Henein v Laffa

THE PRESIDENT OF THE FAMILY DIVISION: This is a very sad and indeed a very distressing case. Fundamentally, it concerns the validity or, as the Applicant would assert, the invalidity of the last will dated 14 February 2008 of the Applicant's wife who died 7 days later on 21 February 2008.

The Applicant, who had known his wife, as she subsequently became, since 1947 when they were both teenagers, had been married to her since 1983. As the judge described in her judgment, he cannot understand, and it is apparent from what he told me this morning that he still cannot understand, why she should have made the will in the terms she did. The sole beneficiary under the will was her son by a previous marriage, the Applicant's stepson.

The issues before the judge, Her Honour Judge Walden Smith sitting in the Central London County Court, were identified by her in her judgment dated 14 November 2013. There were put in issue the testamentary capacity of the Applicant's wife; the issue of whether the will had been validly signed and attested; the issue as to whether she knew and approved its contents; and fourthly and finally, the issue of whether she was acting under the undue influence of her son. That was the first matter before the judge. The judge upheld the validity of the will.

The other issue before the judge was as to whether a notice of severance of the joint tenancy of the matrimonial home had been validly served so as to effect a severance. The judge held that it had.

It is to be borne in mind that there was no claim before the judge by the Applicant seeking provision under the Inheritance (Provision for Family and Dependants) Act 1975.

At the end of the day, having found for the son on both issues, the judge ordered the Applicant to pay the son's costs of the proceedings. The Applicant tells me that his own costs amount to some £54,000 and that the son's costs amount to the significantly greater sum of £72,000. The practical consequence of the judge's order, as the Applicant points out with understandable feeling and emotion, is that the property will have to be sold, a very significant part of his share of his value will be swallowed up in costs and he will be left, as he says, homeless.

The Applicant, as the judge recorded and as is apparent from what he has said to me this morning, suffers a great sense of injustice. He cannot believe that his wife would have acted in the way in which she appeared to do if she had known what she was doing and was not under the influence of her son.

The judge, in a detailed and very careful judgment, correctly directed herself in law. She directed herself that it was for the son who was propounding the will to prove capacity, due execution, and knowledge and approval. She correctly directed herself that it was for the Applicant, on the other hand, to establish undue influence.

It is important to understand that undue influence in the context of probate, the validity of wills, is an entirely different concept from the doctrine of undue influence in relation to lifetime transactions. In the case of a will, there is no presumption of undue influence. It is for the person, in this case the Applicant, asserting undue influence to prove it and what has to be proved is coercion.

The judge heard evidence, including evidence from the Applicant and from a distinguished consultant, Professor Robert Howard, Professor of Old Age Psychiatry at the Institute of Psychiatry and Consultant Old Age Psychiatrist to the South London and Maudsley NHS Foundation Mental Health Trust. The judge also heard evidence from the solicitor who drew the will. Her conclusion was that the deceased, although gravely and terminally ill with cancer (as I have noted she died only 7 days later) nonetheless had testamentary capacity. She found that the will had been validly signed and attested, in other words duly executed, and she found that the deceased did know and approve its contents. She rejected the claim for undue influence.

Reading the judgment, as I have done more than once, it is apparent to me that the judge correctly identified the issues, that she directed herself correctly as a matter of law, that she made findings which were open to her on the evidence she had heard, and in the light of those findings was entitled to come to the conclusions she did, both in relation to the validity of the will and in relation to the issue of severance.

The matter was considered on the papers by Lewison LJ, who on 12 November 2014 refused permission to appeal. He set out his reasons in detail. Having read those reasons and having read the further material put before the court by the Applicant and heard his oral submissions, I can put the matter very shortly. I agree with Lewison LJ that permission has to be refused for the reasons he gave, which I am content to adopt as my own reasons.

The Applicant, as he was entitled to and very helpfully, in response to Lewison LJ's reasons has put before the court a document in the form of a witness statement which does two things. It seeks, in a helpful and appropriate way, to articulate the reasons why, as he submits, Lewison LJ's reasoning is defective and it lays before the court certain factual material.

That witness statement dated 6 June 2015 has been supplemented by the Applicant in two ways. First, in a document sent to the court on 11 June 2015 he has amended paragraph 4 of the witness statement to add additional points.

Secondly, in a document he handed up this morning, as indeed in his oral submissions this morning, he has drawn attention to what he says was the history of the attempts to arrive at a mediated solution to this case before the trial took place. He sets out the history of offer and counter offer. He asserts that he wished to increase his offer in terms set out in that document, but was unable to do so because his solicitor told him it was too late to do so due to the imminence of the trial.

In his materials the Applicant identifies two matters which had not been considered by Lewison LJ. The first arises in this way. In paragraph 6 of his reasons Lewison LJ had drawn attention to what he described as the Applicants "general allegation of unfairness and discrimination against the surviving spouse" which, he said, "does not provide any grounds for appeal".

In his witness statement, the Applicant elaborates that ground of complaint by saying that the trial judge did not consider or determine whether "reasonable financial provision" had been made for him under the 1975 Act. He submits in support of that proposition that the trial judge ought to have considered his age, the duration of the marriage and the question of whether or not the will had the effect of failing to make reasonable financial provision for him. As to that, the short answer is that there was, as I have already mentioned, no such application before the trial judge.

The other matter of law which the Applicant raises additional to the matters put before Lewison LJ is in the amended paragraph 4 of his witness statement, where he draws attention to certain authorities relating to undue influence. Those authorities refer to lifetime transactions and are, therefore, for the reason I have already mentioned, simply not relevant as a matter of law to a case where the undue influence alleged is in relation to a will.

Those two matters apart, the Applicant's case is essentially an attempt to argue that the judge was wrong on the facts (an attempt to re-argue, for example, the question of her capacity or lack of capacity) and an attempt to argue that there was misbehaviour on the part of the stepson, coupled with professionally inadequate work by the solicitor. Those are all matters which were canvassed before the trial judge. They are matters which the trial judge in what, as I have said, was a careful and detailed judgment, considered very carefully. The judge dealt not merely with the law. She dealt with the evidence and explained how, in the light of the evidence she had heard, she arrived at the factual decisions she made, as also her overall conclusion.

The question I have to decide today is a comparatively narrow one. It is the same as the question Lewison LJ had to decide: is there at this stage so as to justify the grant of permission to appeal a realistic prospect of the Applicant establishing, if there is a full appeal, that the trial judge was wrong; wrong either in law or wrong in her findings of fact or wrong in her ultimate conclusion?

I appreciate that the outcome of this litigation has been immensely distressing for the Applicant and has had what to him in old age is a catastrophic financial consequence. But the fact is, I regret to have to say, that despite everything the Applicant has put before the court both in writing and in his, if I may say so, powerful and very moving oral submissions, there is simply no realistic prospect of an appeal succeeding in this case. Accordingly, for those reasons, additional to the reasons already given by Lewison LJ which I am content to adopt as my own, this renewed application for permission to appeal must be refused.

I add only this. It would be cruel charity to the Applicant for me to grant permission to appeal. It would, I fear, be doing no more than to give him false hope and exposing him to a further hearing, the outcome of which would not be what he would want and the outcome of which would be to expose him to yet further costs.

In the circumstances, and recognising in human terms that this leaves the Applicant unable to understand why it is that his wife acted in the way she did, facing as he sees it great injustice after a relationship of some 60 years and a married life approaching 30 years, I have no option but to refuse this renewed application.

Permission to appeal is refused.