Analysis
The claimant brought a claim to propound an alleged lost will of her late father (the 2017 will) against her sister (the first defendant) and her elder brother (the second defendant). The defendants alleged that the 2017 will, which was propounded on the basis of what was claimed to be a photocopy of it, was a forgery and that consequently the deceased died intestate. Expert evidence as to the genuineness of the alleged signature of the deceased to the 2017 will was inconclusive. The alleged witnesses to the 2017 will gave evidence.
The second defendant counterclaimed for a declaration that under the terms of a compromise he made in writing with the deceased (the 2006 contract) from February 2006 he had held a beneficial interest in a property registered in the name of the deceased and for specific performance of an agreement in writing made with the deceased in August 2016 (the 2016 contract), under which the deceased promised to settle his remaining beneficial interest in the property on protective trusts for the second defendant’s benefit. The second defendant, who had lived at the property since 2006, had been bankrupted on his own petition in 2011.
Held:
Dismissing the claim, contrary to what had been held in Haider v Syed [2013], the burden of proof in establishing whether a will alleged to be a forgery is valid rests on the party propounding the will, as going to whether the will has been duly executed and is formally valid, and not on the party alleging forgery. The 2017 will was a forgery concocted by the claimant and the two alleged witnesses. A declaration was made that the deceased died intestate.
Dismissing the counterclaim, the 2006 contract had operated to vest a 48.03% beneficial interest in the property in the second defendant but that interest became vested in his trustee in bankruptcy on his bankruptcy and remained so. The 2016 contract operated as an agreement by the deceased to create protective trusts over the deceased’s remaining 51.97% beneficial interest in the property for the benefit of the second defendant, but such trusts had not been completely constituted. As the consideration provided by the second defendant was nominal, the 2016 contract was not capable of specific performance. Neither the deceased nor the estate had acted in breach of the agreement, so as to give rise to a current right to damages.
The claimant should pay the costs of the claim on the indemnity basis. There should be no order as to the costs of the counterclaim.
A transcript of the judgment should be passed to the Crown Prosecution Service and the Official Receiver.
JUDGMENT HHJ HODGE QC: [1] This is my extemporary judgment following the trial, over nine days in Liverpool between 13 and 23 October 2020, of a contested probate claim brought by Miss Rebeca Olivia Lucille Face (‘Rebeca’) against her sister, Mrs Rowena Eleanor Liesa Cunningham (‘Rowena’), and her elder brother, Mr Richard Kaethner (‘Richard’), under …Continue reading "Face v Cunningham & anr [2021] WTLR 1261"