Ben Leeson & Anor v Donald McPherson

Serious allegations in civil proceedings remain subject to the balance of probabilities. Their seriousness does not create a heightened standard, although inherent probabilities remain relevant. Circumstantial evidence must be assessed cumulatively and in the round, rather than piecemeal. A person who unlawfully kills another is generally prevented by the forfeiture rule from benefiting through survivorship, intestacy, a will or other arrangements arising from the death. The rule may sever a beneficial joint tenancy. A will bearing a facially regular attestation clause attracts a strong but rebuttable presumption of due execution. That presumption may be displaced by the strongest evidence assessed against the totality of the circumstances. A trustee may be removed where continuation in office imperils trust property or is inconsistent with the proper administration of the trust and beneficiaries’ interests.

The claimants, Paula Leeson’s son and father, alleged that her husband, Donald McPherson, unlawfully killed her by drowning her in a holiday cottage swimming pool in Denmark. McPherson had been acquitted of murder in criminal proceedings but did not attend the civil trial. The claimants sought declarations and consequential relief under the forfeiture rule, invalidation of Paula’s 2014 will, a grant of administration, and McPherson’s removal as trustee of two life-policy trusts.

The central issues were whether McPherson had unlawfully killed Paula on the civil standard, whether the 2014 will was duly executed, whether forfeiture applied to the relevant assets and policies, and whether McPherson should be removed as trustee.

1. Unlawful killing. The claimants proved unlawful killing on the balance of probabilities. The court rejected McPherson’s accounts as unreliable and fabricated. The circumstantial evidence was assessed cumulatively, including the pathology, Fitbit data, deleted electronic material, financial pressures, insurance arrangements, and his conduct before and after Paula’s death.
2. The court excluded natural disease, intoxication, manual or ligature strangulation, and homicidal drowning by forcible immersion as mechanisms of death. It rejected accident, fainting and an ordinary fall as improbable. The neck injuries were most probably caused by compression from an arm lock, capable of causing unconsciousness. Paula was then caused to enter the pool and drown. The court declared that McPherson deliberately and unlawfully killed her.
3. Forfeiture. The forfeiture rule under the Forfeiture Act 1982 prevented McPherson from benefiting under Paula’s will or intestacy, by survivorship under jointly held property, or under other arrangements arising from her death. No basis existed to modify the rule.
4. 2014 will. The apparent second witness, Brian McCauley, had not signed or witnessed the will. Expert handwriting evidence, the surrounding circumstances and McPherson’s history of forgery constituted the strongest evidence displacing the presumption of due execution under section 9(1) of the Wills Act 1837. The will was pronounced invalid and Paula was declared intestate.
5. Trusteeship. McPherson was manifestly unsuitable to remain sole trustee of the LV and SW trusts. His removal was warranted under section 41 of the Trustee Act 1925 and the inherent jurisdiction. Ben was appointed replacement trustee.