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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Williams v Williams [2022] EWHC 1334 (Ch) (01 June 2022) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2022/1334.html Cite as: [2022] EWHC 1334 (Ch) |
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BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
In the estate of Winifred Bernadette Williams deceased (probate)
2 Park Street, Cardiff, CF10 1ET |
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B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
____________________
| CLAIRE LORRAINE WILLIAMS |
Claimant |
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| - and - |
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| CATHERINE HILARY WILLIAMS (as Executrix of the Estate of Winifred Bernadette Williams and personally) |
Defendant |
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| And between: |
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| CATHERINE HILARY WILLIAMS (as Executrix of the Estate of Winifred Bernadette Williams) |
Claimant |
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- and – |
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| (1) CLAIRE LORRAINE WILLIAMS (2) HANNS WEBBER |
Defendants |
____________________
Owain Rhys James (instructed by Red Kite Law LLP) for the Defendant
Hearing dates: 11 and 12 April 2022
Further written submissions: 11 May 2022
____________________
Crown Copyright ©
This judgment was handed down remotely by circulation to the parties' representatives by email. The time and date for hand-down is deemed to be 10.30 a.m. on 1 June 2022.
JUDGE KEYSER QC:
Introduction
"1. I APPOINT my daughter Catherine Hilary Williams to be the sole executrix of this my Will
2. I GIVE all my personal chattels as defined by the Administration of Estates Act 1925 to my said daughter Catherine Hilary Williams absolutely
3. I GIVE all the rest and residue of my real and personal property whatsoever and wheresoever situate to my two daughters the said Catherine Hilary Williams and Claire Lorraine Williams alive at my death in equal shares".
The facts
"I have made my Will following very careful consideration of my financial position and the obligations I have to my family.
I have two daughters, Claire and Catherine. My relationship with Catherine is not good and has not been good since she was a teenager. In fact Catherine moved away from home a couple of times. Catherine has also been of less support to me even though she lives the closest to me. I have always done my best to provide for and support Catherine; however I do not believe that Catherine appreciates this. My recent period of ill health, resulting in hospitalisation has b[r]ought this home to me as she has been no support to me during this time. On the other hand my daughter Claire has been a great support to me, and although she lives in London she has come back to be with me during my hospitalisation and I am very grateful to her for this.
I am however very concerned that if I did not leave my estate to Catherine that she will make a claim on my estate. My estate is not large and I do not want the majority of it to be used up in legal costs defending a claim from Catherine. I am of the opinion that Catherine's view will be 'If I cannot have it, then no one shall have it.' It is for this reason only that I have left my residuary estate 50% to Claire and 50% to Catherine.
If Claire should pre-decease me then her 50% share is to go firstly to any children she may have, and if she does not have any to Catherine's daughter Katy. If Catherine should pre-decease me then her 50% share is to go to Katy. I have not left anything to Katy in the first instance as I have not had a great deal of contact with her. Catherine has made contact with Katy difficult and denied me contact until Katy was about 11 through the courts. Also I believe that Katy will be well provided for by her other grandparents and father, and also I feel it is Catherine's responsibility to provide for Katy."
"I confirm that I have made my daughter, Catherine, and my granddaughter, Katie, substitute residuary beneficiaries in my will because I want my daughter Claire to inherit my estate outright. I confirm that I have not included my ex husband in my will. It is of utmost importance to me that Claire inherits my estate.
I do not want Catherine to share in my estate with Claire because Catherine has been unkind towards me over the years. She lives close to me in Sketty, Wales, but she never visits me. I wanted to have a relationship with my granddaughter Katie but Catherine stopped me from seeing her by obtaining a court order against me. Catherine was very cruel to me at that time and made up lies about me in court. In recent times she has mocked me. I only want her to receive benefit from my estate in the event that Claire and any children Claire should have pre-decease me.
I do not want Katie to share in my estate with Claire because I have had little contact with Katie since she was four years old and she is practically a stranger to me. She has her own family. Katie has a good father and extended family and they will look after her financially.
…
My daughter Claire Williams has treated me with kindness and respect during my lifetime and she has been a good daughter to me. I want her to receive my estate on my death not only because she has been a supportive daughter to me but also because she does not have a family of her own.
I have not been put under any undue influence from Claire to leave my estate to her, I have made this decision of my own free will."
"Both Claire and Catherine agreed with the facts the deceased had told me and in each other's presence confirmed Catherine did not have a good relationship with either her mother or her sister Claire and acknowledged Claire had been and continued to be her mother's primary carer.
The deceased and her two daughters all agreed that to unify the family relationship the sisters would work together as Attorneys for their mother. This pleased the deceased."
"The deceased explained [that] on the preceding weekend she had woken from an afternoon nap to find her daughter Catherine in the deceased's property going through her personal possessions including her jewellery boxes.
The deceased was extremely upset and informed me she had asked her daughter Catherine to leave her property and never return and she did not want her to see her again."
"My mother and I discussed Claire's calls and my mother told me that she felt that Claire was trying to manipulate and control her. Claire wanted my mother isolated from the rest of the family so that she would be under Claire's coercive control and in my mother's own words she said that 'Claire was no good'. At that time, my mother was well enough to stand up to Claire but her calls to my mother were constant. … My mother also told me that she knew Claire didn't really care about her and that she was only pretending to for what she could get out of her."
"[A]fter Christmas Day, I decided to cool things off with her for a while. I felt betrayed and insulted by being falsely accused of taking my mother's medication. Over the following months I had a number of calls from a withheld number, which may have been my mother calling me, but I was still upset about Christmas Day so I ignored them."
"Still very troubled by her anxiety – would like to be referred to specialist. Has persecutory ideas about her daughter – says she was rifling through her house looking for money – also thought she had stolen her diazepam but then found them. Thinks her anxiety could be a result of traumatic marriage – emotional abuse, never physical. Cont[inue] mirtaz[apine] and diaz[epam], refer old age psych."
(I note also the letter of referral to Mental Health Services on the same date.)
"[The deceased] has been in hosp Gowers ward Morriston hosp fax received today to say patient has been discharged and she's informed them she has apt today at 12pm apt checked and on flat for INR stales on discharge letter pt was found in street confused – admitted then for acute confusion."
On the same day the GP referred the deceased to the Memory Clinic at Mental Health Services:
"This lady has had 3 acute medical admission[s] with confusion in the past 4 months, most recently after being found confused in the street one night. Her confusion appears chronic and progressive rather than transient[,] and following assessment by liaison psych in January they commented that she would be referred to memory clinic but I can't see whether this has been done. Her CT head during admission in January showed general atrophy and her MOCA [Montreal Cognitive Assessment Tool] was 15."
"It quickly became apparent to me the deceased did not have the mental capacity to make any Will. I recall her making disparaging remarks about one of her daughters, whose name again I cannot recall, and throughout she seemed to be completely incapable of coherent thought or providing clear instructions at all. I did try my best but could not proceed. I therefore politely left the deceased who even at that moment I believe did not fully understand my reason for seeing her."
When he was questioned about this in cross-examination, Mr Sanders said that it was quickly apparent to him that the deceased was incapable of making a will: she was "not making sense at all." For this reason, and as he realised that the matter was "going nowhere", he made no notes of the conversation. As he was leaving the ward, he spoke briefly to the Ward Sister and expressed his view of the deceased's mental state. The Sister did not reply but his clear impression was that, by a shrug and a raising of her eyes, she expressed tacit agreement but an unwillingness to comment in terms. At the conclusion of his witness statement, and having mentioned what he now knows of the 2019 Will, Mr Sanders stated:
"With over 50 years' experience of Will drafting and knowledge of the mandatory requirements for a valid Will, I am in no doubt that during the autumn of 2019 the deceased did not have the mental capacity to make one at all."
"53. On Tuesday 13 August 2019, I went to the Hospital for the meeting with my mother and the social worker Ms Whatty. On arrival I was informed that Claire and Hanns had been to visit. Hospital staff told me that they had witnessed Claire and Hanns bullying my mother to sign a £2,000 cheque over to Claire. When my mother refused to sign the cheque, Claire threatened to sell the furniture from my mother's house because she said that my mother owed her money for a phone bill even though my mother had been in hospital since May and had been paying for Claire's £5 Vodafone 'Friends and Family' package by Direct Debit. They also said that my mother had asked to see Claire's front door key to my mother's house so that she could compare it with her own. Claire had told my mother previously that she had changed the locks and she later supplied my mother with a new key. My mother suspected that the key Claire had previously given her was not the key to the new lock. However, when my mother asked to see Claire's key, Claire refused. My mother told them both that she wanted them to leave her house. Both Claire and Hanns laughed and Hanns said that he would leave when Claire told him to. My mother told me that under no circumstances was I to allow Claire to remove anything further from her house and that she didn't owe Claire a penny for anything."
The social worker's notes record that she saw the deceased on 9 August 2019, when the deceased said that she would not discuss anything without Catherine being present. It was therefore arranged that Catherine would attend on 13 August. The note for that date reads[1]:
"Win wants to get Claire and her partner out of her house.
Agreed a letter with Win that I would type up for her to sign and send to Claire to ask her to leave.
We discussed the importance of setting up a POA [power of attorney] which Win has agreed to do although last time Catherine got a solicitor in Win refused to speak to him.
Agreed with Win that I would take letters up tomorrow for her and she would sign them."
The social worker returned on 14 August 2019 and left the letters with the deceased, who was unwilling to sign them until Catherine had seen them. In the event, the deceased signed the letters at a further meeting on 20 August, when Catherine was present. The letter dated 20 August 2019 from the deceased to Claire stated:
"I am writing this letter with the help of my social worker [name].
1 am writing to say that I want to move back into my home when I leave hospital and want you and Hann1to move out of the house.
I am asking you to move out and to return all the keys to me by 2nd September
Thank you"
One copy of the letter was sent to the House by registered post but was returned as undelivered. A second copy was to have been sent to Claire's London address, but Catherine could not find the full details of the address.
"I spoke to Miss Williams. Her mother is in hospital long term. She lives in the Uplands. Miss Williams has a younger sister who lives in London. When her mother was in hospital the younger sister returned home and is now living there with her boyfriend and refuses to move.
Catherine Williams has visited the property although the locks had been changed and is in an absolute mess—'unbelievable squalor' were the words of Miss Williams. She would like me to go to visit her mother to take instructions. The doctor is preparing a letter of capacity.
… I told Miss Williams I could go to see her mother in Ward 4 Singleton hospital to take instructions for the Will and LPA. I told her that I could make a note about the possession proceedings but it would be someone else to deal with it."
"I have done a capacity assessment on Mrs Williams, dated the 23rd July, but this was also done previously on the 18th July and there are many other incidences where we performed capacity assessments.
I confirm that Mrs Williams has the ability to make a decision as to who will look after her affairs and she very clearly says that this is her daughter called Catherine as she trusts her and she lives locally, and therefore it will be easier for her daughter (Catherine) to handle her affairs. She has also done so in the past and she trusts her with her affairs.
I think in the longer term, though, Mrs Williams in herself will find it difficult to attend to her own personal affairs, i.e. she is likely to miss bills or not understand why something might need to be paid for. Mrs Williams also has very poor short term memory and doesn't remember all that is said to her, therefore probably doesn't have enough capacity to make decisions about going back home as she is unable to weigh up all the different risks.
Mrs Williams is insistent that she wants to return home. I do not think she is able to understand the various risks to this, therefore I confirm that she does not have the capacity to make this decision and we should be deciding in her best interests."
The other letter said:
"This is to confirm that in the time since her last assessment, Mrs Williams hasn't changed apart from perhaps becoming physically more frail. Her capacity for making decisions about self care is still not present and more importantly, from the point of view of handling her own affairs, she has consistently said she wants her daughter Catherine, who she trusts and lives locally, to handle her affairs."
"[The deceased] was very frail and had been brought from her bed in a wheelchair.
We had a discussion so that I could assess her. She told me that her name was Winifred Bernadette Williams and she was born on 4 February 1941. I asked her whether she was born in Swansea (Feb 1941 being the three days blitz) but she told me she was born in Dublin and I noticed she had an Irish accent. She told me that she was brought up in Dun Laoghaire, being the old Irish ferry port. She told me that now there was a different ferry port on the other side of the river. She told me that she still loved Dublin very much. She said she had come to Swansea with her ex-husband. He had found a terrible flat and she had found a better one. I asked her how long she had lived in 26 Mirador Crescent and she said it was many years. She thought 1979 or 1989 (she remembered it was the last year of the decade but could not remember which one). I asked her about her children. She had a daughter Catherine and a daughter Claire. Catherine had a daughter Kate who had two children of her own. Claire had no children.
The LPAs: We talked about the LPAs and it was confirmed that she wished Catherine alone to be attorney. I did suggest Kate as a backup or replacement but she was not interest[ed]. Catherine dealt with her affairs.
The Will: She wanted Catherine to be the sole executor. Claire had removed many of her items so she wanted to have all her personal possessions being the contents of the house. Everything else she wanted split equally between Catherine and Claire. I asked her to confirm whether that was to include the house itself (not as Catherine's note) and she told me that the house was to be included and split 1/1. If something was to happen to Catherine then Kate was to have Catherine's share.
Possession: Originally she told me that she thought it was all sorted out and Catherine had got back into the house. I told her that Catherine had told me that Claire was still in there. She asked me to bring Catherine back in. Catherine explained to her that Claire had got back in and was in residence. Mrs Williams therefore told me that we were to write to Claire to get her to leave."
"7. … I read the two letters from Dr Pathmanaban and I considered that they indicated that the deceased had the necessary capacity to make an LPA but that I would need to conduct my own assessment to satisfy myself that the deceased had the capacity to make a will. In order to assess whether the deceased had testamentary capacity, I asked the deceased to talk me through her life history and she did so quite clearly. The deceased's replies were consistent and accurate. She had no difficulty in answering any questions about her past. The deceased told me that she had made an earlier will with solicitors in London a number of years ago in which she had left everything to the claimant [Claire] and nothing to the defendant [Catherine]. This turned out to be correct. I also remember asking the deceased about her house and its approximate value. I asked who owned it and she confirmed that she was the owner. She was also able to recollect how long she had lived there. [I observe that this sentence is not in perfect accord with the attendance note.]
8. I would have then changed the conversation to current events and asked if the deceased could tell me about something in the news or something that had happened to her in the last few days to test the deceased's short term memory. This is something that I always do when I assess whether someone has capacity to make a will. I remember that the deceased was very upset that her daughter Claire had recently caused damage to her house. I recall that after assessing the deceased, I was satisfied that she did have testamentary capacity. I considered that the deceased's impairments were physical rather than mental.
9. Regarding the earlier will made with solicitors in London, the deceased told me that she felt that it was wrong especially in view of the support that Catherine had given her recently and was continuing to give her since her stroke. The deceased said that she wished to be fair to her two daughters so that the estate was generally divided equally but, in view of what Claire had been doing at the deceased's home, she wanted Catherine to be the executor and specifically to deal with her own personal effects."
"CPN [Community Psychiatric Nurse] referral requested as Winifred can be aggressive towards the staff, very unsettled and high risk of falls. The GP said will not send a referral as Winifred was like that most of her life and knows her for more than ten years, nothing will change the way she is and we have to expect to receive numerous accusations/allegations from her side."
This note provides another reminder that it should not too easily be assumed that the elderly were models of placid conventionalism in their younger days.
"Wins daughter [i.e. Claire] and partner came into the building took Win into the dining room, verbally aggressive towards all staff members and nurses, wanted to take Win to the hospital for an x ray, very intimidating, maniplalative, rude, came into our faces almost started to fight with us, Sarah [a staff member] remained very professional and explained that she was not allowed to give any information out due to data protection and she was asking to take her mum to the hospital they wanted to take photos said we were hiding things partner stood up and became aggressive towards Sarah saying why cant we why cant we the daughter continued to shout then maria the nurse came in and started shouting at maria and wanted maria to write down what happened sarah explained once again that we were not able to give any information out she then got bank statements out and started to tell her mother how she needed to sort out money started to ask win questions about the place and twisting things win was getting distressed and told her to stop the daughter was then saying you've still got your mind see mum there quick are they about the stuff twisting every word that was coming out of wins mouth cosmin then came into the room and she started shouting at cosmin she said she was going to take things further and take things legally and that's how i work she said to win she was going to take her back home she then stood up to me in my face and started shouting at me police was called and arrived she was very manipulative and said that she was coming back tomorrow to see her she was saying to sarah stop talking i am talking to my mother sarah remained calm throughout nurses were very professional throughout incident."
"Catherine called in today. Sarah and I briefly updated her about the previous nights incident with her sister Claire and her partner. She said that her sisters partner is a dangerous individual who she has only known a short while. She said that he has been in prison although she is unsure why and that the police are aware of him and her sister. She said that she is fed up with her mothers behaviour and feels that she is resorting to behaviours she had before this recent hospital admission and asked whether her mums antidepressant medication had been altered. She was informed that no medication has been stopped however there are some alterations that have been made. There were no concerns raised."
Shortly afterwards, Claire made a telephone call to April Court. The record states:
"I received a call from Claire after I had contacted her Winifred's daughter. She was hostile from the beginning of the call. I tried to speak to her however she remained hostile and shouting at me. She said that she has reported the home to the police and although I tried to have a civil conversation she put the phone down on me."
"Julia and I assisted Winnie with a wash (lower body) then she decided to stay in bed for a little while so we told her that we will come back again to get her up when she is ready, 15 minutes after her daughter came and she asked us if we can get her mother up for she is going to see someone @12, so Simona and I then assisted her with a full body wash. Comfortable clothes put on her today then brought her downstairs with a steddy."
An entry at about 1.30 p.m. reads:
"I re-contacted Claire today and asked her if she would talk to me. I asked her if she wouldn't mind visiting her mother during office hours for the time being. She said that she didn't mind that at all and said that she wouldn't bring her partner either. She spoke at length about the problems between her and her sister. She said that she was applying for court appointed deputyship. She said that her sister has never been active in her mothers life and is only interested now in her money. She thanked me for the phone call and said that she will call to see her mother on Friday."
"This afternoon wini has been taking her clothes off and pulling her trousers down. Each time taken to the toilet full reassurance given. Very sleepy this evening."
"No significant changes in clinical presentation, all care needs met and safety maintained."
"10. On 6 November 2019, I attended on the deceased at April Court care home, where the Deceased was resident. … My secretary, Glenys Birch came with me to witness the signing of the will. April Court looked as though it was once 4 individual houses that had been combined into one building. I was shown to the dining room where I met with the deceased and Catherine and we sat together at one of the tables. The dining room was a very large communal room which extended the whole length of the building. There were other people in the room who were also sat at tables but there was no one closer to us than say 6 or 7 metres or so.
11. I recall that the deceased had had a fall and she had dark bruises over both eyes. I was initially concerned that this might have affected her vision. I asked what had happened and she told me about her fall. I explained to the deceased that I could read the will to her but that she needed to be able to read it herself. As a matter of course, I always ask my clients to read the copy of the will that they are signing regardless of whether they have seen a copy previously. However, the deceased was still able to read the will.
12. Aside from the bruises, the deceased presented in the same way as she did when I took my Instructions from her on 17 October 2019 and I had no concerns regarding her testamentary capacity.
13. I recall turning to Catherine and explaining to her that we had come to the official part of the process and I asked her to leave. Catherine then went to the far end of the dining room where she would not have been able to hear what was being discussed.
14. After Catherine had left the table, the only other person in attendance was my secretary, Glenys Birch. Turning to the deceased, I explained that the will leaves her personal possessions to Catherine and everything else was to be split equally between Catherine and Claire. I asked the deceased to read the will to ensure that she understood the terms, and she did. I recall the deceased repeating that she did not want Claire to have any of her personal effects. The deceased then signed the will and the LPA. Catherine later returned to the table to sign the LPA. Once the meeting had concluded, I took the signed will and the signed LPA with me."
In oral evidence, Mr Sims confirmed this account. He said that he believed he had attended on the deceased before lunchtime on 6 November 2019 and had not stayed for more than an hour. He had a long conversation with the deceased and was quite satisfied that she had capacity to make a will; there were no "alarm bells".
"25. At approximately 19:30 on 6 November 2019, I turned up to see my mother. My sister was present with my mother at her bedside. The usual practice was that Cath would attend in the afternoon and then leave and I would go in the evening and she would not be there. This was to avoid any incident or unpleasantness between us. However, when I arrived Cath would not leave and refused to even though it was my window. I waited an hour and a half in the waiting/dining room. The staff tried to encourage Cath to leave but she would not and refused. Sarah, the deputy manager, came to me and said words to effect of 'Rise above and be the bigger person, your sister is determined not to leave. Come back tomorrow.' I now realise why my sister behaved in such a way because it was completely out of character. This was the day that she had arranged for a new will to be made. My mother was clearly in no fit state to make such a will due to such a horrific head/facial injury.
26. She would not leave. …"
Testamentary capacity
The law
"It is essential to the exercise of such a power that a testator [a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] 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.
Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a pray to insane delusions calculated to interfere with and disturb its function, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand."
"a testator who lacks testamentary capacity at the time of the execution of the will may make a valid will, nevertheless, if: he or she had testamentary capacity at the time when he/she gave instructions to a solicitor for the preparation of the will; the will is prepared so as to give effect to the instructions; the will continues to reflect the testator's intentions; and at the time of execution, the testator is capable of understanding, and does understand, that he is executing a will for which he has given instructions":
Hughes v Pritchard [2022] EWCA Civ 386, per Asplin LJ at [69], citing Parker v Felgate (1883) 8 PD 171 and Perrins v Holland [2010] EWCA Civ 840, [2011] Ch 270.
Discussion
1) Mr Sanders' observations and conclusions when he attended upon the deceased at Singleton Hospital (paras 13 and 14);
2) The evidence of the deceased's mental condition in the period from July 2019 onwards, as contained in the medical records (paras 15, 16, 17 and 19);
3) Her own observation that there was no improvement in the deceased's condition during 2019 (para 18);
4) Expert medical opinion (para 18).
"8.1 Mrs Williams scored 18/30 on the Montreal Cognitive Assessment Tool (MOCA) when this was undertaken on 4 April 2017. The MOCA is a short but well validated cognitive assessment tool. It assesses different areas of cognitive ability for a maximal score of 30 points. A score below 27 is indicative of Mild Cognitive Impairment; 20 to 24 indicates mild dementia; 13 to 20 indicates moderate dementia; and less than 12 indicates severe dementia. It is more likely than not that Mrs Williams' cognition would have deteriorated further by the time her last will and testament was written in November 2019.
8.2 In my opinion it is likely that Mrs Williams was living with vascular dementia in the months leading up to her death and around the time her last will and testament was written in November 2019. From the information available it appears that her dementia was in the relatively advanced stages.
8.3 Vascular dementia is caused by reduced blood flow to the brain. It can be a result of a stroke or the narrowing of the blood vessels in the brain. It is characterised by fluctuations in cognition and a step-wise pattern of decline. (WHO, 1992 [Classifications of Mental and Behavioural Disorder]). This condition presents with patchy impairment and can be associated with a rapid decline over a short period of time.
9.1 It is my conclusion that, on the balance of probability, there is sufficient evidence to raise real doubt that Mrs Williams had testamentary capacity at the time of writing her last will and testament on 6 November 2019."
1) The medical records did not enable him to say whether the deceased's prescribed medication or her physical injuries had affected her cognitive ability and capacity. "However, sedition [sic] is a recognised side effect of some of her medications."
2) There was insufficient direct evidence to enable him to say (a) whether the deceased's dementia affected her capacity to understand the general nature and consequence of the act of instructing a solicitor to prepare a will and to execute it, (b) whether the deceased appreciated the extent of her estate, (c) whether the deceased fully appreciated the moral claims of her family, (d) whether her dementia poisoned her affects, perverted her sense of right, or prevented the exercise of her natural faculties, (e) whether the deceased had any insane delusions at the time she made the 2019 Will.
3) In answer to the question whether in his opinion, on the balance of probabilities, the deceased had testamentary capacity when she made the 2019 Will:
"It is clear from the evidence available that the deceased was living with a relatively advanced dementia at the time the final last will and testament was written. Her cognitive impairment was to a degree that there are numerous references by several health care professionals to her being confused and disorientated to her environment to the degree that she even undressed in front of others in communal areas of the home on a number of occasions. These observations were made over a relatively prolonged period of time and were evident throughout the time the deceased lived in the care home. However, it is worth mentioning that cognitive functions in dementia tend to fluctuate with relative lucid periods and periods of increased confusion compared to the average for the person living with dementia.
Neither Mr Simms' witness statement nor his attendance notes provide sufficient evidence of questions put to the deceased and her answers to be able to determine whether she retained or lacked testamentary capacity at the time her final will was signed.
As stated in my original report, it is my opinion that there is sufficient evidence to raise real doubt that the deceased had testamentary capacity at the time of writing her last will and testament on 6 November 2019. However, there is insufficient evidence for me to be more specific than that. It is ultimately for the court to determine whether, on the balance of probability, the deceased had testamentary capacity at this time."
"Conclusions from review of the above records suggest a milder degree of Dementia than previously suggested. However this is complicated by intermittent delirium during which period the degree of impairment is quite advanced.
My final opinion remains the same as per my original report that 'on the balance of probability there is sufficient evidence to raise real doubt that Mrs Williams had testamentary capacity at the time of writing her Last Will and Testament on 6th November 2019."
Undue influence
The law
"103. Actual undue influence presents no relevant problem. It is an equitable wrong committed by the dominant party against the other which makes it unconscionable for the dominant party to enforce his legal rights against the other. It is typically some express conduct overbearing the other party's will. It is capable of including conduct which might give a defence at law, for example, duress and misrepresentation … Actual undue influence does not depend upon some pre-existing relationship between the two parties though it is most commonly associated with and derives from such a relationship. He who alleges actual undue influence must prove it."
Presumed undue influence exists where there is a relationship of trust and confidence between donor and donee and a gift is made that cannot be explained satisfactorily in terms of ordinary human motivation, unless the donee can prove that the gift was not procured by an abuse of her position but represented the free exercise of the donor's will.
"The exercise of undue influence on a testator is also one of the grounds on which the admittance of a will to probate may be challenged. The probate doctrine must, however, be carefully distinguished from the availability of equitable relief: indeed, it has been suggested that the 'only common characteristic with the equitable doctrine is the name". The probate doctrine applies where such pressure has been placed on the testator as to 'overpower the volition without convincing the judgment' and it does not permit the party challenging the will to take advantage of any evidential presumption when seeking to prove such pressure. The probate doctrine can be invoked by any party with standing to challenge the will, as it identifies 'a species of restraint under which no valid will can be made'. The equitable doctrine, by contrast, does not operate so as to render a transaction invalid: a gift or contract entered into by undue influence is valid and so takes effect unless or until B exercises his or her power to rescind the transaction. The equitable doctrine, it is submitted, is based rather on the idea that, as a result of the undue influence, it would be unconscionable, in a broad sense, for A, as against B, to take advantage of the right acquired by A under the impugned transaction."
"47. 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;
(vii) There is a separate ground for avoiding a 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 poisons 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;
(viii) 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 judgment 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;
(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."
Discussion
1) There was a long history of estrangement between the deceased and Catherine, whereas there was a good relationship between the deceased and Claire (paras 21 to 25);
2) In 2019 Catherine began visiting the deceased but showed hostility towards Claire (paras 26 and 27);
3) In late October 2019 Catherine forced entry into the House and took the deceased's copy of the May 2012 Will. "It is alleged that [Catherine] took the copy of the will in preparation for coercing the deceased to prepare another will in the hope that a challenge would be more difficult for [Claire]" (para 28).
4) On the day when the 2019 Will was executed, Catherine sat with the deceased all day and would not leave in order to allow Claire to see her mother. "[Claire] alleges, with hindsight, that this was because [Catherine] had arranged for the deceased to change her will that day and did not want the deceased informing [Claire] nor revealing that she was coerced into doing so by [Catherine]." Further, the deceased had suffered a head injury two days previously but had refused hospital care (the apparent implication being that she was more vulnerable when she executed her will) (paras 29 to 31).
5) The deceased's complaint to Dr Pathmanaban that she did not trust the people with whom Claire associated, together with her apparent concern not to allow those people to have any control over the administration of her estate, can only have originated with Catherine, because the deceased did not know anything about Claire's friends. Her belief was irrational, "unless the deceased was coerced into believing it to have any basis. [Claire] alleges the deceased was coerced by [Catherine]" (paras 32 to 34).
6) "The deceased was clearly physically and mentally vulnerable. Her understanding was limited. She was previously a lady with strong understanding and wishes, and she was losing the ability to understand. [Claire] alleges that the deceased was vulnerable to being frightened by [Catherine], whose opinions she had no cause or ability to distrust. She had suffered a head injury in the days before making her second will" (para 35).
7) The exercise of actual undue influence is to be inferred from a number of matters, including (i) Catherine's animus towards Claire, (ii) Catherine's unusually regular attendance upon the deceased, (iii) the deceased's vulnerability, and (iv) the deceased's expression of concerns regarding Claire and those around her—concerns that can only have originated with Catherine (para 37).
8) A presumption of undue influence arises from the relationship of parent and child and from facts that call for an explanation (para 38).
1) First, although he accepted that the relationship of a child with her parent does not in itself give rise to a presumption that the child exercises influence over the parent by virtue of the degree of control which is conventionally assumed to exist in such a relationship, on the particular facts of the case that there was at a relationship of trust and confidence between them, from which undue influence could be presumed in the light of a transaction between them which could not be readily explained by normal human motivation. In this regard, he pointed to the deceased's dementia, her lack of visitors, the frequent visits from Catherine after she had been out of the deceased's life for a long time, and the change of testamentary disposition to Catherine's advantage.
2) Second, he alleged actual undue influence, on the basis that it was to be inferred that the deceased's change of testamentary intention and her desire to commence possession proceedings against Claire in respect of the House can only have resulted from lies and misinformation fed to her by Catherine.
Conclusions
Note 1 Names have been redacted on the copy document in the trial bundle. It is easy enough to know what the underlying text is. [Back]
