England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Jules Sher QC,
sitting as a Deputy Judge of the High Court)

		The Royal Courts ofJ ustice The Strand London WC2A
		Friday 16 February 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal by Mr Michael Fuller, who has appeared in person. Mr Fuller wishes to appeal against an order made on 20 December 2000 by Mr Jules Sher QC, sitting as a deputy judge of the Chancery Division.
2. The order was made after the trial of a probate action. Mr Fuller was the claimant in the action. He was seeking probate in solemn form of the will, dated 31 March 1989, of Max Strum, who died in Israel on 24 December 1998, aged 78. It seems to have been common ground that he remained domiciled in England, where he had lived since about 1938. The only defendant to the proceedings was Max Strum's adopted son, Mr Geoffrey Strum, to whom I will refer, without intending any familiarity, as Geoffrey. He was the residuary legatee under the disputed will but he was also, more importantly, the only person entitled on intestacy. Under the will he took residue only after pecuniary legacies totalling £34,000.
3. The judge assumed (no doubt on what he was told) that the total estate was about £70,000, but Mr Fuller contends today that £150,000-£200,000 would be a better estimate. It is a matter of some importance to establish what the size of the estate was.
4. The defences relied on at trial were, in the first place, the very serious allegation of forgery and, in the second place, the less lurid but still serious allegation of want of knowledge and approval of the contents of a will which Mr Fuller had played a part in preparing.
5. Mr Sher QC gave a very careful and detailed judgment after a trial at which he had heard oral evidence from, among others, Mr Fuller, Mr Fuller's sister (now Mrs Vivienne Thompson), Miss Betty Griffin (a close and long-standing friend of Max Strum), Mr Isaac Aghajanoff, a friend of Mr Fuller and the only surviving witness to the will, Geoffrey and Geoffrey's girlfriend, Miss Lynne Collins. He had written evidence (but no oral evidence) from a single court-appointed forensic document examiner, Dr Audrey Giles.
6. The deputy judge found that the case for forgery had not been proved to the requisite high standard, here differing from the view of the expert witness. But he found that Mr Fuller had not, except to a very limited extent, discharged the burden of proof which fell on him under what is sometimes called the rule in Barry v Butlin (1838) 2 Moo PC 480 of proving the righteousness of the transaction. He found that the testator's legacy of £6,000 to Betty Griffin did have his knowledge and approval, he directed that only that legacy should be admitted to probate, striking out all the other dispositions in the will (including the appointment of Mr Fuller as executor).
7. The evidence which the judge had to consider amounted to a very strange story, though strange things do sometimes happen and on any view of the truth the story is an unusual one. Max Strum had come to this country as a refugee from Nazi Germany. He married another refugee, Gertrude Levinson, in 1940. They had no children of their own, but adopted Geoffrey (whose mother was Irish, and not Jewish) in 1955 when he was only a few days old. Max Strum worked for most of his life as a waiter at Blooms, the well-known restaurant in the East end of London. His wife had a stroke in 1975 and was ill from then until her death ten years later. This led to problems and tensions between Max Strum and Geoffrey. The judge heard a great deal of conflicting evidence about this, but accepted the son's evidence that their relationship, although difficult, was far from one of hatred and that the father had given his son Geoffrey £16,000 soon after the occasion of the disputed will, in which the father appeared to have used very strong language in describing his son and making him "albeit very grudgingly" his residuary legatee.
8. Mr Fuller was born in England, of refugee parents from Czechoslovakia, during the last war, so that he is older than Geoffrey but was a good deal younger than Max Strum. Indeed, Max Strum was an old friend of his parents. Mr Fuller seems to have become fairly prosperous through various activities, including organising car boot sales.
9. In 1989 Max Strum (who was not a religious Jew but was an ardent Zionist) wanted to go to live in Israel, an aspiration which had not been possible during his wife's lifetime. He was living at a house in Woodford, where his son Geoffrey was living also. He conceived the idea of selling his house to Mr Fuller, who was in course of selling his own house for a large sum. Max Strum sold his house to Mr Fuller for £90,000, which the judge found be an undervalue of about £10,000. Geoffrey was displeased by the undervalue and also by extensive works which Mr Fuller was carrying out before completion in order to make the house a home for himself, his sister, his sister's children and his Aunt Clara. Geoffrey was not unnaturally concerned about what would happen if the arrangement fell through before completion. But completion did take place, on 31 March 1989, the date of the disputed will, and most of the careful judgment is concerned with the extraordinary evidence given to the judge about the circumstances of preparation and execution, at Max Strum's house, of the disputed will and also of a document (called a receipt and undertaking) which was executed by Max Strum and, as was the will, witnessed by Mr Aghajanoff and Clara Teitler (that is Aunt Clara, who died before the trial and never gave a witness statement).
10. I do not propose to go further into the evidence because I have, with some hesitation, come to the conclusion that I should grant permission to appeal in this case. I have reached that conclusion by a narrow margin and I have considered whether I should adjourn the matter to hear the application on notice - that is, with the other side present. However, further delay and expense would be involved in that course. Mr Fuller should not take any great encouragement from the fact that I am granting him permission to appeal. It is my duty to do so unless his appeal is hopeless, but the judge rightly said that in a case of this sort the oral evidence of the witnesses is critical. The judge saw and heard the witnesses, and he made some unfavourable remarks and reached some unfavourable conclusions about the evidence of Mr Fuller and Mr Aghajanoff. On the other hand, the judge rejected (or at least found not proved) the primary case against them, which had been based on forgery.
11. Mr Fuller, in a carefully-prepared notice of appeal and skeleton argument, has put forward some points on which it is arguable that the judge gave insufficient weight to certain parts of the evidence, including the evidence of witnesses whose evidence he accepted. Mr Fuller has also drawn attention to the unusual outcome of leaving standing only a single legacy in a will of some length, and questioned whether his sister's and his sister's children's legacies should also have been struck out. The case is plainly important to both sides, although the total pecuniary sum involved in the legacies is really quite small. If the judge was seriously misinformed of the likely value of the estate, that is another factor to be considered.
12. On any view, Mr Fuller will have a steep and high hill to climb in order to succeed on an appeal. The appeal may be expensive, in that it may require preparation and study of transcripts of the oral evidence. Nevertheless, it seems to me that the prospect is not completely hopeless, and that I should grant permission to appeal, despite the heavy costs in proportion to what is at stake. Mr Fuller should realise clearly that I may be doing him no favour at all in granting him permission to appeal. He should consider the possibility of a compromise, if it is at all possible.
13. Mr Fuller seeks an extension of time. The delay was short and has been explained, and I will grant that extension. He also seeks a stay of execution, that is, in practice, that no grant of letters of administration with will annexed should be made to Geoffrey. I will grant a provisional stay of execution, but I make clear that it is open to Geoffrey to apply to lift that stay if so advised. I adjourn the applications to adduce further evidence to the hearing of the appeal. My present feeling is that it would be right to let in further evidence, if it is available, as to the value of the estate, but Mr Fuller may have serious difficulty in persuading the court that any other evidence should be admitted, since it will be said that it should have been called at trial.
ORDER: Applications for permission to appeal and an extension of time allowed. Application to rely on further evidence adjourned to the hearing of the appeal. Application for stay of execution allowed provisionally with liberty to the defendant to apply on notice. (Order not part of approved judgment)