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It is normally quite simple to establish if a person left a Will – it might be in a desk drawer or stored by the deceased’s solicitor. On occasion, however, things are not quite so simple. In the case of Re Brunt (Re estate of Dean Ashley James Brunt, deceased (probate) Wrangle v Brunt and another [2020] EWHC 1784 (Ch)), the deceased’s Will was located by chance 10 years after his death – and was then alleged to be a forgery. The judgment in the case provides a helpful illustration of the issues that can arise in such circumstances and how the court may resolve them.

The background

Dean Brunt died in 2007. His mother, Marlene, was granted letters of administration (which is the equivalent of a Grant of Probate in circumstances where there is no Will) in 2008, on the basis that he died intestate. However, Dean’s mother was unable to distribute the estate due to ongoing disputes between family members. Almost a decade later, during a search of the offices of a convicted fraudster, Mr Day, a copy of a Will for Dean dated March 1999 was located.

Quite apart from the fact that the Will had only been located after almost a decade, there were certain curious aspects to it. For example, Dean’s middle name was wrong, and it referred to Dean having a one third share in a property whereas he actually owned a quarter. Also, the Will had not been signed by Dean, but by Mr Day (the convicted fraudster), apparently at Dean’s direction.

The claim

Dean’s uncle, Bob, who was involved in the discovery of the Will and was one of its chief beneficiaries, applied to the court for an order revoking the previous grant. Dean’s mother and brother opposed the claim on the basis that the Will was forged or, alternatively, that the Will was not signed properly, or was signed without Dean’s knowledge and approval.

In a normal case, the burden of proving forgery rests on the person making that allegation. In this case, however, the court found that where a Will is produced many years after death, and is alleged to have been signed by some other person at the deceased’s direction, “convincing evidence is needed to defeat the allegation that the Will is a forgery”. The evidential burden, therefore, shifted onto the claimant, Bob.

The court found that there was evidence pointing to the Will being valid: attendance notes had been kept recording Dean’s instructions by Mr Day, and while it was accepted that Mr Day had been convicted of fraud, that fact did not “of itself require the court to reject the claim or to be pre-disposed against it”. The claimant was also able to give evidence of conversations with Dean, during which he confirmed he made a Will, and one of the Will’s witnesses confirmed to the court that he was there when Dean “did a Will”.

The court, taking the evidence as a whole, was satisfied the Will was not forged.

Proper execution and knowledge and approval

In order for a Will to be held valid, it must be in writing, and be signed by the testator, or by some other person in his presence at his direction. The signature of the testator or the person signing at his direction must be made or acknowledged by the testator in the presence of two or more witnesses who must each sign the Will.

The court ruled that a Will can only be signed at the direction of the testator if there was a communication by the testator that he wished the Will to be signed on his behalf. While there was no unambiguous evidence of Dean doing this, the court inferred from the evidence that there was a positive communication by Dean “either in words or by a nod of his head” that Mr Day should sign the Will.

Before a Will can be proved (confirmed as the testator’s true Will) the court must be satisfied that he knew and approved of its contents. While there was no written record of Dean’s instructions, and while the court noted that the circumstances in which the Will was prepared were not clear, it was satisfied taking the evidence as a whole that Dean understood what was in the Will and did approve its contents.

Conclusion

The circumstances of this case cannot be said to be common, but a number of lessons can be learnt from it.

1. Probate disputes are lengthy and expensive affairs. It is likely that the costs of this dispute will have reduced significantly the net benefit received under the Will. Most importantly, therefore, when a Will has been prepared, its existence and location should be made known to the testator’s family or a trusted adviser or friend.

2. Difficulties can arise where a person other than a solicitor is involved in the preparation and execution of a Will. There can be no guarantee that that person will keep proper attendance notes or ensure that the Will is executed in accordance with formal requirements. In this case the court found in favour of the Will, but the decision could well have gone the other way.

3. In normal circumstances, a person who alleges forgery bears the burden of proof. However, where a Will is found long after the testator’s death, and where it has been signed by a person other than the testator, the burden of proof may be reversed.

4. A Will can be signed by another person at the direction of the testator. Where this happens, it is sensible to ensure that a full record of the testator’s direction is recorded in a contemporaneous attendance note. Parties will wish to avoid relying upon witness evidence at trial to prove what can be recorded by a simple note. Better yet, a testator should sign his own Will unless proper reasons prevent him doing so.

5. While the background of the witnesses and persons involved is a relevant factor in the court’s consideration, even a conviction for fraud will not mean that a person’s evidence or previous correspondence is discounted.

If you require further information about anything covered in this briefing, please contact Adam Carvalho, Richard McDermott, Joseph de Lacey, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2020

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