Contentious Probate Update. Is want of knowledge and approval effectively a. dead duck following Gill v. Woodall?

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1 Contentious Probate Update Is want of knowledge and approval effectively a dead duck following Gill v. Woodall? The Liberal View by Guy Adams, St John s Chambers (Delivered as one side of a debate on the scope of a court's inquiry) 1. It is a cherished liberty in this country that Subject to the courts powers under the [Inheritance (Provision for Family and Dependants) Act 1975] and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases This is in distinction to other systems were the law or religion may require property be devolved in a particular manner. There are no doubt sound reasons why many systems and societies do not let people do what they wish with their property on death. 3. As Lord Neuberger MR put it in Gill v Woodall experience of human nature generally, and Wills in particular, demonstrates that people's wishes can be unexpected, inexplicable, unfair, and even improper."- at para Money and deaths have throughout the ages brought out the worst in people. People can become vulnerable to improper pressure and influence as they get older, in body and in mind. They can form irrational delusions about those close to them. Sibling rivalry often comes to the fore both before and after death, especially if the children are the products of different relationships. 5. As Scarman J in Re Fuld (No 3) [1968] P 675 at 719B-C put it Darkness and suspicion are common features in will cases: the truth too often is the secret of the dead or the dishonest. 1 Oliver J in Re Coventry [1980] Ch 461 Page 1 of 7

2 The problem that society and the courts face is to ensure that Wills are what they say they are, namely a testament of the deceased's will. In other words a formal record of the reasonable exercise of the deceased s free will. 6. Scarman J went on in Re Fuld to explain that: "Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law -- the requirements of proper form and due execution. Such requirements..... are no mere technicalities. They are the first line of defence against fraud upon the dead". The second type of safeguard is the second line of defence. This is invoked where the circumstances give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences presumptions as they are sometimes called to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution." - ibid 7. You will note that Scarman J did not differentiate between suspicions of want of capacity and suspicions of want of knowledge of approval. Though it may often be convenient to treat them as separate questions, one may of course run into the other. The question for the court at the end of the day is is this the will of a free and capable testator? If all suspicions have not been dispelled, then the will is not admitted to probate. 8. The area for debate today is as to what is suspicious and how should one approach the question, and in particular how the court s approach is different where there is evidence of due execution, where the will has been read over to and executed by someone, who objectively has capacity. 9. I will seek to persuade you that, at least since Etridge, the principles applicable to presumed undue influence and want of knowledge and approval have to a large extent been assimilated. I have little doubt that Lord Scott choosing his language carefully at paragraph 156, when, considering the sort of transactions which would not give rise to a presumption of undue influence, he gave the example of: Page 2 of 7

3 A solicitor who is appointed by a client as his executor and given a legacy of a moderate amount if he consents to act, is not put to proof of the absence of undue influence before he can take the legacy." That example is of course taken from the leading Victorian authority on want of knowledge and approval Barry v. Butlin 2 Moo PC 480, referred to by Lord Neuberger in Gill v Woodall. Indeed the leading modern case on want of knowledge and approval Fuller v Strum [2002] 1 WLR 1097 was heard within days of the decision in a Etridge. 10. It is often said that there is no doctrine of presumed undue influence in probate. That is quite right, the reason is there is no need for any such presumption. The presumption in undue influence is a device employed by a court of equity to throw the burden of proving a transaction, which on its face is valid law, on the person propounding the transaction. The starting point at law being that both parties are on the face of it bound and a party seeking to suggest that the transaction should be set aside carries the burden of proof. 11. In the probate context, on the other hand, the burden is always on the person propounding the Will and it is not given legal effect until proved. 12. The concept of the exercise of free will is however identical whether one is considering an inter vivos transaction or the execution of a will. The reasonable exercise of free will maybe vitiated by positive wrongdoing such as fraud or actual undue influence. It may also be vitiated by more innocent means such as mistake, which may induced by a negligent or innocent misrepresentation, or as the result of the influence of a relationship of ascendancy or trust and confidence, which was not deliberately abused. 13. The court starts from the position that people do not generally do deliberately wrongful acts and, if such wrongdoing is to be alleged, whether in relation to an inter vivos transaction or a Will, it must be specifically alleged and proved. 14. We are principally concerned with transactions, where wrongdoing is not specifically alleged, but there are other reasons for suspecting that something, not necessarily resulting from dishonesty, may be amiss with the transaction. In these circumstances the court's approach is more subtle. 15. As Lord Justice Peter Gibson said in Fuller v Strum Suspicion may be aroused in varying degrees, and what is needed to dispel the suspicion will vary accordingly - at para 33 - Page 3 of 7

4 reflecting what Lord Scott said in Etridge at para 153 that the weight of the presumption will vary from case to case and will depend both on the particular nature of the relationship and on the particular nature of the impugned transaction... the type and weight of evidence needed to rebut the presumption will obviously depend upon the weight of the presumption itself. 16. If the suspicions are not dispelled or the presumption not rebutted, then such conclusion does not necessarily connote any deliberate wrongdoing, though the necessary conclusion in inter vivos transactions is that there was undue influence, which carries a connotation of impropriety, it is not necessarily deliberate wrongdoing, rather can be breach of duty - see Lord Nicholls in Etridge at paras In Tyrell v Painton [1894] P 151 Lindley LJ, who had of course given the celebrated judgment in Allcard v Skinner (1887) 36 Ch D 145 on presumed undue influence said at 157: "In Barry v. Butlin Parke, B., delivering the opinion of the Judicial Committee, said: The rules of law according to which cases of this nature are to be decided do not admit of any dispute so far as they are necessary to the determination of the present appeal, and they have been acquiesced in on both sides. These rules are two: The first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. The same principle was laid down and acted upon in Fulton v. Andrew and Brown v. Fisher. None of these cases turned on the plea of fraud. Thomas Painton wrote the will, and it was in favour of his father. The testatrix had omitted him on November 7: had she by the 9th changed her mind? The rule in Barry v. Butlin, Fulton v. Andrew, and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in Page 4 of 7

5 which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document" (my underlining)" 18. It is suggested in the headnote of Gill v Woodall that this dictum was not applied, but that is perhaps somewhat misleading as Lord Neuberger MR undoubtedly cited this passage with approval in 3 places in his judgment - paras 13, 21 and 27. Rather the only difference of approach adopted by Lord Neuberger was explained at para 22, was that in a case which has been heard over a number of days Lord Neuberger expressed the view that it might generally be better to consider the totality of material to consider whether or not the burden of establishing that that the instrument is a valid testamentary instrument has been discharged - i.e. that at the end of the trial the court, on the balance of probabilities, has no remaining suspicions concerning the making of the Will. This approach is also becoming fashionable in undue influence cases, but perhaps carries dangers of masking the technique the court is applying and giving licence to judges to be lazy in their analysis. It would, undoubtedly, have the advantage as far as the court of appeal is concerned of reducing the number of appeals. 19. Subject to that point, which in any event followed earlier authorities In re Crerar (unreported) and In re Morris, decd [1971] P 62, I do not read Gill v Woodall as altering or even purporting to alter the law. The real point in that case was how to treat the evidence that the will had been drawn by a solicitor and read over to the testator, who apparently had capacity, before execution. 20. As explained in In re Morris, decd it was once thought that proof of a will having been read over to a testator of competent mind and then executed was conclusive of knowledge and approval, but that did not survive Fulton v Andrew. It has, however, then described, as was stated by Lord Neuberger at paras 14 and 15, as raising a grave and strong presumption that the testator knew and approved of the contents of the will that required clear evidence to rebut - i.e. clear evidence of suspicious circumstances. In effect this made the situation closer to an inter vivos transaction, so that the burden of proof started on the person challenging the will to raise sufficient suspicions to doubt the prima facie evidence of execution and only then did the burden shift back again for the propounder to dispel any suspicions. Page 5 of 7

6 21. He then however went on at para 22 to cite with approval the judgment of Sachs J in In re Crerar that it was preferable to consider all the evidence together and: "The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption." In other words it merely goes into one side of the scales, albeit weighing them down heavily. 22. In fact in Gill v Woodall despite the evidence of the circumstances of the execution, Lord Neuberger MR went on to find that there were suspicions of want of knowledge and approval: "arising out of very unusual evidence as to the behaviour, character and psychiatric state of Mrs Gill, and the views, character and influence of Mr Gill, it is easy to understand how the judge concluded that a prima facie case had been made out to the effect that the will did not represent the testamentary intentions of Mrs Gill as at April To put the point in more traditional language, it is unsurprising that, in the light of this evidence, the judge decided that his suspicions were excited as to whether Mrs Gill actually knew and approved of the contents of the will when she executed it." Further that these had not been dispelled so that the Will was not proved. 23. The real difference between Wills and inter vivos transactions is that in an inter vivos transaction, if a donor is taken advantage of, then it is generally to their personal disadvantage. In circumstances where somebody has the opportunity to take unfair advantage the court may conclude, depending on the relation of the parties, that the person taking the advantage was under a duty of candour and protection. That does not generally apply in relation to a testator, who obviously has no further need or interest in his assets, [though query where the person seeking the testamentary advantage knows that the testator has dependants] and there is therefore nothing wrong with pressing someone to remember them in their will. Hence Lord Neuberger MR's obiter comments that: "a court should be very slow to find that a will does not represent the genuine wishes of the testatrix simply because its terms are surprising, inconsistent with what she said during her lifetime, unfair, or even vindictive or perverse." Page 6 of 7

7 24. As he made clear however such matters can all weigh against a Will if there are other factors that raise suspicions. There might be evidence of poisoning of relations during the deceased's lifetime, failing health and opportunities to exercise undue influence, particularly where the person has placed trust and confidence in the prospective beneficiary in relation to the management of their affairs and in particular in relation to the dispositions they should make under their will. In the Barry v Butlin example used by Lord Scott in Etridge, the inference is that a solicitor who takes a disproportionate gift under the will has to prove that he did not exercise undue influence. 25. Of some concern is a tendency in the cases to equate knowledge and approval with knowledge of the contents of the will by someone with sufficient capacity. But that misses the point that it is not enough that the testator intended to make the will, it had to be a record of their free will, and the question, taken from the undue influence cases, may not be whether he or she knew what they were doing, but how the intention was produced, particularly where there was the opportunity for undue influence. Guy Adams 17th October 2012 guy.adams@stjohnschambers.co.uk St Johns' Chambers Page 7 of 7