Case No: CHANF/2001/0229/A3
Neutral Citation Number: [2001] EWCA Civ 1879
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
Mr Jules Sher Q.C.
Royal Courts of Justice
Strand,
London, WC2A 2LL
Friday 7 December 2001
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE CHADWICK
and
LORD JUSTICE LONGMORE
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FULLER / Appellant- and -
STRUM / Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr. Fuller appeared in person
Mr. Jack Mitchell (instructed by Messrs Embertons of Enfield) appeared for the Respondent
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Judgment
Lord Justice Peter Gibson:
1. The Claimant, Michael Fuller (“Michael”), appeals against the order of Mr. Jules Sher Q.C., sitting as a Deputy Judge of the High Court, on 20 December 2000 in a probate action. The judge pronounced for the force and validity of a Will only in respect of certain standard directions and one of five pecuniary legacies. In respect of all the other terms of the Will including the appointment of Michael as executor the judge was not satisfied of the righteousness of the transaction. The judge refused permission to appeal, but this appeal is brought with the permission of Robert Walker L.J.
2. The judge’s highly unusual order arises out of highly unusual circumstances. The late Max Moses Strum (“the Testator”) was born in 1920 in Halberstadt in Germany. He was Jewish. At the beginning of the second World War he came to England as a refugee from Nazi Germany. In 1940 he married another Jewish refugee, Gertrude Levinson. He became a British citizen in 1948. In 1955 he and his wife a adopted a 10-day-old boy, the Defendant, Geoffrey Strum (“Geoffrey”). Geoffrey was born out of wedlock to an Irish mother. The Testator worked as a waiter at the well-known London restaurant, Bloom’s, during his working life. He was a Zionist and keen to go to Israel, but his wife was not, and during her life emigration to Israel was out of the question. His wife had a stroke in 1975 and was confined to a wheelchair. Eventually she became bed-ridden. She died on 27 January 1985.
3. The Testator owned the home where he lived, 162 Glengall Road, Woodford Green. Geoffrey, who has not married, lived in the house too. By the end of 1988 the Testator had decided to sell the house and emigrate to Israel.
4. The Testator was a sociable and friendly man and was liked by all who knew him. There was a society of Jewish refugees from Europe who used to meet in restaurants in the East End. The Testator and his wife used to meet Michael’s parents, whom the judge found to be their close friends, and Michael and his sister Vivienne knew the Testator well enough to call him “Uncle Max”. Michael at one time worked in Bloom’s, the Testator having got Michael the job, and later the Testator used to go with Michael, who ran a weekend car boot sale business, to help him run his car boot sales. Michael is about 11 years older than Geoffrey. Vivienne has two daughters.
5. The trusting relationship between the Testator and Michael can be seen from the circumstances of the sale by the Testator of his house. Michael was selling his own house at that time with a view to moving to a smaller house. The Testator agreed to sell his house to Michael for about £95,000, a price which represented an undervalue of some £10,000 or so. For three months before completion on 31 March 1989 the Testator allowed considerable work to be done to the house to make it suitable for Michael and to create two separate flats, one for Vivienne and her daughters, and one for Michael’s and Vivienne’s aunt, Clara. Even before 31 March, Clara and Vivienne had moved into their flats. Throughout this period whilst the work was being done the Testator and Geoffrey continued to live in the house. As the judge found:
“this was a source of irritation and anxiety to [Geoffrey] who was concerned as to what would happen and who would be responsible for all those works if the intended purchase went off for any reason. Moreover, [Geoffrey] was not pleased about the undervalue.”
In fact Michael paid for all the conversion works, which indeed was Geoffrey’s belief, as he himself said in evidence. 31 March was an eventful day. In addition to the completion of the sale of the house to Michael, the Testator executed two documents, one called “Receipt and Undertaking” and the other the Testator’s Will which would appear to be the only Will he ever executed.
6. The execution of the first document came about in the following way, according to Michael’s evidence to the judge. Michael had spare money to invest from the sale of his house for £270,000, even after the purchase and conversion of the Testator’s house, and the Testator was concerned that Michael should invest wisely to safeguard his future, as he felt that Michael’s income from car boot sales was “built on straw”. The Testator repeatedly asked Michael to give him £25,000 to invest for Michael in Israel at what were said to be the very high rates of interest obtainable there, and he said that he could guarantee Michael 10% per annum simple interest and that in 10 years’ time he would guarantee to double Michael’s money. Michael decided to give the Testator £15,000 to invest for him. Clara spoke to the Testator about his financial affairs in Michael’s presence and suggested that he really ought to make a will before going to Israel. The Testator said that it was a good idea and would seek advice on the wording from a retired solicitor whom he knew. A few days later in a discussion between Clara, Michael and the Testator one of them suggested that if the Testator was to take £15,000 from Michael, they should record it in writing and have the transaction witnessed by a third party to protect both Michael and the Testator. They therefore arranged to meet on 31 March 1989 for tea and Michael agreed to bring Isaac Aghajanoff who was known to the Testator, Clara and Michael.
7. Michael on 31 March brought Mr. Aghajanoff to 162 Glengall Road, where, in the sitting room, the Testator and Clara were having tea. Michael produced £15,000 in cash in 15 bundles of notes, each of £1,000. Michael asked the Testator if he wanted to count the money but the Testator said that he trusted Michael. Mr. Aghajanoff and Clara heard the conversation and saw Michael give the Testator the money. Vivienne popped in and saw the money, and Michael commented that he was giving £15,000 to the Testator to invest in Israel.
8. Michael had already drafted a rough form of words to evidence the transaction. He gave that to the Testator to look at. The Testator spent some time reading the document through and asked Michael to insert some words (the words “God Forbid” twice and a reference to executors and administrators which he had been advised to insert). Michael then wrote out the full form of the document which the Testator signed. Michael offered to go out and get photocopies for everyone present, but Clara at her suggestion typed up the final form on her own typewriter in her bedroom and the Testator signed the typed version. Michael then procured photocopies and when he returned he gave a copy to each of the Testator, Mr. Aghajanoff and Clara. He kept the original manuscript document and the Testator kept the original typed version.
9. The document which the Testator signed was in the following form:
“RECEIPT AND UNDERTAKING
I, MAX STRUM, of 162 Glengall Road, Woodford Green, Essex, hereby confirm that I have on this 31st day of March 1989 received from Mr. Michael Fuller, also of 162 Glengall Road, Woodford Green, the sum of £15,000 (Fifteen thousand pounds) in cash, and I hereby undertake to use and/or invest that money on his behalf, and promise to repay that money (plus simple interest of 10% per annum, whether or not interest rates or property values rise or fall) on the 31st day of March 1999, i.e. a guaranteed total sum of £30,000 (Thirty thousand pounds).
If, God Forbid, Michael should die before 31/3/99, his wish is that the principal of £15,000 (plus accrued simple interest at 10% per annum, calculated from the date hereof up to and including the date of his death) is to be paid to, and shared equally between, his sister, Mrs. Vivienne Cummings, and her two daughters (Miss Sarah Cummings and Miss Michelle Cummings), all of 162 Glengall Road, Woodford Green.
In, God Forbid, the event of my death before 31/3/99, then I hereby request the Executors or Administrators of my Estate to repay the principal of £15,000 (plus accrued simple interest at 10% per annum, calculated from the date hereof up to and including the date of my death) to Mr. Michael Fuller at the earliest possible time.
Copies with:-
MAX STRUM
CLARA TEITLER
ISAAC AGHAJANOFF”
10. By the time of the trial Clara had died, but Mr. Aghajanoff gave evidence confirmatory of what Michael said had occurred in relation to the Receipt and Undertaking and Vivienne also gave evidence that she had seen a large pile of currency and had been told by Michael that he was giving the Testator £15,000 to invest in Israel because of the far higher rate of interest there and that it was intended that the Testator would repay Michael in 10 years’ time.
11. The making and execution of the Will then followed in these circumstances, according to Michael. At that point the Testator suddenly said: “Before you take Isaac home, let’s go and write up my will” and he asked Mr. Aghajanoff if he would mind witnessing the Testator’s will. At the Testator’s request Michael went with the Testator into Clara’s bedroom. Again Mr. Aghajanoff’s evidence was to the same effect. Mr. Aghajanoff could not, of course, say what went on in the bedroom while he and Clara stayed in the sitting room.
12. Michael’s evidence was that the Testator had two blank will forms with him. They both sat on the bed while the Testator dictated the terms which he wanted in the Will. Michael wrote them out on a pad. The Testator had some notes to which he referred and which the Testator had prepared in advance. The Testator said to Michael that he had been told of some legal terms such as “testamentary expenses” and had been advised of the need for full names and addresses of the beneficiaries by the retired solicitor whom he had consulted. The Testator read and altered what Michael was writing. The Testator wanted to put in a few kind words about each legatee and Michael was embarrassed when the Testator referred to him. When the Testator said what he had previously mentioned to Michael and Clara, that he was minded to leave the residue to the State of Israel, Michael reminded the Testator that Clara and Michael had tried to persuade him that it was not right to leave nothing to Geoffrey and that Clara had pointed out that Geoffrey, who had been a great disappointment to the Testator, was still young enough to change and might turn out to be a “mensch” (a decent human being). The Testator after reflecting said that he would leave the residue to Geoffrey, though with grave misgivings. The Testator said that he wanted Michael to be his executor because he really did not like his son. Michael wrote the terms out onto one of the Will forms in pencil. When he got to the bequest to Geoffrey, the Testator suddenly burst out with a tirade against him and insisted on putting in words very critical of him. Michael said that it was very strong stuff but was told by the Testator very firmly to “just put it in”; so he did. Michael complied with the Testator’s request to write out the Will in ink on the second Will form in capital letters and to try to get it all on one page. Michael then gave the Will to the Testator who read it through carefully. When satisfied with the final draft, the Testator tore up the notes and earlier drafts. The whole process took 45 to 60 minutes. The Testator then came back into the sitting room with the Will in hand.
13. Michael’s evidence then continued that the Testator went to the breakfast bar, laid the Will on the surface, placed a sheet of paper over the text leaving space at the bottom for signatures. The Testator called Clara and Mr. Aghajanoff over to witness his Will, Michael standing out of the way. The Testator signed the Will followed by Clara and Mr. Aghajanoff. The Testator thanked them, telling Mr. Aghajanoff “You should live to be 120” (a Jewish blessing), folded the Will up (it is of double A4 size), put it in his pocket and swore Michael, Clara and Mr. Aghajanoff to secrecy because, he said, “Geoffrey will kill me if he finds out what I have done.” Throughout the afternoon he had been on edge in case Geoffrey appeared. Michael then took Mr. Aghajanoff home. Mr. Aghajanoff’s evidence was again confirmatory of Michael’s evidence. He said that he could not read any writing in the Will save for the words “This is the Last Will & Testament of me MAX MOSES STRUM”.
14. The Testator then went up to Vivienne’s flat to have a cup of coffee with her. He tapped his chest over his inside jacket pocket and told her that he had just signed his Will and he made her swear not to tell Geoffrey.
15. The Will, signed that day by the Testator and witnessed by Mr. Aghajanoff and Clara, was in the following form:
“This is The Last Will & Testament
of me MAX MOSES STRUM
of 162 GLENGALL ROAD, WOODFORD GREEN,
in the County of ESSEX made this 31ST (THIRTY-FIRST)
day of MARCH one thousand nine hundred
and EIGHTY-NINE.
I hereby revoke all Wills and Codicils made by me at any time heretofore. I appoint