Cases of Interest – June

Each month we will be noting recent decisions in our areas of practice. This month we note a recent decision of the Court of Appeal relating to the validity of a will and a decision of the High Court in relation to the doctrines of constructive trust and proprietary estoppel.

Payne v Payne (Court of Appeal; Contentious Probate)

[2018] EWCA Civ 985

This is an important decision concerning what is required in order for a person to witness a Will for the purposes of s. 9 of the Wills Act 1837. The court held that it is not necessary for a witness to sign a Will in the manner in which that word is commonly understood, and that it was enough for witnesses to have written their names on the Will.


The facts


The Deceased, John Payne, died on 22 August 2012. By his first marriage, he had had four children, including a son who was also named John Payne (‘John’). The Deceased divorced his first wife and later married the Defendant/ Appellant, Mrs Kim Payne (‘Mrs Payne’).


The Deceased left two purported Wills. The later Will, dated 1 April 2012 (‘the 2012 Will’), was made a few months before his death. By it, he purported to appoint John and his grandson Thomas Payne (John’s son, ‘Thomas’) as his executors, and subject to two pecuniary legacies of £15,000 each to Mrs Payne and to Thomas, he left the residue of his estate to John. There was an attestation clause in substantially standard form, the attesting witnesses being the girlfriend of Thomas and her mother.


There was also an earlier Will, dated 19 May 1998 (‘the 1998 Will’), some 14 months after the Deceased’s marriage to Mrs Payne. This Will was made on a printed form. By the 1998 Will, the Deceased appointed Mrs Payne as his executor and made only one substantive gift, when after standard directions for payment of his death and funeral expenses, and a clause revoking any previous wills, he said:


I give and bequeath unto my wife Kim Payne my property, post office pension, insurance’s shares, & any money in my Abbey National account.


This clause was placed next to a marginal direction to ‘Set out particulars of legacies’ and was completed in manuscript in capital letters after the printed words ‘I give and bequeath unto’. Beneath it, there was a printed form of residuary gift, but the recipient of it was left blank.


Under the blank residuary gift, there was a space for the testator’s signature, where the Deceased signed. This was followed by a printed attestation clause. There were then four dotted lines left to be filled in opposite the words ‘witness’, ‘address’ (two lines) and ‘occupation’ for the first witness, and the same again for the second witness. No separate space was designated for each witness to place his signature, in addition to filling in his name. In contrast, there was a space left for the testator’s own signature, which was a dotted line opposite the word ‘signature’.


The two witnesses to the 1998 Will wrote in their names, addresses and occupations in capital letters in the designated places, but did not place their signatures on the Will.


History of the proceedings


In August 2014, John and Thomas issued a claim seeking proof in solemn form of the 2012 Will. Mrs Payne filed a Defence and Counterclaim in which she denied that the 2012 Will had been validly executed, and sought proof in solemn form of the 1998 Will, which she said had been validly executed.


The trial of the claim took place in 2015 before HHJ Faber in the County Court at Central London, with John and Thomas represented by Counsel, but with Mrs Payne acting in person. The Judge heard evidence from John and Thomas, the two witnesses of the 2012 Will, Mrs Payne and her daughter. The Judge concluded that neither Will should be admitted to probate, for the following reasons:


  • In relation to the 2012 Will, the Judge found the evidence of Thomas and the two attesting witnesses to be ‘utterly unreliable’, to such an extent as to displace any presumption of due execution that might otherwise have arisen from the apparently regular nature of the attestation clause. She held that she was unable to find that the 2012 Will had been correctly witnessed or that the Deceased knew and approved its contents. John was refused permission to appeal against the dismissal of the claim by Briggs LJ (as he then was) at an oral hearing.
  • In relation to the 1998 Will, the Judge held that it had not been validly executed, for two reasons: (1) merely filling in the names of the witnesses in capital letters, as shown on the only available copies of the 1998 Will, did not in itself satisfy the need for the will to have been ‘signed’ by the witnesses and (2) that her decision might have been different if there had been oral evidence adduced by Mrs Payne that the witnesses had thereby intended to attest the Will, but neither witness had been called to give evidence, and the burden of proof had therefore not been discharged by Mrs Payne as the party who was propounding the 1998 Will. This latter conclusion was reached despite Mrs Payne’s own evidence that she was in the room when the witnesses ‘signed’ the Will.


Mrs Payne’s application for permission to appeal was heard by Briggs LJ at the same time as John’s application. Mrs Payne, acting in person, made an application for permission to adduce fresh evidence, in the form of two statutory declarations made by the attesting witnesses. Both witnesses stated in the statutory declarations that they had witnessed the Deceased’s signature and had written their names and addresses on the Will. Mrs Payne had also sought to rely on two short witness statements from the witnesses at the 2015 trial, but had been told by the Judge that she needed to seek her opponent’s consent to do this, and he had not agreed to this, with Mrs Payne then not taking the matter further by way of an application to the court.


The Court of Appeal hearing


As neither side was legally represented, the court decided to hear the oral evidence of one of the witnesses and that it would then hear the parties’ submissions on the appeal, including on the question of whether the witness’ evidence should be admitted and (if so) what weight should be attached to it.


The court held that if the evidence was to be admitted, it would provide strong support for Mrs Payne’s case, it considering that the witness was truthful and had a reliable recollection of the Deceased signing the 1998 Will and that he and the other witness had then put their names, addresses and occupations on the Will. The natural inference of this, the court held, was that they thereby intended to write their names as witnesses of the Deceased’s signature. The absence of a conventional signature was hardly surprising, given that the form provided no separate place for their signatures to be appended.




Section 9 of the Wills Act 1837 requires that each witness either ‘attests and signs the will’ or ‘acknowledges his signature’ in the presence of the testator, but ‘no form of attestation shall be necessary’.


In relation to deaths before 1 January 1983, section 9 of the 1837 Act stated that ‘such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.’


The court noted that the original version of section 9 did not use the verb ‘sign’ except in relation to the signature of the testator. The purpose of the change to the modern section 9 was to use the ordinary modern English word ‘sign’ rather than the more archaic ‘subscribe’, but this was not intended to be a change of any substance.


The problem in the present case had been partly caused by the fact that the printed form used for the 1998 Will appeared to be one that pre-dated the 1982 amendments; there was a reference in the attestation clause to the witnesses having ‘subscribed’ their names.


Original of the 1998 Will


At the 2015 trial, the judge and the parties did not have a complete copy of the 1998 Will to work from, and they were unable to inspect the original even though it was known to be held at the Winchester District Probate Registry.


The court held that this was a serious procedural irregularity that should never have been allowed to happen, as CPR r. 57.5 required testamentary documents to be lodged with the court.


On obtaining the original of the 1998 Will, the court noted that there were directions included on the form which had not formed part of the photocopied version which was used at trial. One of the directions stated that the two witnesses must ‘sign their names and addresses against the attestation clause before either leaves Testator’s presence’. This showed again that the form pre-dated the amendments to section 9.


The original of the Will also had at its top the signatures of Mrs Payne and a solicitor, above the words ‘executor’ and ‘solicitor’ written in faint pencil. The court held that the signature of a person who was apparently a solicitor provided some reassurance that the document was genuine.




The court decided that the appeal should be allowed and the 1998 Will should be admitted to probate for the following reasons:


  • The Judge had pronounced against it even though it appeared on its face to be validly executed, and there was no requirement in law for the witnesses to have ‘signed’ the Will in the usual modern sense of that word, as opposed to writing their names with the intention of attesting it.
  • The Judge reached her decision without having seen the original of the 1998 Will, even though it was known by the end of the trial to be held in the Winchester District Probate Registry, and it was clear from the photocopies of it in evidence that the full text had not been reproduced.
  • The Judge knew that Mrs Payne belatedly wished to adduce written evidence from the two attesting witnesses, but she took the view that this could not be permitted unless the claimants consented, which they did not. The Judge did not seem to have considered whether the interests of justice might have required an adjournment so that the original of the 1998 Will could be obtained, and arrangements could be made for at least one of the attesting witnesses to give oral evidence.
  • There is a strong public interest in valid testamentary dispositions being upheld, which was reflected in many of the special procedural provisions which apply to contested probate proceedings.
  • The special importance of hearing evidence, if at all possible, from an attesting witness was reflected in the long-established rule that such a witness is treated as a witness of the court, whose duty it is to give to any party who asks for it an account of the circumstances in which the Will was executed.
  • Mrs Payne’s application to adduce fresh evidence on her appeal should be granted, because without the evidence of the witness, the court was unable to pronounce on the validity of the 1998 Will, and the interests of justice required that it should be admitted to probate if it was validly executed. Although an appellate court will not normally grant permission for fresh evidence if it could with reasonable diligence have been adduced at trial as per Ladd v Marshall [1954] 1 WLR 1489, those principles do not place the court in a straitjacket, and there are times when the overriding objective of dealing with cases justly must prevail even where the evidence in question could and should have been obtained in good time for the trial.
Dobson v Griffey (High Court; Proprietary Estoppel/ Constructive Trust)

[2018] EWHC 1117 (Ch)

This case shows the difficulty of obtaining an interest in land under the doctrines of proprietary estoppel and constructive trust where the claimant is relying on having contributed manual labour and other assistance to the works on the property, but has not paid anything in support of the improvement works.


The facts


The Claimant brought a claim for a share in the proceeds of sale of the property known as Ballhill Farm, near Okehampton in Devon (‘the Farm’), based on the doctrines of constructive trust and/or proprietary estoppel.


The Claimant and Defendant (respectively ‘Jacqueline’ and ‘Matthew’) began a relationship in October 2004. By August 2006, the parties were living together in a rented property. In September 2006, they found the farm, and it was purchased in February 2007, in the sole name of Matthew and with the aid of a mortgage loan granted to Matthew alone. The relationship broke down in December 2011. Between those dates, various works of renovation and improvement were carried out to the Farm, first to the stables and other parts to be used as a livery business and later to the farmhouse itself.


Jacqueline moved out of the Farm in 2012. Matthew put the Farm on the market in 2012, but it did not sell. Thereafter, Matthew paid for certain works to be done to the Farm, notably rethatching the roof in 2016. He also made a planning application for change of use of a barn from agricultural to residential. He sold the Farm to a third party in 2017.


Jacqueline’s case was that, before the property was bought, there was an agreement between them as to their respective rights in relation to it, and that she relied to her detriment on that agreement by carrying out at least some of the works of renovation and improvement. Alternatively, an agreement to similar effect was, she argued, to be inferred from the course of dealing between them.


Matthew denied that there was any agreement, as alleged or at all, and also sought to minimise the extent to which Jacqueline carried out or contributed to the works of renovation.


The law


The Judge (HHJ Matthews sitting as a Judge of the High Court) recited the law relating to common intention constructive trusts as follows:


  • For a common intention constructive trust to arise, the parties must have had a common intention to share the property beneficially, upon the faith of which the claimant then acts in reliance to her detriment.
  • The common intention of the parties may either be expressed between them, as when they have a discussion and reach a conclusion, or it may be inferred from the whole course of conduct between them: Lloyds Bank v Rosset [1991] 1 AC 107, at 132. The court has no power to impute an agreement or common intention based on what it considers would have been fair or reasonable. When the court is considering what the parties actually intended, the court looks at the objective phenomena available for consideration, and not into their minds themselves.
  • Once the common intention is established, the question is whether the conduct of the claimant in relying on the common intention to her detriment makes it unconscionable for the defendant to renege on that agreement (the Judge here quoted his own decision in Culliford v Thorpe [2018] EWHC 426 (Ch), at [76]). Making physical improvements to the land which add significant value to the property can amount to such conduct (Stack v Dowden [2007] 2 AC 432 at [12], [36], [139]).
  • If such detrimental reliance is established, then the next stage is the quantification of the claimant’s share. If that is established by the common intention itself, then there is no need for the court to attempt to quantify it. But in cases where it is clear that the parties intended that the claimant should have a share, but did not quantify it themselves, the court must do so. It does this by having regard to the whole course of conduct between the parties. But this time, because the parties have not reached an agreement, it is necessary for the court to consider what is fair (Jones v Kernott [2012] 1 AC 776, [51-52].


The Judge went on to set out the relevant principles in relation to the doctrine of proprietary estoppel as follows:


  • The defendant landowner by his words or conduct makes an assurance to or creates an expectation in the claimant’s favour that the claimant will own an interest in property. It need not be the promise of a specific right or interest, as long as it is clear enough in all the circumstances: Thorner v Major [2009] 1 WLR 776, [29].
  • Assuming that it is intended to be relied upon by the claimant, and it is relied upon, to her detriment, such that it becomes unconscionable for the defendant to resile from it, an equity is thereby raised against the defendant. The claimant is then entitled to an appropriate remedy to satisfy the equity. This may be an order for the defendant to perform the promise itself, or it may be something else, perhaps the payment of money by the defendant to the claimant.


In the present case, the primary claim made by the claimant was to a one-half share in the profit made on the sale of the Farm. Matthew had submitted that this was more likely to be satisfied through the doctrine of proprietary estoppel than through that of the common intention constructive trust. The court, however, was not sure that it made much difference given the common root from which both doctrines sprung. The court further held that a promise by a property owner to another of a share in the future profits of the sale of the property, if enforceable, amounts to the grant of an equitable interest in that property, even though it only crystallised on the sale of the property.


The court’s findings


The court found that sometime into 2006, the parties had decided to look for a property to live in together, either temporarily until a permanent property was found, or permanently, if they found the right property sooner.


Jacqueline had alleged that in September 2005, she and Matthew had spent a few days travelling around Devon and Cornwall looking at suitable areas and properties on the market. She alleged that one evening at the Rock Inn pub in Georgeham, Devon, they discussed their plans for purchasing a property, and agreed that they would be best-placed to take out a mortgage if the property and the mortgage were placed in Matthew’s sole name. They also agreed, according to Jacqueline, that they would purchase property requiring renovation work, which would be done or overseen by Jacqueline, and that upon the sale of the property they would split the profit or increase in value equally. Whilst these allegations were made in her Particulars of Claim, she added an allegation in her oral evidence that it was agreed between the parties at the pub that the property would belong to her in the event of Matthew’s death.


However, the Judge rejected Jacqueline’s account of the alleged conversation at the pub and held that there had been no such agreement.


The court held that Jacqueline did not contribute to the purchase and had no liability for the mortgage.


The survey for the mortgage indicated that there were significant works of repair that needed to be carried out, which were costed at at least £65,000. However, the report also said that the purchaser should prudently budget for £100,000 to be spent on the property. Matthew did this. He was also able to negotiate the price down by £20,000.


Although the Judge rejected Jacqueline’s evidence regarding the alleged conversation at the Rock Inn pub, Jacqueline argued that there was in any event a subsequent express understanding that the Farm would be their home for the rest of their lives and that it would provide for them in their retirement. She also said that Matthew told her that in the event of his death, the property would be hers. However, the court held that the decision to buy the Farm was not a joint decision and was Matthew’s decision alone. There was no agreement, as alleged by Jacqueline, that she was to contribute her business and building experience and her labour.


The court accepted that Jacqueline ultimately had some kind of expectation that she could remain at the Farm for as long as she wished, and that Matthew was aware of that expectation, although he considered that it was based on their remaining together, perhaps with children. However, this expectation did not spring from any assurance or other conduct of Matthew. Instead, it arose from Jacqueline’s belief that they were going to make a home out of the Farm and have children and live there happily ever after.


The court accepted that Jacqueline did significant work in order to make the livery yard at the Farm usable and indeed attractive to livery customers. In relation to a lot of this work, however, Jacqueline had professional assistance which was paid for by Matthew or his company. Jacqueline made a real contribution by her labour and supervision, but exaggerated the contribution she had made.


Jacqueline also later contributed labour to a holiday let the couple established in the annex to the farmhouse, and was also involved in improvements to the farmhouse itself. However, in relation to the annex, again a lot of the work was done by other professionals, and the costs were paid for by Matthew. As for the farmhouse, Jacqueline did move of the preparatory work in each of the rooms, involving removing wallpaper, damaged plaster or other rotten materials, drilling out concrete, stripping doorframes and filling holes. She was also heavily involved in the painting work which followed the renovations, which were carried out by professional building contractors paid for by Matthew. The court accepted overall that she made a significant contribution to the renovations.


The decision


Having found that there was no express agreement that the ownership of the Farm should be shared, and that Matthew did not make any assurance to Jacqueline that she would share in the ownership of the property, the court considered whether a common intention to share ownership could be inferred on the basis of the surrounding facts. It concluded that it could not, including for the following reasons:


  • The property was purchased in Matthew’s sole name, with his own funds, with the aid of an interest-only loan to himself alone, with the interest rate fixed for five years and thereafter at a rate of 1.99% above the Bank of England repo rate. There was limited provision included for capital repayments. So at the end of the five year term, the loan rate would (probably) rise, and to avoid that the entire loan would either have to be refinanced, or the property would have to be sold so that the loan could be repaid.
  • Jacqueline did not contribute to the purchase price.
  • It was Matthew’s decision alone to purchase the property.
  • Matthew renamed an existing company of which he was the sole director and in which he owned all the shares, and used it to carry on business activities at the Farm, including the livery stable. Jacqueline accepted that she had no beneficial ownership of the company.
  • Matthew had set aside £100,000 for the renovations, and was not relying on Jacqueline’s abilities as a DIY enthusiast. He had seen her efforts at the house belonging to her parents which she had previously rented, and had not been impressed. He paid for everything.
  • The court referred to James v Thomas [2008] 1 FLR 1598, [36], and Morris v Morris [2008] EWCA Civ 287, in which it was held that the court should be cautious before finding that the activities of a wife or a cohabitant can only be explained on the footing that she believes that she was acquiring an interest in land.


The Judge further held that if he was wrong about his primary conclusion that no common intention/ assurance arose, in any event, Jacqueline had not relied to her detriment on any such common intention/ assurance. As James v Thomas and Morris v Morris showed, a person in the position of Jacqueline might well be expected to do the kind of things which she did because of the relationship which she enjoyed with Matthew, and the aspirations they had for the future, rather than in reliance on some alleged agreement between the parties.


Accordingly, the claim was dismissed.