England and Wales Court of Protection Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		08 June 2000

Ellen Jane Wilkes ("the Testatrix") died on 10^th April 1998, aged 95. She was survived by 5 children, Arthur William Wilkes ("Arthur"), George Alan Wilkes (George"), James Robert Wilkes ("James"), Frank Michael Wilkes ("Frank"), and Maureen Ayres ("Maureen"). On 6^th August 1998 probate was granted to George of the Testatrix's will dated 21^st April 1995 ("the 1995 Will"). By these proceedings Frank, as Plaintiff, seeks an order for revocation of probate of the 1995 Will and for the grant to himself of letters of administration of the Testatrix's estate. The basis of his claim is that, at the time of execution of the 1995 Will, the Testatrix was not of sound mind memory and understanding, and/or the Testatrix neither knew nor approved of the contents of the 1995 Will; further or alternatively, the execution of the 1995 Will was obtained by the undue influence of George. I granted leave during the trial to add to the Statement of Claim the allegation of want of knowledge and approval.

George is the First Defendant in these proceedings. The Second Defendant, Nicholas Sorrell is the sole executor named in the 1995 Will. The proceedings have been stayed as against him. The Third Defendant is Maureen, who supports the claims of her brother Frank in the proceedings.

George denies the allegations in the Statement of Claim of want of testamentary capacity, want of knowledge and approval of the 1995 Will and undue influence. He counterclaims for an order propounding the 1995 Will in solemn form; alternatively a declaration that the Testatrix's estate devolves under her earlier will dated 24^th November 1985 ("the 1985 Will"); in the further alternative, that the Testatrix's estate devolves upon an intestacy.

The background in brief

The Testatrix was born on 21^st June 1902. In 1981 her husband, Arthur Charles Morris Wilkes made a will, in which he appointed his eldest son Arthur to be the executor and trustee of the will, gave one quarter of his residuary estate to George, and three-quarters of his residuary estate to Maureen on condition that she provide Frank with a home and take care of and maintain him as long as he should require, but if she was not willing to do so, then three quarters of his estate was to be held upon trust for Frank during his lifetime and after his death to be equally divided between Maureen and George. Arthur gave evidence during the trial that Frank had lived for many years with his parents, during which time they provided for him financially since he had been unemployed for considerable periods.

The Testatrix's husband died in August 1985. At that time she was living in Redruth, Cornwall. Shortly afterwards she moved to a house at 12 Bishopsbourne Green, Gillingham, Kent. Maureen lived in Gillingham, very close to that address. The Testatrix moved to be near to Maureen, following an incident in which Frank was violent to the Testatrix.

On 24^th November 1985 the Testatrix made the 1985 Will, in which she appointed Arthur and the partners in a firm of solicitors to be her executors, left Maureen all her watches, jewels, trinkets, personal ornaments and wearing apparel, and left her residuary estate to be divided into five equal parts, of which Arthur, George, James and Maureen were each to receive one part, and one part was to be held to pay the income to Frank for life, with a power to raise and apply capital to him, and after his death it was to accrue to the other four shares.

In 1992 the Testatrix suffered two significant strokes. She had the second stroke while undergoing surgery at Charring Cross Hospital in London for a hip replacement. She had been diagnosed since 1979 as having significant hearing loss in both ears. The effect of the two strokes was to leave her physically wholly dependant on others. She required 24 hour care. Upon discharge from the Charing Cross Hospital, she stayed for a few months with James, who lived in Hammersmith. The Testatrix then returned to her borne in Bishopsbourne Green when, for a few weeks, she was cared for day and night by Maureen (with the assistance of her daughter) during the week, and George at the week-ends. In about March 1993, funding was made available by Kent Social Services for 24 hour care. Maureen ceased to stay with her mother during the week. George continued to see his mother frequently, and relieved her carers when they went on holiday or were off duty. George took over control of the Testatrix's finances, which had previously been handled by Maureen. Relations between George and Maureen deteriorated. Maureen saw her mother less frequently. On 22^nd December 1994 George took his mother to see Nicholas Sorrell of Sorrell & Company, solicitors. Mr. Sorrell took instructions for a new will for the Testatrix. Those instructions were that the Testatrix's net estate was to be left to George, and a list was to be drawn up of various items of personalty which were to be disposed of by him in accordance with her wishes. In due course a memorandum was drawn up ("the Memorandum") in George's handwriting indicating the manner in which various items of the Testatrix's personalty were to be dealt with. On 21^st April 1995 the 1995 Will was executed by the Testatrix, the attesting witnesses being one of the Testatrix's carers and a legal assistant employed by Mr. Sorrell. The Memorandum was signed by the Testatrix at the same time. By the 1995 Will the Testatrix left her entire residuary estate to George, with a wish that her personal chattels be distributed by him in accordance with any existing or future memorandum of her wishes left by her, but without imposing any trust or binding obligations on him. In response to a letter from Mr. Sorrell, Dr. Ghosh, the Testatrix's General Practitioner, wrote on 2^nd May 1995 that, to the best of her knowledge, the Testatrix was of sound mind on 21^st April 1995 and would have been able to understand the implications of signing a will. Neither George nor his mother told any of the Testatrix's other children about the 1995 Will. George's brothers and sister only discovered about the 1995 Will after the Testatrix's death.

The Law
The relevant principles of law are not in dispute.

Testamentary Capacity and Want of Knowledge and Approval

The law relating to testamentary capacity and to the requirement that the testator knows and approves of his will is summarised as follows in Williams on Wills (7^th ed) Vol. 1 at pp. 34 to 43 and 48 to 50.

"Vl. SOUND DISPOSING MIND

The relevant time. It must be shown that the testator was of sound disposing mind at the time when the will or codicil was made. The law requires that there should be sound disposing mind both at the time when the instructions for the will are given and when the will is executed, but it would appear that if the will is shown to have been drawn in accordance with instructions given while the testator was of sound disposing mind, it is sufficient that, when he executes it, he appreciates that he is being asked to execute as his will a document drawn in pursuance of those instructions even though he is unable to follow all of its provisions. Supervening insanity will not revoke the will nor will a recovery validate a will or codicil made during absence of testamentary capacity. A will has been admitted to probate although a codicil made shortly after has been refused on the ground of want of sound disposing mind at the time of its execution.

Criterion of sound disposing mind. Sound testamentary capacity means that three things must exist at one and the same time: (i) the testator must understand that he is giving his property to one or more objects of his regard; (ii) he must understand and recollect the extent of his property; (iii) he must also 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. The testator must realise that he is signing a will and his mind and will must accompany the physical act of execution. It is said that perversion of moral feeling does not constitute unsoundness of mind in this respect, but this is really a matter of degree. The criterion to be applied has been thus stated by Cockburn CJ, in Banks v Goodfellow;

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusions 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"

…..

Presumption of sound disposing mind. It is presumed that the testator was sane at the time when he made his will but, if the question of his sanity is contested, the onus is on the person propounding the will to prove that the testator was of sound disposing mind at the time when he made his will. While there must be a vigilant examination of all the evidence, if the court feels there is no doubt substantial enough to defeat a grant of probate, the grant must be made. Complete proof of capacity or even proof beyond reasonable doubt is not essential. A will not irrational on its face, duly executed, is admitted to probate without proof of competence unless such competence is contested.

…..

Senile decay and illness. Unsoundness of mind may be occasioned by physical infirmity or advancing years as distinguished from mental derangement and the resulting defect of intelligence may be a cause of incapacity, but the intelligence must be reduced to such an extent that the proposed testator does not appreciate the testamentary act in all its bearings. In particular, the instructions for the will may have been given when the testator was of far better understanding than when the will was executed, and in these cases the will is generally pronounced for. Where it is shown that the testator was incapable of reading the will and it is not read over to him, it is generally rejected but the criterion in such cases is really whether he was aware of the contents. A will has been found for where the Testatrix could only answer the drawer by means of nods and pressure of the hand in answer to questions as to her intentions, but where the Testatrix had suffered from delusions, the dispositions being probable and made when her medical attendant stated that she had recovered from her delusions, it was held that the onus of showing capacity had not been discharged. The infirmity of the testator will strengthen certain presumptions which arise against the will in any case, e.g. where the will is contrary to the previously expressed intentions of the

testator as to his testamentary dispositions or where the will is drawn by the propounder and is wholly or largely in his favour. Old age, or the near approach of death at any age, lend strength to suggestions that the testator had no proper knowledge of the contents of the will, or that there was undue influence, or the suspicion arising from the fact that the will is largely in favour of the person drawing or procuring it. A desirable safeguard in such circumstances is for the will to be witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. In has been said that the grand criterion by which to judge whether the mind is injured or destroyed is to ascertain state of the memory, for without memory the mind cannot act.

Evidence of sound disposing mind. Both oral and documentary evidence is admissible to show that the testator was of sound disposing mind at the relevant time. All statements made by him at the time of making the will or preparatory thereto are admissible to prove that he knew the character of the act he was undertaking.... Evidence of the manner in which the act of making the will was performed is admissible, and also evidence of its accord with natural affection and moral duty, and its conformity to past and subsequent declarations of intention. Evidence of conduct before and after the actual making of the will is admissible, but it carries little weight where there is satisfactory evidence of sound disposing mind at the actual time of making the will, and its importance varies with the nature of the mental disease from which the testator is alleged to be suffering. Generally, evidence of the general habits and course of life is of a greater weight than that of particular acts... The evidence of a medical witness who has attended the testator is admissible but such a witness cannot be asked to give his opinion as to the existence of facts which he himself has not observed. The evidence of experts, however, has been held not to outweigh that of eye-witnesses who had opportunities for observation and knowledge of the Testatrix but a scientific witness who did not see the testator may be asked his opinion on the facts proved in evidence.

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1. KNOWLEDGE AND APPROVAL

Knowledge and approval. Before a paper is entitled to probate the court must be satisfied that the testator knew and approved of the contents at the time he signed it. It has been said that this rule is evidential rather than substantive and that in the ordinary case proof of testamentary capacity and due execution suffices to establish knowledge and approval, but that in certain circumstances the court requires further affirmative evidence. It was at one time thought that the fact that the will had been duly read over to a capable testator on the occasion of its execution, or that its contents had been brought to its notice in any other way, should when coupled with his execution thereof be held conclusive evidence that he approved as well as knew the contents thereof. However, the better view now seems to be that such a circumstance raises but a prima facie presumption of knowledge and approval. In some cases where the testator employs an expert draftsman to provide the appropriate wording to give effect in law to the testator's intentions, the testator has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning and in such a case he adopts it and knowledge and approval is imputed to him. This principle is carried further by the so-called rule in Parker v Felgate to the effect that a will which has been prepared in accordance with previous instructions given when the testator fully understands the contents and effect thereof is valid, notwithstanding at the time of execution the testator does not in fact have that understanding.

When evidence required.

The cases referred to above, when affirmative evidence of knowledge and approval of the contents of a will will be required include the following: testators who are deaf and dumb, or blind, and when the person who prepared the will received a benefit under the will. …..

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Will prepared by a beneficiary

It is not the law that in no circumstances can a solicitor or other person who has prepared a will for the testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding it. Baron Parke expressed the rule as follows in Barry v Butlin:

"…. if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."

The degree of suspicion will vary with the circumstances of the case, the burden of dispelling that suspicion may be slight or "so grave that it can hardly be removed"."

It is convenient to mention, at this stage, the following authorities to which I was referred. In Wood v Smith [1993] Ch 90, at pp. 104-106, David Gilliland QC, sitting as a deputy High Court judge, said as follows in relation to testamentary capacity (in a decision which was upheld by the Court of Appeal):

"I was referred by Counsel to only one reported case on the question of testamentary capacity, and that is the well known decision in Banks v Goodfellow (1870) LR 5 QB 549. The facts of that case were very different from the present case. It was a case involving insane delusions, but the judgment of the court which was delivered by Cockburn C.J. contains a very useful and helpful statement of the law relating to testamentary capacity. Cockburn C.J. said at p 566:

"It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause - namely, from want of intelligence occasioned by defective organisation, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, Williams on Executors, 6^th ed. (1867), vol. 1, p.37, 'the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.'... this part of the law has been extremely well treated in more than one case in the American courts."

Then there is a reference to a number of American decisions. After referring to Harrison v Rowan (1828) 3 Wash.C.C. 580, 585, there is a reference to Den v Vancleve (1819) 5 N.J.L.Law 589, 660. Then in reference to Stevens v Vancleve (1822) 4 Wash.C.C. 262, 267, Cockburn CJ continued, L.R. 5 Q.B. 549, 568, 568-569:

"it is said: 'the testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect: it may be greatly impaired by age or disease; he may not be able at all times to recollect the names of the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the object of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged in the time he executed his will?"

Then Cockburn C.J. went on to say:

"This view of the law is fully adopted by the Court in the case of Sloan v Maxwell, 3 N.J.Eq. 563, and is there stated to have been approved by Chancellor Vroom in a case as to the will of Tace Wallace, which, however, is not reported. It appears to have the sanction of Chancellor Kent in the case of Van Alst v Hunter 5 Johnson N.Y.Ch Rep. 159, already referred to".

Then reference is made to the Privy Council in Harwood v Baker (1840) 3 Moo.P.C.282:

"in which case a will had been executed by a testator on his deathbed, in favour of a second wife, to the exclusion of the other members of his family, he being in a state of weakened and impaired capacity from disease producing torpor of the brain and rending the mind incapable of exertion unless roused. Erskine J delivered the judgment of the court in these terms: 'Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of his claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr Baker knew when he executed his will that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light on the question as to his capacity.' From this language it is to be inferred that the standard of capacity in cases of impaired mental power is, to use the words of the judgment, capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding. Why should not the standard be also applicable to mental unsoundness produced by mental disease?"

Thus in the present case what I am concerned to ascertain is whether, to use the language of Cockburn C.J., at p.569 of his judgment, Mr Winterbone had the capacity to comprehend the extent of the property to be disposed of and the nature of the claims of those he was excluding ..."

In Kenward v Adams (1975) The Times 29^th November Mr Justice Templeman said that the golden rule was that when a solicitor is drawing up a will for an aged testator or one who has been seriously ill it should be witnessed or approved by a medical practitioner, who ought to record his examination of the testator and his findings. That golden rule was repeated by Mr Justice Templeman in Re Simpson Deceased (1977) Sol. JO. 121 and by His Honour Roger Cooke in Buckenham v Dickenson (1997) CLC. In the latter case the Judge said that, whilst it would not always be practical to have a medical practitioner present, solicitors should attempt to comply with the "golden rule" as closely as possible, and should at least ask testator open questions such as "why, what, who or when" to establish that the testator could hear and understand the provisions of a will which was being read aloud.

I was also referred to a summary of Sylvia Deye v Amery, a decision of His Honour Judge Colyer Q.C. made on 13^th October 1997, published by Lawtel. The case raised, among other things, issues concerning testamentary capacity and want of knowledge and approval. I have not found it to be of any assistance. The report contains no helpful elucidation of the law beyond the authorities which I have already mentioned, and it turns very much on its own particular facts.

Undue Influence

The law on setting aside a will on the ground that it was procured by undue influence is summarised, so far as relevant to the present case, in the following way in Williams on Wills (7^th Ed) at pages 53-54.

"A gift obtained by undue influence or fraud is liable to be set aside upon proof of the undue influence or fraud. Undue influence means coercion to make a will in particular terms. The principle has thus been stated by Sir J. P. Wilde in Hall v Hall:

"Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of the testator, will constitute undue influence, though no force is either used or threatened."

The proof of motive and opportunity for the exercise of such influence is required but the existence of such coupled with the fact that the person who has such motive and opportunity has benefited by the will to the exclusion of others is not sufficient proof of undue influence. There must be positive proof of coercion overpowering the volition of the testator. The mere proof of the relationship of parent and child, husband and wife, doctor and patient, solicitor and client, confessor and penitent, guardian and ward, or tutor and pupil does not raise a presumption of undue influence sufficient to vitiate a will and although coupled with, for example, the execution of the will in secrecy, such relationship will help the inference, yet there is never in the case of a will the presumption of undue inference. There is no presumption of undue influence, which must be proved by the person who sets up that allegation. The onus of proof resting upon a party propounding a will where circumstances of suspicion are disclosed does not extend to the disproof of an allegation of undue influence or fraud, the burden of establishing which always rests upon the parties setting it up."

I was also referred to the following analysis of the case law on undue influence by James Munby QC, sitting as a deputy judge of the High Court, in Bank of Scotland v Bennett [1997] 1 FLR 801 at pages 822E to 826 F:

"Not all influence is undue influence. Even very strong persuasion and 'heavy family pressures' are not, of themselves, sufficient ...

It is impossible to define, and difficult even to describe, at what point influence becomes, in the eye of the law, undue. As Lindley L J said in Allcard v Skinner (1887) 36 Ch D 145, 183, "no court has ever attempted to define undue influence". I certainly do not propose to do so. The attempt is not merely futile, it would, as Lord Scarman observed in National Westminster Bank plc v Morgan [1985] AC 686, 709 F - 8 H, be most undesirable. At the end of the day, the question must depend upon the particular facts of the case.

None the less down the years various attempts have been made in different legal contexts either to epitomise in a word or to describe or illustrate in more expansive language the essence of what is meant by actual undue influence. Mr Yell helpfully referred me to Chitty on Contracts (Sweet & Maxwell, 27^th edn 1994), vol 1 para 7-028, where it is said that actual undue influence may be established:

'... by showing either that there was actual coercion by the donee or that the donee exercised over the mind of the donor such a degree of general domination or control that his independence of decision was substantially undermined.'

... In Williams v Bayley ... Lord Westbury addressed the issue of undue influence at 216, 218-219 by asking whether the father was a 'free and voluntary agent' and whether the giving of the security was a 'voluntary act' of the father. In Hall v Hall (1868) LR 1 P & D , another probate case, Sir J.P. Wilde said at 482:

'To make a good will a man must be a free agent ... pressure of whatever character ... if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats ... if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's."

According to Sir James Hannen P in Wingrove v Wingrove (1885) 11 PD 81, 82, actual undue influence involves 'coercion', a word used also by Lindley LJ in Allcard v Skinner (l887) 36 ChD 145, 181 and by Porter J in Mutual Finance Ltd v John Wetton & Sons Ltd [1937] 2 KB 389, 394-395.

'Victimisation' was the word used by Lindley LJ in a famous passage in Allcard v Skinner at 182-183 endorsed by the House of Lords in National Westminster Bank plc v Morgan [1985] AC 686, 705A, 706B, 708E.

In Bank of Montreal v Stuart [1911] AC 120, where, it will be recalled, a wife was successful in her claim that she had been the victim of actual undue influence, Lord Macnaghten said at 136-137:

'The evidence is clear that in all these transactions Mrs Stuart, who was a confirmed invalid, acted in passive obedience to her husband's directions. She had no will of her own. Nor had she any means of forming an independent judgment even if she had desired to do so. She was ready to sign anything that her husband asked her to sign and do anything he told her to do. At the same time it is right to say that in her evidence in this action she repudiates the notion that any influence was exerted or any pressure put upon her, or that her husband made any misrepresentations to her. She says she acted of her own free will…. Her declarations in the course of her cross-examination that she acted of her own free will and not under her husband's influence merely show how deeprooted and how lasting the influence of her husband was.'

In Tufton v Sperni [1952] 2 TLR 516, 520, 525, 528, 530, 532, Sir Raymond Evershed MR, Jenkins and Morris LJJ all referred to actual undue influence as involving 'domination', what Jenkins LJ at 528 called 'actual domination over the mind and will' and what Morris LJ at 532 called:

'... complete domination by the defendant over the plaintiff so that the mind of the latter became a mere channel through which the wishes of the former flowed.'


The trial judge, Romer J, quoted at 529, had asked whether:

'... it could fairly be said that the plaintiff's mind was, in effect, a mere channel through which the will of the defendant operated.'


This form of words was adopted both by Jenkins LJ at 530 and in Aboody [1990] 1 QB 923, 969G [1990] 1 FLR 354, 318B by Slade LJ.

In Re T (Adult Refusal of Treatment) [1993] Fam 95, sub nom Re T (An Adult)(Consent to Medical Treatment) [1992] 2 FLR 458 where the question was whether a patient's refusal to consent to medical treatment had been vitiated by undue influence, the trial judge, Ward J; had asked at 107H and 465F respectively whether there was 'undue influence of the kind which sapped her will and destroyed her volition'.

Lord Donaldson of Lyminton MR said at 113F-H, 116B and 471C-D, 473F-G respectively:

'But the doctors have to consider whether the decision is really that of the patient. It is wholly acceptable that the patient should have been persuaded by others of the merits of such a decision and have decided accordingly. It matters not how strong the persuasion was, so long as it did not overbear the independence of the patient's decision. The real question in each case is, "Does the patient really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself?" In other words, "Is it a decision expressed in form only, not in reality?"

...

... In some cases doctors will not only have to consider the capacity of the patient to refuse treatment, but also whether the refusal has been vitiated because it resulted not from the patient's will, but from the will of others. It matters not that those others sought, however strongly, to persuade the patient to refuse, so long as in the end the refusal represented the patient's independent decision. If, however, his will was overborne, the refusal will not have represented a true decision.'

…

Staughton LJ put the matter rather differently at 121D-H and 478G-479C respectively:

"... an apparent consent, or apparent refusal to consent, may not be a true consent or a true refusal. I use the word "true" to express the notion that consent, or refusal to consent, may be inoperative in law for one of three reasons …

The first reason is that the apparent consent or refusal was given as a result of undue influence. It is, I think, misleading to ask whether is was made of the patient's own free will, or even whether it was voluntary. Every decision is made of a person's freewill, and is voluntary, unless it is effected by compulsion. Likewise, every decision is made as a result of some influence ... In order for an apparent consent or refusal of consent to be less than a true consent or refusal, there must be such a degree of external influence as to persuade the patient to depart from her own wishes, to an extent that the law regards it as undue. I can suggest no more precise test than that. The cases on undue influence in the law of property and contract are not, in my opinion, applicable in the different context of consent to medical or surgical treatment. The wife who guarantees her husband's debts, or the widower who leaves all his property to his housekeeper, are not in the same situation as a patient faced with the need for medical treatment. There are many different ways of expressing the concept that what a person says may not be binding upon him; a Greek poet wrote, "my tongue has sworn, but no oath binds my mind".'

The reference is to a line in Euripides' Hippolytus which can perhaps be translated literally as 'my tongue has sworn but my mind' (that is, the mind as the seat of the mental faculties, perception, thought) 'is unsworn'.

Staughton LJ's description of influence as being undue if the law regards it as undue reflects the recognition by Porter J in Mutual Finance Ltd v John Wetton & Sons Ltd [1937] 2 KB 389, 394-395 that the line between permissible forms of persuasion undue influence is ultimately regulated by considerations of public policy. Drawing the lie in the particular case can often be difficult. As Lord Macnaghten said in Bank of Montreal v Stuart [1911] AC 120, 137:

'It is difficult to determine in any case the point at which the influence of on~ mind upon another amounts to undue influence. It is specially so in the case of husband and wife, for, as Lord Cranworth observed, "The relation constituted by marriage is of a nature which makes it as difficult to inquire, as it would be impolitic to permit inquiry, into all which may have passed in the intimate union of affections and interests which it is the paramount purpose of that connection to cherish": Boyse v Rossborough (1857) 6 HLC 48."

The Evidence

I now turn to consider the evidence adduced by the parties in support of their respective cases

Oral Evidence

Frank gave oral evidence against the validity of the Will. In support of his case, he called the following witnesses to give oral evidence at the trial: Dr. Robert Whale, a consultant physician, Maureen, and Catherine Payne, one of the Testatrix's carers. Frank also relied upon witness statements signed by Norma Merrick, a former employee of Age Concern, and Mrs M. Roberts who was a neighbour of the Testatrix. They did not give oral evidence but their statements were, by consent, admitted as hearsay.

George gave oral evidence in support of the 1995 Will. He called the following witnesses to give oral evidence at the trial: Dr. Ghosh, the Testatrix's General Practitioner, Arthur, Nicholas Sorrell, who took instructions for and drew up the 1995 Will, Rachel Young, an employee of Mr Sorrell, Maureen Jenner, formerly the Chair of a group which provided information and guidance to Carers, Disabled and Elderly People, Caroline Chilman, a nurse who attended the Testatrix, and Mandy Furnell, one of the Testatrix's carers.

Dr Whale is a consultant physician at Herts & Essex Hospital in Bishop's Stortford. He specialises in the care of the elderly and has the clinical lead for strokes in the NHS Trust which employs him. He has been a consultant since 1982. He never met the Testatrix. His expert evidence was given by reference to her medical records. I found his evidence to be measured, objective and very helpful. He concluded, on the basis of the Testatrix's medical records, that when the Testatrix gave instructions for and executed the 1995 Will she had widespread brain damage as a consequence of having suffered a number of strokes. The indications were of a poor blood supply to the brain. She also suffered from a substantial deficiency in hearing which, he said, would have made her vulnerable to significant cognitive impairment. Her brain damage was permanent and progressive. He warned against the acceptance at face value of statements, whether by medical practitioners or others, indicating that the Testatrix was mentally well at the relevant times, in the absence of some form of objective diagnostic analysis of her mental ability. As an example of such a diagnostic instrument he referred to the test contained in a short document entitled "Mini Mental State Examination". His evidence was that, in the absence of such a test, comments about the Testatrix's apparent mental ability were purely subjective and should be viewed with caution since a person may subjectively appear to have intact mental functions despite severe deficits in reality. He said that it was common to encounter elderly people who seem quite well, but do badly in simple objective tests of their mental state. In the case of the Mini Mental State Examination, which is a relatively easy test, he would expect at least 25 out of 30 points for a person with capacity to make a will, but it would be perfectly possible to have a good interaction with a person who only scored 10 points. On the basis of the records that he had seen, Dr Whale's conclusion was that the Testatrix would probably not have been fully capable of understanding the implications of signing the 1995 Will and that she would also have been unduly susceptible to being influenced in relation to that Will. In cross-examination by Mr Sahonte, Counsel for George, Dr Whale accepted that testamentary capacity might be indicated by comprehension of newspapers and television, and also the making of a sharp humorous quip. The reading and comprehension of correspondence and the giving of instructions, depending on the level, would also be significant indicators of sufficient mental ability to constitute testamentary capacity. On the other hand, any infection would have worsened the Testatrix's mental condition. Dr Whale's conclusion that the Testatrix was probably incapable of making her will in 1995 rested on three principal matters. First, the evidence of widespread brain damage in the form of cerebral vascular disease. Second, the fact that she had Parkinson's disease which, in forty per cent of cases, is associated with a dementia process. Third, the Testatrix's auditory impairment and extreme age were likely further to impair the Testatrix's mental function.

Although Frank signed a lengthy witness statement and gave oral evidence, I found his evidence to be of very limited assistance since those parts which were directly relevant to testamentary capacity were hearsay, being for the most part based on what he had been told by Maureen. Frank gave evidence that in June 1995, when he telephoned to see whether the Testatrix had received his birthday card, George told him not to get in contact any more. It appears that after 1992 Frank only saw his mother once. That occasion was at the end of 1997, when he says that his mother was completely confused and did not recognise him when he went to her house.

Maureen gave substantial evidence about the relations between herself and her mother. Parts of her evidence were fairly uncontroversial. It appears to be common ground, for example, that she had a close relationship with the Testatrix until some time after the Testatrix's second major stroke in 1992. Following the death of the Testatrix's husband, the Testatrix came to live in Kent with Maureen and her family. In late 1991 Maureen and her husband had an extension built onto their home at a cost of £l0,000. The Testatrix gave Maureen £7,000 to help to pay for it. Maureen's evidence was that the Testatrix said that the gift was in appreciation of what Maureen and her family had done for the Testatrix over the years and that "I may as well have it now, as I would only get it later on when she died". After living with Maureen and her family for a few months, the Testatrix moved into her own home at 12 Bishopsbourne Green, Gillingham, Kent. This was just around the corner from Maureen's house. Maureen describes herself as effectively the principal carer for the Testatrix up until some time in 1993. She says that she used to take her mother back and forwards to her hospital and chiropodist appointments, she and her husband did all the gardening for the Testatrix and she would also take food around on Sundays. In addition Maureen's husband also did all the decorating for the Testatrix in her home and fitted her new kitchen, with the exception of the sink unit which was undertaken by somebody else. Her evidence is that her mother also spent each Christmas at Maureen's home with her family. It is clear that Maureen's relationship with her mother changed at some point after the Testatrix's second major stroke in Charring Cross Hospital in 1992. I have found it difficult to understand the precise sequence of relevant events in her relationship with the Testatrix and George after that time since her recollection of the dates on which significant events occurred is uncertain and appeared to change from time to time in the course of her evidence. My understanding is that following the Testatrix's discharge from Charing Cross Hospital in 1992 until about March 1993 Maureen continued to be the principal carer for the Testatrix. Her evidence was that during this period she left her own family five days a week and went to live from Monday to Friday at her mother's home. She took her son Andrew with her because at that time he was still at school. She was also holding down her own job at the same time. Her job was only part time, and she was assisted in caring for the Testatrix with the help of her daughter Donna, who was around 18 or 19 years of age and was not working. Donna stayed with the Testatrix when Maureen went to work, and upon her return from work Maureen would take over from Donna. At weekends during this period George came down and gave her relief. In about March 1993 Kent Social Services started to pay for 24 hour care for the Testatrix. Live-in carers were employed to look after the Testatrix but George began to take over as the member of the family principally involved with the care of his mother, sharing that task with the employed live-in carers. So, when the employed carers were on holiday or had to be relieved, George took over from them or assisted them. In due course George also took over Maureen's previous role in dealing with the Testatrix's financial affairs. Maureen says that this was done without her consent or co-operation. The extent to which Maureen visited her mother after Social Services agreed to give an allowance for 24 hour care is a matter of dispute between the parties. It seems clear that relations between Maureen and George deteriorated during this period, and there appear to have been frequent arguments at the Testatrix's house. Although, as I have mentioned, the precise chronology of events during this period became extremely confusing in the course of Maureen's evidence, my understanding is that in about June 1995 there was a disagreement between George and Maureen on the occasion of a birthday party for the Testatrix. According to Maureen, the Testatrix told her that it would be better if she did not come around to visit again because the disputes which resulted caused her distress. Maureen's evidence was that because of her love and respect for the Testatrix, she agreed to respect her wishes. Once again, the extent to which she saw her mother after June 1995 is a subject of disagreement between the parties. In her oral evidence she said that after she was asked by her mother not to go around to the Testatrix's house any more, she did not. She occasionally saw the Testatrix in the street, but the Testatrix did not know who she was. This oral evidence appears to conflict with her evidence in her witness statement that she saw the Testatrix "infrequently" until her death. Maureen, describing the change in her mother from what she was at the beginning of 1992 to what she was at the end of 1992, said that the Testatrix changed from a sweet old lady to a frail old lady. Prior to 1992 she was a very agile person, who did her own shopping and cleaning. By the end of 1992, following her second major stroke, she could do nothing for herself, not even go to the toilet on her own or turn in bed unassisted. Maureen's evidence was that the Testatrix would remember things only if you reminded her. Maureen said that if she had not visited for a couple of weeks, the Testatrix would mistake her for a carer. She said that the Testatrix would not recognise her son Andrew. She said that the Testatrix looked at the television, but Maureen was unable to say whether the Testatrix took in what was happening. It was difficult to hold a conversation with the Testatrix. Maureen never saw her read a paper in all the time that Maureen was caring for her. Maureen said that after the second stroke, the Testatrix was a shadow of herself. Maureen's view is that the Testatrix would not have been able to complete the Mini Mental Test mentioned in Dr Whales' evidence. In cross-examination, Maureen accepted that George was always considerate and kind to the Testatrix, and that he treated her "like a queen". She agreed that George had never neglected the welfare of the Testatrix. On the other hand, the view expressed in her witness statement was that she thought George to be a very domineering character. Both in her witness statement and in her oral evidence she expressed the view that George set his sights on obtaining the whole of the Testatrix's finances at an early stage and was determined to have the Testatrix's house. In addition to describing, in this context, the way that he obtained control of the Testatrix's finances, excluding Maureen without her knowledge and consent, she also recounts an incident, probably in 1994, when one of the Testatrix's carers came to Maureen and stated that the Testatrix was upset because a birthday party was being planned for her, which she did not want, and that she did not want George to have control of her finances or to visit her each weekend. In her witness statement Maureen refers to various other incidents, which she says gave her cause for concern about George and his motives, including an incident when George wanted £400 of the Testatrix's money to purchase a new bedroom suite, which the Testatrix denied to Maureen that she wanted, and also an occasion when Maureen visited her mother and found her sitting in her house practising her signature, apparently at the request of George. Her views of George's motives also rest on the secrecy surrounding the execution of the 1995 Will and the withholding of information about it from her by George. In her witness statement she states that, when she did visit her mother between 1995 and her death, she was never allowed to be on her own with the Testatrix. The door of the room that they were in was always left open, and any conversations with the Testatrix had to be in the presence of the carer. As I have mentioned, this evidence appears to conflict with her oral evidence that, in accordance with the request of her mother made in June 1995, she never saw her mother again, save occasionally in the street. Overall, while I found Maureen's evidence helpful in some respects, I reached the conclusion that I should treat much of it with caution. I have reached this conclusion in view of some significant inconsistencies in her evidence to which I have already conferred, as well as the lack of clarity as to her account of the sequence and timing of important events. There are also some obvious inaccuracies in her evidence. For example, in her witness statement she says that she was solely responsible for obtaining funding for 24 hour care. She admitted, in cross-examination, however, that this was jointly achieved with George. Further, in her witness statement, she refers to the fact that, following the death of her father, the Testatrix moved to London from Cornwall after she had received some injuries, in particular bruises on her arm. In her witness statement, Maureen comments that she does not know how these injuries were caused, but it is clear from her oral evidence that she was aware, prior to signing her witness statement, that they had been caused by her brother Frank. She, of course, supports Frank in seeking to attack the 1995 Will. Accordingly, while I accept the broad thrust of her evidence as to her relationship with her mother up until the events of June 1995, I do not feel it appropriate to give particular weight to the rest of her evidence.

Catherine Payne, a care assistant for some 20 years before her retirement in May 1997, was called to give evidence for Frank on the basis of a letter dated 28^th June 1998 in which she said in relation to George's character:

"You ask of his overbearing nature, what an understatement. He was obnoxious to say the least. His language was foul and his demeanour that of a bully. I had occasion to report to our case manager of his shouting and screaming at me, but directed at Social Services .... On the occasions that I attended she was frail in mind and body."

In her oral evidence Mrs. Payne explained that she had attended the Testatrix as a care assistant on about 4 or 5 occasions in about 1996 for about 1 hour on each occasion. She said that, on those occasions, there was never any substantial conversation between herself and the Testatrix, who was very quiet. She spoke to the Testatrix, but the Testatrix did nor really speak to her. She never saw the Testatrix read any newspapers. She said that she did not see the Testatrix often enough for the Testatrix to recognise her. She acknowledged that the Testatrix was extremely well looked after, and the house was very well kept. The criticism of George in her letter was related to an incident when, due to no fault of her own, she arrived late at the Testatrix's house. George directed a torrent of abuse at her about Social Services. She said that he apologised when she left. She said that other people, by which I assume she meant other carers, were reluctant to go to the Testatrix's house because "other people had obviously experienced similar things".

Norma Merrick, who used to be employed as the Chief Officer of Age Concern based at The Mackenney Centre, in Gillingham, Kent, signed a witness statement in which she recalls that the Testatrix used to attend Age Concern's Day Centre. She recalls that the Testatrix was a very quiet lady, voicing no opinions on any subject and rarely speaking a word other than a reply of "yes" or "no". She recalls that the Testatrix was not registered by Age Concern as being mentally frail. She says, with regard to George, that he was charming until he did not get his own way, and then he would leave no stone unturned in pursuit of his aims. She says that she also remembers that it was evident that George appeared to handle all the Testatrix's money and her decisions. She wrote a letter dated 7^th July 1998 to Franks' solicitors in which she referred to an earlier letter which had been sent to George by Councillor J. Lee, as chairman of the trustees of Age Concern, in which Councillor Lee said: "Other Clients and some staff members were most intimidated, distressed and upset by your attitude and aggressive verbal onslaught to Mrs. Merrick".

A witness statement was also given by Mrs M Roberts, who was a neighbour of the Testatrix in Bishopsbourne Green. She says that she was a friend of the Testatrix and spoke with her on a regular basis until her son George moved in. Mrs Roberts refers to her conversation, some time during 1995, with another neighbour, who told her that the Testatrix had changed her will and that she had said that her son had made her change it. Mrs. Roberts says that, when George moved in, the Testatrix changed. She never saw her much after that, and it seemed to her that the Testatrix was frightened of George.

Neither Mrs Merrick nor Mrs Roberts were available for cross-examination, and I must take that into account when deciding what weight to give to their statements.

Dr Gosh is a General Practitioner carrying on practice from 105 Nelson Road, Gillingham, Kent. She was the Testatrix' General Practitioner from August 1994 until the Testatrix's death. On 27^th April 1995 Sorrell & Company wrote to Dr Gosh requesting her to confirm that, in her view, the Testatrix was of sound mind on 21^st April 1995 and would have been capable of understanding the implications and effect of signing a new will. Dr Gosh replied by letter dated 2^nd May 1995, in which she said:

"To the best of my knowledge, Mrs Wilkes was of sound mind on 21^st April this year, and would have been able to understand the implications of signing a will."

In her oral evidence, Dr Gosh confirmed that she had experience in the care of the elderly. She said that her clinical observation was that the Testatrix was of reasonably sound mind for testamentary capacity. She said that she got to know the Testatrix quite a bit. She saw the Testatrix when she needed to. This was invariably at the Testatrix's home. In support of her clinical observation as to the state of mind and testamentary capacity of the Testatrix, Dr Gosh said that the Testatrix was "co-operative to an extent"; she answered questions; she knew that Dr Gosh was a doctor and not a nurse; she was not aggressive; she was aware "to a certain extent" of her condition; Dr Gosh could reasonably elicit from the Testatrix what she wanted.to know. She said that she was able to enter into a dialogue with the Testatrix. Dr Gosh's evidence was that she did not have any problem with the Testatrix's mental health: if she had a problem she would have carried out a mental health assessment test. She acknowledged that she had no great appreciation of the Testatrix's memory. Dr Gosh also acknowledged that the medical notes disclosed that the last time she saw the Testatrix, prior to her writing her letter to Sorrell & Co of 2^nd May 1995, was on 30^th January 1995. She said that the Testatrix was functioning as she would expect someone of the Testatrix's age. She confirmed that an infection might cause the Testatrix to become confused. She acknowledged that the Testatrix's mental state must have declined over time. In cross-examination, she said that if she had taken into account everything that had been pointed out by Dr Whale she couldn't say that she would come to the same conclusion. While acknowledging that there was a physical and mental deterioration at the end of 1995, Dr Gosh's view was that the Testatrix was co-operative until her death, and did not display any signs of dementia.

So far as concerns the evidence of George, I have concluded that it would be unsafe to

place any weight upon this save where corroborated by independent witnesses. It is clear that George was very close to his mother and that he did everything in his power to provide her from 1992 to the date of her death with the best possible care. There can be no question of his love and devotion for her and his genuine care and efforts for her welfare. Nevertheless, it is perfectly clear that in critical respects his evidence cannot be believed. His evidence was that at some date in 1994 the Testatrix said to him out of the blue that she wanted to make a will. His evidence was that, after speaking to Arthur and a cousin, he arranged for himself and his mother to attend the offices of Sorrell & Co for a will to be made. He says that he had no idea what had brought on the Testatrix's request, that he was reluctant to arrange for the will to be made, that he never asked what the will was going to say. In his witness statement, he says that he was told by Mr Sorrell that he should wait outside while his mother gave Mr Sorrell instructions, that he agreed to do so, and after his mother had given instructions he was called in to help her leave the office. In cross-examination, he said that his mother was desperate to have the will made, and confirmed that Mr Sorrell asked him to wait outside. His evidence was that he said nothing to Mr Sorrell about what was to go into the will, and Mr Sorrell received no instructions from him whatsoever. He said that when he was told that he could go in, he wanted to go to the toilet first, and after that Mr Sorrell told him that the Testatrix had made him sole beneficiary. George's evidence was that he did not have any reaction when Mr Sorrell told him that. I reject this evidence completely. It is totally at odds with the recollection of Mr Sorrell, whose evidence was that he never asked George to go outside, that it was George who gave the instructions for the will in the presence of his mother, and that the only time that George vacated the room was when he wished to go to the toilet. Mr Sorrell wrote two letters, the first dated 2^nd December 1994 (which was not produced in evidence) enclosing a draft of the 1995 Will, and the second dated 22^nd February 1995 enclosing the engrossed will. The second letter included the following statement:

"I would reiterate that your Will must be signed in the presence of two person who are not members of your family and that one of those persons should be a doctor who has satisfied him or herself that you are capable of making and understanding the Will at the time it was signed and who is prepared to sign a letter to that effect to be deposited with the Will"

In cross-examination George had no credible explanation as to why he did not take any steps to have the 1995 Will witnessed by the Testatrix's general practitioner in accordance with Mr Sorrell's instructions. He mooted the possibility that the letters had not been received because, as he pointed out, both the number of the house and the post code were incorrect. When, however, it was pointed out that the letters enclosed respectively the original draft will and the engrossed will, both of which it is clear that he received, George was compelled to acknowledge that he must have received at least one if not both of the letters. He then suggested that he must have misread the letters, but his is not credible since the instructions are simple and unambiguous. Further, his evidence was that the Testatrix never deteriorated in her mental condition after 1992. This is contrary to the evidence of both medical witnesses and other independent witnesses. All these matters go to the heart of the case concerning testamentary capacity and the Testatrix's want of knowledge and approval of the contents of the 1995 Will. In view of the complete lack of credibility of George on these issues, I am driven to doubt other important aspects of his evidence. He maintained, for example, that it was not until after the death of his mother that he knew anything of the contents of her 1985 will, which left her property equally between her children, save that special provision was made for Frank. I accept the evidence of both Maureen and Frank that the contents of the 1985 Will were well known within the family and amongst others. In his witness statement George says that he believes that his mother left her house to him because he lived in it full time. It is apparent, however, both from George's own evidence and that of other witnesses, that he did not move into his mother's house until late 1994 at the earliest. George's evidence was that his mother could make her own decisions, and indeed that he encouraged her to do so. He said that she was not difficult to communicate with, and that she was not difficult to understand. He said that if she liked a film on television, or found it interesting, she would say so. He said his mother knew her address, her age, all her grandchildren, and great-grandchildren and all their birthdays. He said he could not bully his mother; it was not possible to make her do anything that she did not want to do. In cross-examination, he said that when the draft will arrived through the post from Mr Sorrell, he said to his mother that she had not left anything to anybody else and she responded that it was up to George. His evidence was that he said to her that she must leave something to the others, and that was when he sat down and discussed with her the various items of personal property which were incorporated in the Memorandum in his handwriting. He says that he read out the contents of the Memorandum to his mother. On the other hand, he says that he never read the 1995 Will to the Testatrix. Indeed, at one point in his evidence, he said that he had not even read it completely to himself, a conclusion which is difficult to square with his evidence at an earlier part of his cross-examination that he said to his mother, on receipt of the draft will from Mr Sorrell, that she had not left anything to anyone else. As I have said, my overall conclusion in relation to George's evidence is that it would be unsafe to rely upon it save where corroborated by other credible independent evidence.

Arthur gave evidence in support of George. His evidence is potentially important since he says, in relation to the period between 1992 and the Testatrix's death, that he telephoned his mother three times each week, and went to see her every Saturday morning. Furthermore his evidence is that she discussed making a new will with him.

Arthur's witness statement, however, varied in important respects from the oral evidence he gave at trial. For example, he said the following in his witness statement.

"11. Some time later in 1995 Mum decided to change her will. I remember that her care worker Sharon was present when Mum told me that she was thinking of changing the will. She asked if I would mind if she left everything [my emphasis] to George because she felt he deserved it having sacrificed his own lifestyle in order to make her last years happier. I supported her decision having witnessed George's efforts first hand. Mum mentioned that she had discussed the prospect with my brother Jim who lived abroad and he was also happy. I think she also mentioned it to my cousin Peter Marshall during one of his visits. She had not spoken to Frank who she now only saw once or twice a year, or Maureen with whom she had had no contact since their falling out."

In his oral evidence, he gave evidence that on one Saturday morning, when he went to see her, the Testatrix had asked him whether he minded if she left the house to George. Later in his cross-examination, George said that the Testatrix subsequently asked him whether there was any objection to her leaving the house to George, and that he, Arthur, had replied that there was not because George deserved it. Arthur said nothing in his oral evidence about the Testatrix expressing a wish to leave everything to George. Furthermore, it is clear that when the instructions were given for the 1995 Will to Mr Sorrell in December 1994 and when the 1995 Will was executed in April 1995, there had not yet been a compete break between Maureen and the Testatrix. This only occurred after June 1995. It is also clear that Frank only visited the Testatrix once between 1992 and her death. Further, George appears in his witness statement to place his discussion with the Testatrix concerning her wish to make a new will in about April 1995, whereas the instructions for the 1995 Will were in fact given in December 1994. It is clear from these matters that Arthur's recollection expressed in his witness statement is inaccurate in many respects. Arthur gave evidence that at the time of the Testatrix's first will it was her initial wish that Frank be omitted altogether, and it was only due to George's suggestion that she agreed to include Frank as a beneficiary under the 1985 Will. Arthur's evidence was that he did not discuss the Memorandum with George, and he never saw the Memorandum. He says that he did discuss with George the whereabouts of the trophies mentioned in the Memorandum but the Testatrix was not present during the discussion. His evidence was that he knew the house was going to be left to George, but he did not know what was going to happen to the Testatrix's personal property. Arthur's view is that George sacrificed his lifestyle to care for the Testatrix and that no one could have done what George did for her, and that George deserves the house in consequence. Arthur does not accept that over the years the Testatrix declined in body and mind, but accepts that she was sometimes confused, during infections. He said that the Testatrix was very strong-willed right to the end, and that no one could change her mind on anything, save possibly himself.

Nicholas Sorrell of Sorrell & Company, was the solicitor who took instructions for the 1995 Will and had it drawn up. His evidence was that, when George and the Testatrix visited his offices on 22^nd December 1994 to give instructions for the Will, George instructed Mr Sorrell what the Will was to contain. Fortuitously, at a point in the course of the meeting, George had to go to the toilet. At this point there is an important discrepancy between Mr Sorrel's witness statement and his oral evidence. In his witness statement, Mr Sorrell said as follows.

"(4) Whilst Mr Wilkes was still absent from the room I said to Mrs Wilkes, words to the effect of "are you sure that you want to make a Will leaving everything to George?" and she replied saying "yes, because he was the only one who still made sure she was properly looked after"."

In his oral evidence, his account differed in his examination-in-chief and cross-examination. In his examination-in-chief he said that he asked whether the Testatrix was happy for everything to go to George, and the Testatrix said "yes". In cross-examination, he said that when George left the room, he said to the Testatrix "Are you happy it is to be done this way?". Later in his cross-examination, he said that he couldn't remember saying anything to the Testatrix other than "Are you happy?". Mr Sorrell's evidence was that he had no doubt about her testamentary capacity, having seen her. He says that, when George left the room to go to the toilet, the Testatrix made a joke to the effect that George had a weak bladder 'like a woman's". He says that, because she made a joke, she was aware. He said, in examination-in-chief that he could see she was aware by looking into her eyes. He said in cross-examination that she had a pair of glasses and was looking around. She was not staring into space. She was calm, and appeared to be lucid. He knew that she had a house, and there was mention of jewellery, but he could not recollect discussing all her estate with her. It was discussed that there was going to be a list dealing with the estate other than the house. Mr Sorrell did not ask whether there had been a previous will made by the Testatrix, nor was there any discussion about the number of children, although he was aware that George had siblings. George and his mother returned with a carer to Mr Sorrell's office on 21^st April 1995, for execution of the 1995 Will. Mr. Sorrell says that he sent a draft of the 1995 Will under cover of a letter to the Testatrix dated 22^nd December 1994 which, among other things, recommended that the will be witnessed by her GP in order to remove any doubt as to mental capacity. He subsequently sent a letter to the Testatrix dated 22^nd February 1994, which enclosed an engrossed version of the 1995 Will, and which reiterated the advice that one of the witnesses to the Will should be a doctor who had satisfied himself or herself that the Testatrix was capable of making and understanding the Will at the time it was signed and was prepared to sign a letter to that effect to be deposited with the Will. There was no reply to that letter. George and the Testatrix, accompanied by a carer, returned to Mr. Sorrell's office on 21^st April 1995, apparently without any prior appointment or notice. The 1995 Will was executed and witnessed in Mr Sorrell's reception area. He was not aware of this until it had been done. When he saw them in reception, after the 1995 Will had been executed, he said that they should get a letter from the Testatrix's doctor to confirm her mental capacity, since they had failed to comply with his earlier advice in writing that the general practitioner should sign the will. He did not discuss further with them the 1995 Will as drawn up or the Memorandum; not did he read them to the Testatrix. Mr. Sorrell said in evidence that he did not know whether in April 1995 the Testatrix read or understood the 1995 Will or the Memorandum.

Rachel Young, was employed as a legal secretary by Mr Sorrell in 1995. She witnessed the execution of the 1995 Will. She does not recall reading the 1995 Will or the Memorandum to the Testatrix. That would not have been her normal practice.

Maureen Jenner first came into contact with and developed a friendship with the Testatrix and George in about 1997, when she was the Chair of a group which provided information and guidance to Carers, Disabled and Elderly people, and George and the Testatrix were having difficulty with the carers. She gave evidence that the Testatrix understood her, unless there was background noise, always recognised her, liked "westerns" on television and, on one occasion, asked if Mrs Jenner had a particular one, went with George and the Testatrix to dog racing, where the Testatrix would point to the name of a dog from a card and would, at the conclusion of the race, remember the number of the dog she had picked. She says that, when they went to the races, the Testatrix recognised Arthur. Mrs Jenner said that the Testatrix mentioned that she had four sons and a daughter and that she had not seen Frank for some time. In relation to the problems with her carers, which was the context of the original contact between George and Mrs Jenner, Mrs Jenner's evidence was that she talked to the Testatrix about the problem with the carers. She spoke to the Testatrix on her own. She says that, in conversation, they both might engage the other. She says that she accompanied George and the Testatrix to Littlewoods for the Testatrix to chose cardigans. She says that she looked after her own mother for a number of years when her mother had dementia, and she did not find anything wrong with the Testatrix in that aspect. She says that they never really talked about the past. She says that the Testatrix looked forward to meeting her children and grandchildren, and she recited their names to her. She says that after the end of 1997 she came to regard George and the Testatrix as friends, and that she remains a friend of George. She saw them regularly between the end of 1997 and the Testatrix's death. Mrs Jenner does not accept that the Testatrix was intermittently confused, because she never found her to be confused. She said that George manifestly loved his mother with all his heart and did everything to make her life happy.

Caroline Chilman is a qualified nurse. She is a district nurse attached to Dr Gosh's surgery. She attended the Testatrix from 1993 until the Testatrix's death. Either she or a member of her staff would attend the Testatrix at least once a week, when she would spend anything from half an hour to one and a half hours with her. Her evidence was that she conversed on many topics with the Testatrix. She found the Testatrix to be a very pleasant person, easy to deal with, and co-operative. She added that the Testatrix did, however, know her own way. She says that the Testatrix always recognised her, even in the period immediately before her death when she was in hospital and Mrs Chilman was not in uniform. Mrs Chilman also says that the Testatrix had no difficulty in recognising members of her team. She says that the Testatrix liked her bingo card with the Sun newspaper, and she liked watching television. She says the Testatrix liked going out, and, for a lady of her age, she took an interest in everything going on around her. She says that the Testatrix's mental health was very good. She says that she thinks that the Testatrix may have had three or four strokes over the years, when she would have had a couple of days with flu like symptoms and then would be fine again. She was not aware that the Testatrix had Parkinson's Disease. She acknowledged that the Testatrix could get quite confused if she had an infection. This might last only two to three days. She also acknowledged that there was a slow and gradual deterioration over time. She attested to the close and loving relationship between the Testatrix and George.

Mandy Furnell was one of the main carers to attend the Testatrix. She was employed by Kent Social Services Department. She attended the Testatrix from early 1994 until the end of the Testatrix's life. She spent many hours every week with the Testatrix. Mrs Furnell describes the Testatrix as a sweet woman, who was interesting and who talked about the old days with her sister. She says that the Testatrix also talked about her children, and that she loved to keep in touch with her sons Arthur and Jimmy and loved to see her grandchildren. She says that the Testatrix liked to do bingo in the morning and also played the lottery, liked to watch videos, and especially westerns, and she also liked to read the papers. George would ask the Testatrix what she wanted for breakfast, and she could select clothes from a choice presented to her by George. She said that the Testatrix liked to go on an outing and to chose birthday cards and clothes, and that she took an interest in dog racing, but she acknowledged in cross-examination that she never accompanied the Testatrix on any of her outings. She said that the Testatrix told her that George would have the house. She says that the Testatrix knew her own mind. In cross-examination she acknowledged that, in commenting that the Testatrix could pick out clothes, this was in the context of George bringing two or three items of clothing asking the Testatrix which she would like. In the context of choosing her breakfast, she acknowledged that George would say what the choice was, and in any event she always had Weetabix. She acknowledged that the Testatrix was on occasions confused, more particularly when she had an infection, but says that the Testatrix would recover within a few days. In cross-examination she described the Testatrix's reading of the papers as scanning the papers.

Other evidence

Both sides relied upon written medical documentation.

Mr. Macrae drew attention to a report by Mr. Fairman, consultant ENT surgeon, as early as 5^th April 1979, which stated that the Testatrix suffered "from a bilateral perceptive hearing loss from about 60dBs or more in both ears."

The Testatrix's physical condition, after her second major stroke in 1992, was summarised as follows by Dr. Ragab, the Testatrix's then general practitioner, in a letter dated 15^th December 1992: "Mrs. Wilkes suffers from repeated CVA and is wheelchair bound. Mrs. Wilkes depends totally on the help of her son and daughter who share her care. She needs to be helped in all basic human needs and functions." She was recorded in medical correspondence in 1983 as having spastic dysarthria, indicating severe difficulty in speaking.

Mr. Macrae, counsel for Frank, drew attention to the entry in the GP's notes for 12^th December 1994, some days before instructions were given to Mr. Sorrell for the 1995 Will, stating that one of the Testatrix's carers reported that it was thought that the Testatrix had had a slight stroke, and also to entries for 13^th November 1994, 29^th November 1995 and 22^nd December 1995 that the Testatrix was confused. There are other entries in the medical records to the effect that the Testatrix was confused, for example on 9^th February 1996. On the following day, the Testatrix was admitted to hospital unconscious, having suffered another stroke. A letter from Dr. Mohsin of All Saints Hospital, Chatham, Kent, to Dr. Ghosh dated 16^th October 1996 said that, on admission of the Testatrix with a urinary tract infection, the Testatrix was hallucinating and confused. On 15^th September 1997 Dr. Yu of the Medway Hospital wrote a report on the Testatrix in which he gave as a diagnosis "Intermittent Confusion Secondary to Cerebral Ischaemia and ? Parkinson's Disease"; and a discharge letter dated 1^st September 1997 completed by Dr. Addy of the Medway Trust also included Parkinson's Disease as part of her diagnosis.

On the other hand, Mr. Sahonte, counsel for George, referred me to a letter from Dr. Talavlikar of Medway Hospital dated 18^th November 1992 describing the Testatrix as "mentally reasonably well" and also a letter from Dr. Gillaspie of Charing Cross Hospital describing the Testatrix as being "fully alert" when she was discharged on 22^nd December 1992. A letter from Dr. Mohsin to Dr. Ghosh dated 27^th February 1992 stated that, on examination, the Testatrix was "mentally well"; although it should be noted that at the beginning of the same letter it was stated that she had been admitted to hospital "with confusion".

Application of Legal Principles to the Facts

Testamentary Capacity

The starting point is that the burden of proving testamentary capacity lies on George, who seeks to uphold the 1995 Will. His task is not easy or straightforward, and its difficulty is compounded by the view that I take of his own credibility as a witness. For the reasons I have already given, in crucial respects I reject his evidence, and I have concluded that I can only give weight to those parts of his evidence which are supported by credible independent witnesses.

Mr. Macrae, in attacking the validity of the 1995 Will, relies understandably on the unchallenged expert evidence of Dr. Whale. I accept Dr. Whale's evidence that, at the time instructions were given for the 1995 Will and at the time of its execution, the Testatrix had widespread brain damage as a result of strokes, and that damage was permanent and progressive; and the impact of that damage on her mental capacity was exacerbated by deafness and Parkinson's Disease. I also accept his evidence that, in the absence of some form of objective diagnostic analysis of the Testatrix at the time, the Court should treat with caution any statements as to her mental condition and capacity based upon subjective impression. His evidence which, as I say, was not challenged, was that it is common to encounter elderly people who seem quite well, but do badly in simple objective tests of their mental state. It was also clear, not only from Dr. Whale's evidence, but also that of other witnesses, that the Testatrix's mental condition would have been adversely affected during any period of infection.

Frank and Maureen gave evidence that the Testatrix was not always able to recognise them or Maureen's son Andrew, and Mrs. Payne gave similar evidence as to the Testatrix's recognition of her. An ability to remember both the extent of the Testatrix's property and the identity of those who had a claim on her bounty, are important elements of testamentary capacity. I do not consider, however, that I can place any particular weight on the evidence of Frank, Maureen and Mrs. Payne as to the Testatrix's memory. From 1992 until the date of the Testatrix's death, Frank only saw his mother once, at the end of 1997; and Maureen's evidence as to whether she visited her mother at all after the break in June 1995 and if so when, where and how often was inconsistent and unclear. Furthermore, in relation to the period before June 1995, I have concluded, for the reasons I have given earlier, that I should treat Maureen's evidence with caution. Mrs. Payne accepted in evidence that she did not see the Testatrix often enough for the Testatrix to recognise her. Against their evidence, I must set the evidence of Maureen Jenner, Caroline Chilman and Mary Furnell. Mrs. Jenner and Mrs. Furnell gave evidence of conversations with the Testatrix about her children, and Mrs. Chilman gave a graphic description of how, shortly before the Testatrix's death when she was in hospital, the Testatrix recognised Mrs. Chilman out of uniform.

Mr. Macrae also drew attention to the fact that, according to the Testatrix's medical records on 22^nd December 1994, only some 10 days before instructions were given to Mr. Sorrell to draw up the 1995 Will, one of the Testatrix's carers thought that the Testatrix had suffered a stroke. It is to be noted, however, that the records also indicate that the stroke (if it was one) was slight and no visit by the Doctor was required.

So far as concerns the letter from Dr. Ghosh to Mr. Sorrell of 2^nd May 1995 which said that, to the best of Dr. Ghosh's knowledge, the Testatrix was of sound mind on 21^st April 1995 and would have been able to understand the implications of signing a will, I agree with Mr. Macrae that much of the force of Dr. Ghosh's view is undermined by the fact that she did not undertake any objective mental test of the Testatrix and, apparently, last saw the Testatrix several months earlier. Furthermore, Dr. Ghosh accepted in evidence that, had she taken into account all the matters mentioned by Dr. Whale in his evidence, she is not certain what conclusion she would have come to on testamentary capacity.

Although I place great weight on the evidence of Dr. Whale and his warning of the dangers of accepting the subjective views of others as to the Testatrix's mental capacity, I cannot ignore the considerable body of evidence given by independent witnesses as to their dealings with and perception of the Testatrix. Maureen Jenner, Caroline Chilman and Mandy Fennell were in frequent contact with the Testatrix over substantial periods prior to her death. Although they all admitted to having become friends of George, I see no reason to doubt their integrity or honesty. Their evidence showed that the Testatrix not only recollected her past and her children and grandchildren, but that she was capable of engaging in meaningful conversation, that she not only watched television, but appreciated what she was watching. The evidence of her conduct at the dog races, and of her reading the newspapers and playing the Sun newspaper's bingo game are also indications of her mental ability. I reject the suggestion, advanced by Mr. Macrae, that no great significance should be attached to these because they did not involve any real mental alertness and dexterity. The fact that the Testatrix was able to discuss with Mrs. Jenner her concerns about her carers is significant, as is the evidence of Dr. Ghosh that the Testatrix always knew that she was a doctor, was able to answer her questions, and was aware of her condition, and Dr. Ghosh was able to enter into a dialogue with the Testatrix. I also attach significance to the evidence of Mr. Sorrell that, at his meeting with the Testatrix and George in his office on 21^st April 1995, the Testatrix made a joke about George's bladder.

Dr. Whale accepted that testamentary capacity might be indicated by comprehension of newspapers and television, and also the making of a sharp humorous quip.

In addition to these matters, it is significant that the Testatrix discussed with Many Fuller and Caroline Chilman that she intended George to have her house, thereby indicating a rational appreciation of her assets and her power of disposition of them.

George has given no adequate explanation of his failure to comply with the instructions given by Mr. Sorrell in his two letters of 22^nd December 1994 and 22^nd February 1994 that the 1995 Will should be witnessed by a doctor and a letter obtained at the same time from the doctor confirming that the Testatrix was capable of making and understanding the Will. I am inevitably left with the impression that George may have failed to follow those instructions deliberately because he was concerned that the doctor might not find that the Testatrix had testamentary capacity. This, however, is speculation. It would not be right to permit my views of George's credibility as a witness or my speculation as to why he failed to ensure compliance with Mr. Sorrell's instructions as to the involvement of a doctor with the execution of the 1995 Will to outweigh the clear evidence of independent witnesses as to the Testatrix's mental capacity. I conclude that, taking the evidence as a whole, George has discharged the burden of establishing that the Testatrix had testamentary capacity at the date of giving instructions for and executing the 1995 Will.

Want of Knowledge and Approval

The burden of proving that the Testatrix knew and approved of the contents of the 1995 Will lies on George. In my judgement, he has discharged that burden.

By the 1995 Will the Testatrix left her entire net estate to George. Apart from certain items of jewellery, the value of the Testatrix's estate was comprised almost entirely of her house and its contents. As I have already mentioned, it is clear from the evidence of Mary Fuller and Caroline Chilman that it was the Testatrix's expressed intention to leave her house to George. I also accept Arthur's evidence that the Testatrix discussed with him her intention of leaving the house to George, although, for reasons I have mentioned earlier in this judgement, I do not accept the accuracy of his recollection of these discussions in every respect. Finally, and most important, the instructions for the 1995 Will were given in Mr. Sorrell's office in the presence of the Testatrix. Although I have noted, in relation to Mr. Sorrell's evidence, that there is a discrepancy between his witness statement and his oral evidence, and between his evidence in examination-in-chief and in cross-examination as to precisely what he said to the Testatrix when George left the room, what is clear is that the Testatrix did not give any indication that she did not understand or approve of George's instructions to Mr. Sorrell. It has not been suggested that the 1995 Will was not, as executed, in accordance with those instructions.

It is not necessary for me to form a view as to whether the Testatrix knew and approved of the contents of the Memorandum. Under the 1995 Will, the Testatrix's entire estate was left to George. Clause 6 of the 1995 Will contains a request by the Testatrix that he distribute her personalty in accordance with any existing or future memorandum of her wishes left by her. That clause, however, imposes no trust or other legally enforceable obligation on George. The Memorandum is not itself and does not form a part of a testamentary instrument.

Undue Influence

In the Statement of Claim the following matters are relied upon in support of the allegation of undue influence: the trust and confidence reposed by the Testatrix in George; the comments about George made by Mrs. Payne in her letter of 28^th June 1998; George's failure to inform his brothers and sisters about the existence of the 1995 Will until after the Testatrix's death; and other particulars of George's conduct toward the Testatrix to be given at trial.

Dr. Whale's evidence was that, by virtue of her mental frailty, the Testatrix would have been particularly susceptible to being influenced in relation to the 1995 Will. Moreover, there is no doubt of the Testatrix's heavy emotional and physical dependence on George at the time she gave instructions for the 1995 Will and also at the time it was executed. That dependency would have been heightened by the lessening of contact with Maureen at that time.

Evidence was given at the trial of instances in which George had conducted himself in a domineering and aggressive manner. Frank gave evidence of George's instruction to him in June 1995 not to get in contact with the Testatrix any more. Maureen gave evidence that George took over from her his mother's financial and other affairs, without Maureen's consent or approval. She also gave evidence of George holding a party for the Testatrix which the Testatrix did not want, and of her concerns about an incident when George wanted £400 of the Testatrix's money to purchase a new bedroom suite, which the Testatrix denied to Maureen she wanted, and an incident when she found the Testatrix practising her signature, apparently at the request of George. She referred to the fact that she was never allowed to be alone with her mother, and the door or the room in which they met was always left open. Mrs. Payne stood by her letter of 28^th June 1998 in which she referred to George as "obnoxious" and his demeanour being that of a bully, and of an occasion when he shouted and screamed at her. Evidence of George's aggression was also apparent from the letter from Councillor Lee, in relation to an incident at Age Concern's centre, to which Mrs. Merrick referred in her letter of 7^th July 1998 to Frank's solicitors.

A witness statement was provided by Mr. Roberts, in which she said that it seemed to her that the Testatrix was frightened of George.

In my judgment, all these matters fall far short of the evidence required to sustain an allegation that the 1995 Will was procured by George's undue influence. There can be no doubt that George was capable of being aggressive, difficult and rude when seeking to put right some inadequacy in the care of the Testatrix or when seeking some benefit for his mother. On the other hand, it was acknowledged by all the witnesses that the care which he provided for his mother was outstanding, and there can be no doubting his love for her. In my judgement, there is no evidence of any real weight that he was ever aggressive towards the Testatrix, or sought to coerce her into dealing with her affairs against her will. In this connection, I bear in mind that neither Mrs. Merrick, nor Mrs. Roberts were available for cross-examination. Furthermore, for the reasons I have mentioned earlier in my judgment, I approach Maureen's evidence with caution.

What is clear is that the Testatrix mentioned to Arthur, Mrs. Furnell and Mrs. Chiltern on different occasions that she intended to leave the house, which comprised almost the entire value of her estate, to George. Furthermore, although she had the opportunity to do so in the absence of George, the Testatrix did not express to Mr. Sorrell any misgiving about the instructions for the 1995 Will. The allegation of express undue influence by George to procure the execution of the 1995 Will cannot possibly stand in the light of this evidence.

Conclusion

For the reasons which I have given, I find that the Testatrix was of testamentary capacity when she gave instructions for and executed the 1995 Will, and that she knew and approved its contents. Furthermore, I reject the allegation that the 1995 Will is invalid on the ground that it was procured by undue influence. I accordingly dismiss the Plaintiff's claim and make an order in accordance with paragraph 1 of the First Defendant's Counterclaim.