Re-trial of contentious probate case ordered due to errors by the Judge

In July 2020, judgment was handed down in the case of Wrangle v Brunt [2020] EWHC 1784 (Ch), in which the trial judge dismissed allegations of forgery brought by the deceased’s mother and brother in respect of duplicate wills apparently signed by the deceased in 1999 which had only recently been rediscovered. The deceased’s mother and brother appealed the decision and, on 28 January 2021, a retrial was ordered, largely as a result of errors in the trial judge’s approach to the assessment of evidence in concluding that the will was not a forgery.

The trial judge had used the case of Re Parsonage (Deceased) [2019] EWHC 2362 (Ch) as a basis for his analysis of the evidence and the making of findings of fact. The approach set out in Parsonage was: to:

• take reliable contemporaneous documentary evidence as a platform for fact finding;
• add known, established or probable facts; and
• build this further with witness evidence which was consistent or compatible with that underlying body of reliable documentary evidence.

According to the appeal judge, the main error in following the approach in Parsonage was that none of the documentary evidence before the trial judge could be described as ‘reliable’. The contemporaneous documents were over 20 years old and were all under challenge. The only facts which could be agreed upon were highly suspicious. Some witnesses were adamant that the wills were forgeries and cited various obvious errors in the documents that the testator was unlikely to have approved. Other witnesses contributed towards a credible circumstantial picture of the apparent execution of the duplicate wills. In short, the factual picture was far from straightforward.

The appeal judge’s view was that the trial judge had applied Parsonage too prescriptively in the context of the facts of the case before him. He found fault with two main aspects of the trial judgment:

• it had not explained the reasons why the judge had found some witnesses convincing and others untruthful and did not consider the witnesses’ likely motives; and
• it did not weigh the available evidence adequately, and suggested in particular that the evidence of the handwriting experts had been downplayed against the factors which indicated that the duplicate wills had been forged.

Our thoughts on the case

It is quite unusual for a retrial to be ordered but we now have some insights as to how witness evidence in contentious probate claims is to be properly evaluated by a Judge, which will keep practitioners and clients focussed in their case preparation.