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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fuller v Strum [2001] EWCA Civ 1879 (7 December 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/1879.html Cite as: [2002] WTLR 199, (2001-02) 4 ITELR 454, [2002] 1 WLR 1097, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] WLR 1097, [2002] 1 FCR 608 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
Mr Jules Sher Q.C.
Strand, London, WC2A 2LL Friday 7 December 2001 |
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B e f o r e :
LORD JUSTICE CHADWICK
and
LORD JUSTICE LONGMORE
____________________
FULLER |
Appellant |
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- and - |
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STRUM |
Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Jack Mitchell (instructed by Messrs Embertons of Enfield) appeared for the Respondent
____________________
Crown Copyright ©
LORD JUSTICE PETER GIBSON:
"this was a source of irritation and anxiety to [Geoffrey] who was concerned as to what would happen and who would be responsible for all those works if the intended purchase went off for any reason. Moreover, [Geoffrey] was not pleased about the undervalue."
In fact Michael paid for all the conversion works, which indeed was Geoffrey's belief, as he himself said in evidence. 31 March was an eventful day. In addition to the completion of the sale of the house to Michael, the Testator executed two documents, one called "Receipt and Undertaking" and the other the Testator's Will which would appear to be the only Will he ever executed.
"RECEIPT AND UNDERTAKING
I, MAX STRUM, of 162 Glengall Road, Woodford Green, Essex, hereby confirm that I have on this 31st day of March 1989 received from Mr. Michael Fuller, also of 162 Glengall Road, Woodford Green, the sum of £15,000 (Fifteen thousand pounds) in cash, and I hereby undertake to use and/or invest that money on his behalf, and promise to repay that money (plus simple interest of 10% per annum, whether or not interest rates or property values rise or fall) on the 31st day of March 1999, i.e. a guaranteed total sum of £30,000 (Thirty thousand pounds).
If, God Forbid, Michael should die before 31/3/99, his wish is that the principal of £15,000 (plus accrued simple interest at 10% per annum, calculated from the date hereof up to and including the date of his death) is to be paid to, and shared equally between, his sister, Mrs. Vivienne Cummings, and her two daughters (Miss Sarah Cummings and Miss Michelle Cummings), all of 162 Glengall Road, Woodford Green.
In, God Forbid, the event of my death before 31/3/99, then I hereby request the Executors or Administrators of my Estate to repay the principal of £15,000 (plus accrued simple interest at 10% per annum, calculated from the date hereof up to and including the date of my death) to Mr. Michael Fuller at the earliest possible time.
Copies with:-
MAX STRUM
CLARA TEITLER
ISAAC AGHAJANOFF"
"This is The Last Will & Testament
of me MAX MOSES STRUM
of 162 GLENGALL ROAD, WOODFORD GREEN,
in the County of ESSEX made this 31ST (THIRTY-FIRST)
day of MARCH one thousand nine hundred
and EIGHTY-NINE.
I hereby revoke all Wills and Codicils made by me at any time heretofore. I appoint
MICHAEL FULLER
to be my Executor, and direct that all my Debts and Funeral Expenses shall be paid as soon as conveniently may be after my decease.
I give and bequeath unto BETTY GRIFFIN OF 144, HIGHAM HILL ROAD, E.17, MY VERY LOYAL, LOVING FRIEND AND COMPANION FOR MANY YEARS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. I GIVE AND BEQUEATH UNTO VIVIENNE CUMMINGS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. I GIVE AND BEQUEATH UNTO SARAH CUMMINGS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. I GIVE AND BEQUEATH UNTO MICHELLE CUMMINGS THE SUM OF £6,000 (SIX THOUSAND POUNDS) FREE OF TAX. VIVIENNE AND HER DAUGHTERS HAVE ALWAYS WELCOMED ME INTO THEIR HOME, GIVEN ME MEALS AND OFTEN TAKEN ME OUT. I KNOW THEY WILL REMEMBER "UNCLE MAX" WITH AFFECTION. I GIVE AND BEQUEATH UNTO MICHAEL FULLER THE SUM OF £10,000 (TEN THOUSAND POUNDS) FREE OF TAX. (THE FOUR LAST NAMED BENEFICIARIES ALL RESIDE AT 162 GLENGALL ROAD, WOODFORD GREEN.) I HAVE KNOWN MICHAEL, AND OUR FAMILIES HAVE BEEN FRIENDS, FOR OVER 40 YEARS. HE HAS BEEN A LOYAL AND TRUSTED ALLY AND CONFIDANTE OF MINE AND I WILL NEVER FORGET HIM TELLING ME THAT SHOULD I, GOD FORBID, EVER NEED A KIDNEY TRANSPLANT, HE WOULD NOT HESITATE IN DONATING ONE OF HIS TO ME. THOSE WERE THE KINDEST WORDS ANYONE HAS EVER SAID TO ME. MICHAEL WAS ALMOST LIKE A SON TO ME AND I KNOW HE WILL REMEMBER ME WITH GREAT AFFECTION. THE £15,000 (FIFTEEN THOUSAND POUNDS) OF MICHAEL'S MONEY THAT I AM HOLDING IS THE SUBJECT OF AN EARLIER DOCUMENT. I HAVE BEEN THINKING OF LEAVING THE RESIDUE OF MY ESTATE TO CHARITY, AND NOT TO MY ADOPTED SON GEOFFREY. IN ALL THE YEARS I NURSED MY WIFE, HIS MOTHER, HE NEVER ONCE RAISED A FINGER TO HELP ME. I WILL NEVER FORGET OR FORGIVE THAT ON LEAVING THE HOSPITAL WHERE HIS MOTHER HAD JUST DIED, HE SAID TO ME, "MUM SAID YOU SHOULD SELL THE HOUSE AND GIVE ME HALF THE MONEY." I HATE HIM LIKE POISON, THAT IRISH BASTARD. HOWEVER, ON REFLECTION I DO GIVE AND BEQUEATH, AFTER PAYMENT OF ALL TESTAMENTARY EXPENSES AND ALL TAXES, THE RESIDUE OF MY ESTATE UNTO GEOFFREY STRUM, ALBEIT VERY GRUDGINGLY."
(The words in lower case are words printed in the Will form. The words in capitals are in manuscript.)
"I cannot accept that the Will, prepared in the hand of the claimant, was read over to Max Strum or by him in the way the claimant has told me that it was."
That conclusion of the judge is expressed in a noticeably limited way. The second central reason was that the judge did not believe that he had been told the whole truth about the monetary transaction which took place on 31 March 1989 in relation to the £15,000.
"I find that the language of the will is so out of character with the picture of Max Strum that I have gleaned from the evidence, and so inconsistent with the gift of £16,000 to the defendant and with the other evidence of the relationship between father and son, that I have serious doubts as to whether Max Strum knew and approved of anything in the will signed by him on 31st March 1989 other than the gift of a legacy of £6,000 to Betty Griffin."
The judge found that he knew and approved of only two things, namely that he was making a will and was leaving Mrs. Griffin £6,000. The judge said that Michael had failed to remove the suspicion which had been aroused in the court and so he pronounced against Michael's appointment as executor and all the dispositive contents of the will other than Mrs. Griffin's legacy.
"So long as he read the document he would have had no difficulty in taking in its provisions, even if someone else had prepared it."
Lloyd J. said that apart from the gift of residue to the propounder there was not much in the will to provoke suspicion in itself as being different from what one might expect the deceased to do. Lloyd J. found that the evidence showed the deceased to have been alert and not likely to allow himself to be persuaded to do what he did not want to do. On that evidence the will was admitted to probate. We are told that the judgment in Hart v Dabbs was provided to Mr. Sher Q.C. after he had reserved, but before he had delivered, judgment. But the judge makes no reference to it in his judgment.
(1) Michael told the truth and the Will was made with the knowledge and approval of the Testator;
(2) Michael deceived the Testator as to the contents of the Will save for the legacy to Mrs. Griffin;
(3) the Testator did not care what Michael put in the Will, save for the legacy to Mrs. Griffin.
"The conversation you're referring to occurred when, in round about January 1989, I just said that Mum promised me, you know, she said that she wanted to protect me, there's half the house, that's what she said. But that was the sum, the whole sum, and then he said he wanted to give me some money, that's all."
The judge accepted Geoffrey's evidence on this. He also accepted that the conversation was in the Testator's mind in March 1989 and was mentioned to Michael and that that is how it found expression in the Will but with the distortion that it happened on the very night of the death of the Testator's wife. The judge said that he could not decide how the distortion came about, but he did not accept that the Testator knew and approved of it.
"I've shown that I worked all those years, although I wasn't working in a 9 to 5 job. He was only concerned that I'd – he wanted a traditional route, which I wasn't that type of person to hold down a traditional job. I wasn't of that mentality, being more of an artistic persuasion than he was, so he didn't understand where I was coming from that's all I can say."
The judge had no doubt that the Testator wanted Geoffrey to achieve more than he did achieve, and found that the Testator did not like Geoffrey pursuing a singing career and did not respect Geoffrey's interests in singing and drama. The judge said:
"This was the background to what plainly was not an easy relationship at the best of times."
Chadwick LJ:
" . . . I find that the inspiration to leave something to [Mrs Griffin] must have come from Max Strum himself and that he knew and approved of two very simple things on 31st March 1989, namely that he was making a will and was leaving Betty Griffin £6,000 in it. I do not know what else he knew and approved of on that day. I cannot help but seriously doubt whether the remainder of the will received his approval."
That conclusion may, I think, fairly be described as surprising. The judge accepted that the testator knew that he was making a will. He accepted that the testator knew that the will contained a legacy to Mrs Griffin; and that the testator not only approved of that legacy but was the inspiration for it. But he did not accept that the testator knew and approved of the other contents of the home-made document which he believed to be his will.
"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."
"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 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."
"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 Lord Simonds and Lord Reid."
"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."
"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, 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 this, at page 296:
"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."
Lord Justice Longmore :
"It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person preparing the will. 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."
The suspicion is that the testator may not have known or not have approved the contents of the document.
Order: Appeal allowed. We think it appropriate that the unsuccessful lodger of the caveat should pay the costs here and below, so that Geoffrey Strum will have to pay the costs of Mr Fuller here and below. Mr Fuller, as executor, is entitled to take costs out of the estate, but we do not think he should take more than what is in the residuary estate – in other words after the legatees – until he has pursued his claim against the Legal Aid Board, which he would have to do by going to a costs judge and seeking an order from the costs judge. Public funding assessment of the Respondent's costs.