“The doctrine of ’suspicious circumstances’ is the standard way of attacking a will where fraud or undue influence is suspected.” Discuss.

  Oxford Advanced Learner’s Dictionary (7^th Edition) defined ‘standard’ as ‘a level of quality, especially one that people think is acceptable.’ The doctrine of ‘suspicious circumstances’ had indeed turn out to be an acceptable way to attack a will where fraud or undue influence is suspected, even though it may not be an appropriate way, because Rule 40a of the Contentious Probate Rules 1862 made it clear that if someone wanted to challenge a will on the ground that there had been undue influence or fraud, he had to do so openly. A plea of lack of knowledge and approval could not be used as a cloak for a plea of undue influence or fraud.

  However, it is difficult to prove fault. The burden of proof and the standard of proof are both very high. Furthermore, if someone wanted to challenge a will on the ground of undue influence of fraud, he bears the burden of proving it. He also bears the cost. On the other hand, if he challenge a will on the ground of lack of knowledge and approval, his task will be easier. The propounder will bear the burden of proof. The cost comes from the estate. Therefore, the doctrine of ‘suspicious circumstance’ is the standard way for a person to challenge the will on the ground of fraud or undue influence.

  This standard way of challenging a will is not problem-free. The problem with such a fraudulent pleading is that when a person uses the doctrine of ‘suspicious circumstances’ but brings in evidence of fraud, it is possible that the judge will reject the evidence on the grounds that the evidence is irrelevant. Such fraudulent pleading might also make it difficult, or even impossible, for the propounder to defend himself, because he has no idea that evidence of fraud will be brought in. Therefore, the usage of doctrine of ‘suspicious circumstances’ may be acceptable (or probably desirable) for the challenger, but it does not appear to be acceptable to the courts and the propounder.

Pauline Ridge opined in her article, ‘Equitable Undue Influence and Will’: “Oddly it is said that if the circumstances surrounding the execution of a will directly raise issues of probate undue influence or fraud, they cannot be alleged as a suspicious circumstance, that is under cover of a plea of want of knowledge and approval.” On the other hand, some judges acknowledge that facts relevant to the presence of fraud or probate undue influence will probably also constitute suspicious circumstance, and that to exclude completely such factors from the suspicious circumstance rule would drastically reduce its operation. If this judicial acceptance of facts suggesting probate undue influence in support of a suspicious circumstance claim became the uniform approach this would go some way to ameliorating the impact that results from the difficulties of proving probate influence directly.

  I agree with Pauline Ridge because Oxford Advanced Learner’s Dictionary defined ‘suspicious’ as: ‘feeling that somebody has done something wrong, illegal or dishonest, without having any proof’, ‘not willing or able to trust something.’ Fraud or undue influence are clearly ‘something wrong or illegal’, because in a court of probate undue influence means coercion (Lord Penzance in Hall v Hall) and fraud consists of deceiving the testator (White v White & Cato).

  Pauline Ridge also said that there is no restriction on what may constitute a suspicious circumstance. Pauline Ridge said that evidence that a beneficiary under the will was involved in its preparation is one example. Suspicious circumstances may also be used to cast doubt on the testator’s testamentary capacity. Hence, doctrine of ‘suspicious circumstance’s can be applied or used for various situations, including fraud or undue influence.

  Wintle v Nye is a case where plea of lack of knowledge and approval is used as a cloak for what was, in substance, a plea of fraud. Barnard J had made reference back to Barry v Butlin but this is inappropriate, because Barry v Butlin was not a case where the person challenging the will had lacked knowledge and approval. However, the reference to ‘suspicious circumstances’ in Barry v Butlin was perfectly rational because anyone looking at the facts of that case and having read the pleadings in that case had to be suspicious as to whether the beneficiaries under the will had been involved in improper conduct.

  The problem with Wintle v Nye is that no allegation of impropriety was made by Wintle against Nye. What were they supposed to be suspicious of? The expression ‘suspicious circumstances’ implies a suspicion of wrongdoing by someone. I agree with Kerridge that it is inappropriate to raise ‘suspicious circumstances’ unless the person challenging the will has alleged fraud, or undue influence, or both. Although Wintle won the case, but the manner of his victory is questionable, because the verdict of House of Lords was that there should be a retrial, but Nye surrendered at this stage, partly because the popular press were portraying him as a villain.

  We can see from Wintle v Nye that the doctrine of ‘suspicious circumstances’ is indeed the standard way. Ten years after Wintle v Nye, Scarman J said, obiter, in In the Estate of Fuld (dec’d), that it was ‘preferable’ for those challenging wills to do so on the basis of lack of knowledge and approval. Furthermore, Part 57 of the Civil Procedure Rules 1998 make it easier to raise issues of fraud and undue influence under the cover of a plea of lack of knowledge and approval.

  However, it is difficult to challenge wills by using this doctrine. In Ewing v Bennett, a will made by a solicitor for a very deaf woman, who suffered from dizziness and memory loss and in early stages of senile dementia was upheld. In Re Dabbs, a will prepared on principal beneficiary’s computer for a testator who died in circumstances which caused the jury to return a verdict of unlawful death was also upheld. These two cases demonstrate that although the doctrine is the standard way, it does not mean that it is the best and easiest way. Cases like Buckenham v Dickenson, d’Eye v Avery, Richards v Allan and Re Rowinska, although probate had been refused on the basis of lack of knowledge and approval, but these are the cases where the evidence against the will was overwhelming.

  However, the approach of Wwintle v Nye was followed in Fuller v Strum, even htough in this case it was not easy to see what the trial judge was referring to when he talked about a suspicion. The confusion was emphasized when the trial judge referred to Lord Hatherley’s phrase in Fulton v Andrew, where he described the burden which the law imposes on a person who has been instrumental in procuring a will under which he takes a benefit as ‘the onus of showing the righteousness of the transaction.’ Chadwick LJ was of the view that trial judge is wrong because he did not have a license to refuse probate to a document he disapproved; but it is suggested that Lord Hatherley meant to refer to suspicions of fraud or undue influence.

  In Sherrington v Sherrington, the honest plea would have been undue influence. The plea of lack of knowledge and approval is a dishonest plea. The Court of Appeal thought it was ‘fanciful’ to suggest that the testator did not know and approve of its contents.

Despite being the standard way, a fraudulent pleading is still a fraudulent pleading. There are various possible reform in this area, such as a presumption of fraud or undue influence when someone prepare a will for a testator under which he took a significant benefit; adopt the approach taken in Israel and render void a gift made to a beneficiary (or close relative of beneficiary) who is involved in preparation of a will; or the courts apply the costs rules differently. Kerridge however argues that what is needed is a mix of reforms. As part of a reform package, he proposes legislative provision for the execution of a will before an independent ‘notary’ or solicitor. If this was done, a presumption of capacity and knowledge and approval would apply. The independent solicitor or notary would ‘try to ensure that there was no hint of pressure or of fraud and that the testator knew exactly what he was doing.’ I think this would be a more suitable and appropriate method of dealing with the problems we currently face in applying the doctrine of ‘suspicious circumstances’, hence I agree with Pauline Ridge that this is a very attractive reform.