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Wills Made in Suspicious Circumstances: the Problem of the Vulnerable Testator

Published online by Cambridge University Press:  03 October 2000

Roger Kerridge
Roger Kerridge*
Affiliation:
University of Bristol
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Abstract

English law provides inadequate protection for vulnerable testators, a growing class. Those thinking of challenging suspicious wills are deterred by the cost and poor prospects of success. Traditionally, probate lawyers have been reluctant, when challenging wills, to allege misconduct and the leading case of White v. Nye has caused general confusion by attempting to disguise a plea of fraud as though it were a plea of lack of knowledge and approval.

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Articles
Information
The Cambridge Law Journal , Volume 59 , Issue 2 , 29 June 2000 , pp. 310 - 334
Copyright
Copyright © Cambridge Law Journal and Contributors 2000

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Footnotes

The writer would like to thank his former colleagues Mr A.H.R. Brierley and Dr S.M. Cretney and his colleague Prof. J.D. Hill for reading and commenting on earlier drafts of this article.

References

1 The people who would benefit if they were to die intestate.

2 Trusts may be used by the relatively rich as a way of reducing their tax bills, but the marriage settlement and the straightforward interest-in-possession trust are both relatively rare nowadays. For an illustration of the way in which, in the early nineteenth century, a settlement prevented a vulnerable testator from leaving more than a relatively small proportion of his property to persons who were not members of his family, see Barry v. Butlin (1838) 2 Moo. P.C. 480. This aspect of the case is generally overlooked. It is true that the family provision legislation may sometimes act as a restriction on freedom of testation and, therefore, as a potential impediment to those who wish to take advantage of vulnerable testators, but, in the sorts of cases being discussed in this article, it is generally irrelevant.

3 Which has been amended twice, but not in ways which are significant in the present context.

4 Except in the case of privileged wills.

5 See Law Reform Committee's 22nd Report The Making and Revocation of Wills Cmnd. 7902, 1980, at p. 3.

6 The history of, and policy behind, section 15 are discussed by D.E.C. Yale in (1984) 100 L.Q.R 453.

7 22nd Report (note 5 above). An example of this sort of case is Re Groffman [1969] 1 W.L.R. 733.

8 See Weatherill v. Pearce [1995] 1 W.L.R. 592.

9 The Groffman will (note 7 above) would almost certainly not have been declared void if the witnesses had been dead or untraceable.

10 In Roman Law, a gift to a person who had assisted in the preparation of the will was normally void; Dig. XXXIIII. 8. 1, and the would-be beneficiary would normally be liable to the penalty for forgery under the Lex Cornelia'; Dig. XXXXVIII 10. 6 pr., 15 pr.

11 Before 1838 some wills had to be published, but publication was abolished by section 13 of the Wills Act 1837.

12 When a vulnerable testator is tricked or coerced into making a will, there are two (sets of) potential victims. First, the testator is himself a victim of sorts. He is clearly a victim if he has been coerced. He is less clearly a victim if he has “only” been tricked, yet, even then, he is a victim in the sense that he is not disposing of his property as he would have wanted to dispose of it. Secondly, there are those who would have benefited if the trickery or coercion had not occurred. They are the obvious victims and it is they, or some of them, who may issue a challenge. They, themselves, fall into three sub-groups. There are those who would have benefited under a will which the testator would have made (but never did make because of the trickery or coercion), there are those who would have benefited under an earlier will (which he made but which was revoked by the will made by trickery or coercion) and there are those who would have benefited under his intestacy. In practice, the next-of-kin (members of the third sub-group) are the ones most likely to challenge a will. For further discussion, see below.

13 There is insufficient space in this article to consider personation cases, but the poor protection offered by the Wills Act makes personation possible too. A personation case came to light recently and was described as “almost the perfect crime”. A man, his wife and his mother-inlaw came close to obtaining £1,500,000 under a will which one of them had executed in place of the testatrix. They were convicted at Basildon Crown Court on 30 July 1999 and sentenced to imprisonment. See The Independent Review, 10 August 1999, p. 12.

14 The Times 29 November 1975.

15 (1977) 121 Sol. Journal 224.

16 Who had been counsel in Simpson.

17 1997 C.L.Y. 1687.

18 The mental and physical state of the testatrix in Kenward v. Adams is not recorded.

19 [1992] 3 All E.R. 556.

20 [1992] 3 All E.R. 556, 563.

21 When the solicitor returned the next day, the testator gave him different instructions and the solicitor now realised that the testator was confused. At this point, the solicitor refused to accept instructions to prepare a will. A will was then prepared without professional assistance but this will was later challenged and the solicitor's evidence helped to show that the testator had lacked capacity. The result was clearly correct, but it remains true that the solicitor had had no means of knowing, when he first spoke to the testator, that the testator was giving him wildly incorrect information about his assets. Had he known the true facts, he would have been alerted earlier to the testator's mental state.

22 Holdsworth, Charles Dickens as a Legal Historian (New Haven, 1928)Google Scholar.

23 Ibid, p. 113.

24 The programme, entitled “Inheritance” was broadcast in the “Cutting Edge” series on Channel 4 in September 1996.

25 There had been an article about her in the Daily Express as far back as September 1985 and this had been followed by articles in the Mail on Sunday and the Daily Telegraph in January 1986. There was an article about her in the Daily Mail on 1 April 1995 and articles about her in the Sunday Times on 26 March and 2 April 1995 and on 22 September 1996.

26 As the Sunday Times put it (on 22 September 1996) “an investigation by the Sunday Times revealed that D-O had been at the centre of at least four inheritance disputes and had extracted large settlements from the wills of elderly men”.

27 In at least one case she had traced a widower through the obituary column in a newspaper. She had found the obituary of a woman who had died leaving no children, but whose husband had survived her, the husband then became the potential victim—this was detailed in the television programme—this potential victim was described as “the one who got away”. For “victims” see note 12 above.

28 [1959] 1 W.L.R. 284.

29 To save space, this account of the facts has been (very slightly) simplified.

30 Millie was a convert to Roman Catholicism. Mrs Wells (Kitty's and Millie's mother) had been concerned that if Millie obtained control of any significant capital sum, she would give it to the Church. When Mrs Wells died, in 1909, she made sure that Millie had no capital. Millie had then become, in effect, dependent on Kitty.

31 Mrs Wells (Kitty's and Millie's mother) had been worried that Millie would give or (at least) leave any property she had to the Church (see note 30). Millie did not leave her property (what little she had) to the Church. Had she left a will, and had that will given her estate to the Church, it is almost certain that Nye would have been safe.

32 The Royal Dragoons.

33 Kitty's and Millie's mother.

34 They are described in some reports of the case as second cousins, but were actually first cousins of the half blood.

35 The only report of the case at first instance and in the Court of Appeal appears to be in The Times. See The Times Law Reports of 21 May and 17 December 1957. The report of the case in the House of Lords (see below) may give the impression that Colonel Wintle had always been a litigant in person. He had not. At first instance, he had both leading and junior counsel.

36 For example, in Constable v. Tufnell (1833) 4 Hagg. Ecc. 465, the pleas had included conspiracy and perjury.

37 Sometimes referred to as “duress” or “imposition,” Constable v. Tufnell (1833) 4 Hagg. Ecc. 465.

38 She made her will more than ten years before she died, and a codicil to it more than eight years before she died. Lack of testamentary capacity is most often pleaded when the will is made shortly before death.

39 Judge of the Court of Probate, later Lord Penzance.

40 (1868) 1 P. & D. 481.

41 Ibid, p. 482.

42 In Hall v. Hall itself the testator's will was pronounced against on the basis that he had been subjected to violence, threats and intimidation by his wife. The case is unusual. Nineteenth century cases demonstrate a low degree of political correctness. Insofar as they record matrimonial problems, these usually arose when wives were alleged to have intimidated their husbands, there was nothing unusual in this. But Victorian husbands were expected to have a very high pain threshold.

43 Baker v. Batt (1838) 2 Moo. P.C. 317; Barry v. Butlin (1838) 2 Moo. P.C. 480.

44 Boyse v. Rossborough (1857) 6 H.L.C. 2; Wingrove v. Wingrove (1885) 11 P.D. 81.

45 See Barry v. Butlin (1838) 2 Moo. P.C. 480; Boyse v. Rossborough (1857) 6 H.L.C. 2; Lowe v. Guthrie [1909] A.C. 278.

46 The first judge of the Court of Probate (which had been established in 1857).

47 (1862) 2 Sw. & Tr. 504.

48 (18 89) 14 P.D. 56.

49 This is illustrated both by White v. White & Cato (1862) 2 Sw. & Tr. 504 and by Riding v. Hawkins (1889) 14 P.D. 56.

50 Barry v. Butlin (1838) 2 Moo. P.C. 480.

51 Craig v. Lamoureux [1920] A.C. 349.

52 The Ecclesiastical Court which dealt with wills of personalty before the Court of Probate was established in 1857.

53 Notice had to be given, under the Rule. In 1962, Rule 41 of the 1862 Rules became RSC Ord 62 r. 4(3). It is now CPR Rule 44.3.

54 There was no finding of fraud in Billinghurst v. Vickers (1810) 1 Phill. Ecc. 187 where the residuary beneficiary wrote out most of the will; nor in Ingram v. Wyatt (1828) 1 Hagg. Ecc. 384, a case of a will made in favour of the solicitor who prepared it; nor in Constable v. Tufnell (1833) 4 Hagg. Ecc. 465. Fraud was not found in Barry v. Butlin (1838) 2 Moo. P.C. 480 where the will disinherited the testator's son and left property to inter alia his solicitor; nor in Allen v. M'Pherson (1847) 1 H.L.C. 191. And it was not found in Tyrell v. Painton [1894] P. 151 where the evidence of fraud was overwhelming. After Tyrell v. Painton it seems to have been thought that it was a waste of time to plead fraud.

55 See Paske v. Ollat (1815) 2 Phill. Ecc. 232—decision as to costs not recorded; Ingram v. Wyatt (1828) 1 Hagg. Ecc. 466—costs awarded to challengers in any event; Barry v. Butlin (1838) 2 Moo. P.C. 480—costs awarded against challenging son; and Atter v. Atkinson (1869) L.R. 1 P.&. 665—where the jury could not agree on a verdict.

56 “If” is phrasing it optimistically—the legal team were probably thinking in terms of “when”.

57 (1869) L.R. 1 P.&. 665.

58 (1815) L.R. 1 H.L. 448.

59 (1890) 62 L.T. 642.

60 (1890) 63 L.T. 465.

61 [1894] P 151.

62 [1951] P 10.

63 When the 1862 Rules were amended to take the form they had when Wintle v. Nye was fought.

64 (1866) L.R. 1 P.&. 109.

65 Guardhouse v. Blackburn was a case where the testatrix's solicitor had made a mistake when drafting a codicil and had included two words which he should not have included. The testatrix had had the codicil read over to her and had approved it without noticing the mistake. The plea of lack of knowledge and approval was eventually unsuccessful. It would have succeeded if the testatrix had not known that the extra words were in the codicil; but, as she had had it read over to her, she was deemed to know that they were there. Nowadays, facts like this would raise an issue of rectification under s. 20 of the Admin of Justice Act 1982. But it remains true that a plea of lack of knowledge and approval (by itself) is the appropriate plea where there has been a mistake and there is no suspicion of fraud or undue influence.

66 In In the Estate of Osment [1914] P. 129 a will in favour of a solicitor had been challenged on the grounds of lack of due execution, lack of capacity and lack of knowledge and approval. These pleas do appear to have been designed to act as a cover for a plea of fraud. The approach in this case may have been based on that adopted in the earlier Australian case of Farrelly v. Corrigan [1899] A.C. 563 where lack of knowledge and approval had been pleaded in what looked like an open-and-shut case of fraud. Osment was not a happy precedent, those challenging the will did not succeed, their only crumb of comfort was that they had not been ordered to pay the costs. It seems to have been on this very shaky foundation that Col. Wintle's team decided to challenge Kitty's will on the ground of lack of knowledge and approval alone.

67 It is reasonable to suppose that it was Wintle's advisers who chose jury trial, expecting sympathy from a jury. This was one of their miscalculations. The jury retired at 12.15 p.m. and returned at 2.15 p.m., they had hardly had time for lunch.

68 The Times, Law Report, 21 May 1957.

69 She was awarded her costs from the estate.

70 Hodson and Morris L.JJ., Sellers L.J. dissenting.

71 This is recounted in The Last Englishman, Wintle's autobiography, published by Michael Joseph, London 1968, at p. 283.

72 (18 3 8) 2 Moo. P.C. 480, 482.

73 [1959] 1 W.L.R. 284, 291.

74 The free property over which he had control—most of the family property was held in settlement; see note 2.

75 The question would be the same if there were no jury—the judge has to be able to direct himself.

76 [1959] 1 W.L.R. 284, 294.

77 [1959] 1 W.L.R. 284, 294.

78 Wintle had lured Nye to a meeting at a flat in Hove where he had debagged him, photographed him and thrust him, trouserless, into the street. Wintle was convicted of common assault and sentenced at Lewes Assizes to six months imprisonment. This is recorded in detail in Wintle's autobiography, see note 71.

79 [1968] P. 675, 722.

80 Scarman J. did not say where Lord Penzance had said this.

81 The expression Wintle used in his autobiography (see note 71) at p. 277.

82 Re A Solicitor [1975] 1 Q.B. 475. And see now The Guide to the Professional Conduct of Solicitors, 6th ed. 1993, paras 15.05 and 15.08.

83 See, for example, Tyrell v. Painton [1894] P. 151 where the Court of Appeal set aside a verdict in favour of a “home-made” will. It is hard to see how any judge could have found in favour of this will.

84 Under the Administration of Justice Act 1970.

85 P.V. Baker (1970) 86 L.Q.R. 447.

86 The Law Reports test is, of course, inexact.

87 [1980] 1 All E.R. 259.

88 [1981] 1 W.L.R. 164.

89 The Davey case raises a number of questions about how it could have been possible for a marriage to have been celebrated in circumstances of this sort.

90 The writer has not been able to find out what eventually happened in the Stott case. The report is only concerned with the pleadings. Nor has he been able to find out whether anyone involved with either of these cases knew about the other; he himself only noticed the link by chance. The writers of the succession textbooks appear to have missed it. It is unlikely that, at the time, those in the Stott case knew anything about the Davey case.

91 See above.

92 The property which would have passed to Nye under Kitty's will and codicil went to the next of kin; other bequests were upheld.

93 There is no clear authority on what happens where fraud is proved (because it never is). But in Betts v. Doughty (1879) 5 P.D. 26 those challenging a will were permitted to amend their pleadings so that, if they had succeeded, the estate would have been held on a constructive trust. The parties then came to terms. But it is logical that in all cases of fraud, and in some cases of undue influence (the ones where the testator has been coerced into making a will different from the will he wanted to make) the estate should be held on a constructive trust for those whom the testator wished to benefit.

94 The Times 21 May 1957.

95 There was evidence in Wintle v. Nye that the first draft of Kitty's will gave her residuary estate to eight hospitals in the Brighton area. The jury in the case would have heard this evidence, but would have known that, whatever their verdict, the hospitals could not benefit. The way the case was pleaded, the jury had a choice between upholding the will (in which case Nye took most of the estate) or holding that the devises to Nye were invalid, in which case the property would pass to Millie and then on to her next of kin (the Wells cousins). One of the Wells cousins had assigned his share to the colonel who had said that, if he won the case, he would assign it to Marjorie. The hospitals lost out whatever happened. When Nye eventually capitulated, the Wells cousins benefited from a windfall.

96 The British Section of the International Commission of Jurists.

97 The Report was prepared by a Sub-Committee of the Committee on Civil Justice and was endorsed by the Council of Justice.

98 Parfitt v. Lawless (1872) L.R. 2 P.&. 462.

99 See Riding v. Hawkins (1889) 14 P.D. 56.

100 The harsher and more critical approach associated with Chancery has manifested itself in a number of areas, but, in particular, in relation to trustees and other fiduciaries who may be suspected of having benefited, however indirectly, from their position. Chancery has not, traditionally, assumed the best of people.

101 Barnard J. made no order as to Colonel Wintle's costs, which meant that, if that had been the end of the case (as the colonel's legal team thought it would be) he would have had to pay his own costs, but at least he would not have had to pay Nye's as well.

102 (1863) 3 Sw.&Tr. 275.

103 Who would qualify as “notaries” for this purpose is something which there is insufficient space to discuss in detail in this article. But the object would be to ensure that there were persons within the legal profession who specialised (inter alia) in validating wills and who were independent of those who prepared them. Notaries of this kind are a familiar part of most Continental legal systems.