Sharp v Hutchins [2015] EWHC 1240 (Ch)

Analysis

Mr Butcher was born on 4 October 1939. He lived alone in a bungalow at 42 Russell Road, Enfield, London. He had no surviving parents and no children. He was close to his only sibling, Yvonne Butcher, with whom he lived. She died in 2002. Mr Butcher died on 5 May 2013 aged 73. He left a net estate worth £482,295.00. He was in good physical and mental health at the time of his death.

It was likely that in 1991 Mr Butcher had made a will which left his estate to Yvonne. In 2003, he made a new will following her death (‘the 2003 will’). He did so without the involvement of any professionals such as a solicitor or professional will writer. The 2003 will provided for his close friend, Lynda Rogers to be appointed as executrix, and for his estate to be split into four equal parts to be divided between Lynda Rogers, Gwen Hunt, Joyce Hunt (his cousins) and the fourth part equally between Yvonne’s goddaughter Evelyn Hutchins and her brother Peter Rogers. In 2011, Mr Butcher updated his will. The 2011 will was produced using a Lawpack will form. It appointed Evelyn Hutchins to be executrix. His estate was split into three parts, and divided between Evelyn Hutchins, Peter Rogers and Joyce Hunt.

On 5 January 2013, Mr Butcher made his final will (‘the 2013 will’) which left his entire estate to his builder, Daniel Sharp (‘Danny’). Danny brought a claim for an order pronouncing in favour of the 2013 will in solemn form. Evelyn Hutchins, as one of the three beneficiaries of the 2011 will, brought a counterclaim challenging the 2013 will for want of knowledge and approval. It was however accepted between the parties that (1) Mr Butcher had capacity when he executed the 2011 will and the 2013 will; (2) the 2013 will was duly executed in the presence of two witnesses; (3) both the 2011 will and the 2013 will read rationally; (4) both parties were surprised as to the contents of the 2013 will.

Held:

1. 1. 1. 1) The correct approach was to apply a single stage test which required the court to ask whether Mr Butcher understood (a) what was in the 2013 will when he signed it and (b) what its effect would be.
      2. 2) A two stage test where the court had to consider whether there were facts to excite the suspicions of the court, and then to consider whether or not those suspicions were allayed, could be used as a cross check to the conclusions reached using the single stage test.
      3. 3) Whether one approached the issue using the single stage approach, or the two stage approach, the answer should be the same.
      4. 4) Having heard the evidence of the attesting witnesses, there was nothing suspicious about the events that day.
      5. 5) The 2013 will had been duly executed by Mr Butcher when he was of capacity, and that gave rise to the usual strong inference of knowledge and approval.
      6. 6) The form of the 2013 will was consistent with the manner in which Mr Butcher had prepared and procured will forms for himself in 1991, 2003 and 2011.
      7. 7) The 2013 will was read by Mr Butcher. It was short and easy to understand and capable of being readily understood by Mr Butcher who was literate with a good understanding of his financial and other affairs.
      8. 8) Although he had remained close to Evelyn and Peter and their families, the relationship had been affected by the death of his close friend Lynda.
      9. 9) Danny was a friend even if not a close one and someone who visited him regularly and had been kind to him.
      10. 10) Mr Butcher had asked the attesting witnesses to witness the will, and so he knew that he was executing a new will.
      11. 11) He waited until mid-January 2013 to give the 2013 will to Danny and so, having read it, held on to it and had the opportunity to revoke it. This was also consistent with his wish that Danny was to be his executor and beneficiary.

   12) Had the judge concluded that the 2013 will was invalid for want of knowledge and approval, he would have been satisfied that the 2011 will was valid in accordance with

s9 Wills Act 1837

. Notwithstanding that Mr Butcher had signed the 2011 will in the wrong place, he had intended by his signature to give effect to the will.

JUDGMENT MS L ANDERSON QC: [1] This is a probate action concerning the testamentary wishes of Ronald Hubert Butcher (‘Mr Butcher’). As observed by Peter Gibson LJ in Fuller v Strum [2002] WTLR 199 at para 32: ‘Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who …

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