Griffin v Wood (High Court, Chancery Division, 13 September 2007)
This is a relatively rare case of the summary judgment procedure, which has only been applicable to probate claims since October 2000, being used in a probate claim; even more so given that it was successful. Although, given that history, it was “understandable to start from the assumption that probate actions should go to trial”, probate actions should, in Mark Herbert QC’s view, sitting as a deputy judge of the Chancery Division, “be approached in the same way as other claims”.
Having initially asserted that the will was invalid by reason of a rebuttable presumption that G, by being involved in the preparation of the will which primarily benefited herself, had unduly influenced the testatrix (T), W dropped that claim. It was plainly incorrect, “presumptions of undue influence have no place in probate law”. W was allowed to continue with his denial of due execution and also obtained permission to re-amend his defence and counterclaim to put G to proof that T knew and approved the contents of her will.
In support of the former claim, W relied on the fact that the two attesting witnesses had originally said that T had not signed the will in their presence, but then had later changed their testimonies. G appealed and requested that W’s defence and counterclaim be struck out. G successfully relied on the presumption of due execution that followed from the presence of a standard form attestation clause in the will. It was held (following Sherrington v Sherrington [2005] EWCA Civ 326, [2005] All ER (D) 359 (Mar)) that “the strongest evidence” was required to rebut that “extremely strong” presumption. The change in testimony was simply not enough—even on a summary judgment basis.
Furthermore, the re-amended defence and counterclaim was “revealed as exceptionally weak”, showing only that T had changed her will and that G was involved in its preparation. Although “narrowly persuaded” that it was sufficient to throw the burden of proof back on to G (the propounder of the will) the judge found that she plainly discharged that burden as the only alternative scenario was “literally incredible”.
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