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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fuller v Strum [2001] EWCA Civ 1551 (11 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1551.html Cite as: [2001] EWCA Civ 1551

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Jules Sher
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Thursday 11th October, 2001

1. LORD JUSTICE CHADWICK: The application before me is made by Mr Michael Fuller in probate proceedings which he has brought in relation to the estate of the late Mr Max Moses Strum.
2. Mr Max Strum died in Israel on 24 December 1998. His statutory next of kin was his adopted son, Mr Geoffrey Strum, who is defendant to the proceedings brought by Mr Fuller. In those proceedings Mr Fuller sought probate in solemn form of a will dated 31 March 1989 in which he was named as executor. By that will the testator gave pecuniary legacies amounting to £34,000. Those legacies included a legacy of £12,000 to Mr Fuller himself; and legacies of £6,000 each to Mr Fuller's sister and his two nieces. The remaining legacy of £6,000 - making up the £34,000 in all - was to Miss Betty Griffin, a long-standing and close friend of the testator.
3. Mr Geoffrey Strum opposed probate of the 1989 will on two grounds. First, on the ground that it was a forgery; and second, on the ground that the testator did not know and approve its contents.
4. The proceedings came to trial in October 2000, before Mr Jules Sher QC, sitting as a deputy judge of the High Court in the Chancery Division. The judge was not satisfied, to the high standard required in relation to such an allegation, that the 1989 will had been forged; but he did find that Mr Fuller had not discharged the burden that was placed upon him by the circumstances in which the will was made of proving what is often called "the righteousness of the transaction". The judge found that the testator did know and approve of the £6,000 legacy to Miss Griffin; but he was not satisfied that the remaining contents of the will had the testator's knowledge and approval. In the result, therefore, the judge admitted the 1989 will to probate; but he struck out the legacies to Mr Fuller, his sister and his two nieces. He struck out, also, the appointment of Mr Fuller as executor. The consequence was that the will was admitted to probate and letters of administration were granted to Mr Geoffrey Strum with the will annexed.
5. In reaching the conclusion which he did the judge referred to the proportion which legacies of £34,000 bore to the size of the estate. He said this, in the course of interlocutory observations on 5 October:

"It seems to me actually, the size of the estate is always an important consideration, because if the estate -- for an argument's sake -- was worth many hundreds and thousands of pounds, then this Will, which interposed £34,000 of legacies, would've been a fairly minor interruption of the testamentary devolution that would have otherwise have occurred. If on the other hand, the amount of money that was in existence at the time was much more modest, then the -- inter-position of £34,000 of legacy, is much more significant. And I think actually, we are in the latter category."

6. The judge proceeded on the basis that this was a case in which the proportion of the legacies was significant; because he was told that the value of the estate at the relevant time was in the region of £70-75,000. On that basis the amount of the legacies was approximately half the value of the estate.
7. Mr Fuller applied to this Court for permission to appeal. That application came before Robert Walker LJ on 16 February 2001. The Lord Justice, with an expression of hesitation - because, as he said, he was not at all sure that giving Mr Fuller permission to appeal was doing him any favours at all - reached the conclusion that permission to appeal should be granted. He said that he could not take the view that the appeal was hopeless.
8. In the course of his judgment on 16 February 2001 Robert Walker LJ said this, at paragraph 3:

"The judge assumed (no doubt on what he was told) that the total estate was about £70,000, but Mr Fuller contends today that £150-£200,000 would be a better estimate. It is a matter of some importance to establish what the size of the estate was."

9. At paragraphs 11 he observed that:

"If the judge was obviously misinformed of the likely value of the estate, that is another factor to be considered."

and at paragraph 13 that his present feeling was:

"... that it would be right to let in further evidence, if it is available, as to the value of the estate, but Mr Fuller may have serious difficulty in persuading the court that any other evidence should be admitted, since it will be said that it should have been called at trial."

10. I understand that the appeal is fixed for a hearing on 1 or 2 November 2001. Encouraged perhaps by the observations in paragraph 13 of Robert Walker LJ's judgment, Mr Fuller has made application, by notice dated 20 August 2001, for an order that Mr Geoffrey Strum, the respondent to the appeal, provide full details of the estate of the deceased, Mr Max Moses Strum, particularly the assets held and their approximate values. It is that application which is now before me.
11. For my part, I can see no basis for an order in those terms. In the first place the relevant information is not the value of the estate now, in 2001, nor even the value of the estate at the testator's death in 1998. The relevant information is what the testator believed the value of his estate to be when he executed the will in 1989. It is the proportion which £34,000 bears to what the testator may have had in mind as the total value of his estate when he made the will which may cast light on the question whether the testator knew and approved the contents of the will. As the judge put it in the passage to which I have already referred, the relevant consideration is whether the testator, by giving pecuniary legacies of £34,000 in the will, was diverting a significant proportion of this estate away from his adopted son, who may be seen as the most natural object of his likely testamentary dispositions. I do not believe that Robert Walker LJ, in the observations which I have set out, intended to suggest otherwise.
12. In the second place, as the result of an order obtained by Mr Fuller, Mr Geoffrey Strum is not, at present, clothed with the powers of an administrator of the estate or personal representative of the testator. The judge's order giving Mr Geoffrey Strum letters of administration with the will attached was stayed by an order made by Robert Walker LJ on the application of Mr Fuller at the time when permission to appeal to this court was granted. So Mr Geoffrey Strum has no formal standing as personal representative appointed by the court to make investigation into his late father's affairs.
13. What Mr Geoffrey Strum has done through his solicitors - as appears from the substantial documentation which he and they have provided - is to write to a number of banks; and to put together such information as he has obtained from them. The information is summarised in an affidavit sworn by Mr Geoffrey Strum's solicitor, Miss Emberton, and included in the bundle before me. That puts the value of the estate, at present, at just under £66,000.
14. In my view it would be unreasonable to expect Mr Geoffrey Strum in the present circumstances to expend further monies in making further enquiries. What I propose to do, therefore, is to require him to make a short affidavit (as he is willing to do) confirming that the information in Miss Emberton's affidavit includes all the information which he, Mr Geoffrey Strum, has in relation to the assets in his late father's estate, either now or in 1989. Clearly, in making that affidavit he will include any additional information (if there is any known to him) which is not already in Miss Emberton's affidavit. That, at least, will provide some foundation for consideration of the matter which both the judge and Robert Walker LJ addressed.
15. I should add that Mr Fuller tells me that he proposes to seek permission to adduce as further evidence an affidavit from Mr EI Zeid, an accountant, in which he, Mr Zeid, will confirm what he has said in a letter of 8 October 2001. Mr Zeid has said in that letter that Mr Max Strum informed him just before going to live in Israel that he, Mr Max Strum, had £212,000 to invest. That application is not before me. It will have to be considered on its merits at the time when it is made; but, no doubt, Mr Geoffrey Strum and his advisers will have regard to the fact that that application is likely to be made. When Mr Geoffrey Strum comes to swear the affidavit which he is to make, he may think it sensible to consider whether he can throw any light on the statement which his father is said to have made to Mr Zeid.
16. Subject therefore to the direction for an affidavit, I make no further order on this application.
ORDER: No order on application, save that Mr Geoffrey Strum is to make an affidavit in the terms indicated in the judgment. (Order not part of approved judgment)