The presumption of revocation, removal of personal representatives, claims for an account and a £625,000 freezing injunction – Natasha Dzameh successful in High Court probate and estate administration joined trials

Natasha Dzameh, a commercial and chancery barrister, recently successfully represented an administrator in 2 joined trials in the High Court, Business and Property Court in Wales, Property, Trusts and Probate List (Ch D) before HHJ Keyser QC (Scott v Allen [2019]; Smith, Binns & Clarke v Scott [2020]). The original listing was 3 days.

The first trial concerned a claim by the administrator for an injunction, an account and other relief in relation to a property he alleged was the main asset in the Deceased’s estate. Control of this unregistered property had been acquired by the Defendant who had let the property and failed to account to the Deceased’s estate for the rental income. In the course of the litigation process Natasha successfully obtained an interim freezing injunction in the sum of £625,000 which resulted in recovery of the main asset prior to trial.

The Defendant sought to offset a six-figure sum which she claimed she had expended in recovering possession of the property from squatters, securing, repairing, refurbishing, redecorating, maintaining, insuring and managing it. This dwarfed the rental income for which the administrator sought an account. HHJ Keyser QC offset a little over £4,000 and, after this was taken into account, the Defendant was required to pay almost £70,000 to the Deceased’s estate.

The second trial was a claim by 3 individuals who would be residuary beneficiaries if the Court propounded for a 3 page will (2 substantive pages and a backsheet) executed in 1988. They also sought to remove the Defendant as an administrator. The will supplied to the Court was an uncertified copy of a will executed in 1988 which failed to dispose of the Deceased’s estate entirely. The Deceased’s estate had, until this point, been administered as though the Deceased died intestate. The administrator asserted that the presumption of revocation applied and that said presumption had not been rebutted. The witness who found the will was located in the USA and, whilst no attempt had been made to arrange a video link, was permitted to give evidence via telephone.

The American witness had supplied a witness statement in support of propounding for the 3 page will, alleging it to be the will she had found. It became apparent during Natasha’s cross-examination of her that she could not explain the origin of 2 pages of the will nor recall the content of the will despite said witness statement. The 1 page the witness could recall finding was found in the possession of the Deceased’s brother who had died after her. None of the Claimants’ witnesses asserted that the contents of the will had been known to them before it was found or that the contents were in line with their expectations.

The circumstances were such that the Claimants had made no attempt to obtain evidence from the attesting witnesses and the Defendant had not obtained a statement from anyone who had worked at the drafting firm, said firm no longer being in existence. The second trial was therefore adjourned following the end of cross-examination, to allow further evidence to be obtained, in line with the Court of Appeal’s decision in Payne v Payne [2018] EWCA Civ 985.

When the second trial returned to Court the evidence had altered in that:

• one of the attesting witnesses was confirmed to be deceased whilst the other could not recall the execution of the will;
• a partner of the drafting firm confirmed its files were acquired by another firm when it was taken over and the Deceased would have been given the option to have the will returned to her (if the firm was holding it) or it to be held by the acquiring firm; and
• the acquiring firm confirmed they had no record of the Deceased ever being one of their clients.

HHJ Keyser QC found that on the balance of probabilities: the will was executed; it was in the Deceased’s possession if not before then immediately after the drafting firm was acquired; it had not left her possession and she had not hidden it. The presumption of revocation applied and the Claimants had failed to rebut the presumption. The existing grant of probate therefore stood. The Claimants’ assertions as to why the administrator should be removed centred around allegations of untrustworthiness and concerns over his motivation. The learned judge considered these were unfounded and that there had been a degree of confusion and misunderstanding by the Claimants about the role of an administrator.

The administrator’s costs in both trials were ordered to be paid by the other parties respectively with an indemnity from the estate insofar as said costs were not recovered from them. Further, in relation to any Claimants who were beneficiaries under the intestacy rules, the administrator was permitted to recover costs directly from their shares of the Deceased’s estate.

Importance of the case

Contested trials to propound a will are relatively uncommon. This case serves as a reminder of the procedural hurdles to be satisfied when such actions are brought and how the presumption of revocation operates.

If you would like to discuss instructing Natasha, please contact her clerks on 0117 923 4740 or e-mail [email protected].