Contentious probate cases based on forgery are often few and far between. However, the recent, and extremely unusual, case of Wrangle v Brunt [2020] EHWC 1784 (Ch), resulted in both an intriguing judgement and costs order from Master Teverson, and is certain to bring such will contest claims back into the spotlight.
Dean Brunt died on 8 December 2007 having stepped out onto a railway track in front of a train. His mother, Marlene Brunt, applied for Letters of Administration to Dean’s estate on the basis he died intestate. These were granted on 25 July 2008. Strangely, Marlene did not mention this to her sister and brother-in-law, Valerie and Winston (known as Bob) Wrangle, who had been heavily involved in Dean’s life. The only family member she did confide in regarding the affairs of Dean’s estate was Dale Brunt, her other son. She also had a daughter, Venetia who became estranged from Marlene during her childhood and lived with Bob and Valerie.
Family relations started to break down over the years - Bob, Valerie and Venetia on one side and Marlene and Dale on the other. It was some nine years later when Bob and Venetia, Valerie having sadly passed way in December 2010, were informed Dean’s estate had been administered as if he died intestate. This was 8 days before a mediation of some other family litigation. This revelation only fuelled already tense relationships and sparked further disputes within the family, especially as Bob asserted that Dean had in fact left a will. However, it was not until 12 June 2018 when a second copy of the apparent will of Dean, dated 2 March 1999, was discovered (allegedly through a cat in the office knocking over a pile of papers) that the matter really came to a head. A claim was issued by Bob a few days later seeking an order for the Letters of Administration to be revoked in favour of this will.
Marlene and Dale, of course, disputed Bob’s claim, arguing that the will was not valid, either because it was a forgery, or, in the alternative, because Dean lacked the knowledge and approval to make the will. The main focus of the case was the forgery aspect, with little weight being given to the latter before it was dismissed. In turn, Bob also asserted fraud on the parts of Marlene and Dale, claiming that they had stolen or destroyed the original. Such allegations were on the basis they had concealed Dean’s estate was being dealt with under the rules of intestacy, conversations Bob alleged he had with Valerie regarding Dean’s will and the discovery Valerie held a folder reading “Dean’s will”, written in her own handwriting, which was found empty by Bob many years after his death. With such serious accusations from both parties, much of the case had to turn on the probability of events and the credibility of the witnesses.
One of the main difficulties for Bob was that the purported will was dated 1999 but in it, Dean had bequeathed his share in the family farm. However, he did not inherit a share in the farm until 2004. There was not a regular attestation clause (which, if included creates a presumption that it was signed properly) and it contained numerous spelling errors. There was also some characteristic evidence of Dean that he would not have made a will. He had a relatively low IQ and had no reason to do so, no dependants for example.
The other difficulty for Bob was that Dean’s supposed will had been drafted, and signed as an attorney, by an individual named Howard Day. Howard was not a qualified solicitor, although he often let people believe otherwise. In 2003, Howard was convicted of fraud, receiving a prison sentence, for a matter unrelated to this, but it affected his character. There was also evidence that he had falsified documents after death in other cases. The witnesses of the will were also associates of Howard’s. There was also evidence that Howard’s diary (which contained in it a reference to the will signing) had been doctored at a later date. Handwriting experts concluded this entry was made in it much later than any others and in a pen not used elsewhere at all in the diary.
Therefore, not only had Dean’s apparent will only surfaced a decade after it was supposedly prepared, with errors and terms which did not make sense given the date of it, but the individual involved in such preparation was known for dishonesty.
Despite that, Master Teverson ruled in favour of Bob and ordered for the revocation of the Letters of Administration. This was mainly because Bob produced multiple, and importantly independent, witnesses to attest to the fact Dean had made a will before his death, alongside credible and believable evidence provided by himself and Venetia. On the other hand, the judge was unpersuaded by the evidence of Marlene Brunt who appeared somewhat disassociated with the claim, leaving the defence to be shouldered by Dale alone.
Based on the evidence provided, Master Teverson held it was likely that Dean had given his will to Valerie, and that Valerie had passed the will on to Marlene, who, having perhaps genuinely believed it was Howard’s will and not Dean’s (as she attested), discarded it. As a result, whilst he did not go as far to hold Marlene’s actions as fraudulent (nevertheless, her less than transparent actions did not go ignored, and she was removed as executor, an independent professional being appointed in her place), he was convinced that the will presented was not a forgery (a reminder that forgery requires the highest standard of proof being beyond a reasonable doubt) and that, therefore, the Letters of Administration were ordered to be revoked for the will to take effect.
Turning to the matter of costs, given the wide divergence between the parties’ submissions, judgement on costs was reserved to enable Master Teverson sufficient consideration of these. Whilst the Claimant, being successful in securing the will’s validity, proposed that the status quo of “costs follow the event” was observed (i.e. the loser pays the winner’s costs), the defendants proposed alternative costs based on the exceptions which apply to the general rule in the context of probate claims (as per Spiers v English [1907] P 122) which are as follows:
- Where the person who made the will, or persons interested in the residue, are the real cause of the litigation, then the costs can be taken from the estate; and
- If the circumstances lead to a reasonable investigation, then each party may be responsible for their own costs.
Master Teverson was persuaded to rely on the first of the two exceptions due to the particularly peculiar nature of this case and Master Teverson being reluctant to burden the defendants with high costs given the fact the case had largely been decided on an inference (as referenced above). However, what appears to have been the real clincher for his decision was the giant question mark over much of the conduct of Howard, who was described as a “run[ning] through this case like a stick of rock”. In a nutshell, Master Teverson held Howard, and thus Dean, responsible – Howard’s actions being an extension of Dean’s initial actions in instructing him. Therefore, however farfetched some may see this reasoning, the deceased could arguably be considered to be the true cause of the litigation.
This judgement and order has now however been set aside on appeal, pending a re-trial which is expected to take place in Autumn 2021. The original trial had to be cut short from 8 to 3 days because of the start of the lockdown due to the COVID 19 pandemic in March 2020. Key witnessed were therefore not able to be cross examined. In addition, seeing the media publicity of the judgement, three more independent and unrelated witnesses came forwards to say that they had had conversations with Dean post 1999 when he told them he had not made a will. Finally, the appeal judge had concerns about the approach in which the Master assessed the evidence.
