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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sherrington & Ors v Sherrington [2005] EWCA Civ 326 (22 March 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/326.html Cite as: [2005] WTLR 587, [2005] EWCA Civ 326 |
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A3/2004/1606A |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Chancery Division
Lightman J.
HC03CO2402
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WALLER
and
LORD JUSTICE NEUBERGER
____________________
DALIAH DORIT SHERRINGTON DONNA KARINA SHERRINGTON RAMON GERRARD DAVID SHERRINGTON |
1st Respondent 2nd Respondent 3rd Respondent |
|
- and - |
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YVONNE SHERRINGTON |
Appellant |
____________________
Mr. Alan Boyle Q.C. and Mr. Paul Teverson (instructed by Messrs Goldkorn Mathias Gentle of Bloomsbury) for the Appellant
Hearing dates : 21, 22 and 23 February 2005
____________________
Crown Copyright ©
Lord Justice Peter Gibson (giving the judgment of the court to which all the members of the court contributed):
The facts
"THIS IS THE LAST WILL AND TESTAMENT of me RICHARD MICHAEL SHERRINGTON of PENTHOUSE 19, BICKENHALL MANSIONS, BICKENHALL STREET, LONDON W1U 6BP AND I HEREBY REVOKE all former Wills and testamentary dispositions made by me
1) I APPOINT my WIFE YVONNE ROSE SHERRINGTON to be the Executor [sic] and Trustee of this my Will PROVIDED THAT if he [sic] shall be unable or unwilling to act in either such capacity or if he [sic] shall predecease me I APPOINT my daughters DALIAH SHERRINGTON and DONNA KARINA SHERRINGTON to be the Executor [sic] and Trustee [sic] of this my Will
2) SUBJECT to the payment of my just debts funeral and testamentary and other expenses and any capital duties payable on or arising from my death I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate not otherwise disposed of UNTO YVONNE ROSE SHERRINGTON
3) SHOULD my said wife fail to survive me by seven days or (if having so survived me) she shall disclaim any part or parts thereof (for which purpose my estate shall be deemed divisible into as many parts as shall be required to give effect to this provision) then I GIVE my said net estate or such disclaimed parts as the case may be unto my said daughters and my son RAMON SHERRINGTON
4) MY TRUSTEES shall have the following powers:-
(a) My Trustees shall have the same full and unrestricted power of investing in all respects as if they were absolutely entitled thereto beneficially and subject to no restriction with regard to advice or otherwise in relation to investment and without prejudice to the generality thereof they shall have power to buy sell or retain any freehold or leasehold property whether as an investment or a residence for any beneficiary
(b) In addition to all other powers conferred by law my Trustees shall have power at any time and from time to time to raise capital and pay or apply the same to or for the benefit of any minor beneficiary hereunder whether or not they shall in so doing exhaust the Trust Fund
(c) My Trustees may insure to the full replacement value thereof against loss or damage by fire or any other usual risk any property comprised in my estate for the time being or in any Trust fund created hereby paying the premiums out of the income or capital of my residuary estate and any money received by my Trustees under any such policy shall be treated as though it were proceeds of sale of the property insured
5) UPON my death it is my wish that my body be BURIED TOGETHER WITH MY WIFE
IN WITNESS whereof I the said Testatrix [sic] have hereunto set my hand this 7th day of September Two Thousand and One
SIGNED by the Testatrix [sic] in our presence and then by us in hers [sic]".
(1) in cl. 1, the deceased was named as Executor and Trustee;
(2) also in cl. 1, if he (called "she") was unable or unwilling to act or predeceased Yvonne, she appointed her two daughters to be "the Executor and Trustee"; and
(3) in cl. 3, if the deceased did not survive Yvonne by seven days or disclaimed, she gave her net estate or such disclaimed parts to her two daughters.
The proceedings
"40. In my judgment what happened was that (unknown to and unnoticed by Mrs Butt and Mr Thakkar) the Deceased signed the Will and he then merely told Mrs Butt and (through Mrs Butt) Mr Thakkar to sign and write their addresses where indicated. The Deceased did not draw their attention to his signing the Will nor did he acknowledge his signature or draw attention to it. Nor did he tell them that they were to sign as witnesses. No explanation was given of the nature of the document to be signed or the purpose of their signatures. Mrs Butt and Mr Thakkar signed with no intention beyond complying with the Deceased's instruction. They had no intention, and no reason to intend, to verify or attest the Deceased's signature. For them signing was a matter of no significance and it was for that reason that Mrs Butt did not even mention the incident to Mr Butt. The significance only emerged as a surprise to her after the Deceased's death."
"46. The evidence before me establishes clearly that: (1) the Deceased's relationship with the Defendant by the date of the Will was so bad that it occasioned the Deceased great unhappiness and a deep depression; (2) the Deceased took and expressed the view that his marriage had been a terrible mistake and that the Defendant may only have married him for his money; (3) the Deceased felt deeply antagonistic to the Defendant and spoke of his antagonism in extreme terms; (4) the Deceased was totally committed to the Claimants and was concerned to provide for their future; and (5) the Deceased knew of the history of bad (or no) relations between the Defendant and the Claimants.
47. There are four extraordinary features of the Will and the circumstances of its execution. The first is that by leaving everything to the Defendant the Deceased made the Claimants dependent for any benefit from his estate on the whim of the Defendant a person whom he could not trust to act in this role. The second is that the Deceased (a very wealthy man) committed the preparation of his will to a novice who has never drafted a will in her life before when experienced draftsmen were readily available. The third is that the Will contained a series of obvious typographical errors and the out of place Minority Clause [clause 4(b)]. The fourth is that the Will was prepared in the course of one day in a totally unnecessary rush leading to use as one of the attesting witnesses of a person with such a limited understanding of English that the other attesting witness was required to translate the Deceased's instructions to him."
The appeal
(1) Did the judge err in law or in fact in finding that the Will was not duly executed because of the evidence of Mrs. Butt and Mr. Thakkar that they did not intend to attest that the deceased signed the Will in their presence?
(2) Did the judge err in fact in finding that the deceased signed the Will in the presence of Mrs. Butt and Mr. Thakkar?
(3) Did the judge err in fact in finding that it had not been shown that the deceased knew and approved the contents of the Will?
The first and third issues are raised by Yvonne in her appeal. The second issue is raised by the Claimants in their Respondent's Notice.
(1) Due execution - attestation
"9. No will shall be valid unless
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either
(i) attests and signs the will; or
(ii) acknowledges his signature,
in the presence of the testator (but not necessarily in the presence of any other witness),
but no other form of attestation shall be necessary."
"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."
"At no time did I see Richard sign any of the sheets of paper nor had he signed his name on any of them before I signed"
In para. 7 of her second witness statement she stated her recollection more strongly:
"I am certain that Richard's signature was not on the sheets of paper I signed: I would have recognised Richard's signature from my husband's wage cheques, which Richard signed and which I often banked. I am sure that if Richard's signature had been on the sheets of paper, I would have recognised it and remembered it."
"did you know or did you intend to witness his signature on the document?"
The negative answer which Mrs. Butt gave was inevitable, given her evidence that she never saw the deceased sign. We do not understand, and the judge does not explain, how that answer can be relied upon as evidence of her intention when, as the judge finds, contrary to her evidence, the deceased did sign in her presence and that his signature was already on the document when she signed. True it is that the judge finds that she did not notice his signature, but how can that be credible?
"During the course of tea, Richard's will was mentioned in passing and my husband mentioned that I had signed as a witness to it. I have been told that Howard Sherrington says that upon being told that I had witnessed the will, he asked me to describe what happened. He did not do this and I did not say anything about the occasion. I certainly did not say that I was asked to go into the building or that Richard asked me to sign as a witness to his will because none of this happened."
"He was about to sign it when Mr. Sherrington got angry again indicating that Mrs. Sherrington must sign the document then Mr. Thakkar."
Mrs. Crumley then had a statement prepared on the basis of what Mr. Thakkar told her, but was concerned to ensure that Mr. Thakkar fully understood the statement before being asked to sign it. She asked a former legal executive at Goodman Derrick, Mr. Narshi Parmar, who is a Gujarati speaker, to discuss the statement with Mr. Thakkar in Gujarati. According to Mrs. Crumley's witness statement Mr. Parmar did so and seemed satisfied that Mr. Thakkar had understood the substance of the statement even in English. However, she had the statement translated by a professional translator into Gujarati and that was forwarded to Mr. Thakkar. Mr. Parmar then contacted Mr. Thakkar, who decided not to sign the statement as he did not want to get involved in the family dispute. Mrs. Crumley then spoke to Mr. Thakkar in English and he gave her the impression that the statement reflected his recollection of the facts, but he confirmed that he did not want to get involved. Mr. Parmar signed a witness statement dated 28 September 2002 in which he said that Mr. Thakkar confirmed to him that the contents of the statutory declaration accurately reflected his memory of events and that he was happy with it. Mr. Parmar also said that after Mr. Thakkar received the Gujarati translation, he confirmed to Mr. Parmar that the contents were true and correct. The declaration recorded that, after the deceased had signed a document on a number of pages and asked Mr. Thakkar to sign under the deceased's signature on the final page and to write his address and indicated to Mr. Thakkar where he should sign on the other pages close to the deceased's signature, the deceased becoming angry when Yvonne passed another document to Mr. Thakkar for him to sign without having signed it first herself. Mrs. Crumley in cross-examination by Mrs Talbot Rice specifically recalled Mr. Thakkar describing the incident of the deceased becoming angry. When it was put to Mrs. Crumley that on Mr. Thakkar's evidence, Yvonne had forgotten a couple of pages and that the deceased got cross with her that she had forgotten to hand them to Mrs. Butt and Mr. Thakkar for signature, Mrs. Crumley replied that that was not the impression that Mr. Thakkar had given her.
"Q. As the paper swapping was going on did Mr. Sherrington get cross with Mrs. Sherrington because she had forgotten to pass across some of the sheets?
A. Yes, he was shouting.
Q. Was it because she had forgotten to pass across some of the sheets - -
A. He thinks that one paper was left to be signed, probably that is the reason he got annoyed. He says, I do not understand English very well but he presumes that probably may be the reason.
.
A. He says because he gave him the paper back, it was not signed, so that is why he thinks.
Q. So he remembers that?
A. Yes, I remember.
Q. He remembers one of the sheets not being signed?
A. Yes. He says because one of the papers that was not signed.
MR. JUSTICE LIGHTMAN: And that was the reason for what?
A. He says he does not know the reason.
MR. JUSTICE LIGHTMAN: One piece of paper was not signed, what happened in relation to that paper?
A. He shouted to Mrs. Sherrington that one paper needs to be signed.
MR. JUSTICE LIGHTMAN: Signed by who?
A. By Mr. Thakkar's signature."
It was not put to Mr. Thakkar that what he had told Mrs. Crumley about this incident as recorded in her attendance note and the statutory declaration drafted for him was not correct.
"His evidence was confused, but he did indicate that he recalls seeing the late Mr. Sherrington sign his name on the will."
They recognised that this evidence was contradictory to that of Mrs. Butt who was quite clear that she did not see the deceased sign his name on the Will. Mr. Thakkar was then seen by Mrs. Crumley on 19 August 2002 and in the hour-long meeting she took him through the events, as she put it, "blow by blow" with the assistance of a diagram of the layout of the deceased's office. It is apparent from Mrs. Crumley's attendance note and the statutory declaration that she prepared for Mr. Thakkar, confirmed by her oral evidence, that he told her that he had seen the deceased signing "the document" on all pages and that he was then asked to sign on all the pages which he did, putting his address on the last page, in accordance with the deceased's instructions. We have already referred to the evidence of Mrs. Crumley and Mr. Parmar as to Mr. Thakkar's approval of the contents of the statutory declaration. Mr. Parmar did not give evidence in person because of serious illness but he confirmed the truth of his witness statement dated 29 September 2002 in a further witness statement made in hospital on 10 June 2004.
(2) Did the deceased sign the Will in the presence of the witnesses?
(3) Knowledge and approval
"[T]he first [is], 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 question is not whether the court approves of the circumstances in which the document was executed or of its contents. The question is whether the court is satisfied that the contents do truly represent the testator's testamentary intentions."
"as illustrating the properly objective approach of the court in a case where the suspicion of the court has been aroused."
He summarised that case in this way:
"In that case the propounder of the Will made by a wealthy 74 year old man was a person who was alleged to have killed the deceased unlawfully. The propounder was an executor under the Will, was named as a specific legatee and the sole residuary legatee, had played an active part in the preparation of the Will and organised the process of the signing of the Will by the deceased and the witnesses. There was no professional assistance or involvement of any kind in the will-making process, no evidence that the deceased prepared the Will himself or gave instructions for its preparation, no evidence that the deceased read the Will or had it read to him before or after it had been made or that he retained a copy or, apart from what can be inferred from the evidence that he told one legatee of what he intended to do by his Will (and that was partly inaccurate), that he knew about its terms. The propounder did not give evidence. Nevertheless Lloyd J was satisfied that the Will should be admitted into probate. This was because knowledge and approval could be inferred in all the circumstances. Lloyd J heard evidence from the attesting witnesses that the Will and certain other documents executed at the same time were duly executed, that there was reference during the signing ceremony to the fact that the purpose of the attendance of the witnesses was to witness the deceased's signature of his Will, and that the deceased covered up some of the documents. Lloyd J commented that that evidence showed that the deceased was not being deceived as to the nature of the document he was signing and that he had at least had the opportunity of seeing the documents before they were covered up. Lloyd J also noted that the provisions of the Will were neither complex nor difficult to grasp. He said: "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."
It will be observed that in Hart v Dabbs the facts included that there was no evidence that the deceased prepared the will or gave instructions for it, or that he read the will or knew about its terms, but that nevertheless knowledge and approval could be inferred in all the circumstances.
Conclusion