Cushway v & Anor v Harris

In probate proceedings, the party propounding a will bears the legal burden of proving knowledge and approval. The evidential burden may become more demanding where the circumstances excite the court’s suspicion, particularly where the will was prepared by a person who benefits under it. The degree of suspicion determines the evidence required to remove it. The issue is decided on the ordinary civil standard. A court exercising its supervisory jurisdiction in probate matters should investigate the validity of a will and should not dispose of proceedings merely by consent where existing grants are to be revoked.

The claimants challenged wills made by their elderly great aunts on 10 January 2006. The wills had been drafted by the defendant, a solicitor and beneficiary under each instrument. Probate had already been granted in common form. The claimants sought pronouncement against the 2006 wills and declarations in favour of earlier wills.

The defendant initially defended the proceedings but ultimately consented to judgment and did not appear. The Official Receiver, in whom his beneficial interests had vested on bankruptcy, did not consent. The central issue was whether the defendant had discharged the burden of proving that the testatrices knew and approved the contents of the wills.

1. Validity of the 2006 wills. The court declared against the validity of the purported wills dated 10 January 2006 and declared in favour of Hannah Harris’s will dated 30 June 1998 and Rosette Harris’s will dated 12 October 2001.
2. Knowledge and approval. The party propounding a will bears the legal burden of establishing knowledge and approval. That burden remains distinct from the evidential burden, which may be raised by suspicious circumstances. The more serious the suspicion, the more substantial the evidence required to remove it. The ordinary civil standard of proof applies.
3. The circumstances generated the gravest suspicion. The defendant had drafted the wills, stood to receive substantial benefits, and acted when the testatrices were very elderly, seriously unwell and unable to read. He led no evidence capable of discharging the burden. The wills therefore could not stand.
4. The court’s supervisory and investigatory jurisdiction in probate meant that the matter could not properly be dealt with by consent alone, particularly since the Official Receiver did not consent and revocation of existing grants was sought.
5. Costs and further investigation. The defendant’s conduct of the litigation, including serious failures of disclosure and his late change of position, justified indemnity costs. The court also directed that the papers be referred to the Director of Public Prosecutions to consider whether further action should be taken concerning the prima facie allegations of fraud.

First-instance probate proceedings. No appellate history is stated in the judgment.