Brennan v Prior [2015] EWHC 3082 (Ch)
In the case of Brennan v Prior, François Devillebichot, the son of a French diplomat, died on 3 March 2011 aged 62. He was survived by four siblings and one illegitimate daughter, Chloe, his sole next-of-kin. The relationship between Chloe and her uncles and aunts was described as one of mutual estrangement and immense suspicion.
François was close to Chloe and financially generous to her for most of his life. Chloe claimed François had reassured her that she would inherit his Estate. François appears to have had good relationships with his siblings. His sister Jacqueline nursed him in the final weeks of his life.
François had, in 1999 and 2006, instructed solicitors to prepare draft Wills for him, but neither had been executed. When his health began to decline as a result of cancer in 2009, François’ surgeon encouraged him to put his affairs in order. As a result his sister, Anne, entered into discussions with him about how he would like to leave his Estate.
In January 2011, when François learnt his cancer had become terminal, Anne prepared a draft Will using a pack she purchased from a stationery shop.
On 19 February 2011, two weeks before his death, while in hospital and in the presence of his siblings, François was given the draft Will, which he then executed in the presence of his two brothers who acted as witnesses. The brothers’ evidence was that François read through the Will and discussed its main provisions with them before signing and dating it.
The Will left £100,000 to Chloe, a studio flat in Cannes to Jacqueline in gratitude for her care, and the residue to the four siblings in equal shares absolutely. Perhaps inevitably, Chloe formed the view that the Will was invalid on a number of grounds, including lack of knowledge and approval.
This claim was supported by Chloe’s assertions that the testator knew French succession law and would therefore have known that he could not leave the Cannes flat solely to his sister, ignoring Chloe’s forced heirship rights, and that he had intended his Estate to pass to her under the intestacy rules.
Mark Herbert QC, sitting as a Deputy Judge in the Chancery Division, found that:
- The circumstances were “undoubtedly suspicious”, but on the balance of probabilities and taking into account the circumstances of the case, François was likely to have known and approved the contents of the Will.
- François knew he had left Chloe £100,000, which he regarded as enough, Jacqueline the Cannes flat, his siblings the residuary estate. There was nothing intrinsically irrational in the provisions of the Will, it was duly executed by a testator with capacity, and the evidence was that François knew, in general terms, its effects.
- The siblings did not need to show that François appreciated all the ramifications of the Will – either the “huge” effect it would have on Chloe or the legal ramifications of the legacy of the Cannes flat. “The law does not require a testator to be shown to have knowledge and approval of every effect and consequence of his Will”.
To admit a Will to proof, the Court must be satisfied that the testator understood what he was doing and its effect so that the document represents his testamentary intentions. It is for the party seeking to propound the Will to show that the testator understood his Will.
Where a Will was executed in accordance with the formalities set out in section 9 of the Wills Act 1837 by a person with testamentary capacity there is usually a presumption the testator knew and approved its contents. Further, a “very strong” presumption exists where the Will was prepared by a solicitor and read over to the testator before execution.
A party seeking to propound a Will may not be able to rely simply on due execution and capacity where the circumstances surrounding its preparation or execution “excite the suspicion of the Court” – where, for instance, the Will was drafted by a person who benefits under it, or contains complex provisions which the testator was unlikely to understand.
A party seeking successfully to challenge a Will must produce evidence of circumstances which leaves the Court not satisfied that, on the balance of probabilities, the testator understood its nature and effect, and sanctioned the dispositions it made.
Cautious about challenges
As a matter of policy, the Court is cautious about accepting such challenges. Wills frequently give rise to feelings of disappointment for would-be beneficiaries which can lead to contentions that the Will did not reflect the testator’s true wishes. If judges were too ready to accept such contentions the principle of testamentary freedom could be undermined.
The Court will scrutinise all of the ‘suspicious’ circumstances in connection with a disputed will when dealing with want of knowledge and approval allegations.
Things which may raise suspicion may include:
- The Will is homemade and no professional advice has been sought;
- The Will contains spelling mistakes and/or uses language which would not have been used or understood by the testator;
- The Will contains untrue statements and/or contains features which are uncharacteristic for the testator;
- The Will contains a radical change in dispositions made without a rational explanation and/or generally the dispositions cannot be rationally explained;
- The relationship of the beneficiary to the testator was not close;
- The witnesses to the Will were not sufficiently independent;
- There is evidence of the beneficiary having acted dishonestly, suspiciously or against the interests of the testator and/or having played a central role in the making of the Will;
- Any unusual behaviour of the testator at the time the Will was made;
- The testator lacked testamentary capacity and/or there is evidence generally of the testator’s mind failing;
- The contents of the Will were read or explained to the testator, particularly where the Will is complex because of the number of potential beneficiaries or the nature of assets in the estate.
If there is proof of testamentary capacity and due execution, then knowledge and approval will normally be presumed, but ultimately it will depend on the evidence and circumstances in each case.
In cases where the Will has been drafted by a solicitor, it will be extremely difficult to argue that a testator did not understand and approve the contents and therefore, although these claims are on rise, it is by no means an easy route for disgruntled family members looking to challenge the validity of a Will.
Costs
Both the Executors and the siblings sought orders for costs against Chloe on the indemnity basis, due to her allegations of misconduct and perjury. The costs of the Executors were said to be in the region of £87,000 with the siblings’ costs being considerably more.
The Executors asked the Court to order that their costs be paid as a priority from Chloe’s legacy under the Will with the siblings’ costs to be paid from the balance. The Judge agreed and the defendants’ costs were awarded with a proportion of these payable on the indemnity basis.
During the costs assessment proceedings confusion arose as to whether Chloe’s liability for costs was to be limited to the £100,000 legacy under the Will. The matter was referred back to the High Court who confirmed that no such limitation applied. Chloe remained liable for the entirety of the defendants’ costs notwithstanding the fact that these would significantly exceed the size of her legacy under the Will and would result in her facing severe financial difficulties to pay the debt.
This case is a stark reminder that costs in probate actions will not generally be paid from the estate. This is a common misconception. As we see here, the usual rule will apply and costs will be ordered against the unsuccessful party, often with detrimental effect. Had Chloe sought professional legal advice at an early stage she would no doubt have appreciated the costs implications of proceeding with her claim and raising spurious allegations against the defendants.
How Nelsons can help
Kevin Modiri is a Partner in our Dispute Resolution team, specialising in inheritance dispute claims.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.