CHANCERY DIVISION
B e f o r e :
IN THE MATTER OF THE ESTATE OF MARIA ROWINSKA DECEASED
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STANISLAW WYNICZENKO | Claimant | |
AND KRYSYTYNA PLUCINSKA-SUROWKA |
Defendant |
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Crown Copyright ©
1 Introduction
1. She contended that Maria Rowinska's signature on the will was not genuine. She is supported in that view by a handwriting expert - Mrs Phillippa Lavell – who concludes that there is very strong evidence that the signature was produced by someone other than Maria Rowinska. Stanislaw Wyniczenko disputes that the will is forgery. He says he was present when it was signed by Maria Rowinska; so were the 2 attesting witnesses. Furthermore Dr Audrey Giles – the handwriting expert instructed by him – regards the evidence as conflicting.
2. She contended that Maria Rowinska did not know and approve the contents of the will before she signed it. It is common ground that the will was prepared by Stanislaw Wyniczenko and that he is the sole beneficiary under it. It is thus common ground that this is a case where the suspicion of the Court is aroused. In those circumstances the court must examine all of the circumstances of the case with the utmost care to see whether the testatrix did know and approve the contents of the will. Krysytyna Plucinska-Surowka contends that Stanislaw Wyniczenko has not so satisfied the court. Stanislaw Wyniczenko contends that he has.
3. She contended that Maria Rowinska did not have the mental capacity to make a will. She relied on the fact that Maria Rowinska was 87, frail, physically incapacitated and suffering from cancer. There is evidence that she was becoming confused. Stanislaw Wyniczenko accepts the evidence of her frailty but contends that it did not affect her mental capacity. He relies on the evidence of her GP – Dr Tailor – who saw her regularly. Dr Tailor in fact saw her on 18th February 2002 – the day before the will was said to be executed and was able to give evidence as to her mental state then. He also relies on the evidence of the District Nurse – Mrs Phillips – who saw her both before and after the date on which the will was said to have been made.
4. She contended that Stanislaw Wyniczenko exercised undue influence over Maria Rowinska in order to make her execute the will. Stanislaw Wyniczenko denies the allegations of undue influence.
2 Representation
3 Witnesses
4 The Facts
4.1 Maria Rowinska
4.2 Earlier Wills
18th July 1979
22nd June 1982
12th May 1988
4th August 1993
4.3 The health of Maria Rowinska
4.4 Stanislaw Wyniczenko
4.5 Relationship with Maria Rowinska
4.6 Initial Instructions for the will
4.7 Preparation of the Will
4.8 The Will
I give my estate both real and personal (after payment of my funeral and testamentary expenses and any debts and all taxes (if any) in respect of the property passing under this Will to Stanislaw Wyniczenko absolutely.
4.9 Execution of the Will
About the will document …just keep it to yourself. You know what people are like
4.10 The letter of 8th March 2002.
4.11 Death of Maria Rowinska
4.12 Enquiries by Mrs Brushett
4.13 Enquiries by Krysytyna Plucinska-Surowka
I am the sole beneficiary and executor of the Will (February 2002) of the late Maria Rowinska in which there is no instruction for the funeral.
5 The Defence Evidence
5.1 Krysytyna Plucinska-Surowka
5.2 Irena Abramowicz
5.3 Danuta Chomiak
6 Expert Evidence
7 Forgery
'Where matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability'
But, as Lord Nicholls went on to point out there was '[b]uilt into the preponderance of probability standard … a generous degree of flexibility in respect of the seriousness of the allegation'. Lord Nicholls said:
'This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.' (See [1996] 1 All ER 1 at 17, [1996] AC 563 at 586–587.)
8 Want of Knowledge and approval
[66] The starting point is the seminal passage in the opinion of the Privy Council delivered by Parke B in Barry v Butlin (1838) 2 Moo PC 480 at 482–483, 12 ER 1089 at 1090:
'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.'
[67] Parke B went on to explain what is meant by the onus probandi in that context. He said:
'The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burthen is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove the knowledge of its contents by the deceased. A single instance, of not unfrequent occurrence, will test the truth of this proposition. A man of acknowledged competence and habits of business, worth £100,000, leaves the bulk of his property to his family, and a Legacy of £50 to his confidential attorney, who prepared the Will: would this fact throw the burthen of proof of actual cognizance by the Testator, of the contents of the Will, on the party propounding it, so that if such proof were not supplied, the Will would be pronounced against? The answer is obvious, it would not. All that can truly be said is, that if a person, whether attorney or not, prepares a Will with a Legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances; for instance the quantum of the Legacy, and the proportion it bears to the property disposed of, and numerous other contingencies: but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the Court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. Nor can it be necessary, that in all such cases, even if the Testator's capacity is doubtful, the precise species of evidence of the deceased's knowledge of the Will is to be in the shape of instructions for, or reading over the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof, by which the cognizance of the contents of the Will may be brought home to the deceased. The Court would naturally look for such evidence; in some cases it might be impossible to establish a Will without it, but it has no right in every case to require it.' (See (1838) 2 Moo PC 480 at 484–486, 12 ER 1089 at 1091.)
[69] Confirmation that what has come to be known as the rule in Barry v Butlin is an evidential rule can be found in the judgment of Scarman J in Re Fuld (dec'd) (No 3), Hartley v Fuld (Fuld intervening) [1965] 3 All ER 776, [1968] P 675. It was necessary, in that case, for the judge to decide whether the English requirements as to proof of knowledge and approval were a part of substantive law—in which case they would be irrelevant in the circumstances that the testator died domiciled in Germany; or whether they were rules of evidence—in which case they fell to applied as part of the lex fori. After referring to the reaffirmation, in Wintle v Nye, of the rule in Barry v Butlin, Scarman J said:
'In my opinion, the whole point of the rule is evidential; it is concerned with the approach required of the court to the evidence submitted for its consideration. In the ordinary case proof of testamentary capacity and due execution suffices to establish knowledge and approval, but in certain circumstances the court is to require further affirmative evidence. The character of the rule as evidential emerges clearly from the speeches of VISCOUNT SIMONDS and of LORD REID.' (See [1965] 3 All ER 776 at 781, [1968] P 675 at 697.)
[71] It is, I think, this flexibility of approach within the civil standard of proof which lies behind the observations of Viscount Simonds in Wintle v Nye [1959] 1 All ER 552 at 557, [1959] 1 WLR 284 at 291:
'In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case, the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined.'
I think, also, that Lord Reid had the same approach in mind when, in the context of very special facts in Wintle v Nye, and after referring to the direction to the jury in Atter v Atkinson (1869) LR 1 P & D 665 at 668, that 'you ought to be well satisfied, from evidence calculated to exclude all doubt, that the testator not only signed it, but knew and approved of its contents', he said:
'To my mind, the direction of the learned judge was not at all calculated to make the jury realise that they must be "satisfied from evidence calculated to exclude all doubt" or even all reasonable doubt that the respondent had not only shown to the testatrix the relevant information and discussed the will with her but had brought home to her mind the effect of her will …' (See [1959] 1 All ER 552 at 561, [1959] 1 WLR 284 at 296.)
[72] I am satisfied that there is no basis for an approach that requires, in all cases, that a person propounding a will which he has prepared, and under which he takes a benefit, must satisfy the court by evidence which excludes all doubt—or by evidence which excludes all reasonable doubt (the standard of proof required in criminal proceedings)—that the testator knew and approved the contents of the will. The standard of proof required in probate proceedings (as in other non-criminal proceedings) is satisfaction on the preponderance (or balance) of probability. But the circumstances of the particular case may raise in the mind of the court a suspicion that the testator did not know and approve the contents of the document which he has executed which is so grave that, as Viscount Simonds observed in Wintle v Nye, it can hardly be removed.
8.1 Analysis of the evidence
8.2 Suspicious Features
8.3 Conclusion
JOHN BEHRENS
Friday 29 May 2015
Note 1 It does not appear that they were both provided with the same examples to work with. [Back]
Note 2 [1996] 1 All ER 1 at 16, [1996] AC 563 at 586 as summarised by Chadwick LJ in Fuller v Strum [Back]