Van Kwawagen v Royal National Lifeboat Institution & Anor

In a probate dispute, the party propounding a will must satisfy the court on the balance of probabilities that a valid will existed at the deceased’s death and had the terms alleged. The court must evaluate the evidence as a whole, including the reliability, consistency and interests of witnesses, contemporaneous documents and subsequent conduct. Where the evidence establishes the existence and contents of the will, the court may pronounce in its favour in solemn form and grant letters of administration with the will annexed.

The claimants, the deceased’s widow and daughter, sought a declaration that he had died intestate and a grant of letters of administration. The defendants, two charities, counterclaimed for probate of a reconstructed will leaving the deceased’s estate to them.

The central issue was factual: whether, on the balance of probabilities, the deceased had executed the alleged will in 1974 and whether the will, in the reconstructed form, remained in existence and was found among his papers after his death in 2005.

1. Burden and standard of proof. The charities had to satisfy the court, on the balance of probabilities, that a valid will in the alleged form existed at the date of death. If they failed, the claimants would have been entitled to a declaration of intestacy and, subject to proof concerning other children, letters of administration.
2. Execution in 1974. The evidence of Miss Eldridge, the solicitor who acted in connection with the Lodge, was accepted despite inaccuracies and the lapse of time. It was supported by the firm’s dead files register, which recorded “Ciebrant & Clarke” in connection with wills and the Lodge, by evidence that the deceased was in London in late August 1974, and by the absence of any reason for Miss Eldridge to fabricate her recollection. The court found it more likely than not that the deceased’s will was drawn up and executed in late August 1974.
3. Discovery after death. The evidence of Mrs Kakkavas and Mrs Membery that they saw the original will among the deceased’s papers was preferred to the claimant’s denial. Their accounts were mutually consistent and supported by the claimant’s subsequent conduct, including her failure promptly to disclose the will to the solicitor handling the estate, her discussion of the effect of a will making no provision for her and her mother, and her later reference to a possible Dutch will.
4. The challenges alleging that Mrs Membery fabricated the will to obtain the Lodge at an undervalue were rejected. The documentary and valuation evidence did not support that allegation.
5. The court found that the amended reconstructed will was among the deceased’s papers at death and had been found by the claimant. The claim was refused. The court pronounced in favour of the will in solemn form and directed that letters of administration with the will annexed be granted to Peter Jeffreys, Miss Eldridge having renounced and Mr Jeffreys having consented to act.