Analysis
Evi Kalodiki (the testatrix) passed away on 31 December 2018, having executed a purported will dated 27 December 2018 (the will) and married the claimant on 28 December 2018. The claimant maintained that the will was revoked by the testatrix’s marriage to him. The defendant was the testatrix’s sister and was named as a beneficiary in the will.
By an application to the Central Family Court, the defendant sought a declaration under s55 of the Family Law Act 1986 in respect of the status of the marriage, contending, among other things, that the marriage was invalid under s3 of the Marriage (Registrar General’s Licence) Act 1970. By his acknowledgement of service in those proceedings, the claimant sought:
- (1) a declaration that the marriage was at its inception valid;
- (2) a declaration that the marriage subsisted when the testatrix died;
- (3) a declaration that the testatrix died domiciled in England and Wales;
- (4) a declaration that the testatrix died intestate;
- (5) a declaration that the claimant was entitled to the whole of the testatrix’s estate; and
- (6) an order that letters of administration in the testatrix’s estate be granted to him.
A separate claim was issued, by which the claimant sought:
- (a) a declaration that the testatrix died intestate;
- (b) a declaration that the claimant was solely entitled to her estate in England and Wales and her moveable assets worldwide; and
- (c) the grant of letters of administration in her estate.
The proceedings in the Family Court were later ordered to be heard together with the later claim.
This was an application by the claimant for summary judgment on elements (1), (2), (4) (by virtue of the revocation of the will by the marriage) and (6) above, and also reverse summary judgment on a counterclaim by the defendant for rectification of the will. Although his application notice did not make this clear, it was evident from the claimant’s witness statement that he was seeking to strike out those parts of the defence and counterclaim that alleged that the marriage was void and of no legal effect.
The defendant sought permission to amend her earlier defence. The proposed amended defence defended the claim on the grounds that:
- (i) the testatrix was domiciled in the Republic of Cyprus, and as such succession of her moveable assets was governed by Cypriot law;
- (ii) the marriage had not revoked the will, either because on its true construction the will was made in expectation of marriage or alternatively because the will should be rectified to be so expressed;
- (iii) the will should be rectified so as to refer by the phrase ‘my estate’ only to the English estate;
- (iv) the marriage was invalid because the claimant took unfair advantage of the testatrix; and
- (v) the marriage was void or unlawful and therefore could not revoke the will; and
- (vi) the court should not enforce the claimant’s rights under the principle ex turpi causa non oritur action.
Held:
As to the construction of the will, the defendant had a real prospect of showing that the expression ‘my last and only will’ used in the will was ambiguous on its face, as between simply meaning the most recent will or else meaning that no further will would be made in future. If that was wrong, then the expression was ambiguous in light of the surrounding circumstances, since it was accepted that the testatrix, a vascular surgeon, was aware that she would die imminently following the execution of the will, she intended the will to govern the disposition of her estate at her imminent death, she knew at the time of its composition and execution that she would be entering a legal marriage the following day, and shortly before the civil marriage ceremony the testator had said to the defendant ‘Don’t worry, I made my will and I took good care of you and the children’. Therefore, the defendant had a real prospect of showing that the expression ‘my last and only will’ was ambiguous and that it should be inferred from the surrounding circumstances that she intended it to survive her forthcoming marriage. The evidence as to the testatrix’s actual intentions was incomplete (there being no witness statement from the priest who had initially drafted the terms of the will, but whom the defendant intended to issue with a witness summons) and the defendant should be entitled to cross-examine the claimant and any witness he might call. As such, the claimant’s application for summary judgment on the issue of the revocation of the will by the marriage would be refused.
Reverse summary judgment would also be refused in respect of the defendant’s counterclaim for rectification. As far as rectification to make plain that the will was made in contemplation of marriage was concerned, there was evidence that the testator had understood (and had been told) that the effect of marriage was to revoke a will. Why she would have created the will had she not intended it to survive her upcoming marriage was unclear. It was relevant that at the time of the will’s execution, the testatrix and those around her were no doubt exhausted and in a state of high emotion. The court had also not had the benefit of hearing evidence from the priest regarding the preparation and execution of the will. In those circumstances, it could not be concluded that the defendant had no real prospect of successfully claiming that words specifying that the will was made in contemplation of marriage were omitted due either to clerical error or else owing to a failure of the priest to understand the testatrix’s intentions. In any event, the rectification claim should proceed to trial since the evidence as concerned it was effectively the same as that relating to the will’s construction, which the court had already determined should go to trial.
As for rectification as to the meaning of ‘my estate’, summary judgment would also be refused. The testatrix had allocated 4% of her estate to legal fees, funeral costs and execution of the will; were this read as referring to her global estate, that would amount to £400,000 which would be a very large sum to allocate for that purpose. Moreover, leaving the claimant a share of the global estate would have increased the need for the claimant and the testatrix’s family to have regular contact, and concomitantly increased the risk of conflict between them, which the testatrix had been concerned to avoid. Therefore, the defendant had a real prospect of arguing that these circumstances gave rise to ambiguity as to the testatrix’s intention when using the expression ‘my estate’. In any event, whether those circumstances created such ambiguity was not a question suitable for summary determination. Since the defendant would in any case be entitled to cross-examine the claimant, and to put the evidence of the priest before the court, there was another good reason that the matter should proceed to trial.
As to the validity of the marriage, it was established law that a declaration that one person was not married to another was not a declaration that the court was empowered to make under s55(1) of the Family Law Act 1986; and in particular, on the proper construction of s55(1)(c), was not a declaration that a marriage did not subsist on a particular date, and moreover the court was expressly prohibited by subsections 58(3) and 58(5) from making such a declaration. In those circumstances, the defendant had no real prospect of obtaining a declaration of such a kind. In any event, the defendant’s counterclaim for a declaration that the marriage was invalid would be refused, and the elements of her defence and counterclaim alleging that the marriage was void would be struck out. The defendant’s argument focused on the fact that the evidence dealing with the testatrix’s capacity submitted to the registrar as a precondition for the marriage having been solemnised in the hospital rather than in a register office or other approved place had been supplied by a doctor other than the testatrix’s usual doctor. Her usual doctor had indicated to her that he could only provide her with a letter certifying her capacity to make medical decisions, her capacity to take legal decisions being a matter for a solicitor, and this has not been disclosed to the registrar when giving notice of the marriage, on the basis of which it was said that the testatrix either lacked capacity or would have been assessed as lacking the capacity to marry. The threshold for capacity to marry was a relatively low one. It did not require that the testatrix knew that the marriage would revoke the will. The burden of proof lay on the defendant. The defendant had herself been present at and acted as a witness to the marriage and had not identified anything suggestive of lack of capacity to consent to the marriage. It was clear from the hospice records that the testatrix was capable of having detailed discussions on a range of issues, and no permission had been sought to adduce expert evidence on the issue of capacity. The usual doctor of the testatrix had been mistaken in equating the test for capacity to marry with that for the making of legal decisions generally. The omission to inform the registrar of his refusal to provide a supporting letter was therefore immaterial.
As to the defendant’s argument that the court should refuse to treat the marriage as valid on the basis of the ex turpi causa principle, the court would be required to determine the validity or otherwise of the marriage in order to determine whether the will was revoked. The statutory provision by virtue of which a marriage revokes an earlier will does not provide that such revocation only takes effect if it is just for it to do so or if there are no public policy reasons for it not to do so, and it was not for the court to create a public policy exception to the operation of a statutory provision. The defendant did not have a real prospect of success in contending that public policy grounds prevented the court from determining the validity of the marriage as a part of its determination as to whether the will was revoked. However, it did not follow that the court could now make a declaration of the marriage’s validity. It would be premature to conclude that the defendant had no prospect of success in demonstrating that such declarations should be refused simply on the basis that she had no real prospect of showing that, supposing that those declarations should be granted, the court should nonetheless refuse to recognise that the marriage revoked the will.
JUDGMENT MASTER CLARK: [1] This is my judgment on 2 applications: (1) the claimant’s application dated 3 February 2023 seeking summary judgment on part of his claim; and reverse summary judgment and/or to strike out the defendant’s counterclaim insofar as it seeks rectification; (2) the defendant’s application dated 24 May 2023 seeking permission to amend …Continue reading "Lattimer v Karamanoli [2023] WTLR 1433"