Fuller v Strum

When assessing whether the circumstances of a will require proof that the testator knew and approved its contents, the relevant comparison is between the legacies and the value of the estate which the testator believed he had when executing the will. The estate’s value at death or at the time of an application may not answer that question. On an application for estate information, the court may require a limited affidavit confirming information already obtained, but need not order a respondent lacking formal representative status to undertake a wider investigation at further expense. An application to adduce further evidence must be considered separately on its merits.

Michael Fuller brought probate proceedings concerning the estate of Max Moses Strum, seeking probate in solemn form of a 1989 will appointing him executor and giving pecuniary legacies, including legacies to himself and members of his family. Geoffrey Strum opposed probate, alleging forgery and lack of knowledge and approval.

The High Court admitted the will to probate but struck out the family legacies and Mr Fuller’s appointment as executor. Permission to appeal was granted. Pending the appeal, Mr Fuller applied for an order requiring Mr Strum to provide full details of the estate, particularly its assets and approximate values. The central issue was what estate information was relevant to the knowledge-and-approval question and what further enquiries could fairly be required.

Lord Justice Chadwick determined the interlocutory application in a single judgment.

1. Relevant valuation. The material information was not the value of the estate in 2001 or at the testator’s death in 1998. It was the value which the testator believed his estate had when he executed the will in 1989. The significance of the £34,000 legacies depended on their proportion to that perceived estate and on whether they diverted a significant part of it from the adopted son, who might be regarded as the natural object of the testator’s dispositions.
2. Extent of enquiry. Mr Strum was not then clothed with the powers of an administrator or personal representative because the order granting him letters of administration with the will annexed had been stayed. He had nevertheless obtained information from a number of banks through his solicitors, and that information placed the present value of the estate at just under £66,000. In those circumstances, it would be unreasonable to require him to incur further expense on wider enquiries.
3. Limited direction. Mr Strum was directed to swear a short affidavit confirming that the information in his solicitor’s affidavit included all information known to him concerning the estate’s assets, whether at the time of the application or in 1989, with any additional information added. That would provide a foundation for consideration of the estate-value issue on the appeal.
4. Further evidence. A proposed application to adduce an accountant’s affidavit concerning a statement allegedly made by the testator was not before the court. It was to be considered on its merits when made.

There was no further order on the application.

• Court of Appeal (Civil Division): On 11 October 2001, the court determined an interlocutory application in the pending appeal. The appeal had been fixed for a later hearing; this judgment made no final determination of the appeal’s merits.
• High Court of Justice, Chancery Division: A deputy High Court judge admitted the 1989 will to probate, struck out specified legacies and the appointment of Mr Fuller as executor, and granted Mr Geoffrey Strum letters of administration with the will annexed. That order was stayed pending appeal.