Mary May & Ors v Timothy Stuart Middlemas & Anor

This is my oral judgment following the trial of a probate claim to determine the validity of a will dated 2 January 2020 (“the Disputed Will”) purportedly made by Mr Jesse Frodsham (“the Deceased”), who died on 3 February 2020 at aged 73.

The originally named six claimants and the second defendant are the cousins of the Deceased and would be entitled to his estate on an intestacy. Sadly, during the course of these proceedings, the sixth claimant, Mrs Elizabeth Molyneux, has herself died. Therefore, at the start of the trial, I made an order substituting Mrs Pauline Hill as the sixth claimant as the personal representative of the late Mrs Molyneux.

The first defendant, Mr Timothy Stuart Middlemas, is named sole beneficiary of the Deceased’s estate under the Disputed Will. The estate comprises three residential properties in London. As at 27 July 2023, the distributable estate net of inheritance tax was £931,525.

The present proceedings were commenced on 14 April 2022.

By way of further background, I refer to and adopt the essential chronology filed on behalf of the claimants. (Footnote: ¹)

It is the claimants' primary case that the Disputed Will is invalid, since it does not comply with the requirements under section 9 of the Wills Act 1837. In particular, the claimants allege that the signature on the Disputed Will is not that of the Deceased, but rather a forgery concocted by Mr Middlemas.

Initially, Mr Middlemas defended the proceedings but, by order dated 28 March 2024, Mr Middlemas's defence was struck out as a result of his failure to comply with earlier court orders to serve witness statements explaining the precise circumstances surrounding the preparation and execution of the Disputed Will. It was further directed that the trial proceed on an undefended basis.

At the adjourned pre-trial review hearing on 12 August 2024, and for the reasons then given, I dismissed the application made by Mr Middlemas for relief from sanctions to allow for his defence to be reinstated.

An allegation of forgery is a very serious allegation. It is in essence an allegation of dishonesty; however, this is not a criminal trial where the standard of proof is beyond reasonable doubt, such that I must be sure. Rather, I must apply the lower civil standard of proof being the balance of probabilities, in other words more likely than not.

I consider that the correct position in relation to the civil standard of proof applicable in this case is that, whilst it is right to consider the inherent probability of an allegation in light of the particular circumstances of the case in determining whether it has been proved on the balance of probabilities, there is no legal requirement that the more serious the allegation, the more cogent the evidence needed to prove it. The civil standard of proof does not vary with the gravity of the alleged misconduct. As Males LJ said in Bank St Petersburg PJSC and another v Arkhangelsky [2020] EWCA Civ 408:

Direct evidence of fraud is relatively rare and is often a matter of inference from circumstantial evidence, although the court should generally take great care when assessing whether or not inferences can properly be drawn in any particular circumstances. The essence of a successful case of circumstantial evidence is that the whole is stronger than the individual parts. The court should necessarily avoid a piecemeal consideration of circumstantial evidence.

In preparation of this judgment, I read the report of Ellen Radley, Forensic Document Examiner, dated 23 May 2024, which was obtained on the instructions of the claimants’ solicitors. Prior to his defence being struck out, Mr Middlemas was also given permission to rely upon his own expert evidence, but none has been served in response to that of Ms Radley.

I also read and heard evidence from:

Finally, I read and heard submissions by counsel for the claimants. I am unable in the course of this judgment to refer to all of the evidence and arguments relied upon, but I have taken it all into account in reaching my decision.

Whilst the claim is no longer defended, the court has a supervisory role to play in relation to wills.

It was argued on behalf of the claimants that the substantive content of the Disputed Will does not make sense for the following reasons:

However, I consider that there are number of countervailing factors which I need to weigh in the balance:

That all said, in exercising my supervisory role, I am satisfied on the whole of the remaining evidence before me that the Disputed Will is not valid, but concocted. In particular, the signature on the Disputed Will is not that of the Deceased. I make that finding for the following primary reasons.

As evidenced by the CV exhibited to the report, Ms Radley is a highly qualified, experienced and internationally renowned in forensic document examination, including signature authentication, handwriting identification, identification of thermochromic inks, document manipulations and font identification. The main body of Ms Radley's report extends to 24 pages and is a very detailed analysis of the 38 documents before her, including the original Disputed Will.

Ms Radley concludes that it is more likely that the Deceased, and indeed Mr Churchman, did not write the signatures in their names on the Disputed Will. She noted a number and variety of significant differences between the questioned signatures and the known signatures of the Deceased and Mr Churchman, both in respect of constructional features and the mode of execution.

Quite properly, Ms Radley adopted a very cautious approach to the examination of the signatures and recognised that there were no known signatures provided for examination which were strictly contemporaneous with the date of the Disputed Will, which thereby restricted the examination since signatures can change, develop or deteriorate over time, particularly if an individual is in ill-heath, which both the Deceased and Mr Churchman were.

However, Ms Radley's evidence goes much further than simply a comparison of signatures. In particular, Ms Radley observed as follows:

In addition, the Disputed Will comprises two pages. On the first page are the operative provisions and the purported signatures of the Deceased and Mr Churchman, as witness, together with the signature of Mr Middlemas as the other witness. Mr Middlemas's signature would have invalidated the Disputed Will, since legally the moment a beneficiary (here the sole beneficiary) signs as a witness, they will no longer be a beneficiary. However, the second page of the Disputed Will contains the saving signatures of two further purported witnesses. Ms Radley is of the opinion that her findings are consistent with pages 1 and 2 of the Disputed Wills being created separately and not created as a single document at a single point in time. Those findings include:

Mr Howard, a Chartered Surveyor, was a reluctant but impressive witness. He gave his evidence in a careful and measured way. He was a detached and objective observer, who had no financial interest in the outcome of these proceedings, or any loyalty to any of the parties. He knew the Deceased and Mr Churchman for many years, speaking and/or texting both on a regular basis.

It is not disputed that the flat was also occupied by a tenant, Mr Jason Purll, who shared a common lounge area with the Deceased and Mr Churchman. Mr Churchman collapsed at home on about 12 January 2020 and was admitted to hospital. He was still in hospital when the Deceased died. Mr Purll continued to live at the flat after the Deceased's death.

To his great credit, Mr Howard was concerned for Mr Churchman and what would happen to him and his home, if and when Mr Churchman was discharged from hospital. It was Mr Howard's evidence that, on making enquiries, he was told by Mr Middlemas and Mr Purll, who specifically said he had looked through the Deceased's papers, that the Deceased had not left a will.

I accept and attach significant weight to Mr Howard's evidence generally, but in this regard, his evidence is also corroborated by the evidence of Mr Arthur Knowles, who on learning of the Deceased's death, telephoned Mr Purll and was told that, despite searching the flat from top to bottom, Mr Purll had been unable to locate the Deceased's next of kin. No mention was made of the Disputed Will, and indeed arrangements were then made for Mrs May and her husband as next of kin to attend the flat to collect the Deceased's papers on the understanding that the Deceased had died intestate.

Mrs May and her husband gave evidence that they attended the flat on 3 May 2020, when Mr Purll (in the presence of Mr Middlemas) announced that there had been a development, and the Disputed Will had now been found.

Mrs May took a photograph of the Disputed Will, which at that time (entirely consistent with Ms Radley's expert evidence) only comprised the first page and no mention was even made of the second page, which was not disclosed to the claimants’ solicitors until 11 August 2020.

In my judgment, the circumstances surrounding the production of the Disputed Will are simply incredible, and therefore it is inherently unlikely that the Disputed Will is genuine. In summary:

The Deceased bought, sold and rented properties. He routinely instructed professionals including both solicitors and accountants. For example, it was the evidence of Mr Howard that when he and another tenant in the building wished to extend their leases, the Deceased put them in contact with his solicitors, Anthony Holden Crofts & Co. Exhibited to Mrs May's witness statement is a copy letter dated 23 May 2019, which she found in the Deceased's papers. The letter is from Anthony Holden Crofts & Co addressed to the Deceased attaching further copies of his passport as requested.

It makes no sense that the Deceased would have attempted to prepare his own amateurish will in such circumstances. Whilst latterly, the relationship between the Deceased and Mr Churchman may have been volatile and chaotic, the video and photographic evidence of the flat where they lived together shows that, even towards the end of their lives, they were a sophisticated and tidy couple.

Indeed, it was the evidence of Mrs May that, after visiting the flat on 3 May 2020, she spoke to the Deceased's agent, Mr Sangha, who said that the Deceased had told him a week before he died that he would be making a will once he had completed the proposed purchase of another property.

Further, it was Mr Howard's evidence that, at the time of his death, the Deceased was not even in touch with Mr Middlemas following a falling out, in 2019, over a Mercedes motor vehicle that the Deceased had purchased for Mr Middlemas to use. Mr Middlemas only reappeared on the scene after the Deceased had died. Mr Howard’s evidence in this regard is corroborated by the fact that Mr Middlemas’s then solicitors’, in a letter dated 3 November 2020, stated on behalf of Mr Middlemas that he was no longer in possession of the Mercedes motor vehicle, but rather it was in the possession of a handyman known as Undeem. The car had not been returned to Mr Middlemas, who had been advised to report the matter to the police.

Finally, it was the evidence of Mr Uden that Mr Churchman was very intelligent and multilingual, travelling extensively overseas as part of his job, which makes it even more remarkable that Mr Churchman purportedly signed the Disputed Will above the misspelling of his printed first name, being ‘NIEL’ rather than ‘NEIL’.

As already noted Mr Middlemas, in breach of several court orders, failed to provide witness evidence explaining the precise circumstances surrounding the preparation and execution of the Disputed Will. I draw an adverse inference from that failure to provide clearly relevant evidence; the adverse inference being that Mr Middlemas was unable to evidence a coherent, consistent and credible explanation.

Further, the contemporary documents confirm that Mr Middlemas procured the transfer of £26,888.63 to himself from Mr Churchman's Santander account by falsely claiming in an online bereavement form that he was entitled to receive the money as the partner of Mr Churchman. That was a lie, and Mr Middlemas was never entitled to receive that money also.

In conclusion, and for all those reasons, I find to the civil standard of proof that the Disputed Will is not genuine and, in particular, was not signed by the Deceased. I pronounce against the Disputed Will and direct that a grant of letters of administration be issued on the grounds of an intestacy.