
of persons set out in a schedule to the will. Before the schedule had
been drawn up, the solicitor drafted a proviso which stated that if
any of the persons named in the schedule died during the testator's
lifetime or within 21 years of the testator's death, that person's issue
would stand in his place and be eligible to benefit under the trust.
The will provided for a gift over to charitable institutions or for
charitable purposes in the event that no poor and needy member of
the class comprised by the schedule was alive at the expiry of 21
years from the testator's death. The testator subsequently provided
the solicitor with a schedule comprising six named family members
and the issue of five of them.
After the testator's death five of the
persons named in the schedule sought rectification of the will
pursuant to the
Administration of Justice Act 1982 s.20(1) on the
ground that,
contrary to the testator's intention, the proviso restricted
the class of persons in the schedule who were eligible to benefit
from the trust by excluding the issue of the named individuals while
their named ancestors were still alive. One of the executors issued a
construction summons to determine whether the will contained valid
charitable gifts for the relief of poverty among members of the class
constituted by the schedule, and all three executors appealed
against a determination of the Inland Revenue Commissioners that
the dispositions were not for exclusively charitable purposes.
Held, allowing the application and the appeal and answering the
construction summons in the affirmative, that (1)
S's intention was
that all the persons described in the schedule, named individuals
and issue, would be eligible to benefit throughout the period of the
trust. On the proper construction of the proviso, the will failed to give
effect to that intention. The solicitor's failure through inadvertence to
delete the proviso from the draft will once he had received the
schedule could be regarded as a
clerical error for the purposes of
the 1982 Act s.20(1) and the proviso would accordingly be deleted
S could not be taken to have intended that the existence of a single
needy member of the class defined in the schedule at the expiry of
21 years from his death would defeat the gift over in favour of
charitable institutions and charitable purposes. It followed that the
gift over could take effect and that the dispositions of the residuary
estate were for exclusively charitable purposes.
Parfitt v Lawless -
Shortly thereafter, the English probate courts made clear that the
presumption of undue influence that arises in the Courts of Equity
based upon the relationship of the parties does not exist in the
probate courts. In Parfitt v. Lawless, a priest who lived with the
decedent and served as her confessor received the bulk of the
decedent's estate under her will. The court held that the priest's role
and "his position in the house" were alone not enough to prove
undue influence. Although the defendant had relied upon "cases . . .
related to gifts inter vivos decided in the courts of equity," the court
rejected such arguments because "as regards wills, if there be capacity
and a knowledge of business proved or admitted, and an expressed
desire to do what was done, undue influence cannot be presumed
Wingrove v Wingrove - test is subjective. effect of the threats on that particular testator
If a person makes the allegation without
sufficient evidence, the court may penalise them in costs:
Re Cutcliffe’s Estate, PC and Re Good
In the Estate of Fuld - easier to allege lack of K+A instead of undue influence
Cresswell v Cresswell -
Re Ray's WT -
s.15 does not apply to gifts to witnesses in the capacity of a trustee.
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Undue influence
Hall v Hall -
Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude
for past services, or pity for future destitution, or the like, —these are
all legitimate, and may be fairly pressed on a testator."
What is forbidden in the context of testaments is "pressure of whatever
character, whether acting on the fears or the hopes, if so exerted as to
overpower the volition without convincing the judgment."
This, the court instructed, was "a species of restraint under which no valid will
can be made." In short, the court stated, "a testator may be led but
not driven; and his will must be the offspring of his own volition, and
not the record of some one else's."
This well-known dictum from Hall v Hall highlights the degree of persuasion that must
be proved in an allegation of undue influence. It is
coercion that must be proved, i.e.
that the testator was driven to make the will or the provisions in it that are disputed.
Persuasion, or leading the testator, is permissible until it crosses the boundary and
amounts to driving him to do something that he does not want to do.
Kerridge, R. [2000] ‘Wills made in suspicious circumstances’ CLJ 310.
Re Groffman - wills which did represent testators' true intentions being declared invalid for (what the Law Reform Committee called) “technical reasons”
Kenward v. Adams - the golden rule seems to be originated from this case
Wood v. Smith - TOR mistaken the size of his asset
Wintle v. Nye -
But if a plea of fraud created problems, what about a plea of lack of knowledge and approval? It
would have two obvious advantages. First, the burden of proof would be reversed; secondly, costs
would probably be awarded from the estate if56 the challenge failed. The problem was that the last
paragraph of Rule 40a required that
“no defence shall be available [under a plea of lack of knowledge and approval] which might have
been raised under any other … plea, unless such other plea be pleaded therewith.”
In other words, lack of knowledge and approval could be pleaded with undue influence or fraud, in
cases where there might be overlap, but if it were pleaded by itself, it should not be a disguise for a
plea of undue influence or fraud.
Before Wintle v. Nye, where a plea of lack of knowledge and approval
had appeared by itself. (Guardhouse v. Blackburn) But this is a case of mistake (no fraud)
W v N - trial judge: Kitty has K+A
The Colonel appeal, alleging a misdirection.
Nye won again, by a majority.
Undaunted, the colonel appealed to the House of Lords.
The verdict of the Lords was unanimous: there had been a misdirection.
But that decision, of itself, would not have given the colonel victory, only a re-trial. There was no re-trial because Nye withdrew from the case and Wintle then “won” by default.
What was wrong with Barnard J.'s direction to the jury? Viscount Simonds said:
It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will.”
Where does the “suspicion” come? Of what is it a “suspicion”? And how does Barry v. Butlin tie in with Wintle v. Nye ? Barry v. Butlin was a case where a testator disinherited his son and left all his property to his butler, his solicitor and his doctor. In
Barry v. Butlin the testator's son
alleged fraud and undue influence. He then paid the penalty. When he lost (as almost everyone who challenges a will loses), he had to pay the costs.
But
Wintle's lawyers had not alleged fraud or undue influence. So what were the jury supposed to be
“suspicious” of?
The “suspicion” in Barry v. Butlin was clearly a suspicion of wrongdoing--wrongdoing which had been pleaded. What would Barnard J. have said if the jury had asked what they were
supposed to be a suspicious of? Nye's lawyers saw this point, but too late. When the case was in
the Lords, they attempted to argue that, given the pleadings,
their client had been prejudiced by the
implied references to fraud. They were told it was
too late to raise the point. By this stage, everyone
was mindful of the newspaper headlines. To have allowed Nye to raise this point at this stage would
have been seen by the public as some sort of legal casuistry (
詭辯) to provide an escape route for the
villainous solicitor. But
it is submitted that the point was one of substance and it was one which should
have been raised--albeit much earlier.
But the criticism loses its force and substance if Barnard J. had not “correctly stated the relevant law”. The
decision of the Lords was that Barnard J. had, in his direction to the jury, been over-generous to Nye.
It is submitted that, given the way the case had been pleaded, he had probably been over-generous
to Wintle. It is difficult to see how any valid criticism could have been levelled at the judge if he had
obliged Wintle's team of lawyers to abide by the spirit and the letter of Rule 40a of the Contentious
Probate Rules and had insisted that, as they had not pleaded undue influence or fraud, they could
raise no matters which might have been raised as matters of undue influence or fraud under cover of
a plea of lack of knowledge and approval. He had not done this, but had let in veiled allegations of
fraud; he then seems to have been blamed for not turning these veiled allegations of fraud into
specific allegations. There had never been the slightest doubt that Wintle thought that
Nye was a scoundrel.
So to proceed on the basis of “lack of knowledge and approval” was a fiction. But it was
a fiction which Wintle's legal team had chosen to play out.
To blame Barnard J. for what went wrong in Wintle v. Nye is not entirely fair; the blame has to be
apportioned more widely. The essential allegation
against Barnard J. was that he had been
too timid
and too cautious about drawing the jury's attention to the things which indicated that Nye had
misbehaved. But, had he been given a chance, Barnard J. could have responded that his timidity and
caution had been prompted by the timidity and caution shown by Wintle's advisers in the way in which
they had pleaded the case. They could have replied, in turn, that they had pleaded the case like that
because they had predicted that the trial judge would show timidity and caution anyway--as probate
judges always did: and they would have had a point. The truth is that the fault lay with all the probate
lawyers and judges who,
for a hundred and fifty years, had almost always shown timidity and caution
when faced with allegations of misbehaviour in relation to the preparation and execution of wills; who
had, traditionally, shown remarkably little sympathy for anyone who chose to allege fraud or undue
influence. It was they, the probate lawyers as a group, who had encouraged the pretence that Wintle
was not alleging dishonesty--when everyone knew that, left to his own devices, he would have
horsewhipped Nye.
Ten years after Wintle v. Nye reached the House of Lords,
Scarman J. said, obiter,
In the Estate of
Fuld (dec'd), “Lord Penzance once said of the issues of testamentary capacity, knowledge and approval, undue influence and fraud,
that they very often merged into one another. That position has been made
abundantly clear by the decision of the House of Lords in Wintle v. Nye … it may well be that positive
charges of fraud and undue influence will not feature as largely in the pleadings of probate cases,
now that Wintle v. Nye has been decided, as they have done in the past; clearly it would be preferable
if they did not.”
These words imply that Wintle v. Nye was pleaded correctly and was fought as it should have been
fought. They have since been widely quoted in textbooks on the law of succession.
They represent the approach of the old-style probate lawyer, quintessentially English, to the effect
that there should be no unpleasantness in cases concerning wills, and nobody should be alleged to
have done anything wrong. The problem with this approach is that some people do do things which
are wrong and this approach helps them to get away with wrongdoing. It is true that Wintle won his
case, as pleaded, but he
won it by himself, without his lawyers,
not because of the way it was
pleaded, but in spite of the way it was pleaded. His lawyers had “spilled at the first ditch”. They had
not been there when he had won in the House of Lords. So, who had drafted the pleadings? It was Mr
Leslie Scarman.
In fact,
one result of Wintle v. Nye was to cause the Law Society to take action to make sure that no solicitor ever again attempted to do what Nye had done. But the Law Society's action consisted not in changing any rules, but in changing the way that the existing rules were interpreted and applied.
Someone who now attempts what Nye attempted will be held to have engaged in
conduct unbefitting
a solicitor and will be struck off. Yet if it has always been professional misconduct for a solicitor to do
what Nye did, that is all the more reason for saying that
Wintle's lawyers should have pleaded fraud.
Anyway, the
approach now adopted by the Law Society means that solicitors will behave themselves. The problem now relates to all the other people who may still be tempted take advantage of the poor protection afforded by English law to vulnerable testators.
The
problem with the position as it was
before Wintle v. Nye was not that too many people were
making unfounded allegations of misconduct against those who were propounding wills; it was that
those who made such allegations found it almost impossible to prove them. The probate judges
talked about presumptions, but they were not clear about when these presumptions applied and,
when they did apply, what they meant.
What happened in practice was that where someone had been
involved in preparing a will under which he, or someone close to him,
took a benefit, the probate
judge
usually recited a formula, indicating that there was some sort of presumption of undue influence
or fraud, but given that the
testator was dead and could offer no evidence, and given
that
the only person who would know what had happened would be the person who had prepared the
will, the judge would then hear his evidence and, almost always, accept it.
Presumptions of
misconduct were virtually meaningless. What was needed in Wintle v. Nye was not a watering down
of the presumptions but a strengthening of them.
In 1970, when the Probate Divorce and Admiralty Division of the High Court became the Family
Division,
contentious probate was transferred to the Chancery Division. At that time, one writer
wondered whether the transfer might make a difference to the approach taken. He noted the
reluctance of probate judges to presume misconduct and suggested that their
Chancery brethren (弟兄) might be more robust.
There is no sign that this has happened. Judging by the Law Reports, very few wills are being challenged and when they are,
they are almost always challenged on the fiction that
the testator lacked knowledge and approval.
In fact, almost the only case in this area to have been reasonably fully reported since Wintle v. Nye is
a case where the central issue was the pleadings. The case is
Re Stott.
In 1976,
Lady Stott, then aged 92, was a patient in a nursing home. She made a will in favour of the
proprietress (
女老闆) of the home. She died a year later and the will was
challenged by members of her family who would have benefited under an earlier will. They based their challenge
on lack of capacity and
lack of knowledge and approval, but not undue influence or fraud. This is the
“timid” approach. The
Contentious Probate Rules of 1862 which had applied when Wintle v. Nye had been fought, had, by
this time, been replaced by the
Rules of the Supreme Court and what had been
Rule 40a of the 1862
Rules had been replaced by R.S.C. Order 76 r. 9 (3):
“Without prejudice to Order 18 Rule 7, any party who pleads that at the time when a will, the
subject of the action, was alleged to have been executed the testator did not know and approve of its
contents must specify the nature of the case on which he intends to rely and no allegation in support
of that plea which would be relevant in support of any of the following other pleas, that is to say:
(a) that the will was not duly executed,
(b) that at the time of the execution of the will, the testator was not of sound mind,
memory and understanding, and
(c) that the execution of the will was obtained by undue influence or fraud,
In substance, Rule 40a and r. 9 (3) appear to be identical.
Both make it clear that a plea of lack of
knowledge and approval should not be used as a disguise for a plea of undue influence or fraud. In
Stott, those acting for the proprietress of the nursing home attempted to strike out certain allegations
made against her on the basis that they were implied allegations of undue influence and fraud; and
that undue influence and fraud had not been pleaded. Slade J. held that the allegations should not be
struck out. He held that an allegation was not “relevant” within r. 9 (3) unless it would, if established,
… affirmatively prove the relevant alternative plea (i.e. affirmatively prove fraud or undue influence)
and the mere fact that an allegation, if proved, might constitute evidence which could incidentally
assist proof of the relevant alternative plea, if raised, did not bring it within rule 9 (3).
At one stage he
referred to “creating a suspicion”, but he did not explain what the suspicion was a suspicion of. He
was following the approach taken in Wintle v. Nye. It is respectfully submitted that in Stott, as in
Wintle v. Nye,
the court was trying to get to the right result by the wrong route. Of course, those
challenging the 1976 will in the Stott case should have succeeded, but not on the basis of a polite
fiction.
The Stott case was a case of fraud, or undue influence and it should have been pleaded as
such. Those challenging the will should not have been obliged to go through the pretence of pleading
lack of knowledge and approval.
A traditional English probate lawyer will want to know what proof there is that the Stott case was a
case of fraud or undue influence. It probably was impossible to produce positive or affirmative proof of
fraud at the time the case was fought. But intuition says there was fraud. It is almost always difficult to
produce positive or affirmative proof of fraud or undue influence, especially at the outset. That is why
there need to be presumptions and they need to be applied meaningfully--not timidly or cautiously.
There was, in fact, strong circumstantial evidence of misbehaviour in the Stott case, although it is not
known whether those challenging the 1976 will ever knew about it. The problem with the evidence of
misbehaviour in the Stott case is that it *CLJUK 328 surfaced in the slightly later case of Re Davey.
88 Davey is not a case about a suspicious will, but it figures in most of the Succession textbooks. It is
a case about a 92 year old woman--a resident in a nursing home--who married, at a Register Office, a
man, 44 years her junior, who is described in the case as “an employee of, and resident at,” the
nursing home.89 It was the same nursing home. And the people involved were the same people,
except that they exchanged roles. The facts of the two cases intertwine; and once they are read
together they should convince anyone that English law provides scandalously little protection for the
old and the infirm. To oblige Lady Stott's family to plead lack of knowledge and approval, rather than
fraud or undue influence, was nonsense. And the report of the case does not even show if they were
ultimately successful. They were allowed to proceed on the basis of a fictitious plea, but it is not
known whether they won the case--it may have been compromised.90
VI
REFORM
The theme of this article is that as it is too easy in England to coerce, or deceive, a vulnerable testator
into making a will and it is not easy enough to challenge a suspicious will when one comes to light. So
what can be done to reduce the problem? There appear to be
four possible approaches; they are not
mutually exclusive.
1. To obscure the issues--the
obscure (or polite, or timid) approach.
The first possibility is to obscure the issues in contentious probate cases, so that it is not clear what
those challenging suspicious wills are alleging.
This is the Wintle v. Nye approach and it causes
confusion. In Wintle v. Nye itself, Colonel Wintle's lawyers appeared to be saying (i) that Kitty was
suffering from no mental infirmity, (ii) that Nye had drafted Kitty's will, (iii) that the will devised most of
Kitty's property to Nye, (iv) that Kitty did not know this, (v) that Kitty had executed the will and (vi) that
Nye had been guilty of no fraud. There is a non sequitur (
不根據前提的推理) there somewhere, and it is not surprising that the jury came to the finding to which they did come. The obscure approach, the polite approach, the timid approach,
should be avoided.
Scarman J. said in
Fuld that the
issues of testamentary capacity, knowledge and approval, undue influence and fraud very often merge into one another. They do very often merge
into one another,
but that does not make them the same thing. Of course, it is true that it is generally
easier to coerce or deceive someone who is mentally infirm than someone who is not; and, of course,
all successful fraud leads to a position where the testator does not know and approve the contents of
his will in the full sense. Of course it is sometimes hard to guess whether a testator (now dead) made
a manifestly absurd will because he had been bullied, or because he had been deceived. But, just as
undue influence and fraud are different from one another, so much the more so are they different from
lack of capacity and lack of knowledge and approval. There are two reasons for distorting or
obscuring the differences between the four pleas, and the two reasons themselves become confused.
One reason is that it is difficult to prove undue influence or fraud--except by inference; the other is
that old-style probate lawyers do not appear to feel comfortable in situations where anyone is being
accused of doing anything improper. But the result is to make it far too easy for the unscrupulous to
take advantage.
If the obscure approach is to be adopted, it
would be better to regularise it by amending the
Contentious Probate Rules Practice Direction 9.3 which deals with “Contents of Statements of Case”
(this is the Practice Direction which has replaced R.S.C. Order 76 r. 9 (3) which itself replaced Rule
40a of the Contentious Probate Rules of 1862).
But Practice Direction 9.3 is not the problem. The
Practice Direction is based on the premise that there is a difference between lack of knowledge and
approval, on the one hand, and fraud or undue influence on the other. And, of course, there is. It is
submitted that the
Practice Direction should not be amended, it should be applied.
Those who prefer the obscure approach, whereby the issues are confused and
nobody is alleged to
have done anything improper, may say that it makes
no difference in the long run on what ground a
will has been set aside, provided it has been set aside. At least, they may say, it makes no difference
except in relation to costs. In fact,
costs are hugely important to most litigants, but they will be
discussed below. The point is that costs are not the only reason for distinguishing between the
various pleas. In this respect, the obscure approach leads to further confusion.
If a will is
set aside on the ground that the testator
lacked knowledge and approval, the
property devised and bequeathed under it
will pass to the beneficiaries under an earlier will or to the
testator's next-of-kin. This is what happened in Wintle v. Nye.
But if there is a finding of fraud--and
in some cases where there is a finding of
undue influence--the property should pass under a
constructive trust to those whom the
testator intended to benefit. This point was important in Wintle
v. Nye itself where Barnard J. told the jury that,
even if they found in the colonel's favour, “they could
not put Miss [Marjorie] Wintle into the will”. Although this was true, it ignored the fact that the colonel
had said that, if he won, he would assign anything he obtained to Marjorie. But, anyway, the problem
arose because the colonel's team had pleaded lack of knowledge and approval. If they had
successfully
pleaded fraud, it is submitted that the estate would have been
held not for the next-of-kin
but for those whom Kitty had intended to benefit--and evidence did emerge during the course of the
case about whom she had intended to benefit. The
jury must have
found it odd in Wintle v. Nye to be
told that, if they found in Colonel Wintle's favour, the main
beneficiaries would be the
Wells cousins,
about whom Kitty knew almost nothing and whom she did not intend to benefit. This is another, quite
separate, reason for distinguishing the pleas.
2. To expand the operation of the presumptions.
The second possibility is to expand the operation of the presumptions against suspicious wills, to give
them real force and meaning. But if the presumptions are to be given real force, it becomes important
to decide when they will apply.
In 1971 Justice published a Report on Home-Made Wills 97 and they
suggested inter alia a
rebuttable presumption of undue influence where a will was made in favour of someone
providing residential care under contract; e.g. a nursing home proprietor. They anticipated the Stott
case. But the
problem with this approach is that, by including members of one group, they appear to
be excluding members of other groups; and there is room for argument about
which groups should be
included in the list of potential suspects. Nineteenth century judges tended to trust the clergy but
some would want to add them to the list.
Classification by profession causes problems. It is
simpler
to impose a presumption where the beneficiary has been instrumental in helping to prepare a will
under which he benefits. Or is this too vague? The problem sometimes is to identify who has been
instrumental in helping to prepare a will; that was part of the problem in the Stott case. The solution is,
therefore, to
throw the net wide: if there is any reason to suppose that a beneficiary under a will, or
someone linked with him, has played any part in preparing the will, the beneficiary must rebut the
presumptions of undue influence and fraud. It should
not be sufficient for the beneficiary to
make
some bland assertions that he has done nothing improper. The onus should be on him to prove
affirmatively that the testator was independent of him, under no pressure and in no way misled. A
reference to “suspicious circumstances” should mean something. Where there are such
circumstances, the propounder of the will would face a genuine need to prove that nothing improper
had taken place. The key to all this is that court needs to discard the trusting attitude adopted for so
long by probate lawyers and to
adopt the much harsher and more critical approach traditionally
associated with Chancery.
3. To apply the costs rules differently.
The third possibility ties in with the second and is to encourage the judges to apply the costs rules
differently. The basic costs rule is that the judge has a discretion. But this has generally been
interpreted to mean that,
if fraud or undue influence is alleged but not proved, the party making the
allegation will be ordered to pay the costs of both sides. The way this has operated during the last
hundred and fifty years or so has been hugely prejudicial to those alleging undue influence or fraud.
They have nearly always lost, and then they have then been condemned in costs. The cases which
seem to have been most
unfair have been those where
undue influence or fraud has
been presumed. This has been because the
presumption has been almost meaningless in terms of
assisting the person challenging the will; and its principal effect has been to condemn him in costs
when he has lost the case. That is almost certainly why Wintle's team in Wintle v. Nye decided to
plead the case as they did. Whatever happened, they expected to lose the case. The studious
avoidance of an express or implied allegation of misconduct was a damage limitation exercise
designed to limit their clients' exposure when they did lose.
It has been suggested above that, where a beneficiary has been in any way instrumental in helping to
prepare a will under which he benefits,
there should be a meaningful presumption of undue influence
and fraud and that the
onus should be on the propounder of the will to disprove both.
The person
challenging the will should not be obliged to decide whether to plead one or other of these two pleas and to risk a problem with costs if he chooses the wrong one. They are different pleas but the person
attacking the will does not usually know enough about the circumstances in which the will was made
to know which one to plead in the first place. He should not suffer as a result. But, more important
than giving him the benefit of the presumption as between the two pleas of misconduct; even if he is
ultimately unsuccessful, the legal costs should come from the estate. In other words, a person
challenging a will which benefits someone who has helped to prepare it, or the relation of such a
person, should take the benefit of presumptions both of undue influence and fraud: and, even if his
challenge is ultimately unsuccessful, the normal presumption should be that his costs should come
from the estate. This is crucial to giving someone the incentive to challenge a suspicious will and it is
consistent with early case law. As far back as 1863, in Mitchell and Mitchell v. Gard and Kingwell
persons challenging a will made in favour of a solicitor were awarded their costs in spite of the fact
that their challenge was based on undue influence and was unsuccessful. The decision in favour of
the solicitor in Mitchell was a standard nineteenth century decision, but at least the challenger did not
suffer the penalty of having to pay the costs as well.
4. To amend the Wills Act.
The fourth possibility is to amend the provisions of the Wills Act in such a way as to provide a genuine
safeguard against pressure or deceit.
Wintle v. Nye has had three unhappy
consequences. The first is that it
encourages
dishonest pleading--the polite fiction. The second is that it
discourages pleas of fraud or undue
influence and so discourages the pleas which would lead to constructive trusts. But the third
consequence is that it
caused lawyers to lose, to some extent,
the trust of the general public.
Nye was
a lawyer. Wintle, the popular hero, did not like lawyers. Other lawyers seemed to support Nye in the
early stages: hero Wintle was sent to prison for assaulting Nye and so on and so forth. The public
perception seems to have been that the lawyers had begun by offering one another mutual aid and
assistance and had only distanced themselves from Nye at a relatively late stage in the story.
Whether the public perception was right or wrong is not important; it is not hard to see why it arose.
The point about Wintle v. Nye is that the best antidote to what happened there is to attempt to ensure
that lawyers should be more, not less, concerned with the making of wills. It would not have been
easy to suggest that in the immediate aftermath of the case. There would have been peals of hollow
laughter. But lawyers have now learned their lesson; it is a pity they did not learn it earlier. The
lawyer's duty should be to protect testators. It is suggested that what should now happen is that
section 9 of the Wills Act should be amended, or some other provision should be enacted, to provide
for
wills to be executed in front of notaries, or, at least, in front of solicitors who are totally
independent of, and in no possible way connected with, beneficiaries. It would be the duty of such a
notary or independent solicitor to try to ensure that there was no hint of pressure or of fraud and that
the testator knew exactly what he was doing. Most cases would be perfectly straightforward, but they
would
involve the testator being seen alone by the notary or independent solicitor to
make quite sure
that there was no problem. Some cases might involve the notary or solicitor requesting medical
assistance--there would be less of a problem with this if it were made clear that the notary or solicitor
would himself be guilty of professional misconduct if he were to countenance the execution of a will
where there was any question as to the testator's mental capacity or as to pressure on him. The
notary or solicitor should not be the person who had prepared the will because this lawyer might be
linked with members of the testator's family, or with other beneficiaries. The will could be prepared by the testator's own solicitor, or could be a home-made will, but it would be executed
in front of someone who could not come under direct or indirect pressure from those close to the
testator.
It is not being suggested that it should be obligatory for wills to be executed in front of notaries or
independent solicitors;
but if they were so executed there would be a presumption that the testator
had capacity and that there had been no undue influence or fraud. A will not so executed would not
enjoy these presumptions and it would be the duty of the propounder of such a will not only to prove
capacity but also affirmatively to disprove undue influence and fraud. Given that circumstances vary
from case to case, the difficulty of disproving undue influence and fraud would vary, but there should
be a genuine onus on the propounder to demonstrate a lack of pressure and to demonstrate that the
testator knew exactly what he was doing.
The fourth possibility (the notarised will) would fit in, reasonably logically, with possibilities (ii) and
(iii)--presumptions and costs. Those who attempted to propound wills which had not been executed in
front of notaries, or independent solicitors, would know that there would be a genuine burden upon
them to disprove both undue influence and fraud. How difficult that would be, would depend on the
circumstances. In a case where the testator had been tough-minded and alert at the time he made his
will, had had it witnessed by neighbours who knew him, or in the office of the solicitor who had
prepared it; and where there was no sign that any beneficiary had played any part in preparing it, it
would be quite easy. But handwritten wills executed by retired civil servants in shops in Hampstead,
or
wills executed by patients in nursing homes in favour of people in any way linked with the homes
would be scrutinised with the greatest of care and stand virtually no chance of being admitted to
probate. The fact, alone, that a will was handwritten when the testator had executed an earlier will
which had been prepared for him by a solicitor would, if the later will was not executed in front of a
notary or independent solicitor, be cause for adverse comment and genuine suspicion.
Wintle v. Nye is a case which has haunted this branch of the law for a generation. The law was in a
state of disarray before the case was fought, the case made it much worse. It is time the ghost was
exorcised.
----------------------------------------------
Kerridge, R. (2003) ‘A case of a “suspicious” will’ 119 LQR 39.
Max Strum (“Max”) was born in Germany in 1920 and fled to England, as a Jewish
refugee, just before the start of the Second World War. He spent his working life as a waiter in a
Jewish restaurant in London, was married and had one adopted child, a son, Geoffrey (“Geoffrey”).
Max was a Zionist and wanted to
emigrate to Israel, but his wife was opposed to the idea. When she
died, in 1985, it became possible for him to realise his dream. In 1989, in preparation for his
departure,
Max sold his house to a friend, Michael Fuller (“Michael”), and the sale was completed on
March 31. Two other transactions took place on that day.
First, Max entered into a contract whereby
Michael handed over to him £15,000 in cash so that Max could invest it for Michael in Israel.
Secondly, Max executed a homemade will. It is the will which was in dispute in this case.
The problem with disputes over wills--particularly home-made wills--is that it is always hard to set out
all the relevant facts within a manageable framework. A dispute over a will almost always
arises after the testator has died and so he cannot give evidence as to why he acted as he did--why
he left his property to X, or why he disinherited Y. The most troublesome will dispute cases are those
where a beneficiary has been involved in the preparation of the will. This is such a case.
Max's will
was prepared in a room where Max and Michael were alone together. The substantive parts of the will were entirely
in Michael's handwriting. Michael was present when the will was executed and the
two
witnesses were Michael's aunt and a friend. The will appointed Michael as executor and left about 30
per cent of Max's estate to Michael and to members of Michael's family.
Max emigrated to Israel
shortly after the will was made. The will remained in a deed box in Michael's house and when Max
died, in 1998, it was Michael who had possession of it. Geoffrey knew nothing about the will until after
his father's death.
Geoffrey decided to challenge the will.
The conventional wisdom is that someone minded to challenge this sort of will should do so on the
ground that the testator lacked knowledge and approval. Geoffrey's advisers chose this ground, but
also alleged that
Max's signature to the will had been forged. The evidence of forgery was
inconclusive: Geoffrey produced a handwriting expert who said that Max's signature had been forged;
Michael produced one who disagreed. In the result the Master ordered that a single joint expert be
appointed, who concluded that there was
“very strong positive evidence” that Max's signature had
been forged. The trial judge, Jules Sher Q.C. having heard evidence from Michael and from the friend
who witnessed the execution (the other witness, Michael's aunt, having died before the case came to
trial)
held that Max's signature to the will had
not been forged. But he then went on to
hold that Max
had not known and approved of the contents of the will, except for one legacy to an old friend. On the basis of this finding, Geoffrey was free to obtain letters of administration with the will (containing the
one legacy) annexed.
Michael appealed--conducting his appeal in person. The Court of Appeal, Peter Gibson, Chadwick
and Longmore L.JJ., unanimously
upheld his appeal: [2002]
Michael was granted
probate of Max's will and Geoffrey, Max's son, was ordered to pay the costs.
Peter Gibson L.J. described the trial judge's order as “highly unusual” and Chadwick L.J. described
his conclusion as “surprising”. They were both right: there was something very odd about deciding
that Max knew and approved of one legacy in his will but not of any of the other dispositive provisions. It was an unconventional decision.
There are four possible grounds for attacking wills in this type of case: (i) lack of capacity; (ii) fraud;
(iii) undue influence; and (iv) lack of knowledge and approval. There is some overlap between the four
grounds, but they are essentially distinct. Lack of knowledge and approval--without any
reference to fraud or undue influence--implies that the testator has made a mistake.
It is (by itself) not an appropriate ground where there is a suspicion that someone involved in the will-making process may have misbehaved. In a case where a beneficiary has played a significant part in preparing a will,
particularly where there is an element of secrecy, the appropriate ground should, it is submitted, be
fraud, coupled with lack of knowledge and approval.
In cases like this one, the person challenging the will does so on the ground of lack of knowledge and
approval, but does not allege fraud. The court, almost invariably, cites passages from nineteenth
century cases referring to “suspicious circumstances” and explains how care has to be taken when a
will is drawn up by a beneficiary. The best known quotations come from Barry v Butlin (1838). Peter Gibson and Chadwick L.JJ. both quoted from this case. At first sight the quotations
seem appropriate because Barry v Butlin was also a case of a son who challenged a will drawn up by
a beneficiary. But there is a significant difference: Barry v Butlin was not a case where the son
pleaded lack of knowledge and approval, but fraud and undue influence. The problem with references
to “suspicious circumstances” in cases where there is no plea of wrongdoing is that the references
are, essentially, meaningless. A reference to “suspicious circumstances” must, surely, imply that
someone has misbehaved--but if wrongdoing has not been alleged, the reference becomes
nonsensical. The net effect is that the challenger almost invariably fails.
During the course of his judgment, the trial judge, Jules Sher Q.C., having referred to Barry v Butlin,
read out the following passage from the judgment of Lord Hatherley in Fulton v Andrew (1875) “They [i.e. persons who assist in preparing wills under which they take benefits] have thrown on them the onus of showing the righteousness of the transaction” (2001) at p.697B. He was taken to task for this by Chadwick L.J. who suggested, [2002] para.[65], that Lord Hatherley's phrase, “redolent of morality as it now seems to be”, implies a licence for the court to refuse probate to a document of which it disapproves. It is submitted that Lord Hatherley's phrase does not imply what Chadwick L.J. suggested it implied, and that the trial judge
was perfectly correct to quote it. What Lord Hatherley intended to convey was that persons who assist
in the preparation of wills under which they take benefits shall be presumed to have acted improperly,
or, more precisely, that they will be put under an onus of disproving undue influence. Lord Cairns
L.C., in the same case at p.463, took the same approach, except that he would have presumed fraud,
rather than undue influence. The essential point is that neither Lord Hatherley nor Lord Cairns was
suggesting that the court has a licence to refuse probate to a document of which it disapproves, but
they both thought that where someone takes a benefit under a will *L.Q.R. 42 which he has
prepared, there should be a genuine presumption of misconduct. The members of the Court of
Appeal in Fuller v Strum appear not to have understood this approach, or if they understood, they
appear not to have applied it. It may be said on their behalf that Geoffrey's advisers failed to plead
fraud, but it is hard not to gain the impression that, even if fraud had been pleaded, the court would
have treated the person pleading it with scant sympathy--that is the essential problem.
It will never be possible for anyone, other than those who were present when Max Strum's will was
executed, to know what actually happened just before, and at the time of, its execution. Whichever
way the known facts are looked at, there seem to be things which are hard to explain. But that is
exactly why the onus of proof is so important in this kind of case. The best known case of all involving
an allegation of lack of knowledge and approval is Wintle v Nye [1959] 1 W.L.R. 284, where the
House of Lords allowed an appeal precisely because the trial judge talked vaguely about “suspicions”
but ended up by giving the propounder of the will the benefit of virtually all the doubt. Yet is this not
what the Court of Appeal did in Fuller v Strum ? It is true that the court could have said that, given the
way that the case had been pleaded, it was not going to make any references to anything
“suspicious”, but it did not do this. It treated Geoffrey as though he had made some sort of allegation
of misbehaviour, but in such a way that it was not really clear what he had alleged.
There were a whole series of points on which, far from regarding Michael's evidence with “suspicion”,
the Court of Appeal accepted it in the most trusting manner. Almost nothing was said in the Court of
Appeal about the loan transaction which took place, or was supposed to have taken place, just before
Max Strum made his will. The trial judge thought that had “not been told the whole truth” about this
transaction--and this clearly influenced him in his attitude towards evidence given by Michael in
relation to the preparation of the will itself. He was “not prepared to accept [Michael's] account of what
went on” [at the time the will was drafted]: [2001] W.T.L.R. 677 at p.687B. The Court of Appeal
should, surely, have dealt with this.
A point noted by Peter Gibson L.J. in favour of assuming that the willmaking transaction was above
board, was that Max was supposed to have provided the will form on which Michael had written out
the terms of his will. But what proof was there that Max had provided the form? The only proof
appears to be that Michael said that Max provided it, and Geoffrey was unable to produce any
evidence to prove otherwise. But how could Geoffrey possibly produce evidence to prove where the
form came from? This is exactly the kind of evidence which is solely in the knowledge of the
propounder and, if his evidence is really to be viewed with suspicion, it should be treated with the
greatest possible circumspection--not simply accepted.
Then there was something else which may not have been noticed, something missing.
According to Michael, Max gave him a photocopy of the will and, shortly afterwards, gave him a deed
box for safe-keeping. The will was in the box, but Michael said that Max did not tell him this. It may
not be surprising that Max gave Michael a copy of his will and that he then gave Michael the will itself,
but it does seem odd that Max, having taken the trouble to take a photocopy, had no photocopy
himself. When his flat was cleaned after his death there was no copy of the will in it. Returning again
to Wintle v Nye, one of the points raised in that case, to which attention should have been drawn, was
the fact that the testatrix did not have a copy of her own will--that was considered suspicious.
It is submitted that this is not a case which sets a happy precedent. It began badly when those acting
on the son's behalf chose not to plead fraud. A (supposed) advantage of pleading lack of knowledge
and approval by itself is that if the challenger loses (as he almost always does) costs will generally not
be awarded against him. But even that advantage was lost here, presumably because Geoffrey had
not pleaded lack of knowledge and approval by itself, he had also pleaded forgery. The trial judge
may then have attempted to do too much--he could have gone for “all-or-nothing”, and need not have
attempted to try to uphold the will in part. Had he set the will aside in its entirety, it is very doubtful if
any appeal could have succeeded. But his attempt to uphold the will in part led the Court of Appeal to
uphold it in its entirety. This is the standard approach, but it is very trusting. It is submitted that what
should have happened in this case is that Geoffrey should have pleaded fraud (together with undue
influence and lack of knowledge and approval), and the court should (following Lord Cairns and Lord
Hatherley in Fulton v Andrew ) have presumed improper conduct by the propounder. Unless the
courts take this approach, it is going to be very hard indeed to mount successful challenges against
“suspicious” wills. The onus of proof in these cases is central to success or failure. The Court of
Appeal in Fuller v Strum followed a tradition begun by the Ecclesiastical courts two centuries ago--a
tradition whereby the court talks of “suspicions”, but appears not to act on them. When Contentious
Probate was moved from the Probate Division to Chancery in 1971, the then assistant editor of this
Review (P.V.B., 86 L.Q.R. 447) wondered whether the move might make a difference and cause
Chancery lawyers to take a less indulgent attitude towards those who assisted in drafting wills in their
own favour than the Probate lawyers had taken. If he hoped that it would, he will be disappointed.
-------------------------------------------
Re Horsford - if apply CW rules, any means could be used to decipher the obliterated word.
Re Itter - s.21
Brown v Skirrow: witnessing a will: the witness should be able to say, ‘I know that this testator has signed this document’.
-----------------------------------------------------
suspicious circumstances
Re Edwards
Re Rowinska
Barrett v Bern 2012
Wintle v Nye
Barry v Butlin - that whenever a party prepares a will and takes a benefit under it, that ought ‘to excite the suspicion of the court’
Tyrell v Painton - the rule requiring the propounder to remove suspicion was not confined to cases where the will was prepared by a beneficiary, but applied to any ‘well-grounded suspicion’.
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In the Goods of Dobson
