‘A bird in the hand is better than two in the bush – the moral of Thornton & Ors v Woodhouse & Anor [2017]’

Application of the suspicious circumstances rule was recently considered in Thornton & Ors v Woodhouse & Anor [2017].

The suspicious circumstances rule

Where there are circumstances giving rise to suspicion that the testator did not know and approve the contents of his will, e.g. where a person who takes a substantial benefit under the will prepared it or was closely involved in its preparation, the presumption of due execution will not apply, and the court will not pronounce in favour of the will unless the suspicion is removed. The burden rests on the party propounding the will to produce sufficient evidence to dispel the suspicion arising from the circumstances. The court will be vigilant in examining evidence in support of the instrument and the party propounding the will must produce positive evidence of knowledge and approval by the testator. Thus the court may require evidence that the effect of the document was explained to the testator, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect: Re Kroll [2004]. (Duress, Undue Influence And Unconscionable Dealing 2nd ed by Nelson Enonchong paragraph 13-013).

Application of the legal principles

In Thornton & Ors v Woodhouse & Anor [2017] Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division):

  1. referred to the following guidance provided in Wharton v Bancroft [2011]:

‘(1)   The overall burden lies on the claimant to produce evidence sufficient to prove the Will. Certain evidential presumptions may assist in the discharge of that burden. However, the circumstances may indicate that the propounder is required positively to prove what in other circumstances might be presumed or inferred from the proof of other facts.

(2)   The assertion that the testator did not “know and approve” of the Will requires the Court, before admitting it to proof, to be satisfied that he understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.

(3)   The burden lies on those seeking to prove the Will to show that the testator knew and approved of the Will in that sense.

(4)   The Court can infer knowledge and approval from proof of capacity and proof of due execution.

(5)   Circumstances such as those described in Gill v Woodall at [14] raise a very strong presumption that the Will represents the testator’s intentions at the relevant time.

(6)   However, proof of the reading over of a will does not necessarily establish “knowledge and approval”. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.

(7)   Those challenging the Will must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.

(8)   It is not for them positively to prove that the testator had some other specific testamentary intention: but only to lead such evidence as leaves the Court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.

(9)   Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.

(10) A challenge on the grounds of want of knowledge and approval is not precluded by an admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect: see Hoff v Atherton [2004] EWCA Civ 1554 at [64].’

  1. referred to the following paragraphs in the judgment of Lord Justice Chadwick in Hoff v Atherton [2004] (CA):

‘62. …       if testamentary capacity — the ability to understand what is being done and its effect — is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.

  1. Whether those are inferences which should be drawn depends, of course, on the facts of the particular case. The fact that a beneficiary has been concerned in the instructions for, and preparation of, the will excites suspicion that the testator may not know the contents of the document which he signs — or may not know the whole of those contents. The degree of suspicion — and the evidence needed to dispel that suspicion — were considered by this Court in Fuller v Strum [2001] EWCA Civ 1879, paragraphs [32]–[36], [73], [77], [2002] 1 WLR 1097, 1107 C –109 A , 1122 A–C , 1122 G –1123 C.
  2. Further, it may well be that where there is evidence of a failing mind — and, a fortiori , where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred.’
  3. applying these considerations to the facts of the case, concluded, that the disputed will (the ‘2009 Will’), ‘was properly executed, after being prepared by [a solicitor] and discussed with [the testator] at [a] meeting…, and there is accordingly a strong presumption that it represents his intentions at the time he executed it. Properly considered, there were, in my judgment, no suspicious circumstances in the present case, but if I am wrong about that, on the facts of this case the degree of suspicion is low and is readily dispelled by the points made by Mr Dew and the factors that I have gone over when considering (the submissions made on behalf of the 2nd Defendant).

For all these reasons, and applying the guidance that is provided by the decided cases, including (if it were necessary to place reliance on it) the caution against accepting too readily arguments of the kind that have been put forward on (on behalf of the 2nd Defendant) in this case, I am satisfied that [Testator] knew and approved of the contents of the 2009 Will.’

Submissions made by Richard Dew

‘Mr Dew submitted, in a nutshell, that proper application of these considerations to the facts of the present case leads inexorably to the conclusion that Richard did “know and approve” the 2009 Will. In brief outline, his main submissions were as follows:

(1)   There are no suspicious circumstances in this case, and the Court is not required to go beyond the fact, in accordance with Ms Harris’ evidence, the Will was discussed with Richard and the key changes and provisions identified for him.

(2)   The suspicious circumstances suggested by Lucy in Mr Macpherson’s opening submissions bear little relationship to the reality of 16 September 2009:

(i)     There is no evidence that Richard was lacking in mental abilities. All the independent evidence, and the perception of the solicitors, was that he was not. The “golden rule” (i.e. that the making of a will by an old and infirm testator ought to be witnesses and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings – see Cattermole v Prisk [2006] 1 FLR 693 at [12]) was not applied because it did not apply.

(ii)    Neither the Will nor the appointment of Susie [as an executor and trustee] represented a substantial break in Richard’s pattern of testamentary giving. The Will was essentially the same as earlier Wills, especially once it is appreciated that a life interest could and would have been granted to Susie under the 2001 Will. Although making Susie an executor and trustee was a new development, (a) it did not represent a radical break in Richard’s testamentary wishes, and (b) it is a change that is fully explained by the evidence.

(iii)   Withers’ advice as to the appointment of executors and trustees clearly changed or else was not accepted by Richard. That is not suspicious.

(iv)   The statement that Lucy and Mary are “cut out” from the Will is based on their stated perceptions of Susie, rather than on the real effect of her appointment, still less on how Richard would have perceived that appointment. It is wrong in both fact and law.

(v)   The effect of appointing Susie as executor and trustee is wholly consistent with the desire stated by Richard that Susie should be sufficiently provided for. It is not contrary to the 2009 Letter of Wishes.

(vi)   Lucy’s complaint that Susie does not, in truth, have a veto and that this was not properly explained to Richard pulls in the opposite direction to other aspects of her case, but is ill-founded in any event: Richard had already engaged in a number of conversations about the positions of executors and trustees, and was fully aware of their powers.

(vii)  Susie’s involvement in the Will was limited and, on the evidence of Ms Harris, was not uncommon, surprising or unusual. In most cases where a beneficiary has been involved and a Will is successfully challenged, they not only receive substantial benefit from the Will, but their desires can be seen in the Will that results. The present case is not one of those cases.

(viii) There is likewise no evidence of pressure from Susie in the creation of the Will.

(ix)   The contemporaneous alterations to the Letter of Wishes do, in fact, make sense. The alteration regarding Lucy directly reflects her demands on Richard at the time. The fact that he made the changes shows strongly that he did understand the 2009 Will and Letter of Wishes.

(x)   The “lack of any record” that the changes were explained to Richard is a particularly bad point, given the extensive records of the Will being explained to him and the evidence of Ms Harris that the important provisions of the Will would have been explained to him on the day.

(3)   If the Court is required to go on to consider whether Richard had knowledge and approval, the test remains the simple one of whether the 2009 Will reflected his intentions. It plainly did so. In particular:

(i)     There are good reasons to believe that Richard understood sufficiently well the nature of the office of executor and trustee. Among other things, he was a long-standing officer of listed companies and charities and had in fact obtained a law degree. He did not have an unsophisticated mind.

(ii)    In so far as it is Lucy’s case that Richard failed to consider the effect of the strained relations between Susie and others, it is based on the false premise that Susie would never make distributions to (for example) Lucy and Mary. Moreover, even if that premise were true, Richard had been aware for many years of the relationships between family members, and there is nothing to suggest that he would not properly have considered them here.

(iii)   The suggestion that Richard failed to understand the tax effect (given the probability or risk that Susie would never allow any distributions to anyone) ignores the competing demands that existed in respect of the residue of Richard’s UK estate and Richard’s desire that the BPF should, if possible, be conserved as a dynastic asset, all of which he understood.

(4)   The Withers documents and the evidence of Mr Cooke and Ms Harris show very clearly that the 2009 Will represented Richard’s intentions.

(5)   Richard received the 2009 Will and Letter of Wishes by both email and letter and that they remained in his possession until he became ill in 2011. He had ample opportunity to review them and had he not understood, or had they not reflected his wishes, he could have amended them, but he never sought to do so.

(6)   The jurisdiction pursuant to which the Court may omit from probate particular words of a Will where they did not reflect the testator’s intentions has become largely redundant following the passing of section 21 of the Administration of Justice Act 1982, not least because that section permits the court to add words as well as to omit them. This jurisdiction could not properly be applied here. In Fuller v Strum [2002] 1 WLR 1097, Peter Gibson LJ said at 1108 “I do not doubt that it is possible for a court to find that part of a will did have the knowledge and approval of the deceased and another part did not. An example would be if a solicitor, who had been instructed to draft a will, obtains the deceased’s approval of the draft but subsequently before execution adds a clause without drawing it to the attention of the testator and keeps the executed will. But the circumstances in which it will be proper to fund such a curate’s egg of a will are likely to be rare”. None of Lucy’s evidence or cross examination has been directed at the possibility that Richard understood fully the remainder of the 2009 Will but not the appointment of Susie. Further, to exclude that part alone from probate would disturb the whole balance of the Will and so create a Will that does not reflect the testator’s intentions at the relevant time, and this would not be right.’


On an evidence based review following disclosure, it should therefore have been apparent, that the element of the counterclaim based upon the allegation of suspicious circumstances, whilst properly arguable, was in fact hopeless, and would in all likelihood fail at trial. That was the reality.

It is not known to the author whether an application for Chancery ENE/FDR was considered or proposed e.g. at the CMC. If proceedings had been stayed on an application by consent, to permit ADR, then perhaps a deal could eventually have been done to:

  • spare the family from having its dirty linen washed in public;
  • for nuisance value; and
  • to demonstrate goodwill,

which would have resulted in a considerable saving in costs and thereby preserved the size of the estate pie for a reasonable settlement to have been agreed.

The moral of the tale

A bird in the hand is better than two in the bush.

As Lord Neuberger warned in Gill v Woodall [2010], the moral of Thornton & Ors v Woodhouse & Anor is that,

‘Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.’

Whilst the court may sympathize with an adult child of the testator who has been ‘cut-out’ of the will, they have no power to rewrite the testator’s will, or to make a determination based upon a moral sense of ‘right’ or ‘wrong’. Consequently, where clear ‘cold-headed’ mathematical calculation is substituted by ‘wishful thinking’, a claim is likely to fail. To succeed, what is required from the outset, is a critical forensic examination and evaluation of the legal merits, remedies, costs, and litigation risks, tempered by realism, i.e. clinical ‘due diligence’. The claimant can then make a calculated and informed decision about whether the candle is going to be worth the flame.