Rowinska, Re

Where a will is prepared by a person who takes a substantial benefit under it, that circumstance raises suspicion but does not impose a separate or criminal standard of proof. The court must examine all the circumstances with vigilance and care. The propounder must satisfy the court, on the balance of probabilities, that the will expresses the testator’s true intentions and that the testator knew and approved its contents. The seriousness of the allegation may affect the court’s assessment of the evidence, but the civil standard remains applicable. Suspicion may be so grave that it is difficult to remove. If it is not removed, the will must be refused probate.

This was a probate action concerning a will dated 19 February 2002, under which Stanislaw Wyniczenko was sole executor and beneficiary of Maria Rowinska’s estate. The defendant, Maria Rowinska’s niece and executor under an earlier will dated 4 August 1993, challenged the later will on grounds of forgery, want of knowledge and approval, lack of capacity and undue influence.

The incapacity and undue influence allegations were abandoned during the trial. The court therefore determined whether the signature was forged and, principally, whether the deceased knew and approved the contents of the will in circumstances where it had been prepared by the sole beneficiary.

1. The allegation of forgery failed. Although the handwriting evidence raised a real possibility of forgery, the expert evidence was inconclusive and, having considered all the evidence, the court was not satisfied on the balance of probabilities that the will had been forged.

2. The governing principles concerning knowledge and approval were drawn from Barry v Butlin (1838) 2 Moo PC 480. The burden lies on the person propounding the will to satisfy the court that it is the last will of a free and capable testator. Where the person who prepared the will takes a benefit under it, that is a suspicious circumstance requiring vigilant and careful examination of the evidence.

3. Following the approach explained in Fuller v Strum [2002] 2 AER 87, the rule is evidential. The applicable standard is the balance of probabilities, not proof beyond reasonable doubt. The degree of suspicion varies with the circumstances, and may be so grave that it can hardly be removed.

4. The court identified several mutually reinforcing suspicious features: the complete departure from the charitable and family provisions of the earlier wills; the beneficiary’s role in preparing the document; its use of English despite the deceased’s poor English; the failure to explain its contents; the beneficiary’s conduct after execution; and evidence that the deceased continued to believe she would make charitable and family provisions.

5. Those matters increased rather than removed the suspicion. The court was not satisfied that Maria Rowinska understood that she was signing a will leaving her entire estate to Stanislaw Wyniczenko, and therefore found that she had not known and approved its contents. The will was refused probate, the claim was dismissed, and the judge indicated that probate in common form might be granted for the 1993 will, subject to any inheritance tax issue.

First instance decision. No appellate history is stated in the judgment.