Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch)

A testator's 2014 will left his farm outright to one son, Richard, contrary to earlier instructions giving all four sons shares. The court found the testator lacked knowledge and approval of this change and ordered words omitted from probate to reflect his true intentions.

Facts

The testator, John Williams, died aged 91 in September 2017, survived by four sons: Timothy, Richard, Thomas and Ifor. His principal asset was Little Cwmdowlais Farm, valued at approximately £700,000 out of a gross estate of £983,000. Richard had worked on the farm for decades, lived there with his wife Susan, and was in partnership with the testator.

Under the 1990 Will, the farm was to pass into residue to be divided equally among the four sons, with Richard holding a 10-year option to purchase. On 19 May 2014, the testator attended Harding Evans solicitors and gave detailed instructions to Tracy Gillard (a secretary, not a solicitor) that Richard was to receive the tenancy and half the estate, with 50% divided among all four sons, and the option period reduced to five years. The effect was that Richard would receive 62.5% of the reversion of the farm, with the other brothers receiving 12.5% each.

On 18 June 2014, paralegal Amanda Campbell telephoned the testator unannounced and recorded materially different instructions: that the farm was to pass outright to Richard, with 62.5% of residue also to Richard. Because the farm had been removed from residue, the other brothers would receive nothing or virtually nothing. A draft will and Letter of Wishes were sent, described in the covering letter as giving Richard ‘a larger share of your residuary estate… (including the house and farm)’. The 2014 Will was executed on 21 July 2014. Timothy challenged it, claiming the testator lacked knowledge and approval.

Issues

The principal issues were:

1. Whether the circumstances surrounding the 2014 Will raised suspicions as to whether the testator knew and approved its contents;
2. If so, whether the totality of the evidence dispelled those suspicions;
3. If knowledge and approval were lacking in part only, whether the court could admit the will to probate with the offending words omitted.

Arguments

Claimant (Timothy)

Timothy argued that the 2014 Will did not reflect the testator’s true intentions. The instructions to Ms Gillard clearly contemplated the farm falling into residue with Richard having a 62.5% share and an option over the remainder. The sudden change recorded by Miss Campbell was unexplained, never confirmed with the testator as a conscious change, and produced a will that rendered the carefully calibrated residuary shares nugatory. Timothy invited the court to pronounce against the 2014 Will entirely.

Defendants (Richard and Susan)

Richard and Susan argued that the 2014 Will was validly executed by a testator with capacity, prepared by solicitors, read by the testator, and explained. In the alternative, if the court found partial lack of knowledge and approval, it should admit the will to probate with the offending words in clause 5 omitted, so that the farm would fall into the residuary estate in accordance with the original instructions.

Judgment

HHJ Keyser QC, sitting as a High Court judge, set out the governing law by reference to Fuller v Strum [2002] 1 WLR 1097, Hawes v Burgess [2013] EWCA Civ 74, and Gill v Woodall [2011] Ch 380. Where suspicions are aroused, the propounder must affirmatively prove knowledge and approval.

While factors favoured validity (capacity, solicitor preparation, reading of the will, face-to-face execution), the judge reached the clear conclusion that the testator did not know and approve the contents of the 2014 Will and had seriously misunderstood its provisions. Fourteen factors compelled this conclusion, including:

• The 2014 Will did not accord with the detailed instructions given to Ms Gillard a month earlier;
• The testator never contacted Harding Evans to change his instructions;
• Miss Campbell’s unannounced telephone call created obvious potential for confusion;
• The judge rejected Miss Campbell’s evidence that she had gone through Ms Gillard’s recorded instructions with the testator, preferring the contemporaneous file note;
• The testator never said he had changed his mind, and Miss Campbell never pointed out the difference or asked about it;
• Miss Campbell failed to address the effect of the altered instructions on the residuary gift or the omission of the option clause;
• The letter of 19 June 2014 was ‘thoroughly misleading’ in suggesting the farm formed part of residue;
• The will was not read to the testator at execution;
• The will’s carefully specified residuary percentages made no practical sense once the farm was removed from residue;
• The testator’s August 2014 conversation with Timothy confirmed that the testator himself believed Richard was receiving 62.5% of the farm, not the whole.

The judge concluded that the testator intended Richard to have the partnership and agricultural tenancy together with a large share in the reversion, enabling Richard to buy out his brothers, rather than an outright gift of the farm.

Partial omission

Having found the testator lacked knowledge and approval of the gift of the farm in clause 5, the judge considered the court’s jurisdiction to omit words. He reviewed In re Morris, deceased [1972] P 62, In re Phelan, deceased [1972] Fam 33, In re Horrocks, deceased [1939] P 198, and Marley v Rawlings [2015] AC 129. The judge held that omitting the words in clause 5 relating to the farm would cause the farm to fall into residue, closely matching the testator’s true intentions. The omission did not alter the meaning of the remaining words (merely enlarging what fell within ‘residuary estate’) and therefore did not offend the principle in Horrocks. The jurisdiction did not, however, permit addition of the five-year option.

Implications

The decision reinforces several important principles. First, it illustrates that the strong presumption of knowledge and approval arising from proper solicitor preparation and execution can be displaced where the evidence shows a material and unexplained departure from earlier instructions, particularly where the solicitor failed to confront the testator with the change or explain its consequences. The judgment is a cautionary tale about the risks of taking instructions over the telephone, unannounced, from an elderly testator without systematically reviewing previous instructions or explaining the practical effects of altered dispositions (such as the emptying of residue).

Secondly, the case demonstrates the continuing utility of the partial omission jurisdiction where rectification under section 20 of the Administration of Justice Act 1982 is not pleaded. Applying the principles from Marley v Rawlings, the court may excise discrete provisions not known and approved, provided the sense of the remaining words is not altered. The judgment usefully maps the boundary between permissible omission (where meaning of retained words is unaltered) and impermissible redrafting (which would cross into making a new will).

Thirdly, the decision is significant for practitioners preparing wills: contemporaneous file notes are critical and will be preferred to later recollections; any apparent change in instructions must be expressly identified, explored and recorded; and the overall coherence of the dispositions (particularly the content of residue) must be checked with the client. The case also confirms the limits of such correction: the court cannot add words (such as a missing option clause), so some aspects of the testator’s intentions may remain unrealised absent agreement between beneficiaries.

Verdict: The court held that the testator did not know and approve the contents of the 2014 Will insofar as clause 5 gave the farm outright to Richard. The 2014 Will was admitted to probate with the relevant words in clause 5 omitted, so that the farm falls into the residuary estate to be distributed under clause 8 (62.5% to Richard and 12.5% to each of the other three sons).

Source: Mundil-Williams v Williams & Ors Neutral Citation Number[2021] EWHC 586 (Ch)