Analysis
A probate claim was brought in respect of the will of the aforesaid deceased for testamentary incapacity; want of knowledge and approval; rectification; a kind of mutual wills claim and in proprietary estoppel. HHJ McCahill QC held that the parties should be required to deal with each of the wills issues in comparatively short statements, without going back over the decades of family history, which would be necessary for a proprietary estoppel claim. He said that he was persuaded that there was a proper role for a trial of preliminary issues, with the second trial, if necessary, dealing exclusively with the issue of proprietary estoppel. He ordered accordingly, staying the latter issue. Following the hearing before the judge, the claimant amended its claim to include an express pleading of mutual wills.
Held (Longmore LJ with whom Rimer and Mummery agreed)
The appellant will, in light of the amendment, if not anyway, have to give evidence twice if he fails on the wills issues, and not only will he have to give evidence twice, but he will be giving evidence twice in relation to a large extent of the same or similar matters. This seems a recipe for difficulty if not potential disaster. It would be far more satisfactory for all the evidence to be given on one occasion, even if that does mean, as the judge expected, that the trial would last as long as seven and a half days. This court will only very occasionally interfere with case management decisions. Nevertheless, it may be wise for this court to interfere in such a decision if it is persuaded that at the end of the day there is a serious risk it will overcomplicate matters when the issues could all have been encompassed in one trial. Appeal allowed
24 July 2013