Will: Solicitor was clearly competent
An allegation that an old woman who owned a farm in Devon signed codicils under the undue influence of a solicitor “should never have been made”, a High Court judge has said.
Mr Justice Michael Green said [1] it was an “extraordinary” allegation given that Clive Smale did not stand to benefit or show a preference for either side of the dispute.
The allegation was made by two brothers, Steven and John Maile, grandsons of the deceased owner of the farm, Mary Stevens, who were contesting ownership with their aunt, Sheila Kempthorne.
The brothers made the undue influence allegation against Ms Stevens’ solicitor, Clive Smale, who was at the time a partner in Devon-based law firm Peter Peter & Wright.
Mr Smale drew up a codicil for Ms Stevens in 2016, which revoked an earlier codicil the solicitor had prepared and she had signed in 2011, leaving the farm to the brothers.
The 2016 codicil returned the position to that of the original 2006 will, which left the farm equally to her two daughters – the brothers’ mother, Ruth Maile, and Ms Kempthorne. Ms Stevens signed a further codicil in 2017 leaving a particular field to Ms Kempthorne.
Michael Green J said he found it “extraordinary” that “such an allegation was made and pursued against a solicitor who did not stand to gain from the deceased’s will, nor was he pressing for one side of the family to benefit over the other”.
The judge said the allegation was “half-heartedly pursued” by the brothers’ KC and he “hardly made submissions” on it.
“But such a serious allegation, particularly one made against a solicitor, should not be made lightly and, if pursued, should be done so with conviction.”
In reality there was “no evidence at all of the exercise of coercion or undue influence by either Sheila [Ms Kempthorne] or, in some sort of co-ordinated attack, with Mr Smale”.
Michael Green J said he agreed with the KC for Ms Kempthorne that “the allegations should never have been made and they should at least have been withdrawn before the trial”.
The judge described Mr Smale as “an experienced private client solicitor with over 40 years of practice in Devon” who was at the time part of the probate team “but he also was involved in rural matters such as farming partnerships”.
The judge “firmly” disagreed with the negative characterisation of Mr Smale’s evidence by counsel for the brothers.
“He came across as a totally straight and clearly competent solicitor who was doing his best, in a calm and measured way, as a witness to recollect with the benefit of his attendance notes what had happened at the important meetings he had had with the deceased.”
Michael Green J said that in “a couple of instances he went too far in his witness statement”, but “there can be no credible suggestion that Mr Smale was supporting one side of the family over the other… He was acting professionally and reasonably throughout.”
Michael Green J described Mr Smales’ attendance notes as “the important evidence as these show long discussions with the deceased where her instructions were taken and decisions made about what she wanted to do in her will”.
The judge had “no hesitation” in accepting the solicitor’s evidence that those notes were prepared immediately after the meeting or telephone call took place and were an accurate record of the discussions and decisions made.
“In a sense that is all that matters, but I did in any event find him to be an honest and credible witness, whose evidence on relevant matters could be relied on.”
The judge dismissed the brothers’ claims and upheld the validity of the 2016 and 2017 codicils.