Setting aside fraudulent wills

The family

Brenda Weller (“Brenda”) died on 24 November 2018.  She and her husband, Jim had three children, Paul, Stephen and Toni.  Jim had died when the children were quite young.  Brenda also had 8 grandchildren - James, Arry, Georgina and Sophie (Paul’s children), Paige (Stephen’s child) and Francesca, Anthony and Alexander (Toni’s children).  Brenda also had one great-grandchild, Olivia, Francesca’s daughter.

Jim also had a sister, Joan and she had four children, one of whom Ann was the claimant in the proceedings.  Ann has three children, Paula, Keeley & Rory.

Brenda inherited a bungalow from Joan in 2012 which she sold in 2014 and purchased another property in Cheshunt, Hertfordshire for £250,000.00.  Prior to the purchase of that property (by virtue of her inheritance) Brenda had lived in a run down rental house in Tottenham.

The execution of the wills

The court heard evidence that Brenda had executed two wills in February and March 2018.  The relevant facts in relation to the execution of each wills were stated to be as follows.

In February 2018 Brenda instructed Austin Ryder, solicitors as regards preparation of a will and lasting power of attorney.  Brenda met with Mr Bruce Crabb and Ms Vitella Thompson two solicitors practising with Austin Ryder on 2 February 2018.  A handwritten attendance note of their meeting was prepared by them both with Mr Crabb being responsible for taking instructions in relation to Brenda’s will and Ms Thompson the power of attorney.  Their joint attendance note recorded, inter alia, “Mrs Weller is widowed & has no children.  Her attorney would be her niece Ann Rainey and her replacement would be Ann’s daughter.”  The note went on to confirm “Exec. – niece – ANN RAINEY (and gave her address).  All estate to niece, if predecease, great niece PAULA RAINEY address to follow exec. & beneficiary”

A draft of the will was prepared by Mr Crabb in accordance with these instructions and forwarded to Brenda on 6 February.  On 9 February 2018 Brenda re-attended the solicitors’ office and executed the will as drafted in the presence of Mr Crabb and Ms Wendy Upson (a legal secretary employed by Austin Ryder) who also witnessed the will (“the February 2018 will”).

At the same time, Brenda also signed the power of attorney that had been prepared for her by Ms Thompson who witnessed Brenda’s signature.  She then arranged to write to Ann advising her that Brenda was appointing her as her attorney with Paula named as a replacement and asking them both to sign the document which they did on 17 February 2018.  Thereafter, Brenda then signed the final page (which could only be done after signature by Ann and Paula) on 23 February 2018 and Ms Thompson arranged to forward a copy to the Office of the Public Guardian (“OPG”) for registration.  On 13 April 2018 Ms Thompson wrote further to Brenda to advise that the OPG had indicated registration should be completed by 9 May 2018, which it was and the OPG notified Brenda, Ann and Paula of the same direct.

Both Ms Thompson, Mr Crabb and Ms Upson confirmed the above facts in witness statements filed in connection with the proceedings.  Mr Crabb confirmed in his statement that he remembered Brenda “being clear about what she wanted”.  He also subsequently confirmed that he had been unaware of any medical history relating to capacity and that Brenda had seemed “healthy and of sound mind”, “had capacity” and “knew the purpose and effect of making a will, the extent of her estate…”.

As to the later will in March 2018, the will in question was a home made will which Paul had prepared for Brenda at, he said, his mother’s request (“the March 2018 will”).  The executor under this will was Paul.  It was witnessed by him and Toni and left her entire estate to Francesca, James and Arry.  Paul said his mother had always told him that she wanted to leave her estate to the three grandchildren named and when she had asked Paul about making a will he had told her he could just draft a simple one for her (which she could change at any time simply by making a new one) but he would have to tell Toni (or someone else about it) as it needed to be executed in front of two people.

Paul told the court that following his initial conversation with his mother, he had prepared the will and then it had been executed by his mother at her house with him and Toni acting as witnesses on 5 March 2018.  Following execution Paul said his mother had asked him to keep the original at his house and to give her a copy, which he says he did.

Whilst the defendants to the claim, Paul, Stephen (although he took no formal part in the proceedings), Toni, Francesca, James & Arry did not admit the validity of the February 2018 will (although in witness evidence Paul asserted undue influence on the part of Ann), Ann specifically challenged the validity of the March 2018 will stating the signature of Brenda was a forgery.

Matters following Brenda’s death

In November 2018, shortly before Brenda’s death whilst she was in hospital, Ann visited Brenda’s house and retrieved a suitcase from under one of the beds.  She told the court that her aunt had given her the keys to her property in order for her to do so and had been quite upset when initially Ann had not been able to gain entry into the room where the suitcase was kept.  Ann eventually managed to locate the suitcase and at Brenda’s request removed it and took it to her house for safekeeping.  Following her death, Ann arranged to open the suitcase in the presence of some other family members.  In the suitcase Ann found 5 sealed envelopes addressed to Toni, Francesca, James, Arry and Olivia.  Each of them contained £1,000.00 in cash.  There was also some jewellery for two named beneficiaries, Francesca and Olivia and a copy of the February 2018 will.

As to the March 2018 will, Paul told the court that initially he had difficulty in locating the same because he could not remember where he had put it – he eventually found it in his loft but this was not until December 2018, whereupon he proceeded to apply for probate without any recourse to Ann, Paul (and the other defendants) saying they had not been aware of the existence of the February 2018 will before their mother’s death.  Paul obtained a grant of probate on 9 January 2019, whereupon he took immediate steps to put his mother’s property up for sale.

The claim

In April 2019, Ann issued proceedings.  The claim concerned whether either of the two wills allegedly made by Mrs Brenda Weller (“Brenda”) on 9 February 2018 and 5 March 2018 respectively were genuine.

Brenda’s character & her relationship with the parties

The court heard evidence from various witnesses who stated that Brenda was “fully compos mentis”, “a very independent person” and someone who “would not sign anything she didn’t want to”.  Ann herself described Brenda as a “very independent and stubborn lady”.  Various witnesses also described her as a very private person.  The court also heard evidence from many of the witnesses of an estranged and at times difficult relationship with her children throughout her lifetime.

 

The handwriting experts

Both parties instructed handwriting experts as regards Brenda’s signature on both wills.  Both experts were in agreement that the signature in relation to the February 2018 will was likely to be that of Brenda whereas they differed in opinion as regards the March 2018 will.  Having heard evidence from both experts at trial, the judge ultimately concluded that he preferred the evidence of the expert instructed by Ann, namely that there was “moderate to strong evidence” that the signature on the March 2018 will was not that of Brenda.

Conclusions

Having considered the evidence, both factual and expert, the judge concluded that the February 2018 was genuine.  The court could find no evidence that Brenda had been bullied, forced or intimidated by Ann (or anyone else) into making that will and the judge was satisfied that she did so of her own free will and chose to keep it secret from everyone during her lifetime.  Despite her instructions to the solicitors as regards her not having any children, the court found there was no question of any lack of capacity on her part and the judge considered the evidence supported the fact that she had had a long, deep and loving relationship with Ann.  On the other hand, the evidence showed that she was estranged from her children (albeit by the time of her death she had rekindled her relationship with Toni) and supported a proposition that she did not trust them.

As to the March 2018 the judge held that it had not been signed by Brenda and her signature had been forged.  In reaching his conclusion the judge considered that it was, inter alia, improbable, Brenda would have changed her mind as to the contents of her will between 9 February and 5 March.  There was no change of circumstances or intervening event and it would not make sense if she had decided to change her will for her not to go back to Austin Ryder, particularly bearing in mind that she was still in contact with them over the preparation, execution and registration of the power of attorney.

In the circumstances, the judge propounded in favour of the February 2018 will and this was entered into probate in place of the March 2018 will.