UK: Challenging A Probate Decision 10 Years Later On Grounds Of Fraud

Last Updated: 6 September 2018
Article by Paul Hewitt

Owen Davies' family only found out about the November 2008 death of their late brother/ son four months after the event. His Belgian fiancée had gone as far as to text a response from his phone to say that he wouldn't be seeing them on Boxing Day but would 'explain later'. The family failed however in a challenge to Owen's Will.

Years later, they are trying to set aside that decision because of compelling evidence that the original Court was misled.

Background

Owen had been living in Belgium since 1991. He was engaged to Natalie. His three passions in life were described at trial as his cats, scrap metal and, over time, Natalie.

Owen's 1996 Will appointed his friend Adrian Morris as executor and left everything to an uncle, Clive. There was historic bad blood between Owen's immediate family and Clive.

It appears that Owen was subsequently under the impression that Natalie would inherit.

Natalie and Adrian collaborated to hide the fact of Owen's death from his family who only found out as a result of a telephone call from HM Coroner. That, unsurprisingly, contributed to a considerable degree of antagonism.

Original proceedings

Adrian started proceedings in England to prove the Will. The family opposed him. They did so on the basis, they said, that Owen had fixed his future life permanently in Belgium (in legal terms – had 'acquired a domicile of choice in Belgium'). The consequence of acquiring that domicile of choice would be that Belgian law applied and the Will (at least partially) invalid. Even if valid, because Belgium like many continental countries has forced heirship, his mother was entitled to a fixed share irrespective of any Will.

So the question of domicile – England or Belgium had to be decided.

Questions of domicile can take longer to determine than the substantive dispute (which is usually a 1975 Act claim for financial provision which may only be brought where the deceased died domiciled in England/Wales). This one took three days.

One judge memorably stated that

'In one sense there is no end to the evidence that may be adduced; for the whole of the man's life and all that he has said and done, however trivial, may be relevant in determining what his intention was at any given moment of time.'

And in the Court of Appeal Lord Justice Mummery said

'... the Court must look back at the whole of the deceased's life, and what he had done with his life, and what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that 'life must be lived forwards, but can only be understood backwards' resonates in the biographical data of domicile disputes.'

Generally domicile of origin is regarded as having 'an adhesive quality'. In other words it takes something special to convince the Court that someone has changed domicile (and with it the choice of which law applies to Wills and other succession issues).

The Judge hearing the family's case had taken into account Mr Morris' evidence that Owen's assets in Belgium consisted of 'one Belgian bank account with not much in it'.

The Judge had a host of other reasons which supported his conclusion that Owen had retained his English domicile. But many findings of fact as to Owen's intentions were based on the evidence given by Adrian whom the Judge found 'a reliable and truthful witness whose evidence I could rely on'.

New proceedings

Since 2011 it appears that Clive and Adrian have fallen out. As a result the family became aware that Owen had valuable assets consisting of a collection of motor vehicles, motorcycles, tools etc in Belgium.

The family claim that the original judgment was procured by Adrian's fraudulent evidence and have issued a claim to set it aside.
Adrian applied to strike out the Claim on the basis that it has no realistic prospects of success.

Legal test for setting aside earlier judgment

There appear to be two competing legal tests a judge should apply in deciding whether the uncovering of fraudulent evidence means a judgment should be set aside.

One test is that the evidence now known to have been dishonest must have been 'material'. In other words it had to have constituted an 'operative cause of the Court's decision to give judgment in the way it did'. So, even if evidence was dishonest, if on its own it wasn't decisive, then the original judgment should stand.

The alternative test is whether the judgment is tainted by fraud. In other words, is there a 'real danger' that the fraudulent behaviour influenced the outcome. If there is, a re-trial should normally be ordered.

The Judge preferred the latter test.

Decision

The fact that Owen had more assets than originally disclosed at trial would almost certainly not in itself be sufficient to undermine the original 2011 decision.

But the fact that Adrian misled the Court on that issue tainted his evidence generally.

'I do not think that I can discount the real possibility (albeit not, I think, a probability) that [the Judge] would have reached a different answer if the facts, including [Adrian's] conduct, which are now presented, had been before him at the earlier hearing, with the consequence, that there is, on the evidence before me, a real danger that [Adrian's] dishonest evidence and conduct in respect of that hearing could have affected the outcome of those proceedings.'

And so Adrian's attempt to strike the family's claim out fails and the issue remains to be decided.

Conclusion

Owen's estate was not very large – as the Judge in 2011 stated 'The estate is not particularly large... This dispute is not about money'. Jarndyce v Jarndyce is the fabled example of seemingly interminable legal proceedings.

In How long is too long? Reversing an order 10 years after death we examined British Red Cross v Werry in which an order for financial provision under the 1975 Act was set aside on the grounds of a mistake ten years after the deceased's death.

Morris v Davies is testament to the Courts' willingness to provide a remedy to those who have been the victim of false evidence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Paul Hewitt
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions