Will-wrangling – exceptions not rules in Wrangle v Brunt

Wrangle v Brunt [2020] EWHC 1784 (Ch) and the associated costs decision ([2020] EWHC 2205 (Ch)) are decisions involving exceptions rather than the rules.

The High Court upheld the validity of a will signed by the testator’s attorney at his direction – despite concerns over forgery. However, the court refused to follow the usual costs rule and, due to the attorney’s conduct, instead ordered the costs of all parties to be borne by the testator’s estate.

The case

Wrangle was a probate claim regarding the estate of Dean Brunt. The claimant sought to propound a will purportedly executed in 1999 at Dean’s direction by his attorney, Howard Day, in the presence of two witnesses.

The case, heard in March 2020, was rather unique as, eager to see closure on the matter –– and with the impending lockdown due to the coronavirus pandemic – the parties agreed for the oral evidence to be limited to the main witnesses and heard over three days, rather than the eight days for which it was originally listed. As such, a number of the witnesses and experts were not cross-examined.

The defendants asserted that the will (in fact, a second will, largely identical to the first) was a forgery on the following bases:

1. that the wills were likely to have been created and executed after Dean’s death
2. want of due execution, and
3. want of knowledge and approval.

They relied upon the following points.

1. Howard was convicted of fraud and dishonesty in 2003 for which he served a three-year prison term.
2. The wills contained numerous inconsistencies and inaccuracies, including:
   • an incorrect middle name for Dean on the front page of the will
   • names of various properties and land being misspelled or referred to incorrectly
   • the will purporting to give away a one-third share of an asset of which, at that time, Dean only held a quarter.
3. Expert evidence suggested that the wills, which had only surfaced some 10 years after Dean’s death, were signed at a later date.

High Court decision

While it is generally accepted that, given the seriousness of the allegation, the legal burden of proving that a will is a forgery rests on the party asserting that to be the case, Master Teverson (relying on Supple v Pender [2007] WTLR 1461) held that in the present case the evidential burden was on the claimant. This was due to the passage of time between Dean’s death and the wills surfacing, and because they were not signed by Dean.

Further, although agreeing that the standard of proof in such cases was the usual civil standard, Master Teverson, citing Lord Nicholls in Re H [1996] AC 536, affirmed that “the more serious the allegation the less likely that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability”.

Master Teverson was, on the whole, impressed by the witness evidence – particularly that of Dean’s friends, who relayed how Dean had mentioned his desire to make a will to them.

That, coupled with the fact that the content of the will which the claimant was seeking to propound did not, itself, arouse any suspicion, led the Master to uphold the validity of the will, despite Howard’s bad character and the expert evidence.

As a grant of letters of administration had already been obtained on the basis of Dean’s apparent intestacy, Master Teverson also felt it appropriate to make an order under section 50 of the Administration of Justice Act 1985, substituting the first defendant for an independent administrator.

Costs

In the subsequent decision dealing with costs, Master Teverson relied on Kostic v Chaplin [2007] EWHC 2909 (Ch), [2008] 2 Costs L.R. 271 which itself affirmed the decision a century before in Spiers v English [1907] P 122 that “if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate”.

He considered that Howard’s failure to insist on Dean signing his own will or to use an appropriate attestation clause meant that “[the] only fair outcome is that all parties’ costs come out of the estate” despite the “truly exceptional” circumstances. Indeed, Master Teverson felt that, although the defendants failed in their claim to set aside the wills on the basis of fraud, there were sufficient grounds to bring such an allegation.