Face v Cunningham & Anor

Where a will is alleged to be forged, the party propounding it bears the ultimate burden of proving valid execution, including execution by the testator. The civil standard applies, although cogent evidence may be required because of the seriousness of the allegation.

A binding agreement to create a trust does not itself constitute a trust unless there is a present, irrevocable declaration containing all its terms. A beneficiary who has provided only nominal consideration is a volunteer and cannot obtain specific performance of an incompletely constituted trust. A future contractual claim for damages may nevertheless arise after the agreed time for performance has expired.

The claimant sought probate of a photocopy of an alleged will made by her late father. The defendants alleged that it was forged and contended that the deceased had died intestate. The second defendant also claimed beneficial interests in a property purchased by the deceased for his occupation.

The court tried the validity of the alleged 2017 will and the effect of two agreements concerning the property. The central issues were who bore the burden of proving that the will was genuine, whether the 2006 agreement created a beneficial interest, and whether the 2016 agreement created or required the creation of protective trusts.

1. Forgery and burden of proof. The claimant’s probate claim was dismissed and the alleged 2017 will was pronounced against. The court held that the party propounding a will bears the ultimate burden of proving that it was validly executed and witnessed. That includes proving that the will was signed by the testator. Haider v Syed [2013] EWHC 4079 (Ch), reported at [2014] WTLR 387, did not establish the contrary proposition because the burden had been conceded and was not argued.
2. The court was satisfied to the civil standard, and so as to be sure, that the alleged will was fabricated. Four features were decisive: the implausibility of any will having been made; the terms of the alleged will; the circumstances of its supposed execution; and the circumstances of its alleged discovery. The court also found that the first page of a related letter and selected diary extracts had been fabricated or suppressed.
3. The 2006 agreement. The agreement was a binding compromise under which the deceased was to provide £100,000 towards a property for the second defendant. Since a property was instead purchased for £206,000 for his occupation, the agreement created a resulting or constructive trust giving him a 48.03% beneficial interest. That interest vested in his trustee in bankruptcy on the making of the bankruptcy order under sections 283 and 306 of the Insolvency Act 1986. It therefore did not assist him in claiming against the deceased’s remaining interest.
4. The 2016 agreement. The agreement was binding and sufficiently certain. It required protective trusts to be fully constituted within six years, but it contained no present, irrevocable declaration of trust. The deceased’s remaining 51.97% interest was therefore not held on a completely constituted trust.
5. The second defendant had given only nominal consideration and was consequently a volunteer. Applying the principles discussed in Re Cozens [1913] 2 Ch 478, Jeffreys v Jeffreys (1841) Craig & Phillips 138, reported at 41 ER 443, and Nurdin and Peacock v DB Ramsden [1999] 1 EGLR 119, he could not obtain specific performance of the incompletely constituted trust. Neville v Wilson [1997] Ch 144 did not assist because it presupposed a specifically enforceable contract. The agreement was not too uncertain, and a future claim for damages might arise, but no breach had yet occurred. The counterclaim was dismissed.
6. The claim was recorded as totally without merit. The judgment was to be sent to the Official Receiver and the Crown Prosecution Service. The claimant was ordered to pay the defendants’ costs on the indemnity basis; the provisional view was that there should be no order as to the costs of the counterclaim.