St Clair v King & anr [2022] WTLR 703

Analysis

The defendants were the executors of the deceased’s last will dated 20 May 2009 (the 2009 will). The claimant, who was the stepdaughter of the deceased, challenged the 2009 will. There were seven issues at trial:

1. (i) whether 2007 wills made by the deceased and her husband (the claimant’s father) were mutual wills such that if the 2009 will was admitted to probate, the estate needed to be administered to give effect to a constructive trust reflecting the terms of the 2007 will;
2. (ii) whether there was a contract between the claimant and the deceased before the 2009 will to make and not revoke a will in terms of the 2007 will;
3. (iii) whether the 2009 will was executed under the undue influence of the second defendant or fraudulent calumny such that it should be held invalid and ineffective;
4. (iv) whether the deceased had testamentary capacity to make the 2009 will;
5. (v) whether the 2009 will was made without the deceased’s knowledge and approval;
6. (vi) whether an immediate or binding trust was created by the 2007 will; and
7. (vii) whether the 2009 will should be admitted to probate in solemn form.

Held: claim dismissed; counterclaimed proved

1. (1) No binding trust was created by the 2007 will because it was executed as a will and not an inter vivos trust and there was no contrary intention to s24 Wills Act 1837 that the 2007 will would take effect as though it had been executed immediately before death (paras [85]-[87]).
2. (2) The court should have regard to the fluidity and malleability of recollection and memory over time and the likelihood of engagement in civil litigation subjecting memories to powerful biases, in particular where the litigation is emotionally charged (Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013]; Onassis v Vergottis [1968] considered). In the instant case, bearing in mind the nature of the claim, the time over which it had evolved, and the way it had been advanced, the oral evidence should be treated with particular care and with a degree of scepticism unless supported by documentary evidence or inherent probability. The claimant was not a credible or reliable witness (paras [97]-[106]).
3. (3) On the evidence, the claimant failed to show on the balance of probabilities that there was any agreement for the making of mutual wills (paras [118]-[132]).
4. (4) The claimant failed to show a contract to make and not revoke a will in terms of the 2007 will (paras [133]-[135]).
5. (5) The claimant failed to establish a case of fraudulent calumny. In particular she failed to establish that a false representation had been made by the second defendant to the deceased that she knew to be untrue or was reckless as to its truth for the purpose of inducing the deceased to alter the 2007 will or that any false representation made induced the deceased to change her will (paras [139]-[158])
6. (6) The claimant failed to establish any case of undue influence in respect of the execution of the 2009 will, whether based on coercion or fraud (paras [159]-[160]).
7. (7) The 2009 will was a duly executed, rational will and the claimant failed to raise any real doubt about capacity, and in any event the defendants had established testamentary capacity (paras [162]-[180]).
8. (8) The 2009 will was executed with knowledge and approval (paras [181]-[187]).
9. (9) The presumption of due execution had not been rebutted by any evidence. The 2009 will would be admitted to probate (paras [189]-[192]).

JUDGMENT HHJ CAWSON QC: Introduction [1] This case concerns a challenge to the last will dated 20 May 2009 (‘the 2009 Will’) of the late Jean Eileen Lech (‘Mrs Lech’), brought by her stepdaughter, Anna Myfanwy St Clair (‘Ms St Clair’). [2] Ms St Clair is the daughter, by an earlier marriage, of Mrs Lech’s …

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