Payne & Anor v Payne [2018] EWCA Civ 985

[2018] EWCA Civ 985

Case No B2/2015/3929

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON

HER HONOUR JUDGE FABER

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 04/05/2018

Before

LORD JUSTICE HENDERSON

LORD JUSTICE FLAUX

Between

(1) JOHN HENRY ADRIAN PAYNEClaimants/

(2) THOMAS PAYNERespondents

MRS KIM PAYNEDefendant/

IN THE MATTER OF THE ESTATE OF JOHN HENRY ADRIAN PAYNE (PROBATE)

The Appellant and the 1 st Respondent appeared in Person for in person

Hearing Hearing date: 21 March 2018

Judgment Approved

Introduction and background

[1]This is an appeal in contentious probate proceedings concerning the estate of the late John Henry Adrian Payne (“the Deceased”) who died on 22 August 2012 aged 74. The Deceased was twice married. By his first marriage in 1959, to Vera Gabriel, he had four children, at least three of whom survived him, including a son also named John Henry Adrian Payne. To avoid confusion, I will refer to the son as “John Payne” or simply “John”. Although the Deceased’s first marriage lasted for over 30 years, it ended in divorce, and in March 1997 he married his second wife, Mrs Kim Payne, who also survived him. I will refer to her as “Mrs Payne”. There were no children of the second marriage, but Mrs Payne has a daughter, Emily Reid, from an earlier marriage.

[2]The Deceased left two wills, or purported wills. The second of these (“the 2012 Will”) was dated 1 April 2012, a few months before his death. It was a typed document, although clearly not professionally drawn. By it, he purported to appoint John Payne and his grandson Thomas Payne (John’s son) as his executors, and subject to two pecuniary legacies of £15,000 each to Mrs Payne and to Thomas Payne, he left the residue of his estate to John. There was an attestation clause in substantially standard form, the attesting witnesses being the girlfriend of Thomas Payne and her mother.

[3]There was also an earlier will (“the 1998 Will”), dated 19 May 1998, some 14 months after the Deceased’s marriage to Mrs Payne. It was apparently made on a printed form, the Deceased describing himself as “John Henry Payne” and giving his address as 41 Braemar Road, Plaistow, London E13. I should mention at this point that only cropped photocopies of the 1998 Will were available when the trial of the action took place before Her Honour Judge Faber in the County Court at Central London in July 2015, and indeed when the appeal came to be heard by us on 21 March 2018, although we then gave a direction which has led to the production of the original: see [39] below. By the 1998 Will, the Deceased apparently appointed Mrs Payne as his executor, and made only one substantive gift, when after standard directions for payment of his death and funeral expenses, and a clause revoking any previous wills, he said:

“I give and bequeath unto my wife Kim Payne my property, post office pension, insurance’s shares, & any money in my Abbey National account”

. This clause was placed next to a marginal direction to “Set out particulars of legacies”, and was completed in manuscript in capital letters after the printed words “I give and bequeath unto”. Beneath it, there was a printed form of residuary gift, but the recipient of it was left blank.

[4]Under the blank residuary gift, there was a space for the testator’s signature, where the Deceased appears to have written his signature “J Payne” in the appropriate place. This was followed by a printed attestation clause, which said:

“Signed by the above-named testator (testatrix) in the presence of us present at the same time who in his (her) presence and at his (her) request and in the presence of each other have hereunto subscribed our names as witnesses.”

There were then four dotted lines left to be filled in opposite the words “Witness”, “Address” (two lines) and “Occupation” for the first witness, and the same again for the second witness. No separate space was designated for each witness to place his signature, in addition to filling in his name. In this respect, there was a contrast with the space left for the testator’s own signature, which was a dotted line opposite the word “Signature”.

[5]The two witnesses appear to have been Michael Hogwood and Robert Gordon, who were respectively described as a “security auditor” and a “costume designer”, although Mr Gordon’s occupation is illegible on the photocopies. Their names, addresses and occupations were inserted in capital letters in the designated places, apparently in different hands, but there were no separate signatures in the sense in which that word is now commonly understood.

[6]Unfortunately, disputes arose within the family after the Deceased’s death, and there is a history of bad feelings between John Payne, his son Thomas, and his mother Vera on the one hand, and Mrs Payne and her daughter Emily on the other hand. Matters reached a stage where, in or around May 2013, a number of claims brought by John Payne against Mrs Payne and her solicitor were struck out, and a civil restraint order was made against John Payne as well as orders restraining him from communicating with or harassing his stepmother. There were also allegations of forgery of the 2012 Will, although no charges were pressed following a police investigation.

[7]Eventually, in August 2014, the present action was begun by the issue of a claim form in the Bristol District Registry of the High Court, Chancery Division, seeking proof in solemn form of the 2012 Will. The claimants were John and Thomas Payne, and the defendant was Mrs Payne, the three of them being the only named beneficiaries under the two wills. At that stage, the claimants were represented by solicitors and counsel, and the particulars of claim were settled by counsel. They set out details of Mrs Payne’s opposition to the 2012 Will, including the entry of a caveat in August 2013. It was alleged that she had produced no evidence, and advanced no substantive case, to dispute the validity of the 2012 Will, and the claim was supported by signed affidavits from the two attesting witnesses of the 2012 Will purportedly confirming its due execution.

[8]I will need to deal with some aspects of the procedural history later in this judgment, but eventually Mrs Payne put in a defence and counterclaim in which she denied that the 2012 Will had been validly executed, and set out a number of other reasons for treating it with suspicion, although the only plea upon which she expressly relied was lack of due execution. By her counterclaim, Mrs Payne asked for proof in solemn form of the 1998 Will, which she said had been validly executed although she gave no particulars of the circumstances in which it came to be made. Although Mrs Payne was a litigant in person, her defence and counterclaim were clearly drafted with professional assistance, and she had help at various times from counsel instructed by the Bar Pro Bono Unit.

[9]At least two hearings for directions took place before Master Teverson in the Chancery Division in London before the case was transferred by him for trial to the County Court at Central London. The trial took place over three days between 6 and 8 July 2015. The claimants were still represented by counsel (Mr Christopher Jones), but Mrs Payne appeared in person with no professional assistance. The judge heard extensive oral evidence, including from John and Thomas Payne, the two attesting witnesses of the 2012 Will, Mrs Payne and Emily Reid. The judge also heard submissions from both sides, and had a bundle of agreed documents to which various additions were made during the trial.

[10]The judge delivered her oral reserved judgment on 27 August 2015. Unfortunately, the transcript of that judgment has never been approved by the judge, because she had already retired on grounds of ill health before the transcript was prepared. However, the unapproved transcript runs to 94 paragraphs and the general thrust of the judge’s findings and reasoning is clear enough, even if there may be points of detail which she would have wished to correct or tidy up. In short, her conclusion was that neither will should be admitted to probate, so the result was that the Deceased died intestate.

[11]In relation to the 2012 Will, the judge found the evidence of Thomas Payne and of the two attesting witnesses to be “utterly unreliable”, to such an extent as to displace any presumption of due execution that might otherwise have arisen from the apparently regular nature of the attestation clause. She said in the final paragraph of her judgment that she was unable to find that the 2012 Will had been correctly witnessed, or that the Deceased knew and approved its contents. It is unnecessary for me to make further reference to the 2012 Will, because John Payne was refused permission to appeal from the judge’s dismissal of the claim by Briggs LJ (as he then was) at an oral hearing on 27 July 2017. Briggs LJ was satisfied that the judge had directed herself correctly on the strength of the presumption of due execution, and that having done so she was entitled to conclude that the presumption was displaced “by the manifest untrustworthiness of the claimant’s witnesses” (paragraph [26] of his judgment).

[12]In relation to the 1998 Will, the judge recorded that Mrs Payne had been unable to produce a copy of it properly signed by the witnesses, and since she had failed to call either of them to give oral evidence about the circumstances in which it was executed, the evidence was inadequate for her to find that it had been duly attested in the manner required by law. In reaching these conclusions, the judge found that Mrs Payne herself was “not an entirely reliable witness” due to changes in her evidence, although these had been “on less significant issues” and evidently did not affect the judge’s acceptance of Mrs Payne’s oral evidence in cross-examination about the circumstances in which the 1998 Will was executed. On this subject, the judge said (at paragraph 66 of her judgment):

“[Mrs Payne] was asked, “Have you made any enquiries as to the witnesses who witnessed the 1998 will to make statements?”

She asked, “Why should I do that?” She was asked, “Your case is that [the] 2012 Will is invalid and you say he executed a 1998 will,” she replied, “Yes.” She was asked, “In this claim, the claimant denies that the 1998 will was validly executed. Have you contacted the witnesses who witnessed it?” She said, “No, why should I? My will is in the Winchester Probate.” She was asked if she knew who Michael Hogwood and Robert Gordon were and she said, “Yes, I do.” She was asked, “Did you ask them for witness statements confirming that your late husband signed this will?” She said, “No, I have not been asked to do that. I was there when they did sign the will. We were all in the same room together.” She was asked why had she not mentioned that before and she said, “Why should I?” Then she was asked about various aspects about it being hidden in her house at the request of her late husband.”

[13]In a subsequent paragraph of her judgment, headed “My Finding on the 1998 Will”,

the judge stated her conclusions, as follows:

“74. The issue arises as to whether the defendant has proved that the witnesses did sign the will in the first place. [She] said they did all sign it in the room together but she has not produced a signed version, only one that has their names and addresses and occupations in capital letters, although she has had legal advice in the past and as recently as before Master Teverson earlier this year, and the only inference I can draw from a failure to produce the original will with the registry is that it is in the same form as this. In other words, unsigned with just their names and addresses in capitals. Had it not been for the law cited by Mr Jones as to the need for oral evidence, I might have been tempted to find - and I do not think I could have found – but I might have that someone putting their name in capitals did intend to attest the will, but without signatures and capitals and without oral evidence, in other words with just capital letters, I think he is probably right that we do need a further explanation of who put the capital letters there and if it was the two gentlemen, Mr Hogwood and Mr Gordon, that they did so intending to attest the will because there are those two issues of fact on which the evidence is inadequate to find attestation required as a matter of law, so the counterclaim will be dismissed.”

[14]It can be seen, therefore, that there were two main strands to the judge’s reasoning in holding, as she did, that the 1998 Will had not been validly executed. First, she considered that merely filling in the names of the witnesses in capital letters, as shown on the only available copies of the 1998 Will, did not in itself satisfy the need for the will to have been “signed” by the witnesses. Secondly, her decision might have been different if there were oral evidence that the witnesses had thereby intended to attest the will, but neither witness had been called to give evidence, and the burden of proof had therefore not been discharged by Mrs Payne as the party who was propounding the 1998 Will.

[15]Mrs Payne’s application for permission to appeal was heard by Briggs LJ at the same time as John Payne’s application. By then, Mrs Payne, still acting in person, had also made an application for permission to adduce fresh evidence, in the form of two statutory declarations made by the attesting witnesses, Mr Hogwood and Mr Gordon, on 2 and 14 September 2015 respectively. The two declarations were in similar form, and it is enough to quote from Mr Gordon’s:

“1. I am a friend/neighbour of the late John Henry Payne. I have known the late John Henry Payne for approximately 29 years. 2. On 19 May 1998 Mr Michael Hogwood and I went to the late John Henry Payne’s house, namely 41 Braemar Road, London, E13 8EH who witnessed him signing his last will and testament. 3. The late John Henry Payne signed his last will and testament. Thereafter Mr Hogwood acknowledged the late John Henry Payne’s signature by printing his name and address and thereafter I acknowledged his signature by printing my name and address. 4. I attach to this statutory declaration a true copy of the last will and testament signed by the late John Henry Payne which was witnessed by Mr Hogwood and I by printing our names and addresses on the same. 5. I declare that I and Mr Hogwood did on 19 May 1998 witness the late John Henry Payne signature on his last will and testament.”

[16]It is apparent from the appeal bundle prepared by Mrs Payne, although not I think from the judge’s judgment, that by the third day of the trial, 8 July 2015, Mrs Payne had succeeded in obtaining short written statements from both Mr Gordon and Mr Hogwood. Mr Gordon’s statement said:

“I, Robert Gordon of the above address wish to state that on the 19th May 1998 witnessed the signing of the will of the late John Payne Senior at his house in 41 Braemar Road. People present were John Payne Senior, Kim Payne myself and another man whom I did not know. This is my Statement of Truth.”

This is my Statement of Truth.”

[17]Mr Hogwood’s statement said: “I can confirm that I Michael Hogwood was present in the home of the late John Payne Snr. 41 Braemar Road on the 19th of May of 1998, I witnessed Mr Payne sign his will. Also there was his wife Kim Payne, John Payne himself, and a gentleman unknown to me. This is my statement of truth”.

[18]Mrs Payne told us, and we see no reason to doubt, that on the final day of the hearing she told the court that she wished to rely on these two statements, to which the judge replied that she should ask her opponent, Mr Jones, which she then did. Mr Jones refused to consent to the statements being adduced, and the matter was taken no further.

[19]It is unclear whether these two informal written statements were before Briggs LJ when he considered Mrs Payne’s application for permission to appeal, but he certainly had her formal application for permission to adduce fresh evidence in the shape of the two statutory declarations. In granting her permission to appeal, Briggs LJ said he thought it arguable, on the evidence before the judge at trial, that she was not entitled to conclude that the 1998 Will failed to comply with the requirements of formal validity. In the light of her record of the evidence given by Mrs Payne in cross-examination, which I have quoted at [12] above, the judge should arguably:

“have put two and two together and concluded that the witnesses themselves wrote their names in manuscript because otherwise one might ask if [Mrs Payne’s] evidence that they signed it was to be believed, what other than writing out their names in capital letters could have constituted the signing that she said she saw taking place, even if she did not actually take a magnifying glass to see what they were doing? If that is right, it would be a small step, in my view, to a conclusion that by printing out their names rather than using a signature, as is normally done, they did so with an intent to attest the will. The judge was well aware of the legal principles governing the validity of wills under Section 9 of the Wills Act and of the possibility of introducing witness evidence as to intention to attest where there was any doubt as to whether the statutory requirements had been complied with.”

[20]On that basis, Briggs LJ was satisfied that the proposed appeal had a real prospect of success, in the usual sense of a more than fanciful prospect. In relation to the application to adduce further evidence, he decided to stand it over to the hearing of the appeal, pointing out that it would be necessary for Mrs Payne to satisfy the test for adducing fresh evidence on appeal, which normally includes a requirement that the evidence in question could not have been obtained with reasonable diligence for use at the trial. In this context, Briggs LJ referred to the explanation which Mrs Payne said had been given to her “by a pro bono solicitor acting at an earlier stage that all that would be dealt with at the trial was the 2012 will so that evidence to prove the 1998 will would not be admitted at the trial”. Briggs LJ then said, at paragraph 32 of his judgment:

“It seems to me that [Mrs Payne] will need, if she is going to persuade the full court to admit that evidence rather than simply rely upon the judge’s record of her own evidence, to take further steps to explain in detail the advice she was given and how it was she thought that her counterclaim, which was for the validity of the 1998 will, was not going to be tried at the trial of the proceedings at the same time as the claim which was the claimant’s claim to pronounce in favour of the 2012 will. I do not feel that I have the necessary papers to enable me to decide that. If [Mrs Payne] wishes to pursue the application, she will also need, I think, to produce for the court the directions order made by Master Teverson at a hearing at which I think she was professionally represented at which I would assume, although I do not know because I have not seen it, that the Master would have been giving directions for the trial of the whole claim rather than only the claimants’ half of it.”

[21]Despite those clear words of warning, however, Mrs Payne took no effective steps to supplement her evidence before the hearing of the appeal, although she did supply a copy of one of the Master’s orders. She relied instead on a brief skeleton argument, which I will quote in full:

“1. There is no specified section on my late husband’s 1998 Will for the witnesses to “sign”

. All that was required was completed; this being • Name • Address • Occupation 2. I was never at any point instructed by former counsel that I should obtain further proof of the witness’s intention; e.g. Witness statements or Affidavits. 3. I am a litigant in person and was ignorant to the evidential requirements to prove the intention of the attesting witnesses. Neither did I know that this would be needed. 4. During the trial, when this signing issue came to light, I managed to obtain a witness statement from Mr Robert Gordon confirming his intention of attesting but this was objected by the Claimants barrister; therefore I could not use [it] in my evidence. 5. Since the trial I have now obtained sworn Affidavits from both the witnesses on my late husband’s 1998 Will – Mr Robert Gordon and Mr Michael Hogwood. These are enclosed.” • Name • Address • Occupation

[22]In addition, Mrs Payne wrote to the court shortly before the hearing, giving a slightly fuller account of her understanding of the advice which had been given to her by the barrister representing her on a pro bono basis. She said she understood the purpose of the trial to be “all in relation to the 2012 Will and nothing else”, and that her sister in law had been a witness to the conversation in which she was given this advice.

[23]Finally, arrangements were also made by Mrs Payne for one of the attesting witnesses, Mr Gordon, to attend the hearing of the appeal, and he confirmed in a letter to the court that he would do so and would be willing to give evidence.

[24]John Payne has also been a litigant in person at all times since Judge Faber delivered her judgment in late August 2015. His son Thomas, although nominally a party, has played no part in the appeal, although he was duly notified of it. John Payne attended the hearing in person, accompanied by his mother, but he chose not to file a skeleton argument. He made his position tolerably clear in some earlier emails to the court, which we have taken into account even though he was refused permission to rely upon them.

The oral evidence of Mr Gordon

[25]Since neither side was legally represented, we decided that the best way to proceed would be to hear the evidence of Mr Gordon on a provisional basis, giving each party the opportunity to put questions to him, and that we would then hear the parties’ submissions on the appeal, including on the question whether Mr Gordon’s evidence should be admitted, and (if so) what weight we should attach to it.

[26]Mr Gordon was then duly sworn, and gave his evidence. He did so clearly and confidently, and I have no doubt that he was a truthful witness with a reliable recollection of the events which he described. He verified the contents of his statutory declaration, and of the informal statement which he had provided for Mrs Payne during the trial. When asked to explain in his own words what had happened in May 1998, he said that he had received a telephone call from Mrs Payne asking him to pop down to their house (they lived in the same road) and that he had then done so. The persons present were the Deceased, Mrs Payne, and a friend of theirs who was unknown to Mr Gordon. They all sat around a table, for the purpose of executing the 1998 Will. The Deceased signed it first, and the two witnesses then filled in their names, addresses and occupations in the appropriate places on the form, each using his own pen to do so. When the process was complete, they had a cup of tea together and the witnesses then left the house.

[27]If this evidence is admitted, it seems clear to me that it provides strong support for Mrs Payne’s case. The two witnesses were each present when the Deceased signed the will, and by separately filling in their details in the specified places on the will form the natural inference to draw is that they thereby intended to write their names as witnesses of the Deceased’s signature. That was why they had been asked to come to the Deceased’s home, and there can be no sensible reason to doubt that they were doing precisely what the printed attestation clause said they were doing, namely subscribing their names as witnesses: compare Sherrington v Sherrington

[2005] EWCA Civ 326

[2005] WTLR 587

, at [38] and [41]. The absence of a conventional signature is hardly surprising, given that the form provided no separate place for their signatures to be appended.

The requirements of due attestation

[28]Section 9 of the Wills Act 1837, as substituted by the Administration of Justice Act 1982 in relation to wills taking effect after that year, provides as follows: “Signing and attestation of wills 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 form of attestation shall be necessary.” (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),

[29]In relation to deaths before 1 January 1983, section 9 of the 1837 Act stated that:

“No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

[30]It will be noted that, although the substituted section 9 requires each witness to attest and sign the will, the original version of the section does not use the verb “sign” except in relation to the signature of the testator. In relation to the witnesses, the requirement was that they should “attest and… subscribe” the will. I do not think, however, that this was intended to be a change of any substance. The purpose was, rather, to use the ordinary modern English word “sign” rather than the more archaic “subscribe”. The points of principle which the 1982 amendments were intended to deal with are quite different, and arose from recommendations made in the 22nd Report of the Law Reform Committee on the Making and Revocation of Wills (Cmnd 7902: May 1980), namely: a) relaxation of the former rule that the testator’s signature had to be placed at the foot or end of the will, so that the signature may now be placed anywhere on the will provided it is apparent on its face that the testator intended his signature to validate it; and b) the introduction of a provision that an acknowledgment of his signature by an attesting witness shall have the same effect as his actual signature, whereas no provision had previously been made for such an acknowledgment to suffice.

[31]I am therefore firmly of the view that the requirement, since 1983, for an attesting witness to “sign” the will should be construed as meaning the same as the previous requirement that the witness should “subscribe” the will. The change in wording has the potential to cause confusion, however, if it is interpreted as suggesting that a “signature” is required, in the sense of an identifiable and probably unique personal mark, as when signing a cheque or other formal document, rather than merely writing one’s name with the intention that the act of writing it should operate as an attestation. The latter sense is perhaps more easily conveyed by the more antiquated language of subscription, but in the present context I have no doubt that the requirement for an attesting witness to sign the will may still be satisfied in the same way. Otherwise, the amendments made in 1982 would have had the wholly unintended, and regrettable, effect of introducing a new restriction on the form of writing that is needed to constitute an attestation of the will by a witness.

[32]The problem in the present case is partly caused by the fact that the printed form used for the 1998 Will appears to be one that pre-dated the 1982 amendments: hence the reference in the attestation clause to the witnesses having “subscribed” their names. Indeed, a reference at the foot of the backsheet suggests that the form probably dates from May 1973. It is thus easy to understand how the judge may have been misled into thinking that a signature in the usual modern sense was required.

The original of the 1998 Will

[33]A further problem is that the judge and the parties did not have a complete copy of the 1998 Will to work from, and they were unable to inspect the original even though it was known by Mrs Payne to be held at the Winchester District Probate Registry. This was a serious procedural irregularity that should never have been allowed to happen. It has long been a requirement in probate claims that “Any testamentary document of the deceased person in the possession or control of any party must be lodged with the court”: see CPR rule 57.5(1). “Testamentary document” is widely defined, by rule 57.1(c), as meaning “a will, a draft of a will, written instructions for a will… and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed”, and “will” includes a codicil. By virtue of rule 57.5(2), unless the court otherwise directs, the testamentary documents must be lodged in the “relevant office” by the claimant when the claim form is issued, and by a defendant when he acknowledges service. In the present case, the “relevant office” would initially have been the Bristol District Registry.

[34]Furthermore, the claimant and every defendant who acknowledges service of the claim form is obliged by rule 57.5(3) and (4) to file written evidence, at the same early stage, which must:

“(a) describe any testamentary document of the deceased of which he has any knowledge or, if he does not know of any such testamentary document, state that fact, and (b) if any testamentary document of which he has knowledge is not in his possession or under his control, give the name and address of the person in whose possession or under whose control it is or, if he does not know the name or address of that person, state that fact.”

As the notes to the White Book state, at paragraph 57.1.1 of the 2018 edition, it is essential that the rule about testamentary documents in CPR 57.5 is adhered to so that the court has available to it as soon as possible the material necessary to decide whether the existing parties are the correct parties, whether new parties should be added and whether notice of proceedings should be served on non-parties. In order to allow sufficient time for a defendant to comply with this rule, the time for acknowledging service in probate cases is extended to 28 days: see rule 57.4(2). A further incentive to compliance with the rule is provided by rule 57.5(5), which states that:

“Except with the permission of the court, a party shall not be allowed to inspect the testamentary documents or written evidence lodged or filed by any other party until he himself has lodged his testamentary documents and filed his evidence.”

[35]In the present case, it seems that these requirements were complied with by John Payne when the claim was issued in August 2014, but although Mrs Payne filed an acknowledgment of service she evidently failed to comply with them herself, and for some unexplained reason the point does not appear to have been picked up when the case was transferred to the Chancery Division in London and a hearing for directions took place before Master Teverson on 7 January 2015. By this stage, Mrs Payne was represented by counsel instructed through the Bar Pro Bono Unit, and although she had not filed a defence in due time, a draft of her proposed defence and counterclaim was provided to the court. The Master gave directions extending time for the filing of her defence and counterclaim until 8 January 2015, with permission to the claimants to file and serve a reply and defence to counterclaim by 4 February 2015, and he directed a costs and case management conference to take place on 12 February 2015.

[36]In the event, the timetable for filing Mrs Payne’s defence and counterclaim seems to have slipped, because the document in our bundle is dated 30 June 2015; and if any reply and defence to counterclaim was ever served, we have not seen it. Nevertheless, the further hearing on 12 February 2015 did take place, attended by counsel on both sides, and the Master then gave directions for trial of the action following transfer to the County Court at Central London on the first open date after 1 June 2015 with a time estimate of three days. Meanwhile, there was to be standard disclosure of documents, and exchange of witness statements by 24 April 2015. The order said nothing about the defence and counterclaim, which as I have noted had apparently not yet been filed, despite the direction given on 7 January 2015. Instead, the February order expressly noted that Mrs Payne was not putting forward a positive case that the 2012 Will was not signed by the Deceased, but rather her case was “that by reason of the circumstances the document was not executed or witnessed on 1 April 2012”.

[37]With two unrepresented parties before us, it is difficult to know what to make of the procedural history which I have tried to piece together. On any view, the management of this case appears to have been unsatisfactory, and everybody seems to have lost sight of the imperative need for Mrs Payne to comply with the requirements of rule 57.5. It also seems possible that, as at the hearing on 12 February 2015, Mrs Payne was no longer intending to pursue her counterclaim, but was concentrating instead on the execution of the 2012 Will, in the mistaken belief that proof of the 1998 Will would be a mere formality if the 2012 Will could be eliminated. No competent counsel advising Mrs Payne could have given such advice, and with the scanty material available I certainly do not wish to criticise the barrister who was acting for Mrs Payne on a pro bono basis. But equally I feel unable to rule out the possibility that Mrs Payne, perhaps through a misunderstanding, gained the false impression that the trial directed by the Master was to be limited to an investigation of the formal validity of the 2012 Will.

[38]Even if that was the position, however, I do not see how the misapprehension could reasonably have continued after Mrs Payne’s defence and counterclaim was eventually filed, and by the time the case came on for trial before the judge, it should have been obvious to Mrs Payne that the validity of both wills was in issue. That is clearly what the judge understood the position to be, although the passage which I have quoted from her record of Mrs Payne’s cross-examination suggests that Mrs Payne may still have failed to recognise the need for her to adduce positive evidence in support of the 1998 Will.

[39]Be all that as it may, one most unfortunate result of the procedural history which I have outlined is that the case came on for trial without the court or the parties having seen the original of the 1998 Will, even though Mrs Payne produced an email from the Winchester District Probate Registry on the third day of the trial confirming that they held the original of it. As I have already said, no steps were taken to remedy this omission before the hearing of the appeal, so we too had to proceed with only the cropped photocopies used below. We said, however, that we were not prepared to give judgment until the original had been produced, and we then made an order for its production which was duly complied with on 3April 2018. (Although the 1998 Will was held in Winchester, the order for its production had to be made through the Leeds District Probate Registry, which apparently deals with all such requests).

[40]Inspection of the original reveals that the printed form of the 1998 Will is on the first page of a document in double foolscap format, with a vertical fold in the middle, thus creating a single document with four foolscap pages. The foolscap format in itself probably gives a good indication of the form’s likely date. It also explains why the A4 photocopies which we have seen are cropped at the top and the bottom. The cropped margin at the top reveals what appear to be the signatures of Mrs Payne and a solicitor, above the words “Executor” and “Solicitor” written in faint pencil, while the cropped margin at the bottom shows Mr Gordon’s occupation as “costume designer” and, importantly, beneath that the words “For Directions see next page”. The directions, which had not been photocopied, and of which everybody was presumably in complete ignorance at the trial, included this:

“4. Every Will should be first signed at the foot or end thereof (the signature of the Testator to be on the next line following the end of the writing) – by the person making it, or by some other person in his presence and by his direction; such signature must be in the presence of at least two witnesses who must sign their names and addresses against the attestation clause before either leaves Testator’s presence. It is not necessary that the witnesses should know the contents of the Will – all they have to do is to witness the Testator’s signature. ”

[41]This direction provides further confirmation that the form pre-dates the 1982 amendments to section 9 of the 1837 Act, because of the reference to the testator’s signature being at the foot or end of the will. It also shows that the publisher of the form, correctly in my view, drew no distinction between the reference to the attesting witnesses subscribing their names as witnesses (in the attestation clause) and the direction that they must “sign their names and addresses against the attestation clause”.

[42]Finally, inspection of the original shows that the details entered for Mr Hogwood are in a different coloured ink (blue) from those entered for Mr Gordon (in black). As I have said, it is also clear that the entries are in two different hands, albeit in capital letters.

[43]In short, the original of the 1998 Will is clearly consistent with the oral evidence of Mr Gordon, and if the document is read as a whole, in the light of the printed directions, it gives every appearance of having been validly executed. Furthermore, the presence on it of the signature of a person who was apparently a solicitor provides some reassurance that the document is genuine, as well as corroboration of Mrs Payne’s statement to us that, after the 1998 Will had been executed, she took it to her (or possibly the Deceased’s) solicitors who sent it on to the Winchester Probate Registry for safe keeping.

Discussion and conclusions

[44]Although I have much sympathy for the judge, who clearly did her best to deal fairly with Mrs Payne’s counterclaim in very difficult circumstances, there are in my judgment significant grounds for concern about the judge’s decision to reject the 1998 Will. In the first place, the judge pronounced against it even though it appeared on its face to be validly executed, and there was no requirement in law for the witnesses to have “signed” the will in the usual modern sense of that word, as opposed to writing their names with the intention of attesting it. Secondly, the judge reached her decision without having seen the original of the 1998 Will, even though it was known by the end of the trial to be held in the Winchester District Probate Registry, and it was clear from the photocopies of it in evidence that the full text had not been reproduced, at least at the foot of the page. Thirdly, the judge knew that Mrs Payne belatedly wished to adduce written evidence from the two attesting witnesses, but she seems to have taken the view that this could not be permitted unless the claimants consented, which (through their counsel) they did not. Although Mrs Payne was a litigant in person, the judge does not seem to have considered, if necessary of her own motion, whether the interests of justice might have required an adjournment so that the original of the 1998 Will could be obtained, and arrangements could be made for the attesting witnesses (or at least one of them) to attend court and give oral evidence.

[45]A further very relevant consideration, which the judge appears to have completely ignored, is the strong public interest in valid testamentary dispositions being upheld. This public interest is reflected in many of the special procedural provisions which apply to contested probate proceedings, including those relating to the lodging in court of testamentary documents, and the early provision of written evidence about them, to which I have already referred. Other special provisions include: a) the requirement in CPR 57.4(1) for a defendant who is served with a claim form to file an acknowledgment of service, with an extended period of 28 days for doing so; b) the requirements in rule 57.7 relating to the contents of statements of case, and the need to give specific particulars of any contention that a will was not duly executed, that the testator lacked testamentary capacity, or that the execution of a will was obtained by undue influence or fraud; c) the obligation, under rule 57.8, to bring a counterclaim, if a defendant wishes to propound a different will; d) the rule that a default judgment cannot be obtained in a probate claim; and e) the disapplication of the usual rules on discontinuance of actions in CPR Part 38.

[46]As the notes in the White Book explain, at paragraph 57.11.1:

“If the last will is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for in solemn form or (if there is no earlier will) an intestacy declared. Where genuine doubts exist as to the validity of a testamentary document, the court may be willing as part of a compromise to pronounce against that document, but the court will not as part of a compromise be willing to pass over a testamentary document (either a will or codicil) which is apparently a valid document and as to which there is no evidence of invalidity… Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested.”

[47]No doubt because of these special features of probate practice, contentious probate claims in the High Court are assigned to the Chancery Division, and probate claims in the County Court may only be started at hearing centres where there is also a Chancery district registry, or in the County Court at Central London: see rule 57.2. More generally, as Cairns J said in In reMuirhead, Deceased

[1971] P 263

at 265E:

“I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents.”

[48]If the judge had had these considerations in mind, as well as the unsatisfactory procedural history which I have related, she ought in my judgment to have concluded that she could not safely pronounce against the 1998 Will without it being produced to the court, and without an opportunity for evidence to be given by at least one of the attesting witnesses. The special importance of hearing evidence, if at all possible, from an attesting witness is reflected in the long-established rule that such a witness is treated as a witness of the court, whose duty it is to give to any party who asks for it an account of the circumstances in which the will was executed: see Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 21st edition, paragraph 32-10. Furthermore, the cases establish that at least one attesting witness must be called, if available, in a defended case: ibid, Oakes v Uzzell

[1932] P 19

, Bowman v Hodgson (1867) 1 P & D 362 and Belbin v Skeats (1858) 1 Sw. & Tr. 148.

[49]In the light of these principles, the judge was in my respectful opinion wrong to pronounce against the 1998 Will on the basis of the evidence as it stood at the conclusion of the trial. She should have appreciated that the issue could not be justly resolved without production of the 1998 Will itself, and without hearing evidence from at least one of the attesting witnesses. This would have necessitated an adjournment, but there are occasions, of which this was one, when an adjournment is the price which has to be paid if justice is to be done. It also follows, in my view, that Mrs Payne’s application to adduce fresh evidence on her appeal must be granted, because without the evidence of Mr Gordon the court is unable to pronounce on the validity of the 1998 Will, and the interests of justice require that it should be admitted to probate if it was validly executed. Although an appellate court will not normally grant permission for fresh evidence if it could with reasonable diligence have been adduced at trial, in accordance with the well-known principles in Ladd v Marshall

[1954] 1 WLR 1489

(CA), those principles do not place the court in a straitjacket, and there are times when the overriding objective of enabling the court to deal with cases justly must prevail even where the evidence in question could and should have been obtained in good time for the trial. I am satisfied that the present case is one of that character, with the consequence that we should admit the evidence of Mr Gordon. When his evidence is taken into account, in conjunction with the original of the 1998 Will, I am left in no doubt that the 1998 Will was validly executed.

[50]I would accordingly allow Mrs Payne’s appeal, and, if Flaux LJ agrees, this Court will pronounce in solemn form of law for the force and validity of the 1998 Will.

[51]In reaching this conclusion, I have taken into account the brief oral submissions which John Payne made to us at the hearing. He questioned whether the court could properly proceed on the evidence of only one of the attesting witnesses, but the authorities are clear that it is unnecessary for both of them to be called, and Mrs Payne was able to satisfy us that she had made all reasonable efforts to contact Mr Hogwood during the weeks leading up to the hearing before us, but with no success. As to the oral evidence of Mr Gordon, John Payne merely said that “it is what it is” and left us to make of it what we would. As I have explained, I have no hesitation in accepting Mr Gordon’s evidence.

[52]It is also important that John Payne should now recognise and accept that our decision on the validity of the 1998 Will is final and conclusive. Once the 1998 Will has been pronounced for in solemn form, its validity is established as against the whole world, and it is no longer open to him to challenge it. I emphasise this point, because it appears that in the few weeks since we reserved our judgment he has already made a wholly misguided attempt to enter a caveat in relation to the 1998 Will. This conduct must now cease, and he must accept that the 1998 Will is the true last will and testament of his father.

Flaux LJ:

[53]I agree.