Case No: A3/2007/2273
Neutral Citation Number: [2008] EWCA Civ 712
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS DISTRICT REGISTRY, CHANCERY DIVISION 
(HIS HONOUR JUDGE LANGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 22nd May 2008

Before:

LADY JUSTICE ARDEN DBE
LORD JUSTICE LLOYD
and
LORD JUSTICE LAWRENCE COLLINS
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Between:

	MARTIN
	Appellant	
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BROWNE & ANR	
Respondent	

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Mr J Holmes (instructed by Messrs Gordons) appeared on behalf of the Appellant.

Ms S Richardson (instructed by Howard Cohen & Co) appeared on behalf of the Respondent.
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Judgment

Lord Justice Lawrence Collins:

1.	This is an appeal from a judgment of HHJ Langan QC sitting as a High Court judge in Leeds and given on 7 September last year.  He gave summary judgment in favour of the claimant Irvin Martin who is the respondent on this appeal in his probate action against his half brother and half sister, Desmond Browne and Carment Browne, who are the appellants on this appeal.  

2.	The appellants had obtained a grant of probate of the estate of Mrs Albertha Martin, their late mother, on the basis that she died intestate.  The probate action sought a declaration that Mrs Martin’s will which was executed on 28 September 1983 was her last will and testament.  It sought revocation of the grant to the appellants and a grant in solemn form to the respondent’s solicitor who was the attorney for the executor named in the will, Ruth Bundey.  In 1983 Ruth Bundey was an assistant solicitor with Mrs Martin’s solicitors Howard Cohen and Co, and she had prepared the will.

3.	The underlying issue between the parties was whether Mrs Martin had destroyed her will.  This is an unfortunate family dispute.  Mrs Martin died on 8 January 2006 at the age of 74.  She had eleven children, one of whom, Tony Browne, predeceased her in tragic circumstances.  The only substantial asset in her estate was the house in Leeds at 42 Brudenell Mount which she had bought in 1974.  In her will she left the house to two of her sons, Irvin Martin, the respondent, and his step brother Paul Browne.  Six of the other children were to share in her furniture, and they and the respondent and Paul shared the rest of the estate.  The other three children, Loreen and Diane and Tony, got nothing.  

4.	The appellants maintain that Mrs Martin revoked her will with the consequence that the estate, including the house, has to be divided among the ten surviving children.  

5.	The house is worth between £160,000, which is the appellant’s valuation, and £200,000, which is the respondent’s valuation.  The rest of the estate is about £40,000.  The respondent is legally aided.  The appellants have already incurred costs of some £25,000 and it is likely that if the case were to go to trial the aggregate costs of the whole litigation might amount to a sum equivalent to half the value of the estate.  

6.	I come to the grant and the subsequent correspondence.  

7.	On 16 January, eight days after Mrs Martin died, the appellants made an application for a grant of letters of administration.  In support of that application they represented that Mrs Martin died without leaving a will.  The grant was made to them out of the Leeds District Probate Registry on 31 January 2006.  Shortly afterwards, but without knowledge of the grant, Howard Cohen & Co, who held an original will, wrote to all the beneficiaries to ask them whether they were aware of any later will.  

8.	Wilsons were the solicitors then acting for the appellants.  They wrote on 14 February 2006 to Howard Cohen & Co to say that the appellants had already obtained a grant.  

9.	After Howard Cohen & Co had questioned the grant in correspondence, Wilsons said that their instructions were firstly that Mrs Martin had asked their clients some eight or nine years previously, ie in about 1997 or 1998, about how she should obtain her will from Howard Cohen & Co and shortly thereafter they saw her in possession of the original will, which was typed not copied on slightly discoloured paper and with original ink signatures.  They were sure that it was indeed the original will.  Secondly, they said Mrs Martin in the presence of members of the family tore up what appeared to be an original will.  

10.	After some further correspondence, mainly about whether the appellants were entitled to change the locks on the house, the present proceedings were issued on 19 July by the respondent, as I have said, seeking revocation of the grant on the basis of the existence of the will.  Paul Browne, the half brother to whom the house had also been left, supported the proceedings by the respondent.  

11.	The original case for the appellants was that Mrs Martin had destroyed the only original will and indeed that remains technically the only pleaded case.  At a directions hearing before HHJ Kaye on 21 July 2006 counsel for the appellants said that if the will held by Howard Cohen & Co was the original will that would be the end of the matter.  It is now said that this was said without instructions.

12.	The defence and counter claim dated 25 August 2006 pleads: 

“4. In 1988 one of the late Mrs Martin’s children, Tony Browne, was murdered and Sharon Roberts and another defendant were convicted of his murder.  In about 1995 an application for permission to appeal was made on behalf of Sharon Roberts. Ruth Bundey [and I interpose to say again that she was the solicitor who prepared the Will] acted for Sharon Roberts and appeared on television commenting favourably on the successful application for permission to appeal.  The late Mrs Martin saw the broadcast and was distressed and angry both at the grant of permission to appeal and especially at the involvement of her own solicitor, Ruth Bundey, in the application.  The late Mrs Martin ceased to repose trust and confidence in her solicitors.  Consequently the late Mrs Martin wanted no contact with Ruth Bundey, her prospective executrix, or her firm.  Mrs Martin’s feelings were exacerbated when a retrial was ordered and Sharon Roberts’ guilty plea to manslaughter was accepted and Sharon Roberts was released on account of time already served in prison.  The strong feelings of the late Mrs Martin were shared by the Defendants.

5. The late Mrs Martin instructed Howard Cohen & Co to return to her all of her papers and had to take legal action to obtain those documents.  The late Mrs Martin thereby obtained the 1983 Will.  For the avoidance of doubt she obtained possession of the original and not a copy of the 1983 Will.  After obtaining possession of the 1983 Will the late Mrs Martin raised the subject of making a new Will occasionally and trying to discuss this with the First Defendant her eldest son but he tried to avoid the prospect of his mother’s death and put off discussion.

Destruction and revocation of 1983 Will

6. In about the summer of 2002 the late Mrs Martin did speak to the First and Second Defendants at her home about her wishes after death.  The First defendant was her eldest son and the Second Defendant lived in London but was the only child to keep a room at 42 Brudenell Mount.  Her youngest children, Paul and the Claimant, were adults and had their own homes by 2002 (ie nineteen years after the 1983 Will was made).

7. On that occasion the late Mrs Martin inter alia told the First and Second Defendants about the 1983 will and her feelings regarding Ruth Bundey and Howard Cohen & Co and tore up the original 1983 Will in front of them and put the pieces of paper into a bin with the intention of destroying and revoking the 1983 Will.  By reason of these matters the 1983 Will was revoked by destruction pursuant to Section 20 of the Wills Act 1837.  The late Mrs Martin also expressed the wish that all of her children should share equally in her estate.”

13.	On 17 May 2007 the respondent applied for summary judgment with a return date of 22 June 2007.  The application was made on the basis that Mrs Martin only executed one copy of the will and the only executed copy of the will was at all times between its execution and the death of Mrs Martin held by Howard Cohen & Co and consequently Mrs Martin could not have destroyed the will.  

14.	It was in support of that application that the respondent’s evidence was served.  The question whether there had been a duplicate will was not then in issue but it seems that this question was dealt with in the evidence because the question of duplicate wills had originally emerged in the February 2006 inter-solicitor correspondence.  That is because Howard Cohen & Co wrote separately on 1 February 2006 to Carment Browne because she may have had access to the house, and they asked her whether she had found a will dated “after 28 September 1983” among Mrs Martin’s papers.  In other words they were asking whether the 1983 Will had been revoked by a will which she had found.  However the then solicitors for the appellants, Wilsons, misread the letter from Howard Cohen & Co because they said that the letter to Carment Browne had asked whether she had found “a will dated 28 September 1983” and took this to mean that a duplicate will had been prepared because Howard Cohen & Co had already made it clear that they held a will.  Therefore Wilsons asked Howard Cohen & Co if the will had been prepared in duplicate.  Howard Cohen & Co replied to say that the will would not have been made in duplicate as it was not their practice to do so, although it was possible that she had a  photostat copy of the original which they did usually send clients following execution.  

15.	So far as material the evidence for the respondent on the application for summary judgment was as follows.  

16.	Mrs Bundey said in her witness statement:

“Whilst I was at Howard Cohen & Co it was not the firm’s practice to draft Wills in duplicate form. The usual practice was for the Will to be executed in single form with the original document being retained by the firm and a copy forwarded to the client in a pre‑printed brown envelope stating, amongst other things where the original will was kept. In the whole of my career I have never prepared a will in duplicate form. I have never heard of such a thing being done. I can say with absolute confidence that Mrs Martin did not execute her Will in duplicate form.”

17.	A witness statement was also given by Sharna Poxon, the practice manager of Howard Cohen & Co, who said that the relevant file was opened in the name of fee earner RB, namely Ruth Bundey, and from the date and the fee earner, she assumed that this was the file relating to the drafting and execution of the will.  
18.	Mr Howard Cohen also gave a statement on 16 May 2007 and he said that he accepted as a matter of law that it was possible for a will to be revoked if a duplicate original will was destroyed with the requisite intention but it had never been the practice of Howard Cohen & Co to prepare and execute duplicate wills.  He said that Ruth Bundey had informed his firm that she had never in her professional life prepared a will so that it could be executed in duplicate by a client or allowed a client to execute a duplicate of a will.

19.	Because at that time the whole thrust of the appellants' case was that the document which Howard Cohen & Co have is not the original will, the appellants then applied for forensic examination of the will held by Howard Cohen & Co in an application dated 8 June 2007.  In support of that application the first appellant, Mr Desmond Browne, said that “the essential issue in the claim is whether a will executed by my late mother Albertha Martin on 28 September 1983 still exists or whether, as is my case, it [and then he said] or possibly a duplicate of it” was destroyed by my mother by way of revocation of it in the summer of 2002.  He also said that he had examined the will held by Howard Cohen & Co, which he said he believed was not an original but was a copy.  

20.	At the return date of both applications, that is the application for summary judgment and the application for forensic examination, a consent order was agreed pursuant to which firstly the appellants formally admitted that Mrs Martin had executed a will in 1983 and that the signature on the document dated 28 September 1983 was her signature.  Secondly, it was agreed that the parties’ solicitors would agree the identity of a suitably qualified expert to report on three issues; firstly, whether any manuscript signatures or other manuscript markings on the will were created by the application of pen to paper or whether they were copies of originals howsoever created.  Secondly, whether the typing on the will was created by the application of a typewriter or other form of originating machinery to the paper or whether it was a copy of the original.  Thirdly, whether on a balance of probabilities the will was the original of the will executed on 28 September 1983, together with reasons.

21.	It was also agreed, and this was originally of some considerable significance, that if the expert reported that on a balance of probabilities the will was the original of the will executed on 28 September 1983 then the respondent would be entitled, on giving not less than two working days notice in writing to the appellants, to apply to the court for judgment to be entered on the claim and counterclaim without a hearing in terms of the draft order annexed to the consent order.  The effect of this was, it seems, that if the document held by Howard Cohen & Co was an original then Irvin would be entitled to judgment. 

22.	The parties agreed that the appellants would instruct Dr Audrey Giles, the extremely well known expert in this field. She reported that the will was an original document bearing original typewritten text and signatures in original black ballpoint pen ink.  She also reported that the will was produced on paper manufactured in the relevant period and that typewriters equipped with carbon film ribbons were common in the 1980s.  However she did not give an answer to the question whether on the balance of probabilities the will was the original will executed on 28 September 1983.  She said that although it was consistent with having been produced in 1983, the scientific evidence as to whether it had been produced then was inconclusive.  It seems to me that what happened is that she misunderstood her instructions because no one had ever suggested that the document was executed other than in 1983, she was simply being asked to give an opinion on whether the document was an original document.  

23.	I see very considerable force in the argument for the respondent that by agreeing to the terms of the draft order for the instruction of the expert, the appellants originally accepted that the will was not executed in duplicate.  Their agreement that judgment be entered on the claim and counterclaim if the single will lodged at court was the original will must have excluded the possibility that this will was revoked by destruction of a properly executed duplicate.  But despite requests from the respondents’ solicitors that the appellants go back to Dr Giles those requests were refused and consequently the respondents’ application for summary judgment was renewed.  

24.	No further evidence was submitted by the respondent but further evidence was submitted on behalf of the appellants in support of the defence and counterclaim, in particular in the first appellant’s witness statement of June 2007.  He said that in the summer of 2002 Mrs Martin had asked him to go down one weekend and she had also sent for Carment Browne to come up from London.  Mrs Martin spoke to them about the will she had previously made and how she did not trust the solicitors and especially Mrs Bundey and Howard Cohen & Co and he went on: 

“Mum had an original Will, prepared in 1983 by Cohen’s.  It was folded side to side and on heavy cream coloured paper.  The typing was old and the signatures were shiny black ink, like a fountain pen. One of the pages had a round red stamp on the front, like a mark of a seal.  I can remember that quite clearly.  Mum said to us that all her children had left and that we must share everything equally amongst us.  Carment and I told her that she could make another Will but she trusted us and not solicitors or outsiders.  Mum then tore the Will up and put it in the bin that she had at the side of her chair.  I know Mum wouldn’t have discussed this with other family members, as she never involved them in her private business.”

25.	Carment Browne, the second appellant, said in her witness statement of the same period that she:

“…attended with Desmond upon my mother in the summer of 2002 when my mother destroyed her will.  I am in no doubt that what I saw was the original will.”

26.	Again, by that stage it is clear that the case had proceeded on the basis that the only real question was whether the will held by Howard Cohen and Co was the original will.  

27.	When the matter came before HHJ Langan QC in September 2007 it was common ground that Howard Cohen & Co held an original will.  The evidence went only to two matters.  The evidence on the appellants’ side was that Mrs Martin had destroyed an original will in their presence.  The evidence on the respondent’s side was that firstly Ms Bundey had prepared the will and secondly that neither she nor the firm ever produced duplicate wills.  

28.	It seems to have become common ground that even though the pleaded case was that Mrs Martin had destroyed the one and only original will, summary judgment would not be an appropriate remedy if there were an arguable case that Mrs Martin had executed the will in duplicate.  It was also common ground between the appellants and the respondent that in order for there to have been a revocation of a will by destruction there must have been destruction of the original with the intention of revoking the same under Section 20 of the Wills Act 1839 and that it was possible for a will to be revoked if a duplicate original was destroyed with the intention of revoking the will.

29.	The essence of the judge’s judgment is set out in paragraphs 14 to 18 of his judgment.  After expressing surprise that the question of duplicate wills had been raised again in view of the fact that it had been dealt with previously and effectively removed as an issue by the agreed order of forensic examination, in essence what he decided was as follows:

(i)	Firstly, the possibility that wills were executed in duplicate was in the circumstances in the case so fanciful that it would be quite wrong to allow the case to proceed to trial for further examination of that question.  
(ii)	Secondly, it went without saying that execution of duplicate wills would be highly unusual although not impossible and he had never come across a case of duplicate wills and doubted very much whether many lawyers practising in the field of property law had done so. 
(iii)	Thirdly, the evidence of Ms Bundey was that she had never arranged for duplicate wills in her career and it was an unequivocal statement of a negative proposition and the defendants had not produced a shred of evidence to support the case that the will was executed in duplicate.  
(iv)	Fourth, there was no basis for an argument that it would be appropriate for her, Ms Bundey, to attend court for cross examination in order to see whether her recollection might be shaken, since it was not a matter of recollection at all.  
(v)	Fifth, he rejected the suggestion that the attesting witnesses ought to be examined because the defendants had had ample time to try to trace them and to see whether they had any recollection of a will being executed in duplicate.
(vi)	It might be that the defendants such as the appellants saw Mrs Martin tear up a document which they honestly believed to have been an original of a last will or it might be that they were dishonestly constructing a case and to support what was said in their defence, and which of those views was right it was not possible to determine.

(vii)	Seventh, the defence was quite hopeless and it would be speculation of a high degree to suppose that Mrs Martin might have executed a copy as an original document.

30.	Following the judgment for which permission to appeal was refused in this court, Sir John Chadwick gave permission to appeal on the basis that it was arguable that, in an understandable desire to save court time and costs the judge fell into the error of resolving on an application for summary judgment a disputed question of fact on written evidence on which the appellants were entitled to have tested at trial.

31.	On this appeal, it is common ground that summary judgment is appropriate if the defence has no real prospect (as opposed to a fanciful) prospect of success.  The court must not undertake a mini trial on the witness statements and documents, but the appellants have to establish more than a fanciful case that duplicate wills were created in 1983.  

32.	In his most attractive argument, Mr Holmes said that an injustice had been done to the appellants.  They had seen their mother tear up the will in 2002 and they had been disbelieved without the benefit of a trial.  Mr Holmes said that it was wrong of the judge to reject the evidence of Mr Desmond Browne.  He had seen an A3 document on engrossment paper and I interpolate at this point to say that no objection was made to what seemed to be a new piece of evidence namely that the document was an A3 document which of course would give added force to the contention that what he had seen was some form of original document.  Mr Holmes emphasised that Mr Browne had given clear evidence of what had happened and he should be entitled to test Ms Bundey’s evidence at trial.  The judge had been wrong to say that the appellants had not produced a shred of evidence to support the proposition that the will was executed in duplicate.  The description of what Mr Browne had seen was a description of an original and not a copy and therefore if the will in the safe was an original and the will destroyed in 2002 was also an original then the 2002 document must either have been a duplicate or a later will.  

33.	Mr Holmes said that the judge had wrongly refused to admit the possibility that Mr Browne might simply be right. In order properly to decide the claim Mr Holmes said the court would need to decide whether or not Mr Browne was right and how, if he was, that evidence could be reconciled with the evidence of Ms Bundey. He was wrong simply to accept the evidence of Ms Bundey and to brush aside the evidence of Mr Browne, and order summary judgment.

34.	In my judgment the dispute of fact for summary judgment purposes is not whether the appellant saw Mrs Martin tear up a document but whether the appellants have a real prospect of showing at trial that the document was an original, properly executed version of the 1983 will.  I am satisfied that the judge was right to find that there is no real prospect of the appellants establishing that Mrs Martin must have torn up an original duplicate of her 1983  will.  There is nothing in the points raised which could begin to support an argument that at trial there could be a finding that there was a duplicate will.  The evidence of Ms Bundey, Mr Cohen and Miss Poxon taken together shows that the evidence is that Ms Bundey prepared the will and did not prepare it in duplicate.  There has been no suggestion that there has been any lie.  Is there any real possibility of establishing that her evidence is mistaken?  

35.	A number of points are taken to show that the evidence does not in fact establish that the will was not prepared in duplicate.  First it is suggested that the evidence does not show that Ms Bundey herself drafted the will.  Three points are made, firstly that she does not inexplicitly say that she drafted it, secondly, even if she took instructions for it the actual drafting might have been carried out by someone else, and third, at the time, she was only a trainee.  The final point is a simple error, she was in fact qualified in 1980.  There is nothing in the other points.  

36.	The appellants accept the implication to be drawn from her statement that she did draft it and I have no doubt that that is what she and Howard Cohen are saying and the contemporaneous file does indicate that she was in charge of the matter and her initials appear on the will.  

37.	The second point is that her recollection may be suspect because her experience of the drafting of wills is and has for some years been limited or non existent and that, in those circumstances, it would not be surprising if she were now unable to recall a technical point about the use of duplicate wills.  There is nothing in this point, Ms Bundey says she has never in the whole of her professional life prepared a will in duplicate form and I cannot see that cross examination could possibly take the matter further to the point of permitting the court to find that the appellants had shown that a duplicate will had been destroyed in their presence.

38.	The third point is that Ms Bundey says nothing about the physical characteristics of the will itself or the circumstances in which the will was executed.  The answer to this point, in my judgment, is that it does not relate to any relevant issue on the application for summary judgment. 

39.	The fourth point is some suggestion that the wording of Ms Bundey’s statement leaves open the possibility that Mrs Martin executed a draft or a copy.  Not only is this suggestion not borne out by her statement but it is in any event inconsistent with the appellants’ case.  

40.	A further point was made in the skeleton argument but not developed orally that the file card shows that the file was open from 1983 to 1984 and Mrs Martin may have made another will which Ms Bundey has now forgotten about, but this is an entirely different case for which there is absolutely no evidence and is inconsistent with the evidence of Mr Desmond Browne.

41.	Finally, Mr Holmes complained of a passage in the judge’s judgment where he said that there were two possibilities in respect of Mr Browne’s evidence, either that he saw Mrs Martin tear up a document which he honestly but by implication mistakenly, believed to be an original last will or that he was dishonestly constructing a case to support the defence.  Mr Holmes said that in effect the judge said that he was disbelieving Mr Browne.  I do not think that this is a fair criticism.  The result of the judgment is that there is no arguable case that what Mr Browne saw was a duplicate executed will.  His own witness statement of 17 November 2006 shows that it is easy to make a mistake when looking at a formal legal document.  In that witness statement he claimed that he had examined the will held by Howard Cohen and Co twice and did not believe that it was an original but was instead a copy.  It is now common ground that it was indeed an original and that Mr Browne was mistaken. 

42.	Consequently, I am wholly satisfied that the judge was right to find that the prospects of the appellants establishing that there was a duplicate will were fanciful and not real and I would therefore dismiss the appeal.

Lord Justice Lloyd:

43.	I agree that the appeal should be dismissed for the reasons given by my Lord.

Lady Justice Arden:

44.	I also agree. The legal requirements for a valid revocation of a will are strict.  Revocation is only achievable in a limited number of ways and it is common ground that in the events which have happened the appellants would have at trial to show that the testatrix had destroyed a duplicate will.  It is not enough to show that she intended to revoke her will unless she achieved revocation in one of the ways provided for by law.  Thus the appellants have to bring their case within a very narrow gateway.  The appellants’ evidence is that they saw their mother destroy her 1983 will.  Miss Bundey, whose initials appear on the 1983 will, which is accepted now as the original will is confident that the testatrix did not execute wills in a duplicate form.  This is not a simple case of the appellants’ word against that of Mrs Bundey, they also have to meet the high level of improbability of there being duplicate wills in the light of all the circumstances described by Lawrence Collins LJ including the lack of any reason for the testatrix to take this highly unusual course.  I note that she gave no indication in her lifetime that she had done so according to the evidence.  There is also the possibility of there being some mistake on the appellants’ part as to the details of the document which they briefly saw.  I too do not consider that the appellants have shown their case that they witnessed the destruction of a duplicate will has any real prospect of success.

Order: Appeal dismissed