Neutral Citation Number: [2013] EWHC 466 (Ch)
Case No: HC10C01694
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/03/2013

Before :

MR JUSTICE MANN
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Between :

	Walter Nick Schrader	Claimant	
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	William Stephen Schrader	Defendant	

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Evan Price (instructed by Rudds Solicitors) for the Claimant
Constance McDonnell (instructed by Quality Solicitors FJG) for the Defendant

Hearing dates: 4th-8th February 2013
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Judgment

Mr Justice Mann : 
Introduction

1.	This is a probate action about the last purported will of Jessica Schrader (“Jessica”).  She died aged 98 on 21st January 2008.  In the disputed will dated 12th April 2006 she left certain specific requests of relatively minor items to grandchildren and others, left her house (“Southend Farm House”) to her son Nick (the claimant) and her residue to her two sons (Nick and Bill) equally.  Her previous will executed on 1 October 1990 left small bequests, made no specific gift of Southend Farm House and gave the residue to her two sons equally.  Thus the house, under that will, fell into residue.  The effect of the disputed will was therefore to give Nick the whole, rather than half of, the value of the house, and to deprive Bill of his half.  On current perceived values, a half share is worth between about £110,000 and £160,000.  Because the two brothers are at loggerheads it has required a regrettable (but apparently unavoidable) four-day probate action to determine the fate of that amount of money.  The aggregate costs of the action are thought to approach the lower of those two figures. 

2.	The will is challenged by Bill (the defendant) on the basis of want of capacity, want of knowledge and approval and undue influence.  He propounds the 1990 will.  His case is heavily dependent on what he would say is the improbability of his mother’s executing the 2006 will if she had proper capacity, if she knew what she was doing or was not improperly influenced.  It is therefore unfortunately necessary to go into some family history, because that is the background against which Bill makes his case.

The claimant’s witnesses

3.	I received evidence from the following witnesses, and I make the following findings about their respective credibilities and helpfulness.  It is appropriate to give such indications at this stage because the views I have formed of their respective personal qualities and credibilities impact on some of the findings of fact that I have to make below.

Nick Schrader

4.	He is now 62.  He produced two witness statements, one very short and undetailed, the other a response to witness statements served on behalf of the defendant.  The witness statements contain inaccuracies of some significance – that he sold a house to fund alterations (not true – his trustee in bankruptcy sold the house in the discharge of his functions); that his mother arranged for a will-writer to come and see her to make the will (not true – Nick made the arrangements).  He also gave oral evidence as to his involvement in the process of considering the draft of the 2006 will which was demonstrably and significantly false.  His attitude towards his brother is one of “hatred” – that was his word, used at the beginning of his oral evidence.  

5.	This latter point is of real significance in this case.  He is, in my view, somewhat obsessed with his feelings towards his brother and a feeling that they were treated unequally by their parents throughout their lives.  As far as I can see this perception of inequality is unjustified.  What has happened is that Nick has made different life choices, and different choices towards the acquisition of cash as opposed to land.  Whether the feeling of hatred has some justification is not something I need to make a finding about, and it would probably be impossible to do so.  Nick’s view is that his brother had an affair with Nick’s first wife, and behaved inappropriately, short of a full affair, with his second (charges denied by Bill).  That may be part of the explanation.  The important thing is that it, and the perceptions of inequality, exist, because they are form an important part of the undue influence case.  So is a clear feeling that he had a right to what he regarded as his inheritance, a point which came up in the context of a sale of land from his parents to Bill.

6.	He is also a man of violent character.  That was most strikingly demonstrated when he assaulted the partner of his former wife at a wedding in 2004.  He received a prison sentence for that.  There was also evidence, which I accept, of an incident in which he shoved shears through an open car window towards Bill’s head or neck, though he did not make contact.  His propensity to anger and to threats is also demonstrated, to a degree, closer to home.  The house whose disposition was changed in the later will is the house where Nick lived with his mother from 2005.  It gives on to an extensive yard and storage area owned and occupied by Bill for the purposes of vehicle repairs.  Access is via a track up the side of the house.  Nick has become almost obsessed with the activities of visitors to the business who on occasion leave their cars where Nick says they should not be parked.  He is apt to become demonstrably very irate, and verbally highly abusive to customers (and Bill) about the matter, in a manner which is completely over the top.  There was evidence, which I accept, that he is liable to use very offensive swear words, irrespective of the gender of the recipient.  On one occasion he deliberately blocked access to protest about the blocking of access.  While Nick was prepared to admit some of all of this, he did not admit what I find to be its full extent, which I consider to go to his credibility.  His behaviour was bad verging on the irrational on a very significant number of occasions.

7.	There was one incident which was in fact recorded (literally).  A spare parts van driver had left a van where Nick thought it ought not to have been left.  When he got into a row with Bill about it the altercation spanned over 20 minutes.  Most of it was recorded by another tradesman working on the site, a Mr Edgell, on his mobile phone.  I saw a transcript and listened to the recording.  Nick did not dispute its accuracy.  It demonstrates a considerable degree of verbal aggression.  Mr Price cross-examined on the footing that this was something of a set-up.  He put that there had been an arrangement between Bill and Mr Edgell that the latter would try to record Bill the next time he sounded off, for the purposes of these proceedings (which were on foot by then), and that one could detect moments in the recording when Nick was walking off but was brought back and re-inflamed by Bill or Mr Edgell.  I reject that suggestion.  Such a plot would have been Machiavellian beyond the capacities of Bill and Mr Edgell.  Such passages where Nick is encouraged not to walk off were, in my view, instances of one of the others trying to get him back to calm him down.  On several occasions Mr Edgell plainly tried to calm Nick down, not inflame him.  I find that this incident is typical of other incidents in its vehemence and manner of expression (though it may not be typical in its length) and it demonstrates again the forceful personality of Nick and his quickness to anger.  It causes me to view his evidence with caution when his conduct in relation to another close relative is concerned.

8.	He also felt strongly about the yard at the back of the farm house.  He thought that it was very badly maintained, and in the nature of a scrapyard.  He may well have been right about that.  It was not an attractive thing to have at the back of a house, with no fence in between.  He probably projected some of these views on to his mother, though she too had a distaste for it.

9.	So far as the quality of his oral evidence is concerned, he did not always impress me as someone who was trying to be accurate or tell the whole story.  His view of things has been coloured by his attitude towards his brother and his perceptions of inequality, and I think that that affected his evidence.  I also think that he had a feeling of entitlement to what he regarded as his inheritance.  I had to treat his evidence with caution.

Paul Schrader

10.	Paul Schrader is one of Nick’s sons.  He moved in to live with Jessica after her fall, and was a very significant carer.  He joined in (or, as he would say, started) the assault on his mother’s partner, and was convicted of assault.  He freely admitted this in the witness box, and I think his display of remorse was genuine.  He did not seem to me to display his father’s quickness to anger.

11.	He was able to give evidence of his grandmother’s physical and mental state after her fall in 2005 which in the main I am able to accept.  He also gave evidence about her views of Bill’s activities in the yard at the end of the garden, which again I accept – he said that she did not openly complain to Bill about it but was upset about the cars and mess.  He gave evidence about his grandmother’s stating she would leave the farm house to his father.  This is plausible evidence, but it does not determine much in the case.  All in all, I could, by and large, treat Paul as a reliable witness. 

Mrs Jill Townsend

12.	Mrs Townsend is, and was at the material time, in a relationship with Nick.  However, by and large I did not detect any partisanship in her evidence.  She gave evidence about Jessica’s mental state and her unhappiness with the use of the land at the bottom of her garden, which I am able to accept.  She was a helpful and plausible witness. She gave short evidence about a statement by Jessica that she intended to change her will while she was still of sound mind.  That, too, is plausible, and I accept it.  It goes to capacity and want of knowledge of approval, but it does not help either side on undue influence.

Mrs Virginia Crossley

13.	She is Jessica’s great niece, and gave evidence of the lucidity of her great aunt.  She saw her before Easter 2006, and described her mental state and unhappiness at the state of land at the back.  I accept her evidence.  She had no motive for, or propensity to, lie or exaggerate.  

Miss Susan Marks

14.	Miss Marks is a will writer and took instructions for, drafted, arranged for the execution of and witnessed the disputed will.  I consider that she was a reliable witness of fact, with no axe to grind.  I also found that she was somewhat procedure-driven.  She knew what was required to take instructions for, draft and supervise the execution of the will, and I am sure that she made sure all the right steps were taken.  However, I do not think she went beyond that in the manner in which an experienced family solicitor might.  For example, if a client chose not to reveal some assets, or the contents of a former will, she simply took that as read and did not press, even gently, for some more information which might have helped both parties to consider the matter fully.  She obviously took the view that it was not necessary, so she did not do it.  I am sure that that was a business-like approach, but it lacked a certain breadth.  I was also surprised at her approach in not taking any notes at a client meeting other than on the instructions form.  Having said that, I am satisfied that she is aware of the tests for capacity and the need to make sure a client understands the will, and would be able to spot some of the warning signs if there were any in that area.  She was a reliable witness of fact, and so far as there have been criticisms of her professional competence in these proceedings they were, in my view, ill-founded.

Mrs Elizabeth Gocher

15.	She is an employee of Miss Marks and gave evidence of the execution of the will.  Her evidence was not challenged.

Julian Farley, Priscilla Farley, Caroline Farley, Rebecca Farley and Susan Fleming

16.	I can take all these together, because their evidence was given under the Civil Evidence Act in the form of written statements, not cross-examined on, because they are in Australia. They are variously nieces, great-nieces, their spouses or siblings of their spouses.  I do not need to distinguish between them.  They all gave short evidence of Jessica’s mental state in the summer of 2007 when they stayed with her, and a couple gave evidence of a phone call at the end of the year.  Their evidence supports a case that she was mentally aware and alert, and in control of her faculties.  It is generally stated but I accept it.  It is apparent that none of them perceived any of the indicia that might demonstrate failing capacity.

Dr Mansur Safraz

17.	The claimant put in a witness statement from Dr Mansur Safraz, Jessica’s GP.  His statement says that he has gone through Jessica’s computer records and could “find no mention that she had any sign of dementia, forgetfulness, age related degeneration or mental illness”.  He exhibits a “medical summary”, which are short statements of the date, the occasion of a consultation and, in odd cases, a short statement of treatment or medication.  It is obviously a summary of more detailed medical records – it cannot be a complete medical record.  This evidence does not take one very far.  It is a GP commenting on what records show.  He does not give any evidence of what he perceived when he saw her.  The records show that she was seen in February 2006 and September 2006, and there is a record of “Notes summary on computer” for 11th July 2006.  He was not cross-examined.  This evidence does not provide any real assistance in the inquiry into her mental state.  

The defendant’s witnesses

18.	I heard evidence from the following witnesses for the defendant.

Bill Schrader

19.	He is the defendant and the brother of Nick.  He did not seem to feel as strongly about Nick as Nick felt about him, and I accept that evidence.  He was in the main a moderate witness, and I do not think he came to court to lie.  However, I think he was at some times a little cavalier and I felt I had to treat with caution some of his evidence going directly to the issues in this case.  I think that he exaggerated a professed inability to visit his mother while Nick was living with her – he said he could not do it very often because there would be difficulties with Nick.  In fact after about 6 months there were several days each week when Nick would be predictably away, if he had bothered to find out.  If he did not see his mother much during this period I think it was more because he chose not to (or did not choose to).  I also think that he played down his mother’s mental capacity with a view to what was required in this action.  I do, however, accept his evidence on the topic of allegedly unequal treatment of the brothers by the parents – he said it did not exist.

Jennifer Schrader

20.	She is the second wife of Bill, and gave evidence relating to capacity, claiming to draw on her experience as a technical instructor working with an occupational therapist.  I think that she exaggerated Jessica’s failing capacity, and prefer the evidence of other witnesses.  She obviously felt strongly about the 2006 will, because she became quite confrontational with Miss Marks when she found out about it.  I think that her strong views have coloured her recollection, though I do not think she told me any deliberate untruths.  

Eleanor Schrader

21.	She was Bill’s first wife, and gave evidence of family history, her perception of equal treatment as between the brothers, her understanding of Jessica’s historic testamentary intentions (and how she found the 2006 will inexplicable in that context), Jessica’s continued sharpness of mind after the fall, and what Jessica would sometimes say about Nick’s crossness with her.  I thought she was a good witness who expressed herself with clarity and moderation and was one on whose evidence of primary fact I could rely. 

Andrew Schrader

22.	He is one of Bill’s sons and he had a particularly close relationship with Jessica.  Interestingly, he was quite clear in his evidence that his grandmother remained of sound mind until the end, while acknowledging failing capacities.  He referred to his grandmother’s “sheepishness” once Nick had moved into the farm house to look after her, his inability to rationalise the 2006 will in its family context, the fracas at the wedding and Jessica’s attitude to Bill’s business activities at the end of her garden.  I thought that Andrew was an impressive and frank witness, and I could, by and large, accept his evidence of primary fact.

Mr Edgell

23.	He is the tradesman who recorded the fracas referred to above.  I consider him to have been an honest, accurate and straightforward witness.

Mary Saunderson

24.	She was a pharmacist who sometimes delivered prescription drugs to Jessica (once per month then once per fortnight).  Her evidence was in an unchallenged witness statement.  She also gave evidence of parking, and limited evidence about capacity (supporting it).  

Diane Rudd

25.	She is a partner in Cullens, solicitors who had drawn a former will.  She gave evidence of her firm’s policy of home visits to draw wills (they will make them where necessary).  Her written evidence was not challenged.

Robert Bennett

26.	He is a taxi driver who sometimes drove Jessica.  His witness statement did not take the case very far and I do not need to refer to it.  It was not challenged. 

Factual matters

27.	In the account of factual matters that appears below any recitation of fact should be taken as a finding by me unless the contrary appears.

Some family history and background property transactions

28.	Jessica had met her late husband Walter towards the end of the Second World War when Walter was a German prisoner of war.  They married and he settled here with her.  For some considerable time he had worked as a herdsman, and latterly as a security guard.  Bill was born in January 1953; Nick was born in 1950.  Bill went into the motor trade and soon acquired his own business, and Nick has held a variety of jobs over the years.  

29.	Jessica’s parents owned Southend Farm on Southend Road, Billericay, Essex.  It consisted of probably almost 100 acres, and included Southend Farm House.  Jessica’s parents lived in that house.  That house gives immediately on to Southend Road, Billericay, Essex.  To its right is a track leading beside the house to its rear, and giving access to the area behind the house.  There was a barn there until it burned down a number of years ago.  In the area to the right is an old bungalow, and immediately to the right of the track, adjacent to the road, is a cart lodge.  Behind all that were fields – over 70 acres of them.   

30.	In 1972 Walter and Jessica moved into the old bungalow on the farm site so as to be near Jessica’s parents, who lived in Southend Farm House.  Bill, at least, moved in with them.  Nick had married his first wife, Jacqueline, in 1971.  Bill married his first wife Eleanor in 1975.

31.	The title to the farm in the period up to the grant of the interests referred to below is a little uncertain, and has to be pieced together from inferences from later documents and family knowledge.  Doing the best one can, it seems that the position was as follows. 

32.	It seems likely that Jessica’s father was the owner of the whole of the farm land.  By a 1971 conveyance he gave the old bungalow referred to above to Jessica.  He died in 1972 or 1973, and letters of administration were apparently granted to Jessica and her mother on 8th February 1973.  They executed an assent in their favour, as trustees, of the fields, but not the farm house and yard.  Walter seems to have replaced Jessica’s mother as trustee of those lands – it is not known how or when, but it seems likely that it was on the death of Jessica’s mother.  By some means, Jessica and her husband acquired ownership of the farm house and yard in the course of all this (Jessica was already the owner of the old bungalow), so that they were in a position to sell the yard to Bill in due course.  It was an agreed fact that Walter and Jessica had moved into the farm house in the mid-1970s to look after Jessica’s parents.  That left Bill in the old bungalow.

33.	Various pieces of land were then carved out of those holdings, in the following manner.

34.	First, in 1975, the trustees of the large area of fields sold one of the cottages on the edge of those fields (6 Elm Cottages) to Nick and his first wife.  He seems to have become sole owner in 1984, presumably on their divorce in the previous year.  The 1975 purchase price is not apparent.  Bill said that he was told that it was purchased at a discount.  There is no evidence of that, and the sale was actually by the trustees who, judging by the way in which the four fields were purchased in 1980 (see below), had an eye to the ostensible discharge of their functions, so I doubt that it would have been at a discount.  As will appear, this property was sold by Nick’s trustee in bankruptcy in 2005.  Nick said there was a surplus in his bankruptcy of over £80,000, which he received.  This (as an amount) was not accepted by Bill.

35.	By October 1980 Walter and Jessica were the trustees of the large area of fields.  They were selling off the fields which were part of the farm, and wished to retain for themselves the 4 fields which immediately surrounded the farm house and yard.  They apparently appreciated that, as trustees, they could not bid themselves, and according to Bill’s evidence they asked him to bid for them at the auction.  He did so, and bought in those 4 fields for £29,100.  The whole purchase price was provided by his parents (Walter and Jessica) and he said that he held the land for them.  He did not claim it as his own.  The land was charged with a debt due to the parents for the whole of the £29,100.  The lack of purity in this transaction seems largely to have passed Bill by, but nothing turns on that for the purposes of this action.  His assertion that he held for his parents was challenged by Mr Price in an apparent late change of stance on the point when he suggested that Bill had bought for himself beneficially, but I accept Bill’s evidence on the point.  If his evidence is not accurate it would be a deliberate and elaborate contrivance, and I do not think that he is capable of such a contrivance.  

36.	In 1983 Nick and Jacqueline divorced.  He needed some money to make financial provision for her, and it (or some of it) was provided by his parents.  Nick first told me that he thought it was about £3,000 and that it was a loan which was repaid.  Then he indicated that he had no idea of the amount, which I find surprising.  Bill said that it was £11,000, and was a gift.  Bill said the gift was equalised by his being given the old bungalow, in which he had been living free of charge since he married.  He was given that bungalow by his mother (in whom it was vested).  The deed of gift is not available.  Bill’s case is that that gift was of corresponding value to the money received by Nick.  

37.	Since the question of the historic equality or non-equality of treatment of the two brothers by their parents is an issue in this case I need to make some findings about this.  In relation to the amount of money paid to Nick, and whether it was a loan or a gift, I prefer the evidence of Bill.  Nick was vague about the transaction.  In my view his view of history is tainted by his sense of grievance against his brother.  His brother has a clearer picture of the various transactions, in my view.  Furthermore, the disposal of the fields (see below) purchased as a nominee for the parents (see above) demonstrated an attempt at equality which would make it less likely that the parents would give to the one without making some attempt at equality for the other.  I therefore find that the sum received by Nick was £11,000 (or thereabouts) and that it was a gift, not a loan.  Nick complained that the bungalow, even though it was in poor repair, was worth more than £11,000.  There is no evidence to support this view.

38.	By 1983 Bill had been running his car repair and servicing business from the yard at the back of Southend Farm House for some years.  After service of an enforcement notice he was given permission by the council, personal to him, to continue the business there.  He decided that he wanted to buy the yard and he says his parents encouraged him to buy the land from them.  He bought it (including the old barn) for £6,500 on 8th July 1983.  In his first witness statement, apparently made without the benefit of conveyancing documents, he says that he paid £10,000 for it.  He gave the correct figure in a second witness statement.  In his oral evidence he sought to explain the discrepancy by saying that £10,000 was his ultimate outlay, including costs and valuation fees.  I find that hard to accept.  His first evidence was that he bought it at a valuation price of £10,000.  The true figure now appears.  While I do not think that he was deliberately lying about this, I think that it does demonstrate a certain cavalier attitude to his evidence which appeared elsewhere as well.  What is apparent, however, is that the actual £6,500 figure was a valuation figure given by a valuer.  The valuation was not in evidence, but it is clearly referred to in solicitors’ correspondence at the time.  Nick’s case, as put to Bill, was that that was a contrived figure – the sale was at an undervalue, and the valuer was told the figure he should reach.  I do not accept that.  I do not see why the parties at the time would have wanted a valuation if it was not to determine, or confirm, the proper price.  I cannot imagine a sensible motive for the parents doing what Nick said they did.  If the parents had wanted to sell at an undervalue, they could simply have done it.  It is not apparent why they would want to dress it up with a false valuation.  He also complained that he was not consulted about this, and that the failure to do so was a sign of the inequality with which he and Bill were treated.  It had something to do with him because it was his “inheritance” (the word he used).  I find that this is an unfair charge.  If it was not discussed, it is because it was in the nature of a commercial transaction between his brother and his parents.  Nothing was being given away.  His use in this context of the word “inheritance” is of some significance in assessing Nick’s view of the world.

39.	This gave ownership of a large area outside the back of Southend Farm House.  The house retained a small garden at the back, but a large yard and former garden was available to Bill to conduct his business from. 

40.	The next property transaction was Bill’s purchase of the fields which he had held since the auction.  He wanted to build a new house on two of them, to the south-east of Southend Farm House.  In 1984 there was a discussion between him and his parents about it.  Although it is not articulated as such in his witness statements, it is apparent that the discussion involved the idea of a gift to the two brothers.  Bill was to have the two fields he wanted, and Nick was offered the other two.  He declined that offer, so Bill, in effect, bought him out for cash.  Nick’s evidence was that he had no interest in those fields; he had wanted other fields on the occasion that the 4 fields were bought at auction, but Bill wrongfully ignored him.  Whether or not Nick had expressed such an idea, I reject the notion that Nick was somehow entitled to have other fields bought in and that Bill was the author of the failure to buy them in.  I accept, as appears above, that Bill agreed to bid for the fields his parents wanted.

41.	Be that as it may, Nick did not wish to take ownership of the other two fields, and it was agreed that Bill would pay him £15,000 for them.  He paid it over 3 years.  His parents released the debt charged on the land over a period of time, and the charge was released.  Thus Bill became the beneficial owner of the land, and bought Nick out for a sum which was considered to be the value of a one half share.  He subsequently built his new bungalow (called Halcyon) on it, and he lives there now with his second wife, Jennifer.

42.	Nick married his second wife, Yvonne, in 1985, and they divorced in about 2003.  

43.	In 2002 Nick was made bankrupt, apparently on a VAT debt.  6 Elm Cottages was not sold immediately, but by 2005 mortgagees were pressing and possession proceedings were on foot.  By 4th May a warrant for possession had been issued, but it was not executed because Nick arranged a sale to a neighbour.  The sale was made by the trustee in bankruptcy (in whom the property was vested).  It was done on terms that Nick would have a 4 month tenancy of the house.  A note on the purchaser’s conveyancing file states that the purchase price (£230,000) was greater than a valuation received, though that is puzzling because it is the purchaser’s conveyancing file.  Be that as it may, the sale completed on 26th May 2005, and Nick obtained a surplus in the bankruptcy of some £80,000.  This event more or less coincided with Jessica’s having a fall and his moving into the farm house in the circumstances more fully described below.

44.	It has been necessary to deal with those property transactions because their effect forms an important part of the background against which the parties invite me to consider the motivation for the 2006 will, and Nick’s views about all this form the background to a consideration of his conduct in relation to it.  Bill says that his parents were always concerned to treat the brothers equally, and these property transactions tend to demonstrate that.  Nick says that they were not treated equally – Bill was favoured in various ways, including in some of those property transactions.  I find that the property transactions do not demonstrate a tendency to favour Bill.  The evidence demonstrates an intention to benefit the brothers equally when largesse was being distributed.  When Bill got the benefit of the fields, Nick had a chance to have some but decided to forego it in favour of cash.  When Bill got the old bungalow, Nick got cash.  The purchase of the yard was not at an undervalue.  Nick seemed to think that Bill got the additional benefit of getting property when he only got cash, but in terms of value it is not possible to discern a discrepancy, and on each occasion Nick needed, or wanted, cash.  

The 1990 wills

45.	Jessica’s earlier will has been described in general terms already.  It is dated 1st October 1990 and was drawn by Michael Cullen & Partners (“Cullens”).  Cullens were appointed executors.  It gave her British Gas shares and her National Savings certificates to her grandchildren (as a class) on attaining the age of 18, and gave her residuary estate to Walter if he survived her (which he did not), with a gift over of personal possessions to her two sons equally (with the more senior having first choice) and a gift over of residue to the sons again (with further gifts over to grandchildren).  

46.	Walter left a will of the same date, again drawn by Cullens.  It left his entire estate to Jessica if she survived him (which she did) with gifts over of personal chattels and the residue to the two sons in similar form to the gifts in his wife’s will.  

47.	Each will was witnessed by secretaries at Cullens’ offices.  Bill’s evidence, which I accept, was that the wills were followed by a meeting of the parents and sons at which the effect of the wills was explained to them.

The character and capacity of Jessica

48.	Walter died on 13th December 1995.  Jessica continued to live in Southend Farm House.  I heard a good deal of evidence about what she was like in the next 10 years in the period prior to a fall in 2005.  She was obviously a strong, vigorous and mentally alert lady, who participated in local clubs, played card games with vigour, entertained friends, and visited the local town several times a week.  She looked after herself well, even at the end of this 10 year period.  Doubtless the physical infirmities of old age began to catch up with her, but she seems to have been remarkable for her age, and was fully mentally alert.  She gardened a lot, and was very fond of her garden.  No question arises as to her mental capacity in this period.  She kept a diary, and the diary for the period from 2000 to 2005 was in evidence.  It shows an alert and active person.

49.	One point that has arisen in relation to this period (and spanning the ensuing period too) is her attitude to the activities of Bill in the yard at the back.  Over the years Bill’s business expanded.  It became not merely the repair of cars, but the storage of large numbers of cars that were kept for scrap and to be broken up for spares.  I have seen photos of the site from which it is apparent that in some respects it resembled a scrap yard, in the areas more remote from the house.  There were (on the evidence) cars surrounded by brambles, and even a car with a tree growing through it.  It was not in any sense a tidy and well-kept car repair site.  Nick’s case was that his mother really disliked that, and said so.  There was no fence at the end of the short farm house garden which shielded the site from view.  That boundary was from time to time marked by substantial flower pots (which were on occasions damaged by vehicles visiting the site), and not by an obscuring fence.  When the land was sold to Bill there were about 15 cars on site; now, Nick said, there are 150.   Bill’s case was that she did not dislike the site and was supportive of his business.  She did not complain about what he did, and did not complain that it adversely affected her enjoyment of her house.  

50.	Nick’s case was, to a degree, supported by his current partner, Mrs Townsend, who spoke of Jessica’s  irritation with the use of the site; by Mrs Crossley; and by Paul Schrader.  Andrew Schrader (who gave evidence for Bill) said that the use of the site was a “minor irritant” and that his grandmother would “roll her eyes” but her attitude was not such that it cause any form of major rift.  Bill played all this down.  He did not think that his mother saw the site as a problem at all.  

51.	This dispute is significant because her unhappiness with the use of the land is said to be one of the reasons why she might have wanted to leave Nick the house to the exclusion of Bill.  In particular, Nick suggested that she thought that the value of the house had been diminished by Bill’s activities, up to a half of its value (based on an assertion by an insurance valuer), so giving Nick the whole of the house was a way of evening things up.  Having considered the evidence, it find that Jessica was indeed irritated and to a degree displeased by Bill’s use of the land, but not to the degree suggested by Nick.  It is all a question of degree.  Anyone who loves gardening (which she did) could not look at the property immediately adjoining the garden at the back, and with knowledge of the scrubby areas full of scrap cars, with equanimity.  I am sure that she was irritated and did not actually like it.  However, I also accept that she was supportive of Bill and his business, and her dislike did not approach the strong feelings of antipathy suggested by Nick.  

52.	Then on or about 27th May 2005 she had a fall.  She was in hospital for several weeks.  There were obviously concerns for her well-being when she came out of hospital.  Nick agreed to move into the farm house to look after her, and he did so with his son Paul.  Bill’s side of the family were apparently not too happy about this, but did not resist it.  From this point on Jessica understandably changed a little.  She lacked some of her former confidence and could not get out and about so easily.  She became frail – a word used by several witnesses.  She became mentally less certain.  She managed to start looking after herself after a while, but Bill described her as not back to her former state.  Mrs Townsend, Mrs Crossley, the Farleys, Susan Fleming and Eleanor Schrader all spoke of her alertness and sharpness of mind.  Andrew Schrader, who was very close to her, spoke of her tendency to become forgetful, to repeat herself and to become confused, though he still considered her of “sound mind”.  Bill and Jennifer Schrader sought to present a picture of lesser capacity, with the latter relying on her experience as a technical assistant to an occupational therapist.  I prefer the evidence of the former class.  The proper picture is of an elderly lady becoming frailer in both physical and mental senses, but it is still a picture of a lady who understood the world around her, understood the people around her and who had all the capacity necessary to make a will (I deal with the legal tests below).  If this evidence were the only evidence relating to testamentary capacity, I would find that she possessed it at the date of the 2006 will.  

Events and relationships post-the 2005 fall

53.	Nick gave up his job to move in to look after Jessica.  He resumed part-time employment after 6 months, when she had recovered somewhat.  Paul also took on a large part of being her carer, though she was still able to address many of her own needs.  Nick and Paul did certain work in the house.  The principal work was to the kitchen.  The floor was levelled and a new kitchen installed.  Nick’s first witness statement said that he sold his house to fund alterations to the property.  This is demonstrably untrue.  The house was being sold because it had to be, because the first mortgagee was pressing.  He was also bankrupt, and the trustee in bankruptcy would have been likely to have required a sale ultimately.  This was at best a cavalier statement on a significant matter (he suggested that his improving the property was a motivation for the new will).  His witness statement also overstated the amount of the works.  It referred to “necessary alterations” to be made to the property to enable him to move in, or perhaps to enable Jessica to come home.  “One” of the alterations was the kitchen.  On the evidence the kitchen was the only real alteration.  The other work involved moving Jessica’s bedroom downstairs, and some more minor works.  I consider that Nick’s intention was to give an impression of greater work being done than was in fact done.

54.	Of critical importance in this period is the relationship between a son on the one hand and Jessica on the other.  He described himself as a caring son.  He acknowledged that they had disagreements, and even acknowledged that he went so far as to shout at her when he was frustrated at her wandering about at night.  He denied, however, any suggestion that he cowed her or pressed her in any way.

55.	The evidence of some of Bill’s witnesses was different.  Eleanor Schrader described her as being more tearful after Nick had moved in, and that Jessica said that Nick shouted at her.  Andrew Schrader gave evidence to the same effect. Andrew also said that she would speak more quietly when Nick was in the house, and the atmosphere was sometimes as if there had been a row between Nick and her before he had arrived.  His view was that she was “intimidated” by Nick and was petrified that he would leave her to live alone.  Interestingly, Bill does not give any evidence to that effect, though he does comment on his mother’s reliance on Nick.  This may be attributable to the fact that he did not see so much of her because (according to him) he felt constrained not to visit often because of his poor relationship with Nick.  This is a little surprising; Nick’s evidence was that once he went back to work six months after moving into the farm house he was away at work for three working days a week and was away visiting Mrs Townsend for quite a lot of weekends.  I acquired the impression that Bill was not quite as attentive a son as he might like to give the impression he was.  Jennifer Schrader describes Jessica as being “totally under Nick’s control”.  I do not accept that strong characterisation.

56.	It is relevant to make findings about this because it is capable of going to the various challenges to the 2006 will.  I accept, in broad terms, the misgivings of Eleanor and Andrew Schrader.  Nick is capable of being a dominant character and has a short fuse.  There is absolutely no question of his physically abusing his mother (no one even began to suggest that) but I consider that his physical presence and personality around the house would be likely to produce a significant degree of subservience in an anxious, dependent, increasingly frail elderly lady in his care.  I am in no way finding abuse.  I am sure that he was a caring son who tended to his mother’s needs.  However, it is entirely plausible that he would get cross with her from time to time and that she should be anxious about him and anxious to please.  I find that that happened.

The making of the 2006 will

57.	Jessica apparently decided that she wished to make a new will.  Nick made the administrative arrangements.  He did not contact Cullens (who had made the previous wills and who had acted in various conveyancing transactions over the years).  His evidence was that Jessica told him that she had spoken to them but they did not do home visits.  The uncontested evidence of Ms Rudd of Cullens was that (as one would expect) her firm did do home visits in order to take instructions from and, if necessary, procure the execution of, a will if a client’s circumstances required it.  At Jessica’s request, Nick identified someone else who could assist and he did so by searching the internet or looking in Yellow Pages, and identified the firm of Miss Marks, namely Premier Wills, a will-writing business.  He arranged for her to attend Southend Farm House and she saw Jessica in a meeting at which Nick was not present.  She told me, and I accept, that, in accordance with normal practice, she would have spent some time with Jessica before writing anything down, trying to understand her and her wishes.  Then she turned to the completion of a typed form which she had prepared for her use in such cases, in which she recorded the “Testamentary Instructions”.  The form is an 11-page document with a number of sections to be completed on the basis of instructions given.  Details such as Jessica’s name and address are completed and her funeral wishes are recorded.  The form identifies the executors as Nick and Margaret Lloyd, a niece.  The niece’s middle name is marked “TBC”.  Personal bequests are identified, and the names and addresses of the recipients are set out in part of the form designed for that purpose.  Two of them are identified as having the address of “Robert Road”.  The instructions for the distribution of the rest of the estate are then recorded.  On the front page, above the first section for completion and in a blank space below the heading, Miss Marks wrote the following:

“I asked & received confirmation that she was not being put under any undue pressure or influence as to the distribution of the property.

I confirmed with Jessica while Nick was absent from the room.”

58.	She told me that it was her normal practice to ask a question about pressure.  This is a little surprising because she is clearly a form-driven practitioner and there is no obvious space on the form.  However, I accept her evidence and, in particular, I do not find that she asked the question because something specific had alerted her to the possibility of influence.

59.	The instructions were signed and dated (actually mis-dated) by Jessica.  The form is the only record of instructions given.  In particular, Miss Marks did not record any part of her opening discussion with Jessica.  However, she said, and I accept, that she would have asked whether there was a previous will, but she would not necessarily have asked what its contents were.  She does not remember a conversation about what Jessica’s relationships with her children were like, and she would not have had a conversation about lifetime gifts.  She also said that she is aware of the test of testamentary capacity, and she applied it in this case in the sense that she formed a judgment as to capacity.  In a second witness statement she pointed out that Jessica was able to give detailed instructions about gifts and legacies without reference to any notes.  In her cross-examination she said that Jessica was able to list her property.  In her first statement she said that Jessica informed her that she wanted to alter the distribution of her estate because Nick had sold his house and moved in with her and was contributing towards the cost of maintaining her house, and she wanted to ensure that he had somewhere to live after her death.  This is not recorded anywhere and she was challenged on it.  In particular, she was challenged on it on the footing that a lot of time had elapsed since the meeting in question and she could not possibly have a memory of such a thing.  She responded, convincingly, that certain things she did remember.  I accept her evidence on the point.  Unless she has been suborned by Nick (and I find she has not) there is nowhere else that such a statement can have come from other than her memory.  It has clear resonances with the known facts of this case.

60.	I find that Miss Marks’ evidence about this meeting is accurate, and I accept it.  I also find that, while I do not think that Miss Marks in any way probed Jessica with a view to establishing capacity, nothing that happened at that meeting raised any question-mark about testamentary capacity.  I think that Miss Marks was sufficiently aware of the test that if there had been any apparent signs she would have at least noted them and probably obtained a medical opinion – she was aware of the need for such things.  Of course this does not mean that Jessica necessarily had testamentary capacity, and I accept that Miss Marks would probably not have the experience and wisdom of an experienced probate solicitor.  She was rather more form-focused, and focused on getting a technical job done.  However, I think she would have noticed any warning signs.

61.	Miss Marks then went away and prepared a draft will.  This was sent to Jessica under cover of a letter of 3rd March 2006.  Jessica was asked to read the draft, to make any necessary amendments or additions, to check all spellings of names and addresses and to complete the information where there was a highlight.  She was then asked to return the signed draft to Miss Marks.  The draft was not available at the commencement of the proceedings.  The instructions form had been made available to the parties, but, for some reason, not this draft.  However, Miss Marks brought it with her and produced it in the witness box, along with the original of the instructions form.  It turned out to be an interesting and significant document.  In terms of its essential content, it was in the same form as the ultimate will save that in clause 5 it gave a “Pecuniary legacy to executors with wishes”.  That legacy was £1000 with a request that the executors should dispose of the legacy by taking some of Jessica’s friends from her clubs out for a meal, with any surplus falling into residue.  This clause was omitted entirely from the final draft.

62.	It is the amendments to the draft that are significant.  The draft required the insertion of the name of a charity which was to be the recipient of donations in lieu of flowers, and the name of that charity is written in in Jessica’s handwriting.  It is in black ink.  All other amendments are in blue ink.  The writing was, with three exceptions, identified by Nick as his own.  They include the address of the charity just referred to, with its charity number, and amendments to the typed gift in clause 5 to substitute the provision of refreshments for those attending the funeral in lieu of the gift for a meal for friends; the insertion of four postcodes in the addresses of beneficiaries where there is a yellow highlight (signifying an absence which needed to be supplied); in pecuniary legacies, the middle name of one of the grandchildren (three times;) and two corrections of the “Robert Road” address to “Roberts Road” by the addition of a manuscript “s”.  On the same page as the postcodes and the address correction someone has deleted the words “such of” which can be seen to be redundant wording in a gift of pictures.  The three things which Nick did not accept to be in his handwriting were the two corrections of the address and the deletion of the redundant wording.  He accepted that all the other amendments were his.  Jessica has signed and dated the draft on the front page.

63.	The significance of those amendments is as follows.  There is no suggestion in his witness statements that Nick participated in the drawing of the will other than in identifying and arranging for the visit of the will writer and in driving his mother to the subsequent appointment when she executed the will.  In his cross-examination he said that he did not read the will and did not know its contents until after Jessica’s death.  Later in his cross-examination he said he thought that it was a month after her death when he first read it.  Miss Marks gave her evidence after he had concluded his.  He was recalled for further cross-examination after the draft was produced, both as a result of that production and as a result of the late production by him of his mother’s diary.  It was on this occasion that he identified the handwriting on the draft as his.  He said that he remembered being asked questions about postcodes and the grandchild’s middle name, but did not remember writing those details in.  He just filled in the blanks and did not read any of the other passages.

64.	Having considered his evidence on this, and the probabilities, I do not accept his evidence.  I do, of course, accept that he did complete the draft in at least the manner he described.  That of itself brings him much closer to the activity of the creation of the will than he had hitherto averred.  The impression he sought to give in his previous evidence was one in which he was distanced from the will and its process.  The overall effect of the evidence became rather different.  

65.	However, even more significant are the disputed amendments.  I do not accept his denial that he did not amend the addresses.  He sought to point out that the ink in those two amendments was a different colour.  I do not think that it is.  Furthermore, at least one of the “s”s is extremely like his own equivalent character on the same page.  It is plainly not his mother’s handwriting, and in any event his mother would not have spotted the error because she had given the wrong address to the will writer in the first place.  There is no one else at all who might have done this.  No one else, on the evidence, had an opportunity to consider and correct the draft in this way other than someone at Miss Marks’ office, and it is highly unlikely that anyone at her office would have done it.  The deletion of the redundant wording is a little more of a puzzle, because it is something that would be more likely to be apparent to a professional than to Nick, but in my view a layman could nonetheless spot it.  I find that Nick carried out those amendments.  That means that he was reading the will through and not just filling in specified gaps.  The page with the amended addresses on it is the page on which the gift of the house to Nick is contained – it is the next substantive clause on the page.  If, as I find, Nick was reading through the will and spotted the address error, he must have read the gift to him on the same page.  He must therefore have known from that that his mother was leaving him the house.  

66.	He never gave any evidence of that.  Indeed, in cross-examination he denied that he ever read the will (until after the death).  His evidence on his knowledge of the contents of the will varied a little, but he did say in cross-examination that his mother had said that whatever happened to her she wanted him and Paul to remain in the house, from which he understood he had been left it.  When recalled he also sought to say that his mother did not say in advance that that she was going to leave him the house, and he could not suggest why.  Since she was prepared to have him look at her will when the draft arrived, I think it unlikely that she would have been coy about the point, and I consider that there was some form of prior discussion.  He suggested that he probably said to her that he did not want to know how she was going to change the will as between himself and his brother.  I find that evidence to be implausible.

67.	I will return later to make some further findings about all this, but I need to return to the narrative of the finalising of the will.

68.	Having signed the draft will, as amended, Jessica returned it to Miss Marks under cover of a letter dated 16th March 2006.  The next thing that happened was that she was taken to the offices of Miss Marks to execute it on 12th April.  She was driven there by Nick, but he was not present when she saw Miss Marks about it.  There was not much evidence at the hearing about the occasion of the execution.  Miss Marks’ witness statement says that she read over the will to her and it was signed in the presence of her and Mrs Gocher.  She believed that Jessica knew what she was doing.  I accept her evidence on this.  Because of the late production of the draft will it was not appreciated during cross-examination that clause 5 of the draft was not reproduced in the final form, so there was no cross-examination about that particular point.  That clause was either removed by accident in the word processing, or it was removed deliberately.  I think that Miss Marks’ procedures are unlikely to have resulted in the former, so it is more likely to have been the latter.  There was no occasion on which instructions to remove it can have been given other than the occasion of the execution – there is no suggestion of further contacts between Jessica and Miss Marks in the intervening period – so the inference from that (which I draw) is that Jessica expressed a change of mind about the gift on that occasion.  That suggests an awareness of what she was doing.  

69.	The will otherwise reflects the original instructions given.  It contains the following gifts:

(i)  £1,000 to the Royal British Legion.

(ii)  Jessica’s collection of Coronation Anniversary Crowns to be divided amongst grandchildren.

(iii)  Her collection of Hunt Pictures went to Andrew Schrader

(iv)  A piece of jewellery went to a niece.

(v)  The house went to Nick, with a gift over to his children if he predeceased Jessica.

(vi)  Her shares went to the grandchildren.

(vii)  Personal chattels were given to the two sons.

(viii) The residuary estate was given to the two sons, with gifts over to their children.

70.	It is common ground that the residue is essentially of little value.  The will contains extensive administration provisions.

71.	The will having been executed, letters were sent out to the executors the next day informing them of their nomination.

72.	Nick said it was not until about a month after the death that he first looked at the will.  It was 6 months before he told Bill about it, and that was only after Bill had instructed Cullens to administer the estate and they informed Nick that they were proceeding to act on the footing of the 1990 will which they held.  At that point Nick said he was holding a later will.  He denied that the reason that he withheld the information about it was because he felt guilty.  He said that he had a thing about wills and had difficulty dealing with them – he had not made one himself.  I find that evidence hard to accept.  I think it more likely that he was worried about the effects of disclosing the will and was therefore keeping it quiet for as long as he felt he could.

73.	In due course this action was started.  I now turn to the points arising in it.  I record that there was no dispute about due execution.  It was properly demonstrated and proved by the evidence of Miss Marks and Mrs Gocher. 

Want of capacity

74.	There was no dispute as to the test to be applied.  Both sides accepted that it was set out in Banks v Goodfellow (1870) LR 5 QB 549:

“It is essential to the exercise of such a [testamentary] power  that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

75.	It is accepted by both sides that the court should start from a presumption of capacity if the will is rational on its face, and if it is then the burden is thrown on to the challenging party to raise a real doubt as to capacity, in which case the court will then need to investigate the whole position on the basis of all the evidence.  Miss McDonnell, for Bill, said that this will was not rational on its face, so Nick did not even have the benefit of the presumption.  She further submitted that when one looked at the evidence, it was apparent that testamentary capacity was not established.

76.	I do not think that this case turns on presumptions as a starting point, because I have heard a lot of evidence and, presumption or not, I have to consider it all in the round, which I shall do.  However, I will deal with the presumption briefly.  If the starting point is the will then I consider the presumption of capacity would apply.  There is nothing irrational in the will on its face.  It is worded in intelligible English, and the gifts make grammatical and legal sense.  There is no irrational inconsistency – indeed, no inconsistency at all. 

77.	Miss McDonnell sought to say that it was irrational on its face because there was no record of any reasons for changing the testamentary dispositions over the 1990 will, that the value of the gift to Nick was disproportionate to his contributions to the house, the disinheriting of Bill was inexplicable, its effect would be to have the two brothers living cheek by jowl in circumstances in which the testatrix would have known they did not get on, the house would be expensive to maintain, and Bill had a known interest in having the house.  

78.	These are not factors which demonstrate irrationality on the face of the will.  They are circumstances which might be said to go to its rationality in its context.  That is different, albeit relevant to an overall conclusion.  The presumption provides a starting point without which a registry could probably not operate – one could not expect applicants for probate to produce positive evidence of capacity to accompany every application.  It also works if there is no particular reason to challenge a will.  But it is confined to looking at the will itself.  It is a working tool.  It should not be taken to go farther than necessary.  An inquiry as to rationality in context is a legitimate inquiry, but it has nothing to do with an initial presumption.  

79.	In my view the will is rational on its face.  If there were no other evidence then capacity would be established.  However, there is a lot of other evidence, and by the time it has all been considered the presumption has faded away into the background.  The question for me is whether capacity is established on that evidence, the burden being on the claimant.

80.	The evidence of what Jessica was actually like shows clearly that she had testamentary capacity.  The preponderance of the evidence was that she was an elderly lady very much in possession of her faculties.  She impressed various witnesses with her alertness.  She was able to give clear instructions to Miss Marks, and while Miss Marks was unable to confirm that she did successfully identify the property she wished to dispose of (it is not clear that she asked that particular question), there is no suggestion that Jessica missed anything out.  Nor is there any suggestion that she left any potential beneficiaries out of the picture.  She demonstrated an awareness of current affairs and an ability to engage with all those around her.  A degree of forgetfulness is understandable but not, in this context, a significant badge of lack of capacity.  Nor is the odd bit of confusion over names (of which one witness gave evidence).  Looking at that evidence in the round, it points strongly towards testamentary capacity.

81.	Miss McDonnell submitted that there was no evidence that Jessica was aware of the then current value of the farm house.  She submitted that if she did not know its value she was not in a position to know whether it was rational to give it to Nick.  I agree that she may not have known the value of her house, but that is likely to be the case with large numbers of testators (and non-testators).  It is not, of itself, a requirement of capacity that a testator has to know the value of his or her home.  It is highly likely that she knew that it was her most valuable asset by a long way, and that is good enough on the question of capacity.  When Banks v Goodfellow talks of knowing the extent of one’s property, it does not mean that one has to know its value with a high degree of precision.

82.	The material advanced against capacity, apart from the point just mentioned, comes mainly under the head of its being apparently odd that Jessica should have made the particular gift of the house bearing in mind the factors appearing above and the absence of credible justifications for it.  I do not think that this evidence is anything like strong enough to be a badge of lack of capacity, and certainly not strong enough to outweigh the evidence going the other way.  Testators do strange things and are entitled to be whimsical, capricious, vindictive, wrong in belief or their acts beyond explanation without that of itself proving lack of capacity (though those factors may contribute to a bigger picture demonstrating it).  They are entitled to change previous provisions in previous wills without explanation or discussion, without that being taken as a serious demonstration of want of capacity.  In my view that is the position in this case.  The same applies to the oddity (if it be such) of Jessica leaving the brothers in close proximity to each other.  It may have been unwise, but it was not a badge of want of capacity.  Frailty does not equate to want of capacity either.

83.	Miss McDonnell relied on what was said in Re Loxston, Abbot v Richardson [2006] WTLR 1567 at para 194.  There the deputy judge (Mr N Strauss QC) said:

“The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations necessary for a ‘rational, fair and just testament’.  In this case, I do not think that Miss Loxston was able, without assistance, to recollect, understand or focus on all the persons whom she might reasonably wish to benefit at one time, and arrive at a rational decision as to which of them she wished to benefit and in what way.  The limited range of beneficiaries in her last will, when compared to the range of beneficiaries in her previous will, is striking and is in my view due to the fact that she was incapable of concentrating on more than a very limited range of objects at one time without help being provided at the time she gave instructions for and executed the will.”

84.	Those remarks were made in the context of that case.  I do not think that the description of the testatrix in that case is capable of being applied to Jessica.  The range of beneficiaries under both wills is by and large the same.  The later will is more specific in an entirely understandable way.  The major difference is, of course, the fact that Bill no longer shares in the value of the house.  In other circumstances, where there was no other significant body of evidence pointing the other way, that might have been more telling.  However, in the present context it does not have a great deal of weight.  Jessica might have acquired a view of the overall fairness of things with which her family might disagree, but that is her privilege.  She might even have been misguided as to whether or not Nick’s contributions to the kitchen justified such a gift (which was one of her apparently expressed justifications), but she can be misguided without wanting capacity.  In my view she was misguided, but it was not a significant indicium of want of capacity.

85.	Having considered all these matters in the round, including the other points urged on me by Miss McDonnell, I have come to the clear conclusion that Jessica had testamentary capacity when she gave instructions for and executed the 2006 will.   

Want of knowledge and approval

86.	On this issue I was invited to follow the approach of Norris J in Wharton v Bancroft  [2011] EWHC 3250 (Ch) at paragraph 28:

“(a) The assertion that Mr Wharton did not "know and approve" of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr  Wharton  understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions. 
(b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense.
(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute).
(d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph [14], that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator's intentions at the relevant time. 
(e) But proof of the reading over of a will does not necessarily establish "knowledge and approval". Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.
(f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.
(g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.
(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.”
87.	I can safely follow that helpful encapsulation.  The real question is that appearing in paragraph (a) – whether Jessica “understood what [s]he was doing and its effect (that is to say that [s]he was making a will containing certain dispositive provisions) so that the document represents [her] testamentary intentions.”  

88.	My attention was also drawn to the judgment of Chadwick LJ in Hoff v Atherton [2003] EWCA Civ 1554 at paragraph 64:

“Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.”

89.	The starting point in determining this question is my finding that Jessica had testamentary capacity, and the ostensible rationality of the will on its face.  It was not a difficult will to understand.  Furthermore, I find that instructions were given which were accurately recorded, and it was read over properly before Jessica executed it.  Miss Marks may not have had the experience of a seasoned solicitor, but I am satisfied that she was aware of the requirements for a valid will, and was aware of the need to make sure that the testatrix understood and approved what she was signing, and I am satisfied that Miss Marks will have taken the obvious step of reading it over to her.  I also take into account the fact that the draft bore an amendment of one of the gifts, which must have been done at the suggestion of the testatrix, having been made aware of its contents, and that that clause was then left out of the final draft, which again connotes an attention to detail (though not detail as to the principal gifts).  Jessica was a person who was capable of understanding the will which she executed.  

90.	As against that, Miss McDonnell relies on factors which are said to “excite the vigilance of the court”:

(a)  The fact that an unknown will-writer, rather than Cullens, was asked to draw the will.

(b)  The oddity that Jessica should provide so generously for Nick when he was already provided for in her earlier will, he had shown himself to be financially imprudent, it would be impracticable to have him living next door to Bill, he was a dominating factor in her life, there was nothing in the will which sought to enforce her alleged wish that Nick should not sell the house (nor was anything said to Miss Marks about that), and Nick did not tell Bill about the will for 6 months.

(c)  Jessica was old and frail at the time, dependent on Nick for her daily needs.  Her short term memory was poor.

(d)  Miss Marks had no prior knowledge of the deceased, and there is no evidence that she discussed any of the drawbacks of giving the house to Nick in her dealings with Jessica.

(e)  There is no evidence that Jessica knew that the residuary estate, absent the house, was essentially valueless.

(f)  The instructions for the will are a standard form and no attendance note was kept of what Mrs Marks was told, particularly in relation to Jessica’s motivation in leaving the house to Nick.

91.	Miss McDonnell submits that this material means that the evidential burden of proof on Nick is heavy and could only be discharged by cogent evidence of actual knowledge and approval on the part of the deceased.  There is said to be no such evidence.

92.	Standing back and considering the evidence as a whole, I find that Jessica had the relevant knowledge of this will and approved its contents.  I have identified the relevant inquiry - did Jessica understand what she was doing and its effect (that is to say that she was making a will containing certain dispositive provisions) so that the document represented her testamentary intentions?  I am quite satisfied that she did.  The factors relied on by Miss McDonnell (or at least some of them) are capable of arousing the court’s vigilance, but I am satisfied that, that having been done, there is compelling evidence in favour of want of knowledge and approval.  It is contained in my paragraph which refers to the starting point.  She gave coherent and rational instructions to the will writer.  She was apparently able to itemise small chattels as well as her house.  She knew who her grandchildren were, and even most of their addresses.  Her alterations demonstrated an attention to detail.  The will was read to her and apparently understood, and it was not a difficult will to understand.  All in all I am quite satisfied that the burden on Nick in this respect is fulfilled, and the will cannot be challenged for want of knowledge and approval.

93.	In coming to this conclusion I have in mind what was said by Lord Neuberger MR in Gill v Woodall  [2011] Ch 380:

“14.   Knowing and approving of the contents of one's will is traditional language for saying that the will "represented [one's] testamentary intentions" – see per Chadwick LJ in Fuller v. Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the Will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will. 

15.  In Fulton v. Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that 
"When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator".  This view was effectively repeated and followed by Hill J in Gregson v. Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris deceased [1971] P 62, 77F-78B Hill J said that "when it is proved that a will has been read over to or by a capable testator, and he then executes it", the "grave and strong presumption" of knowledge and approval "can be rebutted only by the clearest evidence." This approach was adopted in this court in Fuller [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2010] EWCA Civ 840, para 28 

16.  There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs. 

17.  Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time. As Scarman J put it graphically in In the Estate of Fuld, deceased (No 3) [1968] P 675, 714E; "when all is dark, it is dangerous for a court to claim that it can see the light." That observation applies with almost equal force when all is murky and uncertain.”

94.	The warning in paragraph 16 of that judgment is particularly apposite in this case.  It is true that the will in this case was not prepared and read over by a solicitor, but in my view Mrs Marks was sufficiently close to a solicitor in this respect for the remarks to apply to execution before her as well.  The evidence relied on by Bill is not strong enough to rebut the inferences which arise from the circumstances of the taking of instructions, the instructions themselves, and the circumstances of the execution.

Undue influence

95.	The law can be taken to be as set out by Lewison J in Edwards v Edwards [2007] WTLR 1387:

“There is no serious dispute about the law. The approach that I should adopt may be summarised as follows: 
i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.
v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A "drip drip" approach may be highly effective in sapping the will;
… 
ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent. "

96.	It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence.  It is of the nature of undue influence that it goes on when no-one is looking.  That does not stop its being proved.  The proof has to come, if at all, from more circumstantial evidence.  The present case has those characteristics.  The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles.

97.	I have come to the conclusion that undue influence has indeed been established in this case.  It is to be inferred from the following material:

(i)  The vulnerability of Jessica.  Although not sufficient to deprive her of capacity, it is an important point in relation to undue influence.  She was apparently an admirable lady in her mid-90s, but more uncertain after her 2005 fall.  

(ii)  Her dependency on Nick.  This is an obvious factual point.  It was not total – she still had will and strength of her own, but she was more dependent on him since her fall. She would have been very worried about his moving out and ceasing to look after her.

(iii)  The non-engagement of Cullens in the making of the will.  At one stage in his evidence Nick suggested that she was angry with the firm because they had lost some deeds, but then he said that she told him she had rung them and had been told that they did not do home visits.  The latter reason is wrong.  This is an unsatisfactory part of the evidence.  The engagement of the will writer brought in a firm with no prior contact with the family.  It was not clear whether instructions for the will would have been dealt with by anyone at Cullens with familiarity with the family, but Nick would not necessarily have known that.

(iv)  The reason given to Miss Marks for giving the house to Nick was inaccurate, and its source is likely to have been Nick.  The sale of his house was not a voluntary act by Nick.  It was sold by the trustee in bankruptcy, and would have been sold by the mortgagee if the trustee had not sold it.  Nick was maintaining the farm house after a fashion, but that is hardly a reason for giving him the whole house.  Wanting him to have a roof over his head after she had died is an understandable sentiment, but it is not apparent that a half share would have been insufficient for this purpose.  Nick suggested that she might have wanted to even things up between him and his brother, on the footing that the brother’s activities had devalued the property anyway.  I find this implausible.  I do not think that Jessica would have thought like that.  Nick, however, would, and it would provide a motivation for suggestions by him that he should have the house.  

(v)  There is no other identified reason why Jessica would, entirely of her own volition, wish to change her will in respect of the house.

(vi) Nick’s personality is an important factor.  I have made findings about that above.  He was a forceful man with a forceful physical presence.  I repeat that I find there was no question of physical abuse, or even of real emotional abuse.  I am sure that he will have experienced frustrations in looking after his elderly mother which many less volatile personalities will experience.  However, the fact is he was a powerful personality and his mother was much more vulnerable.

(vii)  Nick’s keenly felt view that he had not been treated equally with his brother is an important point.  He would be more inclined to try to even things up.  I think that he did so, by way of suggestion to his mother.  He had clear views about his entitlement to his “inheritance” – see above.

(viii)  Nick’s attempts in evidence to distance himself from a consideration of the will, and from acquiring knowledge of its contents, are an important point.  The thrust of his evidence, until the marked up draft was produced, was that he did not really know much about the will.  He arranged for the will writer to attend, and took his mother to the execution meeting, but did not know about the gift in his favour until a little time afterwards.  His evidence distanced him from the content of the will.  However, it then became apparent that he participated in a consideration of the draft.  I think it unlikely that he had simply forgotten that.  Furthermore, it gave him an opportunity to see the gift to him.  With his hatred for his brother, and his feelings of unequal treatment, it is unlikely that he would not have looked to see what it said, particularly when the gift to him was on the same page as some of his manuscript amendments (on my findings).  I do not accept his evidence that he had a thing about wills and did not like contemplating them (even his own).  In any event, I am sure that his interest in seeing how he and his brother were treated would have overcome any such emotional difficulties.  His direct involvement in the terms of the will, coupled with his omitting it from his evidence, are very important factors in considering whether he applied some degree of improper influence towards the gift in his favour.  On my findings he will have known that he was going to get the house, and with his views on entitlement and inheritance he would not have forgotten that either.  His failing to give evidence about it is likely to be rooted in a perception that it would not be helpful to the picture that he wished to present to be volunteering it.

(ix)  His not disclosing the will until steps were taken to prove the 1990 will some 6 months after the death is also significant in this context.  I think it is more consistent with his being aware of the circumstances in which it was drawn (of which he was less than proud) and wanting to put off the evil day of having to propound it because he had misgivings about those circumstances.  

(x)  I do not think that Miss Marks’ attempt to ascertain whether there was pressure on her, the fruits of which are recorded on her instruction form, are a particularly strong contra-indication in this case.  If the usual more subtle form of undue influence is being applied, its victim would hardly be likely to answer “Yes” to the question.  

98.	In all those circumstances I find that undue influence has been proved.  I think that they require the inference that Nick was instrumental in sowing in his mother’s mind the desirability of his having the house, and in doing so he took advantage of her vulnerability.  It is not possible to determine any more than that the precise form of the pressure, or its occasion or occasions, but it is not necessary to do so.  I am satisfied that this will results from some form of undue influence.

99.	It follows that I pronounce against the 2006 will and in favour of the 1990 will.