Green v Briscoe

1. MASTER BRAGGE: Today there are two claims which call for consideration. The first is a claim in HC04C02961, which is described as the Inheritance Act claim. It is a claim for reasonable financial provision out of the estate of the late Jack Green pursuant to the Inheritance Provision for Family and Dependants Act 1975 and added to that is a claim that an order should be made setting aside the transfer by the claimant, Mrs Green, to the deceased of a property, 186 Anerley Road, London SE20, on the grounds of actual and presumed undue influence. That claim was issued and was followed by detailed particulars of claim served on or about 9 September 2004.

2. The other claim is a claim between the same parties, Mrs Green and Mrs Briscoe, which were commenced by a claim form issued on 8 February 2005. The significance of that date is that the first claim, the Inheritance Act claim, was before the court on 9 February 2005. In other words, the defendant had only just had notice of the second claim.

3. The second claim seeks an order that the court should pronounce against the validity of the will of Mr Green dated 25 November 2003. That has been accompanied by particulars of claim settled by Mr Craig, who appears today on behalf of the claimant, the defendant being represented by Mr Goldkorn.

4. The particulars of claim set out the background and set out the terms of the will of the deceased and continues in paragraph 4 that they will apply to the court for notice to be given to each of the beneficiaries affected by the claim. It continues that the deceased's signature on the will was purportedly signed in the simultaneous presence of a Mr Babul Ali and a Mr Ali, attesting witnesses, when in fact those witnesses have acknowledged that the deceased did not sign or acknowledge his signature in their simultaneous presence, as required by the Wills Act 1837. Accordingly, a claim is made that the court should pronounce against the validity of the will and the grant of probate to the defendant, Mrs Briscoe, should be revoked.

5. What has happened is that the defendant has served a defence and counterclaim dated 23 February 2005. Paragraph 1 is significant because it denies that the claimant has any interest in the estate of the deceased entitling her to issue the claim and, accordingly, it is said that the claim should be struck out. It continues, without prejudice, that the defendant denies that the will was not duly executed by the deceased in accordance with the Wills Act and there is a counterclaim that the court should pronounce in solemn form of law for the will of the deceased of 25 November 2005. I should also say that both parties have filed, or at any rate have made, witness statements of scripts on testamentary documents. I think in fact the defendant's testamentary document is going to be filed.

6. Accordingly, there are two sets of proceedings between the parties. The first is, as I say, the Inheritance Act/undue influence claim and the second is the probate claim. As I have said, under the terms of the disputed will the deceased appointed the defendant as executrix.

7. It is common ground that the deceased had two children from relationships, one a Mr Ray Green and the other a Miss Joanne Nicholls. The claimant, Mrs Green, had married the deceased in October 1991 and the marriage was dissolved on 30 January 2004, very shortly before the deceased's death on 4 February 2004. The position as far as the children are concerned is that they are not parties to either claim. The claimant has made contact with Mr Green and there has been an acknowledgement of service by him in the probate claim. Box A the acknowledgement of service states that:

"I would like to be satisfied that the will was properly executed but do not intend to make a positive case. I will be on holiday in May and not able to attend Court in any event I live in Liverpool and would like the case dealt with in my absence."

8. He also appears to have filled in underneath that that he disputes jurisdiction. In any event that document is dated 17 March 2005. That was in response, as I understand it, to him being served with the claim form and a response pack by the claimant's solicitors, I think in an attempt to give him notice, in effect, of the claim.

9. As far as concerns Joanne Nicholls, the position is more complicated. There is a witness statement of Virginia Harman who sets out a number of details concerning what is known about Joanne Nicholls and her whereabouts. It appears that she had little, if any, contact with her deceased father and little in fact with her half-brother. It appears that she was born in 1967 or 1968 and it appears that she lived both in Mitcham and in Bristol but at unknown addresses. In any event her whereabouts, at any rate at present, are not known.

10. The position is, as I understand, that the claimant, Mrs Green, has been aware for a little while that it may be that the 2003 will was not properly executed but it was not until 7 February 2005 that signed witness statements were produced by the attesting witnesses. As I understand it, it is on the strength of that evidence that she has commenced the proceedings by which revocation of the grant is sought and a pronouncement in favour of intestacy, the earlier will referred to in the witness statement of testamentary documents of the claimant having been almost certainly revoked in the events that have happened.

11. By the defence and counterclaim the defendant denies that the claimant has an interest in the estate entitling her to bring the proceedings at all. The parties have agreed to use today's case management conference as an opportunity of arguing the point, Mr Goldkorn contesting for an order that the claim should be dismissed. What Mr Goldkorn says is that a stranger cannot challenge a will and effectively Mrs Green is a stranger. She would not be entitled on an intestacy and is not entitled to a grant. His submission to me is that she has no interest in the will, sufficient to seek to set it aside. Her only interest is in her claim under the 1975 Act, which of course he accepts needs to be adjudicated.

12. Mr Goldkorn refers me, for example, to the terms of CPR 57.7 including the obligation in a claim form to contain a statement of the nature of the interest of the claimant in the estate and he draws attention to the fact that the claim form does not identify the interest of the claimant. He is correct that the claim form and the particulars of claim do not identify the interest of the claimant in the estate and in my assessment that there is a failure in that respect.

13. He also draws my attention to the non contentious Probate Rules 1987 which set out the categories of person or persons having a beneficial interest on intestacy and he correctly, in my assessment, submits that the claimant does not fall within any of the categories set out there. He submits, therefore, that the correct approach is to strike out the claim and, as far as any counterclaim is concerned, an appropriate order for discontinuance could be made.

14. Mr Craig submits, however, that the position is to the contrary. He says it is essential for the court, before considering the 1975 Act claim, to know who is entitled to the estate of the deceased -- who in effect has the authority to conduct the proceedings on behalf of the deceased's estate in connection with the claim under the 1975 Act? He said that there would be a risk to the claimant if the proceedings under the 1975 Act continued but then, if later, intestacy beneficiaries successfully challenged the 2003 will. He points out that that challenge is a real challenge in the light of the witness statements that have been given in relation to the execution of the will.

15. Both advocates have referred me to the 18th edition of Williams Mortimer and Sunnucks on Executors, Administrators and Probate. Under the chapter "Preliminary Steps and Parties", chapter 35, and in part C of that chapter is the heading "parties to a probate claim". The editors say this:

"Where a person can show that the court has jurisdiction to make an order in a probate claim which may affect his interest or possible interest in the estate of the deceased, however slightly, such person has a right to be a party to that claim."

16. The next paragraph is not material but the following paragraph reads:

"A creditor has no interest in whether the court pronounces for one will or another or for an intestacy and cannot be a party unless he has obtained administration."

17. A number of ancient authorities are given in the footnotes to that paragraph, 35-16, and over the short adjournment the advocates have very helpfully indeed dug into the old reports and have provided me with copies of the old reports. These are Crispin v Doglioni , Hingeston v Tucker , Menzies v Fullbrook and Kerr and Dabbs v Chisman and Jennens . I am not sure that they in fact go any further than the editor's note which appear to me, with respect to the editors, to be an accurate summary of what can be gleaned from the cases. For example, in Hingeston v Tucker the judge C Cresswell said, having considered the cases:

"They clearly establish that before a person can be permitted to contest a will, the party propounding it has a right to call on him to shew that he has some interest, but they go no further than that."

18. For example, in Menzies v Kerr there is a detailed consideration of the question that was then before the court of whether a creditor has a right to contest the validity of a will. After a fairly detailed recitation of authority the court concluded that a creditor has no right to contradict or deny a will. The court concluded that the rule contended for is founded in reason and sound sense, citing a decision of Sir George Lee at paragraph 850.

19. What then is the correct position here? It seems to me that there is force in saying that Mrs Green does not establish that she has an interest in the estate of the deceased. She is interested in a sense in the estate of the deceased because of her Inheritance Act claim. But I think when the court is talking about an interest it is talking about an interest or possible interest in the estate, not simply being interested in it.

20. It seems to me on balance that although there are good reasons why she is interested, and these have been, if I may say so, very helpfully set out by Mr Craig and I have referred to some of them, she does not actually have an interest in the estate, she does not have the sort of interest that CPR 57 is talking about. She is, of course, interested in it because it is important in considering the 1975 Act claim to know who are the appropriate parties to conduct that claim on behalf of the estate, and that particularly shows why, I should say, she is interested in that sense.

21. My attention was drawn by Mr Craig to the power of the court under the Supreme Court Act 1981 to call in grants. Section 121.1 provides that:

"Where it appears to the High Court that a grant either ought not to have been made or contains an error the court may call in the grant and if satisfied that it would be revoked at the instance of a party interested it may revoke it."

22. He submits that, in fact, if the court was seized of the 1975 Act claim and was aware, as it is, of the question mark put over the validity of the will then it is to be anticipated that the court would require there to be determined the question of the validity of the will under the High Court's powers indicated in section 121. Mr Goldkorn says that that is, in his submission, unlikely. But I am not sure, with respect, that I would characterise it for my part as unlikely in the light of the fact that there is now the evidence of the two attesting witnesses.

23. I have referred to the procedure that has been adopted in the probate claim and to the defence and counterclaim. It is, of course, the position that the usual rules for discontinuance governed by part 38 do not apply to probate claims. That is made clear by CPR 57.11. At any stage of a probate claim the court may order that the claim be discontinued or dismissed or that a grant of probate should be made, as may be appropriate, but that is permissive.

24. What I think needs to be done in fact is this: it is common ground, subject only to the question of one of the children, that the only issue that needs to be determined is for a judge to hear the two attesting witnesses. It is a very short point. As I understand it, there is going to be no other evidence or disclosure except for the two witness statements that have been filed and served on behalf of the claimant and the witness statements that may be served on behalf of the defendant. One imagines that the whole of that trial, which I think would have been called in the old days the short probate list, should only take an hour or two.

25. I am not prepared to permit discontinuance of the counterclaim. I think that the matter will need to be tried in the trial window on the date that has been obtained by the parties from the listing office. It seems to me that that is important because, while I am not satisfied that technically Mrs Green has an interest and while I accept Mr Goldkorn's submissions, it does seem to me that there is a real interest, as far as the administration of justice is concerned having regard to the two witness statements that have actually been provided, in having this matter adjudicated, if only, as I say, on the counterclaim. So that is what I am proposing to do.