England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13th July 2006

MR. PETER LEAVER QC:

1. Jack Joseph Vladimir Green (to whom I shall refer either as "Mr. Green" or "the deceased") died on 4^th February 2004. He had been married to Christine Anne Green but on 30^th January 2004 the decree absolute of their divorce was pronounced. The deceased and Ms. Green had no children.
2. Of the other actors in this matter, Pauline Briscoe was a neighbour and a friend of the deceased. The deceased was the father of two children, Raymond Green, who is the Part 20 defendant in this matter, and a daughter, Joanne Nicholls. It appears from the evidence that Joanne was born to a woman to whom the deceased was not married. Joanne has played no part in these proceedings although she was served by advertisement pursuant to the order of Master Bragge.
3. The principal asset of the deceased's estate was the property in which he lived at 186 Anerley Road in South London. That property had formerly been in the name of Ms. Green but it was transferred to the deceased as part of the financial arrangements which he entered into with Ms. Green during the course of the divorce proceedings.
4. On 8^th September 2004 Ms. Green commenced proceedings against Ms. Briscoe in which she alleged that the transfer of the property had been carried out as a result of actual or presumed undue influence by Ms. Briscoe on the deceased. Ms. Green wanted the transfer set aside and also sought provision under the Inheritance (Provision for Family and Dependants) Act 1975. Those claims are, as I understand it, being vigorously defended and I say nothing more about them. However, the claim to set aside the transfer is important in the context of the issue which I have to decide because, as I have said, the property was the principal asset of the deceased's estate.
5. The deceased left a will dated 25^th November 2003. Probate was granted to Ms. Briscoe on 2^nd June 2004 out of the Principal Registry of the Family Division. Ms. Briscoe was appointed executor of the will. In the will (to which I will refer in greater detail later in this judgment) there were a number of pecuniary testamentary gifts including one to Ms. Briscoe.
6. On 8^th February 2005 Ms. Green commenced the proceedings with which I am concerned. She asks the court to pronounce against the validity of the will and to order the revocation of the grant of probate and, in the event that the court does pronounce against the will, she seeks a declaration that the deceased died intestate. In her defence, Ms. Briscoe (who was the only defendant to the claim brought by Ms. Green) denied that Ms. Green had any interest in the deceased's estate and counterclaimed for the court to pronounce for the will in solemn form. By her defence and counterclaim, Ms. Green pleaded that she did not raise any positive case but insisted on the will being proved in solemn form and thus she averred that she wanted to cross-examine the witnesses who attested to the will.
7. Raymond Green, who had been served with the proceedings, filed an acknowledgement of service in which he stated that he would like to be satisfied that the will was properly executed but that he did not intend to make a positive case.
8. On 23^rd March 2005 Master Bragge dismissed the present claim on the ground that Ms. Green had no interest in the estate but refused to dismiss the counterclaim and ordered Raymond to be added as a defendant to the counterclaim. He also ordered the service by advertisement of the proceedings on Joanne. Ms. Briscoe appealed, with Master Bragge's permission, against the refusal to dismiss the counterclaim but on 9^th May 2005 David Richards J dismissed her appeal.
9. On 13^th May 2005 His Honour Judge Reid QC struck out the counterclaim. He did so, as I understand it, because Ms. Briscoe – who by then was acting in person – said that she did not intend to take any further steps in the action. Raymond Green then wrote to the court asking for the case to be relisted and on 1^st July 2005 Master Bragge ordered that the claim should be relisted for the purpose of considering whether the counterclaim should, itself, be heard. On 5^th April 2006 His Honour Judge Toulmin QC ordered that the case should be relisted for hearing. Hence today's hearing.
10. The position, therefore, is that Raymond, in effect, adopts the same position as Ms. Green; namely, that he wants to be satisfied that the will was properly executed and attested. Ms. Green is playing no part in the proceedings. In support of his case, Raymond relies upon the witness statement of the two witnesses to whose evidence I shall shortly refer. Ms. Briscoe counterclaims for the will to be pronounced in solemn form.
11. Section 9 of the Wills Act 1837 requires certain formalities to be satisfied in order for there to be a valid will. For the purposes of this case those formalities can be summarised as follows. First, the testator must sign or acknowledge the will in the presence of two or more witnesses who must be present at the same time. Secondly, after the testator has signed or acknowledged the will, in the presence of those two or more witnesses who are present when he signs or acknowledges the will, each witness must attest and sign the will or acknowledge his signature in the testator's presence. There is a presumption that a will which appears, on its face, to have been executed strictly in accordance with the provisions of section 9, has been properly executed and witnessed but that presumption can be rebutted.
12. There is a long line of authority which makes it clear that the presumption will only be rebutted by what has been described as "the strongest evidence". Two recent Court of Appeal authorities make this point very clearly. The first is Sherrington v. Sherrington and I take this passage from the judgment in Sherrington from the transcript of the judgment in the case of Channon v. Channon, which is the other Court of Appeal authority to which I refer. At paragraph 6 in the judgment of Neuberger LJ he quotes Peter Gibson LJ's judgment in Sherrington:

"40. …. the decision of this court in Wright v. Sanderson (1884) 9 PD 149 …. demonstrates …. the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. In that case the testator had written a holograph codicil to his will and included an attestation clause. He asked two witnesses to 'sign this paper', which they did. Their evidence, given 4 to 5 years later, was that they did not see the attestation clause nor did they see the testator sign. One witness said that she did not know what she was signing; the other said that she did not know what she was doing. Although the trial judge, Sir James Hannen, President, did not doubt their honesty, he felt that he could not rely on their evidence to rebut the presumption arising from the irregularity of the codicil on its face as regards all the formalities of signature and attestation when no suspicion of fraud arose. This court dismissed an appeal to it, the Earl of Selborne, LC, observing (9 PD at p 161), 'I do not know how many wills, really well executed and duly attested, might not be brought into peril if, upon the sort of evidence which we have here, after a lapse of several years, probate were refused.'"

13. Neuberger LJ's citation of the authorities continues:

"41. To similar effect was Lord Penzance in Wright v. Rodgers (1869) LR 1 PD 678 at p. 682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of testator. Lord Penzance said at p. 682 that the question was whether the court was able to rely on the witnesses's memory. He continued:

'The court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the court to affirm that the will was duly executed.'

42. It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign would not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has 'the strongest evidence', in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator or the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest if inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness."

14. Neuberger LJ continued in his judgment in Channon:

"7. There is good reason for the requirement that one must have 'the strongest evidence' to the effect that a will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the will represented the testator's intention. Where a will, on its face, has been executed in accordance with the section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the will was not properly executed.

8. The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place, the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own.

9. Furthermore, when one is dealing with the recollection of witnesses to a will, one is, as Mummery LJ pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the will would not, save in usual circumstances, have been of particular significance." – I suspect Neuberger LJ meant "save in unusual circumstances". –

"10. The principled reason for being reluctant to hold that a will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law."

15. So in the light of those authorities and those statements of principle, I turn to consider the will. The will is said to be home-made in this sense that it appears to have been prepared and typed either by the deceased or at his direction but it succeeds an earlier will which had been made by the deceased on 8^th February 1989 and prepared by solicitors who were then acting for the deceased. There is no suggestion that the will does not accurately set out the deceased's wishes as to the disposal of his estate. It is a short will and I will read it in full. It says:

"This is the last will of me Jack, Joseph, Vladimir Green of 186 Anerley Road, Anerley SE20 8BL.

I revoke all former wills and other testamentary dispositions.

I appoint as executor and trustee of my will Ms. Pauline Briscoe of Deeep Dell, Beckenham Place Park, Beckenham, BR3 5BP and should she fail to or be unable to act I appoint to fill any vacancy Mr. and Mrs. Ruth and Ian Craze of Laieur De Hant, Rue de Belle, Torteval, Guernsey, GY8 0LN.

On the sale of 186 Anerley Road, Anerley, SE20 8BL, I give" – then he sets out six financial bequests and continues –

"All my original family tree items to be left to the first born of my nieces and nephews (already mentioned). Copies can be given to other interested family members.

I give the residue of my estate to everyone already mentioned in my will above, in percentages equal to that they have already received (e.g. Pauline Briscoe would get the highest percentage and Mr. Roy Weaver would get the lowest percentage).

If anyone mentioned in my will fails to survive me by 28 days then the residue should be divided among the surviving people mentioned in the same way.

I wish my body to be buried and for my executor to take charge of this.

Signed by the above-named testator in our presence on 25^th November 2003

And then by us in the testator's presence."

Then it says "Testator's Signature" and the undisputed evidence is that the deceased's signature follows. Then "First Witness's Signature" and there is the signature of Mr. Bulbul Ali who fills in underneath his signature his full name, address and occupation and then the "Second Witness's Signature", Mr. Babul Ali who again fills in his full name, address and occupation.

16. The issues that I have to decide in this case, I believe, can be summarised as follows: first, were the deceased, Bulbul Ali and Babul Ali all together when the deceased either signed or acknowledged his will; and, secondly, did each of Bulbul and Babul sign or acknowledge the will in the deceased's presence? Three witnesses were called to give evidence as to the circumstances in which the will was executed and witnessed. I say at once that I am quite satisfied that each witness was doing his or her best to assist the court and to give true evidence.
17. Ms. Briscoe was a friend of the deceased, a regular visitor to his house. She described in her witness statement the layout of the deceased's home. She said that the deceased asked her to go and ask the Ali Brothers to come in to see him. He did not tell her why he wanted them to come. She went to their home and asked the lady who opened the door to her to ask the Ali Brothers to come round to the deceased's house. Bulbul Ali came alone. The deceased immediately asked where his brother was. At the time that this took place Ms. Briscoe was a few feet away making a sandwich for the deceased who was in bed, but she says that she heard and saw what went on and I accept her evidence. She said that Bulbul had tried to contact his brother on the telephone but could not get through, then left to go and get his brother. There had been a very short time, which she put at a minute or a little bit more, from his arrival until his departure to go and get his brother. She said that the brothers then returned together and subsequently left together.
18. Bulbul Ali says that Ms. Briscoe accompanied him to the deceased's house. On that small factual issue, I accept Ms. Briscoe's evidence that Bulbul came alone, that she had gone to the Ali house, the door had been answered by a lady who said that Bulbul and Babul were praying (it being Eid at the end of Ramadan), she went back to the deceased's house and Bulbul came alone. Mr. Bulbul Ali remembers the deceased pointing out that two witnesses were needed and going to collect his brother but he cannot remember whether he went back with his brother or alone. By contrast, Babul Ali is certain that his brother did not go back to the house with him, that he went alone and that he was alone when he signed the will.
19. About seven months after the will had been executed Mr. Bulbul Ali was asked a number of questions by the solicitor who was then acting for Ms. Green. Three of the questions were as follows:

"2. Were both you and the other Mr. B. Ali present at the same time when Mr. Green signed the will, and was the will signed by Mr. Green in your presence?

3. Was Miss Briscoe present during the signing? Do you remember if she gave Mr. Green the will or whether he already had it when you arrived?

4. Was there any conversation between either you and Miss Briscoe or Miss Briscoe and Mr. Green that might be relevant. For instance about who had prepared the will. Did Mr. Green retain the will after signature or give it to Miss Briscoe? Was there any discussion about who would keep the will?"

20. In answer to the question:

"Were both you and the other Mr. B. Ali present at the same time when Mr. Green signed the will and was the will signed by Mr. Green in your presence?" Mr. Bulbul Ali wrote:

"I went there first and then my brother came later when we were told that both of us had to be there. I cannot recall if Mr. Green signed the will in front of me but my brother is certain that Mr. Green did not sign the will in his presence."

21. In answer to the question:

"Was Miss Briscoe present during the signing? Do you remember if she gave Mr. Green the will or whether he already had it when you arrived?" he said:

"Miss Briscoe was present when the will was signed. I recall that Mr. Green already had the will."

22. And in answer to the last question:

"Was there any conversation between either you and Miss Briscoe or Miss Briscoe and Mr. Green that might be relevant. For instance about who had prepared the will. Did Mr. Green retain the will after signature or give it to Ms. Briscoe? Was there any discussion about who would keep the will?" Mr. Bulbul Ali said:

"I don't recall Mr. Green giving the will to Miss Briscoe and I think he retained it. The only conversation on this topic was Mr. Green saying that he had asked us to witness it as other people in the road would be too nosey."

23. So what Mr. Bulbul Ali appears to be saying in this e-mail response is that both he and his brother were present when they were told that both of them had to be there to witness the will. Mr. Bulbul Ali said in his evidence that he was not sure that he had really intended to say that but that is certainly what the words say. I remind myself that I must not try to construe these words as if they were a statute. However, they were written just a few months after the events with which I am concerned and as Neuberger LJ says, or implies, the closer to the events the more likely it is that the account will be accurate.
24. There is no e-mail correspondence with Mr. Babul Ali. However, on 8^th July 2004, a few days after Mr. Bulbul Ali's e-mail response to the questions that I have quoted, there is an attendance note of a telephone conversation that Mr. Babul Ali had with the solicitor who was then acting for Ms. Green. The typed version of the attendance note contains this sentence,

"I don't think my brother was there. I think he signed and went and I came after."

25. Babul Ali's evidence today in this court was that he thought that the deceased could have signed the will in front of him but he cannot remember. The uncertainty that he had about whether his brother was there, as expressed in the attendance note, has now become a certainty, that he was not there.
26. Without, I believe doing any of the witnesses any discourtesy or disservice, I believe that the evidence can be summarised in the following way. First, Ms. Briscoe has a clear and unwavering recollection of the events. She remembers that both the Ali Brothers were there. She remembers that the purpose of their visit was, as they were told, to witness Mr. Green's signature. Babul Ali is now certain that Bulbul was not there when he signed the will. That is, as I have just pointed out, a firmer recollection than he appears to have had as recorded in the attendance note. I should also just mention that in the attendance note he is recorded as saying that he was 80 to 90 per cent sure that the deceased did not sign it – that is the will – in front of him. In his evidence he said that he thought he could have signed it in front of him. Thirdly, Bulbul Ali is not certain about the exact sequence of events but he accepts his brother's evidence.
27. I have no hesitation in accepting Ms. Briscoe's evidence. I am quite satisfied that both the Ali brothers were present when the deceased signed the will. I am quite satisfied that both of them saw him sign the will. I am quite satisfied that both of them signed the will after the deceased had signed it and in the deceased's presence.
28. In making those findings of fact I should not be taken to be saying that either Bulbul Ali or Babul Ali has not been telling me the truth. I am very far from saying that. I think that they were doing their best but that their recollection of an event, which was probably not particularly significant at the time, was hazy and uncertain.
29. I therefore find that the presumption to which I have referred earlier in this judgment has not been rebutted. I find as a fact, as I have said, that the will was properly executed and attested. I propose, in those circumstances, to pronounce for the will in solemn form.
30. Now where does that leave us?

MR. GOLDKORN: Might I invite my friend and I to draft a minute. It does leave the question of the costs though.

JUDGE LEAVER: Yes, it does.

MR. GOLDKORN: The position is, I think, my Lord, that I would not to seek to claim costs. I think that in the light of the approach taken by the other side, simply seeking to cross-examine, their costs should be met from the estate.

JUDGE LEAVER: Their costs should be …?

MR. GOLDKORN: Should come out of the estate. I think I would find it difficult to argue to the contrary given the witness statements of the two witnesses of the will. It seems to me – perhaps I am arguing the case – that that is the position. I indicated at the outset I thought it was fair and that is the position I am adopting.

JUDGE LEAVER: If that is agreed ----

MR. BUCKLEY: I would not object to our costs being made from the estate.

JUDGE LEAVER: I am sure you would not, Mr. Buckley. My only concern about that, Mr. Goldkorn and Mr. Buckley, is that, of course, if Mr. Raymond Green's costs come out of the estate that serves to deplete the estate of the other legatees.

MR. GOLDKORN: That is a matter that your Lordship must take into account. I cannot speak for them and, that is true, they will undoubtedly get less.

JUDGE LEAVER: They were given notice of these proceedings as I understand it from the orders that I have seen. Is that right?

MR. BUCKLEY: I do not know, my Lord.

JUDGE LEAVER: I am just looking at Master Bragge's order. On page 12, paragraph 4 of the order records that "it is ordered that the notices served by the claimant's solicitors on the beneficiaries do stand as notices for the purposes of CPR Part 19.8(a)".

MR. GOLDKORN: Certainly that was done. They were all given notice. I think it right to say my recollection is ----

JUDGE LEAVER: Were they told about this case being listed for hearing?

MR. GOLDKORN: Yes, they are aware of this case being listed.

JUDGE LEAVER: They are aware of that, are they?

MR. GOLDKORN: My recollection is that they did support bringing it in the sense that they also wanted the will to be proved in solemn form. I think there is an acknowledgement in the file to that effect.

JUDGE LEAVER: I have not seen those but if that is your recollection ----

MR. GOLDKORN: That is my recollection.

JUDGE LEAVER: If that is your recollection then I do not have as many qualms as I might otherwise have about making the order that you ask for.

JUDGE LEAVER:

31. I will pronounce the will in solemn form and I will make no order in relation to your client's costs and that the costs of Mr. Raymond Green be paid out of the estate.

MR. GOLDKORN: I think that would be a fair order, my Lord.

JUDGE LEAVER: Very well. Is there anything else?

MR. BUCKLEY: No, thank you.

JUDGE LEAVER: Thank you both very much indeed.

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