Sharp v Hutchins [2015] EWHC 1240 (Ch)

[2015] EWHC 1240 (Ch)Case No HC-2013-000398IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONIN THE ESTATE OF RONALD HUBERT BUTCHER DECEASEDVenue The Rolls Building, 7 Rolls Building, Fetter Lane, London EC4A 1NLDate Friday 1 May 2015
Before
Ms Lesley Anderson QC
Between
DANIEL BRYAN SHARPClaimantEVELYN VALERIE HUTCHINSDefendant
Jennifer Seaman (instructed by Ratcliffes, Sittingbourne) for ClaimantAraba Taylor (instructed by Premier Solicitors, Bedford) for DefendantHearing Hearing dates: 27 (reading day), 28 and 29 April 2015
JUDGMENTMs Lesley Anderson QC sitting as a Deputy High Court Judge:Preliminary
[1]This is a probate action concerning the testamentary wishes of Ronald Hubert Butcher (“Mr Butcher”). As observed by Peter Gibson LJ in Fuller v Strum [2002] 1 WLR 1097 at [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.”
[2]The issue for the Court is whether to pronounce in solemn form in favour of a will dated 5 January 2013 (“the 2013 Will”) as contended by the Claimant on the Claim or in favour of a will dated 4 December 2011 (“the 2011 Will”) as contended by the Defendant on the Counterclaim. The Defendant challenges the 2013 Will for want of knowledge and approval on the part of Mr Butcher.[3]The Claimant is Daniel Bryan Sharp, the Executor and sole beneficiary under the 2013 Will. He is known generally as Danny and I refer to him as such in this judgment.[4]The Defendant is Evelyn Valerie Hutchins (“Evelyn”), the Executor and one of three beneficiaries under the 2011 Will. The other beneficiaries are Evelyn’s brother Peter Alan Rogers (“Peter”) and Joyce Gilkerson (“Joyce”) who is a cousin of Mr Butcher on his mother’s side.

Agreed Matters

[5]Although as I shall explain, some of these matters had been in issue on the pleadings, by the time of the trial before me it was common ground as a matter of fact that: 5.1. Mr Butcher had capacity at the time he executed both the 2011 Will and the 2013 Will; 5.2. The 2013 Will is duly executed being executed by Mr Butcher in the presence of two witnesses who have attested to his execution in accordance with s9 Wills Act 1837; 5.3. Both the 2011 Will and the 2013 Will read rationally; 5.4. Both parties were surprised as to the contents of the 2013 Will.[6]In particular, although Evelyn had initially contended that Mr Butcher’s signature was a forgery, this point was conceded on her behalf on the first day of the trial. The background to the concession is that the parties had been permitted by the Order of Master Bragge dated 24 April 2014 to adduce the evidence of a single joint expert in the field of handwriting. The expert instructed was Robert Radley MSc, C Chem, FRSC, FCSFS, FSSoc Dip, FAE, RFP who is a Registered Forensic Practitioner specialising in the examination of handwriting and documents at The Radley Forensic Document Laboratory Limited. His report dated 5 November 2014 confirms that in his opinion there was strong evidence to support the proposition that Mr Butcher signed the 2013 Will and he considered it unlikely that another individual had copied his general signature style. Faced with that evidence, Evelyn had no realistic choice but to make the concession.[7]The pleaded issues between the parties were further narrowed by the production, on the first day of trial, of the original of the 2011 Will. That meant it was no longer necessary for me to consider the argument advanced on behalf of Danny in connection with Evelyn’s Counterclaim that, absent the original, it was to be presumed that the 2011 Will had been revoked by Mr Butcher during his lifetime.

Relevant law

[8]Section 9 of the Wills Act 1837 provides that 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.[9]It is also common ground that as a matter of law: 9.1. It is a fundamental principle of English law that people should in general be free to leave their property as they choose and so the Court should be cautious before accepting that a will is open to challenge; 9.2. Before a will is admitted to probate the Court must be satisfied that the testator knew and approved its contents at the date he executed it. Knowledge and approval is different from capacity – Hoff & Ors v Atherton [2005] WTLR 99 at [62] per Chadwick LJ; 9.3. As the propounder of the 2013 Will, it is for Danny to satisfy the Court, on the balance of probabilities, that Mr Butcher understood the nature and effect of, and sanctioned the dispositions in the 2013 Will; 9.4. In the ordinary case, proof of testamentary capacity and due execution is sufficient to establish knowledge and approval which is then assumed – see Williams on Wills 10th (2014) at [5.1] to [5.4], Barry v Butlin (1838) 2 Moo. P.C. 480 at 484 and Fuller v Strum, supra at [77]; 9.5. But affirmative evidence of knowledge and approval is required in cases where the circumstances relevant to the preparation and execution of the will (but not extraneous circumstances) “excite the suspicion of the Court” – see Williams, supra, Fuller v Strum at [33] and Re R (Deceased) [1951] P. 10 at 17; 9.6. It is not essential to prove that a will originated with the testator and therefore proof of instructions may be dispensed with, provided that it is proved that the testator completely understood, adopted and sanctioned the disposition proposed to him and that the instrument itself embodied that disposition – see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed) at [13.25]; 9.7. It is important to note that the Court is not engaged in some form of approval or disapproval – its task is to assess the evidence and to reach conclusions as to the facts on the balance of probabilities and, as Ms Taylor stressed, the question is whether the contents do truly represent the testator’s testamentary intentions.[10]Prior to the decision of the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430 it was generally thought appropriate to apply what is referred to as a two stage test to the issue of knowledge and approval. It is convenient in this regard to set out what Lord Neuberger MR said at paragraph [21]:
“The judge approached the issue of knowledge and approval on a two stage basis. He first asked whether Dr Gill had established sufficient facts “to excite the suspicion of the court”, which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the will. This approach accords with Parke B’s analysis in Barry v Butlin 2 Moo PC 480, quoted by Lindley LJ in Terry v Painton [1894] P 151, 156-157, referred to above, and it is reflected in the approach in a number of other cases.”
[11]Although Lord Neuberger in Gill did not rule out use of the two stage approach for the future, it is clear from the judgment at [22] that he favoured instead a single stage approach:
“Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix’s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in Re Crerar (unreported) but see (1956) 106 LJ 684, 695, cited and followed by Latey J. in In re Morris, decd [1971] P 62, 78 namely that the court should “consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.”” “consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.””
[12]The so-called single stage approach was considered and applied by Norris J. in Wharton v Bancroft [2011] EWHC 3250 Ch at [27] to [29], a passage relied on by both Counsel before me:
“27 The overall burden lies on the claimant to produce evidence sufficient to prove the 2008 Will. Certain evidential presumptions may assist in the discharge of that burden: but the circumstances may indicate that the propounder is required positively to prove what in other circumstances might be presumed or inferred from proof of other facts. 28 The daughters in their Re-Re-Re Amended Defence and Counterclaim assert that Mr Wharton did not know or approve the contents of the 2008 Will. My approach to that issue (informed by the familiar authorities as reviewed and commented on by the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430) is as follows:- (a) The assertion that Mr Wharton did not “know and approve” of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions. (b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense. (c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute). (d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph [14], that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time. (e) But proof of the reading over of a will does not necessarily establish “knowledge and approval”
. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself. (f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn. (g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge. (h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator. 29 A challenge on the grounds of want of knowledge and approval is not precluded by the Daughter’s admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but need to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect: see Hoff v Atherton [2004] EWCA Civ 1554 at [64].”[13]I was also referred to the helpful passage in the judgment of Lewison LJ in Simon v Byford & others [2014] EWCA Civ 280 at [47]:
“When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed. The reason for the requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland [2010] EWCA Civ 840; [2011] Ch 270 at [25]. Normally proof of instructions and reading over the will will suffice: ibid at [25]. The correct approach for the trial judge is clearly set out in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380. It is a holistic exercise based on the evaluation of all the evidence both factual and expert.”
[14]There were some differences of emphasis between Counsel as to the respective legal tests to apply, I am satisfied that in the light of these authorities that: 14.1. The correct approach in the first instance is to apply the single stage test which requires me to ask did Mr Butcher understand(a) what was in the 2013 Will when he signed it and(b) what its effect would be? 14.2. The two stage test can usefully be deployed as a cross-check to the conclusions reached using the single stage test; 14.3. As noted by Lord Neuberger in Gill at [23] whether one approaches the issue using the single question, which he thought preferable, or the two stage approach, the answer should be the same.[15]Against that legal background, I turn to consider the witnesses and the relevant evidence. I do so bearing in mind Ms Taylor’s reminder (which she amplified by reference to Gill at [24] and [28]) of the sort of evidential factors which are likely to be relevant in a case concerning knowledge and approval.

Witnesses

[16]As well as giving evidence himself, I heard evidence on behalf of Danny from the two attesting witnesses to the 2013 Will: John Edward Crowder (“Mr Crowder”), a financial adviser and Matthew Cooke (“Mr Cooke”), a plumbing and heating engineer.[17]I heard evidence on behalf of Evelyn from Evelyn herself, Peter, Joyce (through a video link) and Brenda Coomber (“Mrs Coomber”). Mrs Coomber had come to know Mr Butcher when she joined the Enfield Stroke Association Club run by Lynda Rogers (Evelyn and Peter’s mother).[18]By a hearsay notice dated 27 April 2015 (the first of the trial), Evelyn gave notice pursuant to section 2 of the Civil Evidence Act 1995 and CPR 33.2 that Sara Annie Nunns (“Mrs Nunns”) could not be called as a witness to give oral evidence for medical reasons. In short, Mrs Nunns had been injured in an assault abroad resulting in a double fracture to her arm and bruising to her leg and is now suffering panic attacks as a result. Although she was physically able to travel from her home in Leeds to London for the trial, her Doctor had advised her not to travel or to be in a stressful environment. Ms Seaman for Danny, realistically, did not object to this evidence being read and I permitted the Hearsay Notice to be served notwithstanding its lateness.[19]Finally, I was assisted by the opinion evidence of the following experts: 19.1. A report of Jonathan Chan BSc (Hons) FRCOphth FRCS (ED) FRCSI (“Mr Chan”). The report itself is not dated but it was also served pursuant to the case management Order of Master Bragge to which I have referred above. 19.2. The report of Robert Radley to which I have already referred.

The Facts

[20]Many of the facts are not in issue. Where there is a dispute, these are my findings as to the facts. It is convenient to deal with my assessment of the relevant witnesses as they arrive in the, broadly chronological, narrative.[21]Mr Butcher was born on 4 October 1939. He was a bachelor and lived alone in a two bedroomed bungalow at 42 Russell Road, Enfield, London EN1 4TW (“the Bungalow”). He had no surviving parents and no children. He was obviously close to his only sibling, Yvonne Butcher (“Yvonne”) with whom he lived in the Bungalow but she died in 2002.[22]Mr Butcher’s deemed date of death is 5 May 2013 which is the date his body was discovered by police at the Bungalow. The post mortem examination report of Barbara T. Borek, forensic pathologist, reveals that his death was the result of a spontaneous intracranial haemorrhage. Sadly, there is some evidence (including unopened mail from 10 March) to suggest that the date of death was much earlier in mid-March. He was 73. According to interim estate accounts for the period 5 May 2013 to 27 April 2015 prepared by The Co-Operative Legal Services on behalf of the administrator pending suit the net estate is in the region of £472,295.00.[23]It is common ground that, despite having diabetes and being a smoker and someone who liked a drink, Mr Butcher was in good physical and mental health at the time he died. All of the witnesses who knew him describe a private and reserved man whose interests were mainly socialising; gardening (by all accounts the garden at the Bungalow was immaculate); woodwork (which he undertook in his garage) and holidays and short breaks. He particularly enjoyed traditional big band jazz and, for example, entries in his wall calendar and diary for 2013 show he was booked on to a “Big Band Sounds” break at the end of May and for a Jazz Festival in September. The extent to which he may, or may not, have enjoyed sports was in issue and I will return to it below.[24]Mr Butcher’s one surviving relative appears to have been Joyce. Joyce gave evidence by video link from her home town of Plymouth. Joyce’s parents moved to Wales the year that Mr Butcher was born and she was brought up there. Mr Butcher’s mother Vera was the sister of Joyce’s father. I have no hesitation in accepting her evidence that the two families were extremely close and, at that time, they visited each other regularly. After she married, she moved to Devon and although in the past they would continue to meet up regularly (usually when Mr Butcher’s family travelled to Devon on holiday), latterly that had not been possible owing to her and her husband’s health. She told me she last saw Mr Butcher in Devon in 2008. They last spoke on his birthday in October 2012 and in the same month she received a card from him on her birthday. They exchanged their usual Christmas cards in 2012.[25]To Evelyn and Peter, Mr Butcher was simply “Uncle Ron”. Their mother Lynda Rogers (“Lynda”) was a school-friend of Yvonne and although they were not in fact related, there is no dispute that the entire Rogers family was close to Mr Butcher. Evelyn was Yvonne’s god-daughter. Joyce refers to the great friendship and love that existed between the families but it is clear that this was especially between Lynda, Yvonne and Mr Butcher who had been at school together.[26]Although as can be seen from this judgment, I am able to accept large amounts of the evidence of Evelyn and Peter, I do exercise some caution in relation to both of them, especially in relation to their suspicions, because in the main those suspicions were unsupported by either primary facts or facts from which proper inferences could be drawn. For example, it appears they ran the argument that Mr Butcher’s signature on the 2013 Will was forged without any evidential basis for such a serious assertion and, despite not knowing him at all, Peter persisted in saying that Danny was lying even about things such as his friendship with Mr Butcher when Peter could not possibly have known what was the true position. He persisted in branding Mr Crowder and Mr Cooke liars after they had given evidence and well beyond the point at which such a view could fairly and sensibly be maintained.[27]Evelyn gave evidence that in 1991 Mr Butcher and Yvonne made similar wills. There was no copy of any such will or even a draft before the Court – only a copy of the signed and witnessed will of Yvonne dated 9 July 1991. In that, Yvonne appointed Mr Butcher to act as her Executor (or in the event that he was unable or unwilling to act she appointed Lynda) and provided for the residuary estate to go to Mr Butcher provided he survived her by 30 days and, if not, to be divided in four equal parts to be shared between Gwen Hunt (“Gwen”), Joyce, Evelyn and Peter. Gwen Hunt was another of Yvonne and Mr Butcher’s cousins but she died in 2005. Although no copy of a will for Mr Butcher exists, I accept Evelyn and Peter’s evidence that such a will existed and that it was in similar form to that of Yvonne and I will refer to it as the 1991 Will. Bearing in mind that they were living together in the Bungalow and had no spouses or children it seems to me highly probable that they would make provision to leave their estate (especially the Bungalow) in this way.[28]It is therefore not surprising that, following Yvonne’s death, Mr Butcher appears to have made a new will. Although only a draft exists, I accept the evidence of Evelyn and Peter that a will in substantially the terms of this draft was executed by Mr Butcher and I will refer to this as the 2003 Will. It is almost identical in form to the 1991 will made by Yvonne and I accept Evelyn’s evidence that the 1991 and 2003 Wills were made by Mr Butcher with the assistance of Lynda who typed them up and without the involvement of any professionals such a solicitor or professional will writer. The 2003 Will provided for Lynda to be appointed as Executrix (or if she was unable or unwilling to act, Gwen) and for Mr Butcher’s residuary estate to be divided into four equal parts to be shared between Lynda, Gwen, Joyce and the fourth part equally between Evelyn and Peter.[29]Although Mrs Coomber gave some evidence about Lynda telling her about a will by which Mr Butcher left his estate to Lynda, Evelyn, Peter and Joyce, this cannot be a reference to either the 1991 Will or the 2003 Will and I am inclined to think that she is mistaken on this point. Mrs Coomber knew Mr Butcher through their shared attendance at the Enfield branch of the Stroke Association Club which was run at the time by Lynda. She had no particular reason to remember the precise details of Mr Butcher’s will as described to her by Lynda.[30]In her witness statement, Mrs Nunns also referred at paragraph [8] to a conversation in Mr Butcher’s presence following the death of Yvonne in which it was said that Mr Butcher had made a will in favour of a cousin, Mr and Mrs Rogers and their children. Because of the circumstances in which her evidence was admitted, she was not tested on this evidence. It is not entirely consistent with either the 2003 Will or the 2011 Will and, again, I am inclined to think that she is also mistaken for the same reasons. It is not really in issue that in previous wills, Mr Butcher had favoured the Rogers family (in some shape or form) or his cousins Joyce or Gwen.[31]Danny is a builder. His evidence was that he knew Mr Butcher for about 6 years prior to his death which would mean that they first met in about 2007. They first met when Danny (who lived at the time in Welling in Kent) was in the Enfield area doing some work for his wife’s cousin. Whilst Danny was at a sandwich or take-away bar, he says Mr Butcher saw his van (marked “Danny Sharp Building Services”) and approached him and asked for help with a water leak. He agreed to go to the Bungalow and diagnosed the problem as a blocked concrete gutter which he quickly fixed. He did not charge Mr Butcher. A few weeks later Mr Butcher contacted him again and asked him to quote for a new kitchen to replace his old one (which Danny said was very dated) but despite him providing him with a number of ideas they never got to the stage of him providing a quote because Mr Butcher could not make up his mind what he wanted. His evidence was that he would call in to see Mr Butcher at the Bungalow when he was in the Enfield area which was typically every six weeks or so, initially in the hope of winning the business, but latterly when they would exchange small talk about subjects like the weather, the Bungalow and sport, especially boxing. Mr Sharp is a boxing coach and his son Archie boxes for England and he said he left with Mr Butcher specialist boxing magazines, often with articles about his son.[32]Danny’s evidence about the friendship with Mr Butcher was hotly contested by Evelyn and Peter (and, less assertively, by Joyce, Mrs Nunns and Mrs Coomber). The essential basis of challenge was that Mr Butcher had no need to look for friends outside the existing close family/friend/Stroke Club circle and had never mentioned Danny to any of them. They said Mr Butcher had no interest whatsoever in sport and so there would have been no common ground with Danny. Mr Butcher had carpentry and DIY skills and so had no need to use Danny to assist with minor odd jobs as he alleged and they rejected the notion that Danny had left boxing magazines.[33]It seems to me that, in light of all of the evidence I have heard, all of these bases of challenge are flawed. Danny described Mr Butcher as being a bit lonely and, having heard all the evidence, it seems to me that this description pretty much hits the mark. Evelyn was by this time busy with her own family and her job as a swimming teacher and tended to visit Mr Butcher mainly in the school holidays and at occasional family celebrations and funerals. Although there was no change in the exchange of Christmas and birthday cards and telephone calls she was understandably able to visit him only infrequently. Peter saw his Uncle Ron about 6 times between December 2011 and January 2013. Joyce was far away in Plymouth and unable to travel. Apart from possibly passing him in the street, Mrs Coomber said she had last seen Mr Butcher in 2011 at Lynda’s funeral.[34]I am satisfied there was no rift but that following the death of Lynda, which hit Mr Butcher very badly, there were changes in the relationship. Mr Butcher had chosen to spend Christmas and New Year 2012 alone rather than with Evelyn and Peter. But in any event it seems to me that there is nothing inconsistent between Mr Butcher maintaining his closeness to one circle of family/friends and striking a new, different, friendship with Danny. Perhaps it is precisely because he did not discuss sport with Evelyn, Peter and Joyce that he enjoyed doing so with Danny. More likely in my judgment, is that just as I find that Danny was kind to Mr Butcher (calling on him and doing odd jobs for him without charging which perhaps he did not need to do), Mr Butcher was kind to Danny, indulged his passion for talking and that the real shared interest was their mutual chat and banter and human interest stories (such as Archie’s success).[35]In her closing submissions, Ms Taylor invited me to find that the story of the friendship was “ludicrous and absurd” and suggested that if it was improbable even before Danny gave his evidence, it became less probable after hearing him. I have to disagree. Save in one respect which concerns the precise circumstances in which Danny was handed a copy of the 2013 Will (which I will return to below), I found Danny to be a truthful and straightforward witness and I believe his account of the friendship which was, as he fairly conceded, not close. His evidence was coloured by some improper speculation (especially about whether there had been a falling out between Mr Butcher and Evelyn and her family) but it seems to me that was an instinctive response first, to their implications of impropriety against him and secondly, to genuine embarrassment at the situation he found himself in as a result of the 2013 Will.[36]Returning to the chronology, on 16 October 2011, following Lynda’s death, Mr Butcher executed a Lasting Power of Attorney in respect of his property and financial affairs. It was witnessed by Margaret D’Annunzio (“Mrs D’Annunzio”) who lived next door at 40 Russell Road. It appointed Evelyn as his attorney and asked for notification of any registration of the Power of Attorney to be given to Joyce and Peter. Evelyn says, and I accept, the reason for this was that an earlier Power of Attorney appointing Lynda needed to be updated.[37]Later that year, Mr Butcher also updated his will. Evelyn says, and I accept, that in December 2011 he asked her if she would be the Executor under a new will and that she agreed. The 2011 Will is produced using a Lawpack will form and comprised one sheet with two sides, with handwritten entries in capital letters by Mr Butcher. It is signed by Mr Butcher (albeit under the part setting out his funeral wishes) and attested by Mrs D’Annunzio and her son, Francis. After revoking his previous wills and codicils it appoints Evelyn to be Executrix. It was complete before it was handed by Mr Butcher to Evelyn who said “There’s the will, please look through it” which she did.[38]The 2011 Will provides as follows:
“I GIVE MY WILL AND DIRECT MY EXECUTOR AND TRUSTEE SHALL BE ENTITLED TO BE PAID FOR ANY TIME EXPENDITURE DONE. MY TRUSTEE SHALL HOLD MY RESIDUARY AND ESTATE UPON TRUST TO PAY THE SAME DIVIDED THREE EQUAL PARTS TO: (1) EVELYN VALERIE HUTCHINS of 3 ADDISON AVENUE, SOUTHGATE, N14 4AL (2) PETER ALAN ROGERS of 233 LONSDALE DRIVE, ENFIELD, MIDDX EN2 7JZ (3) JOYCE GILKERSON of 16 CRANMERE ROAD, HIGHER COMTON, PLYMOUTH, DEVON PL4 5JY”
.

The 2013 Will

[39]I turn now to consider the circumstances in which the 2013 Will came to be prepared and executed. It is convenient to deal first with the evidence of the 2 attesting witnesses. Mr Crowder gave his evidence first during which Mr Cooke was excluded from court. Similarly, Mr Cooke gave his evidence in the absence of Mr Crowder. A striking feature of their evidence is the extent to which they agreed on their account of the events of Saturday 5th January 2013. I agree with Ms Taylor that Mr Cooke was the better witness and if there had been substantial matters of difference between them, I would have generally preferred the evidence of Mr Cooke. Unlike Mr Crowder for whom being asked to witness a will was a frequent if not everyday occurrence, Mr Cooke’s evidence was that, as a plumber, it was the first time he had ever been asked to witness someone’s signature on a will and that it was highly unusual. As such, it seems to me inherently more likely that Mr Cooke would remember the, for him, unusual events that day reliably. In any event, I found him to be a wholly truthful witness who was doing his best to assist the Court.[40]His evidence was that he attended at the Bungalow on that day at about 11am at the request of Mr Butcher in order to carry out some work to the bathroom. He did not have any independent recollection or record of the date and was able to relate to that day only because it was the date on the 2013 Will. Although he worked mainly in the bathroom it was necessary for him to go into the kitchen to turn the water on and off and he was aware of someone else (we now know to be Mr Crowder) who was with Mr Butcher at the table although he did not know what they were discussing. He described Mr Butcher coming to him whilst he was in the bathroom and asking him whether he would be a witness. He was not told it was a will, did not read it, watched Mr Butcher sign it and then Mr Crowder and he each added his own signature and details in that order. He describes Mr Butcher as physically fit, alert and attentive and he knew him as the man he done work for at the Bungalow on two previous occasions over the previous 12 to 18 months. Although he could not be sure, he thought the date had been written by Mr Butcher or was already there. There was no mention of Danny’s name. He then returned to his work. In all, he was at the Bungalow for 1.5 to 2 hours and the execution of the 2013 Will occurred about 30 to 40 minutes before he left. I accept this evidence.[41]Mr Crowder’s evidence was that he also attended that day at about mid-day at the request of Mr Butcher to discuss, in general terms, equity release products. He said the request was made by telephone and had no written record of it although he thought it would have been maintained electronically. There was no formal fact-finding because it was a preliminary discussion and, he said, he was mindful that Mr Butcher, in common with other customers for this type of product, was likely to be elderly and potentially vulnerable. He recalls someone (who we now know to be Mr Cooke) wandering about the house doing work. Shortly before he was due to leave Mr Butcher indicated that he could do something for him and produced the draft of the 2013 Will from an envelope. Mr Crowder said it was he who pointed out that 2 witnesses would be required which led to Mr Cooke being called in. He described how Mr Butcher signed, he signed and added his details and then Mr Cooke did so. He described the form of the will as being that of a Will-writer. He was there for about an hour in total of which roughly 20 minutes was spent over the 2013 Will. I am entirely satisfied that this part of the account by Mr Crowder is correct. If Mr Crowder was a little more cagey about his evidence than Mr Cooke, I think the real reason was that, contrary to the overall picture he sought to paint of the first part of the meeting, when he and Mr Butcher were discussing equity release products, he was trying actively to persuade Mr Butcher of their virtues and so more in “sales” mode than he wanted to let on. None of this undermines that the real reason for him being there was a genuine one.[42]As it is the only real matters of difference between Mr Crowder and Mr Cooke concerned the location of the table at which the 2013 Will was signed and who added the date to the will. After they had both given evidence, I was provided with a hand written layout plan of the Bungalow drawn by Danny and a more formal layout plan produced for Evelyn. Both show the table in the same place and in the place described by Mr Cooke, namely the dining/sitting room. Insofar as Mr Crowder suggests it was elsewhere, he was mistaken but bearing in mind his line of work, this type of mistake is not significant. I have no reason to doubt Mr Crowder’s evidence that he added the date to the 2013 Will.[43]Both Mr Crowder and Mr Cooke correctly describe Mr Butcher as being hard of hearing and having redness across his nose and cheeks. The latter is consistent with what Danny and Evelyn both said about Mr Butcher enjoying a drink (sometimes a few too many for Danny’s liking as he described how the otherwise reserved Mr Butcher would become more talkative and argumentative in drink). I am entirely satisfied that Mr Crowder and Mr Cooke saw Mr Butcher that day. It is supported by the evidence of Mr Radley that the 2013 Will had been completed in black ballpoint pen. Although he declined to express a view as to which was the most likely explanation for being unable to differentiate the inks on the document, it seems to me that, having regard to the evidence I have heard, the most likely explanation is that the same pen was used by all three of them.[44]Ms Taylor quite properly (within the limits of her professional obligations given that any case in fraud requires to be distinctly alleged and proved and not insinuated – see Ark v Kaur [2010] EWHC 2314 (Ch) at [43]) urged me to test this evidence by asking why Mr Crowder and Mr Cooke were there at the same time; why the appointments did not appear in Mr Butcher’s calendar or diary and why, given he had plumbers in the family and cash in the bank, Mr Butcher needed the services of Mr Cooke or Mr Crowder at all. She also relied on the evidence that Mr Butcher was, by all accounts, as I accept, a private man. She said he was unlikely to share his testamentary wishes with virtual strangers and that he could, as he had in 2011, asked Evelyn or Peter or the d’Annunzios to witness his new will. She also pointed to the inclusion in the 2013 Will of Danny’s full name – Daniel Bryan Sharp – when the only record of Danny found in the Bungalow after Mr Butcher’s death was a post-it sticker with the handwritten name “Danny Sharp” and his address and the inherent improbability that Mr Crowder would have had to tell Mr Butcher (who had made previous wills himself) that two witnesses were needed.[45]In my judgment, having heard the evidence of Mr Crowder and Mr Cooke, there is nothing suspicious about the events that day. As I have already noted, it is not necessary for me to decide how the 2013 Will came into existence but having regard to the date and the promptness with which the meetings were arranged, it seems to me highly likely that, like many of us, Mr Butcher had greeted in the New Year with new resolutions in relation to his financial affairs including updating his will. As with the 1991, 2003 and 2011 Wills, the 2013 Will was prepared and executed without the assistance of a solicitor and on templates readily available to someone wanting to make his own will. I accept the submission by Ms Seaman that a private man such as Mr Butcher might well not want to share his intention to benefit Danny with Evelyn or Peter or for that matter his neighbours. I accept Danny’s evidence that Mr Butcher knew his full name from their discussions. I am certainly not able to infer, as I was invited to do, that the facts suggest that Mr Butcher was not in complete control of the execution process.[46]Having considered Mr Butcher’s medical and optician’s records (including a recent review which had taken place on 8 January 2013 which is 3 days after the execution of the 2013 Will), Mr Chan’s unchallenged evidence was that his vision was good enough for him to have been able to read or have the 2013 Will read over to him, that his visual acuities in both eyes were good although more on the right that the left eye and that with the additional strength of the lenses prescribed to him, he was able to read N6 level vision for near at 36cm. He concluded that, in his opinion, Mr Butcher was able to read the 2013 Will in the font size of the copy provided to him. In closing, Ms Taylor for Evelyn accepted that the evidence suggested that Mr Butcher would have read it. I agree. If he had read it, I am in no doubt that he would have understood it and its effect. He was an educated man, with full capacity who had drawn up previous wills. It is short and easy to understand.[47]In mid-January 2013, Danny went to visit Mr Butcher. He said, and I accept, that the purpose of the visit was twofold. First, it was consistent with his pattern of dropping in on Mr Butcher as a casual, but not close, friend. Secondly, he had told Mr Butcher that he would call in to fix with black bitumen a leaking concrete gutter at the front of the Bungalow. Upon arrival, rather than knocking the door, he says he put up his ladder and fixed the leak (something which took a matter of seconds). His evidence was that Mr Butcher came out of the house because he’d seen the van outside and, whilst they were both still on the doorstep, Mr Butcher handed him an envelope containing the original 2013 Will or a folded up original copy of the 2013 Will and asked him to read it which he did. Danny’s evidence is that he was totally shocked to read its terms and he asked him if he was sure to which Mr Butcher replied that he did not want to talk about it. They then went into the house.[48]In one important respect, I find this account to be not credible. Having heard all I have about him, I can see no reason why this exchange took place, as Danny said, on the doorstep. Mr Butcher was, as has been repeatedly stressed, a private man and it seems to me to be most unlikely that he would hand over such an important envelope or document on the doorstep. It was, after all, mid-January and there was no reason to do so given that Danny would be likely, as he did, to come into the house in any event. It seems to me that in his eagerness to stress the unexpected nature of the encounter Danny has exaggerated or overplayed or misremembered this part of the events. In my judgment, the events did happen but inside the house rather than on the doorstep and I do not consider this to detract from the truth of his evidence overall.[49]There is a further piece of the story which strikes me as implausible which Evelyn rightly places some reliance on. She gave evidence that in connection with the 2011 Will and more generally, Mr Butcher was a meticulous man who had shown her that he kept important papers and documents in a metal box in his bedroom wardrobe. She and Peter also said that Mr Butcher had been accustomed to keep copies of his wills and that he would destroy the previous will. She also pointed to the fact that Mr Butcher took no steps to revoke the 2011 Lasting Power of Attorney in her favour. As to the last point, Mr Butcher may simply have remained happy for her to deal with his affairs in circumstances short of his death or, possibly, that he intended to speak to her about that when they next met and so I am unable to infer that this is consistent only with him wishing for her to remain involved in his testamentary wishes. I agree that it was unusual and to some extent out of character that in relation to the 2013 Will, Mr Butcher appears to have handed over the original to Danny and not even kept a copy for himself. But bearing in mind the circumstances in which I have found it was executed and witnessed at the Bungalow and the fact that Danny’s visit to Mr Butcher took place in mid-January ten days or so after the 2013 Will was executed, it may be that he had no opportunity to get it copied. Whatever the explanation, these are not factors of sufficient weight to cause me to doubt my findings as to the true circumstances in which the 2013 Will was executed and kept prior to Mr Butcher’s death in March 2013. Danny’s evidence was that he saw Mr Butcher a couple of times after being handed the Will and the opportunity was there for Mr Butcher to ask for it back to enable copies to made if he had wanted to.

Knowledge and approval – application of the law

[50]A central plank of Ms Taylor’s closing submissions was to focus on what she described as the inadequacies or limitations of the evidence. To a limited extent, namely in relation to the circumstances in which the 2013 Will form was obtained and prepared, I agree there are limitations but for the reasons already stated that is not decisive and, crucially, it underplays the strength and quality of the evidence in relation to the events of 5 January 2013.[51]I am entirely satisfied that there is sufficient evidence before me from which I am able to reach the conclusion, applying the single stage test in Gill v Woodall, that Danny has discharged the burden of proving, on the balance of probabilities, that Mr Butcher understood what was in the 2013 Will when he signed it and what its effect would be. I have reached that conclusion by considering all of the evidence in the holistic way approved by the Court of Appeal in Simon v Byford and, in those circumstances, it is not necessary or helpful for me to decide this case by reference to a strict application of the legal and evidential burdens of proof as I was urged to do on behalf of Evelyn.[52]I am particularly assisted in reaching that conclusion by the following circumstances relating to the preparation and execution of the 2013 Will: 52.1. The 2013 Will was duly executed by Mr Butcher when he was of capacity and that gives rise, in the words of Norris J in Wharton to “the usual strong inference” of knowledge and approval; 52.2. The form of the 2013 Will was consistent with the manner in which Mr Butcher had prepared and procured will forms for himself in 1991, 2003 and 2011; 52.3. The 2013 Will was read by Mr Butcher; 52.4. The 2013 Will was short and easy to understand and capable of being readily understood by Mr Butcher who I have found to be literate and to have a good understanding of his financial and other affairs; 52.5. Although he remained close to Evelyn and Peter and their families, the relationship had been affected by the death of his close friend Lynda; 52.6. Danny was a friend even if not a close one and someone who visited him regularly and had been kind to him; 52.7. Mr Butcher asked Mr Crowder to be a witness to his will and so knew that he was executing a new will; 52.8. Mr Butcher asked Mr Cooke to witness his signature because Mr Crowder told him a will needed two signatories and so understood he was executing a new will; 52.9. Mr Butcher waited until mid-January 2013 to give the 2013 Will to Danny and so, having read it, held on to it and had the opportunity to revoke it; 52.10. Mr Butcher himself handed over the 2013 Will to Danny and asked him to read it which is consistent with his wish that Danny was to be his Executor and beneficiary.[53]I have already indicated that in cases such as this it may be useful to cross-check the conclusion reached using the two stage test. Has Evelyn raised a prima facie case that there was no knowledge and approval by “exciting the suspicion of the Court”? I would have found that she had done so but that any degree of suspicion was relatively low because it was not a case where the 2013 Will was procured by the person benefitting under it. On a full consideration of all the evidence, I would have found that Danny had amply rebutted any such prima facie case.

The 2011 Will

[54]My conclusion that the 2013 Will did have Mr Butcher’s knowledge and approval means that it is not strictly necessary for me to make findings in relation to the 2011 Will. However, as I have heard brief submissions from Ms Taylor in relation to it (Ms Seaman’s client had no interest in the 2011 Will and so she remained neutral on the point) I will deal with it. If I had found the 2013 Will to be invalid for want of knowledge and approval I would have been satisfied for the purposes of s.9 Wills Act 1837 that, by affixing his signature to the 2011 Will and describing it as such to Evelyn, he had intended by his signature to give effect to the 2011 Will notwithstanding that his signature was in the wrong place for the reasons set out in the extract from Williams on Wills (10th ed) at [11.9] to [11.11].

Conclusion

[55]I am satisfied that the 2013 Will was executed with the knowledge and approval of Mr Butcher and that he intended it to give effect to his testamentary wishes.[56]I pronounce for the 2013 Will and dismiss the Counterclaim.[57]I will hear from Counsel on the form of the Order and on consequential matters.

Cited in 1 later judgment