Randall v Randall

This is the trial of a preliminary issue ordered on 9 May 2014 with the consent of the parties. At the commencement of the hearing on 6 August 2014 I expressed concern whether costs would be saved by the determination of the preliminary issue rather than dealing with all matters at a trial. However, the parties were content to proceed and as the parties had fully prepared for the hearing, any adjournment would have resulted in unnecessary wasted costs.

The preliminary issue identified to be determined is:

“…whether, on the footing that the facts and matters set out in the Claimant’s Particulars of Claim are true, the Claimant has an interest in the estate of Sylvia Joyce Corrall deceased sufficient to give him legal standing to bring a contentious probate claim therein.”

The Claimant and the Defendant were formerly married and are now divorced. The Defendant is the only child of the deceased Mrs Sylvia Corrall, who died on 11 March 2013. On 3 May 2013 the Defendant as executrix obtained a grant in common form of the will of the deceased bearing the date 20 October 2009 (“the Will”), with power reserved to another executor. The Defendant asserts that the Will was incorrectly dated and that the date of its execution was 20 October 2011.

By this claim the Claimant seeks pronouncement against the Will and revocation of the said grant. The Claimant challenges the validity of the Will on the ground that it was not validly executed in accordance with section 9 of the Wills Act 1837.

The Will after appointing the Claimant and Edwin James Attree executors and trustee provides as follows:

“2.

I GIVE the following legacies free of tax:

a.

The sum of One Hundred Thousand Pounds (£100,000) to my said daughter HILARY ANN JOCELYN RANDALL absolutely provided she survives me.

b.

…

c.

…

d.

The sum of One hundred Pounds (£100) to my grandson MARTIN ALAN RANDALL C/O Miss Fiona Randall …

3.

I GIVE all the residue of my estate both real and personal whatsoever and wheresoever (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have at my death any power of appointment to my three remaining grandchildren namely FIONA LOUISE RANDALL …. PATRICK COLIN RANDALL …. and HARRIETT CAROLINE RANDALL … absolutely in equal shares.”

In this judgment I will refer to the grandchildren referred to in clause 3 of the Will as “the remaining grandchildren”.

The Defendant pleads and confirms in her evidence that Mrs Sylvia Corrall had executed an earlier will on or about 30 January 2009 (“the Earlier Will”). No executed copy of the Earlier Will can now be found and the witness statement of testamentary scripts made by the Defendant dated 14 November 2013 only refers to an unexecuted copy of the Earlier Will. The Earlier Will is in identical terms to the Will save that in the Will; (1) the addresses of the deceased and the Claimant have been updated, (2) the Will does not contain the legacy of £1,000 left to USK Rural Life Museum and (3) the Will has the day and month of date inserted in manuscript.

There is a reference to an April 1999 will in the witness statement of testamentary scripts made by the Defendant, but the terms of that will are not known. Further, there is a reference to a 2006 will in the attendance note dated 12 January 2009 of Keith Evans & Company (solicitors who advised the deceased).

The Claimant is not a beneficiary under either the Will or the Earlier Will. It is also accepted, or at the very least not disputed, that the Claimant is not entitled to seek an order granting him administration of the estate of Sylvia Corrall.

The Claimant and the Defendant disposed of their claims for financial provision in their divorce proceedings by a consent order dated 12 May 2006 (“the Consent Order”). The Consent Order approved and made by District Judge McLoughlin provided that:

“in the event that the [Defendant] receives hereafter any property and/or monies from her mother by way of inter vivos gifts and/or inheritance, [the Defendant] shall retain the first £100,000 of the sum of any such gifts and/or inheritance and the balance shall be divided equally between [the Defendant] and [the Claimant].”

The Claimant asserts that he “is entitled to share in the estate of the deceased in the event postulated by [that] part of the [Consent Order]”.

This claim was issued on 18 October 2013. The Particulars of Claim assert that the deceased does not appear by her signature on the Will to have intended to give effect to the Will. The facts relied upon are set out in the eleven sub-paragraphs of paragraph 7 of the Particulars of Claim. As the trial of the preliminary issue is to proceed on the footing that the facts and matters in the Particulars of Claim are true, for completeness I set out those sub-paragraphs in their entirety (the Will is referred to in this extract as “the purported will”):

“(i)

The purported will consists of 2 pages. The signature of the deceased and of the witnesses thereto is affixed to the second page which is entire and bears the aforesaid date [20^th October 2009] but the first page of the purported will is defaced by two punch-holes;

(ii)

The said first page bears no indication that the deceased had seen, read, understood or approved it;

(iii)

The said first page describes the defendant as "HILARY ANN JOCELYN RANDALL of Flat 8 St Eansythes Court Tonbridge" but the defendant was on 20^th October 2009 living at 13 Harmony Street, Rusthall, Tunbridge Wells as the deceased well knew. The defendant did not begin to live in St Eanswythes (not Eansythes) Court until about September 2011. On 20^th October 2009 nobody could have known that her eventual address would be in St Eanswythes Court;

(iv)

It is the first page, only, which restricts the gift to the defendant to the sum of £100, 000 but shortly before the making of the said order of District Judge MacLoughlin the [Defendant]'s then solicitors, in a letter dated 3rd May 2006 intended to help persuade the claimant to agree to a version of the order, stated, "Our client has no retirement provision save her state pension. She will be relying on her inheritance to make her retirement a little easier, she is likely to be on a very limited income and of course takes the risk that she does not in fact inherit if the Mother needs these funds for her care," that is to say, at the time of the making of the order the risk that the deceased's estate might not pass (or largely pass) to the defendant which was reasonably foreseeable was that the deceased might expend her assets on old-age care and no other; in the event the deceased spent almost nothing on her old-age care;

(v)

The claimant wrote to the defendant's then solicitors, Keith Evans & Co, asking for explanations of inter alia the incompatibility of the said address given for the defendant in the alleged will and the date of the same. He did so on 10^th May, 17th May, 5^th June and 14^th June 2013 without receiving any such explanation. In his e-mail of 14^th June 2013 the claimant threatened to report the defendant's solicitors to their regulatory body if he did not receive such an explanation by 21^st June. On 21^st June 2013 the said solicitors stated that the deceased called at their offices to update her new address and that what they alleged was a previous will remained on their computer; that they altered her address accordingly but that "unfortunately the year was left unaltered on the new will". The claimant admits that the deceased moved from 22 The Halfpennys, Gilwern, Abergavenny to 10 Castle Court, Usk (the address stated in the alleged will) on 6^th October 2009 but denies that the same merited an amendment to one's will or that a competent solicitor would have so advised his client;

(vi)

Following demands by a former solicitor for the claimant, the defendant's said solicitors on 8^th July 2013 e-mailed a draft of a purported statement of one Richard Paul Jordan, who is named as a witness to the alleged will. The said draft statement was neither dated nor signed. The said draft statement stated inter alia:

(a)

that the deceased had made an appointment to visit their offices on 20^th October 2011 at 3pm, corroborated by a diary entry,

(b)

that the purpose of the visit was to amend her will to reflect her new address and the deletion of a gift to Usk Rural Life Museum,

(c)

that those amendments were done there and then but

(d)

that she executed the alleged will on 30^th (not 20^th) October 2011, a date about which according to the draft statement there was "absolutely no doubt";

(ii)

The deceased in fact continued to be involved in and care about Usk Rural Life Museum and there was no reason why she should have wished to cut them out of her will if (which is not admitted) she had previously executed a will;

(iii)

The said draft statement purported to be accompanied by copies of an invoice for an earlier version of the alleged will dated on or about 30^th January 2009 and a covering letter for the same, but no such copies accompanied it;

(iv)

No copy of the diary entry which allegedly corroborated the deceased's appointment to visit the offices of Keith Evans & Co on 20^th October 2011 accompanied the said draft statement;

(v)

On 23^rd July 2013 the claimant's said solicitor requested sight of the said alleged corroborative diary entry but was informed that Mr Keith Evans (who it is presumed was the only person able to deal with that correspondence) was on holiday until 5^th August, therefore on 13^th August 2013, not having heard from Keith Evans & Co, the claimant's solicitor e-mailed them inter alia asking for copies of the said diary entry, invoice and covering letter. The said e-mail was despatched at 10.05am;

(xi)

The reaction of Keith Evans & Co was to reply the same day at 10.06am, "We no longer act in the matter".”

The Claimant estimates the value of the estate of the deceased to be not less than £250,000, giving him, he states, a claim of about £75,000 if the entire estate passed to the Defendant.

The Defendant filed a Defence and Counterclaim dated 14 November 2013. By the Counterclaim the Defendant seeks to prove the Will in solemn form and in the alternative to prove the Earlier Will in solemn form. The Defendant asserts that the Will was executed on 20 October 2011 at the offices of Keith Evans & Co and that an error was made with the year in the date of the Will, because a draft of the Earlier Will was used as a template and by an oversight the year was not amended from ‘2009’ to ‘2011’.

In the Reply and Defence to Counterclaim, the Claimant does not admit or deny the execution of the Earlier Will as alleged by the Defendant and curiously asserts (given its terms of the Earlier Will) that, the alternative counterclaim to prove the Earlier Will in solemn form, is a vindication of him bringing this claim.

At the commencement of the hearing I outlined the various issues that had to be determined at the trial namely:

The parties agreed that those were the issues raised on the trial of the preliminary issue, though Mr Littman, (Counsel for the Claimant), in oral submissions suggested that there was an additional issue of whether there was a requirement for a party to have “an interest in the estate” for the purposes of challenging the validity of the Will. In paragraph 13 of his skeleton argument dated 1 August 2014 Mr Littman had stated that it was not the intention of the Claimant to argue that there was no such requirement.

During the course of the hearing on 6 August 2014 it became clear that although there appeared, on the written submissions, to be disagreement concerning the evidence the court could consider for the purposes of determining the preliminary issue, the parties at the commencement of the hearing on 6 August 2014 agreed that the court could consider all the evidence and documents in the hearing bundle and in particular; (1) the documents referred to in the Particulars of Claim, including the Consent Order, and (2) the draft of the Earlier Will.

Mr Littman accepted that for the Claimant to ultimately succeed in this claim, the Claimant had to ‘knock out’ both the Will and the Earlier Will, for under the Earlier Will the Defendant similarly was only left £100,000 by her mother. The Claimant simply had not challenged the Earlier Will. To deal with that point Mr Littman applied for permission to amend the Reply and Defence to Counterclaim by inserting the following paragraph:

“7.

Upon service of all of the evidence on which the defendant relies for proof of the 2009 will, the claimant reserves the right to challenge the same on the ground of non-compliance with the Wills Act 1837 and/or that it was revoked.”

The reference to the ‘2009 will’ is a reference to the Earlier Will. Mr Baxter, (Counsel for the Defendant), did not object to the amendment, but stated that it did not add anything to the case of the Claimant. I grant permission for such amendment and dispense with the need for service of an Amended Reply and Defence to Counterclaim, but the Claimant must file an Amended Reply and Defence to Counterclaim.

The parties also agreed that the interest of the remaining grandchildren should be protected and represented by appointing the Defendant to act as their representative pursuant to rule 19.7 of the Civil Procedure Rules (“CPR”). I was told that the remaining grandchildren are all adults. On 6 August 2014 I made such a representative order on the basis that the Defendant has the same interest in this claim (in respect of upholding the grant and the validity of the Will) and dispensed with the need for a formal written application or service of the same. I further directed that the Defendant should file a written consent to act as such representative and that, by her solicitors, should notify in writing the remaining grandchildren of the representation order and their right to apply to set aside such order.

I turn now to the substantive issues. In summary the Claimant contends that:

The arguments of the Defendant in summary are as follows:

It is my firm judgment that the requirement to show an interest in the estate, is a substantive requirement of the common law. The authorities that were produced to the court and which are referred to in paragraphs 69 to 88 below, make that position clear.

Further, it is clear that the requirement is a mandatory substantive requirement that cannot be dispensed with or abolished. That was made clear in the case of O’Brien v Seagrave [2007] EWHC 788 (Ch) at paragraph 8 where HHJ Mackie QC stated:

“I first dispose of Mr Dencer's fallback arguments. First he accepts that it is not open to the court to abolish the rule, (even should it be desirable to do so). Secondly the two cases which he cites to suggest that an interest is not needed where there is credible forgery do not begin to have enough weight to overcome the mandatory requirement found in CPR r 57.7. … As I see it the claimant can only take this case forward if she has a legitimate “interest” within CPR r 57.7.”

CPR 57.7 provides:

“(1)

The claim form must contain a statement of the nature of the interest of the claimant and of each defendant in the estate.

(2)

If a party disputes another party's interest in the estate he must state this in his statement of case and set out his reasons.”

Paragraph 4 of the Practice Direction to Part 57 provides:

“Case management

4.

In giving case management directions in a probate claim the court will give consideration to the questions—

(1)

whether any person who may be affected by the claim and who is not joined as a party should be joined as a party or given notice of the claim, whether under rule 19.8A or otherwise; and

(2)

whether to make a representation order under rule 19.6 or rule 19.7.”

The procedural requirements of CPR57.7 have their heritage in Order 76 of the former Rules of the Supreme Court which provided (1999 practice):

“Requirements in connection with issue of writ

2.(1) …

(2)

Before a writ beginning a probate action is issued it must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates.

Parties to action for revocation of grant

3.

Every person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of probate of his will or letters of administration of his estate shall be made a party to any action for revocation of the grant.”

The provisions of CPR57.7 procedurally require the substantive requirement (or any dispute of the same) to be set out in the statements of case to allow clear identification of the basis of the standing of the claimant and any dispute that may arise. It is of note that the provisions concerning the joinder of parties are drafted in less stringent terms, simply referring to persons ‘affected by the claim’ rather than to persons having an ‘interest in the estate’.

The Claimant asserts that all public documents affect citizens within the jurisdiction. That once a will is admitted to probate it becomes a public document and as a consequence any member of the public has an interest in ensuring that a ‘fake’ will is removed from probate. It is argued that as wills admitted to probate are examined, amongst other matters, for their historical significance, there is a public interest in ensuring that such admitted wills are not ‘fake’.

It is submitted on behalf of the Claimant that in this regard there is a direct analogy with the field of judicial review, where the concept of an ‘interest’ for the purposes of standing is interpreted very broadly. At one stage it was asserted by Mr Littman in oral submissions that the issue of motive was not relevant to the issue of standing in judicial review proceedings. However, he subsequently conceded that Sedley J in R v Somerset County Council and ARC Southern Limited, Ex p Dixon [1998] Env L R 111 at page 122 and Dyson LJ in R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546 at paragraphs 23 and 24 held that motive (or at least ill motive) was important when considering standing.

Mr Littman relied on the decision in R v Speyer, R v Cassel [1916] 1 KB 595 where Sir George Makgill was permitted to bring judicial review proceedings to challenge the appointment of certain Privy Counsellors. Sir George Makgill was a stranger to the appointments and had no private interest in the same, but brought the matter to court (and was held to be entitled to) on purely public grounds for the benefit of the community. It is submitted that accordingly it must follow that the Claimant, who has something to gain and who reasonably claims that a will admitted to probate is ‘fake’, should have standing to bring this claim.

Mr Littman asserted that modern judicial review is conducted by reference to provisions contained in section 31(3) of the Senior Courts Act 1981 which are similar to the requirement set out in CPR 57.7(1). That section provides as follows:

“31(3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.” (Emphasis by underling added)

Mr Littman stated that the modern approach to standing in judicial review proceedings was set out by the Court of Appeal in R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546 at paragraphs 23-27. He said that that case is authority for the proposition that an individual has a ‘sufficient interest’ to bring judicial review proceeding even if the purpose is to ‘extract substantial compensation from the Secretary of State’ rather than furthering the public interest.

By analogy he argued that someone who can show “a strong political or ethical interest in, or benefit accruing to himself from, the revocation of a grant of a falsely propounded will, provided he is not promoted by an ill motive, a busy body or troublemaker should be accorded standing to bring a probate action, in the public interest if not his own”. Mr Littman submits that as allegations concerning the falsity of a will are likely be rare, holding that such a claim meets the requisite requirement will not open the ‘floodgates’.

Mr Baxter submitted on behalf of the Defendant that:

Mr Baxter also drew the courts attention to section 49 of the Administration of Justice Act 1985. He points out that pursuant to that section, the beneficiaries of an estate may compromise a claim by a Tomlin Order, which could deliberately admit a ‘false will’ to probate. In such circumstances, he argues that, as a matter of principle it would be inappropriate to permit any member of the public to have the right to challenge the validity of a will simply because it is a document open to public examination.

The right to inspect a will admitted to probate arises under section 124 and 125 of the Senior Courts Act 1981:

“124.

Place for deposit of original wills and other documents.

All original wills and other documents which are under the control of the High Court in the Principal Registry or in any district probate registry shall be deposited and preserved in such places as may be provided for in directions given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005; and any wills or other documents so deposited shall, subject to the control of the High Court and to probate rules, be open to inspection.

125.

Copies of wills and grants.

An office copy, or a sealed and certified copy, of any will or part of a will open to inspection under section 124 or of any grant may, on payment of the fee prescribed by an order under section 92 of the Courts Act 2003 (fees), be obtained—

(a)

from the registry in which in accordance with section 124 the will or documents relating to the grant are preserved; or

(b)

where in accordance with that section the will or such documents are preserved in some place other than a registry, from the Principal Registry; or

(c)

subject to the approval of the Senior Registrar of the Family Division, from the Principal Registry in any case where the will was proved in or the grant was issued from a district probate registry.”

Further the Non-Contentious Probate Rules 1987 provide:

“58.

Inspection of copies of original wills and other documents

An original will or other document referred to in section 124 of the Act shall not be open to inspection if, in the opinion of a district judge or registrar, such inspection would be undesirable or otherwise inappropriate.”

It follows that the right to inspect wills admitted to probate is not an absolute right, but is subject to the control of the Court.

Judicial review proceedings are concerned with abuse of the public powers and the citizen is the guardian of those rights. Judicial review is concerned with public interest litigation for the benefit of the citizens of England and Wales and it is for that reason that a broad and elastic approach is taken to the gateway – ‘a sufficient interest’. It is litigation brought in the interests of the public as a whole to prevent unlawful executive action. These principles can be drawn from the authorities cited to me and in particular the passages in R v Speyer, R v Cassel [1916] 1 KB 595 at 613 per Lord Reading CJ (the issue of standing was not raised in the Court of Appeal), R v Somerset County Council and ARC Southern Limited, Ex p Dixon [1998] Env L R 111 at 122 per Sedley J and R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546; at paragraphs 23-27.

On the other handprobate claims, although in the nature of claims in rem, are concerned with private rights between citizens. As stated above in paragraphs 22 and 23, the requirement to show an ‘interest in the estate’ is a rule of the common law. It cannot be abolished or watered down even where there is evidence of credible forgery. Simply being a member of the public is not sufficient. If that was the case, then there would have been no necessity to impose the specified requirement.

It is simply not appropriate to transplant the broad approach to standing in the judicial review field into probate claims. It is of note that Mr Littman was not able to point to any authority where the broad approach in that public law field was considered appropriate to be applied in probate proceedings. On the contrary the case mentioned during the course of argument, (though not named); Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56 at paragraphs 35 and 38, indicates that the two approaches are not analogous.

The Civil Procedure Rules, pursuant to the overriding objective introduced a new approach to procedure. However, the CPR cannot, and more importantly was not intended, to redefine substantial common law gateways to bring claims, it being, as set out in CPR1.1(1); a “procedural code”.

In my judgment, the fact that a will becomes a public document upon being admitted to probate and the approach to standing in judicial review proceedings are of no assistance in deciding the issue of standing to bring a probate claim.

To be fair to Mr Littman, he did indicate in oral submissions that this limb of his argument was not his best point and was an argument deployed to set the scene for his other submissions.

The relevant parts of the Consent Order are as follows:

“A UPON the [Defendant] and the [Claimant] agreeing that the terms of this order are accepted in full and final satisfaction of all claims for income, capital and pension sharing orders and of any other nature whatsoever which either may be entitled to bring against the other howsoever arising.

…

I AND UPON the [Defendant] undertaking to the Court and agreeing

1)

to pay such lump sum or sums as may be necessary to give effect to the following agreement between the [Defendant] and the [Claimant], namely, that in the event that the [Defendant] receives hereafter any property and/or monies from her mother by way inter vivos gifts and/or inheritance, the [Defendant] shall retain the first £100,000.00 of the sum of any such gifts and/or inheritance and the balance shall be divided equally between the [Defendant] and the [Claimant] and

2)

to notify the [Claimant] of the receipt of any inter vivos gifts and/or inheritance from her mother within 28 days of the same and

3)

to pay to the [Claimant] the afore-mentioned lump sum or sums forthwith upon the receipt of any inter vivos gifts from her mother or upon the receipt of any interim and/or final payments from her mother's net estate.

…

IT IS ORDERED, SUBJECT TO DECREE ABSOLUTE, THAT:

…

4

The [Defendant] do pay to the [Claimant] the lump sum or sums specified in recital I to this Order and recorded in the [Defendant]'s undertaking and agreement.”

Mr Littman submitted that the Consent Order effected an equitable assignment of part of the beneficial interest of the Defendant in the estate. He asserts that the interest of the Claimant is an identifiable part of the gift made by the deceased, namely half of the balance in excess of £100,000 given to the Defendant. It is submitted that the Claimant’s interest in the estate ‘vested’ on the death of the deceased. Consequently it is asserted that the Claimant is not a mere creditor.

To support this submission Mr Littman referred me to Myers v Design Inc (International) Ltd [2003] EWHC 103 (Ch) where the court held, that for the purposes of obtaining an order for a payment into court pursuant to CPR 25.1(1)(l), there had to be an identifiable fund in which there was a claim to a proprietary entitlement or interest. In that case the court concluded that a loan made out of the proceeds of sale of a property did not give rise to a proprietary entitlement or interest in a fund and that the claim of the claimant therein was a debt claim.

However, it was accepted by Mr Littman that the said interest of the Claimant only arises when the Defendant received the gift from the deceased, i.e. the equitable assignment arises once the gift ‘is in the hands of the Defendant as beneficiary’.

Mr Littman submits that the ‘false will’ results in the Claimant receiving nothing, and that the court should look at the justice of the situation to give proper and just meaning to the Consent Order.

The Defendant asserts the Consent Order does not give rise to an equitable assignment of an interest in the estate, for the Claimant only has a hope of receiving a payment, and that obligation only arises when the Defendant ‘receives’ a sum in excess of £100,000 as specified in recital I of the Consent Order. Mr Baxter asserts that the only relief that the Claimant can obtain is against the Defendant in her personal capacity, the agreement to pay being ‘subject to’ the Defendant receiving a gift in excess of £100,000.

The Defendant contends that the Consent Order at best gives the Claimant a claim in debt against the Defendant, and that the personal nature of that claim is underlined by the requirement, in paragraph 2 of recital I, requiring the Defendant to notify the Claimant of receipt of a requisite gift. Mr Baxter asserts that the claim of the Claimant under the Consent Order cannot determine the scheme of distribution of the estate, because it cannot be pursued until the distribution is complete. Further, he asserts that under the Consent Order the Claimant’s claim is not to the deceased’s assets in the hands of the personal representative but is to assets that are in the Defendant’s hands having been properly distributed to her (such that they belong to her absolutely, subject to the Claimant’s claim).

As stated above the Consent Order was a compromise of the financial provision claims of the Claimant and the Defendant consequent upon their divorce.

The agreement and undertaking in respect of the gift/inheritance from the deceased are recorded in a recital to the Consent Order for the orders that can be made by the Family Court for financial provision are prescribed by Sections 22 to 24E(inclusive) of the Matrimonial Causes Act 1973. It is for that reason that paragraph 4 of the operative part of the Consent Order orders the sum payable under the recital I to be paid as a lump sum, which order the Family Court can make pursuant to section 23(c) of the Matrimonial Causes Act 1973.

Further, it is of note that the deceased was not a party to the agreement recorded in the Consent Order, and the Claimant did not seek to bind the deceased to require her to make a gift of her estate to the Defendant. It follows that the prospect of the Claimant receiving a benefit pursuant to recital I, was at the whim of the deceased during her lifetime. It is clear that if the Claimant wished to have certainty in respect of receiving a benefit under recital I, he would have had to bind the deceased and her estate. It is of note that the Claimant was advised by solicitors at the time the Consent Order was made. It follows that if properly advised the Claimant would have been aware of the precarious nature of the benefit provided for in recital I.

The undertaking and agreement in recital I in respect of a requisite gift/inheritance imposes on the Defendant obligations:

In the event of an inter vivos requisite gift by the deceased to the Defendant there simply could be no possibility of there being an equitable assignment of the deceased interest in that gift, for the gift would not be complete until the Defendant received the gift, and upon such receipt the Defendant acquired an absolute interest. The obligation on the Defendant under recital I arises only upon receipt when, the Defendant has an absolute interest.

The same situation applies in respect of a requisite inheritance. There cannot have been any equitable assignment of any part of the estate, for until the Defendant actually receives the requisite inheritance by distribution, (i.e. when the asset has ceased to be part of the estate), there is no obligation on the Defendant under recital I. Once the Defendant receives the distribution she is absolutely entitled to the asset representing the requisite inheritance.

Mr Littman properly accepted that the quantum of sum the Claimant would be entitled to be paid from a requisite inheritance in the event of a distribution in specie received by the Defendant would be fixed at the date of death (or more probably the date of distribution). Consequently the Claimant would not suffer from or benefit from any loss or gain in value of the asset distributed to the Defendant. That clearly indicates that the Claimant has no proprietary interest in the requisite inheritance while it is part of the estate, otherwise he would benefit or suffer with the rise and fall of any asset distributed to the Defendant in specie.

The obligation of the Defendant is to pay a sum of money – a lump sum. It follows that if there is a distribution of a requisite inheritance, then there arises an obligation in debt between the Defendant (in a personal capacity) and the Claimant. Under paragraph 4 of the Consent Order the Claimant can enforce that debt obligation in the Family Court.

Accordingly, the nature of the interest of the Claimant under the Consent Order is as a creditor, or prior to distribution possibly as a contingent creditor, of the Defendant in her personal capacity.

As the parties have provided me with detailed skeleton arguments which were further amplified in oral submissions, I propose to summarise their submissions on this issue.

The Claimant submits that the requirement that a claimant must show an “interest in the estate” is a general rule to which exceptions are admitted and those exceptions redefine the general rule. Mr Littman submitted that the development of this general rule was similar to the development that has taken place in the tort of negligence. He submits that given the new approach of the courts as required by the CPR the court should construe the requirement broadly, particularly as if the Defendant is correct the only individuals who would be entitled to challenge the Will would be the Defendant and her children, who have no motive to do so.

Mr Littman submitted that there was there was in addition to the categories of “an interest in an estate” suggested by the Defendant (see paragraph 65 below), a further category, which included ‘a creditor of a beneficiary of an estate where the debt due from the beneficiary will only arise in the event of the absence of a provision that seeks to avoid the said debt’. Such an additional category and/or the inclusion of the Claimant within the requirement, he submits, will not open the floodgates. In any event he submits that ‘floodgates’ argument, given the decision in O’Brien v Seagrave [2007] EWHC 788 (Ch), has less force in the modern era.

He also submits that all the Claimant has to show is a ‘bare possibility’ of an interest.

Mr Baxter on behalf of the Defendant submits that a party has ‘an interest in the estate’ if he has; (1) an entitlement to administer the estate or (2) an entitlement to a distribution of the estate.

He asserts that a creditor of a beneficiary does not have an interest in the estate, and to enlarge the requirement to include such a category would open the floodgates, for every estate will have creditors and every estate’s creditors will have creditors.

He submits that while a claimant only has to show ‘a bare possibility of an interest in the estate’ such ‘bare possibility’ refers to an interest arising in the event the claimant succeeds in setting aside the challenged will or upholding the validity of a will; e.g. an interest in the estate distributed under an earlier will if the later will is found to be invalid.

A number of authorities were cited to me and I propose to deal with them chronologically.

In Menzies v Pulbrook and Kerr [1841] 2 Curt 846 the Prerogative Court held (three days short of 173 years before the trial of this preliminary issue) that a creditor of an estates does not have an interest in the estate to allow him to challenge the validity of a will. In that case Sir Herbert Jenner justified such a conclusion stating as follows:

“ Whatever were the circumstances in the case of Burroughs v. Griffiths, both Sir Wm. Wynne and Sir John Nicholl were strongly of opinion that a creditor had no such right. They adopted the rule without any doubt as to its propriety. In Elme v. Da Costa [1 Phill. 173] it was contended by Sir Wm. Scott and Dr. Nicholl that a creditor, when in possession of an administration, might contradict a will, and Mrs. March's case was referred to. Dr. Harris and Dr. Swabey on the other side denied that a creditor had any right to oppose a will. Sir Wm. Wynne expressed himself to this effect : "The right of a creditor is only this, he cannot be paid his debt till a representation of the deceased is made ; he can call on all who have a right to administer ; before an administration is granted, if a will be produced, the creditor has no right to contradict or deny it ; for if there is a will, or a next of kin claims the administration, then a person offers to make himself a representative, and the creditor gets all that he has a right to." This appears to me to be a very strong expression that a creditor has no right to oppose a will, and that all that he has a right to is that there should be a representation; although this does not expressly determine the point, it is so strong a declaration that the Court would be inclined to adhere to it; and in Dabbs v. Chisman [1 Phill. 155] Sir John Nicholl expresses his opinion equally strongly, "A creditor cannot deny an interest or oppose a will." These two cases, then, the one in 1791 and the other in 1810, affirm the rule, and the expressions are so strong that, unless there be something to contradict them or to shew that the rule is wrong in principle, the Court would be bound to adopt it.

…

These cases then appear to me to establish the rule of practice as contended for by the counsel for Menzies, and to be precedents which the Court must adhere to, unless the principle on which they are founded be shewn to be unsound. Now, some cases … were cited in which a creditor has been allowed to contest the right to administration against the next of kin ; but in those cases it appeared that the next of kin had no interest in the property, and they do not affect the question before the Court.

I apprehend that a creditor, except by the practice of the Court, has no right to the administration of the estate of a party deceased; he has no right by the statute: he is the appointee of the Court, and I do not know, if circumstances shewed that the creditor was not a proper person, that the Court might not appoint another person.

The rule contended for in this case is founded in reason and sound sense. Sir George Lee says, “If a creditor was admitted to dispute the validity of a will, it would create infinite trouble, expense, and delay to executors," and I think much inconvenience ; if a creditor has a right to oppose a will, he has an equal right to call in a probate, and put the executor upon proof of the will in solemn form ; and if one creditor has this right, every creditor has it ; and if a creditor has a right to oppose a will, an executor has a right to oppose the interest of a creditor; and the Court would be called upon to determine questions out of its jurisdiction, whether a debt was barred by the Statute of Limitations; whether the instrument under which the creditor claimed was duly stamped, and various other points. I am therefore clearly of opinion that the rule which has been acted upon so long ought not to be disturbed.”

The authority of Dabbs v Chisman (1810) 1 Phill Ecc 155 relied upon by Sir Herbert Jenner represented the settled law at that time. His decision in Menzies v Pulbrook and Kerr has stood the test of time and continues to be referred to in Williams, Mortimer & Sunnucks: Executors, Administrators and Probate 20^th Edition at 34-17.

While Mr Littman criticises the decision in Menzies v Pulbrook and Kerr as being unsound in principle, it is clear that it was based on an established principle and continues to be good law. Further, the suggestion that the decision relied too heavily on the argument against opening ‘the floodgates’ is not tenable. That argument shows the ‘good sense’ of the decision, and that argument was used to support rather than found the reason for the decision.

As an aside it should be remembered, as explained at paragraph 1-02 in Williams, Mortimer & Sunnucks: Executors, Administrators and Probate 20^th Edition, until 1857, where a person died, jurisdiction in relation to his real estate was exercised by the common law courts, while jurisdiction in relation to his personal estate was exercised by the ecclesiastical courts. On this basis, until 1857, the testament of a deceased person in relation to personal estate would, in general, be proved in the Court of the Ordinary. If, however, the deceased had effects to such an amount as to be considered notable goods (bona notabilia) within some other diocese or peculiar, then the will had to be proved before the Metropolitan (i.e. Archbishop) of the relevant province by way of special prerogative. In such a case, the validity of a will would be tried in the relevant Prerogative Court of either Canterbury or York.

The Claimant referred me to the case of Kipping and Barlow v Ash (1845) 1 Rob 270. That case was determined by the Prerogative Court of Canterbury. In that case William Ash, in the events that occurred, by his will left his real estate to the children of his brother. By a subsequent codicil, amongst other alterations to his will, he revoked the devise to them of his real estate, and left them certain pecuniary legacies. It was asserted that the interest of the children in personalty was not directly or indirectly affected by the codicil, and therefore they had no interest to oppose the codicil alone by reason of the practice of the Prerogative Court. It was argued on behalf of the children that as the children were allowed to oppose both the will and codicil, it would be an absurd rule of practice if they were not allowed to oppose the codicil alone. The court, unsurprisingly concluded, that they had a requisite interest. The court stated that it was sufficient for the children to establish “a bare possibility of an interest” i.e. the bare possibility that they would succeed in setting aside the codicil which would give them an interest in the ‘real’ estate.

The case of Dixon and Dickenson v Allinson and Allinson (1864) 3 Tr & Sw 572 concerned the estate of Ann Wilson who died on 3 June 1864. Her husband, who together with Mr Dixon and Mr Dickenson had been appointed her executors, died on 12 June 1864. Mr Wilson had appointed Mr Dixon and Mr Dickenson the executors of his will. Probate of the estate of Mr Wilson was granted to Mr Dixon alone. A creditor of Mr Wilson, a bank which subsequently went into liquidation, brought earlier proceedings for the administration of the real and personal estate of Mr Wilson. A caveat had been entered by the defendants; Allinson and Allinson, against proof of the will and codicil of Ann Wilson and as a consequence Mr Dixon and Mr Dickenson brought proceedings to propound the will and codicil of Ann Wilson. In that action Mr Dixon and Mr Dickenson sought to join the liquidators of the bank on the basis that as creditors of Mr Wilson they had an interest in supporting the codicil of Ann Wilson which would benefit the estate of Mr Wilson. The court found that the joint liquidators should be joined as they had a real and substantial interest to be joined. Such joinder was understandable in the context of; (1) Mr Wilson having an interest in the estate of his wife, and (2) the joint liquidators having brought a claim for the administration of the estate of Mr Wilson. It was a practical solution for joinder of a person interested in supporting a testamentary instrument, just as such creditor would now be joined pursuant to CPR 57PD.4.

The Claimant places greatest reliance upon the decision in the Irish case of In the Goods of Timothy White, deceased (1893) LR Ir 31 Ch. In that case, where it had been found in earlier proceedings that a son of the deceased had obtained a grant of letters of administration by knowingly supressing the existence of a will of the deceased, it was held that a creditor of a person who takes an interest under a will has a sufficient interest, in a proper case, to a citation to recall letters of administration. Given that surprising decision it is important to consider the basis upon which that Irish court came to that conclusion.

The relevant passages in the judgment are as follows:

“… The question then is, what is the interest of a creditor necessary to enable this to be done? I turn to Tristram and Coote’s Probate Practice, a treatise in which I find, as a rule, the law and practice of this Court accurately and clearly stated. At page 367 the subject of actions for the revocation of probate, and the revocation of letters of administration, is discussed; and, after stating the object of such suits, I find that the parties to actions for revocation are plaintiffs, defendants, or interveners, and that the foundation of their title is the same, viz. that of interest. At page 369 is a summary of the result:- “The foundation of title to be a party to a probate or administration action is interest – so that whenever it can be shown that it is competent to the Court to make a decree in a suit for the revocation of probate or of administration, which may affect the interest or possible interest of any person, such person has a right to be a party to such suit in the character either of the plaintiff, defendant, or intervener,” No words can be more extensive, and therefore, if Mr. Hennessy’s client has any possible interest, he is entitled to be either plaintiff or defendant. A creditor of a person who has an interest under a will has a sufficient interest to entitle him to be made a party. Dixon v Atkinson is a distinct authority to this effect. The marginal note is this. “A executed a will and codicil, the latter in favour of B. B survived A, and died, having made a will, in which he appointed, as executors and residuary legatees, the plaintiffs, two of the executors of A’s will. B, at the time of his death, was indebted to a certain bank, the affairs of which were being wound up by two official liquidators appointed by the Court of Chancery. The Court ordered a citation to issue to the official liquidator to see proceedings in the suit as to the validity of the codicil to A’s will.” That is a decision that the creditor of a person who took an interest under A’s will was entitled to have the validity of the will and codicil tried; and the fact that the liquidators in that case were in the position of defendants makes no difference in the application of the principle.”

From that passage it can be seen:

It is of note that the case of In the Goods of Timothy White, deceased was referred to in the 13^th Edition (published 1900) and the 14^th Edition (published 1906) of Coote’s Common Form Practice and Tristram’s Contentious Practice. That case is not referred to in the 15^th Edition (published 1915) or subsequently in that ‘treatise’, and no reason is given for its exclusion. That the case is not referred to after the 14^th Edition appears to be a recognition that it was wrongly decided. I come to the firm conclusion that In the Goods of Timothy White, deceased was wrongly decided for; (1) it is contrary to the decision in Menzies v Pulbrook and Kerr, which continues to be good law, (2) it was decided without reference to the decisions in Menzies v Pulbrook and Kerr and Dabbs v. Chisman or to the passage on page 372-3 of Coote’s Common Form Practice and Tristram’s Contentious Practice (11^th Edition) which referred to those cases,and (3) it sought to rely on an incorrect analysis of the ratio in Dickenson v Allinson and Allinson.

Chronologically, the next case the Claimant relied upon is In the Estate of Edith Mary French [1910] P 169. That action concerned the revocation of a grant, not the challenge of the validity of a will. In that case an administrator of the estate had disappeared and the next of kin declined to renounce or to apply for a grant. Consequently, the creditor of the estate applied for a fresh grant upon the revocation of the existing grant. The court granted such relief in the circumstances of the deadlock of the administration of the estate. During the course of argument, Sir Samuel Evans, the President posed the following question:

“Is the practice correctly stated in Tristram and Coote’s Probate Practice, 14^th ed. (1906), p.181? “The Court cannot revoke at the application of a creditor, whatever may be the merits of the case, because such creditor cannot demand a grant to be made to himself as of immediate right.” The case there cited in support of the statement does not appear to be an authority for it.”

The case cited in Tristram and Coote’s Probate Practice, 14^th Edition at page 181 did not support the proposition set out therein, but the court was not referred to the case of Menzies v Pulbrook and Kerr which did support the proposition. In any event, in that case the creditor had applied for a grant, and it is not disputed that creditor ‘in possession of administration’ has the requisite interest. Further in that case the creditor was not seeking to challenge the will that had been admitted to probate.

Finally, I was referred to two cases which were concerned with claims by individuals who were seeking to pursue applications under the under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”); Green v Briscoe [2005] EWHC 809 (Ch) a decision of Master Bragge, and O’Brien v Seagrave and another [2007] EWHC 788 (Ch) which I have already referred to.

Both cases were concerned with whether a claim under the 1975 Act could amount to ‘an interest in an estate’. The conclusions reached in the two cases are diametrically opposite. Master Bragge held that a claim under the 1975 Act was not an interest in an estate and HHJ Mackie QC held to the contrary.

Mr Littman asserted that a decision of a Master of the High Court is not of the same ‘quality’ as that of a Judge of the High Court and that consequently a judgment of a Judge should be preferred to that of a Master. Mr Baxter submitted that the decisions were of the same standing. In my judgment a decision of a Master and a Judge of the High Court are of the same standing in terms of the doctrine of precedent. They both are judges of the High Court exercising the same jurisdiction, though the jurisdiction of Masters is subject to certain restrictions. Further, it is of note that a Master will have greater experience of certain types of disputes and of particular relevance is the fact that the Masters of the Chancery Division are likely to have a greater familiarity with the issue of an ‘interest in an estate’ than a Judge of the same division.

In Green v Briscoe the parties agreed to use the case management conference before Master Bragge to decide the issue of whether a claim under the 1975 Act could amount to “an interest in an estate”. After considering various ‘ancient authorities’, including Menzies v Pulbrook and Kerr, which he referred to in paragraph 18 of his judgment, Master Bragge stated as follows:

“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.” (Emphasis added by underlining)

However, whilst dismissing the claim of Mrs Green, Master Bragge refused to give the executors permission to discontinue the counterclaim and required the will to be proved in solemn form.

HHJ Mackie QC (sitting as Deputy High Court Judge) in O’Brien v Seagrave and another was concerned with an appeal on a strike out application determined by Master Price against a cohabitant seeking relief under the 1975 Act who sought a declaration that the will admitted to probate was invalid. It was conceded, as recorded in paragraph 4 of the judgment, that the statutory claim of the cohabitant was more valuable on intestacy than if the will was upheld.

HHJ Mackie QC at paragraph 7 of his judgment noted that the nineteenth century cases concerning this issue were decided before the existence of the statutory provisions that now form the 1975 Act. In paragraph 9 of his judgment HHJ Mackie QC set out the ratio of his decision:

“… There is no authority which holds that a claim under the Act is not capable of being an “interest”. Furthermore there is not even a formulation or definition of “interest” in a decided case with which a broad construction would be inconsistent. Through no fault of the master concerned, the reasons for his decision in Green v Briscoe are not available and, even if they were, while entitled to respect, they would not bind me. It is true that judgment for the claimant will not of itself, produce an immediate financial result but that is equally true of other areas of litigation where a claimant is permitted to go ahead, most obviously many claims for declarations. The court has in recent years, increased the range of circumstances where it will permit a party to seek a declaration as to its rights or as to the existence of facts or as to a principle of law. If this claim fell not within the probate jurisdiction but more generally within the Civil Procedure Rules it seems to me that the answer to the question whether she would be recognised as having a sufficient interest so as to be able to seek a declaration would be – “Yes, of course”. I do not accept that a construction of ‘interest’ to include an interest under the Act would open the flood-gates, as Mr Harrap submits it might. The facts of this case are unusual but if there were others like it, this would merely emphasise the importance of removing a potentially unjust obstacle. … In my judgment therefore the claimant’s right to bring proceedings under the Act is, against the background facts of this case and upon the basis of authority cited to me, a sufficient interest to permit her to proceed as a claimant under CPR Pt 57.”

It must be remembered that the court in O’Brien v Seagrave and another was concerned with a strike out application, and consequently the issue of the financial interest of the claimant was important for the purposes of considering whether there were reasonable grounds for bringing a claim, rather than being concerned with the issue of standing. If there was no financial benefit to the cohabitant from her challenge of the will, there would have been no reasonable grounds for her challenge. In my judgment it is clear that HHJ Mackie QC, by the opening words of paragraph 9 of his judgment, did not intend the simple test of ‘financial benefit’ to be the test for determining an interest in the estate, that benefit simply being a factor showing that there was some merit in the claim. If simple ‘financial benefit’ was the requisite test, it is difficult to see what restrictions there would be on any claim that was not an abuse of the process of the court.

The strict ratio of O’Brien v Seagrave and another is concerned with whether a claim under the 1975 Act could amount to an interest in an estate. Consequently, it offers little assistance in deciding the issue before me particularly as HHJ Mackie QC when coming to his decision stated:

“There is a further practical reason why one should construe, “interest” to include a potential Inheritance Act claim. If this action could not proceed but the claimant's claim under the Act went ahead, then the judge, when considering all the circumstances, might well feel considerable unease about proceeding on a possibly false assumption about the validity of the will. That might in turn lead to section 121 [of the Senior Courts Act 1981] being invoked and to further delay, uncertainty and expense for this small estate.”

That practical reason is peculiar to claims under the 1975 Act (though I am not certain that practicality alone can alter long standing common law rules).

However, if required to choose between the two decisions, I prefer the reasoning of Master Bragge. An interest in an estate is not the same as being interested in the estate, or having an interest that is connected to the estate. Such analysis is consistent with the earlier authorities and in particular the decision in Menzies v Pulbrook and Kerr.

In expressing that preference I have taken heed of the words of Nourse J in Colchester Estates (Cardiff) v Carlton Industries plc [1986] Ch 80 at 85. However, HHJ Mackie QC when coming to his decision unfortunately did not have the benefit of:

In my judgment, on a proper analysis of the authorities, whether a person has an interest in the estate is to be determined by reference to the touchstones of: (1) whether they are personal representatives, (2) the grant of representation, and (3) the entitlement to a distribution of the estate. The court is concerned with identifying ‘an interest in the estate’, and not whether someone is ‘interested’ in the estate. Just as a creditor of an estate, while interested in the estate, has no interest in the estate, so in my judgment a creditor of a beneficiary of the estate has no interest in the estate, though he is possibly interested in the estate.

While it is not necessary for my decision, in my judgment to construe an ‘interest in the estate’ to include a claim by a creditor of a beneficiary of an estate will widen the gateway to an extent that would render the requirement of little if any value.

The safeguard provisions of section 121 of the Senior Courts Act 1981 and the general supervisory role of the court in probate proceedings, provide the mechanisms for the court to intervene when it considers it appropriate to do so. It follows that in a case where there is a real risk of injustice the courts can intervene to ensure that a wrong is not perpetrated.

I answer the preliminary issue in the negative. The Claimant does not have an interest in the estate of Sylvia Joyce Corrall deceased sufficient to give him legal standing to bring a contentious probate claim therein.

As stated above, irrespective of the issue of standing, the Claimant would have to ‘knock out’ both the Will and the Earlier Will. The original of the Earlier Will cannot be found. Mr Littman submitted that the inability to find an executed copy of the Earlier Will means that there is a presumption of revocation of the earlier Will. In the circumstances of this case, such presumption is likely to be weak. The Claimant makes no positive case on this issue. It follows that if due execution of the Earlier Will is proved, in the absence of any evidence that the deceased intended to revoke the same (save by the Will), the Claimant will not be able to deal the necessary ‘knockout blow’.

The Defendant has filed and served a witness statement of Richard Paul Jordan dated 12 November 2013, the solicitor who advised the deceased in respect of the Will. That witness statement refers to documents contemporaneous with the date of the execution of the Will. If that statement is correct, and there does not appear to be any credible reason why Mr Jordan as a solicitor would not provide an accurate account of the execution of the Will, the Claimant has little chance of succeeding in showing that the Will was not duly executed given the assertions made in his Particulars of Claim as detailed above.