Wrangle v Brunt & Anor

In a probate claim, the ordinary balance of probabilities remains the applicable standard when forgery is alleged. The seriousness and inherent improbability of the allegation are factors affecting the strength of evidence required. Where a purported will was signed by a third party under a power of attorney, the attestation clause may provide no presumption of due execution if it does not accurately describe the execution. The court must positively find that the testator directed the signature, that the witnesses understood the signature was being adopted on the testator’s behalf, and that the testator knew and approved the contents. Those matters may be established by inference from the whole evidence.

Dean Ashley James Brunt died in 2007. Letters of administration were granted to his mother, Marlene Brunt, on the basis that he had died intestate. His uncle, Winston Wrangle, later propounded two duplicate documents dated 2 March 1999 as Dean’s wills and sought revocation of the grant.

The defendants alleged that the documents were forged, had not been duly executed, and had not been known or approved by Dean. The unusual feature was that Howard Day signed in his own name, said to be at Dean’s direction under a power of attorney, while two witnesses attested the documents. The court determined whether the documents were genuine and complied with the requirements for execution and knowledge and approval.

1. Forgery and standard of proof. The defendants bore the legal burden of proving forgery, while the claimant bore the evidential burden. The applicable standard remained the balance of probabilities. Following Re H [1996] AC 536, the seriousness and inherent improbability of the allegation were relevant to the strength of evidence required, but did not create a higher standard of proof.
2. The court assessed the documents, expert evidence and surrounding circumstances as a whole. Howard Day’s dishonest character required caution in evaluating material originating from him, but did not compel rejection of the claim. The court concluded that the wills were not forged.
3. Due execution. Section 9 of the Wills Act 1837 required proof that Dean was present, that Howard Day signed at his direction, and that the witnesses attested and signed in the required manner. Since the will purported to have been signed by the holder of a power of attorney, no weight could be attached to any presumption of due execution arising from the attestation clause, which did not accurately describe the legal basis of execution. The court applied the approach in Kayll v Rawlinson [2010] EWHC 1269 (Ch) and Wilson v Lassman [2017] EWHC 85 (Ch).
4. Under Barrett v Bem [2012] EWCA Civ 52; [2012] Ch 573, there had to be a positive and discernible communication, verbal or non-verbal, that Dean wished Howard Day to sign on his behalf. The evidence justified an inference that Dean had actively communicated that direction and that the witnesses understood the nature of the signature.
5. The court also had to be satisfied that Dean knew and approved the contents. Applying the whole of the evidence, including the circumstances in which the will was prepared, Dean’s discussions with others and the absence of suspicious dispositions, that requirement was met. The approach to fact-finding in Re Parsonage (deceased) [2019] EWHC 2362 (Ch) was adopted.
6. The grant of letters of administration was revoked and the duplicate will was pronounced for. Marlene was removed as executor and an independent professional was to be appointed as substitute personal representative, subject to willingness to act. Consequential matters, including costs, were reserved.