Carapeto v Good & Ors

On an application for permission to appeal, permission should be refused where the proposed appeal has no real prospect of success and no other compelling reason justifies allowing it to proceed.

In a probate claim concerning knowledge and approval of a will, suspicious circumstances and the burden on the will’s proponents do not prevent a finding that the testator knew and approved the will. The court may reach that conclusion where the evidence, including the involvement of an independent solicitor and the testator’s understanding of her assets and wishes, supports it. Inadequate evidence about how instructions were given, or the rejection of part of a witness’s evidence, does not necessarily undermine the conclusion.

The defendants sought permission to appeal from an order of Rimer J in a probate action. The order granted probate of a will made by Ethel Mary Good, under which the claimant and her husband were the principal beneficiaries.

The defendants alleged that Miss Good did not know and approve the contents of the will and that it resulted from undue influence. After a ten-day trial, the judge rejected both allegations. Permission was refused by the trial judge and subsequently by Jonathan Parker LJ on paper. The renewed application concerned only knowledge and approval, and alleged an error of law in the treatment of suspicious circumstances and the burden of proof.

1. Application refused. The proposed appeal had no real prospect of success and no other compelling reason was shown for it to proceed.
2. Rimer J had directed himself correctly on the law, including the burden resting on the will’s proponents where suspicious circumstances arise. His detailed judgment showed that he had considered the circumstances relied upon, including the revocation of an earlier will, the involvement of the beneficiaries in the making of the later will, and weaknesses in the evidence of the beneficiaries’ witnesses.
3. The judge was entitled to find that Miss Good knew and approved the contents of the May will. The will had been prepared by an independent solicitor. There was evidence that Miss Good was intelligent, capable of making decisions about her affairs, understood the extent and value of her property, and intended the dispositions made by the will.
4. The fact that the solicitor who prepared the will lacked full knowledge of the estate’s assets did not prevent a finding that Miss Good herself understood the value of those assets. Nor did the rejection of part of Mr Brennan’s evidence materially weaken the claimant’s case.

The conclusion that knowledge and approval had been proved on the balance of probabilities was unimpeachable.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused.
• Chancery Division: Rimer J granted probate of the May will and rejected the allegations of want of knowledge and approval and undue influence.
• Court of Appeal (Civil Division): Jonathan Parker LJ refused permission on paper. The defendants renewed the application in open court.