The Claimants in this matter are the parents of the Deceased, they are represented by Caroline Chamberlain of MSB Solicitors and Norman Lamb, Counsel, 9 St John’s Street. The case concerns a Will prepared by a Solicitor. The Deceased was terminally ill when he made this Will.  

The Claim was issued against all the Executors of the Will, they are the Defendants. The First Defendant is the Partner of the Deceased(D1), and the Second Defendant is the brother of the Deceased(D2). He took no active role in proceedings. The Third Defendant prepared the Will (D3). 

The Claimants’ position is that the Will was not executed in accordance with section 9 of the Wills Act 1837. This provision is that: 

No will shall be valid unless— 

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and 

(b) it appears that the testator intended by his signature to give effect to the will; and 

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and 

The facts of this case are that the Deceased signed a Will, and it was executed in the presence of one witness. In the first instance, the Third Defendant sent a copy of a Will with one signature. The Third Defendant then sent a copy of a Will with two signatures, the second signature was that of the Third Defendant’s brother. 

Thereafter the Third Defendant sent an email to the Executors (D1&D2) to say that there is no valid Will, and the case would have to proceed under the Intestacy Rules. 

The Claimants were understandably concerned, MSB made a Larke v Nugus Request to the Will drafter (D3). The principles established in the case of  Larke v Nugus are that the solicitor who prepared the Will should prepare a statement containing the circumstances surrounding the execution and validity of the Will. They should respond because all parties are under a duty to make every effort to avoid potentially costly litigation. This response took over 11 months, so the Claimants issued Court proceedings.  

The First Defendant’s pleaded case is that she is neutral on the validity of the Will. She seeks to bring a counter claim for ‘donatio mortis causa’, this is a gift made in contemplation of death. This claim is ongoing.  The Third Defendant’s pleaded case is that he is neutral on the validity of the Will. 

The Claimants made an application for Summary Judgment for the Court to pronounce against the validity of the Will for want of due execution. 

An application for Summary Judgment is unusual in Contentious Probate matters. The legal test for summary judgment under the Civil Procedure Rules (CPR) is: 

Pursuant to CPR 24.3, “the court may give summary judgment against a claimant or 

defendant on the whole of a claim or on an issue if— 

(a) it considers that the party has no real prospect of succeeding on the claim, defence 

or issue; and 

(b) there is no other compelling reason why the case or issue should be disposed of at 

a trial.” 

The Claimants made this application because it was clear that the Defendant’s had no real prospect of succeeding on the defence and despite the fact the Defendant’s state they were neutral, particularly D3, the Claimants case was that they said this to be afforded cost protection under the CPR. 

Judgment 

The Judge granted summary judgment in Cs’ favour on the claim. The evidence was absolutely clear. The Will fails due to invalid execution against s9 Wills Act. The Court pronounced against the validity of the Will and granted the Claimants costs against D3 on an indemnity basis. The Judge was critical of the way D3 had conducted this litigation and produced a cost budget in the region of £80,000. 

This case serves as a stark reminder for all professionals involved in Will drafting, the importance of taking proper Will instructions, responding to Larke v Nugus requests and engaging effectively with the Pre Action Protocol and CPR. 

If you require assistance with a contentious probate matter, please do not hesitate to contact us.