If in Doubt, Uphold the Will – An Analysis of Re Devillebichot [2013] EWHC 2867

 In Probate, Wills

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The importance of competent legal representationIntroduction

The case of Re Devillebichot [2013] EWHC 2867 will not reverberate around the legal world sending shockwaves throughout the community. Nevertheless this recent case (judgment on 26 September 2013) is important in two key ways:

1)      It raises all the main issues concerning Will validity – due execution, testamentary capacity, lack of knowledge and approval, undue influence – and gives a clear message that if there is insufficient doubt raised by any of these issues the Will shall be upheld; and

2)      It demonstrates very clearly the importance of having competent legal representation

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Like many probate cases the background facts were a sorrowful tale. The deceased, François Devillebichot, died leaving four siblings (Anne, Jacqueline, Lucile and Phillip) and one daughter, Chloe (the Claimant). The Claimant was born out of wedlock and was consequently shunned by the deceased’s siblings, both in life and after his death. They even denied she was his daughter until she proved it by DNA evidence.

About two years before he died the deceased had his voice box removed meaning he could only communicate by hand signals, writing and using brief words expressed by putting a finger on his throat and closing the airway through which he breathed. Prior to his final illness the deceased had never executed a Will. Draft Wills had been prepared in 1999 and 2006 but the deceased had declined to execute them, possibly because he was happy with the intestacy provisions which would leave the entire estate to the Claimant.

The disputed Will was drafted by Anne after the deceased was told his cancer was terminal. It was executed the day after the deceased was admitted to hospital as an emergency. All the siblings were present that day (though they claimed to have stepped outside while the deceased executed the Will) but they had not yet told the Claimant of the deceased’s condition nor was she told of the Will’s existence until after his death.

The disputed Will left £100,000 to the Claimant, a flat to Jacqueline and the balance (£460,000) to the siblings. It was apparently witnessed by the two executors who were also cousins of the deceased.

The Challenges

The Claimant challenged the Will on the grounds of undue influence, lack of due execution, lack of capacity, lack of knowledge and approval. She had no legal representation at trial and appeared as a litigant in person.

Undue Influence

The judge, Herbert QC, reiterated that the rule as regarding undue influence in Wills must reach the level of “coercion” in order for the Will to be invalid.

Herbert QC found that Anne and Jacqueline had indeed influenced the deceased in making his Will but that this had not reached the required threshold and therefore the Will was not invalid. He also referred to the fact that although the Claimant’s skeleton argument claimed undue influence she had not pursued this in oral argument. Noticeably the Claimant does not appear to have investigated the fact that on the morning of executing the Will the deceased, who was dependent on alcohol, requested red wine from the nursing staff (who understandably appear not to have provided it). The siblings then arrived with a bottle of red wine which they gave to the deceased, but only after he had signed the Will. This chronology is highly suspicious of undue influence but it was not raised before Herbert QC and so he could not decide on this basis.


Due Execution

There were suspicions about the execution of the Will. The deceased was said to be aware of French law but the Will left French property in an impermissible way under French law. One of the executors (who were both also witnesses) told the Claimant at the funeral that he met the deceased alone (rather than with the other executor) on the relevant day but had altered his story by trial. The executors’ accounts differed and there was no independent evidence that either of the executors visited the hospital on the day of execution.

Herbert QC nevertheless found there was due execution. The main reason for this appears not to have been direct belief in the defendants’ accounts but in the absence of proper evidence from the Claimant. Herbert QC refers to the Claimant not examining the executors at length and failing to adduce any handwriting evidence. He also refers to her being unaware of how assertions in pleadings needed to be backed up by facts and generally that she had produced “no credible evidence” on this issue.

Lack of Capacity

Herbert QC found that the testator did have capacity and again it appears to have been, at least partly, on the basis that the Claimant did not put forward any positive evidence on capacity. The siblings adduced expert evidence from two doctors. The evidence of the first was held by Herbert QC to be “of limited value” while the evidence of the second was disregarded in its entirety. However, the Claimant failed to cross-examine either doctor and failed to bring any medical evidence of her own.

Faced with the Claimant’s failure to bring any medical evidence of her own it is unsurprising Herbert QC concluded that “on the balance of probabilities” the deceased had capacity. This confirmed that even if there is little evidence in favour of capacity if there is no evidence to doubt capacity then the Will is likely to be held as valid.

Want of Knowledge and Approval

The deceased’s ability to communicate was extremely limited. The Will was drawn up by the siblings who benefited under it. Anne and Jacqueline influenced the deceased in making the Will. There were discrepancies in the executors’/witnesses’ accounts. No solicitor was ever consulted for advice or for assistance in drafting or execution of a Will despite the estate being relatively substantial and involving foreign property. As Herbert QC concluded these were “undoubtedly suspicious circumstances” and they raised “significant suspicion” as to whether there was knowledge and approval of the Will.

Again the Claimant’s evidence was extremely limited. There was no proper cross-examination of any of the defence witnesses who were key to any invalidation of the Will. In the circumstances therefore Herbert QC held there had been knowledge and approval.

Herbert QC stated that he bore in mind the policy argument that a court should be very cautious about invalidating a Will where a Will is executed by a competent testator because it would encourage litigation and undermine testamentary freedom if such Wills were readily invalidated. It this policy argument likely played a large role in Herbert QC’s decision. Here was a case where there was significant suspicion of impropriety but unless and until the evidence was properly challenged and contradictory evidence was brought forward the Will must stand. ‘If in doubt, uphold the Will’.

In Summary

On each issue discussed in the case – undue influence, due execution, capacity, knowledge and approval – there was evidence which both supported and undermined the claim. Unfortunately for the Claimant while the evidence in support of the Will was weak and open to challenge the evidence challenging the Will was, largely through her own inaction, not brought before the court and the evidence in support of the Will was not properly challenged. While the evidence before the court was not clearly in favour of the Will it was also not clearly against it and this meant that the Will was going to be upheld. There was doubt and suspicion but this is not enough because unless it is clear the Will is invalid it is likely to be upheld and this is what Herbert QC did. ‘If in doubt, uphold the Will’.

The Importance of Competent Legal Representation

The Claimant represented herself and this put her at a significant disadvantage. She does not appear to have understood the nature or reason for cross-examination and the ability to require witnesses to be produced for cross-examination. Despite there being ample scope for evidence on each issue the Claimant appears to have produced little or no evidence instead relying solely on the suspicious circumstances. She also appears not to have noticed the connection between the wine and the undue influence claim.

A competent legal advisor would have noticed such connections and been certain to have brought some positive evidence on the capacity claim (or dropped it if none existed). They would also have considered whether a 1975 Act would have been more appropriate or should have been run alongside it – the deceased had made significant payments to the Claimant during her life, the Claimant was in a poor financial situation on her father’s death and she also claimed that he promised her that she would inherit his estate.

Most importantly, a competent legal advisor would have properly cross-examined the siblings and the executors. They held the key to the case. If any of them was found to be lying then the Claimant would succeed. There was significant underlying suspicion and bad behaviour on their behalf (both the siblings and the executors were criticised by Herbert QC) to give plenty of scope for a rigorous cross-examination. With such a rigorous cross-examination the Claimant might well have succeeded in challenging the Will. Without it, she had little chance.

Lessons to Learn

This case does provide a number of lessons for those who may become involved in a probate dispute in the future. These are:

1)      Dishonesty and/or bad treatment towards another potential beneficiary Will arouse suspicion and encourage them to make a claim. Here how the siblings treated the Claimant was the main reason she was so suspicious about the Will.

2)      It is always advisable to have a solicitor-drafted Will as it arouses much less suspicion than a Will drafted by a beneficiary as well as being less likely to contain mistakes.

3)      The threshold for undue influence regarding Wills is much higher than in inter vivos contract cases. It must reach the level of “coercion” in order for the Will to be invalid.

4)      Suspicious circumstances are unlikely to be sufficient of themselves to invalidate a Will. There must be something more whether in the form of contradictory medical evidence, witnesses or documentary evidence.

5)      Where the people who benefit under a Will were also involved in its creation a very rigorous cross-examination is essential. Failure to do so is likely to lead to an unsuccessful claim

6)      Good legal representation is invaluable, especially when the prospects of success are – like in the Claimant’s case – reasonable but not excellent. In the global picture a litigant representing themselves may cost more than hiring an expensive legal team.

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