Practice and Procedure


PUBLISHED June 10, 2003

There was insufficient evidence to establish, upon the balance of probabilities, that the defendant had obtained letters of administration by fraud and the Master had been entitled to strike out the claim.Appeal by the claimant ('P') from the decision of Mr Kitchin QC sitting as a Deputy Judge of the High Court on 6 September 2002, upholding the decision of Master Bowles to strike out the claim against the defendant ('C') on the grounds that it had no real prospect of success. P was the brother of C's late wife ('S') who died in August 1999. Letters of administration were granted to C as next of kin on the footing that S had died intestate. The assets of S's estate included a property jointly owned by her and C. By these proceedings P contended that S did not die intestate and that C had obtained the letters of administration by fraud. P alleged that during her life S had told him that she and C had made joint wills which provided that on her death a proportion of the property was to go to her side of the family. The Master struck out the claim on the grounds that there was no real prospect of success. That decision was upheld by the judge on appeal.HELD: (1) There was no difference between the standard of proof required for proof of wills than there was in any other civil matter, namely, the balance of probabilities. However, a civil court, when considering a charge of fraud, required a higher degree of probability (see Re H & Ors (Minors) (Sexual Abuse: Standard of Proof) (1996) 1 All ER 1). (2) Hearsay evidence was permissible evidence in civil actions, but the fact that hearsay evidence was admissible meant that probate proceedings could go either way. Furthermore, it was possible to find that a will was in existence by circumstantial evidence. (3) There were no precise dates put forward by P as to when the alleged joint wills were made or who the witnesses to them were. There was not enough information to find that a will had been made by S or that it was made in a valid manner. The evidence was not enough to establish, upon the balance of probabilities, that S had made a will. Accordingly the Master had been entitled to strike out the claim.Appeal dismissed.

[2003] EWCA Civ 983