2000/3793

Neutral Citation Number: [2001] EWCA Civ 502
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(Mr Robert Englehart QC 
sitting as a Deputy Judge of the High Court)

								Royal Courts of Justice
								Strand
								London WC2

								Thursday 22 March 2001

B e f o r e:

LORD JUSTICE CHADWICK

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BETWEEN:
CARL FEAR
Claimant/Applicant

AND:

HARTLEY FEAR
Defendant/Respondent

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent did not appear and was not represented

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J U D G M E N T
Thursday 22 March 2001
1.	LORD JUSTICE CHADWICK: This is an application for permission to appeal against an order made on 6 December 2000 by Mr Robert Englehart QC, sitting as a Deputy Judge of the High Court in the Chancery Division in a probate action brought by the applicant, Mr Carl Fear, against his father, Mr Hartley Fear, in respect of the testamentary dispositions of the applicant's paternal grandmother, Mrs Ethel Ruth Fear (to whom I shall refer as Mrs Ruth Fear). 
2.	Mrs Ruth Fear died on 21 May 1991. She had survived her husband, Mr Ivor Fear, and was sole beneficiary under his will. The value of her estate was some £40,000; being, in effect, the value of the flat at 85 The Cedars, near Appleton, Gloucester, in which she and her husband had lived until January 1989. Mr Hartley Fear was the only child of his parents. He and his former wife, Janet, have three children: a daughter, Annette, born in 1962; the applicant, Carl, born in 1967; and a second son, Spencer, born in 1968. Mr Hartley Fear and his former wife separated in or about 1982. 
3.	Mr Ivor Fear and Mrs Ruth Fear made wills in 1985. Mr Ivor Fear appointed his wife as his executrix and left to her the whole of his estate. Mrs Ruth Fear appointed as executors her son, Mr Hartley Fear, and his solicitor, Mr Gibbons. She left her residuary estate to her three grandchildren, Annette, Carl and Spencer. In January 1989 Mr Ivor Fear and Mrs Ruth Fear moved from the flat at The Cedars into a nursing home - The Woodstock Nursing Home at Hucclecote - but the flat was not sold. No doubt it was hoped that in due course one or both of the elderly couple would be able to return to live there. Mr Ivor Fear died at the nursing home on 22 July 1989. Mrs Ruth Fear continued to live at the nursing home for another 22 months, until she died on 31 May 1991.
4.	The disputed will which is the subject of his action is dated 14 November 1990. It is common ground that the document was prepared by Mr Hartley Fear, with no solicitors involved in the preparation of, or in taking instructions for, or in the execution of, that document. By that document, Mrs Ruth Fear appointed Mr Hartley Fear to be the sole executor. She made some specific gifts to her three grandchildren; but she left the whole of her residuary estate to her son. The disputed will appears on its face to have been regularly attested and executed. That is to say, it contains an attestation clause which is in the usual form, and it is signed by two persons purportedly as attesting witnesses. Those two persons are Mrs Susan Phillips, who at the time was a part-time care assistant at the nursing home, and a Mrs Shirley Eyre, who at the time was cohabiting with Mr Hartley Fear. The disputed will was admitted to probate on 16 May 1994.
5.	These proceedings were commenced in or about August 1994. The claimant, Mr Carl Fear, seeks revocation of the probate granted to his father in respect of the 1990 document. He asks that the court should pronounce against that document; and should pronounce in favour of the earlier will, made in 1985. The grounds on which that relief was sought appear in paragraphs 5 and 6 of the statement of claim, signed by counsel and served on 1 August 1994:
“5. The Document was not duly executed in accordance with the provisions of the Wills Act 1937 and accordingly the Document does not constitute a valid Will or other testamentary document.
Particulars
	(a) The Document bears the signature of one Mrs Susan 	Phillips ('Mrs Phillips'), purportedly as an attesting witness.
	(b) The Testatrix did not sign, nor direct any other person to 	sign, nor acknowledge her signature upon, the Document in the 	presence of Mrs Phillips.
6. Further, the Document is a forgery, created by the First Defendant. 
Particulars
	(a) The Document was drawn by the First Defendant [Mr 	Hartley Fear]. 
	(b) Mrs Phillips signed the Document, at the request of the First 	Defendant in or about late May 1991. At the time that Mrs 	Phillips signed the document it was undated and it did not bear 	any signature or any hand-printed manuscript. 
	(c) The Testatrix did not sign the Document. At the time that 	Mrs Phillips signed the Document, and thereafter until her 	death, the Testatrix was unable to write.”
6.	It has been common ground that, if the document were signed by Mrs Phillips in late May 1991, and if at that time it had not been signed by the testatrix, then the testatrix, who had suffered a major stroke shortly before her death, would not have been able to sign the document at all in the week or so before her death on 31 May 1991. But of course, the document purports to have been signed, not in May 1991, but in November 1990. 
7.	It is important to keep in mind that there was no allegation in the pleading of lack of testamentary capacity in November 1990; no allegation of undue influence exercised by Mr Hartley Fear so as to override his mother's wishes; and no allegation of want of righteousness (in the technical sense in which that expression is used in probate matters), notwithstanding that the document had been prepared by Mr Hartley Fear, who was the sole beneficiary under its terms. I may find that surprising in the circumstances; but the fact is that the claim was advanced solely on the basis of lack of due execution.
8.	The absence of any allegation of lack of testamentary capacity or want of righteousness may be inevitable, given that the basis of the claim was that the document was not executed by Mrs Ruth Fear at all - whether in the presence of Mrs Phillips or subsequently - and that it must therefore have been a forgery. But the absence of any allegation of lack of testamentary capacity or want of righteousness has had the result that the claimant could not (and did not) rely at the trial on either of those two grounds if he failed, as he did, to establish his primary case that the will had not been executed in accordance with the Wills Act 1837. 
9.	The only issue, therefore, which the judge had to try was the issue of due execution. If the judge accepted that Mrs Fear did not sign the document in the presence of Mrs Phillips, then that was an end of the matter. There was no allegation of acknowledgement in this case. It would have been unnecessary to decide the forgery issue; save in relation to the secondary point that Mr Hartley Fear should be passed over as an executor of the earlier 1985 will under section 116 of the Supreme Court Act 1981. And if the judge had accepted Mrs Phillips' evidence, the conclusion that the will was forged would have been almost irresistible. If, on the other hand, the judge accepted that Mrs Fear did sign the document in the presence of Mrs Phillips and Mrs Eyre, then the forgery issue could not arise; because he would have accepted, ex hypothesi, that the attesting witnesses actually saw her sign the document.
10.	The evidence of the attesting witnesses was clear, but mutually contradictory. Mrs Phillips acknowledged her signature; but was quite sure that she had signed in the week or so before Mrs Fear's death and that, at the time that she signed, there were no other signatures on the document. Mrs Eyre, on the other hand, was clear in her evidence that the document had been signed first by Mrs Ruth Fear and then by herself and Mrs Phillips on the date which it bears, 14 November 1990. 
11.	There could have been an issue as to whether Mrs Eyre's evidence was self-serving, or coloured by reason of her relationship with the sole beneficiary, Mr Hartley Fear. But she was at pains to emphasise to the judge that that relationship had ended in circumstances of considerable bitterness some time earlier, and that she had no wish whatever to do Mr Hartley Fear any favours. The judge records that she said in her witness statement and in her evidence that “It sticks in my craw to say it, but he is telling the truth.” Of course, it is possible that the circumstances in which she gave her evidence were contrived - and contrived for the purpose of giving that evidence a credence which it might otherwise have lacked - but the judge, having seen her, came to the conclusion that she was an honest witness doing her best to tell the truth. She gave her evidence under subpoena, so that it was not known (or not known for certain) what evidence she would give until she had given it in the witness box.
12.	The judge had the further assistance of Dr Kathryn Barr, a handwriting expert, who expressed the opinion that Mrs Ruth Fear's apparent signature of the will dated 14 November 1990 was probably genuine although (as is often the case with expert handwriting evidence) it was not possible to exclude completely the possibility that the signature had been copied. The importance of that evidence was that it provided no support for the contention that this was a forged signature; so that it was impossible for the judge to reject Mrs Eyre's evidence on the basis of expert evidence as to forgery.
13.	The judge clearly found the matter difficult. He said this:
“. . . I am very conscious of the need not to be too influenced by my own impression of the witnesses' demeanour. I am also very much alive to the fact that we are here concerned with what occurred some 10 years ago. However strongly a person may feel that he or she is right, human memory is notoriously fallible.
On the totality of the evidence, and on the balance of probabilities, I am not satisfied that Mrs Phillips is right, either about the occasion when she signed the will or about her having signed when there was no other signature or handwriting on the will. On balance I consider that the evidence of Mrs Eyre is more likely to be correct.”
14.	His reasons for that opinion were, first, that if Mrs Phillips were right, then the opinion of the handwriting expert must be wrong. That may be put putting it too high, but that was how it was put. Secondly, that the position of the signatures on the will made it appear that the signatures of the attesting witnesses had been added after that of Mrs Fear. Thirdly, that Mrs Phillips was obviously an intelligent woman and the judge found it difficult to believe that she would sign a document which she knew was a will without appreciating the need to ensure that she was really attesting the maker's signature. If Mrs Phillips had done what she said she had done, then plainly she had acted very irresponsibly. Fourthly, that if the document were forged, then it was a fortunate coincidence for Mr Hartley Fear that the date he selected, 14 November 1990, was a date on which Mrs Phillips was actually on duty at the nursing home. That was a fact which, as the judge found, Mr Hartley Fear could not have known.
15.	In those circumstances, the judge reached the conclusion, as a matter of fact, that the will had been duly executed. He reached that conclusion without placing reliance on the evidence of Mr Hartley Fear himself; notwithstanding that Mr Hartley Fear had given evidence that he was present at the time of the execution on 14 November 1990. The judge said that he had reservations about Mr Hartley Fear. He did not find him an impressive witness; he was concerned as to a number of the explanations he had given; and that: 
“If the case had turned simply on no more than my impression of Mrs Phillips and Hartley Fear respectively as witnesses I would undoubtedly have preferred Mrs Phillips' evidence.” 
16.	I mention that because one of the matters on which the application is based is that there is available further evidence which is said to show, in effect, a history of forgery by Mr Hartley Fear. What is said is that, if that evidence had been before the judge, he could have given no credence to Mr Hartley Fear and would have been bound to come to the conclusion that the will was a forgery. 
17.	There are two difficulties in the way of that submission. The first is that the evidence on which it is now sought to rely was plainly available at the trial, but those advising Mr Carl Fear took the view that they would not use it. The second is that, given that the judge did not place any reliance on Mr Hartley Fear's evidence, to admit evidence at this stage to destroy his credibility would carry the matter no further. The real issue was as to the credibility of Mrs Eyre, whom the judge believed; and the evidence which is said to exist does not, as it has been put to me, cast doubt on Mrs Eyre's credibility.
18.	For those reasons, I am satisfied that this appeal would be bound to fail. The Court of Appeal would, in effect, be asked to substitute its own judgment as to the relative credibility of the evidence given by Mrs Eyre and Mrs Phillips for the judgment reached by the trial judge. The trial judge had the advantage of hearing and seeing those two witnesses. The Court of Appeal would not have that advantage. This Court could only look at the transcripts. In a matter of this kind, there is no real prospect that the Court of Appeal would think it appropriate to reverse the trial judge's finding of fact based on the evidence of those he has seen and heard. For the reasons that I have indicated, I am not persuaded that any new evidence would throw doubt on the evidence given by either Mrs Phillips or Mrs Eyre. 
19.	The problem in this case, as it seems to me, is that the issues of lack of testamentary capacity as at November 1990 and want of righteousness were never run. The judge was not asked to consider those issues and (rightly) did not find it necessary to rule upon them. I emphasise that, having regard to a statement which has been put before me, made by Mrs Ruth Fear's general practitioner. The statement is to the effect that, in his view, Mrs Fear had no capacity in November 1990. If that case had been run at trial, the judge would have heard evidence about it. That evidence would have been tested by cross‑examination; and other evidence might have been adduced on the question of capacity. The judge was not given the opportunity to hear that evidence tested; and so it is not surprising that he made no finding as to capacity.
20.	For those reasons, this application must be refused.
ORDER: Application refused
(Order does not form part of approved Judgment)