‘2nd ed of the Contentious Probate Handbook – progress update (18.05.2024)’

I am currently writing-up Chapter 3 (Probate Disputes), and today completed the section about ‘Want of execution.’ When I researched this chapter earlier in the year, I came across a general evidential point in relation to the judicial approach advocated in ‘Gestmin.’ This is of general application in relation to the ‘memory’ of witnesses. The following is a very brief extract from the current draft of paragraph 3.2.2 (Necessity for strict compliance) of the book:

‘In Gestmin SGPS S.A. v. Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) … Leggatt J drew attention to the fallibility of human memory and the usefulness of oral testimony, observing that: …

The best approach for a judge to adopt in the trial is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’

See also Chapter 5 (Litigation) paragraph 5.3 below, and CXB v. North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [3] to [10] (approved in Kogan v. Martin [2019] EWCA Civ 1645, in which Floyd LJ stated at [88] that, ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all the evidence.’
What constitutes the ‘strongest evidence’ in any particular case will depend on the totality of the relevant facts of that case, and the court’s evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the threshold to be crossed to meet the requirement of showing the ‘strongest evidence’, and the stronger that evidence will need to be. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied.

Draft Chapter 3 currently runs to 82 pages, and today I have completed the writing-up of 18 of those pages. The next section I am writing-up, which is a personal favourite, is – ‘Lack of testamentary capacity.’ So – back to the book!