Channon & Anor v Perkins (A Firm)

LORD JUSTICE NEUBERGER: On 7th March 2005, HHJ Weeks QC, sitting in the Chancery Division of the High Court in London, held that the Will executed on 9th April 1996 by Professor Derek French Channon, who died on 14th July 2003, had not been validly executed and should not be admitted to probate. Mrs Pamela Day, formerly Miss Pamela Ogden, who has lived with Professor Channon from the late 1980s until his death, and was a substantial beneficiary under his Will, appeals against that decision.

The basic facts are clearly set out in the judgment of Judge Weeks:

As the judge went on to explain the requirements for attestation of a will are to be found in Section 9 of the Wills Act 1837 ("section 9") which provides:

Despite the fact that Professor Channon’s Will of 9th April 1996 ("the Will") appeared, on its face, to have been executed strictly in accordance with the provisions of all four paragraphs of section 9, as appears from the attestation clause and the fact that the two attesting witnesses, Miss Reilly and Mrs Roth, had each signed against the attestation clause and had each written their addresses under their signatures, the judge held that the Will had not been properly executed.

The judge's reasons for that conclusion are clearly set out within the judgment and the best way to explain his reasoning is by letting him speak for himself. In paragraphs 33 to 41 of his judgment, the judge said as follows:

The law in this field has recently been considered and discussed by this court in a case decided some two weeks after Judge Weeks gave his decision, namely Sherrington v Sherrington [2005] EWCA Civ 326. In giving the judgment of the court in that case, Peter Gibson LJ said this:

There is good reason for the requirement that one must have "the strongest evidence" to the effect that a Will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the Will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the Will represented the testator’s intention. Where a Will, on its face, has been executed in accordance with the section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the Will was not properly executed.

The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own.

Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, as my Lord, Mummery LJ, pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in usual circumstances, have been of particular significance.

The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law.

In these circumstances, it is not surprising that in relation to Professor Channon's Will, which had a full and valid attestation clause and represented his wishes, there has to be cogent and clear evidence, ie testimony which constitutes "the strongest evidence" before one can justify the conclusion that the judge reached.

As explained in paragraph 33 of the judgment in Sherrington, and as was understandably emphasised by Mr Robert Arnfield, who appears on behalf of the respondents, the claimants below, in this case, there is a competing point of principle. While one should be slow to find that a Will, valid on its face and representing the wishes of the testator, is nonetheless ineffective on grounds of failure to comply with section 9, this court, as an appellate court, should be slow to interfere with the findings of fact made by a trial judge, who heard directly relevant oral testimony and who has delivered a clear and reasoned judgment. However, it should be remembered, in the light of the law summarised in paragraphs 40 to 42 in Sherrington, that this is not a case where the judge simply had to carry out the normal exercise of deciding whether certain witnesses were to be believed or not. It was a case where he had to decide whether, in light of the evidence taken as a whole, he could reasonably conclude that there was "the strongest evidence", that the Will has not been legally executed. Allowing for the fact that that expression is somewhat hyperbolic in its terms.

In order to explain why I have reached the conclusion that Judge Weeks was wrong in deciding not to admit the Will to probate, it is necessary, albeit as briefly as possible, to go through the evidence which was before him. He had the evidence of four witnesses, but only three of them were relevant.

I should begin with the evidence of Mrs Day whose evidence the judge said was of no assistance - see paragraph 34 of his judgment. The first problem is that it seems to me that the judge was wrong to say that Mrs Day:

There was evidence, however, both in Mrs Days witness statement, and when she was cross-examined, as to why Mrs Roth and Miss Reilly were chosen as witnesses. It was because they were friends of Mrs Day and Professor Channon and because they worked in the same building as Mrs Day and (from time to time) Professor Channon.

It seems to me that, as an explanation, that is entirely convincing, at least in the absence of any good reason to the contrary. With all due respect to the judge, it cannot be said that Mrs Day's evidence was "of no assistance" on that particular aspect.

It is said by Mr Arnfield that that was an unconvincing explanation for two reasons, first of all, Mrs Roth and Miss Reilly challenged the suggestion that they were close friends of Mrs Day and Professor Channon. I think there is nothing in that point. First, it seems to me quite clear that, on her own evidence, Mrs Roth had known Mrs Day for a substantial time, namely 20 years, and they had worked together in the same building over that period. Secondly, Miss Reilly appears to have been there for a shorter, but significant, period. Secondly, the concept of friendship is flexible and it can have different meanings to different people. That point is illustrated by the fact that Mrs Day said that Professor Channon had no friends; accordingly, he might have regarded Mrs Roth as a friend when their relationship was such that she would have regarded him as an acquaintance, or even less than that.

Secondly, Mr Arnfield suggested that it was surprising that Mrs Roth and Miss Reilly were asked to act as witnesses when, on Mrs Day's evidence, the solicitors came to Professor Channon in her house with documents, from time to time, in relation to the Will. As my lady, Arden LJ, pointed out, there is nothing in that point because the solicitors could not, of course, have acted as witnesses because there was the usual charging provision in the Will in relation to their functions as executors. In any event, it was not a point that was put to Mrs Day.

Additionally, it seems to me that the evidence of Mrs Day, although she could not recollect the precise events at the time that the Will was executed, was of some significance in terms of setting the scene; indeed, it helped to cast light on what one might call the inherent likelihoods. She explained, in some detail in her evidence, that Professor Channon wanted himself and her to execute wills, that she, being rather younger, had not been very keen on this because she regarded it as "morbid" and that eventually solicitors were instructed, and they then had attended, from time to time, with documents on Professor Channon and on Mrs Day. She also said, when cross-examined, that the formalities must have been complied with, that she and Professor Channon were well aware of the formalities, and that Professor Channon would not have done anything which was not in accordance with the law. She also said that she and he would have been careful to do what was appropriate, having been told what to do by the solicitors in order to ensure that her Will and his Will were validly executed.

Mrs Day described Professor Channon as a "very precise businessman". She also said:

Although the judge referred to the fact that it was "remarkable" that Mrs Day could not remember the events of the day when the wills were executed, the judge did not, in my view, and contrary to what Mr Arnfield suggested at one time, thereby intend to suggest that Mrs Day was, in effect, a dishonest witness. If the judge had intended to make that finding he would, I am sure, have said so in terms. He merely found it remarkable that Mrs Day could not precisely remember events of the day in question.

On the face of it, there may or may not have been remarkable fears. Mrs Day explained how it came about, namely because of the effect of the very serious and permanently disabling accident which Professor Channon suffered a short time after. It seems to me that it can fairly be said that it would ave been only too easy for Mrs Day to have gilded the lily and to say she did remember the perfectly simple events which, on her case, took place on the day the two Wills were executed. I think it is to her discredit that she said she could not remember.

So when the judge said he found Mrs Day's evidence of no assistance on one specific point, he was wrong to do so, and, more generally, the picture painted by Mrs Day was of some significance in terms of helping set the scene on the way on which the Will was executed.

I turn to the evidence upon which the judge so relied namely, that of Mrs Roth and Miss Reilly. To cite the evidence of Mrs Roth and Miss Reilly can be somewhat dangerous because one either finds oneself quoting the evidence very extensively, or one may be giving a false picture by selective quotations. The matter is somewhat complicated by the fact that Mrs Roth and Miss Reilly gave evidence on two occasions, first before Master Moncaster and, secondly, at the trial before Judge Weeks.

The effect of Mrs Roth's initial statement, dated August 2003, was that she had not been:

Therefore, it appeared that she accepted that she had at least signed the Will. She ended her short statement by saying that she was.

So far as her oral evidence is concerned, both before the master and before the judge, she was unable to explain how, on her recollection, her signature and her address, both in her own handwriting, appeared on Professor Channon's Will. Her evidence was also, in a sense, inconsistent with the very fact that she acknowledged, namely that her signature was on the Will. She said, for instance, before the judge:

It is also interesting to note that she did not have a very clear recollection about signing Mrs Day's Will either. The question was put to her by Mr Tom Dumont who appeared, as he does before us, for Mrs Day,:

So far as Miss Reilly was concerned, she did not provide a statement, but in her oral evidence, she rejected the notion that there was a possibility that her

Furthermore, she said that she had no recollection of signing any Will in her life; yet she had signed not merely Professor Channon's Will but Mrs Day's Will. When asked:

It is also noteworthy that Mrs Roth acceded fairly readily to the proposition that she:

This is not a case of fraud, or even a case where there was a motive for not complying with the provisions of section 9. This is not a case where there is any sort of positive recollection of some specific failure to comply with section 9. It is a case where neither witness recalls, more than nine years after the Will (if one takes the date of the trial) or seven years after the Will (if one takes the date of Professor Channon's death) signing the Will. There was no fraud or motive for fraud because, as I mentioned, Professor Channon intended to make a Will in the very terms in which he executed the Will. Indeed, as Judge Weeks explained, he made some manuscript amendments in relation to the proportion of his estate which he was leaving to his two children, and to the names of his children. There can therefore be no suggestion of Mrs Day seeking to defraud or take unfair advantage of Professor Channon. Also Mrs Day (like Professor Channon himself) knew that the Will, in order to be effective, had to be witnessed and executed in accordance with section 9. Given that Mrs Day knew she was a substantial beneficiary under the Will, far from her having a motive for having a Will not executed strictly in accordance with section 9, her motive was very much the other way, namely to do everything to ensure that the Will was properly executed.

Of course that does not automatically establish that the Will was properly executed, however, given that there had been allegations or suggestions that Mrs Day was not telling the truth, I think it is worth pointing out that fact.

So far as the witnesses to the Will are concerned, this is not a case where either witness can say that she positively recalls signing the Will, and that the other witness to the Will was not present, or the testator’s signature was not on the Will at the time. If the Will appeared to be regularly executed on the face one would very critically and closely examine such evidence because of the concerns expressed in the cases cited in the passage I have quoted from in Sherrington. Such a case could turn out to be the type of case that the court had in mind at the end of the passage quoted from Wright v Rogers in paragraph 41 of Sherrington.

However, this is not such a case. In the end, as my Lord, Mummery LJ, pointed out in argument, the evidence of Mrs Roth and Miss Reilly boils down to this, that they cannot remember signing Professor Channon's Will as witnesses. Owing to the passage of time and the fact that it would not have been a particularly important event (although I accept it was an unusual event) for them, that is not surprising. As happens with many witnesses, the fact that they cannot remember an event has tended to harden over time into the notion that the event cannot have happened at all. One perhaps sees that from the relatively neutral stance taken in Mrs Roth's original statement suggesting that she simply could not remember signing the Will, to a firming up, as her evidence is given in court and she is being cross-examined, to the conclusion that she cannot have signed it.

Mr Arnfield points out that seven or nine years between signing a Will and giving evidence about it is not a long time, and that the significance of such a lapse of time was a matter for the judge. However, one cannot but help observe that four or five years was thought to be a significantly long time to explain loss of recollection in the judgments in Wright v Sanderson and paragraph 40 of Sherrington. Seven to nine years, in my judgment, represents a significant passage of time.

Furthermore, it would have been better in this case if the judge had taken a somewhat more enquiring attitude to the "various possibilities", to which he made reference in the first two sentences of paragraph 41 of his judgment. Those possibilities related to how the signatures of the two witnesses came to be on the Will recording that it was perfectly validly executed, if, as the judge decided, the witnesses’ evidence that they had not executed the Will as witnesses was to be acceted. While, as I say it, it would be inappropriate to lay down an inflexible rule, it seems to me that where a judge is faced with a regularly executed will and evidence such as that given by Mrs Day, and what might be said to be evidence of poor recollection rather than anything else, from the witnesses, it would be generally appropriate to enquire as to how this could have happened if one is to pronounce against the Will. For instance, had he concluded that, if his decision was right, Mrs Day was being dishonest, that, I would have thought, would have caused him at least to reconsider the conclusion that he was otherwise minded to reach. Similarly he might have realised, if he analysed matters in more detail, that if his conclusion was right, the remaining possibilities were extraordinarily unlikely, in which case again he might have wished to reconsider the conclusion that he reached.

The question we have to ask ourselves is whether, bearing in mind all the evidence before the judge, and bearing in mind the advantage he had of seeing the witnesses, he could properly have concluded that the evidence taken as a whole satisfied the high test required by the law, as summarised in those three paragraphs in Sherrington. With all due respect to the judge in this case, I do not think he could properly have reached that conclusion. It seems to me that if the judge's decision was to stand then the sort of concerns expressed by the Earl of Selborne at 161 in Wright v Sanderson and quoted at the end of paragraph 40 in Sherrington would indeed come to be justified:

Finally, it should be emphasised, although I have already mentioned it, that the decision of this court in Sherrington was handed down some two weeks after his decision in this case. It is only fair to the Judge to acknowledge, that it is quite possible that he would have approached the issue in this case rather differently, and that he could well have reached a different conclusion, had he had the advantage of the reasoning and decision in that case.

In the event I would allow this appeal.

LADY JUSTICE ARDEN: I agree with the judgment of Neuberger LJ. I would like to add some observations of my own as we are differing from the decision of a very experienced Chancery Judge. I start with Sherrington v Sherrington [2005] EWCA Civ 326. In that case this court, of which Neuberger LJ was a member, set out a number of authorities and applied, in particular, the holding of Lord Penzance in Wright v Rogers [1869] LR1 PD 678 at 682. Wright v Rogers was a case where the execution of the will was regular on its face. One of the witnesses was the testator’s attorney, and the other the attorney’s clerk. After the will was executed, an affidavit was sworn by the attorney confirming the regularity of its execution, to the knowledge of the clerk. After the attorney’s death, the clerk said that the will had not been attested in the presence of the deceased. He gave evidence in court to that effect. However Lord Penzance held:

“I think too much has been said about the probability of this story. It is not necessary to assume that the witness came here to deceive the court. The question is whether the court is able to rely upon his memory. He may have mixed up two transactions, for a deed of revocation was executed at the same time as the Will.”

Then follows the passage quoted in paragraph 41 of Sherrington v Sherrington and already quoted by Neuberger LJ in his judgment in this case. Lord Penzance then cited the case of Croft v Croft (4 SW at Tr.10). Lord Penzance continued:

“Here we have only the evidence of one witness, and we find the signature of the other attached to a full attestation clause. Taking all the circumstances into consideration, I come to the conclusion that the will was well executed, and that I ought not to rely upon a recollection of the witness, seeing that, if he did not himself, in the first instance, affirm the execution of the will, he stood by and assented to his fellow witness making such affirmation.”

So, in this kind of case, the court is faced with a situation where the execution of the will by the testator together with the attestation of his signature by the witnesses is regular on its face but one or both of the witnesses come to the court later and give evidence that it was not in fact duly executed.

Lord Penzance refers to the need for the “strongest evidence” before the court will hold that such a will was not duly executed. I accept that, as Mr Robert Arnfield, for the respondent, submits, the requirement for the strongest evidence does not mean that there could be no other evidence that could be stronger. If that were the meaning of the phrase used by Lord Penzance, there would be no case in which anything less than perfect recollection of execution in accordance of the attestation clause could satisfy section 9 of the Wills Act.

So the question of what constitutes the “strongest evidence” for the purposes of this kind of case remains to be explored. As I see it, there is a sliding scale according to which evidence will constitute the strongest evidence in one case but not in another. What constitutes the “strongest evidence” in any particular case will depend on totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the “strongest evidence”, and the stronger that evidence will need to be.

Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied. Allegations that were not made, or were not pursued, and mere suspicion, have to be put on one side.

I turn to another point. In paragraph 41 of his judgment the judge said:

“I do not think it is necessary for me to speculate as to how the signatures came to be upon that document. There are various possibilities but it is not necessary for me to make any finding on what would be no more than a surmise. The witnesses themselves cannot state how their signatures were there. What they are quite sure of and have given repeated evidence of is that they did not see Professor Channon sign or acknowledge his signature and they did not sign in his presence. The acceptance of that evidence is, in my judgment, fatal to the claim for probate, even giving the maximum possible weight to the presumption of due execution.”

With respect to the judge, it seems to me it will in general be necessary for the court to consider the possible reasons why a witness who signed the attestation clause now avers that it was not signed in the way that the attestation clause states. If the explanation is simply lack of recollection, that on its own may not be sufficient to satisfy the court, but evidence from both witnesses that they were nowhere near the place of execution stated in the attestation clause on the particular date would be likely to carry more weight.

In evaluating all the evidence the judge must bear in mind the policy reason identified by Lord Penzance, namely that the court should not, by its decisions in this field, cause “the greatest uncertainty in the proving of wills”.

It follows that the courts should not be astute to find that the presumption as to the due execution of a will, which is regularly executed and attested on its face, has been discharged. That is not to say that there will not be cases where the presumption is discharged. One such case is given by Lord Penzance where both witnesses swear that the will was not duly executed and there is no evidence the other way. Here, as my Lord has explained in his judgment, there is evidence the other way, in particular the evidence of Mrs Day as to how the witnesses, who witnessed the execution of both her will and that of the testator were chosen and, in addition, the evidence as to the execution, which Mrs Roth recalls, of Mrs Day’s will on the same date as that of the testator.

For all these reasons I agree with the order that Neuberger LJ proposes, namely that this appeal be allowed.

LORD JUSTICE MUMMERY: I agree. Taking together all the written and oral evidence, Mrs Day’s as well as that of Miss Roth and Miss Reilly, that evidence was not to use the expression in Sherrington, paragraphs 42 and 43: "the strongest" evidence for displacing a presumption as strong as the presumption of due execution. That is a presumption, as appears from my Lords’ judgments, which is based on sound public policy reasons.

As for intentions, the deceased clearly intended to die testate and not intestate and the detailed testamentary intentions were clear in the Will that had been drafted by his solicitor. As for the formalities of execution, the deceased left the Will which was, on its face, in due form. That was real evidence of due execution of far greater strength, in my judgment, than the best which Mrs Day, Miss Roth and Miss Reilly could do to recollect distant formalities alleged to have taken place on 9th April 1996 and evidenced in the form of the Will itself.

With great respect to the judge, he has not, in my view, correctly applied the presumption of due execution to the evidence that was before him. Not to give effect to that presumption, in these circumstances, would introduce unnecessary and undesirable uncertainty into the proving of wills.

LORD JUSTICE MUMMERY: For all the reasons given by my Lord, Neuberger LJ and Arden LJ, and for the reasons I have just given, I would also allow the appeal. Mr Dumont, you are asking us then to pronounce for the Will of Professor Channon, dated 9th April 1996, in solemn form of law. That just leaves costs of the action and of the appeal.

LORD JUSTICE MUMMERY: For the reasons we have given in our judgment, the appeal is allowed and the court pronounces for the Will of Professor Channon, dated 9th April 1996, in solemn form of law. There will be a grant of letters of administration with the Will annexed to Mrs Day. We will be asking the parties to agree a minute of order, incorporating these matters, and that minute should be signed and submitted to the court as soon as possible. It should also incorporate the rulings that we are now making on costs, having heard submissions from Mr Dumont, for the successful Appellant, Mr Ashfield, for the unsuccessful respondent, and from Mr Howard Smith, who appears for Guide Dogs for the Blind. Mr Smith was limiting his participation in the appeal to having set aside the order for costs made against Guide Dogs for the Blind by the judge in the court below.

We have heard arguments as to the costs of the trial and the costs of the appeal. Dealing first with the costs of the trial, Mr Dumont accepts, subject to certain submissions he made about the way in which the proceedings have been conducted by the respondents as claimants in the action, that the proper order is no order as to costs. He pointed out to us certain aspects of the way in which the proceedings had been commenced, and he referred to offers which had been made on his side and on the respondents’ side.

The suggestion that there should be no order as to costs of the trial was also accepted by Mr Arnfield for the respondents. Mr Smith, for the Guide Dogs for the Blind, sought an order against the respondents for his client’s costs. In our judgment the proper order is no order for costs all round. It was a proper order to make in a case where the substance of the proceedings was concerned with due execution and bringing to the court, for their purpose of them giving evidence and having their evidence tested, the witnesses to the Will. There was no challenge to the validity of the Will on any other ground, though there were various suggestions made as to the circumstances in which the Will may not have been properly executed formally.

In our view no order as to costs is the proper order effecting all the parties and we do not regard the Guide Dogs for the Blind as being in any different position. Mr Smith submitted that they ought to have their costs against the respondents because the respondents had, in their capacity as claimants, joined them to the proceedings. Once they had been joined then they were entitled to have the costs they incurred. The costs they had incurred mainly arose out of their solicitors instructing the same counsel as represented Mrs Day in the proceedings in the trial.

In our judgment, although assuming that Guide Dogs for the Blind were properly joined as parties to the proceedings, there was no necessity for them to participate in the proceedings at all. It was open to them, without any risk, to await the outcome of the contest between Mrs Day and the children of Professor Channon who will be entitled, on intestacy, as to whether or not the Will was duly executed. If it was not, there will be an intestacy and the Guide Dogs for the blind will not get anything, and if it was a validate Will, as contested for by Mrs Day, they will get their share of residue. We see no reason for making any order for costs of the trial in favour of Guide Dogs for the Blind.

Then we come to the appeal. Again I think there is no contest between the appellant and the respondents. Mr Dumont asks for his costs of the appeal to be paid for by the respondents and Mr Arnfield said he could not resist that. Mr Smith applied for his costs of the appeal, so far as it related to the only grounds on which he was appealing, which was the order for costs made against his clients by HHJ Weeks. In our judgment he is not entitled to the order he asks for, that his costs of the appeal be paid by the respondents. The position should be reflected on the appeal, as was below, that there was no necessity for him to participate in the appeal. The order for costs that had been made against him had arisen out of his unnecessary participation in the trial.

I would also add that there was really another reason for his not participating in the appeal unless and until a decision was made on the question of due execution. If the appeal succeeded, as it had, then there was no necessity for him to advance any arguments about the order for costs made against him, because the effect of the appeal succeeding would be to set aside the orders for costs which have been made by his non-jury Judge Weeks below.

For those reasons, so principally that the Guide Dogs for the Blind took an unnecessary part in the litigation below and on this appeal, we think it right to make no order for costs in their favour, either here or below. As regards the other parties, there will be no order for costs at the trial, and as regards the appeal there will be an order that the respondents pay the appellants’ costs. There will be a detailed assessment of the costs that have been ordered to be paid.