Paul John McElroy v Lynne McElroy

Paul is the sole beneficiary of Ray’s estate under a will dated 27 September 2002 (“ the Will ”);

Unlike in England and Wales, under the law of Scotland a will is not revoked by a subsequent marriage;

At the dates of both his marriage to Lynne and his death, Ray was domiciled in Scotland;

Therefore, the validity of the Will is governed by the law of Scotland such that it was not revoked by Ray’s marriage to Lynne and was valid at the date of Ray’s death; and

Lynne obtained the letters of administration by making false depositions that Ray died domiciled in England and Wales intestate.

This is my decision on that preliminary issue.

Appointed Keith Edward McCorriston (“ Keith ”) as his executor and trustee;

Gave the whole of his “estate both real and personal” to Paul; and

In the event that Paul did not survive Ray, gave the whole of his estate to Paul’s children in equal shares.

Appointed Paul and Lynne as his executors and trustees;

Gave bequests of some personal items and cash;

Gave the whole of his residuary estate to Lynne; and

In the event that Lynne did not survive him, gave the whole of his residuary estate to Lynne’s children in equal shares.

On 24 February 2007, Ray nominated Lynne and Paul to receive 50% each of the dependents’ pension payable on death under Ray’s occupational pension scheme;

In September 2010, Ray married Lynne; and

In January 2011, shortly before his death, Ray instructed solicitors to draft a will bequeathing the whole of his residuary estate to Lynne.

“We are instructed by our client to make an application in the English Court for the Grant of Letters of Administration made to you to be revoked which will enable our client to apply for Confirmation in the Scottish Sherriff Court of the Will and thereafter administer Ray’s estate in accordance with the terms of the Will. This will require the return of assets that you have incorrectly received from Ray’s estate to Paul as the beneficiary entitled to those assets.”

“We have now had the opportunity to consider the terms of your letter, review the papers relative to the estate and the legal advice received by our client at the time. We do not see any grounds for overturning the Grant of Probate.”

“As previously mentioned, the Registrar can only revoke the grant if the current grantee consents to the revocation; but as this appears to be the subject of contention it can only be dealt with as a revocation action in the Chancery Division.”

“We have no further comment to make on this matter and simply re-iterate our position from August 2018 that we do not see any grounds for overturning the Grant of Letters of Administration.”

The Claimant’s claim is barred by laches/or acquiescence or issue estoppel. The Claimant expressly represented he would not seek any inheritance from the Deceased and has taken financial advantage in the receipt of large death benefits on the basis that the Defendant was the sole heir upon intestacy. The Defendant has relied upon those actions such that it would be inequitable now for the Claimant to resile from them.

Without prejudice to that preliminary issue, the Deceased died intestate. The Deceased was domiciled in England and Wales at the date of his marriage to the Defendant and at his death. Accordingly, the will dated 27 September 2002…was revoked by the Deceased’s marriage to the Defendant.”

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

“the [claimant] has practically acquiesced in the [earlier] proceedings, and has been guilty of such laches as to disentitle her…to maintain a [claim] against those who have received the estate to compel them to refund. Therefore, as the only object of the present [claim] to revoke the letters of administration and obtain a grant in her own favour is to assist her in an attempt to recover the funds which have been distributed, it follows that this Court ought not to assist the [claimant], who has been guilty of laches…”

“[79] …….. laches …. can [only] bar equitable relief, and a declaration as to the existence of a long-term property right, recognised as such by statute, is not equitable relief….”

“My general conclusion from the authorities cited to me, in particular In re Coghlan, decd. [1948] 2 All E.R. 68, is that they tend to support the view that the court will never strike out an action to revoke a grant of probate or letters of administration on the mere ground of delay in instituting it, unless it is satisfied that the claim is otherwise frivolous, vexatious or for other reasons is an abuse of the court process.”

In the present claim, Lynne has not applied to strike out the claim as being frivolous, vexatious or otherwise an abuse of process. They are not the terms in which the preliminary issue has been drafted.

“Counsel for the defendants……based his whole case on the ground that on a summons to dismiss a probate action as frivolous and vexatious under its inherent jurisdiction the court will investigate the facts, and, if satisfied that laches would bar any subsequent proceedings for which purpose the action had been brought, will dismiss the action in limine as frivolous and vexatious. His authority for this proposition was Mohan ……….

………..

………….. [but] the case is no authority for the circumstances in which an action should be dismissed in limine as frivolous and vexatious and an abuse of the process of the court.”

“It seems to me that a [claimant], who lies by for 23 years after the will which he claims to propound has come to light, when the estate has long since been distributed amongst a number of beneficiaries, is clearly guilty of laches……. I am satisfied that such laches on the part of the [claimant] would render quite hopeless any attempt on his part, as this date, to follow the assets. That being so, if this action is allowed to proceed, even assuming that the [claimant] succeeds in proving the alleged will, no good can possibly result, and the [claimant] will be left in no better position. The action being quite pointless, therefore, it is in my judgment an abuse of the process of the court, and should be dismissed now…..”

“On June 7, 1898, the writ in the present action was issued. On June 30, 1898, a summons was taken out by the late baronet to show cause why the action should not be dismissed on the ground—first, that the issue had already been adjudicated upon in the Chancery Division; and, secondly, that the action was vexatious. That summons came on for hearing before me, and was adjourned into court, and at the hearing in court it was ordered, by consent, that all questions in the action between the parties, other than the question of the relationship of the plaintiff and the late baronet to Henry Thomas Coghlan, the deceased, should be tried at the next sittings before me, upon the materials already supplied to the court and any further evidence. The case subsequently came on for hearing on these questions other than the relationship of the plaintiff and the late baronet to the deceased, on Feb. 24 last, when two questions were raised for the defence as a bar to the plaintiff's claim in this action. They were—first, that the plaintiff's claim was res judicata; and, secondly, that the plaintiff had been guilty of such laches as debarred her from prosecuting her claim.”

Therefore, Tucker LJ sought to distinguish Mohan on the grounds that in Mohan :

“And on the main proposition advanced by the defendants (viz., that the court may, in the exercise of its inherent jurisdiction, dismiss an action in limine where it is shown that though the action itself may succeed no useful or fruitful result can thereby be achieved by the plaintiff) I find myself, for my part, in agreement with Willmer J. For, in approaching the question whether the action is frivolous or vexatious, the court is entitled to ask of the plaintiff, what is his object? If it is apparent that the plaintiff can achieve no real or material advantage for himself or for anyone else from his success, then I think that the court may fairly hold his proceeding to be, in truth, vexatious. I think further that the court is properly entitled to take account of the fact that to any proprietary claim which the plaintiff may make either the relevant statutes of limitation or laches would be a conclusive defence, if, in all the circumstances, it is plain that such pleas will be raised though the time for raising them has not yet, strictly, arrived…..

………..

As, however, I have indicated at the beginning of this judgment, one fact has emerged from the evidence filed since the hearing before this court began which seems to me fatal to the defendants' application. For it appears that there is a piece of ground containing a family tomb which at the date of the death of Sir Henry Delves Louis Broughton still remained vested in him as administrator of Mr Coghlan. It is remarkable that no mention appears to have been made of the property in the administration proceedings started in the year 1893, and it may be that some explanation will hereafter be forth-coming, but, as the evidence stands, it is, in my judgment, impossible to deny that that piece of property still remains outstanding as part of Mr Coghlan's estate, to which none save Mr Coghlan's personal representative can make title. Nor does it seem to me that the comparative smallness of the value of the property—it is said in the evidence to be worth £157 10s 0d, compared with a total estate of over £600,000—can affect the result. It cannot be said that the value is so wholly negligible as to invoke any application of the principle of “de minimis.” I, therefore, have felt compelled to conclude that, whatever be the answers to the several questions indicated above, the evidence in regard to the family tomb is of itself decisive of the appeal.”

“…… it is, in my view, not established by authority that the mere existence of laches such as would bar a claim in subsequent proceedings would justify the court in taking the drastic step of dismissing the action in limine. A close examination of the authorities principally relied on by the defendants, viz, Mohan v Broughton and Willis v Earl Beauchamp, leads me to the same conclusion as Tucker LJ on this aspect of the matter. Laches, like the Statute of Limitations, must normally be pleaded in order to defeat a claim, and there are grave difficulties in determining on affidavit evidence whether the facts proved against the plaintiff establish laches against him. In spite of the lapse of time and the admitted inactivity of the plaintiff and his predecessor, I express no opinion as to the prospects of a defence of laches succeeding in this or subsequent proceedings by the plaintiff.

Again, the defendants have undertaken to establish on this application that the plaintiff could recover nothing, not only from themselves but also from any other person as identifiable with, or otherwise referable to, assets originally forming part of H T Coghlan's estate. On this part of the case a curious fact emerged in the evidence, namely, that a somewhat valuable family tomb exists which forms to this day part of the unadministered estate of H T Coghlan. There was no evidence of any other unadministered assets except possibly some pedigree books, but for my part I see great difficulty in applying the de minimis principle, even to the tomb alone, so as to justify the dismissal of the action in limine. ……..”

The absence of pleadings/a trial of the issue of laches; and

The existence of unadministered assets of the estate (the family tomb).

It is not disputed that the whole of the assets of Ray’s estate have long ago been distributed. There are no remaining unadministered assets of Ray’s estate;

Lynne’s Defence, over the course of some 4 pages out of a total of 7 pages, sets out in detail why she alleges that Paul’s claim is barred by laches. Paul’s Reply, over the course of some 4 pages out of a total of 6 pages, responds in detail to that specific allegation, but without raising any jurisdictional issue;

By order dated 7 March 2022, and made with the consent of the parties, DJ Phillips directed that that there be a trial of the preliminary issue of laches. The order further directed that the parties exchange witness statements of fact and provide specific disclosure in relation to that preliminary issue. The parties have complied with those directions;

There has been a trial of the preliminary issue before me and during which I have heard oral evidence from the parties. This was not a hearing of an application to strike out the claim as an abuse of process; and

It was only in Paul’s written submissions for the trial of the preliminary issue that it was raised for the first time that the Court effectively has no jurisdiction to determine that preliminary issue.

“Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.”

“[23] Miss Barbara Rich for the Appellant……. sought to persuade me that claims for the revocation of probate occupy a special status in relation to which delay in their institution should not easily justify their being struck out. She relied upon Re Flynn Deceased ….

………….

The assets of Ray’s estate were distributed some considerable time ago;

The sole purpose for seeking revocation of the grant of letters of administration to Lynne is to then enable Paul to seek to recover from Lynne the assets she received from Ray’s estate;

Any recovery claim against Lynne would be equitable relief against which Lynne would be entitled to raise the defence of laches;

The defence of laches has been fully pleaded and responded to in the parties’ statements of case;

If the recovery claim against Lynne is bound to fail on the ground of laches, it would be wholly contrary to the overriding objective of saving expense and avoiding delay to permit the probate claim to continue in circumstances where it would serve no useful purpose;

Therefore, it is entirely understandable that, in exercising its case management powers to further the overriding objective, the court ordered, with the consent of the parties, that the issue of laches be tried as a preliminary issue;

The court has now read and heard evidence/argument to enable it to determine the preliminary issue of laches; and

In the event that I determine that the laches defence is made out, I would be entitled and indeed bound to dismiss a probate claim that has thereby been rendered utterly academic. To otherwise allow the probate claim to proceed would simply expose the parties to significant expense for no discernible benefit.

First, Paul must apply for confirmation in Scotland. The Scottish court would determine domicile in accordance with Scottish law and would not be bound by the English court’s English-law conclusion as to domicile. It could therefore quite properly reach a contrary conclusion to this court, considerations of comity notwithstanding (see e.g. Re Martin [1900] P 211);

Second, Paul (in his capacity as executor) would have to bring proceedings in Scotland to recover assets from Lynne. It would be open to Lynne to raise any defences available to her under Scottish law. These are likely to include limitation/prescription and personal bar (equivalent to estoppel). Again, the Scottish court would not be bound by this court’s conclusion as to laches, because it would be considering a different claim between different parties (the claim being brought by the executor) applying a different substantive and procedural law. It would, subject to its own rules of admissibility, have regard to the evidence filed in these proceedings (insofar as filed in the Scottish court) and any judgment or findings of fact made by this court.

“21.27 Costs can sometimes be saved by identifying decisive issues, or potentially decisive issues, and ordering that they be tried first. The decision of one issue, although not itself decisive of the whole case, may enable the parties to settle the remainder of the dispute. In such cases a preliminary issue may be appropriate.

21.28 At the allocation stage, at any case management conference and again at any PTR, consideration will be given to the possibility of the trial of preliminary issues the resolution of which is likely to shorten proceedings. The court may suggest the trial of a preliminary issue, but it will rarely make an order without the concurrence of at least one of the parties.”

“[112] For my part, I think it preferable in the interests of clarity not to treat the terms 'presumption' and 'default rule' as interchangeable and to recognise that there are two different rules which are conceptually quite distinct. So too are their respective rationales. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be. By contrast, the 'default rule' (as I shall use that term) is not concerned with establishing the content of foreign law but treats English law as applicable in its own right where foreign law is not pleaded.

…………

[114] I think this justification for applying English domestic law by default is valid so far as it goes. Article 1(3) of each of the Rome I and Rome II Regulations provides that (with immaterial exceptions) the Regulation 'shall not apply to evidence and procedure'. The rule that (with limited exceptions) the court is not obliged to decide a case in accordance with a rule of law on which neither party chooses to rely is a rule of English civil procedure. The Rome I and Rome II Regulations therefore do not seek to oust it. (If, which I doubt, the Court of Appeal in  Belhaj v Straw MP (United Nations Special Rapporteur on Torture intervening)   [2014] EWCA Civ 1394 ,  [2017] AC 964 ,  [2016] 1 All ER 121  (para [155]), intended to suggest otherwise, I agree with the reasons given by Andrew Baker J in Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA (formerly Dean International Trading SA)  [2018] EWHC 2759 (Comm) ,  [2019] 1 WLR 82  (para [21]), for regarding the suggestion as mistaken.) In accordance with this procedural rule, the English court is not obliged to apply the choice of law rules contained in the Rome I and Rome II Regulations if neither party chooses to assert in its statement of case that foreign law is applicable. That is so even if the case is one to which a foreign system of law would clearly have to be applied if either party chose to rely on that fact. It may also be said that in such a situation the parties are tacitly agreeing that English law should be applied to decide the case. There is no public policy which prevents this. Indeed, the freedom to agree after the event to submit a contractual or non-contractual obligation to a law of the parties' choice different from the law previously or otherwise applicable is expressly affirmed by, respectively, art 3(2) of the Rome I Regulation and art 14(1)(a) of the Rome II Regulation.

[115] Not uncommonly, actions are brought in the English courts in which the parties are content for the court to apply English law, even though it is apparent that foreign law would be applicable if either party chose to rely on it. A notable example is  Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd   [1976] 2 All ER 552 ,  [1976] 1 WLR 676 , the leading case on the effect of a clause in a contract for the sale of goods which provides for the seller to retain title to the goods until payment is made. The contract terms in issue in that case were written in the Dutch language and expressly governed by Dutch law, but neither party pleaded Dutch law and the court accordingly applied English law to the contracts. Such an approach makes good practical sense where there is or is likely to be insufficient difference between the foreign law in question and English law to justify the inconvenience and cost of asserting and proving a difference.”

“The issue whether the claim was barred by laches required a value judgment by the judge after weighing the relevant considerations.”

"[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."

“[13] I distinctly remember speaking with Paul on the phone in the week after [Ray] died. I had told Paul about the Australian will in the days following [Ray’s] death and I think that I also told him that [Ray] and I had instructed solicitors to prepare new wills very shortly before [Ray] died and that we did not have time to sign them before [Ray] was called back to sea.

[14] Paul told me that he did not want anything from [Ray’s] estate and that he wanted everything to go to me and the children. This was a relief to me, given I was living in [Ray’s] house. At that stage I did not know what the status of the Australian will was following our marriage, although I recall [Ray] discussing its destruction when we met our solicitor to discuss new wills in the month before he died. Certainly if Paul had said anything to me in that conversation to the effect that he was expecting to receive the whole of [Ray’s] estate (including my home) I would have remembered that.

…………

[20] ………….. At some point between [22 March 2011] and 28 April 2011, [MFS] told me over a telephone call that the Australian will was not valid and [MFS] thereafter proceeded to consider the question of [Ray]’s domicile…….

[21] Around this period, Paul discovered that his wife was having an affair and was leaving him. Paul called me several times in an agitated state. Paul’s wife was the main breadwinner…. and it appeared that he was worried about money and where he would live. During one of these calls, Paul asked if “we could just say that the Australian will was valid and sort things out between us”. I told Paul that my lawyers had investigated the will, had told me that it was not valid and that what he was suggesting was not possible. I then said to Paul that I had thought that he did not want anything from the estate to which he replied, “I’ve changed my mind” and hung up the call. I called [MFS] to advise.. of Paul’s change of heart straight after the call…….

[22] After that, Paul took no action and I did not hear from him again……

……….

[34] The first direct contact that I received regarding the challenge by Paul to [Ray]’s estate was when I received a letter from Aaron & Partners in July 2018. Prior to this the executor named in the [Will], Keith McCorriston, had been in touch with me intermittently from February 2015 onwards to say that he was receiving emails from Paul/Michael Brownrigg and that he had also had a visit from a private investigator instructed by Paul.

[35] Paul never asked me for a copy of the [Will]. If he had done, I would have given it to him along with the letter from the Australian Solicitors confirming that that they held the original document but it was invalidated by marriage. I had told Paul that I had a copy of the [Will] in the days immediately following [Ray’s] death but he never asked for a copy of it.

………..”

“[19] I did not tell Lynne that I wanted no inheritance from Ray’s estate or that I wanted Ray’s estate to pass to her…... I travelled up to Scotland to attend Ray’s funeral on 10th March. Prior to that I had conversations with Lynne with regards to the funeral arrangements and also about my birth certificate…… Lynne explained to me that she needed my birth certificate to determine whether James, my biological father, may have had a claim on the estate under Scottish law. Neither of us knew at that time that my father was deceased…… The next time I remember speaking with Lynne was when I attended Ray’s funeral.

[21]…… After the wake just the family….. walked back to Ray’s flat…… myself and Lynne were walking together. Lynne started talking about Ray’s estate and said to me that I should disclaim any inheritance from Ray’s estate and that it should all go to her. I was in such a state of grief and shock that she could be mentioning any such thing, I gave her no reply. The conversation then moved on.

[22] When we got back to [the Property] the topic of the will was brought up again when Lynne and I were stood in the hall or kitchen….. I told Lynne of the conversation Ray had with me about his will. I told her that he had left me things and also that he had said that he kept a copy of the will in his desk. I also explained I had no other idea about its terms and that I had never seen a copy. Lynne told me that she had found an Australian will but dismissed it as a “Mickey Mouse” will. I am now aware that Lynne had already had sight of the Will previously, as she told her solicitors… about it during their first meeting…….

[23] Lynne did not provide me with sight of the Will or share the details of its terms…. It took me over five years from Ray’s death, to obtain a copy of the Will.

[24] On 15 April 2011, I found out that my wife had been having and affair. On 18 April, she left our family home with my children……..As the months passed, I sunk deeper and deeper into depression and could not cope with all the stress going on in my life during that time.

……..

[27] By mid-2012, I was in a slightly better place and tried to set the wheels in motion for formally divorcing my wife………

[28] Thankfully Michael [Brownrigg] was there to help me.….. As my divorce proceeded, the subject of Ray’s estate naturally came up, as I did not know what I might be entitled to from Ray’s estate.

[29] ……Michael suggested I instruct a Scottish solicitor as ……. it seemed likely that [Ray] was domiciled in Scotland when he died. I initially called Campbell Smith, based in Edinburgh, on 15 January 2013, I told them what I knew at the time: that Ray had told me that he had executed a will and that I wanted to know what was in it. Lynne by this point had completely shut me down and I had no idea how to find out what was going on…...

……………..

[32] My solicitor, Julia wrote to me on 26 February 2013 to confirm that no application had been made for probate in Scotland……I thought it may be worth contacting the solicitors who dealt with Ray’s divorce in Australia….. Paterson & Dowding. Julia….confirmed that she had written to Paterson & Dowding.

[33] Paterson & Dowding responded on 24 September 2013 seeking confirmation that Ray had died and that I had authority to access information on his behalf….

[34] Julia advised me to obtain Ray’s death certificate by contacting the South African Embassy in London….. I wrote a letter…but received no reply. Michael contacted the undertakers who had arranged Ray’s funeral to request a copy of the death certificate but they did not have one.

[35] Julia then wrote to me on 23 January 2014. I was informed that [the Property] had been transferred into Lynne’s name in March 212. I was also provided with the Grant…. issued in Lynne’s favour….. This was the first time I knew that Lynne had taken all of Ray’s assets and ignored the “Mickey Mouse” will she referred to. This was also the first time I knew Morton Fraser had acted in the administration of Ray’s estate…………..On the sworn oath for administration it states Ray was domiciled in England and Wales and died intestate.

[36] As Ray had made his home in Scotland, Michael suggested that we spend a couple of days in Scotland in order to get clarification of Ray’s domicile, which we believed was Scotland………

[37] .. Julia informed me ……that……… I should obtain advice from a firm of solicitors in England.

[38] …. On 1 May 2014, [Julia] sent me the death certificate, which she had obtained from [Ray’s former employer]……….

[39] Following Julia’s advice I instructed Keene and Kelly solicitors…. to advise me regarding the Grant and also help try to find Ray’s will.

[40] On 3 June 2014, Keene and Kelly wrote to Paterson & Dowding providing them with the death certificate as requested……..

………..

[43] On 28 July 2014, Campbell Smith responded to [Keene and Kelly] to confirm the advice they [had previously] provided in relation to Scottish law. ...Their letter [stated that “it is the position in Scotland that a marriage which takes place after the making of a Will does not necessarily revoke the Will. We are aware that the position is different in England and Wales.”]

[44] On 11 August 2014, Paterson & Dowding provided the details of the executor of Ray’s will to whom they had provided the original will; Mr Keith Edward McCorriston (“Keith”), along with his address, email and telephone numbers. I was told to direct all enquiries to him…….

[45] It was at this point that I knew Ray had definitely executed a will in Australia, but I still did not know its terms.

………..

[53] ………. It appeared to me as if Keith was ignoring all contact attempts……..

………..

[55] On 31 July 2015, Michael contacted Finders International (“Finders”), a firm of tracing agents to see if they could help me track down Keith……….

…………..

[57] Finders responded on 11 December 2015, to confirm that they had tracked down Keith…..

[58] ……… [Keith] indicated to Finders that the estate passed to me, not [Ray’s] wife. This was the first time I had heard that I was due to inherit Ray’s estate, albeit, I still did not have sight of his will. Finders told Keith that if he did not produce the will in his possession there could be potential ramifications for continued non-action…… Keith told finders that he wanted to instruct a firm of solicitors to assist him…..

……………….

[64] In June 2016, I personally received a letter…… from Alison & Associates, based in Perth, who acted for Keith. After all of my efforts, spanning over five years since Ray’s death, I finally received Ray’s original will along with Keith’s deed of renunciation……..

[65] This is when I finally knew for sure that Ray had intended to leave his estate to me….. It now made complete sense to me why Lynne did not want to share the Will with me on the date of Ray’s funeral and why she was so quick to dismiss it, as well as apply for a grant of letters of administration, issued to her around six months after his death, on the basis of his alleged domicile in England and Wales and therefore intestacy, at a time she knew full well that I was struggling to function owing to my mental health.

…………

[95] I do not think my claim should be barred. I have done everything that I can to pursue the matter in a sensible manner. Lynne refused to provide me with a copy of Ray’s will on the date of his funeral, despite clearly having it in her possession. I would not have told Lynne that I wanted her to have everything, especially as I had not even seen in black and white, Ray’s testamentary wishes. It took me over five years to obtain the will, during which I was blocked at practically every turn. Only once I had secured the Will did I know that Ray had indeed made a will, which he had not subsequently revoked, and that the will left his entire estate to me……..

……”

MFS’ file note dated 25 February 2011 records -

MFS’ file note dated 4 March 2011 records the following -

“[20] In the period following Ray’s death I have no knowledge of who Lynne had instructed as solicitors in relation to Ray’s estate. I certainly had no knowledge of this on 4 March 2011. The first time I became aware of [MFS’] involvement was when…… solicitors I instructed in January 2013.. obtained the copy of the Grant to Ray’s estate which was posted to me on 23 January 2014…… I did not speak to [MFS] on 4 March 2011. I was due to work on 4 March 2011 but was unable to go in due to sickness. If I had spoken with [MFS] I would have made a note of that conversation in my diary but no such note appears…..”

Immediately following Ray’s death, Paul would have wanted everything to go to Lynne in circumstances where Ray (i) had married Lynne only some 5 months before his death and (ii) had been unable to sign the new will in favour of Lynne prepared on instructions only 1 month before his death; and

Paul changed his mind after (i) finding out his wife had been having an affair and (ii) her leaving the family home with their children. Those events no doubt heavily impacted not only upon his emotional state, but also his financial stability.

Paul explains that he was suffering from depression following his wife’s desertion 2 months after the death of Ray, and that he was only in a position to explore the question of his entitlement to Ray’s estate from about January 2013. Thereafter, he and his solicitors used all reasonable endeavours to obtain the Will, which they succeeded in doing only in June 2016; and

In their letter dated 28 April 2011, MFS advised Lynne that it was at least arguable that Ray was domiciled in Scotland, and also indicated that, as Paul had indicated an intention to make a claim on the estate, it would be necessary to contact him. In fact no such contact took place. Given that, under the law of Scotland, a will is not revoked by marriage, if she had wished to ensure that there was no risk of Paul later claiming that the Will was valid and seeking revocation of the grant of letters of administration on intestacy, the proper and safest course would have been to adopt a formal “cards on the table” approach, namely at the very least instructing MFS to inform Paul of the existence and the whereabouts of the Will and of the fact that he was the sole beneficiary under it.

Paul’s evidence on this point was characterised by contradictions. At the end of his written evidence Paul claimed that Lynne had refused to provide him with a copy of the Will on the date of the funeral. In his oral evidence he accepted that he had never requested a copy of the Will from Lynne. He did, however, say for the first time that he had asked Lynne at the wake held in the Property to see the copy of the Will in her possession. He was unable to explain why this potentially important information was not contained within his written evidence, which sets out in some detail the alleged conversation that took place including Paul telling Lynne that Ray had told him that he kept a copy of the Will in his desk, although Paul had never seen it.

On 13 September 2013, Campbell Smith LLP wrote to Lynne in the following terms -

In his oral evidence, Paul confirmed that at the time of Ray’s death, not only was he aware of the existence of the Will, but he was also aware that he was the sole beneficiary under the Will. Paul said that, following Ray’s divorce from his first wife, he visited Ray in Australia. At that time, both their parents were dead and Paul was Ray’s only living close blood relative. Ray told Paul that he had made the Will in Paul’s favour as he wanted Paul to inherit his whole estate. I note that shortly thereafter, on 15 February 2006, Ray signed a nomination form confirming that he wished Paul to be the sole beneficiary of the DSB payable under the Scheme. On 16 August 2011, some 6 months after Ray’s death, the solicitors for the Trustees wrote to Paul and confirmed both the existence and contents of the nomination form, which contents were entirely consistent with what Ray had told Paul about wanting Paul to inherit everything following Ray’s divorce.

It is likely that Paul deliberately and for tactical reasons chose not to request a copy of the Will from Lynne –

“DK meeting with Lynne…at home….

DK raised the point of [Ray’s] Australian Will and Lynne passed us a copy of this. Lynne explained that this Will was to deal with [Ray’s] Australian property following his divorce from his first wife. She also confirmed that he had no assets left in Australia.

DK considered Will and noted that it does not say it deals with Australian assets only. However, the Will was made in 2002 and so need to consider whether it has now been revoked by marriage. As made 8 years before marriage need to confirm position of whether it could be deemed in contemplation of marriage.”

It is clear from this file note that, rather than seeking to conceal/ignore the Will, Lynne immediately brought it to MFS’ attention.

“……

We note that the Will was not made in contemplation of Mr McElroy’s divorce or subsequent remarriage and accordingly we advise that the will would no longer be valid.

Please note that this advice is limited to the law in our jurisdiction…..”

As our investigations into Ray’s estate are largely complete, I have been able to calculate the estimated value of Ray’s estate as at his date of death to be approximately £517,000….

At this point, it is now time to consider the question of Ray’s domicile and from this decide whether to obtain Confirmation or Probate.

I explained that on contacting the Probate Helpline we were advised that the matter of domicile is a matter for the executor to decide as HMRC will only investigate the matter where Inheritance Tax is due.

In the circumstances, Ray’s domicile of origin is Wales. It is difficult to remove a domicile of origin and even living in another country for an extended period of time does [not] necessarily remove a domicile of origin.

It is our view, that having considered Ray’s varied living arrangements throughout his lifetime and treating England and Wales as one jurisdiction, that it is most likely Ray did not remove his domicile of origin and was thus domiciled in England and Wales. This would mean that we would need to follow the procedures in England and Wales and obtain Probate to Ray’s estate.

However, it may be possible to argue that Ray was domiciled in Scotland as he bought a home here in 1990 and as you have previously been of the clear view that he considered Scotland to be his home. What slightly weakens this case is that although he owned a property in Scotland, he also lived in Australia and Singapore during this time. Further it is not enough that an individual considers their domicile to be the country where they resided for prolonged periods of time. The person’s ultimate long term intentions need also be considered, and you will be best placed to know what these were.

Ultimately it is for you as the executor or Ray’s estate to decide his domicile following consideration of all the information you have before you. This is an important decision and you need to feel confident in your decision as there is the possibility of challenge from Ray’s brother and father as potential beneficiaries.

As we previously discussed, the rights to Ray’s estate will depend on his domicile and I have outlined the rights for each jurisdiction below:

House of value up to £300,000

Furniture and plenishings up to £24,000

£75,000 from the residue of the estate

Half of remaining moveable estate (in this case half of the residue as only heritable property is your house)

In practical terms the house, as valued at £350,000, would be transferred to you and the £50,000 shortfall would be taken from the residuary payment of £75,000 due to you. You would also receive the contents of the house…..Thereafter you would receive cash for the £15,000 and half of the moveable estate.

Paul would be entitled to receive a quarter of the remaining moveable estate.

Ray’s father would be entitled to receive the other quarter of Ray’s remaining moveable estate.

All personal chattels (would likely include all house contents and car)

Cash legacy of £450,000

Half of the remaining residue

In practical terms the house would be transferred to you as would all the contents and car. Thereafter you would receive cash for the remaining

Ray’s father would then be entitled to receive the other quarter of Ray’s remaining moveable estate.

As Ray’s brother is now indicating that he intends to make a claim on Ray’s estate, I should be grateful if you could provide me with his contact details. Please note that we would have needed to contact him in any event as a potential beneficiary, whether he decided to proceed with his claim or not.

She had specifically instructed MFS to assist in the administration of Ray’s estate;

MFS had previously made contact with Paul; and

The breakdown in the relationship between Paul and Lynne following Paul’s change of mind about receiving anything from Ray’s estate.

of the existence of the Will,

that he was the sole beneficiary under the Will; and

that there was a copy of the Will kept at the Property.

“Thank you for your letter of 6 July 2016 and for the copy of the Will granted by the deceased while in Australia. Insofar as we are aware the deceased did not grant a subsequent Will nor did he take steps to revoke the Will which he had granted in Australia. Further we understand that the deceased lived and worked in Scotland and therefore his domicile which is a matter of fact was Scottish and that Scots law should therefore apply to the administration of his Estate. We are aware that Probate has been obtained in England indicating that the deceased had domicile in England and Wales which Paul McElroy disputes.

In terms of Scots law the Will granted by Ray McElroy in Australia remains a valid Will. His subsequent marriage to Lynne… does not per se invalidate the Will it merely grants Lynne Legal rights in his Estate but otherwise leaves Paul McElroy as the sole residuary beneficiary.

Any challenge to the Probate which has now been granted in the English Courts will need to be undertaken in England by English Solicitors. It is certainly the case that the Law in Scotland as we understand differs in relation to the Law of England regarding re-marriage invalidating an earlier Will. Crucially, the Legal Rights of the spouse in a Scottish Estate would affect only the Moveable Estate i.e. money and investments but not heritable property. In Scotland if the deceased left a Will his wife would only have Legal Rights to the Moveable estate. If he had died intestate his wife would have the prior rights of the spouse which for deaths after February 2012 have included a right to a property in which the surviving spouse lived up to the value of £473,000…… We understand the main asset in dispute here is in fact the heritable [Property] which would fall in terms of the Will to Paul… and not to Lynne…”

The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:

(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).

(ii) No person can be without a domicile (Dicey, page 126).

personal emails; and

tax records.

Under applicable Scottish law, Lynne would only have been entitled to ½ the “moveable estate”. The Property, which formed the bulk of Ray’s estate, would not be part of the “moveable estate”;

Under English law, where a will fails to make reasonable financial provision for the surviving spouse and/or dependent children of the deceased, they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“ the 1975 Act ”). Under the 1975 Act, the court has wide discretionary powers to order that reasonable financial provision be made out of the estate and having regard to all the relevant circumstances including the needs of the surviving spouse/dependent children. However, there are no equivalent Scottish law powers. Therefore, Lynne and her children would have had no claims in relation to the Property and they would have lost the home that they were living in at the time of Ray’s death; and

Had Paul acted promptly and put Lynne on notice of his claim that the Will was valid, then this is a matter she could have brought to the attention of the Trustees. I have no doubt that the potential loss of the family home coupled with Ray’s unexecuted will would have been highly relevant considerations and indeed magnetic factors when weighed in the balance in the exercise of the Trustees’ discretion when distributing the DSB payable under the Scheme such that there is every likelihood that the Trustees would have awarded the whole of the DSB to Lynne, who would then have had the funds immediately available to buy the Property from Ray’s estate.

“[36] However ancillary relief proceedings are marked by features absent in other civil proceedings:

i) The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution.

ii) The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.”

Paul had from the outset sufficient knowledge of the facts constituting his claim. In particular, he knew that Lynne had a copy of the Will, which he could have requested from her, but he chose not to do so. There is no good reason why Paul could and should not have brought the claim very much earlier;

Paul has already received some £172,000 by way of a 50% share of the DSB payable under the Scheme. Had the Probate claim been brought promptly, this would have been a highly relevant consideration for the Trustees such that it is likely in my judgment that Lynne would have been awarded the whole of the DSB in light of (i) Paul receiving the Property and (ii) the resulting housing needs of Lynne and her children; and

In the event of Paul successfully recovering the assets received by Lynne from Ray’s estate, there is a realistic prospect of Paul’s former wife applying to set aside the final order made in the financial remedies proceedings on their divorce. The Family Procedure Rules, Practice Direction 9A provides that “…. The grounds on which a financial remedy order may be set aside….. include…. material non-disclosure…”. Consequently, Paul would potentially be exposed to further costly and acrimonious satellite litigation involving his former wife.

The very significant delay on the part of Paul in prosecuting the claim;

The absence of any good reason for the delay. Paul sought to explain that delay primarily on the basis that Lynne refused from the outset to provide him with a copy of the Will, which forced him to spend some 5 years seeking to obtain the Will from other sources. I have found that (i) Paul deliberately chose not to request a copy of the Will from Lynne, and (ii) had Paul requested a copy of the Will, Lynne would have provided it;

The conduct of Paul in deliberately concealing the claim from both (i) Lynne, who completed the administration of Ray’s estate acting in accordance with the professional advice that she received including that the Will was not valid, which particular piece of advice was communicated to Paul early on and (ii) his former wife during the course of the parallel divorce proceedings in breach of his ongoing duty of full and frank disclosure; and

The substantially greater prejudice that would be suffered by Lynne in allowing the claim to proceed;