Fuller v Strum

In probate proceedings, proof of testamentary capacity and due execution will ordinarily support an inference that the testator knew and approved the will. Where a person who prepared or procured the will takes a benefit under it, the circumstances may raise suspicion and require affirmative evidence that the will represents the testator’s intentions.

The inquiry remains evidential and is decided on the balance of probabilities. It does not impose a separate moral requirement to demonstrate the righteousness of the transaction, nor a criminal standard of proof. A court may uphold only part of a will where knowledge and approval is established only for that part, but that course will be rare and cannot be used to express disapproval of the propounder.

Fuller v Strum was a probate appeal concerning a home-made will prepared in manuscript by Michael Fuller, who was named as executor and received a legacy. Geoffrey Strum, the testator’s adopted son and residuary beneficiary, challenged the will on grounds including forgery, undue influence, and lack of knowledge and approval.

The Deputy Judge held that the will had been duly executed but admitted only the legacy to Mrs Griffin and certain formal provisions. He concluded that Mr Fuller had not dispelled the court’s suspicion that the testator knew and approved the remaining terms. Mr Fuller appealed. The central issue was whether the accepted evidence left a real possibility that the testator had been deceived as to the will’s contents or had failed to read and understand them.

1. Appeal allowed unanimously. The Court of Appeal set aside the partial probate order and pronounced for the force and validity of the entire will.

2. Peter Gibson LJ, Chadwick LJ and Longmore LJ held that the so-called requirement of the righteousness of the transaction did not authorise a court to refuse probate because it disapproved of the propounder or the dispositions. It described the evidential burden where suspicious circumstances existed. The decisive question was whether the court was satisfied that the will represented the testator’s testamentary intentions.

3. The ordinary civil standard applied. Proof of capacity and due execution ordinarily permits an inference of knowledge and approval. Where the will’s preparer benefits, the court must scrutinise all the circumstances and require affirmative evidence sufficient to dispel any proper suspicion. The gravity of the suspicion affects the evidence needed to satisfy the court, but does not create a requirement to exclude all doubt or reasonable doubt.

4. The Court held that the trial judge had erred in treating rejection of Mr Fuller’s account of the drafting conversation as sufficient to leave serious doubt about the rest of the will. On the accepted evidence, the testator initiated the will-making process, had time and opportunity to see its simple and distinctive terms, concealed its contents from the witnesses, retained the original, arranged a copy, and kept it in a deed box. There was no real possibility that he had been deceived about the contents or had never read them. The suspicion arising from Mr Fuller’s involvement and benefit was at the lower end of the scale and had been dispelled.

5. A court can in principle pronounce for part of a will and against another part where knowledge and approval is proved only in part. Such cases will be rare. Partial invalidity cannot be used as a means of censuring a propounder; the court must assess whether there is a real possibility that the testator did not know and approve the remainder.

Geoffrey Strum, as unsuccessful lodger of the caveat, was ordered to pay Mr Fuller’s costs at first instance and on appeal, subject to the stated limitation on the executor’s recovery from the estate.

• Court of Appeal (Civil Division) — in [2001] EWCA Civ 1879, allowed Mr Fuller’s appeal, set aside the partial probate order, and pronounced for the validity of the entire will.
• High Court, Chancery Division — on 20 December 2000, Mr Jules Sher QC, sitting as a Deputy Judge, held that the will had been duly executed but admitted only its formal provisions and the £6,000 legacy to Mrs Griffin. He held that knowledge and approval of the remaining provisions had not been proved and granted Geoffrey Strum letters of administration.