Where there’s a will, there’s a lawyer

The Observer magazine, April 24 1994

Theobald Mathew died early one Sunday morning in July 1983 as he lay in his sister’s arms in his villa in Le Treyas on the French Riviera. He was only 44 and his death was sudden but he had written a detailed will and he had appointed his lawyer and his favourite brother, Tom, as executors to carry out his wishes. His body would be shipped to England for burial and his estate would be settled very simply. Not at all.

Eleven years later, Theobald Mathew’s estate is a battleground. In his efforts to be a good executor, his brother, Tom, has made 347 courtroom appearances, incurred legal costs of over half a million pounds and disappeared into a legal labyrinth, from which he has yet to emerge. Along the way he has lost just about everything: his flat in London, his home in Scotland, his job, his fortune, his health and his family.

The trouble with dying, as the Mathew family have discovered, is that it’s a perfect excuse for a battle. There’s money involved, so there’s often greed; there’s the muddled memory of the dead person’s real affections, so there’s often jealousy; there’s no chance at all for the central character to speak up and stop the fight, so the whole issue hangs on a piece of paper written in a language that only specialists can understand. And that’s really the trouble with dying, because where there’s a will, there’s usually a lawyer.

Some fight for fortunes. Marcus Margulies went to court to prove that he should not have to share his father’s £8 million art collection with his brother and sister. He lost the case, was branded ‘dishonest and unreliable’ by the judge and picked up a bill for some half a million pounds in costs. Others fight for trivia. Keith and Anthony Edwards fell out over two toy trains which had been left by their father. They went all the way to the High Court with a fleet of lawyers behind them before they agreed to take one train each.

Victory may turn on a tiny point of law. The Freedom Association lost a bequest of £250,000 because the man who was trying to leave them the money forgot to write ‘Ltd’ after their name. Mrs Georgina Jones from Worcestershire lost all her son’s possessions after a court ruled that his will, which left everything to her, was superseded by the words he had whispered as he lay dying, leaving ‘all my stuff’ to his girlfriend. Mrs Jones was so upset that she said she would never visit his grave again.

Sometimes the fighting starts before anyone has even died. The enormously rich Australian mining magnate Lang Hancock saw his wife and his daughter starting to slug it out over his $100 million estate and, while he lay dying, he hired a lawyer to take out an injunction against his wife and to add a codicil to his will so that if either of them tried to go to court to contest it, they would automatically lose everything he had left them.

Charles Dickens watched the High Court at work and warned: “Suffer any wrong that can be done to you rather than come here.” It is not that the lawyers behave badly. They obey every rule, follow every procedure and yet still leave their clients drowning in dispute. It is the bottomless complexity of probate law that produces the danger. A really determined client can fight for years without exhausting the possibilities, no matter how hopeless his case. Consider the case of the Mathew family.

When Theobald Mathew died, there was, at first, no clue to the disaster which was waiting to unfold. His brother, Tom, a chubby master printer with an eye for the good life, was surprised to discover that he was an executor of the will and since Tom had no less than nine surviving brothers and sisters and since Theo had once assured him that he would not ask him to perform such a delicate task, Tom thought for a moment that this might be a joke. No, said the lawyer; this was Theo’s wish. “The bloody bastard,” said Tom with a chuckle, still not seeing the approaching avalanche.

Tom could hardly be blamed for his peace of mind. It was true that Theo had been a wealthy man, the suave, good-looking eldest son of a richer-than-average middle class family. He had owned a 390-acre farm in Leicestershire, where he had been making a fortune in EEC-subsidised potatoes (in one year he made £480,000 profit) as well as fine art, antique furniture, property, a prized collection of stamps, and pools of cash in various bank accounts in Britain and Switzerland. But it was hardly an unmanageable fortune, and Theo’s wishes were clear enough – small bequests for his six sisters, the rest to be divided between Tom and his three other brothers.

Tom first sensed the threat a few days after Theo’s death when he discovered that his mother and one of his brothers had decided to challenge his role as executor. They insisted that Tom was a bad lot, quite irresponsible with money and entirely unsuited for the job, and they talked to their lawyer about having him removed. That was the start of the fighting which has left the Mathew family in emotional tatters. But even at this point, their destiny was not sealed, not until Tom made one more move – the step that finally unleashed his fate. He went to court.

At that moment, the family wrangle became the property of learned counsel, the right to declare victory was passed to distant judges, common sense gave way to legal precedent and the entire affair was destined to be played out to the background sound of the relentless scratching of lawyers’ pens.

Tom had his lawyers. His mother had hers. The brothers had others. One case led to another, and then some more, and then some appeals, and then some more again, with the result that the case has so far occupied the professional attention of six firms of lawyers, 34 High Court judges, 25 Masters, 14 Registrars, four magistrates, two Justices of the Peace and four Scottish sheriffs . In the course of this sprawling dispute, all of the money which Theo left in his will has been lost. And now they are talking about digging up his grave.

Within days of deciding to go to court, they launched two High Court actions. Tom successfully injuncted his mother and one of his brothers to prevent them destroying any of Theo’s papers. And the two sides locked their jaws into each other’s fleshy parts over the central question of who had the right to execute the late Theo’s will.

Theobald had appointed two executors: his lawyer, David Glynn, and Tom. But both of them had problems. Glynn had left England to live in Hong Kong. He now gave a power of attorney to two lawyers in London to do the job for him, but these London lawyers also represented Tom’s mother. Tom started to feel rather hot under the collar. Before he had a chance to cool down, his family discovered that as a result of an entirely separate dispute, there was an entirely unrelated lawyer who was trying to have Tom declared bankrupt. They saw this as ample confirmation that he should not be an executor. The role of the two executors with their respective problems then skidded through the hands of half a dozen different judges.

The first judge decided that neither Tom nor Glynn should administer the will; she appointed three lawyers to do the job for them. The second judge then declared this null and void. The third judge then declared that the second one was right – but for the wrong reasons. He said the three lawyers should continue to administer Theo’s estate but only for as long as the executors could not do so themselves. In the meantime, Tom had been to a fourth judge who killed off the bankrupcy proceedings against him, thus permitting him to become an executor again. But when he then tried to execute the will, Tom discovered that a fifth judge had agreed to enter a ‘caveat’ on behalf of one of his brothers, which had the effect of freezing everything for six months. A sixth judge then held a hearing about the caveat and threw it out. On May 24 1984, Tom and David Glynn were finally granted probate. End of story. Not at all.

During these ten months, the three lawyers who had been appointed by the court to administer the will had not been idle. Most important, they had arranged to sell Theo’s farm at auction. Tom wanted to stop the auction. But all through this period, he lacked the legal authority to do so. On May 24, with the grant of probate, he was finally able to act. But no sooner had he seized power than he lost it when, on that same morning, his brothers won an injunction to permit the sale to go ahead. That very afternoon, Theo’s rural retreat with its Victorian house and its tennis court and its fully automated grain store was sold at auction for £755,000.Tom complained bitterly that it must have been worth more than that. His temperature started rising. Everyone else said everything was fine.

The three court-appointed lawyers then produced an account of the late Theo’s fortune. By Tom’s estimate, his dead brother had been worth £5.8 million and he confidently expected his own share to be at least a million pounds. But the lawyers said Theo had been worth only £1.1 million. Tom complained that they must have overlooked his Swiss bank accounts, and that his farm and stocks and shares must have been sold for less than their real value. The massed lawyers politely explained that the law did not work that way.

They then revealed that much of the £1.1 million was no longer available. They had cleared Theo’s debts, paid £32,000 to the auctioneers who had sold the farm, set aside £220,000 for the tax man and then, of course, they had paid themselves and then they had paid Tom’s lawyers and his mother’s lawyers and his brothers’ lawyers…. In total, they disclosed, the massed lawyers had been rewarded for their work over the last ten months with nearly £300,000 of Theo’s money. Tom’s blood was now reaching boiling point. Instead of the million pounds he as expecting, he was offered only £80,500, all of which went to pay further legal bills. But he was in too deep to turn back. Determined to sort things out, he compounded his problems – by going back to court. And this time he shrugged off his own lawyers and represented himself.

He went after the auctioneers who had sold off Theo’s farm and summonsed them to a magistrates court. The magistrates threw out the case. Tom went to the High Court for a judicial review. But his baby son fell terribly ill and then died; when Tom was finally able to proceed, he was declared ‘out of time’. He applied for an extension. He was rejected. He appealed to the Divisional Court. He was turned down. So he went back to the beginning and started a civil action for criminal conspiracy against the auctioneers. It was struck out. Tom launched an appeal to the Queens Bench . It failed. Every court he entered agreed that that he had no case, but the law always offered another opening.

He went after the lawyers. His anger was redoubled when he found a letter in which one lawyer accepted that another lawyer should submit a substantial bill for his work on Theo’s will. “I agree it is high,” he wrote, “but one does have a tendency to undercharge normally for making wills because of the goodies to come. At least in this case, the goodies have not come, at any rate in the form expected.”

So Tom sued all the lawyers, his own included. He sued the lawyer who had tried to have him declared bankrupt. When that ran into the sands, he blamed the lawyer who advised him and sued him, too. He devised one monster action accusing 21 different lawyers, bankers and others of a criminal conspiracy to defraud him of Theo’s estate and claimed pecuniary damages, exemplary damages plus the original £5.8 million with seven years interest – a total of £56 million. The entire action was swallowed into the belly of the law, never to re-emerge.

At some point, the battle opened a second front which was to be the scene of some of the worst carnage. Rapidly discovering the most obscure corners of the legal map, Tom accused various lawyers of deliberately running his family into overwhelming debt in an attempt to undermine his will to fight. The case crashed straight into a ditch, and the legal costs took everything he owned – his smart flat in London, the family home in Scotland, cash, car, the lot. In the midst of the fighting, his wife – a Russian princess by birth – filed for divorce, and the Attorney General stepped in to rule him a vexatious litigant.

It was while he was cutting his way through this legal jungle that he stumbled on to a whole new vista of legal action – the criminal law. He struck on the idea that his brother Theo had been murdered. It came to him by chance when he went to St Catherine’s House in central London in the spring of 1992 and asked for a copy of Theo’s death certificate. They said they didn’t have one. So he went to the Foreign Office and asked for a copy of the one supplied by the French authorities. They said they didn’t have one either.

With his personal thermometer climbing upwards once more, Tom went to the undertakers who had shipped Theo’s coffin home to England, to the coroner in Northampton who had received it, to the registrar who had supervised the burial – and none of them had a single piece of paper to prove that his brother was dead. He went to France and discovered there was no death certificate there either. And no record of Theo’s body being embalmed, as it had to be before being shipped. And no record of the body being released by the French coroner, as it had to be before it could be embalmed.

However, he did find papers from the French undertakers recording that Theo had died in an ambulance which had crashed while it was trying to take him to hospital . Then he found an official registration which suggested that Theo had died in the Sunny Banks Anglo-American nursing home in Cannes. Tom thought all this was remarkable since he was 100% sure that his brother had died 20 miles away in Le Treyas in the arms of his sister, Elizabeth. Tom opened a French front.

Six months later, in the Spring of 1993, the French authorities agreed that they had blundered and that the undertakers’ records were wrong. Tom sat back and looked at the mess and came up with one horrible explanation: Theo must have been murdered. If his body had been burned and buried in France to conceal evidence of the crime, that would explain why there was no trace at all of his body anywhere en route to England. In Northants, they must have buried an empty coffin or else a coffin with somebody else’s body in it. And if that was so – if there was no proof that Theo was even dead – the entire legal proceedings which had taken place would be null and void and they could go back to square one and start all over again. Tom decided to go back to court, but then he thought again and went to the police instead.

Last autumn, Detective Superintendent David Johnson, the operational head of CID for Northamptonshire, where Theo is supposed to be buried, travelled to France with a detective sergeant to look for clues to murder and fraud. The two detectives interviewed all those who had dealt with Theo’s death and started working their way backwards through the legal labyrinth. Now they are preparing a report for the local coroner in Kettering, Michael Collcutt, who must decide whether or not to order the exhumation of Theo’s grave.

Tom Mathew is watching and waiting, drumming his fingers on the massive pile of legal papers which he has acquired in the last eleven years. He has mixed feelings – of hope that this will finally allow him to settle his brother’s estate, and of fear that this will yield no more than another round of frustration. Whatever happens, he says he will fight on. He is addicted to his struggle. “I think I probably know more about probate law now than just about anybody in the profession, but right at the beginning I made a fatal mistake when I listened to lawyers. You should never trust any lawyer. Lawyers actually know very little law. They imagine they do, but they never go back and check.

“One of the lessons of all this is that you should always go and read the law for yourself. Get a second opinion. If a surgeon told you something you didn’t particularly want to hear, you would go off and get a second opinion. But, for some unknown reason, we trust lawyers to get it right. And we get on first name terms with them. That’s a bad mistake. And if you’re drawing up a will, for God’s sake don’t let your lawyer persuade you to make him an executor and if, for some reason, you have to appoint him, then write in a clause to limit the charges he can make. Never trust them.”

His headquarters now are a friend’s flat in Soho where the sofa is his bed and the kitchen table is his office. He is kept alive by sympathetic benefactors and his unyielding determination to win. “The courts are there to protect us. That’s all I’m asking them to do – to protect me. They have taken everything from me. They can’t take anything more. Not even lawyers can take anything more.”

UPDATE: Tom Mathew continued to fight. Five years later, for example, in October 1999, he was before the Supreme Court trying to overturn the ruling that he is a vexatious litigant. He lost.