England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Rimer)

		Royal Courts of Justice Strand London WC2 Thursday, 20th June 2002

Thursday, 20th June 2002

1. LORD JUSTICE PETER GIBSON: The defendants, Jeremy Good and William Crawley, apply for permission to appeal from the order made by Rimer J on 19th April 2002 in a probate action. The judge granted probate of the will dated 19th May 1999 ("the May will") of Ethel Mary Good who never married and died childless on 3rd January 2000. The applicants are two of the seven nephews and nieces of Miss Good who take on her intestacy. The claimant, Mrs Carapeto, and her husband are the major beneficiaries under the May will. They had lived with Miss Good for 20 years before her death as her housekeepers and, latterly, carers.
2. Miss Good was 87 when she made the May will. She lived in a house in the Woodstock Road in Oxford which was one of the assets of a family settlement over which she had a testamentary power of appointment. The total assets of which she disposed by her will exceeded £1 million. Miss Good appears to have made about 10 wills during her life. Until 1999 the major beneficiaries under those wills were three nephews, but she made increasingly generous provision by way of legacy to the Carapetos.
3. She instructed a number of different solicitors at various times in her life. Three firms were used by her in 1999. By a will dated 27th January 1999 and drawn by Mr Ess of Linnells, whom she instructed for the first time to draw the will, she made Mrs Carapeto and the son-in-law of the Carapetos, Kamran Brennan, executors and gave Mr and Mrs Carapeto the residuary estate. Her intention, it is clear, was to give the Woodstock Road house and enough money to pay the inheritance tax on it - in fact the effect of the will was to give a good deal more - to the Carapetos. In February, after discussion with Linnells, she felt she had been too generous to the Carapetos. Mr Ess provided her with full details of her disposable assets at the beginning of April 1999, and on 15th April she executed another will ("the April will") which was drafted by Linnells. Under that will a nephew, William Good, and Mr Ess were the executors and the Carapetos took only a legacy of £300,000, three nephews taking the residue. But within minutes of that will having been executed and Mr Ess having left the house, she called him back. She said that she had changed her mind. She got him to tear up the will in her presence. Within four days she had instructed another firm of solicitors, John Summers & Co, who had been recommended to her by Mr Brennan, to prepare another will. Mr Frankum of that firm drafted the will. He spent two hours with her taking instructions. He did not, it seems, have full knowledge of the extent of the estate, as the judge found. The May will was then executed. By it Mrs Carapeto and Mr Brennan were named as executors and the Carapetos took the residuary estate. She instructed yet another solicitor, Mr Bingham, from another firm, Challenor Gardiner, in September 1999 to limit the contact of the nephews with her. She felt that they were trying to put her in a nursing home. On 7th December 1999 a statement made by her to that solicitor as to her reasons for making the May will was prepared. It was signed by her and countersigned by her general practitioner and a consultant psychiatrist.
4. Nevertheless, after her death the applicants challenged the May will. They took two points:

1) Miss Good did not know and approve of the contents of the will at the time of its execution; and

2) undue influence.

5. The trial before Rimer J lasted 10 days. The judge had evidence from no less than 60 witnesses, of whom 38 were cross-examined. The judge gave a full and detailed judgment running to 40 closely typed pages. He rejected both allegations by the applicants. He held that she understood not just the contents of the May will but also the financial effect of the gift of residue, and he held that she properly understood the will and intended to make it. The judge rejected the claim that the May will was made as a result of coercion being exercised on her by any member of the Carapeto family.
6. The applicant sought permission to appeal from the judge. He refused the application, saying that any challenge would be on findings of fact on which there was no real prospect of success. On application on paper to this court, Jonathan Parker LJ also rejected the application for similar reasons.
7. Mr Furness QC now renews the application in open court. He does not challenge the finding on undue influence, but he submits that the judge fell into a fundamental error of law in failing to take account of all the circumstances relevant to the plea of want of knowledge and approval. He points to the acceptance by counsel for the Carapetos that they were sufficiently implicated in the events leading to the May will to raise a suspicion as to whether Miss Good knew and approved its contents, and that the burden of proving that fell on them. He submits that there are a number of matters to which suspicion attaches, in particular the involvement of the Carapeto family in instructing Mr Frankum and Mrs Carapeto's involvement in the revocation of the April will and, in particular, Mr Brennan's part in Mr Frankum being instructed. Mr Furness points to the unsatisfactory evidence provided by the executors of the circumstances of the decision to revoke the April will and of how Mr Frankum was instructed, and he relies in particular on the fact that the judge rejected Mr Brennan's evidence, at least in part. Mr Furness says that Mr Brennan's evidence was fabricated. He also submits that Miss Good failed to appreciate the full extent of her estate, the judge's inference as to that being wrong, and similarly the extent of the benefits conferred on the Carapetos. He accuses the judge of not considering whether the Carapetos had discharged the onus of showing that the decision to make a will in the form of the May will was Miss Good's own genuine desire, as opposed to a decision forced upon her by others, and he accuses the judge of failing to attach significance to the question of how Mr Frankum was instructed and of not taking into account the fact that the Carapetos had bullied Miss Good. He says that once the court accepts that Mrs Carapeto has not been able to give a credible account of her involvement in the decision to make the May will, or an explanation of how and why Miss Good needed to instruct a new solicitor, and once the court further accepts that Mr Brennan gave an untruthful account of what occurred, then serious doubts arise as to whether Miss Good knew or approved of the effect of the May will and good reason to suppose that she would not have made it in the terms which she did if she had known the effect of the May will. He says that this should have led the court to conclude that Mrs Carapeto failed to discharge the onus on her.
8. Persuasively and attractively though these submissions are made by Mr Furness, I cannot accept them. The judgment of the judge is exceptionally detailed, careful and clear in its findings and reasoning. The judge directed himself accurately as to the law, including making reference to the most recent decision in this area of the law, the decision of this court in Fuller v Strum [2002] 1 WLR 1097. The judge was well aware of where the onus lay. There is no error of law in his judgment.
9. The judge had in mind the suspicious circumstances relied on by Mr Furness. He carefully considered the circumstances in which Miss Good had a change of mind over the April will. He records the evidence of Mr Ess, and of Mr Ess's assistant who accompanied him, on what happened. Their evidence does not suggest any untoward action on the part of Mrs Carapeto. It is plain that Miss Good felt a strong moral obligation to the Carapetos, to whom she referred as her adopted family. She felt herself to be in a real dilemma. She did not want to upset her blood relatives, but she felt that they were independent and had adequate means. As Mr Ess recorded:

"She reproached herself greatly for having changed her intention of giving everything to the Carapetos."

10. Seven pages of the judgment are devoted to the making of the May will. The judge was plainly unhappy with Mr Brennan's evidence, but the fact that inadequate evidence explaining how Mr Frankum came to be instructed (save that it was clearly as a result of Mr Brennan making the suggestion that Mr Frankum's firm be approached) does not mean that the judge could not properly find that the May will, prepared, as it was, by an independent solicitor, did have Miss Good's knowledge and approval. The judge was entitled to hold that the rejection of at least part of Mr Brennan's evidence did not materially weaken Mrs Carapeto's case. The judge specifically found (and there was ample evidence to support the finding) that throughout 1999 Miss Good was a highly intelligent woman, fully capable of making her own decisions about her affairs, and that the May will reflected her wishes. She had had the extent of her property explained to her by Mr Ess on 1st and 8th April. The fact that Mr Frankum was not fully aware of the extent of her assets does not entail that the judge was not entitled to find that she had a proper understanding of the value of the assets in her estate. In my judgment, the conclusion which the judge reached that, despite the onus being on Mrs Carapeto, she had proved that Miss Good, on the balance of probabilities, knew and approved of the contents of the will, seems to me to be unimpeachable.
11. I therefore conclude that this appeal would have no real prospect of success. No other compelling reason is shown for this appeal to be allowed to go ahead. I must therefore refuse this application.
Order: Application refused.