Payne & Anor v Payne, Court of Appeal - Civil Division, May 04, 2018, [2018] WLR(D) 277,[2018] EWCA Civ 985

Resolution Date:May 04, 2018
Issuing Organization:Civil Division
Actores:Payne & Anor v Payne

Neutral Citation Number: [2018] EWCA Civ 985

Case No: B2/2015/3929




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/05/2018

Before :




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Between :

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The Appellant and the 1st Respondent appeared in Person

Hearing date: 21 March 2018

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Judgment ApprovedLord Justice Henderson:

Introduction and background

  1. This is an appeal in contentious probate proceedings concerning the estate of the late John Henry Adrian Payne (``the Deceased'') who died on 22 August 2012 aged 74. The Deceased was twice married. By his first marriage in 1959, to Vera Gabriel, he had four children, at least three of whom survived him, including a son also named John Henry Adrian Payne. To avoid confusion, I will refer to the son as ``John Payne'' or simply ``John''. Although the Deceased's first marriage lasted for over 30 years, it ended in divorce, and in March 1997 he married his second wife, Mrs Kim Payne, who also survived him. I will refer to her as ``Mrs Payne''. There were no children of the second marriage, but Mrs Payne has a daughter, Emily Reid, from an earlier marriage.

  2. The Deceased left two wills, or purported wills. The second of these (``the 2012 Will'') was dated 1 April 2012, a few months before his death. It was a typed document, although clearly not professionally drawn. By it, he purported to appoint John Payne and his grandson Thomas Payne (John's son) as his executors, and subject to two pecuniary legacies of £15,000 each to Mrs Payne and to Thomas Payne, he left the residue of his estate to John. There was an attestation clause in substantially standard form, the attesting witnesses being the girlfriend of Thomas Payne and her mother.

  3. There was also an earlier will (``the 1998 Will''), dated 19 May 1998, some 14 months after the Deceased's marriage to Mrs Payne. It was apparently made on a printed form, the Deceased describing himself as ``John Henry Payne'' and giving his address as 41 Braemar Road, Plaistow, London E13. I should mention at this point that only cropped photocopies of the 1998 Will were available when the trial of the action took place before Her Honour Judge Faber in the County Court at Central London in July 2015, and indeed when the appeal came to be heard by us on 21 March 2018, although we then gave a direction which has led to the production of the original: see [39] below. By the 1998 Will, the Deceased apparently appointed Mrs Payne as his executor, and made only one substantive gift, when after standard directions for payment of his death and funeral expenses, and a clause revoking any previous wills, he said:

    ``I give and bequeath unto my wife Kim Payne my property, post office pension, insurance's shares, & any money in my Abbey National account''.

    This clause was placed next to a marginal direction to ``Set out particulars of legacies'', and was completed in manuscript in capital letters after the printed words ``I give and bequeath unto''. Beneath it, there was a printed form of residuary gift, but the recipient of it was left blank.

  4. Under the blank residuary gift, there was a space for the testator's signature, where the Deceased appears to have written his signature ``J Payne'' in the appropriate place. This was followed by a printed attestation clause, which said:

    ``Signed by the above-named testator (testatrix) in the presence of us present at the same time who in his (her) presence and at his (her) request and in the presence of each other have hereunto subscribed our names as witnesses.''

    There were then four dotted lines left to be filled in opposite the words ``Witness'', ``Address'' (two lines) and ``Occupation'' for the first witness, and the same again for the second witness. No separate space was designated for each witness to place his signature, in addition to filling in his name. In this respect, there was a contrast with the space left for the testator's own signature, which was a dotted line opposite the word ``Signature''.

  5. The two witnesses appear to have been Michael Hogwood and Robert Gordon, who were respectively described as a ``security auditor'' and a ``costume designer'', although Mr Gordon's occupation is illegible on the photocopies. Their names, addresses and occupations were inserted in capital letters in the designated places, apparently in different hands, but there were no separate signatures in the sense in which that word is now commonly understood.

  6. Unfortunately, disputes arose within the family after the Deceased's death, and there is a history of bad feelings between John Payne, his son Thomas, and his mother Vera on the one hand, and Mrs Payne and her daughter Emily on the other hand. Matters reached a stage where, in or around May 2013, a number of claims brought by John Payne against Mrs Payne and her solicitor were struck out, and a civil restraint order was made against John Payne as well as orders restraining him from communicating with or harassing his stepmother. There were also allegations of forgery of the 2012 Will, although no charges were pressed following a police investigation.

  7. Eventually, in August 2014, the present action was begun by the issue of a claim form in the Bristol District Registry of the High Court, Chancery Division, seeking proof in solemn form of the 2012 Will. The claimants were John and Thomas Payne, and the defendant was Mrs Payne, the three of them being the only named beneficiaries under the two wills. At that stage, the claimants were represented by solicitors and counsel, and the particulars of claim were settled by counsel. They set out details of Mrs Payne's opposition to the 2012 Will, including the entry of a caveat in August 2013. It was alleged that she had produced no evidence, and advanced no substantive case, to dispute the validity of the 2012 Will, and the claim was supported by signed affidavits from the two attesting witnesses of the 2012 Will purportedly confirming its due execution.

  8. I will need to deal with some aspects of the procedural history later in this judgment, but eventually Mrs Payne put in a defence and counterclaim in which she denied that the 2012 Will had been validly executed, and set out a number of other reasons for treating it with suspicion, although the only plea upon which she expressly relied was lack of due execution. By her counterclaim, Mrs Payne asked for proof in solemn form of the 1998 Will, which she said had been validly executed although she gave no particulars of the circumstances in which it came to be made. Although Mrs Payne was a litigant in person, her defence and counterclaim were clearly drafted with professional assistance, and she had help at various times from counsel instructed by the Bar Pro Bono Unit.

  9. At least two hearings for directions took place before Master Teverson in the Chancery Division in London before the case was transferred by him for trial to the County Court at Central London. The trial took place over three days between 6 and 8 July 2015. The claimants were still represented by counsel (Mr Christopher Jones), but Mrs Payne appeared in person with no professional assistance. The judge heard extensive oral evidence, including from John and Thomas Payne, the two attesting witnesses of the 2012 Will, Mrs Payne and Emily Reid. The judge also heard submissions from both sides, and had a bundle of agreed documents to which various additions were made during the trial.

  10. The judge delivered her oral reserved judgment on 27 August 2015. Unfortunately, the transcript of that judgment has never been approved by the judge, because she had already retired on grounds of ill health before the transcript was prepared. However, the unapproved transcript runs to 94 paragraphs and the general thrust of the judge's findings and reasoning is clear enough, even if there may be points of detail which she would have wished to correct or tidy up. In short, her conclusion was that neither will should be admitted to probate, so the result was that the Deceased died intestate.

  11. In relation to the 2012 Will, the judge found the evidence of Thomas Payne and of the two attesting witnesses to be ``utterly unreliable'', to such an extent as to displace any presumption of due execution that might otherwise have arisen from the apparently regular nature of the attestation clause. She said in the final paragraph of her judgment that she was unable to find that the 2012 Will had been correctly witnessed, or that the Deceased knew and approved its contents. It is unnecessary for me to make further reference to the 2012 Will, because John Payne was refused permission to appeal from the judge's dismissal of the claim by Briggs LJ (as he then was) at an oral hearing on 27 July 2017. Briggs LJ was satisfied that the judge had directed herself correctly on the strength of the presumption of due execution, and that having done so she was entitled to conclude that the presumption was displaced ``by the manifest untrustworthiness of the claimant's witnesses'' (paragraph [26] of his judgment).

  12. In relation to the 1998 Will, the judge recorded that Mrs Payne had been unable to produce a copy of it properly signed by the witnesses, and since she had failed to call either of them to give oral evidence about the circumstances in which it was executed, the evidence was inadequate for her to find that it had been duly attested in the manner required by law. In reaching these conclusions, the judge found that Mrs Payne herself was ``not an entirely reliable witness'' due to changes in her evidence, although these had been ``on less significant issues'' and evidently did...

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