FULLER v STRUM [2001] EWCA Civ 1879

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
Mr Jules Sher Q.C.
[2001] EWCA Civ 1879Case No Case No: CHANF/2001/0229/A3Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Friday 7 December 2001
Between
FULLERAppellantSTRUMRespondent
Before
Lord Justice Peter GibsonLord Justice ChadwickLord Justice LongmoreMr. Fuller appeared in personMr. Jack Mitchell (instructed by Messrs Embertons of Enfield) for the RespondentDate 7 December 2001

LORD JUSTICE PETER GIBSON:

The

[1]Claimant, Michael Fuller ("Michael"), appeals against the order of Mr. Jules Sher Q.C., sitting as a Deputy Judge of the High Court, on 20 December 2000 in a probate action. The judge pronounced for the force and validity of a Will only in respect of certain standard directions and one of five pecuniary legacies. In respect of all the other terms of the Will including the appointment of Michael as executor the judge was not satisfied of the righteousness of the transaction. The judge refused permission to appeal, but this appeal is brought with the permission of Robert Walker L.J.[2]The judge's highly unusual order arises out of highly unusual circumstances. The late Max Moses Strum ("the Testator") was born in 1920 in Halberstadt in Germany. He was Jewish. At the beginning of the second World War he came to England as a refugee from Nazi Germany. In 1940 he married another Jewish refugee, Gertrude Levinson. He became a British citizen in 1948. In 1955 he and his wife a adopted a 10-day-old boy, the Defendant, Geoffrey Strum ("Geoffrey"). Geoffrey was born out of wedlock to an Irish mother. The Testator worked as a waiter at the well-known London restaurant, Bloom's, during his working life. He was a Zionist and keen to go to Israel, but his wife was not, and during her life emigration to Israel was out of the question. His wife had a stroke in 1975 and was confined to a wheelchair. Eventually she became bed-ridden. She died on 27 January 1985.[3]The Testator owned the home where he lived, 162 Glengall Road, Woodford Green. Geoffrey, who has not married, lived in the house too. By the end of 1988 the Testator had decided to sell the house and emigrate to Israel.[4]The Testator was a sociable and friendly man and was liked by all who knew him. There was a society of Jewish refugees from Europe who used to meet in restaurants in the East End. The Testator and his wife used to meet Michael's parents, whom the judge found to be their close friends, and Michael and his sister Vivienne knew the Testator well enough to call him "Uncle Max". Michael at one time worked in Bloom's, the Testator having got Michael the job, and later the Testator used to go with Michael, who ran a weekend car boot sale business, to help him run his car boot sales. Michael is about 11 years older than Geoffrey. Vivienne has two daughters.[5]The trusting relationship between the Testator and Michael can be seen from the circumstances of the sale by the Testator of his house. Michael was selling his own house at that time with a view to moving to a smaller house. The Testator agreed to sell his house to Michael for about £95,000, a price which represented an undervalue of some £10,000 or so. For three months before completion on 31 March 1989 the Testator allowed considerable work to be done to the house to make it suitable for Michael and to create two separate flats, one for Vivienne and her daughters, and one for Michael's and Vivienne's aunt, Clara. Even before 31 March, Clara and Vivienne had moved into their flats. Throughout this period whilst the work was being done the Testator and Geoffrey continued to live in the house. As

the judge found:

"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.[6]The execution of the first document came about in the following way, according to Michael's evidence to the judge. Michael had spare money to invest from the sale of his house for £270,000, even after the purchase and conversion of the Testator's house, and the Testator was concerned that Michael should invest wisely to safeguard his future, as he felt that Michael's income from car boot sales was "built on straw". The Testator repeatedly asked Michael to give him £25,000 to invest for Michael in Israel at what were said to be the very high rates of interest obtainable there, and he said that he could guarantee Michael 10% per annum simple interest and that in 10 years' time he would guarantee to double Michael's money. Michael decided to give the Testator £15,000 to invest for him. Clara spoke to the Testator about his financial affairs in Michael's presence and suggested that he really ought to make a will before going to Israel. The Testator said that it was a good idea and would seek advice on the wording from a retired solicitor whom he knew. A few days later in a discussion between Clara, Michael and the Testator one of them suggested that if the Testator was to take £15,000 from Michael, they should record it in writing and have the transaction witnessed by a third party to protect both Michael and the Testator. They therefore arranged to meet on 31 March 1989 for tea and Michael agreed to bring Isaac Aghajanoff who was known to the Testator, Clara and Michael.[7]Michael on 31 March brought Mr. Aghajanoff to 162 Glengall Road, where, in the sitting room, the Testator and Clara were having tea. Michael produced £15,000 in cash in 15 bundles of notes, each of £1,000. Michael asked the Testator if he wanted to count the money but the Testator said that he trusted Michael. Mr. Aghajanoff and Clara heard the conversation and saw Michael give the Testator the money. Vivienne popped in and saw the money, and Michael commented that he was giving £15,000 to the Testator to invest in Israel.[8]Michael had already drafted a rough form of words to evidence the transaction. He gave that to the Testator to look at. The Testator spent some time reading the document through and asked Michael to insert some words (the words "God Forbid" twice and a reference to executors and administrators which he had been advised to insert). Michael then wrote out the full form of the document which the Testator signed. Michael offered to go out and get photocopies for everyone present, but Clara at her suggestion typed up the final form on her own typewriter in her bedroom and the Testator signed the typed version. Michael then procured photocopies and when he returned he gave a copy to each of the Testator, Mr. Aghajanoff and Clara. He kept the original manuscript document and the Testator kept the original typed version.[9]The document which the Testator signed was in the following form:
" RECEIPT AND UNDERTAKING I, MAX STRUM, of 162 Glengall Road, Woodford Green, Essex, hereby confirm that I have on this 31 st 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 31 st 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"
[10]By the time of the trial Clara had died, but Mr. Aghajanoff gave evidence confirmatory of what Michael said had occurred in relation to the Receipt and Undertaking and Vivienne also gave evidence that she had seen a large pile of currency and had been told by Michael that he was giving the Testator £15,000 to invest in Israel because of the far higher rate of interest there and that it was intended that the Testator would repay Michael in 10 years' time.[11]The making and execution of the Will then followed in these circumstances, according to Michael. At that point the Testator suddenly said: "Before you take Isaac home, let's go and write up my will" and he asked Mr. Aghajanoff if he would mind witnessing the Testator's will. At the Testator's request Michael went with the Testator into Clara's bedroom. Again Mr. Aghajanoff's evidence was to the same effect. Mr. Aghajanoff could not, of course, say what went on in the bedroom while he and Clara stayed in the sitting room.[12]Michael's evidence was that the Testator had two blank will forms with him. They both sat on the bed while the Testator dictated the terms which he wanted in the Will. Michael wrote them out on a pad. The Testator had some notes to which he referred and which the Testator had prepared in advance. The Testator said to Michael that he had been told of some legal terms such as "testamentary expenses" and had been advised of the need for full names and addresses of the beneficiaries by the retired solicitor whom he had consulted. The Testator read and altered what Michael was writing. The Testator wanted to put in a few kind words about each legatee and Michael was embarrassed when the Testator referred to him. When the Testator said what he had previously mentioned to Michael and Clara, that he was minded to leave the residue to the State of Israel, Michael reminded the Testator that Clara and Michael had tried to persuade him that it was not right to leave nothing to Geoffrey and that Clara had pointed out that Geoffrey, who had been a great disappointment to the Testator, was still young enough to change and might turn out to be a "mensch" (a decent human being). The Testator after reflecting said that he would leave the residue to Geoffrey, though with grave misgivings. The Testator said that he wanted Michael to be his executor because he really did not like his son. Michael wrote the terms out onto one of the Will forms in pencil. When he got to the bequest to Geoffrey, the Testator suddenly burst out with a tirade against him and insisted on putting in words very critical of him. Michael said that it was very strong stuff but was told by the Testator very firmly to "just put it in"; so he did. Michael complied with the Testator's request to write out the Will in ink on the second Will form in capital letters and to try to get it all on one page. Michael then gave the Will to the Testator who read it through carefully. When satisfied with the final draft, the Testator tore up the notes and earlier drafts. The whole process took 45 to 60 minutes. The Testator then came back into the sitting room with the Will in hand.[13]Michael's evidence then continued that the Testator went to the breakfast bar, laid the Will on the surface, placed a sheet of paper over the text leaving space at the bottom for signatures. The Testator called Clara and Mr. Aghajanoff over to witness his Will, Michael standing out of the way. The Testator signed the Will followed by Clara and Mr. Aghajanoff. The Testator thanked them, telling Mr. Aghajanoff "You should live to be 120" (a Jewish blessing), folded the Will up (it is of double A4 size), put it in his pocket and swore Michael, Clara and Mr. Aghajanoff to secrecy because, he said, "Geoffrey will kill me if he finds out what I have done." Throughout the afternoon he had been on edge in case Geoffrey appeared. Michael then took Mr. Aghajanoff home. Mr. Aghajanoff's evidence was again confirmatory of Michael's evidence. He said that he could not read any writing in the Will save for the words "This is the Last Will & Testament of me MAX MOSES STRUM".[14]The Testator then went up to Vivienne's flat to have a cup of coffee with her. He tapped his chest over his inside jacket pocket and told her that he had just signed his Will and he made her swear not to tell Geoffrey.[15]The Will, signed that day by the Testator and witnessed by Mr. Aghajanoff and Clara, was in the following form:
"This is The Last Will & Testament of me MAX MOSES STRUM of 162 GLENGALL ROAD, WOODFORD GREEN, in the County of ESSEX made this 31 ST (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.)[16]The first-named legatee, Mrs. Griffin, was a dear friend of the Testator who had seen her virtually daily for the previous 5 years and who went to stay with her on 31 March until he left for Israel some 10 days later. Her evidence was that just before he left, he told her that he had made a Will and left her something in it.[17]Also on or shortly after 31 March, the Testator made two gifts, one of £16,000 to Geoffrey and another of £3,000 to 4,000 to Mrs. Griffin. Geoffrey was asked, but could give no explanation of, why the particular sum of £16,000 was chosen.[18]Two other significant events occurred before the Testator left for Israel. One is that the Testator made a photocopy of the Will which he gave to Michael. The other is that he left a locked metal deed box with Michael for safekeeping. Subsequently on a visit from Israel he gave Michael a key to the deed box but made Michael swear not to open it unless he asked Michael to do so or died.[19]After moving to Israel the Testator visited England twice a year in the early years and on every occasion went to the room containing the deed box. The Testator died in Israel on 24 December 1998. Geoffrey telephoned Michael the next day to tell him of the death. Michael telephoned Geoffrey a few days later to ask if Geoffrey had found the Testator's Will. Geoffrey refused to believe that the Testator had made a Will. The Will was found by Michael in the deed box.[20]Geoffrey insisted that the signature on the Will was not that of the Testator and he caused a caveat to be entered on 25 February 1999. On 6 August 1999 Michael commenced these proceedings, seeking probate of the Will in solemn form. Geoffrey is the only person who would take an intestacy and he was named as the sole Defendant. By his Defence he alleged that the Testator did not know and approve the contents of the Will, that the Testator's signature was a forgery and, by amendment, that the signature was obtained by undue influence. He counterclaimed for the grant to him of letters of administration.[21]The case came before the judge for 5 days in October 2000, both sides being represented by Counsel. The judge heard evidence from Michael, Mr. Aghajanoff, Vivienne, Mrs. Griffin and another old friend of the Testator, Zena Starr. Geoffrey gave evidence on his own behalf, and his partner since 1992, Lynne Collins, gave evidence but she could not speak to the events of 31 March 1989. Sidney Aaronberg also gave evidence of the Testator's ignorance of financial matters. The judge described him as "a long term friend" of the Testator, but on Mr. Aaronberg's own oral evidence, though he met the Testator when Mr. Aaronberg was a customer at Bloom's, he was not really a friend of the Testator before he emigrated to Israel.[22]Each side had obtained a handwriting expert's report relating to the allegation of forgery, but a single joint expert, Dr. Audrey Giles, was appointed by the court. She gave a written report, but in the interests of saving costs was not asked by either of the parties or the judge to give oral evidence. Her conclusion was that the signature of the Testator on the Receipt and Undertaking was genuine but that there was "very strong positive evidence" that the signature on the Will was a forgery.[23]The main issue at the trial was the alleged forgery. The judge, in his detailed and painstaking reserved judgment, dealt at some length with that issue. He pointed out that if Dr. Giles was correct, not only would Michael but also Mr. Aghajanoff (and possibly Vivienne) have been guilty of fraud. Having seen them give evidence, the judge was not prepared so to conclude. He held that the Will was duly executed by the Testator.[24]Apart from forgery the only defence of Geoffrey which was maintained at the trial was want of knowledge and approval. The judge rejected Michael's account of what occurred when he and the Testator went into Clara's bedroom on 31 March 1989. This was for two central reasons. One was that the judge had been able to build up a picture of the Testator and his relationship with his son and the judge thought it inconsistent with that picture that the Testator would himself have created the sentence "I hate him like poison, that Irish bastard," or subscribe to it if someone else had created it. The judge did not believe that the Testator knew or approved of those words when he signed the Will. He concluded:
"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.[25]The judge described the evidence in the case as presenting a classic case in which the suspicion of the court ought to be aroused, and Counsel for Michael did not dispute that. The judge explained why his suspicion had been aroused. First he referred to the major role played by Michael in the preparation of a Will that "diverted" a third to a half of the Testator's estate away from his next of kin and in favour of Michael and his family. Second the judge said it was particularly unfortunate that having played so major a role in the preparation of the Will, the alleged reading over of the Will by or to the Testator was done in the secrecy of Clara's bedroom and he said that Michael had only himself to blame for the fact that the judge was not prepared to accept Michael's word for it. The judge said:
"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 31 st 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.[26]The order made by the judge leaves intact the opening part of the Will stating that this was the last Will of the Testator, that he was revoking all previous wills and codicils and directing the payment of his debts and funeral expenses. It also leaves the gift to Mrs. Griffin, with the laudatory description of her. But the appointment of Michael as executor prior to that gift is deleted as are all the other parts of the Will up to the signature and attestation. Geoffrey was granted letters of administration by the judge.[27]When giving permission to appeal, Robert Walker L.J. suggested that further evidence of the size of the estate might be admitted. Michael then sought to obtain an order requiring Geoffrey to provide full details of the estate of the Testator. But the order of the judge granting Geoffrey letters of administration had been stayed by Robert Walker L.J., and Geoffrey's application was refused on 11 October 2001 by Chadwick L.J., who, however, directed Geoffrey to verify on oath the list of assets in the estate on 7 September 2001, to which his solicitor had already deposed, and indicated that Geoffrey should include any additional information known to him. In his judgment Chadwick L.J. had pointed out that what was of most relevance to the court was the value of the estate at 31 March 1989. Geoffrey has sworn a witness statement in which, in addition to that verification, he has stated that the value of the estate at 31 March 1989 was £96,452. 60 and that after transfers of some £70,000 to an account with Barclays Overseas and the gift of £16,000 there was a balance of just over £10,000. I note that, rightly, the £15,000 cash delivered by Michael to the Testator has been left out of account. I also note that the gift to Mrs. Griffin is not referred to, perhaps because it may have occurred a day or two later than the gift to Geoffrey.[28]For this appeal Mr. Fuller sought permission to adduce further evidence not put before the judge. This included statements from six persons who had known the Testator. Most of them wanted to give evidence of what they say were the numerous occasions on which the Testator had spoken disapprovingly of Geoffrey and had used the term "that bastard" or "that Irish bastard" of Geoffrey and to testify to the good relations the Testator had had with Michael and Vivienne and her daughters. The further evidence also included evidence of the high rates of interest obtainable in Israel before and after 31 March 1989. It further included an Affidavit by Edward Zeid, who describes himself as an accountant, in which he said that some time after the death of the Testator's wife, the Testator came to see Mr. Zeid, said he was selling his house and emigrating to Israel and informed him of having £212,000 to invest or transfer prior to emigration. We indicated early in the appeal hearing that save for two Affidavits, on which we deferred our ruling until we gave judgment on the appeal, we would not admit the further evidence, which could have been put before the judge. The two Affidavits were made by deponents who, arguably, were persons reasonably not known at the time of the trial to have material evidence. One is Tony Reading, who worked as a caterer at Michael's car boot sales for about 10 years from 1985 but had not seen Michael since 1996 until meeting him by chance this summer and Michael has told us that he had not previously been aware that the Testator had spoken to Mr. Reading on material matters. Mr. Reading's evidence was of many conversations with the Testator before and after he went to Israel (the Testator attended Michael's car boot sales when on visits from Israel), of the affection between Michael and the Testator, of the Testator telling Mr. Reading on at least two occasions that he had left Michael, Vivienne and her daughters money in his Will, that "Whenever Max referred to his son it was to call him a bastard", and that he had invested some of Michael's money in Israel. The other Affidavit was that of Mr. Zeid. Again Michael has told us that he was unaware of his evidence until volunteered by Mr. Zeid to Michael after the trial.[29]Mr. Mitchell, appearing before us as he did before the judge for Geoffrey, argued against the admission of this evidence which, he submitted, was not important in the light of the other evidence heard by the judge and, in the case of Mr. Zeid's evidence, was unsubstantiated by documentary or other evidence. He asked to cross-examine the deponents if the evidence was admitted.[30]In the event it is unnecessary to rule on that further evidence. It is sufficient to determine this appeal on the evidence before the judge plus the uncontroversial details of what is known about the Testator's estate at 31 March 1989 which are now put before the court by Geoffrey. I therefore wholly disregard all the further evidence which Michael sought to put in.[31]In considering this appeal I am acutely conscious that the judge had the advantage, which an appellate court does not have, of having seen and heard the witnesses and observed their demeanour. So long as a trial judge cannot clearly be seen to have misused that advantage the appellate court must accept the findings of primary fact, evidence of which the trial judge received from witnesses in a position to give that evidence (see, for example, Watt v Thomas [1947] AC 484). But where direct evidence is lacking and the trial judge makes inferences from primary facts, it is easier for an appellate court to interfere with those inferences if in its view they are not justified, though even then the appellate court will give weight to the trial judge's opinion (see, for example, Benmax v Austin Motor Co. Ltd. [1955] AC 370).[32]Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who wish to challenge the will are often not able to give evidence of the circumstances of the will. The doctrine of "the righteousness of the transaction" whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged.[33]But "the righteousness of the transaction" is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be "vigilant and jealous" in examining the evidence in support of the will ( Barry v Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.).[34]However, it is instructive to consider the recent decision of Lloyd J. in Hart v Dabbs , unreported, 6 July 2000, as illustrating the properly objective approach of the court in a case where the suspicion of the court has been aroused. 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 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 to 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. 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.[35]Two other cases were referred to by the judge at the end of his judgment as supporting the propriety of upholding part of a will and pronouncing against the remainder of the will. One was In the Estate of Austin (1929) SJ 545, a decision of Swift J. In that case a former solicitor, who had been struck off the Roll for professional misconduct, propounded a will under which he was named as an executor and the residuary legatee. The will which the former solicitor had prepared contained an unusual attestation clause stating that the will had the deceased's knowledge and approval. Swift J. said that he did not think the deceased understood what he was doing with regard to the next of kin, that the circumstances in which the will was prepared and signed excited the greatest suspicion and that the onus on the propounder had not been discharged. He pronounced in favour of certain legacies and against the remainder. This case is too briefly reported to be of much assistance. The other case was Fulton v Andrew (1875) LR 7 HL 448 . In that case the propounders of a will, which had been professionally drawn through their agency, were named as executors, specific legatees and residuary legatees. The Court of Probate directed the case to be tried at the assizes where the judge asked the opinion of the jury on a number of questions including whether the deceased knew and approved of the residuary clause giving the residue to the propounders. The jury answered that question in the negative and the House of Lords held that it was open to the jury so to decide, having regard to the circumstances, which included instructions to the draftsman of the will which left open to question whether the executors were to be given the residue as trustees for certain children. The reasons for the decision of the jury are of course not known, so that again the case is not of great help.[36]I do not doubt that it is possible for a court to find that part of a will did have the knowledge and approval of the deceased and that another part did not. An example would be if a solicitor, who has been instructed to draft a will, obtains the deceased's approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator and keeps the executed will. But the circumstances in which it will be proper to find such a curate's egg of a will are likely to be rare. In my judgment it would not be proper for the court to pronounce against part of a will as a means of expressing the court's disapproval of the propounder. Where a will has been duly executed by a deceased of testamentary capacity who knew that he was making a will and is shown to have known and approved of a specific part of the will, the court must consider how real is the possibility that the deceased did not know and approve of the remainder of the will and that requires a careful examination of all the circumstances including the directions and dispositions of the will.[37]In the present case there is now no question but that the will was duly executed by the Testator who(a) was fully of testamentary capacity,(b) was not said to be unable to read or to have poor eyesight,(c) was not subjected to undue influence,(d) initiated the will-making process by himself suggesting that he make a will to be witnessed by Mr. Aghajanoff and Clara,(e) immediately before the Will was prepared and executed, had executed a legal document containing terms the language of which he had caused to be modified by the insertion of idiosyncratic language ("God Forbid") and which he was content to sign in a manuscript form written out by Michael,(f) having spent 45 to 60 minutes in Clara's bedroom over the Will, emerged with the Will (written out by Michael) in hand,(g) covered up the contents of the Will when signing it in the presence of witnesses who signed the attestation clause,(h) took away the executed Will,(i) subsequently made or caused to be made a copy of the Will for Michael, and(j) left the original Will in the locked deed box to which he had access when in England.[38]To those facts I would add one other to which Michael testified, but which, although noted by the judge, was not the subject of an express finding. That was that the Testator himself provided the Will forms which were used in the preparation of the Will. Mr. Mitchell put to Michael in cross-examination that he had purchased the Will forms. That was denied by Michael and no evidence was produced by Geoffrey to support what Mr. Mitchell had alleged. Mr. Mitchell did not pursue this point in his closing submissions. Given that the Testator on 31 March 1989 himself suggested the making of the Will, I can see no reason to doubt Michael's evidence that the Testator provided the Will forms, and I note that the judge himself referred to Michael's evidence on this before he described that part of Michael's evidence, which he specifically rejected, of what occurred in the bedroom.[39]In the circumstances there are only three possibilities, as Chadwick L.J. pointed out in the course of the argument before us:(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.[40]The judge rejected the first possibility and Mr. Mitchell readily accepted that the third could not be right in view of the fact that the Testator covered up the contents when the Will was being signed and his signature attested and that the Testator was very anxious that Geoffrey should not know about the Will. The judge did not expressly consider the second possibility but he could only have concluded that the Testator's knowledge and approval had not been established on the basis that the second possibility was a real possibility. The judge of course did not have direct evidence on the point other than from Michael.[41]There are very considerable difficulties in regarding the deception of the Testator by Michael as a real possibility. This is not the common case, where the suspicion of the court is aroused, of a propounder of a will who has been instrumental in procuring the will and is the major beneficiary under it, and of a testator who has been denied a proper opportunity to read and understand the will or, having executed it, to check its contents. If one leaves wholly out of account Michael's evidence of what happened in Clara's bedroom, the picture that emerges from the evidence before the judge is this. Here was an elderly man who had just realised his only major asset (his house), was about to emigrate to Israel and wanted to make a will; moreover he wanted to do it with Michael's assistance. Further, he had made preparations for it at least to the extent of obtaining the Will forms. He spent at least three-quarters of an hour in the preparation of the Will. He must have had the opportunity to see the simple provisions which had been written, very legibly in capital letters, on a single page, because the Will was in his hands when he came out of the bedroom and he appeared to know enough of its contents to want to cover up the dispositive parts of the Will and to be anxious lest Geoffrey learnt of the Will. Moreover, he took away the executed Will and had ample opportunities to read the Will then or when making a copy of the Will or before placing the Will in the deed box or when going back to the room where the deed box was kept on subsequent visits. It is simply incredible that the Testator did not at any time read the contents of the Will, and, if he read them, it is impossible to believe that he did not understand the contents. The style of the Will and in particular the idiosyncratic comments on the beneficiaries grab the attention of the reader and make it even more unlikely that the Testator did not know and approve the contents.[42]I turn next to a consideration of the provisions of the Will other than Mrs. Griffin's legacy to see if in reality they give rise to a possibility that the Testator did not know and approve of them. The first provision struck out by the judge is the appointment of Michael as executor. The Testator must be taken to have known that he needed to appoint an executor because the printed part of the form told him so. Michael was the person to whom alone the Testator looked to go with him into the privacy of Clara's bedroom to draft the Will and whom he trusted to write out the provisions of the Will, the contents of which he did not want the attesting witnesses to know. The deed box in which the Will was found by Michael was entrusted to Michael's care and, significantly, so eventually was the key to that box, as I have already recounted. The Testator could hardly have intended Geoffrey to be his executor: he did not even want Geoffrey to know that he had made a will. Further it is plain from evidence before the judge other than from Michael alone that the Testator's relations with Michael at the time the Will was made were good. On the judge's own finding, Michael was the son of close friends of the Testator, he knew the Testator well enough to call him "Uncle Max", he had had a job at Bloom's thanks to the Testator, he was allowed to buy the Testator's house at a 10% discount and he was trusted enough by the Testator to carry out considerable building works on the house months before completion. Geoffrey, in cross-examination, accepted that the Testator used to go to help Michael run his car boot sales. When Michael's evidence, that the Testator after the death of his wife used to go to Michael's house two or three times a week, because they enjoyed each other's company, was put to Geoffrey in cross-examination, he acknowledged that that could have been the case. Geoffrey said that he thought the Testator was lonely. But it is plain that it was Michael to whom he turned to ease that loneliness. In my judgment in the light of all this evidence it is impossible to hold that there was a real possibility that the Testator did not have knowledge and approval of the provision appointing Michael as executor.[43]The provisions immediately following the gift to Mrs. Griffin are the legacies of £16,000 to each of Vivienne and her two daughters, accompanied as those gifts are by the comments that they had always welcomed the Testator into their house, given him meals and often taken him out, and that the Testator knew that they would remember "Uncle Max" with affection. I did not understand that anything in those comments was challenged by Geoffrey as being inaccurate. He was not in a position to gainsay those comments. The judge found that Vivienne, the daughter of the Testator's close friends, did call him "Uncle Max". We know that as soon as the Will had been executed, the Testator went to have a coffee with Vivienne and confided in her that he had made a Will. In the circumstances there is nothing, as it seems to me, inherently improbable in the Testator giving legacies to Vivienne and her daughters and in making kindly comments in the Will about them, as he had about Mrs. Griffin, unless it be that the "diversion", to use the judge's word, of £18,000 from Geoffrey as next of kin is a significant point. I will return to this later.[44]The next disposition in the Will is the gift of £10,000 to Michael, with the comments about him. That there should be such comments is again consistent with the style adopted by the Testator in his gift to Mrs. Griffin. The first comment, that the Testator had known Michael, and their families had been friends, for over 40 years, is factually correct. The first part of the second comment, that Michael had been a loyal and trusted ally and confidante, again seems to me factually unchallengeable. But the Testator goes on to refer to the incident of the offer of a kidney transplant. That such a statement was made by Michael to the Testator is confirmed by Geoffrey who had been told of it by the Testator. However, whereas what is contained in the Will is appreciative of the generous thought behind what Michael said, Geoffrey's evidence was that the Testator did not understand why Michael had said it as the Testator was then not ill. Mr. Mitchell drew attention to the blanket assessment made by the judge in his judgment that wherever there was a conflict (and the judge accepted that there were not many occasions when there was) between Geoffrey on the one hand and Michael, Vivienne or the other witnesses in support of Michael's case on the other, the judge preferred the evidence of Geoffrey whom he found to be a reliable witness. Mr. Mitchell suggested that there was a conflict or an inconsistency between the sentiment said by Michael to be that of the Testator in his Will and what Geoffrey said was the Testator's comment on the offer by Michael. This point is not mentioned by the judge as a reason for finding knowledge and approval of the Will not proved, and I doubt if there is a conflict or inconsistency. Even if one accepts that the Testator made so churlish a comment to Geoffrey about the generous offer by Michael at the time it was made, it does not follow that the Testator by the time of the Will did not hold the view expressed in the Will, which seems much more in character. The insertion of the words "God Forbid" in the reference to the kidney offer is characteristic of the Testator, as can be seen from the evidence of the drafting of the Receipt and Undertaking, to which I have referred in para. 8 above. The final comment that Michael was almost like a son to the Testator and would remember the Testator with great affection accords with what we know of their relationship. Again, I will come back to whether the amount of the legacy is significant later.[45]The next provision in the Will is the reference to the £15,000 transaction. It will be recalled that one of the two central reasons why the judge rejected Michael's evidence of what occurred in Clara's bedroom was the judge's belief that he had not been told the whole truth about that transaction. The judge accepted the evidence of Mr. Aaronberg, that the Testator knew practically nothing about elementary financial matters. The judge thought it most unlikely that Michael committed £15,000 of his own money to the Testator to invest for him and pointed to the unfavourable nature of the transaction for the Testator, guaranteeing as it did a 10% return each year over 10 years. The judge's view that he had not been told the whole truth about the transaction cannot be challenged on the evidence before the judge. But in my judgment what equally cannot be challenged is that a transaction took place on 31 March 1989 whereby £15,000 in cash passed from Michael to the Testator and the Receipt and Undertaking relating thereto was executed by the Testator after perusal and modification by him. Mr. Aghajanoff's evidence supports Michael's on this and Vivienne saw the money and was told the purpose of the transaction. Moreover the judge omits to mention that the one witness for Michael whose evidence the judge was prepared to accept without qualification, Mrs. Griffin, gave evidence that before the Testator went to Israel he told her that he was holding money for Michael and that several times while the Testator was living in Israel he commented to her about the money which he was holding for Michael. That evidence in her witness statement was adhered to in her oral evidence. In these circumstances the reference to the £15,000 in the Will cannot be said to be one which the Testator could not have intended.[46]The final provisions of the Will relate to the gift of residue to Geoffrey. Strangely the judge has held that even that gift had not been shown to have the Testator's knowledge and approval. The Will states that the Testator had been thinking of leaving the residue to charity and not to Geoffrey, that Geoffrey never helped while the Testator nursed his wife, and it then refers to an incident, described as unforgettable and unforgivable, when Geoffrey had stated just after his mother's death that the mother had said that the Testator should sell the house and give him half the money. Geoffrey was cross-examined on that incident, and did not deny that it had occurred but said it was at a different time:
"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.[47]The comment in the Will on Geoffrey, "I hate him like poison, that Irish bastard", is the language which the judge found to be quite uncharacteristic of the Testator as a description of Geoffrey. Although Mr. Aghajanoff had given evidence that on 31 March 1989 the Testator had, on emerging from Clara's bedroom with the Will, referred to Geoffrey as "that bastard", the judge rejected that. The judge said that he had heard evidence "from a number of sources from which I have been able to build up a picture of Max Strum and his relationship with his son." The judge went on to say that it was simply not consistent with that picture that the Testator would himself have created that sentence or subscribe to it if someone else had created it.[48]Although the judge referred to evidence from a number of sources, so far as the evidence of witnesses was concerned, of the witnesses in support of Geoffrey's case Geoffrey alone could give evidence of the relationship between him and the Testator and himself at the only material time, that is to say at the time of the making of the Will. The fact that there was evidence from several witnesses, such as Lynne Collins, of a good relationship between the Testator and Geoffrey in the Testator's later years in Israel is irrelevant. I have already referred, in para. 5 above, to the judge's finding that the sale of the house to Michael was a source of irritation and anxiety to Geoffrey who was not pleased about the undervalue. Geoffrey himself in cross-examination said it was "a cause of friction". The judge found that the Testator and Geoffrey had arguments over it.[49]That there were other causes of friction is plain from Geoffrey's own evidence and from the judge's findings. When it was put to Geoffrey that the Testator was concerned with his inability to hold down a job, he said:
"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."
[50]The judge referred to Geoffrey's evidence that he was short of money from time to time and asked the Testator for money. The judge accepted that the Testator complained from time to time about this to his friends and acquaintances. The judge also referred to the fact that the relationship between the Testator and Geoffrey had been put under considerable strain because of the illness of the Testator's wife. The judge thought it plain that the relationship between the Testator and Geoffrey had its ups and downs. It seems to me no less plain that the Will was made at a time when that relationship was having a down, because of the sale of the house to Michael at an undervalue.[51]The poor view the Testator took of Geoffrey before the Testator went to Israel is even clearer if the evidence of those who testified for Michael is taken into account, all of whom spoke of the difficult relationship between the Testator and Geoffrey. It is sufficient to refer only to the evidence of two witnesses. Mrs. Griffin was found to be a straightforward witness and the judge accepted her evidence. It will be recalled that the Testator saw her every day about the time of the making of the Will. In her witness statement she said that the Testator used to get very irate about Geoffrey, whom the Testator felt to be lazy and never to have held a proper job, that the Testator moaned to her that Geoffrey got on his nerves and made him sick and that they had a very volatile relationship. In cross-examination she said that the Testator and Geoffrey "weren't all that close", that they often had disagreements, and that the Testator was sometimes frightened of Geoffrey and she repeated that the Testator was scared of him. The other witness to whose evidence I shall refer is Mrs. Starr. This is because the judge said that he broadly accepted that the things which the Testator was alleged by her to have said concerning Geoffrey were indeed said, though the judge suspected that they had grown in the telling. Mrs. Starr in her witness statement said of the Testator:
"on countless occasions he would pour his heart out to me about the terrible relationship he had with his adopted son Geoffrey and that they had suffered terribly through his selfish and uncaring ways. All he wanted was money without ever helping Max care for his disabled wife."
She said that the Testator told her how rude Geoffrey was to him and his wife and said that he thought Geoffrey was "mershugar" (mad) because of his screaming at both of them and that he hardly ever worked and only wanted to become a rock star. The Testator told her that to try to escape from Geoffrey he was moving to Israel. She repeated in cross-examination that the Testator described Geoffrey as selfish and uncaring, and had given as examples that when the Testator's wife was very ill, Geoffrey was never any help, he was never there and didn't want to know. Even allowing for the degree of exaggeration which the judge suggested was present in Mrs. Starr's evidence, it is quite clear that the Testator did not think well of Geoffrey, at any rate in the period when the Will was made.[52]A matter of particular significance to the judge as being inconsistent with the language of the Will was the gift of £16,000 to Geoffrey. The judge appears to have thought it impossible that the Testator would use such abusive language in relation to Geoffrey and yet give him £16,000. I think that the judge has omitted to take proper account of two things. The first is that under the Will itself the condemnation of Geoffrey did not stop the Testator from making a gift of the bulk of the estate by way of residue to Geoffrey. The second is that, as is apparent from the conversation between the Testator and Geoffrey which the judge held to have occurred in January 1989, Geoffrey had been promised by his mother that he should have half the house, and so he was asking the Testator for half the proceeds on the sale to honour that promise. But instead of letting him have nearly £50,000, the Testator was giving him only £16,000 immediately plus the residue under the Will. Viewed in that light, there is no inconsistency between the language of the Will and the gift of £16,000.[53]That leads me to consider whether the size of the legacies to Michael, Vivienne and her daughters was so great a "diversion" of the estate from Geoffrey as next of kin as to lend support to the judge's conclusion that the only disposition of which the Testator had knowledge and approval was the legacy to Mrs. Griffin. The notion that, when a testator makes a will which does not simply mirror what would happen on intestacy, there is a diversion from the next of kin seems to me a strange one, but, leaving that aside, I cannot see that the size of those legacies is in any way surprising. It seems to me that this matter should be looked at in the light of all the assets available for disposal by the Testator on 31 March 1989 . The Testator had some £96,000 of such assets. If all his testamentary dispositions were valid, he was giving to Mrs. Griffin £3,000 - £4,000 immediately and £6,000 by the Will, £18,000 to Vivienne and her children by the Will, £10,000 to Michael by the Will, and to Geoffrey £16,000 immediately and £42,000 - £43,000 by the Will. Thus if one lumps together the legacies to Vivienne and her daughters and Michael, they were receiving a little under 30% of the Testator's disposable assets, somewhat less than the one half or the one third to one half which the judge thought.[54]After that, I fear, over-lengthy review of the material circumstances I can now express my views on the judge's conclusions. First, the picture which the judge had built up of the relationship between the Testator and Geoffrey seems to me, with all respect to the judge, a distorted one not justified by the evidence, if that picture is viewed, as it should be, at the date of the Will. At that date the relationship was poor. No less unjustified is the inference drawn by the judge that the Testator would never refer to Geoffrey in terms like "I hate him like poison, that Irish bastard". When Geoffrey was asked by Mr. Mitchell if the Testator would "often use the term bastard", he replied "No", not "Never". Nor could Geoffrey speak to what the Testator said of him in his absence. Whilst the judge made one finding of primary fact on the date of the conversation between the Testator and Geoffrey about the promise to Geoffrey of half the house with which the date suggested in the Will is inconsistent, the judge expressly made no finding of how that came about. That single inconsistency, in a comment about Geoffrey as distinct from a disposition, seems to me to be altogether too slight a discrepancy to enable the conclusion to be drawn that the Testator did not know and approve of the dispositions in the Will (other than that to Mrs. Griffin). Moreover consideration of the contents of the Will does not enable the objective observer to conclude that there is a real possibility that Michael deceived the Testator as to those contents. In particular the difficulties to which I have drawn attention in para. 41 above remain unanswerable. I am satisfied that the judge's conclusions were wrong.[55]I have considered whether in the circumstances the appropriate course would be to order a new trial. But I have concluded that there would be no point in so ordering. It seems to me that the suspicion roused in the court by Michael participating in the will-making process and by him and his family taking a relatively modest benefit thereunder must in all the circumstances rank at the lower end of the scale, and that Michael has discharged the burden on him of dispelling that suspicion. I would therefore allow the appeal, set aside the judge's order and pronounce for the force and validity of the entire Will. Chadwick LJ:[56]The appellant, Mr Michael Fuller, is named as executor in a document dated 31 March 1989. The document is written in Mr Fuller's own hand on a stationers' will form. It purports to be the last will and testament of Mr Max Strum. Mr Max Strum died on 24 December 1998. These proceedings were commenced by Mr Fuller on 6 August 1999. He asks the court to pronounce in solemn form in favour of the document as the true will of the testator.[57]The proceedings came for trial before Mr Jules Sher QC, sitting as a Deputy Judge of the High Court in the Chancery Division. The judge held that the document was executed by the testator in the presence of two witnesses who themselves attested the execution in accordance with section 9 of the Wills Act 1837. He pronounced in favour of so much of the document as is not struck out in the copy annexed to his order dated 20 December 2000; and he pronounced against so much of the document as is struck out in that copy. The effect of that order is that the document to be admitted to probate contains, in addition to the name and address of the testator, the date and the attestation clause, only three operative provisions:(i) a revocation of all previous wills and codicils (of which, so far as is known, there were none);(ii) a direction that debts and funeral expenses should be paid as soon as conveniently may be after his death; and(iii) a pecuniary legacy of £6,000 to Mrs Betty Griffin – described as his very loyal, loving friend and companion for many years. The whole of the rest of the document – including (i) the appointment of Mr Fuller as executor, (ii) four other pecuniary legacies (amounting together £28,000) and (iii) the gift of the residue of the estate to his adopted son Geoffrey - was held to be of no testamentary effect.[58]The basis upon which the judge made the order that he did was his conclusion that he could not be satisfied that the testator knew and approved of any part of his will other than the legacy to Mrs Griffin. As he put it (at page 29, line 27 to page, 30 line 4 in his written judgment):
" . . . 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 31 st 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.[59]It is not, and cannot be, in dispute that, before admitting the document to probate, the judge needed to be satisfied that it did truly represent the testator's testamentary intentions; or, to use the traditional phrase, that the testator "knew and approved" its contents. Nor is it in dispute that, if satisfied that the testator knew and approved of part only of the contents of the document, the judge was bound, before admitting the document to probate, to require that those parts with respect to which he was not so satisfied be struck out. If he were right to take the view that there was serious doubt whether parts of the document did truly represent the testator's testamentary intentions, then he cannot be criticised for taking the course that he did. But the judge's finding that there was serious doubt whether the whole of a home-made document - executed by a testator who (as the judge found) knew and believed that, by executing that document, he was making his will - did truly represent the testator's testamentary intentions raises a number of questions.[60]First, did the judge think that there was a serious doubt that the testator knew that the document which he executed contained more than just the legacy to Mrs Griffin? For my part, I think it impossible to hold that the testator did not know that the document contained more than the single legacy. The legacy to Mrs Griffin is comprised in the first two lines of the manuscript text. There are, in all, twenty three lines of manuscript text. It must have been obvious to the testator, if he looked at the document at all, that the manuscript text was far more extensive than would have been needed to name one pecuniary legatee. And there was evidence that the testator had, at the least, looked at the document – even if he had not read it. The judge accepted that the testator had covered up the manuscript text before he and the attesting witnesses signed the document. There is nothing in the judgment to suggest that the judge was not satisfied that the testator knew that the document contained more than just the single legacy. The question whether the testator knew that the document contained much more manuscript text than would be needed to bequeath a single legacy cannot have been the subject of the serious doubt to which the judge referred.[61]Second, if the judge accepted that testator knew that there were another nineteen lines of manuscript text, did the judge think that that there was a serious doubt that the testator, himself, believed that he knew what was in the document which he intended to execute as his will? In other words, did the judge think that there was a real possibility that this testator was prepared to execute a will without, himself, believing that he knew what the will contained? There is nothing in the judgment which suggests that the judge thought that this was a testator who was so careless of his affairs that he might be prepared to execute a document as his will in the knowledge that he did not know what it contained. As Lord Justice Peter Gibson has pointed out in his judgment, if one leaves wholly out of account Mr Fuller's evidence of what happened in his aunt Clara's bedroom, the picture remains that of an elderly man who had just realised his only major asset; who was about to emigrate to Israel; who wanted to make a will; and who had obtained law stationers' will forms for that purpose. In my view it was not open to the judge to reach to the conclusion, on the evidence which he did accept, that there was any real possibility that this was a testator who would execute a document as his will if he did not, himself, believe that he knew what the document contained. I do not think that the judge did reach that conclusion. The question whether the testator, himself, believed that he knew what the document contained cannot have been the question about which the judge had serious doubt.[62]Once it is accepted – as, in my view, it must be accepted –(i) that the testator knew that the document which he executed as his will contained much more manuscript text than would be needed to bequeath the single legacy to Mrs Griffin and(ii) that the testator, himself, believed that he knew what the document contained, the only basis remaining for the doubt which the judge expressed is that there was a real possibility that the testator was deceived by Mr Fuller. In order to hold that there was a real possibility that the testator was deceived by Mr Fuller as to the contents of the document it is necessary to be satisfied not only (i) that there was a real possibility that Mr Fuller misrepresented to the testator the content of what he (Mr Fuller) had written in the document – that is to say, that the words actually written were not the words which Mr Fuller had told the testator (or otherwise led the testator to believe) had been written – but also (ii) that there was a real possibility that the testator did not at any time – that is to say, either at the time that the document was executed or, thereafter, when going to the room in which the deed box contained the document was kept – take the opportunity to read the document. I agree with Lord Justice Peter Gibson that, if the testator did read the document, he must have understood the contents. This is not a case in which the effect of what had been written would, or might, not have been readily intelligible. Indeed, as Lord Justice Peter Gibson has put it, "the style of the Will and in particular the idiosyncratic comments on the beneficiaries grab the attention of the reader".[63]I am driven, therefore, to the conclusion that the judge did think that there was a real possibility that the testator never took the opportunity to read the document – either before or after he had executed it as his will. Although the judge does not say, in terms, that he reached that conclusion, that conclusion is a necessary step in the reasoning which he must have adopted in order to reach the conclusion which he did express – that there was serious doubt whether the manuscript contents of the document (other than the legacy to Mrs Griffin) were known and approved by the testator. I, like Lord Justice Peter Gibson, find it incredible that the testator never took the opportunity to read the document which he believed to be his will. But the judge had the great advantage of seeing and hearing the witnesses give their evidence. This Court does not have that advantage; and it is important, in my view, not to fall into the trap of thinking that listening to Mr Fuller address us in person in support of his appeal is any substitute for listening to his evidence at a trial. We cannot properly reverse the judge on what is, on analysis, a question of fact, unless satisfied that it was not open to him to find that there was a real possibility(i) that the testator was deceived by Mr Fuller because he never took the opportunity to read the document at the time that he executed it as his will and(ii) that the deception never came to light because the testator never took the opportunity to read the document thereafter.[64]I am satisfied that the judge fell into error. I think that he did so because he failed to keep in mind that the task in which he was engaged was that of assessing evidence and reaching conclusions as to fact on the balance of probability. I suspect that he may have been misled by the phrase used by Lord Hatherley, in Fulton v Andrew (1875) LR 7 HL 448 , 471, to describe the evidential burden which the law imposes on one who has been instrumental in procuring a will under which he takes a benefit. Lord Hatherley described that burden as "the onus of showing the righteousness of the transaction".[65]It is important to appreciate that Lord Hatherley's phrase – redolent of morality as it now seems to be - is not to be taken by the court as a licence to refuse probate to a document of which it disapproves; whether that disapproval stems from the circumstances in which the document was executed as a will or whether it stems from the contents of the document. 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. That is not, of course, to suggest that the circumstances of execution or the contents may not, in the particular case, be of the greatest materiality in reaching a conclusion whether or not the testator did know and approve of the contents of the document – and did intend that they should have testamentary effect. But their importance is evidential. There is no over-riding requirement of morality. If Lord Hatherley's reference to "the righteousness of the transaction" in a speech delivered in the late nineteenth century leads to mis-understanding at the beginning of the twenty first century, then the time has come to consider whether that phrase is still helpful. For my part, I think it is better to avoid it.[66]The starting point is the seminal passage in the opinion of the Privy Council delivered by Baron Parke in Barry v Butlin (1838) 2 Moore's Privy Council Cases 480, at pages 482-3:
"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."
[67]Baron Parke went on to explain what is meant by the onus probandi in that context. He said this, at pages 484-6:
"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."
[68]Those passages were approved by the House of Lords in Fulton v Andrew (1875) LR 7 HL 448 – see the speech of Lord Cairns, Lord Chancellor, (with whom the other members of the House agreed) at page 461 – and, again, in Wintle v Nye [1959] 1 WLR 284 – see the speeches of Viscount Simonds, at page 291, and Lord Reid, at page 295.[69]Confirmation that what has come to be known as the rule in Barry v Butlin is an evidential rule can be found in the judgment of Mr Justice Scarman in In the estate of Fuld, dec'd. (No.3) [1968] P 675. It was necessary, in that case, for the judge to decide whether the English requirements as to proof of knowledge and approval were a part of substantive law - in which case they would be irrelevant in the circumstances that the testator died domiciled in Germany; or whether they were rules of evidence – in which case they fell to applied as part of the lex fori. After referring to the re-affirmation, in Wintle v Nye , of the rule in Barry v Butlin , Mr Justice Scarman said this, at page 697F-G:
"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."
[70]If the first limb of the rule identifies the person propounding the will as the person on whom the burden of proof lies, it is the second limb which informs the court as to the nature of the inquiry which it is to make. What, then, is the standard of proof which the court must require in that inquiry? There is, to my mind, nothing in the statement the law by the Privy Council in Barry v Butlin which suggests that the standard of proof required in relation to knowledge and approval in a probate case is other than the civil standard – that is to say, that the court must be satisfied, on the balance of probability, that the contents of the will do truly represent the testator's intentions. Indeed, it seems to me that it is to that standard that Baron Parke was referring when he spoke of the court being "judicially satisfied". Nor do I think that there is anything in Fulton v Andrew to suggest that the standard is other than the civil standard. I can see no reason why probate proceedings in general, or the issue of knowledge and approval in probate proceedings in particular, should treated as an exception to the general rule - recognised by Lord Nicholls of Birkenhead in In re H (Minors) [1996] AC 563 , at page 586C – that "where matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability". But, as Lord Nicholls went on to point out, at page 586F, there was "[b]uilt into the preponderance of probability standard . . . a generous degree of flexibility in respect of the seriousness of the allegation". At pages 586H-587A, Lord Nicholls said this:
"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."
[71]It is, I think, this flexibility of approach within the civil standard of proof which lies behind the observations of Viscount Simonds in Wintle v Nye , [1959] 1 WLR 284, at page 291, that:
"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."
[72]I am satisfied that there is no basis for an approach that requires, in all cases, that a person propounding a will which he has prepared, and under which he takes a benefit, must satisfy the court by evidence which excludes all doubt – or by evidence which excludes all reasonable doubt (the standard of proof required in criminal proceedings) – that the testator knew and approved the contents of the will. The standard of proof required in probate proceedings (as in other non-criminal proceedings) is satisfaction on the preponderance (or balance) of probability. But the circumstances of the particular case may raise in the mind of the court a suspicion that the testator did not know and approve the contents of the document which he has executed which is so grave that, as Viscount Simonds observed in Wintle v Nye , it can hardly be removed.[73]I return, therefore, to the finding of the judge in the present case: that, after hearing the evidence, he remained in serious doubt whether the contents of the document executed on 31 March 1989 (other than the pecuniary legacy to Mrs Griffin) were approved by the testator. I gratefully adopt the statement and analysis of the facts contained in the judgment of Lord Justice Peter Gibson. Like him, I take the view that the dispositions made by the testator in the document executed as his will do not, of themselves, excite any great suspicion. They seem to me to be explicable by the warm relationship between the testator and Mr Fuller's parents; a relationship which had extended to Mr Fuller, his sister and her children. Nor do I find any cause for grave suspicion in the circumstances in which the document was executed. The document was executed at a time when it was a natural and obvious that the testator, who had made no earlier will, should wish to put his affairs in order. And, as it seems to me, it was natural and obvious that he should turn to Mr Fuller for assistance.[74]The circumstances in which that assistance was given require Mr Fuller to satisfy the court – by evidence which goes beyond proof of testamentary capacity and due execution - that the contents of the document do truly represent the testator's testamentary intentions. Mr Fuller could not do that by his own direct evidence of the writing out of the document in his aunt Clara's bedroom – because the judge did not accept his evidence. But, after rejecting Mr Fuller's evidence of what had happened in the bedroom, the judge still had to give weight to the evidence, from Mr Fuller and the other witnesses, which he did not reject. And, in the light of that evidence as a whole, the judge had to ask himself whether there was a real possibility that the testator had never taken the opportunity to read the document which he believed to be his will.[75]In my view, in the light of the evidence which the judge had accepted, the possibility that this testator had not taken the opportunity to read the document which he believed to be his will was so unlikely – indeed, I would say, so incredible – that it could not be accepted as a real possibility unless the grounds for suspicion that the document did not truly represent the testator's intentions were so strong as to be insurmountable. But, as I have said, this is not a case in which the suspicion aroused by the circumstances in which the document was executed, and its contents, comes anywhere near to being insurmountable. The judge, having correctly identified the need for vigilance, ought to have concluded that any proper suspicion was dispelled.[76]For those reasons, as well as for the reasons given in the other judgments in this Court which I have the advantage of reading in draft, I would allow this appeal. I, too, would make the order which Lord Justice Peter Gibson has proposed. Lord Justice Longmore :[77]Any person who puts forward a document as being the last will of the deceased must establish that the testator knew and approved the contents of the will when he executed it. Normally, so long as there is no problem of lack of testamentary capacity, the testator's knowledge and approval of the contents of his will will be assumed from the fact that he has signed the document and had it attested in proper form. There is, however, a class of case where this will not be assumed and that is where the person, who writes or prepares a will, himself takes a benefit under it. In such cases, even if no undue influence is alleged, the court needs to be satisfied that the testator did know and approve the contents of his will before executing it and the court will not rely on the signature of the testator alone for that purpose. Viscount Simonds stated the law briefly in Wintle v. Nye [1959] 1 WLR 284, 291:- "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.[78]Some of the older cases say that the onus on a person who takes a benefit under a will which he has been instrumental in preparing or obtaining is "the onus of showing the righteousness of the transaction", see eg Fulton v. Andrew (1875) LR 7HL 448 , 471 per Lord Hatherley. This is not, to my mind, a separate onus from that of dispelling the suspicion the testator may not have known or may not have approved the contents of the will; it is merely a more grandiloquent way of expressing exactly the same concept. The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more. The question in the present case is, therefore, whether Mr Fuller, as the propounder of the will, has removed the suspicion that the testator did not know or did not approve its contents. The deputy judge held that he had not removed that suspicion.[79]I agree with my Lords that the only right answer to the question on the evidence before the court is that Mr Fuller has discharged that onus. For the judge not to have been so satisfied, he must have concluded that there was a real possibility that, although the testator knew that Mr Fuller had prepared a will at his (the testator's) request over the course of about three-quarters of an hour, although he appointed Mr Fuller as his executor and although he covered up the contents of the will when he asked the attestors to witness his signature, he did not know or approve what was in the document. The only possible scenario that fits is that the testator dictated something to Mr Fuller but Mr Fuller wrote something else on the paper which, shortly thereafter, the testator signed. There was no basis for this conclusion in the evidence and nowhere in the judgment does the judge state that he does consider this as a real possibility. He merely states that he does not accept Mr Fuller's evidence in certain important respects and he then concludes that the onus of showing that the testator knew and approved the contents of the will has not been discharged. But the one does not follow from the other unless the above scenario was a real possibility. To my mind it was not a real possibility on the facts of the case and the appeal must, therefore, be allowed.

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. (Order not part of approved judgment)

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