![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Chancery Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Legg & Anor v Burton & Ors [2017] EWHC 2088 (Ch) (11 August 2017) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2017/2088.html Cite as: [2017] 4 WLR 186, [2017] EWHC 2088 (Ch), [2017] WLR(D) 618 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2017] 4 WLR 186]
[View ICLR summary: [2017] WLR(D) 618]
[Help]
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
2 Redcliff Street, Bristol, BS1 6GR |
||
B e f o r e :
(Sitting as a Judge of the High Court)
____________________
Ann Legg Lynn Burton |
Claimants |
|
- and - |
||
Aaron Burton Victoria Brooks Michael Burton |
Defendants |
____________________
Raj Sahonte (instructed by Barcan+Kirby LLP) for the Defendants
Hearing dates: 2-3 August 2017
____________________
Crown Copyright ©
HHJ Paul Matthews :
Introduction
Procedure
"7. The execution of the Mutual Wills was subject to the agreement set out below.
8. Bernard Clark died on 16 May 2001, and under the terms of his Mutual Will, and in accordance with the agreement reached between him and the Deceased and as reflected by the Mutual Wills, all of his Estate passed to the Deceased. A Grant of Probate was not necessary to achieve this.
9. Despite the agreement reached between the Deceased and Bernard Clark, as reflected by the Mutual Wills, the Deceased executed the Later Will on 12 December 2014, by which she bequeathed the joint estate of Bernard Clark and herself to numerous Beneficiaries.
10. It had been agreed by the Deceased and Bernard Clark at the time that they executed the Mutual Wills that neither would revoke their Wills and that neither would be entitled to change the terms of their Wills or to bequeath their joint estates to anyone other than the beneficiaries detailed within the Mutual Wills.
11. That agreement was explained to the first claimant on the 25 July 2000 by both Bernard Clark and the Deceased. Later in the same day, the agreement was also explained to the second defendant by Bernard Clark and the Deceased in the presence of the first claimant."
"It is denied that the Deceased and Mr Clark executed mutual Wills or that any agreement to enter into mutual existed [sic] and the Claimants are put to proof on this matter. The express terms of the 2000 Will, being both contemporaneous and verified by Mr Clark, unambiguously state that the trustees should 'pay [the] residuary estate to [the Deceased] absolutely and beneficially and without any sort of trust obligation', clearly distinguishing the 2000 will from mutual Wills."
Witnesses
Facts
The law
"The doctrine of mutual wills is anomalous. The bequest of his entire estate by a husband to his wife absolutely and beneficially with a gift over of whatever was left at her death could not take effect in accordance with its terms. Either the interest taken by the wife would be limited or the gift over would be void as repugnant to the absolute and beneficial nature of the gift. Similarly the bare promise of the wife to leave her property by will in a particular manner would be unenforceable for any will she then made would be revocable under the Wills Act 1837. In my judgment, if these principles are to be excluded in the case of mutual wills it is essential that there should be a contract to that effect. In my view that is what both principle and the authorities require."
Standard of proof
"Those who undertake to establish such an agreement [ie of mutual wills] assume a heavy burden of proof".
But in fact the standard of proof in a mutual wills case is the usual civil standard, that is, on the balance of probabilities: Re Cleaver deceased [1981] 1 WLR 939, 948. What Latham CJ was apparently referring to was the fact that, where a thing is inherently improbable, it takes more cogent evidence to persuade a court to find that the balance of probabilities does indeed lie in that direction.
"[S]ome things are inherently more likely than others. It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian."
A similar idea had been earlier expressed by Lord Nicholls in the context of family law, as
"the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability": Re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586; see also per Lord Hoffmann in Re B (Children) [2009] 1 AC 11, [5]-[15].
The evidence on the crucial issue
The will itself
"4. MY TRUSTEES shall pay my residuary estate to my Husband BERNARD ROY CLARK absolutely and beneficially and without any sort of trust or obligation
5. IF my said Husband shall have predeceased me then my Trustees shall pay my residuary estate to such of my Daughters [the claimants] as shall survive me and if more than one in equal shares absolutely Provided that if either of them shall have predeceased me but leaving a child or children living at my death my Trustees shall pay the share of my residuary estate to which they would have been entitled had they survived me for such child or children as and when they attain the age of twenty-one years and if more than one in equal shares absolutely".
The evidence of the claimants
"5. … whether everything was 'set in stone' because he said neither he nor my mother wished for anything to be changed again. Mr Reid told my father that the law cannot stop someone from changing their Will in the future. He mentioned that he was aware that my mother and father never wanted to change the terms again, and that their trust in one another not to make any future changes was enough.
6. Happy that everything was as it should be, my mother and father signed multiple copies of their Wills. Mr Reid and his secretary then also signed them as witnesses. Mr Reid then took an original copy of each Will with him for safekeeping at his office."
"7 … they also explained their agreement that these Wills were to be 'set in stone' and never changed again. They said that they had decided to make a promise to each other never to change the Wills again so that each could feel confident that their wishes would still be respected after the other had died."
"8. … With my parents making such a point about the Wills never being changed again, I was concerned that the documents did not make this point. I am no expert in the drafting of Wills, but I would have expected there to be some mention of this agreement given that my parents had made such a point of it. I asked my Father (as my mother had gone into the kitchen at this point) if maybe a clause should have been put in the WWills to prevent them from changing things in the future. I asked what would happen if one of them should die, and the other remarry. What would prevent the survivor from changing the terms to benefit his or her new spouse? My father stated that Mr Reid did not seem concerned about this possible complication. He reminded me that he had asked Mr Reid about the wills being 'set in stone' and I had heard Mr Reid's answer. I said I didn't think the answer was satisfactory, but my Father seemed dismissive and told me that there was no need for any further complication as both he and my Mother had discussed all scenarios and promised each other that each one would adhere to the other's wishes. He said that they had already agreed that they would not make any further changes to their wills, and that they would not revoke them – even after the other had passed away. He said he had no intention of making further changes, and he knew that my Mother didn't either because he had already promised her and she had already promised him.
9. My Mother actually heard this comment, and she shouted through from the kitchen 'No I bloody won't change it either'…"
"8. They told us that they were certain that the terms expressed in their wills were what they wanted to collectively achieve, and that as a consequence, they had agreed that – even if their circumstances changed in the future – they would never change their Wills again. They were concerned to make sure that their intentions is to ultimately benefit Ann and I would not be frustrated, so that one or other of them could not subsequently change their minds and alter the terms of provision once the other had passed away. My Father said that they had both discussed this in great detail, and had made solemn promises to each other to make sure that this did not happen."
"9. At one point during this discussion, my sister asked my dad if there should have been a clause in the Wills confirming the binding agreement never to change the terms. He made reference to something that the solicitor had said on this subject, and re-assured Ann not to worry as they had both made promises to each other. He said that he had solemnly promised my Mother that he would never change the terms again, and that she had also made the same promise to him. He said he would not have made the will in the terms that he had if she did not promised to abide by their agreement. He said he was confident that my Mother would respect his wishes.
10. The room we were in was the backroom to the house, which is open planned, and my Mother was stood in the kitchen area. Upon hearing this she responded quite angrily by saying 'No I bloody won't change it'. She took pains to remind Ann and I that they had only purchased their house in the first place so that they could provide Ann and I in the future, and so their promises that their wills were 'set in stone', and would never be changed, was the culmination of plans that they had started around 14 years earlier."
"It is easy to allege such an agreement after the parties to it have both died, and any court should be very careful in accepting the evidence of interested parties upon such a question. Perhaps most husbands and wives make wills 'by agreement,' but they do not bind themselves not to revoke their wills. They do not intend to undertake or impose any kind of binding obligation. The mere fact that two persons make what may be called corresponding wills in the sense that the existence of each will is naturally explained by the existence of the other will is not sufficient to establish a binding agreement not to revoke wills so made (In re Oldham [1925] Ch 75; Gray v Perpetual Trustee Co. [1928] AC 391; and see Lord Walpole v Lord Orford (1797) 3 Ves 402, where attention is directed to many considerations which may go to show that in a particular case no binding agreement was intended)."
"It is clear from [Birmingham v Renfrew], if from nowhere else, that an enforceable agreement to dispose of property in pursuance of mutual wills can be established only by clear and satisfactory evidence. That seems to me to be no more than a particular application of the general rule that all claims to the property of deceased persons must be scrutinised with very great care. However, that does not mean that there has to be a departure from the ordinary standard of proof required in civil proceedings. I have to be satisfied on the balance of probabilities that the alleged agreement was made, but before I can be satisfied of that I must find clear and satisfactory evidence to that effect."
"64. In my judgment, a Court has to approach oral evidence of the kind that was given by and on behalf of the Claimants in this case warily and with appropriate scepticism. First, I bear in mind the inherent improbability of a testator being prepared to give up the possibility of changing his or her will in the future, whatever the change of circumstances. Secondly, I take into account that a number of the witnesses who gave evidence that the sisters said they had made an agreement and that the wills could not be changed had a financial interest in the outcome of the case. I do not mean by that that I think for a moment that anybody was being dishonest. My impression of all the ladies who gave evidence before me was that they gave their evidence honestly and scrupulously and, having taken the oath, would have been shocked at any suggestion that they might do otherwise. Nevertheless, one is aware from experience of the ability of the human mind to 'remember' what a person wishes to remember.
65. Thirdly, one is only too well aware of how easy it is, when witness statements are being drafted by solicitors, for the recollections of the witnesses to be subtly improved in the direction the party calling them wishes to go. There are some kinds of case, of which perhaps this is an example, where it would make it easier for the Court to assess the evidence if it were given in chief viva voce instead of by carefully drafted witness statements.
66. Fourthly, if the two sisters told many of their friends and relations about their agreement and if, as Mr. Last said Ethel told him they had, they told their Solicitor, it is remarkable that he did not include any recital of it in the wills he drafted for them or make any other record of it…"
"16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been 'refreshed' by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."
"I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document one or two decades ago) but upon a reconstruction of what she would have done having regard to her inability to recollect the Deceased's attendance at Battersea and her willingness to do whatever Mr Walters requested. I am also alert to the danger that recollection can be coloured by the context in which it is invited."
Other evidence
"But to the later events I do attach considerable importance. First there was the 'That has settled' or 'That has cooked his hash' incident. That suggests to me that the testator did think that he had tied everything up and that that did have the testatrix's tacit agreement. Then there are the events after the testator's death, in particular the two conversations which the testatrix had with Mr. Arthur Cleaver, the first on the evening of the testator's death and the second at the end of June 1977. I have already dealt with those conversations at some length. Having added them to all the other evidence in the case I find that I am in the end fully satisfied as to the existence of an enforceable agreement. I should, however, add that I do also attach some importance to the fact that within three months after the testator's death the testatrix did make a fresh will which faithfully followed her 1974 will in every material respect. There was no need for E her to make a fresh will. It could perhaps be partly explained as a tidying up operation and I can understand that she might not have wished to have a will which made any mention of her deceased husband. However, in the absence of any evidence as to the circumstances in which that will was made it must I think be of some significance that the testatrix apparently regarded herself as being under more than a moral duty to dispose of her estate in accordance with her 1974 will."
"32. Direct evidence is not available on the two critical points in Martin's claim: the existence of a mutual wills agreement between Denny and Laura and the execution of a will by Laura pursuant to it. No will, or copy will, or instructions for a will relied on as the mutual will made by Laura during Denny's lifetime has been produced. There is no indication in Denny's professionally drafted will or in the solicitor's attendance note that it is a mutual will.
33. The deficiency of direct evidence and the piecemeal nature of the evidence relied on by the judge for his conclusion do not, in my view, defeat Martin's claim or undermine the judgment. It is, of course, unfortunate that Denny's personal and financial papers were unavailable as direct evidence. However, evidence can be evaluated by a court and facts can be perceived and proved by the process of drawing reasonable and probable inferences from other facts, such as primary facts specifically found, undisputed events and uncontroversial circumstances surrounding them. All of those matters may be safe points of departure for the judicial process of drawing inferences that can lead to an evidentially satisfactory conclusion."
"36. I think that the judge both made, and satisfactorily explained how he made, reasonable and proper inferences from the facts, events and circumstances summarised earlier in this judgment about what was probably agreed to be done and probably done by Denny and Laura about the disposition of their estates to each other and to their respective sons.
37. In his detailed critique of the evidence (and the lack of it) Mr Norris paints a picture of a sparsely documented case based on unreliable oral evidence about events of almost 25 years ago involving two principal parties now both dead. Retrospective critical analysis is, of course, a necessary part of the process of evaluating the evidence and deciding what has been proved on the balance of probabilities. The critical process should not, however, deflect the court from the incontrovertible fact that, at the heart of the case, there was a testamentary predicament which was more likely to have been addressed than ignored by this elderly couple, each with a son from a previous marriage with prospects of inheritance of their parent's assets. The probabilities are that they discussed the situation and reached an agreement along the lines alleged by Martin for the re-ordering of their affairs following the marriage. To me the judge's findings on what was probably agreed and done have the ring of truth. They are based on reliable and satisfactory evidence given by Martin, which the judge was entitled to accept, even though he did not accept other aspects of his evidence; on the timing and contents of Denny's last will; on Mundays' note of what they were told by Denny about Laura making a will on their marriage; and on Laura's unsent letter and her telephone conversations with Martin."
Conclusion on the evidence
Conclusion