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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Ram & Anor v Chauhan & Anor [2017] EW Misc 12 (CC) (19 July 2017) URL: http://www.bailii.org/ew/cases/Misc/2017/12.html Cite as: [2017] EW Misc 12 (CC)

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IN THE COUNTY COURT AT LEEDS

		The Court House Oxford Row Leeds LS1 3BG
		19 July 2017

Introduction

1. In this case, the Claimants challenge the validity of a will made by Mrs Sibo Kaur on 13 January 2012 (the Will). Mrs Kaur died on 11 April 2013. By the Will the deceased appointed the Second Defendant as her executor and trustee and bequeathed the whole of her estate to the First Defendant, one of her 3 sons. The Claimants are her other 2 sons. They challenge the validity of the Will on 3 grounds namely that;

(a) It was not properly executed in accordance with the Wills Act 1837 as amended because the attesting witnesses were not present when the deceased signed the Will

(b) In any event, the deceased lacked testamentary capacity at the time that she made the Will

(c) Alternatively, that the Will was the result of the exertion of undue influence by the First Defendant upon the deceased.

2. The First Defendant asserts that the Will is valid in all respects and counterclaims for a declaration to that effect. He disputes that he exerted any undue influence on the deceased and moreover, in his defence and counterclaim, he asserted that, in any event, he has an equitable interest in 210 Birmingham Road, West Bromwich, the house owned by the deceased and which is in effect the only significant asset in this estate in the UK (although there may be properties in India). Mr Philip Chapman, the solicitor for the Claimants, told me that this estate is probably worth less than £200,000 in total.
3. The First Defendant and the deceased had resided in the house for some years up to date of the deceased's death. The deceased had been cared for by the First Defendant assisted by a team of carers who attended on the deceased up to 4 times a day.
4. In his counterclaim the First Defendant asserted that his interest in the house in Birmingham Road arose because he was assured by his mother that the house would be his if he looked after her, he relied on that assurance and acted upon it to his detriment. He asserted that the three elements necessary to estop the estate from denying his equitable interest in the property had therefore arisen with the result that he has a 100% equitable interest in it by virtue of an equitable estoppel. However, in the course of the hearing the First Defendant abandoned his counterclaim other than his claim for a declaration that the Will is valid and thus equitable estoppel is no longer a live issue.
5. As I have said, both Claimants are represented in this matter by their solicitor Mr Philip Chapman. Until a matter of days ago the First Defendant was unrepresented but very shortly before the hearing he instructed solicitors who in turn instructed Mr Bowen of counsel. He has taken this brief at extremely short notice and I am grateful that he has done so. The Second Defendant is unrepresented and chose to absent himself from the hearing save for the brief time in which he was called upon to give evidence. Probate was granted to the Second Defendant on 29 July 2015 on the basis of his appointment as executor under the Will.
6. The Claimants' position is that the deceased's estate should be administered in accordance with a will made on 22 October 1997. That will automatically comes into effect in the event that the Will is held to be invalid. By the 1997 will the deceased appointed all 3 of her sons to be her executors and trustees and divided her estate equally between them. A pronouncement against the validity of the 2012 Will will inevitably result in the revocation of the present grant of probate to the Second Defendant.
7. In the course of this hearing I have heard from a number of witnesses on behalf of the Claimant all save one of whom have been members of the family either by blood or marriage. The one exception namely Kulbir Rita Kaur was employed as a carer of the deceased between 2009 and 2011.
8. I have heard no evidence from the First Defendant or any witnesses on his behalf. The First Defendant had failed to comply with directions as to the filing of witness statements. The sanctions specifically imposed upon the First Defendant in the event of default in compliance with the order for the exchange of witness statements was that he was debarred from relying on either oral or written evidence at the final hearing unless with the further permission of the court. A late application by the First Defendant for relief from sanctions was heard by me last week and, for the reasons given at that time, I felt obliged to refuse it.
9. As I have said, I did however hear evidence from the Second Defendant and of course Mr Bowen was able to cross examine the Claimants and their witnesses regarding their evidence.
10. Finally, by way of introduction I record that I do not have the benefit of any psychiatric report addressing the issue of testamentary capacity. In my experience this is highly useful evidence with which the court is usually furnished. Permission was given in this case for such an expert to be instructed as a single joint expert but that has not been done. I have however been referred to several entries in the deceased's hospital records and Mr Chapman contends that these are indicative of a lack of testamentary capacity at the relevant time.

The Law as to Attestation of the Will

11. Section 9 Wills Act 1837 as amended and applicable to deaths on or after 1 January 1983 states;

"no will shall be valid unless-

(a) it is in writing, and signed by the testator or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will and

(c) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time and

(d) each witness either-

(i) attests and signs that will; or

(ii) acknowledges his signature

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary".

The contention is that the Will is invalid because the witnesses were not present at the same time when the deceased signed the Will.

12. Williams on Wills 10^th edition paragraph 13.1 states;

"If a will, on the face of it, appears to be duly executed, the presumption is in favour of due execution applying the principle "omnia praesumuntur rite esse acta". The force of the presumption varies with the circumstances. If the will is entirely regular in form, it is very strong and if the form is irregular and unusual the maxim does not apply with the same force. If the witnesses are entirely ignorant of the details of the execution the presumption is the same. If they professed to remember and states that the will was not duly executed and there is negative evidence is not rebutted by showing that the witnesses are not to be credited, or, taking their statement of the facts, that their memories are defective, the will must be pronounced against. The court does not require direct affirmative evidence of due execution"

In paragraph 13.3 it is said that

"evidence rebutting the presumption must be positive and reliable………… the burden of proving due execution, whether by presumption or by positive evidence rests on the propounder (in this case the Defendants). The direct evidence of both the attesting witnesses, unless discounted, rebut the presumption and the evidence of one of the witnesses has been held to do so but even an apparently positive recollection of contradicting the attestation clause must be treated with caution" (my emphasis)"

The Law as to Testamentary Capacity

13. The law as to testamentary capacity is well-established. The burden of proof and the manner in which it shifts is best set out in In Re Key Deceased 2010 EWHC 408 at paras 97 and 98. The burden of establishing capacity at the relevant time is on the person propounding the will (in this case the Defendants). However, there is a rebuttable presumption that a will which is duly executed and which is rational on its face was executed by a testator who had testamentary capacity. If a will is properly executed and is rational on its face the evidential burden then shifts to the objector (in this case the Claimants) to raise a real doubt about capacity. If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less. The issue of testamentary capacity is one for the court to decide, it is not one to be delegated to experts, albeit that their knowledge skill and experience may be an invaluable tool in the analysis of that issue.
14. The classic test at common law as to testamentary capacity is that set out in Banks v Goodfellow (1870) LR 5 GB 549 at 565. The testator must;

Understand the nature of his act i.e. executing the will and its effect (i.e. the effect of his wishes being carried out at his death)

Understand and recollect the extent of his property

Understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will

Not be subject to any disorder of the mind as 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".

15. In Abbott V Richardson (2006) WTLR 1567 at 1627 it was held that the testator must have the mental capacity to make decisions which take into account the relevant property, persons and circumstances and arrive at a "rational fair and just" testament.
16. At what point does the testator have to possess testamentary capacity? Quite clearly it is at the time that he gives instructions for his will. As to capacity when the will is executed, if he has capacity at that point then that is sufficient but even if he does not, Parker V Felgate (1883) 8 PD 171 is clear authority of the proposition that capacity does not necessarily have to be present at the time of the execution of the will provided that;

The testator had capacity at the time the instructions were given

The will is prepared in accordance with those instructions

At the time the will is executed the testator remembered having given instructions and believes that the will was prepared in accordance with them.

17. The principle in Parker V Felgate has been consistently applied by the courts ever since despite efforts to challenge it.
18. On the issue of burden of proof, Mr Chapman, for the Claimant argues that this rebuttable presumption that a will which is duly executed and which is rational on its face was executed by a testator with testamentary capacity is in fact rebutted in this case because, he argues the Will is not rational on its face. He argues therefore that there is a burden upon the Defendant as propounder of the will to positively establish capacity.
19. However, alternatively he argues that even if this will is rational on its face such that the evidential burden then shifts to the Claimant to raise a real doubt about capacity, the Claimant has raised that real doubt with the effect that the evidential burden has shifted back to the Defendants to establish capacity and they have failed to do so.
20. In Hawes v Burgess 2013 EWCA CIV 74 Mummery LJ had this to say at paragraph 13;

"….. Although talk of presumptions and their rebuttal is not regarded as especially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed"

And at paragraph 60 he says;

"my concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity."

21. The will with which I am concerned was not drafted by solicitor. The First Defendant's position is that it was actually drafted by an accountant who has since died. It is very poorly drafted. It is grammatically deficient and somewhat rambling.
22. As a separate but related and overlapping requirement is the need for it to be shown that the testator knew and approved the contents of his will. It was suggested in Perrins v Holland and others (2010) EWCA 840 civ that the need for it to be established that the testator knew and approved of the contents of his will meant that if he could not do so at the time of execution then the will was invalid. How, it was argued, could a testator have knowledge and approval of his will if by reason of his lack of capacity he was incapable, at the time of execution of his will, of knowing and approving of its contents?
23. It was held that there was a clear distinction between testamentary capacity and knowledge and approval. The purpose of the enquiry into knowledge and approval is to ascertain whether the will represents the testator's true intention. Moore-Bick LJ put it at follows at paragraph 55. He said it was necessary to ask whether (1) at the time the testator gave the instructions, he had testamentary capacity; (2) the document gives effect to his instructions; (3) those instructions continue to reflect his intention; and (4) at the time he executed the will he knew what he was doing and thus have sufficient mental capacity to carry out the juristic act which that involves.
24. As Lewison LJ put it in Simon v Byford (2014) EWCA civ 280 at paragraph 47

"when we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that counts: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices whereas knowledge and approval requires no more than an ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacked testamentary capacity at the date that the will is executed. The reason for this requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland (2010) EWCA civ 840. Normally proof of instructions and reading over the will will suffice: ibid at (25). The correct approach for the trial judge is clearly set out in Gill V Woodhall (2010) EWCA civ 1430. It is a holistic exercise based on the evaluation of all the evidence both factual and expert. The judge's starting point in our case was one of initial suspicion given that the disputed will was prepared and executed without a solicitor and without Mrs Simon having been medically examined"

The Law as to Undue Influence

25. I think that I need do no more than reproduce the helpful summary of the law set out in the judgment of Lewison J, as he then was in Re 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 the case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence.

(iii) whether undue influence has procured the execution of the will is therefore a question of fact.

(iv) 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 improving undue influence is vitiating a testamentary disposition.

(v) 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.

(vi) coercion is pressure that overpowers the volition without convincing the testator's judgement. 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 over bears the testator's free judgement, discretion or wishes, is enough to amount to coercion in this sense.

(vii) the physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to over bear 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 fatigued 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.

(viii) there is a separate ground for avoiding testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is fraudulent calumny. The basic idea is that if A price is the testator's mind against B who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside.

(ix) the essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgement if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.

(x) the question is not whether the court considers that the testator's testamentary disposition is fair because, subject to sanitary powers of intervention, a testator may dispose of his estate as he wishes. The question in the end is whether in making his disposition the testator has acted as a free agent.

26. In this case fraud or fraudulent calumny is not alleged. The Claimants contend that the undue influence takes the form of an overbearing of the testator's free will.

Compliance with s9 Wills Act

27. The Will on its face bears the signature of 2 witnesses. It also bears the usual attestation clause indicating that the deceased signed the Will in the presence of them both and that they endorsed the Will with their signatures in the presence of each other.
28. It has to be said that the form of the attestation clause is broadly as one would expect certainly, in my view, it cannot therefore be said that the form is sufficiently irregular or unusual to greatly undermine the force of the presumption. The presumption in favour of due execution therefore arises.
29. The contention that the Will has been invalidly executed arises from the evidence of the Second Defendant, since withdrawn. On 2 June 2016 as a result of communications that he had received from Mr Chapman a conversation took place on the telephone between the Second Defendant and Mr Chapman during which the Second Defendant specifically said, amongst other things, that when the deceased signed the Will only she, the First Defendant and the Second Defendant were present. In short, he asserted that the witnesses were not present. There is in the trial bundle a copy of Mr Chapman's telephone attendance note to that effect. By letter of 3 June 2016 a copy of that telephone attendance note and a draft witness statement prepared by Mr Chapman in pursuance of it was sent to the Second Defendant. The Second Defendant returned the witness statement duly signed after some prompting from Mr Chapman. That statement is dated 15 June 2016 and unequivocally states that when the deceased signed the Will there was no one present apart from himself and the First Defendant (other than of course the deceased). His signature on that witness statement appears below a statement of truth.
30. The Second Defendant does not dispute the conversation took place between him and Mr Chapman; indeed he does not dispute the accuracy of Mr Chapman's telephone note nor does he suggest that the witness statement sent to him for signature does not accurately reflects what was said. The letter under cover of which it was sent pointed out to the Second Defendant in terms that if the statement need to be amended then the Second Defendant should notify Mr Chapman of the changes desired on a separate copy. No such notification was given to Mr Chapman who only received back in the post the unamended witness statement duly signed.
31. The Second Defendant now says that that statement is untrue and he made it because he was pressured by Mr Chapman and by the Claimant and his family. He has signed another statement dated 2 May 2017. At paragraph 9 of that statement he now says that the Will was signed in the presence of the 2 witnesses was names appear as witnesses on the will. That statement is also endorsed with a statement of truth. Elsewhere in the witness statement he speaks of the pressure that he says was applied to him and which resulted in his signing a statement which was untrue.
32. At paragraph 4 of his most recent statement he states that "the signature on this document ...that is the original statement of 15 June 2016) does not appear to be mine as I don't remember signing it". It is an observation which is wholly inconsistent with his position that he signed the original witness statement because he succumbed to pressure to do so. There is in the circumstances a very significant internal inconsistency in his most recent statement to say nothing of its inconsistency with his original statement.
33. The allegations against Mr Chapman of exerting undue influence were raised very late in the day by the witness statement of the Second Defendant of 2 May and resulted in the highly unusual situation whereby Mr Chapman felt obliged to defend himself in the witness box against what he alleged to be groundless allegations. It led to a situation where an advocate had to enter into the arena as a witness. The propriety of such a step was something which exercised the court and legal representatives and recourse was had to the Solicitors Code of Practice. In the end it was felt on this occasion that Mr Chapman could if he wished give evidence to rebut the Second Defendant's allegations. The Second Defendant did not avail himself of the opportunity of cross-examining Mr Chapman albeit that he was notified of Mr Chapman's intention to enter the witness box where he could be cross-examined by the Second Defendant if the Second Defendant so wished. Mr Bowen, whose client's interest was now supported by the Second Defendant's new position, did however take the opportunity to cross examine.
34. Before he himself gave evidence however, Mr Chapman took the Second Defendant through the communications which he had had with him. None of those communications suggested that Mr Chapman had applied inappropriate pressure on the Second Defendant. It is right that there were several letters and telephone chasers to the Second Defendant initially to get in touch and then subsequently to return the statement but, in my view, nothing that can be seen to evidence undue pressure exerted by Mr Chapman. Indeed, the Second Defendant accepted that he would not obliged to sign the first witness statement. The fact is that he did so and sent it back to Mr Chapman in the post. In the end the Second Defendant's allegation of pressure seems to come down simply to the fact that Mr Chapman had on one occasion telephoned him after hours and on another occasion had suggested to him that if he signed the statement reflecting the contents of the telephone conversation of 2 June then he would be "of the hook".
35. In fact, as it happens, it must have been clear to the Second Defendant by November 2015 that being an executor was going to be an onerous responsibility because of the dispute between the family as to the validity of the Will because Mr Chapman had written to him in November in his capacity as executor to advise him that issue was being taken with the Will, and requiring the Second Defendant to make no distribution of the estate and to send Mr Chapman provisional estate accounts. The upshot was that the Second Defendant had been obliged to consult solicitors. As a fact, if the Will was invalid then the Second Defendant would not be involved in this family dispute and to that extent would indeed be "off the hook". Having said that, Mr Chapman does not recall using that expression and volunteered the observation that it is not one that he would generally use in his everyday language but if he did, it is difficult to see that making that observation was in some way putting improper pressure on the Second Defendant much less the sort of pressure that would cause a person to lie in a witness statement to be used in court proceedings.
36. The conclusion that I have reached, having been taken through the communications between Mr Chapman and the Second Defendant and having heard the evidence of the Second Defendant and Mr Chapman, is that there is absolutely no evidence that Mr Chapman did anything improper to impel the Second Defendant to sign his First witness statement. The fact that the Second Defendant makes such an allegation in the face of a complete absence of evidence to that effect does also not reflect well on him.
37. That conclusion leads to the further conclusion that the Second Defendant is a wholly unreliable witness but I reach that conclusion not just on that basis but also because of the wholly inconsistent nature of his first and second statement and the internal inconsistencies in his second statement.
38. Mr Chapman argues that I should have regard to the second defendant's first statement and accept that as being accurate. He argues that there was never any reason for the Second Defendant to suggest that the Will was not validly witnessed unless that was in fact the truth. It was not something that was even suspected by the Claimant until the Second Defendant set that hare running.
39. However, I have concluded that since it appears to me that the Second Defendant is completely unreliable I cannot accept his evidence at all – either one way or the other.
40. I remind myself of the observations made in paragraph 13.3 of Williams on Wills that the evidence rebutting the presumption of proper execution must be positive and reliable and that even an apparently positive recollection of contradicting the attestation clause must be treated with caution.
41. In my view, the presumption is not rebutted by the absence of admissible evidence from the witnesses that the Will was validly witnessed. It is a matter for the Claimants to rebut the presumption of due execution. The onus is upon them to do so. One way of doing so may be by themselves calling those alleged witnesses to give evidence to that effect.
42. In the circumstances I am not satisfied that the presumption in favour of due execution has been rebutted in this case and I therefore find that the Will does comply with the provisions of the 1837 Act as amended.

Lack of testamentary capacity

43. It has to be said that this was the main focus of the hearing and the issue to which most of the evidence was addressed.
44. When the deceased made the Will she was a lady of 82 years who was clearly not in good health. For some reason the bundle does not include her GP records but, as I have said, does include some other health care records relating to the period from 2002 to 2013.
45. Mr Chapman in paragraph 6 of his skeleton argument highlights the issues that those records raise about her health in that period and I do not intend to set them out in detail. Suffice it to say that she was diabetic, in 2002 she had a stroke and cerebro vascular disease was diagnosed. In 2003 she was recorded as having Parkinson's disease. In 2006 the query was raised as to whether she had vascular dementia. In February of that year her son (the First Defendant) reported to the hospital that the deceased had been "intermittently confused with impaired short-term memory".
46. On 5 January 2007 a letter from the hospital to the GP identified one of the deceased's problems as "recent memory impairment". On 22 August 2007 her treating hospital wrote a letter to her GP in which vascular dementia was "presumed". There is a document in the court bundle headed "NHS Continuing Healthcare Needs Checklist" dated 31 December 2007 in which it is recorded that her cognition is at level 3 on a scale of 1 to 3 where 3 is the least satisfactory.
47. In January 2008 when in hospital she appeared to exhibit some bizarre behaviour. On 31 January 2008 hospital record notes that a CT scan indicates bilateral cerebral atrophy. On 11 February 2008 the First Defendant reports to the hospital that his mother is suffering from drowsiness and lack of communication. On 19 May 2008 the hospital resolved that it was necessary to obtain consent for treatment on the deceased from her son as the deceased was normally confused. On 20 May 2008 a consent form was signed by her son in respect of some surgery that the deceased was to undertake. The surgeon is recorded as indicating that the patient was unable to comprehend and retain information material to the decision to operate and was unable to use and weigh information in the decision making progress. On 2 June 2008 she is reported to lack the mental capacity that is required even to mobilise. In a NHS Continuing Healthcare Needs Checklist dated 18 June 2008 completed by the local hospital the deceased is recorded as having only borderline cognition. This is level 2 of the scale to which I refer in the preceding paragraph. I note that, whilst this is not good, this is actually an improvement on the scale she was on in December 2007. In June 2008 her cognition had been at level 3. In February 2009 during a hospital visit the hospital records that it was unable to reliably assess her comprehension.
48. On 13 January 2010 there is a further letter from the hospital to the deceased's GP, in which it appears to be assumed that she had cerebrovascular disease. A letter of 11 March 2011 records that the hospital were concerned that the deceased was having issues with her short-term memory and that her son, presumably the First Defendant, reported that her memory "appears to be deteriorating". A further letter of 26 May 2011 refers to cognitive changes that may be indicative of dementia.
49. Clinical notes in respect of attendance at the hospital on 10 June 2011 indicate that the hospital is "unable to gain patient's consent and that she was sitting in a chair by the bedside unable to speak to word, unable to follow instructions with physical prompts". The same document records that the deceased's son, presumably the First Defendant, was concerned that his mother's speech had deteriorated recently. Another hospital entry for 10 June 2011 records the deceased as being unable to follow any instructions and suffering from low motivation. The hospital queried whether she was suffering from cognitive impairment. This is of course only 6 months before she executed the Will.
50. On 18 August 2012, 8 months post execution of the Will, the medical notes record that her son, the First Defendant, reported her to be less communicative and confused although it has to be said that a Transfer of Care Summary of the same date prepared by a consultant records that, on examination, she was alert and appeared comfortable at rest.
51. I have not been referred to any medical reports which are dated around the time that the Will was signed but Mr Chapman argues that the reports to which I have been referred must raise doubts as to capacity at the relevant time.
52. The oral evidence of those witnesses called by the Claimants (of which there were 8 not including the First and Second Claimant both of whom also gave evidence) essentially focused upon the family's interaction with the deceased on those occasions when they visited her at her home, other than the evidence of Kulbir Rita Kaur whose experience of the deceased arose by virtue of her capacity as her carer between 2009 and 2011 and the evidence of Kashmiro Kaur which omitted, whether deliberately or otherwise I know not, to make any reference to the deceased's condition during family visits.
53. I do not think I need to deal with the family's evidence in great or individual detail in so far as it related to the capacity of the deceased. There was a common thrust to it which was that from about 2009/2010 the deceased had been wholly incapable and confused and did not recognise even her children and grandchildren. One of the witnesses, Renika Chouhan, the First Claimant's daughter is a radiologist so gave her evidence to the effect that her grandmother failed to recognise her against her background of some professional experience of dementia and its effects. She was a course not an expert instructed in these proceedings but nevertheless she did offer an opinion to the effect that her grandmother was suffering from dementia.
54. No real objection was made by Mr Bowen to this evidence. Perhaps he had in mind the recent decision of Mondial Assistance (UK) Ltd Bridgwater Properties Ltd a 2016 case heard before Nugee J to the effect that the opinion of an expert was prima facie admissible in evidence, subject to questions of the weight to be given to it, and was not subject to the requirements of Part 35 unless the expert had been instructed to give or prepare expert evidence for the purpose of the proceedings.
55. In fact, I do not think it appropriate to attach material weight to Miss Renika Kaur's opinions on the question of whether her grandmother was suffering from dementia, not because I conclude that opinion is wrong or that Miss Kaur is not amply qualified to give it but because she is the daughter of the First Claimant and it would be wrong, in the context of this case, in the circumstances to have regard to her opinions as to testamentary capacity.
56. Of course I do attach the same weight to her evidence of fact as I do to the other witness evidence. She was clear that in the last 2 or so years of her life the deceased had failed to recognise her, it was hard to communicate with her and that she seemed to be permanently confused and living in her own world.
57. I do however single out for mention the evidence of Kulbir Rita Kaur simply because she is not a member of the family and it was not suggested that she had anything to gain by her evidence. She saw the deceased almost every day and usually much more than once a day between 2009 and 2011 because she was one of her professional carers. Her recollection was that the deceased did not recognise anyone at all. At paragraph 4 of her witness statement she states that the deceased could not remember anyone who would come to see her during the day, she did not know what day or time it was and she was unable to tell if she needed to go to the toilet. She paints a picture of a lady of minimal cognition.
58. It is right to say that none of these witnesses who said that their experience of the deceased, in the last couple of years before her death, was that she was wholly unresponsive was challenged to any great extent by Mr Bowen although I accept that the First, and indeed the Second Defendant do not accept that the deceased lacked cognition.
59. Whilst, by virtue of the sanction imposed on his evidence because of his breach of earlier court orders, I did not hear from the First Defendant I did hear from the Second Defendant. He is unrelated to the deceased but had known her for many years and of course, and importantly, he was present when the will was executed. His evidence before me was that he explained the terms of the will to the deceased and she understood him and indeed made it clear that she wanted to benefit the Second Defendant in preference to her other children because he had looked after her and her husband before he died and she did not wish to leave him homeless.
60. He says that he was entirely satisfied that the deceased knew what she was signing. On the other hand, he did seem to recognise that the only responses he ever elicited from her when he asked if she understood was the Punjabi for "yes". He did not ask her to relate back to him what she thought it was that she understood in order that he could satisfy himself that she actually did understand it.
61. In his original statement dated 15 June 2016 he gives a different impression of the deceased's capacity to understand. At paragraph 2 he says as follows

"Rashpal asked his mother if her house was his and she said yes. The conversation was all in Punjabi. He had to ask the question several times before she answered".

62. The fact that apparently the First Defendant had to ask a question several times before receiving an answer itself suggests difficulties in comprehension. Moreover, in fact, as I understand it the answer to the question is wrong. The property did not belong to Rashpal, the First Defendant. It belonged to the deceased. I accept of course that the statement may simply be badly drafted and was intended to convey the fact that it was the deceased's wish that the house would become the First Defendant's.
63. I have however already commented on the question of the reliance that can be placed upon the evidence of the Second Defendant. I attach no more weight to his evidence in connection with the deceased's capacity as I did in connection with his evidence as to the formalities relating to the execution of the will - and for the same reasons.
64. There are other factors upon which the Claimant relies in support of the contention that the deceased lacked capacity. The first is a contention that the evidence suggests that even the First Defendant had no faith in the validity of the Will. The Claimant's evidence is that the First Defendant actually went to solicitor's offices with the Claimant to instruct them to obtain probate of the 1997 will. The solicitor, Mr Gangar actually put steps in hand to obtain probate of that will and, since he had been complicit in instructing him, the First Defendant was well aware of that. Eventually when Mr Gangar discovered that probate had already been granted in relation to the Will he was disinstructed. The fact that the First Defendant did instruct Mr Gangar at least on a preliminary basis is supported by a letter dated 13 March 2015 from that solicitor to the First Defendant at page 275 of the bundle.
65. It is bizarre that the Second Defendant should actually go to a firm of solicitors with the First Claimant to instruct that solicitor to seek probate of a will which the Second Defendant now says was revoked by the Will.
66. Another factor upon which the Claimant relies is the nature of the Will itself and its provenance. The 1997 will was prepared by solicitors, indeed the Mr Gangar just referred to and looks as if it was professionally prepared. The Will by contrast is very unprofessional in its appearance and content and was prepared, even on the First Defendant's view, by a person other than a solicitor. No assessment is recorded as to the capacity of the testatrix. The Golden Rule, whereby any will prepared on behalf of a testator who is aged or is seriously ill should be witnessed or approved by a medical practitioner who ought to record his examination of the testator and his findings, was manifestly not followed.
67. It is appropriate to repeat that in Hawes v Burgess to which I refer in paragraph 20 above Mummery LJ remarks, in terms of the difficulty in challenging a will on grounds of capacity, that it is markedly more difficult to do so where the will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the testator. On that basis, the Will is considerably easier to challenge.
68. It is also argued that the Will is irrational on its face. It purports to explain why the deceased thought it appropriate to leave her estate exclusively to the First Defendant. The Will contains the following paragraph which I reproduce verbatim;

"My reason for making my son Rashpal sole beneficiary are that he was Mr Kartara Ram,s carer my son cared for my husband right up until his death on 19 May 1991 on his deathbed before my husband Mr Kartara Ram died he asked a great favour from my son he told him to look after your bibi calling her Tommy as you have looked after me and to marry Nimbo your sister to someone respectable then after telling my son this he passed away a few hours later and I have made my decision my son even brought me out of the care home as I could not stand living in that horrible place as i requested him to do even though i know all the family was against it he kept his father's wishes and now my wishes and he is still my career"

69. This passage, with its lack of punctuation and real structure gives a flavour of the quality of the drafting of the Will but its context for this purpose is that in fact the 1997 will had made no provision for the First Defendant other than that he should share equally in the estate with his brothers notwithstanding that, in terms of the care he had offered to his father Kartara Ram, things were no different in 2012 than they had been in 1997. The Claimant asks why should suddenly the First Defendant be rewarded to this extent by the Will for looking after his father when the care he had given to his father had also been in place in 1997 when that will was prepared?
70. Finally, the Claimant raises questions as to the integrity of the First Defendant which give rise to a suspicion that he has manipulated events to secure execution of a will which the deceased did not understand. One of the issues he draws attention to to support that contention is the evidence of the Second Claimant. The First Defendant has produced a statement ostensibly signed by the Second Claimant dated 26 March 2017. The Second Claimant gave evidence that the signature attached to that statement is not his but is a forgery produced by the First Defendant. It is a fact that Mr Bowen did not challenge that evidence.
71. As against this it is right to record that in March 2009 the deceased apparently executed a power of attorney in favour of the Claimant. It is not suggested by the Claimants that she lacked capacity to do that. It is right that many of the medical problems to which I have referred above and which are prayed in aid by the Claimant as pointing to the deceased's incapacity predate that. On the other hand, the general purport of the oral evidence and indeed the written evidence was that the deceased tended to deteriorate more considerably in the last couple of years prior to her death in April 2013.
72. Furthermore, there is the fact that, as a fact the Second Defendant did look after the deceased in that he was her carer. In that respect he did have more responsibility for the deceased than his brothers and it would not be unusual under the circumstances for the deceased to wish to reflect her gratitude for his ministrations. The contention therefore of the Defendants is that it cannot be said that the Will lacks rationality.
73. The Claimant's position is that the First Defendant received significant sums from the local authority in his capacity as carer, some of which the local authority are seeking to recover on the basis that it was not spent by him on his mother and further that local authority carers of which Kulbir Rita Kaur was one came in about 4 times a day to look after his mother and so the responsibilities of being a carer were not as onerous as might have first appeared. In addition, he had the benefit of living in the deceased's house who therefore provided a roof over his head.

Conclusion as to Testamentary Capacity

74. First, I make it clear that I am really not able to derive any conclusions as to capacity from the medical records. As I have said, the directions order in relation to this matter provided for reliance to be placed upon the report of a single joint expert psychiatrist but no such report was ever commissioned. It may well be that such a psychiatrist could have formed a view on these documents about testamentary capacity although I apprehend that even he/she may have wanted to have access to the GP records. While the deceased was clearly ill, I am not in a position to reach any conclusion based on these records as to whether in January 2012 she lacked capacity in the Banks v Goodfellow sense. That however is not to say that the medical records are irrelevant. They are part of the picture as a whole.
75. The first question however is whether that evidence taken with the other evidence to which I refer above gives rise to a real doubt about capacity such that the evidential burden shifts to the propounder of the will namely the First Defendant to establish capacity.
76. I have not been referred to any authority as to what is meant by "real" in the context of "real doubt" but I am satisfied that, however that is reasonably defined, the evidence to which I have been referred does raise that real doubt. It is the cumulative effect of the medical notes, the evidence of the family, the evidence of the carer, the appearance of the Will and the fact that no solicitor was involved where one had been involved previously and the failure to comply with the Golden Rule that predominantly lead me to the conclusion that there is a real doubt as to capacity such as to shift the evidential burden back to the propounder of the will. Indeed, in his final submissions I discussed with Mr Bowen the issue whether he contended that these matters did not give rise to a real doubt when considered in the round. Quite rightly, in my judgement he did not go that far.
77. If the cumulative effect of the matters that I have referred to above does shift the evidential burden then the only evidence that has been offered to discharge that burden is the completely unreliable evidence of the Second Defendant, the fact that in 2009 the deceased executed a power of attorney and the Claimant does not suggest that she was unable to do so and the fact that the First Defendant was in fact the deceased's primary carer. I am not satisfied that this is sufficient to discharge the evidential burden of establishing capacity in January 2012.
78. The absence of a psychiatric report is germane here. Mr Chapman's position has been that in fact the evidential obligation to establish capacity in the end falls on the First Defendant and that therefore it was a matter for the First Defendant to push for that report. Mr Chapman argues he does not need to rely on any psychiatric report as long as he has discharged the burden upon the Claimant of establishing a real doubt as to capacity. In short, he argues that the absence of a psychiatric report in the circumstances of this case is to the detriment of the First Defendant and not the Claimant.
79. The courts have made clear more than once that it is not desirable to make decisions simply on the basis of the burden of proof unless there is no sensible alternative. I am reluctant to do so therefore in this case simply on that basis but the fact is that I am satisfied that the evidential burden of establishing capacity has ended up in the lap of the First Defendant and that he has not discharged it.
80. All the evidence to which I refer above is not only relevant to the issue of establishing a real doubt as to capacity, it also comes into play even where a real doubt is established. It is relevant to the question about whether the propounder of the will has discharged the evidential burden on him. In this context, the evidence to which I refer above is powerful in leading to a conclusion that in fact, on balance, the deceased lacked capacity.
81. Certainly, when weighing evidence in favour of that conclusion against evidence going the other way the scales fall firmly in favour of a positive finding that there is a lack of capacity, not only because of the volume of evidence in support of that conclusion but because there is in fact so little pointing the other way. That is the conclusion to which the evidence that I set out above and summarise in paragraph 76 leads me. The evidence offered by the First Defendant in the shape of the evidence of the Second Defendant, the First Defendant's role as carer and the fact that the deceased was well enough in 2009 to sign a power of attorney is not, in my judgment, anywhere near sufficient when pitted against the evidence upon which the Claimants rely.
82. The Second Defendant is far too unreliable for credence to be given to what he says. Even if that was not so however, I am not satisfied that it is adequate to ask an elderly and frail woman whether she understands what the Will means and then be satisfied that she does simply because she replies "yes".
83. The evidence suggests that even though the First Defendant was the primary carer, the deceased enjoyed a warm and loving relationship with her other sons and their families. The care that the First Defendant gave in any event was ameliorated by the fact that a team of carers came in multiple times per day and he had the benefit of living in the deceased's home. A fact that I apprehend would have been appreciated by the deceased if she had had the mental capacity to do so. As for the Power of Attorney, the evidence adduced on behalf of the Claimants, and which I accept, was that the significant deterioration in the deceased capacity took place in the years after the execution of that document.
84. Accordingly, I am satisfied that the testator lacked capacity at the time of the making and execution of the Will and accordingly I propose to pronounce against it and in favour of the 1997 will and to revoke the grant to the Second Defendant

Conclusions as to Undue Influence

85. In the circumstances, it is not necessary to consider undue influence because it is academic. But I do so very briefly.
86. The allegations are set out in paragraph 8 of the Particulars of Claim and include allegations that the deceased was comparatively isolated from members of the family, was dependent upon the First Defendant for emotional and physical needs, that she suffered severe physical and mental disabilities and that the will shows signs of having been drafted by a sole beneficiary.
87. The point is that in the context of the issue of testamentary capacity, the claimant's position has been that the deceased was not necessarily dependent on the First Defendant for emotional and physical needs. It was contended for that purpose that she had a warm and loving family who visited regularly. Equally the claimant challenged the degree to which the deceased was dependent on the First Defendant for her emotional and physical needs. The basis of that challenge was on grounds that carers used to come 4 times a day and once again the family used to visit her regularly.
88. Whilst it is true that the appearance of the Will does give rise to some suspicions, I have to say however that had I been obliged to reach a conclusion on the question of undue influence, on the evidence as presented to me on this issue, I would not have been satisfied that it had been established.

Estoppel

89. The counterclaim having been withdrawn, it becomes wholly unnecessary to consider this issue.

Proposed order

90. I propose to pronounce against the Will and in favour of the 1997 will and to revoke the grant to the Second Defendant.

Final Remarks.

I am grateful to the advocates for their assistance in this matter.

HHJ Saffman