Martin v Browne & Anor

For summary judgment, the question is whether the defence has a real prospect of success, rather than a fanciful one. The court must not conduct a mini-trial, but may conclude that a case is fanciful where the evidence cannot realistically support the necessary finding.

In a will-revocation claim, intention to revoke is insufficient without proof of revocation by a legally recognised method. Where the original will remains safely held, a party relying on destruction must have a real prospect of proving that the destroyed document was a properly executed duplicate original. Clear evidence that duplicate wills were not prepared may make that case fanciful.

After Mrs Albertha Martin died, Desmond and Carment Browne obtained letters of administration on the basis that she had died intestate. Irvin Martin brought probate proceedings asserting a 1983 will and seeking revocation of the grant. The Brownes alleged that Mrs Martin destroyed the will in 2002, later advancing the possibility that a duplicate original had been destroyed.

HHJ Langan QC granted summary judgment to Irvin Martin, holding that the duplicate-will case was fanciful. Permission to appeal was granted on whether the judge had impermissibly resolved a disputed factual issue on written evidence. The central issue was whether the defence had a real, rather than fanciful, prospect of proving destruction of a properly executed duplicate will.

1. Appeal dismissed. Lord Justice Lawrence Collins gave the principal judgment. Lord Justice Lloyd and Lady Justice Arden agreed.
2. For summary judgment, the court must determine whether the defence has a real prospect of success, as opposed to a fanciful prospect. It must not conduct a mini-trial on witness statements and documents. The relevant dispute was not simply whether the Brownes saw Mrs Martin tear up a document, but whether they had a real prospect of proving that it was an original, properly executed duplicate of the 1983 will.
3. The evidence did not provide that prospect. Mrs Bundey, who prepared the will, stated that she had never prepared a will in duplicate form. Her evidence was supported by Mr Cohen, the firm’s records and Miss Poxon’s evidence. There was no suggestion that the evidence was deliberately false, and no realistic basis for treating Mrs Bundey’s evidence as mistaken. The appellants produced no evidence supporting the existence of a duplicate will.
4. The court applied section 20 of the Wills Act 1839 on the common ground that destruction-based revocation required destruction of the original, or a properly executed duplicate original, with the intention to revoke. Lady Justice Arden emphasised that the legal requirements for revocation are strict and that intention alone is insufficient. The alleged destruction therefore fell within a narrow gateway which the evidence did not satisfy.
5. The judge below had not improperly resolved credibility. The appellants’ earlier mistaken belief that the will held by the solicitors was a copy illustrated the possibility of mistake about the document briefly seen. The prospects of proving destruction of a duplicate will were fanciful and not real. Order: appeal dismissed.

• Court of Appeal (Civil Division): On appeal in [2008] EWCA Civ 712, the court dismissed the appeal.
• High Court, Chancery Division, Leeds District Registry: HHJ Langan QC granted summary judgment for Irvin Martin on 7 September 2007, holding that the defence based on destruction of a duplicate will was fanciful.