Re Devillebichot; Brennan v Prior & ors [2013] EWHC 2867 (Ch)

Analysis

Francois Devillebichot (Francois) died on 3 March 2011. He made a will dated 19 February 2011. The proponents of the will were four of the defendants, while the claimant Mrs Chloe Brennan was Francois’ only child and sole heir under the intestacy rules. The will left £100,000 to Chloe, a studio flat in France to his sister Jacqueline and the residuary estate to his four siblings. After inheritance tax the net estate was £450,000.

Chloe alleged that her father was happy to die intestate in the knowledge that she would inherit his entire estate. Prior to the contested will he had never made a will but had made draft wills in 1999 and 2006. For a number of years Chloe had suffered from both cervical cancer and multiple sclerosis.

Francois never married and separated from Chloe’s mother when Chloe was young. After Francois’ death Chloe was forced to be DNA tested to prove her claim to be his daughter as the family resisted her claim. Over the years Francois gave her various gifts: £15,000 as a house deposit, mortgage payments whilst she was ill and £40,000 to clear her debts.

Francois had four siblings: Anne, Jacqueline, Lucile and Philippe. Andrew and Anthony Prior were his cousins. He stayed with Jacqueline for four months in 2009 when he broke his leg and he stayed with her when not in hospital during the last few weeks of his life.

Francois compartmentalised his life with his siblings never visiting him at home and Chloe only meeting her aunts and uncles once. As a teenager Chloe lived with him for a few years.

Francois was a heavy drinker and smoker. Following a diagnosis of cancer in December 2009 he had his voice box removed and could only speak a few words at a time. The will was made by Anne asking him questions and him nodding or giving short answers. Initially the amount left to Chloe was left blank as he was undecided. It was then finalised and witnessed when he was in hospital by Anthony and Andrew Prior and it was then that Andrew first learnt that Francois had a child. Francois said ‘hundred’ to indicate the legacy should be £100,000 to Chloe. Francois could accurate tell Anthony and Andrew the value of various parts of his estate.

Chloe challenged the will on four grounds: lack of due execution, lack of capacity, lack and knowledge and approval and undue influence. She relied on inference and circumstantial evidence. Chloe acted in person and therefore did not rigorously cross examine the witnesses. She claimed the two witnesses were not present when the will was signed but without any evidence to justify this assertion. Chloe’s husband wrote to Anthony to state that he had viewed CCTV footage from the hospital which showed Anthony had not entered or left the hospital on the day of the will signing. This was a lie as there was no footage although the first time Chloe admitted this was in the witness box.

A GP saw Francois a week before the will was signed and felt that he had capacity. The hospital records showed that he was mentally alert.

Held (dismissing the claim):

1. (1) The burden of proof lies with the defendants. As Chloe was inexperienced in legal matters scrutiny needs to be given to the defendant’s evidence even where it has not been challenged.
2. (2) The evidence of Anthony and Andrew Prior is accepted – Francois did execute the will.
3. (3) Francois was capable of understanding he was making a will and everyone with a potential claim on his bounty was mentioned in the will. Therefore he had testamentary capacity.
4. (4) The draft wills demonstrate that Francois knew in general terms the nature and effect of a will. The evidence shows that Francois knew and understood in February 2011 that he was making a disposition of his property to be given away on his death.
5. (5) The fact that the will was prepared by family members who benefit under it raises the suspicion of the court. It is surprising that Anthony Prior having been a magistrate for 20 years did not suggest engaging a solicitor to make the will.
6. (6) The golden rule for dealing with elderly or vulnerable testators is not a rule of law but does represent best practice.
7. (7) The structure and content of the will do not raise any particular suspicion. It is not intrinsically irrational for a testator who has been historically generous to his adult daughter to divide his estate between his daughter and siblings and give priority to the sibling who gave him the most assistance in his later years. It is not irrational or suspicious that Francois has divided loyalties all his adult life and recognised this in his will.
8. (8) The law does not require a testator to be shown to have knowledge and approval of every effect and consequence of their will but rather satisfactory evidence that he knew and approved the content of the will. It is unnecessary for the siblings to show that Francois fully understood the ramifications of his testamentary dispositions.
9. (9) There is clear evidence of persuasion to make the will but no evidence of coercion. Therefore undue influence was not used to procure the will.

JUDGMENT MARK HERBERT QC Introduction [1] This is a probate action. It relates to the estate of François Anthime Devillebichot, whom I shall call François and who died on 3 March 2011. There is only one potential will in dispute, dated 19 February 2011, less than two weeks before François’s death. The proceedings are somewhat …

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