Parks v Clout

In civil proceedings, a will may be proved by circumstantial or hearsay evidence, and the ordinary balance of probabilities applies. A fraud allegation may require evidence of a higher degree of probability because of its inherent improbability, but the legal standard remains unchanged. Where the existence of a lost will is alleged, the evidence must provide a reasonably firm basis for concluding that the statutory formalities, including signature and attestation, were complied with. General statements that a person had made a will will rarely suffice. An appeal may properly be struck out where, even accepting the claimant’s evidence, the claim has no realistic prospect of establishing a valid will and the alleged fraudulent destruction or concealment is unsupported.

Shirley Clout died in 1999. Her widower, Roy Clout, obtained letters of administration on the basis that she had died intestate. Shirley’s half-brother, Victor Parks, alleged that she and Mr Clout had made joint wills, that Mr Clout had destroyed or concealed them, and that he had acted fraudulently in obtaining administration.

Master Bowles struck out the claim under CPR Part 24, finding no realistic prospect of success. Mr David Kitchin QC, sitting as a Deputy High Court Judge in the Chancery Division, dismissed Mr Parks’s appeal. The issue in the Court of Appeal was whether the available evidence could realistically establish the making and contents of a valid will, including compliance with the necessary formalities.

1. Appeal dismissed. The decisions of Master Bowles and the deputy judge were upheld.
2. The applicable strike-out standard was whether the claim had a realistic prospect of success. That standard differs from a fanciful claim: see Swain v Hillman [2001] 1 All ER 91.
3. There is no special standard of proof for wills. The ordinary civil standard, the balance of probabilities, applies. In a fraud allegation the court naturally requires a higher degree of probability because fraud is inherently improbable, reflecting the strength of evidence needed rather than a different legal standard: Re H [1996] AC 563, 85–87.
4. It was common ground that a will may be proved by circumstantial evidence. Hearsay evidence is admissible in probate proceedings under the Civil Evidence Act 1968, but it may support or undermine the alleged existence of a will. The court must assess all the evidence on the balance of probabilities.
5. The evidence that Shirley had referred to a joint will did not establish that a will had actually been made or validly executed. There was no evidence of signature or attestation, and insufficient detail of the alleged contents. Compliance with the formalities required by the Wills Act 1832 was essential. Evidence describing preparation and proper execution might support an inference of compliance, but the evidence relied on here fell far short.
6. The allegation that Mr Clout had destroyed or concealed the will was unsupported. His error in describing the matrimonial home as jointly owned did not demonstrate dishonesty. The proposed disclosure was speculative and could not cure the fundamental evidential deficiencies.
7. Thorpe LJ agreed with Jacob J’s reasons. Costs were assessed at £3,000, payable within six weeks.

• Court of Appeal (Civil Division): appeal dismissed.
• Chancery Division: Mr David Kitchin QC, sitting as a Deputy High Court Judge, dismissed Mr Parks’s appeal on 25 July 2002.
• Master Bowles: struck out the claim under CPR Part 24 on 29 November 2001.