This contentious trust and probate litigation summer round-up provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period June 2023 – September 2023.
Wilkinson v Hicken, 2023 EWHC 1983 Ch Rea v Rea, 2023 EWHC 1901 Ch McLean v McLean 2023 EWHC 1863 Ch Copley v Winter, 2023 EWHC 1712 Ch Lattimer v Karamanoli 2023 EWHC 1425 Ch Sangha v The Estate of Diljit Kaur Sangha & Others
WILKINSON V HICKEN, 2023 EWHC 1983 CH
The High Court has rejected a validity claim in the estate of retired businessman Norman Gill who elected to leave his sizeable estate to a charitable trust to benefit the people of Leicester to the exclusion of his children and grandchildren.
Mr Gill was born in 1935. He had three children with his wife Mary, a step son and three grandchildren. He was a successful businessman but in 1979 was charged with (and pleaded guilty to) conspiring to murder Mary and subsequently sectioned under the Mental Health Act. Over the following years his relationships with various of his children deteriorated and whilst in 2015 he made a will that still benefited them (and his grandchildren) with a pecuniary legacy each of £175,000, by 2018 under a new will he had reduced these legacies to £5,000 to each of his children but nothing to any of his grandchildren. His residuary estate was to pass to a charitable trust. Mr Gill died on 30 March 2018 and his residuary estate was valued at approximately £5.3 million.
Mr Gill’s daughter issued proceedings in December 2020 (his other two other children having admitted the validity of the 2018 Will by a settlement deed earlier the same month). She said that Mr Gill lacked testamentary capacity and/or did not know and approve of the 2018 Will. She sought to rely on his personality disorder and the fact that he was terminally ill at the time that he made the will. She said that the 2018 will was not rational in excluding his immediate family and that the will drafter had failed to take proper instructions and not put in place appropriate safe guards to ensure Mr Gill knew and understood the provisions in his will.
Mr Justice Williams noted:
“It is […] clear to me that [Mr Gill] lacked any understanding or insight of the emotional harm suffered by the children during their childhood. Rather he continued to view himself as the victim …. Norman loved his children and was financially generous towards them, but exploited his financial wealth as a means of exerting control over his children.”
However, he found that whilst Mr Gill’s decision to disinherit his children and grandchildren may be regarded as unfair, the decision was not irrational. He also said that there were no circumstances which gave rise to suspicion that the Will did not represent Mr Gill’s intentions at the time of execution. Consequently he was satisfied that due execution was sufficient to establish the validity of the 2018 will.
REA V REA, 2023 EWHC 1901 CH
The judgement in a retrial of the long running dispute between the four children of Anna Rea has been handed down in the High Court.
Mrs Rea died on 26 July 2016 aged 85. She had four children, Rita, Remo, Nino and David. Mrs Rea had made a will in 1986 appointing Remo to be her executor and dividing her estate equally between her four children. In 2015 Mrs Rea made a will appointing Rita and her cousin Angela as executors and leaving her house (effectively the only asset in the estate) to Rita. The 2015 will included the following clause:
I declare that my sons do not help with my care and there has been numerous calls from me but they are not engaging with any help or assistance. My sons have not taken care of me and my daughter Rita Rea has been my sole carer for many years. Hence should any of my sons challenge my estate I wish my executors to defend any such claim as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this Will.”
Mrs Rea’s sons defended Rita’s claim to establish the 2015 will and obtain a grant of probate with solemn form on the grounds that their mother (i) lacked testamentary capacity (ii) did not know and approve the contents of the 2015 will (iii) the will was procured by the exercise of undue influence exerted by Rita over Mrs Rea and (iv) the will was procured by a fraudulent calumny practiced by Rita on Mrs Rea. The sons counterclaimed for probate of the 1986 will.
In reaching his determination Deputy Master Arkush placed considerable weight on the evidence of the solicitor who prepared the will and Mrs Rea’s GP who had provided a contemporaneous capacity assessment prior to its execution. The sons had very little evidence to counter their views. The judge concluded that it was valid and should be admitted to probate.
The sons were initially refused permission to appeal but subsequently given permission. The appeal was dismissed but the sons appealed again in 2022 and the Court of Appeal ruled that there should be a new trial.
The sons have now been successful and the 2015 Will declared invalid. Mr Justice Hodge KC said that this was “a case of undue influence exercised by coercion, in the sense that Anna’s true will was overborne by Rita, but not by fraud” because he was “left in no doubt that Rita genuinely believed that … her brothers … had abandoned the care of their mother”. Accordingly, whilst the undue claim succeeded, the fraudulent calumny claim failed because the judge found that the daughters had not poisoned Mrs Rea’s mind against her sons.
MCLEAN V MCLEAN 2023 EWHC 1863 CH
The High Court has considered the doctrine of mutual wills in an appeal case bought by the deceased’s step children who had been excluded from benefiting from the deceased’s estate in a new will made shortly after their father’s death.
Reginald and Maureen McLean executed mirror wills on 23 June 2017 that left their respective estates to each other if surviving, and the residue to their four children in equal shares. During the will making process Maureen said that she would not change her will and disinherit Reginald’s children. Reginald was advised that there was nothing to stop her doing so but he was adamant that he trusted her.
Reginald died on 16 March 2019. Maureen executed a new will leaving her entire estate to her biological son on 16 August 2019. Maureen died on 27 August 2019.
Mr Justice Mann referenced the basic underlying principle of mutual wills as set out in In re Dale, decd [1994] Ch 31:
“The doctrine of mutual wills is to the effect that where two individuals have agreed as to the disposal of their property and have executed mutual wills in pursuance of the agreement, on the death of the first (“the first testator”) the property of the survivor (“the second testator”), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. The survivor may thereafter alter his will, because a will is inherently revocable, but if he does his personal representatives will take the property subject to the trust.”
He went on to find that there was no binding contractual agreement between Reginald and Maureen not to revoke the wills. He said that “Expectation, or trust, [was] not enough”.
COPLEY V WINTER, 2023 EWHC 1712 CH
An undue influence claim was unsuccessful in the High Court despite the court forming a view that the circumstances were “consistent with the hypothesis of undue influence”.
Elaine Lodge died on 22 February 2019. She had executed a will in January 2019 in which she had left some land where her horses were kept to the granddaughter of her long term partner. She included guidance that if the granddaughter elected to sell the land she should first offer it at market value to a friend who lived adjacent to the land. A previous will executed in January 2017 had left the land to that friend and it was he that challenged the new will.
Ms Lodge had terminal cancer at the time of executing the 2019 will and a grief stricken following the recent death of her partner. The granddaughter sought the pronouncement of the validity of the 2019 will. The friend challenged the will on multiple grounds including undue influence.
The judge noted that “where undue influence is exercised, it is likely to be done secretly” and that the court “may have relatively little direct evidence of the application of undue pressure on a testator”. However, he went on to conclude that “it [was more probable than not that [the deceased] was exercising her own free will rather than acting under undue influence” and was satisfied that the deceased executed the 2019 will whilst she had testamentary capacity and without undue influence.
LATTIMER V KARAMANOLI 2023 EWHC 1425 CH
The High Court has been asked to consider a strike out application with the primary question whether a will made the day before the deceased married (and shortly after died) had been revoked.
Eva Kalodiki was terminally ill with lung cancer. On 17 December 2018, she was admitted on an emergency basis to St John Hospice in London. She executed a will on 27 December 2018 and was married on 28 December 2018 to Christopher Lattimer. Ms Kaolodiki died on 31 December 2018. Her estate was valued at around £10 million.
Mr Lattimer bought a claim for summary judgment stating that the marriage invalidated the will and he was entitled to the entirety of Ms Kalodiki’s estate pursuant to the intestacy rules (he is entitled to one sixth of the estate under the will). The deceased’s sister defended the claim. She says that it does not reflect her sister’s intentions in that the will was clearly intending to survive the marriage and were it to have been professionally drafted a clause would have been included to that effect.
Master Clark said that the deceased’s sister had no real prospect of obtaining a declaration that the marriage was void at its inception but allowed her to proceed with the balance of her claim. Master Clark said that the factual matters pleaded by the defendant’s sister were “sufficient for her to have a real prospect of success of showing that the [deceased] intended the Will to survive her marriage to [Mr Latimer]”. The matter now proceeds to a full trial.
SANGHA V THE ESTATE OF DILJIT KAUR SANGHA & OTHERS
The Court of Appeal has considered a revocation clause in the following terms:
“This is my last and final Will and all such previous documents stand cancelled”
Hartar Singh Sangha died on 3 September 2016. He had made a will in 2007 dealing with both his Indian and English assets. He made another will in 2016 which disposed only of his Indian assets but contained the above revocation clause. The Court of Appeal was asked to determine whether this was effective to revoke the entirety of 2007 will as found at first instance or only effective to revoke the 2007 will to the extent of the Indian asses as had been held on appeal.
The Court of Appeal noted that a will’s general revocation clause was strong evidence in itself that a testator intends to revoke earlier wills and a “heavy burden” lies on those seeking to demonstrate otherwise. In this case the court did not consider that any of the matters relied on in an effort to displace the natural meaning of the revocation clause in the 2016 will were sufficient to do so and consequently the decision at first instance that the 2016 will revoked the 2007 will in its entirety was restored.
Written by Katherine Pymout, Kingsley Napley.
