Analysis
This was an appeal from a first instance judgment in proceedings relating to the estate of Dean Brunt (Dean), who tragically died aged 35 on 8 December 2007, when he was hit by a train. On 25 June 2008, the first defendant/appellant (Marlene), who was Dean’s mother, obtained letters of administration in relation to Dean’s estate on the basis that he died intestate.
Over ten years later, in November 2018, the claimant/respondent, the deceased’s uncle by marriage (Bob), started the proceedings, seeking to revoke the letters of administration issued to Marlene, on the basis that a purported will dated 2 March 1999 had, he alleged, recently been discovered. Bob sought to propound that will.
The will was not signed by Dean, but was instead signed by a Mr Howard Day on his behalf. Mr Day was a convicted fraudster, and had advised the family over a number of years. There was also evidence of his propensity to produce doctored documents. He was acting for the claimant at the start of the proceedings, until his death on 1 September 2019, by virtue of which he could not be cross-examined at trial. The witnesses to the will were two of Mr Day’s associates. Further it was Mr Day who was alleged to have ‘discovered’ a copy of it in 2018. A duplicate copy of the will was found in October 2019 in exactly the same form save that Mr Day’s signature was different in appearance and the second page of the first will appeared to have been printed separately from the rest of that document.
The will purported to give a one-third share in a family farm belonging to Dean to ‘my brother, Dale, and sister, Venetia’, and left a one-third share in a building indicated as ‘the Old Barn’ to Bob and Valerie, Bob’s wife. Venetia had sided with Bob in the claim and had given evidence on his behalf. The defendants, Marlene and Dale, maintained that the deceased did not have a one-third share in those properties at the time of the purported will, but rather had only had a quarter share, and moreover that the Old Barn was not called by that name in 1999 when the will was allegedly made. Joint experts were instructed on the issue of the authenticity of the will, and both agreed that there was ‘strong evidence to support the proposition that Howard Day did not sign this will in 1999 as purported but at a later date when his writing deteriorated’.
Marlene and Dale defended the claim, and sought declarations that the will was invalid and that Dean died intestate, by way of counter-claim. They alleged that the will was a forgery, and had been created after the deceased’s death, or alternatively, that it was invalid by reason of lack of due execution and want of knowledge and approval.
On 15 July 2020 the Master pronounced the will to be valid, revoked the letters of administration granted to Marlene, and removed her from her role as personal representative. The Master preferred the evidence of the claimant and his supporting witnesses to that of the defendants and their supporting witnesses, but did not in his judgment articulate his reasons for doing so, merely saying that: ‘[I was]… impressed by Venetia as a witness. I do not think she would for one moment associate herself with a fraudulent claim.’ And, in relation to Marlene, that ‘she was a most unimpressive witness’.
The appellants appealed the judgment on a number of grounds, alleging, inter alia, that the judge had erred in the approach he had taken to the consideration of the evidence, failed to take into account the statement of two of the appellants’ witnesses, failed to give due weight to the motives of the various parties involved, failed to take into account various peculiarities in the will, failed to make any finding in relation to the erroneous references to Dean’s ‘one-third share’ and to ‘the Old Barn’, and failed to take into account the expert evidence that a diary entry of Mr Day’s recording the signing of the will had been altered after its initial composition. They also sought permission to adduce further evidence.
Held:
The appeal would be granted, and a retrial ordered. The Master had not adequately explained or dealt with substantial portions of the evidence. He had not properly evaluated and weighed the expert evidence and he did not appear to have assessed the witness evidence against the known facts, ie the ‘highly suspicious’ discovery of the two wills; the involvement of Mr Day, a convicted fraudster; Mr Day’s propensity to the production of forged documents; and the lack of signature by the deceased on his own will. The Master gave no real reason for accepting the claimant’s evidence in support of the will, save that he did not believe that the claimant and his witnesses would engage in such a fraud. He had made no finding as to the erroneous references to Dean’s ‘one-third share’ and to ‘the Old Barn’ in the will. He was required to make a finding of fact on this point. Nor did he appropriately weigh the evidence potentially indicating forgery.
The Master had adopted a ‘flawed approach’ to his consideration and analysis of the evidence, and had in particular relied too heavily on the approach adopted in the case of Re Parsonage [2019]. That case had held that the approach that should be taken to fact-finding was that the court should take ‘as a platform for fact finding reliable contemporaneous documentary evidence’ before adding the ‘known, established or agreed facts… and then build[ing] further with witness evidence which is consistent or compatible with that underlying body of reliable documentary evidence, and which is not tainted’. While there was nothing wrong with this statement of the approach to fact-finding, it was not a prescription suitable for all cases. Nor was it an appropriate approach to adopt in this case, in which all of the contemporaneous documents were challenged as forgeries, and so could not form a proper ‘platform’ for fact-finding. While the judge was under no obligation to refer in his judgment to all of the pieces of evidence and arguments, he was obliged to explain his reasoning in sufficient detail to allow the basis of the judgment to be discerned. He had not done so.
While it is ‘trite’ that an appellate court would rarely interfere with findings of fact by a trial judge, due to the flawed approach that the Master had taken to the fact-finding and the inadequacy of the statement of the basis of his judgment, there was no alternative but to order a retrial. Given that there was to be a retrial, there could be no opposition to the admittance of new evidence. The judge would have admitted the evidence under the principles in Ladd v Marshall [1954] in any case, and he gave the appellants permission to rely on it at the re-trial.
JUDGMENT MR JUSTICE MICHAEL GREEN: Introduction [1] This is an appeal from the order of Master Teverson dated 15 July 2020. In fact, by the order of Mann J dated 2 November 2020, the Appellants’ application for permission to appeal Master Teverson’s order and the appeal itself were directed to be heard together in a …Continue reading "Wrangle v Brunt & anr [2021] WTLR 1143"