The mysterious case of the long-lost will

The appearance of a will after many years is problematic. Joseph de Lacey investigates the outcome of this scenario in Wrangle v Brunt, which also involved an allegation of forgery.

As practitioners will be aware, it is normally quite simple to establish if a person left a will. On occasion, however, things are not quite so simple. Wrangle v Brunt [2020] is a rather extreme, but helpful, example of a case where a will was found many years after the deceased’s death, in circumstances where a grant of letters of administration had already been issued. And, even then, the will that was found was alleged to be a forgery.

The judgment in the case provides a helpful illustration of the issues that can arise where a will is located some time after the death of the testator, and how the court may resolve them. It further provides a useful summary of the court’s approach to allegations of forgery, questions of knowledge and approval, and the formalities for the execution of wills by some person other than the testator, but at his direction.

The background

Dean Brunt died in 2007, aged 35. He suffered from learning difficulties and mental health issues, resulting from being starved of oxygen at birth. Following an inquest into his death (he had died after stepping in front of a train), his mother, Marlene, was granted letters of administration in 2008, on the basis that he died intestate.

While Dean’s estate was relatively simple, consisting of a one third share in certain property, and funds in two bank accounts, Dean’s mother was unable to progress the administration. This was due in part to ongoing disputes between family members relating to the earlier death of Dean’s grandfather, Arthur, which effectively stalled the estate’s administration.

On one side of these disputes were Venetia (Dean’s sister) and the claimant (Bob – Dean’s uncle), who Venetia had lived with from the age of eight, and who Dean often spent time with when he was ‘in trouble’. On the other were Marlene and Dale (Dean’s brother).

While those disputes continued, Marlene failed to provide any information to Venetia as to the progress of the administration, despite her requests. In 2011 and 2013, Venetia asked for updates, but was ‘fobbed off’ by Dale, with the answer that the administration was complicated. In fact, neither Dale nor Marlene confirmed to Venetia that Dean had died intestate, and that Marlene had been granted letters of administration.

Then, in 2016, a meeting was held in order to attempt to resolve the various family disputes. It was at this meeting that Marlene told Venetia for the first time that Dean had died intestate, that she was in charge of his estate, and that all his assets belonged to her (pursuant to the intestacy rules).

A will is found

It was following the meeting in 2016 that the claimant, Bob, and Venetia quite by chance came into possession of two copies of a will stated to have been executed on 2 March 1999.

The relevant part of the story begins in 2017, when Bob asked Venetia to assist him in
searching through some papers belonging to his deceased wife. In those papers they alleged that they found a folder with the words ‘Dean’s Will’ written on the outside. The folder was empty.

Then, in 2018, a copy of the will was located. It was said to have been located by a Mr John Thorpe, who was a witness to the will, as he searched through a correspondence file relating to Dean’s grandfather’s estate, which was held at the offices of a Mr Howard Day.

Mr Day had had a long involvement with the Brunt family. He had acted on behalf of Dean, Dale and Venetia in relation to matters concerning their grandfather’s estate. He had been appointed by Dean in 1998 to act as his attorney under an enduring power of attorney. He was not a solicitor, but was willing to let others think he was. And, in 2003, he had been convicted of dishonesty and sent to prison.

The will that had been found provided that Marlene receive £20,000, that Dean’s interest in a property was to be given to his brother Dale and sister Venetia, and that his interest in a further property was to be given to his uncle Bob and aunt Valerie (who had since died). His residuary estate was to be held on trust and to be divided into two equal parts, with one part passing to his brother Dale, and the other part passing to his sister Venetia. Bob and Venetia therefore had an interest in seeing this will admitted to probate.

There were certain curious aspects to the will that had been located, quite apart from it having been found 11 years after Dean’s death, shortly after Venetia had been told that Dean had died intestate, and even then in the offices of a convicted fraudster. For example, Dean’s middle name was wrong. It also referred to Dean having a one third share in a certain property.

But Dean had not owned a one third share in that property in 1999. At that time he owned a quarter share, and only came to own a one third share later. Finally, the will had not been signed by Dean, but by Mr Day, apparently at Dean’s direction.

As a preliminary step, Mr Day was therefore asked for further information regarding the alleged will, and he confirmed that:

• the two witnesses were present when the will was signed by him, and they observed him signing it;
  
  
• Dean was present when the will was signed by all parties; and
  
  
• Dean directed the will be drawn up and signed by Mr Day under the power of attorney.

Events following the finding of the will

Following the finding of the will, a letter of claim was sent to Marlene. It enclosed a copy of the will and copies of attendance notes prepared by Mr Day of his meetings with Dean. These stated that the will had been signed by Mr Day at Dean’s request, that the witnesses recalled Mr Day signing it, and that Dean was present at the time. The letter further suggested that Marlene had taken the copy of Dean’s will that had been in the folder, and then hid it or destroyed it.

In response, Marlene stated that she disputed that the will was genuine. In particular, it was noted that:

• the date of the will was typed, whereas normally the date was handwritten when a will is signed;
  
  
• the will was stated to be for ‘Dean Ashley Charles Brunt’, whereas Dean’s name was actually ‘Dean Ashley James Brunt’;
  
  
• in relation to a clause bequeathing an interest in certain property, the will stated that Dean had a one third share, whereas in 1999 he only had a quarter share – he had acquired a one third share at a later date; and
  
  
• further, it was stated that even if the will had been created in 1999, it may not have been correctly executed, and that it was not accepted that the testator knew and approved of its contents.

The claim

In November 2018, the claimant applied to the court for an order revoking the previous grant, and propounding the 1999 will that had been located.

Dean’s mother and brother opposed the claim on the basis that the will was forged or, alternatively, that the will had been improperly executed, or was signed without Dean’s knowledge and approval.

And, to make matters a little more colourful, during the course of the claim a further copy of the alleged will was found. It was, again, found in a file of papers at Mr Day’s office.

Forgery

The defendants’ case was not that the signatures of Mr Day and the witnesses were forged, but that the will was not created in 1999; instead, it was made some time after Dean’s death. This was supported by expert evidence, which concluded that there was strong evidence that Mr Day had not signed one of the copies of the will in 1999, but at a later date. Indeed, they concluded that it would be ‘quite a coincidence’ for Mr Day to have written the signature on that will in an unusual style relative to his writing at that time, and ‘in a manner which is not found until later dated signatures’.

As practitioners will be aware, the legal burden of proving that a will is a forgery rests on the person making that claim. However, in this case, the court held that where a will has been produced over ten years after the testator’s death, and is alleged to have been signed in the testator’s presence and at his direction, but not by him, ‘convincing evidence is needed to defeat the allegation that the will is a forgery’. The evidential burden was therefore on the claimant. This was a logical proposition in light of the circumstances of the will’s alleged execution, and indeed (in my view) the circumstances in which the copies of the will had allegedly been found.

As to the standard of proof, the court referred to Re H [1995], where Lord Nicholls explained that:

...the more serious the allegation the less likely that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

In assessing the allegation of forgery, the court considered the ‘bad character’ of Mr Day. Mr Day would have been a key witness in the claim, but had died in September 2019. His name ran through the claim ‘like a stick of rock’. He was said to have drafted and signed the will, and of course the copies of the will had been found in his papers. He had also prepared attendance notes of his meetings with Dean, and had answered questions put to him regarding the execution of the will (as above).

For the claimant, it was recognised that Mr Day’s conviction must make the court ‘think twice’ before accepting his evidence at face value. As was said, ‘someone who has participated in a dishonest scheme may act dishonestly again.’ But the court found that Mr Day’s conviction for fraud was only part of the background circumstances of the case. It did not ‘of itself require the court to reject the claim or to be pre-disposed against it’, but meant only that the court should evaluate the documents and evidence coming from Mr Day with caution.

With these considerations in mind, the court, taking the evidence as a whole, was satisfied that the will was not forged.

While it was true that the will referred to Dean’s one third interest in property, despite Dean holding a one quarter interest in that property at the time, the court accepted the claimant’s evidence that Dean and his siblings knew or expected in 1999 that the property would end up in their three hands only. It was, in any event, not possible to determine whether the will was a forgery by looking at the contents of the will alone.

The court therefore considered the other documentary evidence that was put before it, all of which with one exception came from Mr Day. These included a list of meetings which included reference to a meeting on 2 March 1999 with Dean, next to which were the words ‘Will Signed’. Curiously, it was accepted that this list of meetings had not been prepared contemporaneously. It was also not examined by the handwriting experts. The court was also shown a handwritten diary, which showed the words ‘& Signed Up Will’ on the entry for 2 March 1999. The handwriting experts had analysed this entry, and considered that those words had been appended in a different ink relative to other entries on the relevant page. They agreed that this suggested that the entry was therefore appended at a different time, but that it was not possible to determine when. Finally, the court was shown typed meeting notes, including a note of 2 March 1999, which recorded Dean’s confirmation of the contents of his will, and Dean’s instruction to Mr Day to sign the will under his power of attorney.

For the claimant’s part, while he was not involved in the preparation of the will, and was not present when it was signed, he gave evidence that he had been told by his wife that Dean had made a will on the evening she collected Dean from Mr Day’s offices in March 1999. He could also recall conversations with Dean during which Dean had confirmed that he had made a will.

Finally, one of the will’s witnesses confirmed to the court that he was there when Dean ‘did a will’, and witness statements served on behalf of the claimant, in the names of Dean’s ‘drinking friends’, confirmed that he had mentioned making a will.

As stated above, the court ruled that the will was not a forgery. There was a substantial amount of evidence before the court that at one time or another Dean had told friends that he had made a will. The court was also not satisfied that Mr Day’s attendance notes were part of an elaborate fraud. This was despite the expert evidence, which suggested that Mr Day may have signed the wills at some point after the alleged date of execution, and the evidence that his diary entries had been updated after the event. The court was simply not persuaded that the expert evidence should alter its conclusions on the factual evidence. As for why the will had not been produced on Dean’s death, the court held that it was likely that the claimant’s wife had provided a copy to Marlene, who took the view that it was not Dean’s will, but a will made by Mr Day, and therefore chose not to reveal it.

Proper execution

In order for a will to be valid, it must be in writing, and be signed by the testator, ‘or by some other person in his presence and by his direction’ (s9 of the Wills Act 1837). 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.

In this case, the will had been signed by Mr Day, allegedly at the direction of Dean.

The court first considered the presumption of due execution. For the defendant, it was said that there could be no such presumption, as the attestation clause did not reflect what actually happened. The will stated that Mr Day had signed it under an enduring power of attorney, but that was an error of law. It omitted to state that Mr Day signed it at Dean’s direction.

The court held that, where a will purports to have been signed by the holder of a power of attorney, no weight can attach to the presumption of due execution arising from the terms of the attestation clause. That said, on the evidence, the court was satisfied that Dean was present when the will was signed by Mr Day, and witnessed by the witnesses.

The court further ruled that a will can only be signed at the direction of the testator if there was a ‘communication by the testator that he wishes the will to be signed on his behalf’ (see Barrett v Bem [2011]). While there was no unambiguous evidence of Dean giving such a communication, 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.

Knowledge and approval

Before a will can be proved the court must also be satisfied that the testator knew and approved its contents. While there was no written record of Dean’s instructions, and 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.

While the language in the will would have been unfamiliar to Dean, its content was capable of being explained and summarised. Further, there was evidence that on the day the will was executed, Dean had told the claimant’s wife that he had made a will, suggesting that he had understood what he had done.

Conclusion for practitioners

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

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. When a will has been prepared, its existence and location should be made known to the testator’s family, a trusted adviser or friend.

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 this 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. One factor that may have swayed the court was its conclusions on the honesty of the witnesses before it. As ever, the credibility of witnesses in will disputes is of paramount importance.

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.

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 their own will unless proper reasons prevent them from doing so.

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 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, November 2020

This content was originally published in Trusts & Estates Law and Tax Journal.