2019 has seen an exciting year in contentious probate and we have seen some rare cases on unusual areas of law.
Scarle v Scarle [2019] EWHC 2224 (Ch)
John and Anne Scarle died at home from hypothermia in October 2016 but were not found for a few days and so the court was required to determine the order of deaths.
The usual presumption when two or more people die in circumstances when it is impossible to determine the order of deaths (for example, in a car crash) is that the younger survived the elder. This is known as the commorientes (literal translation meaning ‘simultaneous deaths’) rule (S184 Law of Property Act 1925).
John Scarle was aged 79 at the date of death and Anne was 69. In this case therefore, the effect of the usual presumption would be that John would be deemed to have died first. On the basis that John left his estate to Anne and then Anne on to her children, the effect of the rule is to disinherit John’s children from the couple’s £300K estate; hence the dispute.
Ultimately, it was held that the commorientes rule should apply.
Blyth v Sykes [2019] EWHC 54 (Ch)
In another unusual case on the revocation of wills, it was held by the High Court that a certified copy of a deceased’s will would be sufficient to prove to probate where the original will could not be found after death. This is despite the prima facie presumption that where an original will cannot be found after death, the testator deliberately destroyed it with the intention to revoke, which is what the claimant sought to argue. This is because the clearest evidence of revocation is required.
Burgess v Penny & Anr. [2019] EWHC 2034 (Ch)
In a rare but much publicised case on formalities Freda Burgess, had three children and her last will was prepared by her son and was in his favour and his sisters challenged its validity. The will appeared to have been duly executed on its face but one of the witnesses gave an emphatic account that he had not seen the deceased or the other witness sign the will. Accordingly, the presumption of due execution was rebutted and the will was found to be invalid.
Ninian v Findlay & Ors [2019] EWCH 297 (Ch)
This case represented a landmark decision in the law relating to forfeiture and assisted suicide.
The well-established forfeiture rule provides that if a person unlawfully kills another, they are not able to inherit from their estate. Dunbar v Plant [1998] Ch 412 is the existing legal authority, and in this case, it was held that the forfeiture rule applies to assisted suicide cases, as assisted suicide is a crime under section 2 of the Suicide Act 1961.
In this case, Mrs Sarah Ninian made an application under section 2 of the Forfeiture Act 1982, to have the rule excluded. Her husband had made arrangements to end his life, with which she assisted. He was 84 and had been sadly diagnosed with Progressive Supra-nuclear Palsy (“PSP”), a progressive, incurable disease, causing difficulties with balance, movement, vision, speech and swallowing. He was described as a successful businessman, intelligent, decisive and fiercely independent.
The court held that while she did not specially carry out an act which assisted the suicide, she did assist with the administration and travel, such that, without her involvement, her husband would not have been able to attend the clinic and so, an offence had been committed, and the forfeiture rule applied. The court went on to consider whether or not it should apply its discretion in order to modify or exclude the effect under S2. The court felt that this was a compelling case to grant relief. The decision of the police not to prosecute was an important factor. They had been married for 34 years, and the evidence suggested a strong and loving relationship; he had a strong independent will and retained capacity, and he recorded his intentions clearly; they had taken advice, and she had not committed any act other than to assist. Her brothers would have benefited from the estate had the forfeiture rule applied and they, in fact, supported her application for relief.
This issue is never far from the headlines. In the context of the forfeiture rule, it is an interesting, and arguably welcome, development and one which, given an increasingly ageing population and advances in medical treatment prolonging life, is likely to become more and more relevant. The forfeiture rule still does have its place to ensure there is no financial incentive to suicide and each case will turn on its own facts but the judge in this case even went as far as to say: “On one view, although not a course of action the court can endorse, she did what many persons would do for a loved one”.
Rea v Rea [2019] EWHC 2434 (Ch)
The final paragraph of Master Arkush’ judgement in the recent case of Rea v Rea (2019 EWHC 2434 Ch) serves as a salutary reminder for those wishing to seek to challenge the validity of a will of the difficulties they will face.
“On one level it is understandable that the defendants feel disappointed, upset and resentful that they have not benefited from their mother's will. In my judgment they have allowed these emotions to override a more considered reflection that Mrs Rea had reason to benefit Rita for all the care that Rita had given her over six years and more as her principal carer. But... it is not my task to decide whether the 2015 Will was justified or fair. I am only required to decide if it is valid… I find that it is valid, and that it should be admitted to probate.”
The case concerns a will made by Anna Rea in 2015 leaving her estate to her daughter Rita. She died the following year aged 85. Rita’s three brothers challenged the validity of the will on an array of grounds including lack of testamentary capacity, lack of knowledge and approval, undue influence and fraudulent calumny. The court found that the will was valid and was simply what Mrs Rea wanted; which was just not to the liking of her sons
As is the current trend in these sorts of cases, the court gave great weight to the evidence of the solicitor who prepared the will and the deceased’s GP who had provided a contemporaneous capacity assessment as part of the preparation of the will, and both gave evidence in support of its validity; both in terms of her having the requisite capacity and it being made of her own volition and her understanding its terms. Recent case law has held it to be a ‘very strong thing’ to overturn a will which has been prepared by an independent experienced solicitor. The brothers had no other evidence, save for their own interpretation (and in the most part Master Arkush found their evidence incredible), to counter it.
Meanwhile, the consistent flow of proprietary estoppel cases has continued and we anticipate 2020 will only see the number of those types of claims and cases increase. In terms of a round up of those cases, Habberfield stands out due to the way in which the award, which was ultimately given, was approached in that it was a much more analytical consideration than we have seen previously. Moving away from proprietary estoppel but still retaining the farming link, Kingsley v Kingsley dealt with both a partnership dispute and tenancy issues which had arisen on death.
Habberfield v Habberfield [2019] EWCA Civ 809
The case of Habberfield made its way to the Court of Appeal earlier this year to re-examine the award due to Lucy Habberfield, the deceased’s daughter, who had been successful with her proprietary estoppel claim. Lucy’s mother appealed the award made to Lucy on grounds that:
- Lucy had historically refused to accept an offer to run the farm in partnership with her parents;
- The extent of the award made in Lucy’s favour was not reflective of the detriment suffered by her and as such, the aware was over and above that to which Lucy should be entitled; and
- The Judge was incorrect in determining that the method by which the award should be satisfied should be a cash sum during Lucy’s mother’s lifetime.
The appeal was dismissed and in giving judgment, Lord Justice Lewison recited a helpful reminder about the building blocks of the proprietary estoppel doctrine.
Having regard to the specific grounds of appeal, Lord Justice Lewison was clear to remind the parties of the task in hand which, rather than being ‘would the same order be made again based on the evidence’ was in fact, ‘was the decision by the Judge at first instance, within the discretion afforded to him?’ Lord Justice Lewison reluctantly gave his leading judgment which determined that the first instance Judge was within his discretionary remit and that “Like all cases in which the court decides how to satisfy an equity, it must exercise a judgmental discretion, and may do so in a flexible way”.
Kingsley v Kingsley [2019] EWHC 1073 (Ch)
The crux of the matter in the Kingsley case was the examination of the ability of a surviving partner of a partnership between siblings in respect of a farming business, to purchase the deceased’s partner’s share of farm land. The dispute had arisen due to a disagreement between the deceased’s widow Karim, who was seeking an order for sale and the deceased’s sister and former business partner Sally, who wanted to purchase the farm land.
The expert evidence before the court and given orally, was key to the decision which was ultimately made by Deputy High Court Lance Ashworth QC. There was a fine balance to be struck if the purchase by Sally was to be allowed, in that it did not require there to be no risk to Karim that the purchase price was too low but in contrast, the extent of the risk in the Court setting a purchase price based on the expert evidence, must be considered acceptable so as to allow Deputy High Court Lance Ashworth QC to make an order in Sally’s favour.
An order was made allowing Sally to purchase the farm land for £3,245,000 on the condition that the purchase completed within 2 months. It was ordered that thereafter, the farm land be placed on the open market and as such, both Sally and Karim could purchase it.
The case highlights the importance of expert evidence and demonstrates that it is key to ensure that an expert with the relevant knowledge will not only produce a strong report but also stand up to the scrutiny of the Court when giving oral evidence.
