Factual and Procedural Background
This judgment follows a nine-day trial in the Business and Property Courts in Liverpool concerning a contested probate claim brought by the Plaintiff against her sister, the First Defendant, and her elder brother, the Second Defendant. The dispute relates to the estate of the late Mr. Face, who died intestate according to the court's findings, and involves allegations that a purported 2017 will is a forgery. The Plaintiff claims to propound a lost will dated 7th September 2017, which was never located in original form but only as a photocopy allegedly found at the deceased's property. The Defendants dispute the validity of this will and assert that the estate should be distributed on intestacy.
The deceased had three children: the Plaintiff, the First Defendant, and the Second Defendant. The deceased's relationship with his children was described as "dysfunctional." Prior disputes included litigation between the deceased and the Second Defendant over a property at 18 Wray Crescent, London, resolved in 2006 by a consent order. Subsequently, the deceased purchased a flat at 120 Maryland Road, Wood Green, for the Second Defendant's occupation, and a property near Downham Market, Norfolk, which the deceased occupied until his death.
The Plaintiff initially instructed solicitors but largely acted as a litigant in person during the proceedings. The First Defendant was represented by solicitors and counsel, while the Second Defendant acted as a litigant in person. The court managed multiple interim applications and case management orders before trial, with the principal issues identified as the validity of the 2017 will and the beneficial interests in 120 Maryland Road.
Legal Issues Presented
- What is the appropriate burden of proof in an allegation that a will has been forged?
- Is the purported 2017 will genuine or a forgery?
- What are the beneficial and equitable interests affecting the property at 120 Maryland Road?
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff claims to propound a lost will dated 7th September 2017, which appoints her as sole executrix and principal beneficiary of the deceased's estate.
- The Plaintiff alleges discovery of a photocopy of the 2017 will at the deceased's Norfolk property.
- The Plaintiff disputes the Defendants' claims to intestacy and asserts the validity of the 2017 will.
First Defendant's Arguments
- The First Defendant contends that the 2017 will is a forgery concocted by the Plaintiff in conspiracy with the attesting witnesses and the Plaintiff's partner.
- The First Defendant asserts that the deceased died intestate, entitling all three siblings to equal shares under intestacy rules.
Second Defendant's Arguments
- The Second Defendant initially sought to rely on a 2016 will but later accepted no reliable evidence supported its existence and now disputes the 2017 will's genuineness.
- The Second Defendant claims a beneficial interest in 120 Maryland Road based on a 2006 handwritten contract with the deceased and a 2016 written agreement to settle the property on protective trusts.
- The Second Defendant seeks specific performance or damages for breach of the 2016 agreement.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Haider v Syed [2013] EWHC 4079 (Ch) |
Burden of proof in forgery allegations concerning wills; cogent proof required but civil standard applies. |
The court discussed the burden of proof, ultimately holding that the party propounding a will must establish its valid execution as part of formal requirements, rejecting the view that the burden lies on the party alleging forgery. |
| Scammell & Nephew Limited v Ouston [1941] AC 251 |
Agreement too vague and uncertain to be enforceable. |
Analogized to the 2016 agreement concerning the trust, which was argued to be uncertain; court rejected this analogy, finding the parties had sufficiently identified the trusts intended. |
| Neville v Wilson [1997] Ch 144 |
Specifically enforceable contract to transfer equitable interest can create a constructive trust. |
Court held this precedent was inapplicable because the 2016 agreement was not specifically enforceable; no present irrevocable trust was constituted. |
| Jeffreys v Jeffreys (1841) Craig & Phillips 138 |
Volunteers cannot enforce incomplete trusts; equity will not assist volunteers. |
Applied to reject enforcement of the 2016 agreement as a present trust since it was a voluntary agreement with nominal consideration and incomplete constitution. |
| Cannon v Hartley [1949] Ch 213 |
Damages may be recoverable for breach of contract even if specific performance is not available to volunteers. |
Court noted that although specific performance was not available, a future claim for damages might arise once the time for performance expires. |
| Nurdin and Peacock v DB Ramsden [1999] 1 EGLR 119 |
Nominal consideration insufficient to render a promisee a purchaser for value. |
Supported the finding that the 2016 agreement was not supported by sufficient consideration to create enforceable equitable interests. |
Court's Reasoning and Analysis
The court carefully examined the evidence, focusing on the burden of proof concerning the forgery allegation. It rejected the defendants' submission that the burden lies on them to prove forgery, instead holding that the party propounding the will must prove valid execution as a formal requirement.
Four features led the court to conclude the 2017 will was a forgery: the lack of any journal or documentary evidence of its existence; the implausible and vindictive terms inconsistent with the deceased's character and intentions; the improbable circumstances of its alleged execution in Cambridge; and the suspicious account of its discovery by the Plaintiff.
The court found the evidence of the attesting witnesses to be inherently incredible and fabricated, supported by evidence of collusion between the Plaintiff, her partner, and the witnesses, established through social media and other investigations.
The court accepted the evidence of the deceased's solicitor and other witnesses as reliable, noting the deceased's repeated efforts to make a will and the absence of any mention of the 2017 will in his contemporaneous records.
Regarding the property at 120 Maryland Road, the court found that the 2006 contract created a resulting or constructive trust, with the Second Defendant acquiring a 48.03% beneficial interest, and the deceased retaining 51.97%. However, the Second Defendant's bankruptcy caused his beneficial interest to vest in the trustee in bankruptcy, limiting his current entitlement.
The 2016 agreement was found to be a voluntary agreement to create protective trusts in the future, not a presently constituted trust. Due to nominal consideration and incomplete constitution, it is not specifically enforceable, and no present claim for damages arises as the time for performance has not expired.
Holding and Implications
The court DISMISSED the Plaintiff's claim to propound the 2017 will, declaring it a forgery and that the deceased died intestate.
It declared that the 2006 contract vested a 48.03% beneficial interest in 120 Maryland Road in the Second Defendant, but this interest vested in the trustee in bankruptcy upon the Second Defendant's bankruptcy. It also declared that the 2016 agreement constituted a voluntary agreement to create protective trusts over the deceased's remaining interest but was not specifically enforceable at present.
The counterclaim by the Second Defendant was dismissed as there was no present breach or entitlement to damages.
The court ordered that the judgment transcript be sent to the Official Receiver and the Crown Prosecution Service due to findings of forgery and conspiracy.
Costs were ordered against the Plaintiff on an indemnity basis, to be paid to the Defendants, reflecting the wholly unmeritorious nature of the claim.
No new legal precedent was established by this decision; the ruling applies existing principles to the facts of this case.