header-logo header-logo

Wills and Probate

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”.
Issue: 7308 / Categories: Legal News , Public , Legal services , Wills & Probate
printer mail-details

MOVERS & SHAKERS

Michelman Robinson—Daniel Burbeary

Michelman Robinson—Daniel Burbeary

Firm names partner as London office managing partner

Bellevue Law—Sally Hall

Bellevue Law—Sally Hall

Employment boutique strengthens data protection and privacy offering with senior consultant hire

NLJ Career Profile: Ken Fowlie, Stowe Family Law

NLJ Career Profile: Ken Fowlie, Stowe Family Law

Ken Fowlie, chairman of Stowe Family Law, reflects on more than 30 years in legal services after ‘falling into law’

NEWS
Children can claim for ‘lost years’ damages in personal injury cases, the Supreme Court has held in a landmark judgment
The Supreme Court has drawn a firm line under branding creativity in regulated markets. In Dairy UK Ltd v Oatly AB, it ruled that Oatly’s ‘post-milk generation’ trade mark unlawfully deployed a protected dairy designation. In NLJ this week, Asima Rana of DWF explains that the court prioritised ‘regulatory clarity over creative branding choices’, holding that ‘designation’ extends beyond product names to marketing slogans
From cat fouling to Part 36 brinkmanship, the latest 'Civil way' round-up is a reminder that procedural skirmishes can have sharp teeth. NLJ columnist Stephen Gold ranges across recent decisions with his customary wit
Digital loot may feel like property, but civil law is not always convinced. In NLJ this week, Paul Schwartfeger of 36 Stone and Nadia Latti of CMS examine fraud involving platform-controlled digital assets, from ‘account takeover and asset stripping’ to ‘value laundering’
Lasting powers of attorney (LPAs) are not ‘set and forget’ documents. In this week's NLJ, Ann Stanyer of Wedlake Bell urges practitioners to review LPAs every five years and after major life changes
back-to-top-scroll