Wilson v Lassman, Court of Appeal - Chancery Division, March 07, 2017, [2017] EWHC 85 (Ch)

Issuing Organization:Chancery Division
Actores:Wilson v Lassman
Resolution Date:March 07, 2017
 
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Case No: HC-2015-002545

Neutral Citation Number: [2017] EWHC 85 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Rolls Building, Fetter Lane,

London EC4A 1NL

Date: 7/03/2017

Before :

MASTER BOWLES

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Between :

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Gavin Hamilton (instructed by BPS Law LLP) for the Claimant

Julian Reed (instructed by Woodgrange Solicitors LLP) for the Defendant

Hearing date: 21st July 2016

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JudgmentMaster Bowles :

  1. By an amended Claim Form, dated 2nd February 2016, the Claimant, Paul Wilson (Mr Wilson) sought an order of the court, pronouncing, in solemn form, against the will of his father, Gerald Altiman Wilson (the Deceased), dated and purportedly executed on 9th October 2010, and revoking the grant of probate obtained by the Defendant, Malcolm Lassman, dated 27th September 2011, as executor and sole beneficiary under the will. The Deceased died on 18th December 2010. It is the Claimant's contention that the will was not validly executed in compliance with section 9 of the Wills Act 1837.

  2. The Claimant's contention arises in the following circumstances.

  3. The Claim, as initially formulated, was a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). Mr Wilson is the son of the Deceased and claimed, under the Act, in that capacity. Mr Wilson did not have a good relationship with his father and moved away from his father's home, at 82 Osborne Road, Forest Gate, in 2000. Although his case is that he kept some contact with his father over, at least, the early years of their separation, the extent of the separation was such that he did not become aware of his father's death until January 2015, some four years after his father's death. By reason of that fact and by reason of the grant of probate in September 2011, Mr Wilson could only proceed with his claim under the 1975 Act if permission is granted by the court; there being a statutory time limit, under the 1975 Act, subject to the court's power of extension, which expired six months after the grant of probate.

  4. The deceased's will made no provision for Mr Wilson and left the entirety of his estate to the Defendant, in these proceedings, Mr Lassman, who was, for many years, Mr Wilson's next door neighbour at 84 Osborne Road.

  5. The will in question was not prepared by solicitors, but was written, in manuscript, by the deceased on a will form and purportedly attested by two witnesses, Mr William McKinley and Mr John Byrne, who have both given evidence before me. It is not disputed but that the deceased signed the will, nor that the two witnesses also signed the will. Although the attestation clause states that the will was signed by the deceased in the presence of the witnesses and then by the witnesses in his presence, it is not now disputed but that, in fact, the deceased signed his will before presenting it to the witnesses for their signature.

  6. Mr Wilson's application for an extension of time to pursue his 1975 Act claim was listed to be heard before me on 27th January 2016. However, at that hearing, application was made and granted to amend the Claim so as to raise the issue of the validity of the will and of its due execution.

  7. The catalyst for that application is to be found in the fact that Mr Wilson, or his solicitors, having, it would seem, doubts as to the proper execution and attestation of the will, had instructed an enquiry agent, who had successfully located the attesting witnesses and questioned them as to the circumstances in which the will had been signed and witnessed. Each attesting witness responded to a questionnaire written up by Mr Wilson's solicitors and signed a witness statement, again prepared by Mr Wilson's solicitors, substantially derived from their responses to the questionnaire.

  8. At the hearing, a questionnaire, together with a witness statement produced from the questionnaire, was produced, both signed by Mr Byrne, which appeared to indicate, firstly, that the will had not been signed by the deceased in the presence of the attesting witnesses and, secondly, that, at the time when the first attesting witness signed the will the second attesting witness was not present. On this view, the first attesting witness was, or would have been, Mr Byrne and the second attesting witness Mr McKinley, who was said to have `arrived with his car' only after Mr Byrne had witnessed the will. If this was correct, in fact, and if this was the totality of the matter, then the will would not have been validly executed and attested in accordance with the Wills Act.

  9. Mr McKinley's questionnaire and witness statement (again prepared from the questionnaire, but with some manuscript embellishment by Mr McKinley) did not tell quite the same story. He was, in his witness statement, uncertain as to whether the will had already been signed by the deceased, when presented to him to be witnessed. His questionnaire indicated that he and Mr Byrne had been approached at the same time by the deceased and that Mr Byrne had been with him when he had witnessed the will.

  10. In light of the issue raised as to the validity of the will, I took the view that the right course was to determine that question before embarking any further with a consideration of the 1975 Act claim. If the will was invalid, then Mr Wilson would be entitled to at least a share in his father's estate (there is apparently a half brother) and the 1975 Act claim would, in all likelihood fall away. Accordingly, that claim has been stayed pending my determination of the validity of the will.

  11. Section 9 of he Wills Act 1837 (as amended) provides, as relevant, that `No will shall be valid unless (a) it is in writing and signed by the testator ... ; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either- (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary'.

  12. In this case and as already stated, it is not in doubt but that the deceased signed his purported will. Nor is it suggested that, in signing the will document, his intention was anything other than to give effect to his will. Although, at one stage, Mr McKinley professed to be uncertain as to whether...

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