Paynter & anr v Hinch [2013] EWHC 13 (Ch)

Analysis

>The defendant (Frank) obtained probate of his late mother’s will dated 26 July 2004 (Abbie and the 2004 will). The 2004 will appointed Frank sole executor of Abbie’s estate, which was bequeathed to Frank absolutely.

The claimants (Stephen and Victoria), Abbie’s other surviving children, challenged the validity of the 2004 will on the ground that their mother did not know and approve its contents. They sought revocation of the grant of probate made to Frank and a grant in solemn form of a will dated 24 January 1999 (the 1999 will), by which Abbie’s residuary estate was divided equally between the parties.

Abbie had moved to the North East of England in 1996. When the 1999 will was executed, Victoria had lived just two miles from Abbie and had visited her practically every day. At some point in 1996, Frank had given up his job and moved into Abbie’s house to act as her full-time carer – accordingly he had, at the time of the 2004 will’s execution, been Abbie’s sole carer for some eight years. Victoria had left the North East in 2001 or 2002, but it was common ground that the claimants had kept in contact with their mother and that Abbie remained on good terms with both of them.

Held (dismissing the claim):

1. (1) The circumstances were not such as to excite the suspicion of the court, and, accordingly, the presumption arising from due execution prevailed:
2. i. The instruction of a will-writing firm, rather than the draftsman of the 1999 will, was not suspicious. Abbie had used various legal professionals throughout her life and the will writers may well have offered a more competitive service. In any case, there is no evidence that Frank knew of the instruction (paras 61-62).
3. ii. The terms of the 2004 will were extremely straightforward and there was clear evidence, provided by both medical practitioners and anecdotal evidence from independent witnesses, that Abbie retained her mental faculties (paras [63]-[67]).
4. iii. There was no evidence that Frank was tyrannical or that he exercised any improper influence over Abbie (paras [68]-[70]).
5. iv. The incorrect date of birth on the 2004 will could have been a simple typing error, unnoticed by Abbie (paras [71]-[72]).
6. v. While it is true that the draftsman did not read the 2004 will over to Abbie, the terms were not complex and so this omission did not arouse the court’s suspicion (paras [73]-[74]).
7. (2) The words used by Abbie in relation to her jewellery at the time of execution were precatory and therefore had no effect on the 2004 will’s validity (paras [77]-[79]).
8. (3) The doctrine of partial knowledge and approval (per Peter Gibson LJ in Fuller v Strum [2002] WTLR 199 at 36) did not apply in relation to the jewellery. Apart from all other considerations, it was difficult to see how partial knowledge and approval could apply where the relevant clause would have been omitted rather than added to the will (para [80]).

JUDGMENT JUDGE BEHRENS: 1. Introduction [1] This is a probate action involving the devolution of the estate of Abbie Hinch (Abbie) who died on 6 April 2007. Abbie had four children three of whom are parties to this action – Stephen Paynter (Stephen), Victoria Darling (Victoria) and Francis Arthur Hinch (Frank). The fourth child (Anthony) …

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