England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		19 April 2002

MR JUSTICE RIMER:

Introduction

1. This is a probate action. The claimant is Natividade Ines Maricota Ferreira Carapeto ("Mrs Carapeto"). Mrs Carapeto and her son-in-law, Kamran Akhavi Brennan ("Mr Brennan"), are the executors named in what she says is the last will dated 19 May 1999 of Ethel Mary Good deceased ("Miss Good"). By this action, Mrs Carapeto claims to prove that will ("the May will") in solemn form. She was represented by Mr Vivian Chapman and Mrs Constance Mahoney. Originally, Mr Brennan was a co-claimant, but on the sixth day of the trial Mr Chapman informed me that he was receiving conflicting instructions from his two clients and that Mr Brennan wished to cease to be a party to the action. Without opposition from the defendants, I therefore made an order under Part 19.2(3) of the CPR that Mr Brennan should so cease, but without prejudice to the question of whether he should ultimately be liable to any extent for the costs of the action. Mrs Carapeto thus became the sold claimant.
2. Mrs Carapeto and her husband are the principal beneficiaries under the May will. Neither is a relative of Miss Good, and the only provision Miss Good made in her will for her family was the gift of some specific legacies. The Carapetos' connection with Miss Good is that in 1979 Miss Good engaged Mrs Carapeto as her housekeeper, after which Mrs Carapeto and members of her family lived in Miss Good's house for the rest of Miss Good's life. The defendants are the members of Miss Good's family who take under the intestacy which arises if, as they claim, the May will was invalid. Miss Good was quite a prolific will maker and had made several wills prior to the May will, of which the last was in April 1999. The validity of the April will is not in question and it revoked all previous wills. However, within hours of making it, Miss Good revoked it by destroying it. The result is that, if the May will was invalid, she died intestate.
3. It is agreed that Miss Good had testamentary capacity when she made the May will. The only issues are whether (i) she knew and approved its contents and (ii) it was induced by the undue influence of the Carapeto family. Mr Chapman accepts that the Carapetos were sufficiently implicated in the events leading to the May will to raise a suspicion as to whether Miss Good knew and approved its contents. He accepts, therefore, that the burden of proving that she did is cast on Mrs Carapeto. Mr Michael Furness QC and Miss Tiffany Scott represented the defendants, and they in turn accept that the burden of proving undue influence lies with the defendants.
4. Considerable evidence was adduced, comprising statements from about 60 witnesses, of whom 38 were cross-examined. That might suggest that the trial was likely to have been a long one. I must, however, congratulate both sides on the economy with which it was conducted. The estimate was ten days, and at the outset the parties agreed that Mr Chapman and Mr Furness would each have a day to address the court and four days to cross-examine those witnesses they wished to cross-examine. That timetable was observed with military precision, and the exercise was a model of how trials in the Chancery division can and should be conducted.
5. The issues require me to focus on the events of 1999, the last year of Miss Good's life: she died on 3 January 2000. I am concerned in particular with the events of January to May 1999, when Miss Good made her last three wills. But the evidence inevitably ranged more widely than that. The evidence as to the pre-1999 period is relevant in setting the background against which Miss Good came to make the May will. The subsequent evidence is relevant at least to the extent that it includes statements by Miss Good as to her testamentary intentions when she made it.

Miss Good

6. Miss Good was born on 25 March 1912. She was 87 when she made the May will and nearly 88 when she died. She was the third of the four children of William and Ethel Good. Her elder sister Hilda, who died in 1963, had two children, Anne Crawley and Alan Crawley. They were born in 1938 and 1941 and are the fifth and fourth defendants. Her elder brother Alan, who died in 1957, had three children, of whom one died in 1947 and the others are Elaine Constable and Paula Chaffey, who were born in 1933 and 1939 and are the seventh and sixth defendants. Her younger brother William was born in 1914. He married twice. He had two children by his first marriage: Jeremy (the second defendant), born in 1941; and Charles (the third defendant), born in 1946. The first defendant is William Good (usually called Bill), and he is a son of William's second marriage. Bill Good was born in 1952. He never knew his father, who died in an air accident shortly before his birth. Miss Good was very close to her brother William, and also to Bill Good.
7. Miss Good never married and died childless. She was physically disabled by polio when she was about four. She wore a calliper and surgical boot on her right leg and was a wheelchair user. She was a highly intelligent, well-educated and articulate woman. She went up to Oxford in 1931, where she read French, she had a career as a teacher of French and Art, and she ran her own school at one stage. She retained an interest in the arts throughout her life and, until her eyesight prevented it, was a keen painter. She was a local councillor in Oxford during the late 1960s. She played bridge regularly, an interest she maintained until her death. She was for many years the treasurer of the Oxford Bridge Club. She taught Bill Good to play bridge. My own experience of schoolteachers of Miss Good's generation is that they were capable of disapproving of the careless use of the word "nice". I hope that she would forgive me if I say that all the evidence I have read and heard about her (including three recordings of Miss Good herself) indicates that she was obviously a thoroughly nice person.
8. Miss Good was well provided for financially. She had an interest as a beneficiary in three family settlements. The first was the W.I. Good Residuary Fund, established by her father. She had a life interest in that fund, and on her death the capital devolved on her father's seven grandchildren (the defendants). The fund was worth £778,625 in April 1996 and £843,000 in February 1999. The second settlement was the E.M. Good Settlement, which Miss Good herself made. She also had a life interest in the fund of that settlement, with the capital devolving on her death to Anne and Alan Crawley (the fifth and fourth defendants). The fund was worth £246,865 in April 1996 and £281,000 in February 1999. The third settlement was the E.B. Good Will Trust, which was established by Miss Good's mother. The settled assets included a freehold house at 163 Woodstock Road, Oxford ("the house") and a portfolio of shares. Miss Good had lived in the house since the 1940s and loved it. She occupied the ground floor, and the two upper floors were converted into separate flats. The share portfolio was worth £298,937 in April 1996 and £314,000 in February 1999. The value of the house in February 1999 was estimated at £500,000. Miss Good had a life interest in, and a testamentary power of disposal over, the assets in this settlement, and they can for the practical purposes of the present case be regarded as part of her free estate, which is, I find, how she regarded them. Her true free estate included a substantial share portfolio, valued in February 1999 at £613,000. She also owned various chattels worth perhaps about £50,000 in February 1999. In 1999, therefore, she had a testamentary power of disposal over assets worth more than £1.4m.

The Carapeto family

9. Mr and Mrs Carapeto are Portuguese. Mrs Carapeto was born in November 1935 and was 63 at the time of the May will. She married her husband, Vasco, in 1956. He is probably about the same age, but I believe there is no evidence as to that. They have three daughters, Sara, Susanna and Ruth, all born in Lisbon. Mr Carapeto was an evangelical minister who spent six months at a mission in Watford in 1963. He was asked to stay on and the family moved from Portugal to Watford in 1966. They decided to remain in England, Mr Carapeto obtained employment at a bank and Mrs Carapeto trained and, in 1972, qualified as a state enrolled nurse.
10. Mr Carapeto's work took him to Oxford in 1978, the family moved there with him and in 1979 Mrs Carapeto saw an advertisement which Miss Good had placed. She recalls that it read "Disabled lady requires live in person for cooking light meals." Mrs Carapeto met Miss Good once or twice to discuss what she wanted, which was for a housekeeper to prepare breakfast every day, lunch every day except Sunday and supper five evenings a week. The duties did not include housework, which was dealt with by daily helps, or gardening, which was dealt with by gardeners: Miss Good was very interested in her garden. Accommodation was to be provided in the first floor flat and the pay was £30 a week. Mrs Carapeto accepted the job and moved into the flat with her husband and her two younger daughters (Sara was studying in Paris). She had a service occupancy of the flat under a tenancy dated 26 November 1979, which was also the date of her employment contract. The top floor flat at the house became vacant in 1980 and Miss Good offered Mr Carapeto a tenancy of it at £80 a month, which he accepted. He was given a lease on 23 June 1980 for a five-year term from 1 July 1980 and then from month to month, terminable on three months' written notice.
11. Miss Good was at this stage still relatively independent, to the extent that she could walk with the aid of sticks and could drive, although she soon became exclusively a wheelchair user and she stopped driving by about 1985, as her eyesight had worsened. After this, the Carapetos provided for her driving needs. They would drive her to her bridge club in Oxford and also take her for other regular drives, which she enjoyed. These drives were part of an almost daily routine until the end of her life.
12. In 1991 (in circumstances not explored in the evidence), the Carapetos' daughter, Sara, and her own young children moved out of their family home and into the top flat, where they remained. Miss Good took a particular interest in Sara's children and in their activities, including music lessons and school plays. There is no doubt that she was very fond of them and enjoyed their company.
13. In 1992, Miss Good suffered a wedge compression of her lumbar spine and was briefly admitted to hospital, from which she discharged herself the following day. She appears to have had a dislike of hospitals. After the 1992 incident, she found it difficult to lace up her calliper and began employing outside carers who would help her to get up in the morning. In later years, they would also assist her to get into bed.
14. Miss Good's health was generally good until the summer of 1997, when she had a mild stroke, which caused her temporary memory problems and impaired the vision of one eye. She was still able to read, but needed the help of a magnifying glass. She maintained her interest in the arts. In January 1999, she had a transient ischaemic attack, which caused weakness in her right hand. On 6 August 1999 (by when she had made the May will), she sustained a fracture of her left femur and was admitted to the John Radcliffe Hospital in Oxford under the care of Mr Peter Worlock. As in 1992, she was anxious to leave hospital as soon as possible, she discharged herself somewhat prematurely on 28 August 1999 and was taken home by the Carapetos.

The relationship between Miss Good and the Carapetos

15. There is some conflict on the evidence about this. Mrs Carapeto's evidence, supported in particular by that of her daughter, Susanna Anca and her son-in-law Mr Brennan, is to the effect that Miss Good and the three generations of the Carapeto family became one big, happy family, and that Miss Good began to regard and refer to the Carapetos as her adopted family. They would eat and spend time together, and Miss Good would share in and enjoy the activities of the Carapeto household. I have seen several photographs - each no doubt worth a thousand words - which appear to support the picture this evidence painted. There is also no doubt that over the years Miss Good displayed increasing and unusual financial generosity towards the Carapetos, taking on the burden of paying all the expenses of the house and the grandchildren's school fees. I have seen notes Miss Good wrote to Mrs Carapeto at Christmas in 1989, 1990 and 1996, accompanying gifts of jewellery to her (which included her mother's engagement ring and a brooch), and two birthday cards she also sent her. They are written in the most affectionate terms. There is a good deal of evidence as to what Miss Good said to others about the Carapetos in 1999, which is consistent with an affection towards them which went beyond that of someone who was simply a grateful employer. Mrs Carapeto's evidence is to the effect that, over the years, she and her husband, and to some extent her daughters, cared for Miss Good with increasing devotion, to a level which can perhaps be regarded as going beyond the call of duty.
16. This portrayal of life at the house is supported by witnesses other than members of the Carapeto family. Dr MacLennan was Miss Good's general practitioner from 1974 until her death. He used to visit her every six months to check her blood pressure, and occasionally at other times. His visits increased after the stroke in 1997 (during that year he saw her seven times). His opinion in a letter he wrote to Challenor Gardiner, solicitors, on 5 May 2000 and confirmed in his oral evidence, was that he had the highest regard for the care the Carapetos always gave Miss Good and that "there is no doubt that Miss Good regarded them as her adopted family, loving them and their family as though they were her own". He said in his oral evidence that that opinion was formed from conversations he had with Miss Good in and before 1999 and that it extended to the three generations of the Carapeto family, although he accepted that it was possible only in 1999 that she first started to refer to them as her adopted family. He said she was "superbly" looked after by the Carapetos and by the carers, and that she and the Carapetos were mutually devoted. He had no hint of any cruelty towards Miss Good by the Carapetos, or any indication that they were exploiting her financially. He perceived a breakdown of Miss Good's relationship with her own family to have arisen by 1999, and regarded it as attributable to her concern that they wanted to put her into a residential home, whereas she was adamant that she wanted to stay in the house and be looked after by the Carapetos. Charles Good had in fact written to Dr MacLennan on 3 November 1998 on this subject, explaining that:

"[m]y brother Bill and I are becoming aware that the arrangements at Auntie's home are becoming strained to the point that we feel it highly desirable/necessary to look for an alternative solution for Auntie should her present living in family find the 24 hours a day responsibilities just too great. As I am sure you appreciate, like so many people of her age, Auntie is not well disposed to change of any kind, and given her inability to move around and dependency on other's help, she is even more nervous about any sort of change. She is aware that Bill and I are thinking about this problem and we have agreed with her to research what attractive alternatives there could be."

17. Much of Mrs Carapeto's supporting evidence as to her relationship with, and care for, Miss Good, was unchallenged by the defendants, and so I propose to refer to it in some detail. Margaret Sidebottom is a physiotherapist who had treated Miss Good since before 1980. During the 1990s, when Miss Good was too immobile to come to her clinic, she would visit her at the house. She saw her on numerous occasions from 1996 to 1999, in particular in 1998 (when she saw her about once a week from February to September) and in 1999 (when she saw her weekly between March and May and again in November and December). She said that there was no evidence that Miss Good was not being cared for adequately, on the contrary she saw a great deal of good care and that Miss Good "was looked after extremely well by the Carapetos and they hardly ever left her on her own, especially latterly." Mrs Sidebottom related how Miss Good talked about going out with the Carapetos on little trips and picnics and said that she was obviously very fond of them and spoke very kindly of them. Mrs Sidebottom's own observation was that she "felt the Carapetos replaced [Miss Good's] own family". She recalled how, during the spring of 1999, Miss Good was frightened to be alone and how Mr and Mrs Carapeto took it in turns to sleep near her downstairs on the sofa. She said that, had she thought anything was amiss, she would have gone straight to Dr MacLennan, but it never crossed her mind to do so.
18. Colin Bowker is a retired doctor who has known the Carapetos for about 50 years, and regularly visited them at the house. He was about the same age as Miss Good and came to know her well. His assessment was that the Carapetos looked after her very well and that it was apparent that they were all very close friends. Whenever he visited, the Carapetos always included Miss Good in the party.
19. Alexandra Plantema was a friend of Miss Good who had played bridge with her since at least the 1980s, originally at the club in Oxford and latterly at the house. She had six bridge sessions there in 1999, between 13 April and 3 August. She said that Miss Good was "always warmly appreciative of the Carapetos" and seemed well cared for: "she was treated as one of the family and she treated them as one of her family." She said Miss Good "was very happy with the Carapetos and had plenty of opportunity to grumble about them if she wanted to."
20. Lynne Hutchings is a chiropodist who visited Miss Good several times a year from 1990 onwards. She said that Miss Good and Mrs Carapeto were clearly comfortable with each other, that there were no signs of dominance from either side and that she was impressed with Mrs Carapeto's care and concern for Miss Good.
21. Eileen Page is a retired carer. She started providing care to Miss Good in May 1993 and visited her regularly until November 1996. She then took up another job, but resumed caring for Miss Good between November 1997 and May 1998, when she made five visits. Her evidence is that Miss Good was very fond of the Carapeto family and that she treated all the Carapetos as if they were her family. She said that "[t]he general impression I gained was that Miss Good and the Carapetos were very close and Miss Good especially enjoyed the younger members of the family being around. She enjoyed Christmas and Easter and when they came down to have a meal with her. Occasionally she went out to the children's schools. ... I had the impression Miss Good was looked after very well. I had no cause to think otherwise. ... Had I had any concerns I would have told my employer but I had no cause to do so."
22. Camilla Scarlett, then a schoolgirl, started visiting Miss Good in about 1997 once or twice a week by way of community service towards a Duke of Edinburgh Award. She enjoyed her visits and continued them after completing the scheme. She concluded that Miss Good was very fond of the Carapeto family and remarked how Miss Good was "always included in everything ... [she] used to tell me about going to school plays and to concerts and out for drives. They all ate together and Miss Good seemed very content. She used to tell me how lucky she was to have the Carapetos looking after her." Miss Scarlett related how delighted Miss Good had been when the Carapetos took her on holiday to Brighton. She explained how Miss Good was similarly delighted to return home from hospital in August 1999, but said that she also then began to feel so frightened of sleeping alone downstairs that Mr and Mrs Carapeto had started to take it in turns to sleep downstairs on the sofa.
23. Dawn Sugden's sister was in the bed opposite Miss Good when she was in hospital in August 1999. Mrs Sugden used to visit her sister and talked to Miss Good, who would help her with her crossword puzzles. She related how Mr and Mrs Carapeto never left Miss Good's side, and how Miss Good told her how good they were to her and how much she loved them. Mrs Sugden's assessment was that Miss Good thought a great deal of the Carapetos, whom she felt were "genuine people". She referred in her written evidence to visits to the hospital by individuals whom I presume were members of Miss Good's family, visits which Mrs Sugden described as distressing to Miss Good. She recalled an occasion when Miss Good shouted "all blood relatives out. My adopted family can stay". Mrs Sugden said that Miss Good told her that "the relatives were being so awful because [she] had left her the house in her will." I interpret the first quoted "her" as meaning Mrs Carapeto. The explanation for the adverse reference to the family is that, according to the evidence adduced by Mrs Carapeto, Miss Good was by this stage feeling uncomfortably pressurised by them. The evidence includes a written statement Miss Good herself made shortly before she died, in which she explains why. I will come to this later.
24. Ruth Carter was in a bed diagonally opposite Miss Good in hospital. She explained how Mr and Mrs Carapeto were constantly by Miss Good's side, and would take it in turns to spend the night there. She said she thought they gave her "brilliant care" and looked after her every need, helping to feed her, move her with the nurses and make her comfortable. She explained how there came a point when Miss Good started saying that she wanted to go home.
25. Jane Quartermaine is a carer with Oxford Private Care ("OPC"), who visited Miss Good following her return home from hospital in August 1999 in order to assess her care requirements. She said Miss Good was thrilled to be home, that Mrs Carapeto was always on hand and that Miss Good seemed to be well cared for. The Carapetos were still taking her out for afternoon drives, which she enjoyed, and nothing would get in the way of that. Lucy Hamilton is a community nurse who visited Miss Good regularly and provided care from 30 August 1999 until her death, and her evidence shows that by then Mrs Carapeto was providing daily care to Miss Good which went far beyond the limits of her original job description. Mrs Hamilton explained how Miss Good often spoke about the Carapeto family with kindness and respect. Yola Kucel is another OPC carer who provided care to Miss Good during this period. She said that Miss Good had four care visits a day. She explained how Mr and Mrs Carapeto were always on hand and ready to help if needed, and she said how highly Miss Good would speak of them, saying that Mrs Carapeto was very good to her and was always there when needed. Miss Kucel's assessment was that there was a close bond between the two of them. Her opinion was that Mrs Carapeto "made Miss Good her life. ... Miss Good was always included in everything they did. They had meals together and used to take her out for rides and give her company throughout the day. They were always there for her and in my opinion she had the best care anyone could expect and much better than she could have received at hospital or in a Nursing Home. They all cared very deeply for Miss Good." Jackie Chandler, another OPC carer, looked after Miss Good during the same period, and her evidence about the relationship between Miss Good and the Carapetos was to similar effect. So was that of Sara Quartermain, another OPC carer who attended Miss Good during this period. She said Miss Good "talked a lot about the Carapetos. She adored them ... Miss Good hated being on her own. Miss Good always wanted [Mrs Carapeto] to be with her or one of the others if she was not there. [Mrs Carapeto] was always there when I went round and in the latter days [Mr Carapeto] spent the afternoons with her. ... [Miss Good] always talked about the length of time [Mrs Carapeto] had been there and she regarded [Mrs Carapeto's] family as her own. She told me that." Maria Sharp, another OPC carer, began visiting Miss Good in December 1999, usually to put her to bed. She described how Mr Carapeto used to help her, and said that there seemed to be a very close bond between Miss Good and the Carapetos, whom she regarded as very caring people. She said that, whatever Miss Good wanted, the Carapetos got it for her and were always there for her.
26. Other evidence (beyond that of her immediate family) which Mrs Carapeto adduced as to the closeness between her family and Miss Good was tested by cross-examination, although I do not regard it as having been seriously shaken. Cyril Wilsdon was another of Miss Good's regular bridge fours (the last time he played was in January 1999) and his evidence too was that Miss Good only had the nicest things to say about the Carapetos and that he never heard one complaint about them. He said she referred to them as her adopted family. He said that he had the impression she liked them better than her own family. He disagreed with the suggestion put to him in cross-examination that she was under the thumb of the Carapetos and said that when he visited she was certainly in authority.
27. Mark Walker is a builder who was engaged by Miss Good to carry out various works at the house in 1999. He said that when he first went there he assumed Miss Good and Mrs Carapeto were mother and daughter: he did so because of the closeness of the way they spoke and acted.
28. Dorothy Berry has been a friend of the Carapetos since about 1985 and became a regular visitor to the house. They met at the local church. She said she would visit about once a week, and sometimes even more often in the early years. She also became friendly with Miss Good and would sit, chat and enjoy a sherry with her. Her evidence was that:

"...the Carapetos did absolutely everything for Miss Good and provided constant care and attention to her. They looked after her from morning noon until night and helped her throughout the day with food, clothing her, shopping for her, taking her out for a drive and making sure she had everything she needed. ... Although the Carapetos were not blood relatives to Miss Good, it was very clear that they loved each other. Miss Good recognised them as part of her family as they did everything for her. ... I could tell that Miss Good trusted the Carapetos tremendously."

29. She also said that there came a time when Miss Good told her that she was afraid of her nephews and that, following a change to her will, they became nasty and put pressure on her. She was referring to 1999, and said that on one occasion Miss Good referred to two of her nephews saying that they "are up to no good and they frighten me" and said that it was Bill Good who caused the most problems. She said in cross-examination that there came a time - probably after Miss Good returned home from hospital in August 1999 - that she told Mrs Berry that she did not want to see the nephews any more, she just wanted the Carapeto family around her, with whom she felt secure. She was worried that the nephews would pressure her into signing documents she did not want to sign. That is supported by Miss Good's written statement.
30. The evidence adduced by the defendants is to a rather different effect. The nephews and nieces were collectively all regular, if (individually) not particularly frequent, visitors to the house during the 20 years of the Carapeto era. Bill Good in particular was obviously very close to Miss Good, he was plainly a devoted nephew and I find that he had at all times a real concern about her well being. He described her in his witness statement as "the nearest I had to a father...". Miss Good appointed him her attorney by an enduring power she executed on 1 April 1992, and following her stroke in 1997 he started helping her with her financial affairs although she was still capable of making decisions. He produced a letter she had written him on 1 December 1986 in which she had explained that she had a problem with regard to Mrs Carapeto. She lucidly explained in it the nature of the package enjoyed by Mr and Mrs Carapeto and said "she [Mrs Carapeto] seemed very discontented with her last raise in wages. I raised them from £95 per week to £110 (when she started with me in Dec 1979 it was £30 per week & has gone up annually since them)." She asked Bill Good whether she was "paying about the right rate for the job at provincial level." She said that "Nati [Mrs Carapeto] is never backwards in asking for more like Oliver Twist... I get narked at the continual hinting that she is underpaid & feel there is a slight element of blackmail (possibly too strong a word) in the atmosphere." She concluded her letter by writing:

"Also I want to put you in the picture should a serious disagreement arise. Nati & Vasco are very plausible, but I sometimes wonder how sincere are they? Possibly that is my typically English view of foreigners! Unfortunately, they are both becoming very hooked on this 'born-again Christian' religion, a la Billy Graham type of thing, very narrow minded bible thumping religiosity.

Reading the above through, I feel my University training in essay writing has not been entirely lost.

You'll see the car I bought for Nati when you come up. It is a very decent looking second hand Volvo (£4,600) & the garage man guaranteed it for 2 years, so I hope I did all right."

31. The letter was put to Mrs Carapeto in cross-examination, who accepted she had told Miss Good that she did not think she was being paid enough for what she was doing, but she said they did not have any arguments about it. She said she had made no hint that she might leave and that she was surprised that Miss Good had written such a letter. But write it she did, and it provides an insight that Miss Good may not always have regarded the set-up as being as perfect as the Carapetos' evidence would suggest. At least at this date, Miss Good appears to have had some doubts about them.
32. That letter was, however, written nearly 13 years before the May will. As I have said, as the years went by, Miss Good became increasingly generous towards the Carapetos in financial terms. Mr Furness explored this with Mrs Carapeto and with Susanna Anca in cross-examination by way of an exercise directed at demonstrating that the Carapetos were cynically milking Miss Good for as much as they could, and that they were only prepared to perform the role of surrogate family if they were paid for it. I make no such finding, since I do not accept that it is a fair interpretation of the facts. If Miss Good did have any concern that the Carapetos were or might have been taking unfair advantage of her, she took no steps to replace them and nor is there any evidence that she ever seriously considered doing so.
33. Bill Good was a regular visitor, but until about October 1998 does not appear to have had any major concern about the Carapetos care of her. He had lunch with Miss Good on 1 November 1998 at The Bear at Woodstock. He had just heard from Joy Keen, a carer who had been staying at the house, that the Carapetos had been bullying Miss Good by making her use an electric wheelchair, which she did not like and which apparently caused her some discomfort. He told Miss Good that he had heard reports of bullying and Miss Good responded that she was pleased he knew about it. He says they then discussed the possibility of taking steps to remove the Carapetos from the house. He said they were getting on and that it may be that it was difficult for them to look after her. He explained to her that all this might take some time and that in the interim Miss Good might take a "holiday" at a nursing home. He says she agreed that he should investigate the legal position as to the Carapetos' rights and how they might be removed and that he should also investigate the matter of nursing homes. Bill Good then rang his brother Charles, who agreed to help him in looking at nursing homes.
34. On 6 November 1998, Bill Good rang Mrs Lintott. She was a solicitor with Penningtons, who had been Miss Good's solicitors for many years. Mrs Lintott's note of the conversation is that he referred to Miss Good being psychologically bullied, and to her alleged concern that the Carapetos might suddenly leave her. The note recorded that in these circumstances Bill and Charles Good had been looking at back up provisions. It noted that Miss Good had occasional live-in carers, one of whom, Joy Keen, had just left because she regarded the atmosphere at the house as so dreadful. It noted that Bill Good wanted to know what rights the Carapetos had at the property and in December 1998 Mrs Lintott provided him with full written advice as to that. In cross-examination, Mrs Lintott said that over the years she had regarded Miss Good as intelligent and loquacious and, on occasions, as a forceful person. She also explained that the criticism of the Carapetos in the November 1998 telephone conversation was of the Carapetos daughters rather than of Mr or Mrs Carapeto, and referred to rough treatment or bullying. It was a reference to the use of the electric wheelchair.
35. Bill and Charles Good began to try and identify a suitable nursing home for Miss Good, in case the need should arise for her to move into one. It was in that connection that Charles Good wrote to Dr MacLennan on 3 November 1998 (quoted in part in paragraph 16 above), and he wrote a follow up letter on 29 November 1998 asking about nursing homes. It is, however, clear that the nephews had not actually resolved to move Miss Good into such a home: they were merely investigating the possibilities. Charles Good's own comment on Miss Good in his latter letter is that she "seems on good form at present and my mother is planning to stay with her for a few days over Christmas, which is good". On 1 December 1998, Dr MacLennan replied with a suggestion of two nursing homes, adding the thought that Charles Good should investigate them and perhaps arrange for Miss Good to be admitted to one on a short term respite basis. Charles Good asked one of homes to provide a brochure. He said Miss Good knew about this, and in due course a brochure was sent to her at the house. This appears to have alarmed her into the mistaken belief that her nephews had actually resolved to have her moved into a nursing home, which was, I find, the last thing she wanted and she appears to have nursed a continuing worry about this. She wanted to stay at the house and be looked after by the Carapetos. Whatever she may have said to Bill Good on 1 November 1999, I find that she at no stage had any intention of removing or replacing them.
36. The defendants' evidence is that by, and in particular during, 1999 - the crucial period for the purposes of this action - the Carapetos were becoming unusually protective of Miss Good. For example, during her time in hospital in August 1999, there was what Dr Simon Winner, a consultant geriatrician at the Radcliffe Infirmary described as "the almost perpetual presence of one of the Carapetos at her bedside", although the evidence of Sally Smith, a social worker, was that Miss Good appeared quite happy about this, and she agreed in cross-examination that Miss Good would have been anxious and would have wanted company. A significant consequence of the protective guard apparently being mounted by the Carapetos was that it became increasingly difficult for the nephews to visit her at the house, and I heard extensive evidence about these difficulties from her nephews, which I accept existed. As I explain more fully below, this is because by February 1999 Miss Good began to view the nephews with rather less warmth than before, and I find that there came a time when she certainly did make them unwelcome at the house. This was in part because she was by then convinced - wrongly, as I find - that they were proposing to move her into a nursing home. In part, it was because she was disappointed about their adverse reactions to her decision in January to make a will in favour of Mr and Mrs Carapeto rather than in favour of the family, and she wanted to escape being pressured by them. The defendants' position is that in so far as Miss Good may have displayed antipathy towards the family, it was as a result of the Carapetos' improper manipulation of her emotions: they claim that the Carapetos sought to turn her against her family.
37. The defendants called a queue of witnesses, from within and without the family, who gave evidence as to their perception of life at the house and the relationship between the Carapetos and Miss Good. It was directed at painting a generalised picture of images rather less ideal than those portrayed by the Carapetos's evidence. I do not propose to review it in close detail, which would involve prolonging this judgment intolerably. It ranged over a multitude of matters, some very petty. It in part sought to portray Mrs Carapeto as a dominant figure, who and whose children (in particular Susanna) exercised increasing and intrusive control over the house and Miss Good (evidence to this effect was given by the nephews, Vivienne Clark, Anne Crawley, Paula Chaffey, Jean Edwards, Joy Keen). It included assertions that Miss Good was the victim of bullying by the Carapetos (Anne Crawley, Joy Keen). As to that, I accept that in about the autumn of 1998 the Carapetos did start to make Miss Good use the electric wheelchair, which I have mentioned, but otherwise I do not find the bullying allegations to amount to anything of substance. Anne Crawley's evidence as to alleged bullying was unimpressive, as to most matters. Her evidence showed her as someone who saw her role as a witness as being to strike and - if possible - wound the Carapetos with whatever material she could muster; and, lacking as she did very much in the way of real material, she padded out her evidence with the smear of unsubstantiated innuendo. She was unwilling to acknowledge that the Carapetos had any merits whatsoever. Her allegations of cruelty amounted to generalised evidence that Miss Good told her Susanna was bullying her, alleged sightings of Susanna slapping Miss Good on the arm and evidence of shouting and the raising of voices. The defendants' evidence also included evidence to the effect that the Carapetos were by no means the paragons of care and thoughtfulness that their evidence would suggest, and that from about 1997 onwards there was a decline in the quality of the care they gave Miss Good, in their friendliness towards her family, and in the quality of the atmosphere in the house (Charles Good, Anne Crawley, Joanna Good, Paula Chaffey, Joy Keen, Jean Edwards, Averil Good, although she at least accepted that Miss Good was fond of Mrs Carapeto). Joy Keen is a social worker who started working as a companion to Miss Good in 1985. She was never impressed with the standard of cleanliness at the house. She was critical of the layout of its kitchen, which was not designed for wheelchair users. She was critical of the quality of the Carapetos' care for Miss Good, who told her that she was aware of their shortcomings and that they will get their comeuppance". She said Miss Good was frightened that the Carapetos would leave her. Audrey Baker, a regular visitor to the house, would plainly have liked, if she could, to be able to say that the Carapetos bullied and dominated Miss Good, and said in cross-examination that she had a feeling they had completely taken over the house. In her witness statement, she was instead constrained to say that "I never heard the Carapetos being bullies or domineering to her while I was there because they were always too careful and they knew that I had my eye on them." It was put to Mrs Carapeto in cross-examination that she did threaten to leave Miss Good, which she denied, just as she disputed the adverse evidence about the quality of her care of Miss Good or the standards of cleanliness at the house. It was put to her that she eavesdropped on conversations which others were having with Miss Good, which she also denied, although I find that this particular charge was well founded.
38. Not everyone called by the defendants was unremittingly critical of the Carapetos. Morel Marsh, an occasional visitor to the house, acknowledged in her witness statement that the Carapetos generally took good care of Miss Good and agreed in cross-examination that she did not notice anything wrong at the house before Miss Good went into hospital in August 1999. After that, she said that when she visited Miss Good the Carapetos would not leave them alone. Ann Elliott went out of her way to say that Mr Carapeto "was always very good to [Miss Good] and went beyond the call of duty" and she also said that they were never unpleasant to her in her presence. She agreed in cross-examination that Miss Good was also fond of Mrs Carapeto, but said that she did not like the way she crept around listening to conversations. David Crawley, who used to visit Miss Good whilst he was at Oxford University, said that until 1999 he found the Carapetos amenable, polite and courteous and that he would not criticise them. They were always polite to him and would leave him alone with Miss Good. He did, however, say that after 1999 (he meant after 1998) he noticed they became more aggressive and unpleasant.
39. Much of the evidence from the defendants was based on perceptions derived from irregular and occasional visitors to the house, and some was limited to events well after the making of the May will. Helen Roberts - a friend of Miss Good's who made irregular visits to her - confined her evidence to her perception of events in December 1999. It was largely directed at showing that Mrs Carapeto was listening on an extension to her telephone conversation with Miss Good. She agreed in cross-examination that she had noticed nothing untoward before then. Mary Matthers was an occasional bridge player whose evidence was also directed solely to the post-August 1999 period, and was to the effect that some obstacles - but not insuperable ones - were being placed in the way of access to Miss Good. She too agreed she had seen nothing untoward at the house before then. Ann-Marie Petty's evidence was confined to a telephone conversation with Mrs Carapeto on 18 December 1999, during which Mrs Carapeto told her that Miss Good was not seeing anyone at the moment and conveyed that she wanted to end the call quickly.
40. Part of the defendants' case is that, by 1999, Miss Good was in the grip and control of the Carapetos, who were cynically manipulating her for their own financial ends. In particular, they say that they procured the May will by their undue influence over her. I will defer making my specific findings as to that until after I have reviewed the 1999 evidence and come to deal with the defendants' case based on undue influence, but I will at least say now that all that I have read and head about Miss Good satisfies me that, during 1999, she was still very much her own woman who retained her high intelligence, was fully alert mentally and was fully capable of making her own decisions about her affairs. I will also say that I have no hesitation in finding that, even if things were not in all respects perfect at the house, Miss Good had a very real affection for the Carapetos family and was genuinely grateful for the considerable services, benefits and pleasures which I find they gave her. In particular, she regarded herself almost from the arrival of the Carapetos as under a strong moral obligation to make fair provision for them after her death. This is obvious from the codicils and wills she made from 1982 onwards, to which I shall come.

Miss Good's relationship with her own family

41. I find that the family always retained a real interest in and affection for Miss Good. Mr Chapman acknowledged that Miss Good likewise always retained a great interest in and affection for them. In so far as this referred to Miss Good's attitude towards her family down to about February 1999, his acknowledgement was correct, although it does appear that subsequently her attitude towards the family became more distant. As I have said, the family found it increasingly difficult to visit her in the way they had done before, which they attribute to a policy by the Carapetos to close ranks around her. But there is, I find, no doubt that it was Miss Good who made the decisions to limit the family's contact with her. I have referred to what Mrs Berry had to say on this subject, and the matter reached its high point in September 1999, when Miss Good arranged for Mr Nicholas Bingham of Challenor Gardiner, solicitors, to visit her at the house. Mr Bingham's evidence was that Mrs Carapeto was there throughout his meeting, which lasted about 90 minutes, but he was clear that all the instructions came from Miss Good herself. They were full and clear and were to the effect that, since making the January will, Miss Good had been subjected to unpleasantness by her nephews and other family members. She also raised with Mr Bingham that they had been trying to put her in a nursing home. Her purpose in instructing Mr Bingham was to try to put a stop on any further harassment by the nephews. Mr Bingham said that Miss Good was highly intelligent and articulate and that he was in no doubt that her mental faculties were intact. He discounted any suggestion that she was being pressured or intimidated by the Carapetos and pointed out that when at one point Mrs Carapeto interrupted, Miss Good barked at her not to do so. I have no hesitation in accepting that. One of the three tape recordings of Miss Good I have head is of an occasion on 29 May 1999 (after the May will) when she took control of a somewhat unhappy tea party at the house, obtained the ear of everyone present and embarked on a lucid expression of her views. She demonstrated that she had not lost the authority and presence which I presume she formerly enjoyed as a schoolteacher. I will return to this recording later, and to the aftermath of the retainer of Mr Bingham. I come now to the various wills Miss Good made, culminating in the May will.

Miss Good's pre-1999 wills

42. Miss Good made wills in May and December 1937, July 1965, October 1970 and June 1978. I will not deal the pre-1978 wills. The 1978 will appointed three executors, of whom one was David Davies (a solicitor with Penningtons) and another was Bill Good. She gave a great number of pecuniary and specific legacies to various charities, friends and family members. By clause 3(g), she gave £700 to her housekeeper, Audrey Baker, "if still in my employ and not under notice to leave". She gave her residue in various shares to Jeremy, Charles and Bill Good, Elaine Constable, Paula Chaffey and a great niece. On 15 December 1982 (by which time Mrs Carapeto had been with her for about three years), she made a codicil to that will. It revoked clause 3(g) and gave a legacy to Mrs Carapeto, provided she was still in Miss Good's employment at the date of her death and not under notice to leave. Its minimum amount was £30,000, subject to increase to the date of death by reference to the RPI index.
43. Miss Good revoked the 1978 will on 14 February 1990 and made a new will. Mr Davies and Bill Good were again two of the three executors. This will similarly gave many pecuniary and specific legacies. By clause 5, Miss Good gave Mrs Carapeto a pecuniary legacy of £44,000 if still in her employment at death and not under notice to leave. She also gave a minimum of £80,000 to her trustees (to be similarly increased by reference to the RPI index) on terms that Mr and Mrs Carapeto were to have life interests in it and that the trustees could buy a house for their occupation. Subject to those life interests, those assets were to fall into residue, which she left to Jeremy, Charles and Bill Good.
44. Miss Good's next will was made on 27 June 1996. Mr Davies had by then retired, and Lesley Lintott had taken over Miss Good's affairs: she had assisted Mr Davies with them since the 1970s. Mrs Lintott and Bill Good were the two executors. The will gave a like range of specific and pecuniary legacies. Clause 5 gave a legacy to Mrs Carapeto if still in Miss Good's employment at her death. This time the amount was £140,000, again subject to a like increase by reference to the RPI index. This will did not, like the 1990 will, empower the trustees to buy a house for the Carapetos, but I infer that Miss Good's thoughts were that an index-linked legacy of £140,000 was sufficient to enable them to acquire alternative accommodation. Miss Good again left her residuary estate to Jeremy, Charles and Bill Good.
45. On 1 July 1996, shortly after Miss Good made this will, Mrs Lintott wrote to her enclosing a copy of it and explaining the values of each of the three family settlements in which she had an interest. I have earlier set out (in paragraph 8) the values (as at April 1996) which she gave to Miss Good, although she said he had no idea of the value of the house save that she imagined it would be quite high. She explained to Miss Good that the assets in the E.G. Good Will Trust (the house, and the portfolio then worth £298,937) "will fall into your free estate and be dealt with according to the terms of your Will."
46. Those wills reflect a clear recognition by Miss Good of what she regarded as at least a moral obligation to make testamentary provision for Mrs Carapeto; and the provision she made was, over the years, increasingly generous. In particular, the 1990 will shows that Miss Good was concerned as to where Mr and Mrs Carapeto would live after her death and was anxious to make provision for their accommodation. The wills also show that the primary beneficiaries of her estate were her family, in particular her three nephews. That is consistent with the affection Miss Good had towards them. I come now to 1999, when Miss Good made three wills: in January, April and May.

The January 1999 will

47. At the beginning of January, Miss Good had a bout of flu, and a chest infection. According to Mrs Carapeto, she was so debilitated she thought she was going to die. Mrs Carapeto also said that, after Miss Good had recovered, Miss Good spoke to Suzy Booth (who used to provide daily care) and asked her to write down that she wanted to leave the house to Mrs Carapeto. Suzy Booth said she could not do that, but suggested that Miss Good should consult Linnells, a local firm of solicitors. It was put to Mrs Carapeto that it was she who made the suggestion that Miss Good should give her the house, which she roundly denied, saying that it was Miss Good's proposal. By contrast, as I later explain, Bill Good's evidence is that Miss Good told him that the Carapetos had expressed a wish to have the house. Whatever may have prompted her to it, I find that the decision to give the Carapetos the house was Miss Good's own decision, freely arrived at. I have related the prior concern she had to provide accommodation for the Carapetos after her death, and the subsequent evidence satisfies me that she was indeed anxious to give Mrs Carapeto the house. I find that this was Miss Good's unaided decision.
48. What happened next is that Mrs Carapeto's daughter, Ruth Brennan, rang Linnells on 14 January 1999 and spoke to Martyn Ess, a partner. She explained Miss Good's wish to give the house away and there was apparently quite a long discussion about it. Mr Ess's note records that Miss Good did not wish to use her own solicitors, and Mrs Carapeto's explanation for that in her evidence was because Miss Good did not want to "stir up a hornet's nest." Her concern was that the family would be likely to be upset if it came to know that she was proposing to dispose of her main asset to the Carapetos. How right that was.
49. Mr Ess was then a senior partner with Linnells, and is now a consultant. He gave oral evidence. He is a careful and conscientious solicitor. He went to see Miss Good on 20 January and made a note of his meeting. He was let in by Mrs Carapeto, who told him straight away that Miss Good wanted to give her the house, to which Mr Ess replied that there would be inheritance tax to pay if Miss Good died within seven years. Mrs Carapeto is recorded as having understood that, and that the tax would be considerable.
50. Mr Ess and Mrs Carapeto then went in to see Miss Good. Carapetos's note recorded that Miss Good knew exactly what was happening, that Mrs Lintott of Penningtons had looked after her affairs, that her parents had set up some trusts, but she did not know what assets were in them. She then found a 1996 tax return, which helped identify some of her assets and the note records that the Penningtons letter of 1 July 1996 was also found, which provided an explanation about the three trusts. It is clear (although the note does not record it) that Mr Ess was also provided with a copy of Miss Good's 1996 will. His note records that Miss Good's instructions were that she wanted to make a will leaving the house to the Carapetos, together with "some money because they would have to pay tax", and that she wanted to leave some legacies and specific gifts to the family. Mr Ess was to draft a will and write to her immediately. He said in cross-examination that, as he did not know the then value of the assets in the trusts, it was not possible to discuss the potential tax liability with any precision - as he put it, it was "difficult to discuss serious tax".
51. Mr Ess drafted a will straight away and sent it to Miss Good on 21 January with an explanatory letter. The letter referred to Miss Good's wish to leave the house to the Carapetos. It referred to Mrs Lintott's letter of 1 July 1996, which had referred to the three trusts, and Mr Ess summarised his understanding of the position under them. He explained that the inheritance tax threshold was £223,000, that the excess of Miss Good's estate would bear tax at 40% and that tax would be payable on the house. He wrote:

"I have prepared a draft Will for you. Please will you read it through to see whether I have understood your wishes correctly. I have followed your previous Will which you made in June 1996 and included the pecuniary and specific legacies which you made in that Will. Having given away these specific and pecuniary legacies everything else you possess will pass to the Carapetos. The gift passing to the Carapetos will be your house, your stocks and shares, the remaining contents of your house and anything else you own. As I have already explained, it will be necessary to give the Carapetos monies so that they can have funds to pay the Inheritance Tax which will be due on the house."

52. Mr Ess went on to suggest that Miss Good might consider appointing the Carapetos as her executors, now that they were to be her principal beneficiaries. On 26 January, Mrs Carapeto telephoned Mr Ess to say that Miss Good approved the draft will.
53. On 27 January, Mr Ess returned to the house with the engrossed will. Miss Heath, his secretary, went with him. His attendance note records that he went through the will with Miss Good, who "confidently and definitely approved its contents". Miss Good then executed the will in the presence of Mr Ess and Miss Heath. The will named Mrs Carapeto and Mr Brennan as executors. There is no note recording how or when Mr Ess received those particular instructions, and he could not recall, but I find that they must have been given earlier by telephone: the names were already typed in the engrossed will. The will gave various specific and pecuniary legacies to charities and to family members and gave the residue to Mr and Mrs Carapeto. I have no doubt that the will represented precisely what Miss Good wanted, and that she fully understood the sense of its fairly straightforward contents. In particular, I find that she fully understood that the will left the Carapetos not just the house and some money to pay the tax on it, but her entire residuary estate. Mr Ess confirmed in re-examination that she understood that, and I accept his evidence. I do, however, also find that she did not at this stage have a clear idea of the value of the assets at her disposal. Nor did Mr Ess. He and she only acquired that later. If any criticism is to be levelled at Mr Ess, it is that he did not first take steps to ascertain and ensure that Miss Good understood the value of her estate and the true extent of the financial provision she was making for the Carapetos. Her intention, as he knew, was to give the Carapetos the house and the money to pay the tax. A gift simply of residue might, for all Mr Ess knew, give the Carapetos substantially more than that. In fact, it would.
54. On the same occasion, Miss Good signed an authority addressed to Penningtons authorising them to release to Linnells the original of the 1996 will. On 29 January, Mr Ess wrote to Mrs Lintott at Penningtons enclosing the authority and raising certain questions about the trust funds in which Miss Good was interested. This led to a telephone conversation between Mrs Lintott and Bill Good on 2 February, in which Mrs Lintott related that she assumed or understood that Miss Good was thinking of changing her solicitors. Bill Good then rang Miss Good and asked whether she was changing her will. His evidence is that she said was thinking of doing so, although of course by then she had actually done it. I find that she was telling him what I suspect she would have viewed as a white lie: she did not want to trouble the family waters, although trouble was not far away. Bill Good arranged to visit her the following Saturday 6 February, as he regarded her actions as most unusual. He had also visited her the previous Saturday, 30 January. He had, on the same day, also been to see a couple of nursing homes.
55. Miss Good appears to have been concerned that Bill Good wanted to see her about her will, and she rang Mr Ess and asked him to come and see her again. I find that he did so on 2 February, although his note is dated 5 February (Mr Ess's notes usually bear the date they are made, not that of the event they record). The note was a full one, and reflects that Miss Good was anxious to explain the background to the January will more fully. Its thrust was that her nephews were doing well, had their own families and were independent. She had no quarrel with any of them, but Mrs Carapeto and her family had treated her lovingly and she wanted to reciprocate. She wanted to reassure Mr Ess that she had not been pressurised at all and that she did not want to hurt anybody by her actions. Mr Ess noted that:

"[he] wanted her to know that he would not have made a Will for her if he had felt that at the time she was under duress or undue influence from anyone at all. [He] was [a] specialist in Will work etc and he certainly would not have agreed to make a Will if he had felt that there was any doubt that Miss Good was not doing exactly what she had wanted to do and understood what she was doing. In particular [he] want [sic: should be 'was'] impressed that she understood how necessary it was to provide [Mrs Carapeto] not only with a home but also with some monies in order to pay tax which would be payable on the house. ...

[Miss Good] said she understood her Will absolutely. She said it was difficult to read because it took her time with a magnifying glass as her sight was not good. [Mr Ess] therefore went through the Will reading it to her in detail. This showed up one or two spelling errors but [he] said that they did not affect the essential validity of the Will. [He] went through every clause in the Will in detail and at the end [Miss Good] expressed delight that the Will was exactly as she wanted it and that she said how much easier it was to understand when it was read slowly and carefully to her."

56. That further meeting with Mr Ess, one requested by Miss Good, was an unusual one, because she had by then already made her new will. Why did she feel it necessary to open her heart once more to Mr Ess? I find that the answer lies in Miss Good's sensitivity to the problem she regarded herself as facing. She considered herself to be under a strong moral obligation to provide generously for the Carapetos, by leaving the house to them and the money to pay the tax; and that is what she wanted to do, for the reasons she gave Mr Ess. Equally, she was concerned that her nephews would or might regard a will leaving the bulk of her estate to the Carapetos as being unfair to them, and she did not want to upset them. She was, therefore, anxious to explain to Mr Ess why she had made the will she had, and to confirm to him that it properly reflected her wishes, an exercise which she probably considered would help her be satisfied in her own mind that she had done the right thing. Mr Ess explained in cross-examination that Miss Good was the sort of lady who did not want to upset anybody, she wanted to do what was right but that it was all of enormous difficulty to her. He said her explanation made sense to him and that he regarded it as a genuine explanation of the will she had made. He said she was very intelligent.
57. Mr Good did visit his aunt on Saturday 6 February. She declined his invitation to go out to lunch with him. He had lunch at the house. He told her that he was concerned that she was being put under pressure to change her will. She replied that she was intending to change it and to leave the house to the Carapetos. She told him in response to his inquiry that they had raised the question of where they would live and of their desire to have the house. She would not answer Bill Good's questions as to why she was changing lawyers or making the changes to her will without prior reference to him. He told her that the house could be worth about £500,000, to which she responded "Gosh, that seems rather a lot". He also raised the subject of nursing homes and told her that she would be able to take her own bed there for the interim period, if required. He said that he and Charles could take her to see one, and then to lunch at The Bear. She said she was happy with his plan, although I find that it is plain she was not. Bill Good describes it in his witness statement in a way which may well have suggested to her that the move to a nursing home was almost a fait accompli. Miss Good telephoned Mr Ess the following week to tell him about what had happened, and that she felt some concern that the family might be trying to get her out of the house. She asked him whether they could do that, and he replied that he very much doubted it. He says she again stressed that her nephews were all in good positions and did not need her money, but that she could understand that they could see a large amount of family money moving away from them. She told Mr Ess that she was upset by Bill Good's attitude and said that he and Charles Good were coming to see her to try and make her move into a residential home. She emphasised that she did not want to do this, but wanted to stay in the house, and Mr Ess advised her that she could not be compelled to move. Her said in cross-examination that she was explaining the position to him rationally and lucidly.
58. On 9 February, Mrs Lintott telephoned Miss Good. Miss Good told her that she did wish to make some changes to her will and had asked Mr Ess to advise her. Miss Good said she would like to talk to Mrs Lintott and asked her if she could come and see her - but not on one of her bridge afternoons. Mrs Lintott said in cross-examination that Miss Good appeared to be talking in her usual sensible way.

The April 1999 will

59. On 10 February, Mrs Lintott telephoned Mr Ess and they discussed Miss Good's affairs. Mr Ess's note recorded that she told him that "for some years everyone had been concerned about the undue influence that the Carapetos were making on the family." Mrs Lintott's own note does not record that she said that, but does say that, whilst Miss Good appeared mentally very alert, "last year there had been suggestions that she might be undergoing some sort of bullying," a reference to what Bill Good had told her on the telephone on 6 November 1998. Mrs Lintott's note recorded that she "deduced that Martin Ess was beginning to be concerned about the position and to become somewhat more anxious than he had been." She said in cross-examination that she could not have referred to concerns about undue influence over some years, because she had not known of any such things. The two solicitors agreed that they would go and see Miss Good together, and that was arranged for 15 February. In the meantime, Miss Good had received a brochure from a nursing home through her letterbox. She again told Mr Ess that she had no intention of moving to a home and he assured her that she could not be moved against her will.
60. On 11 February, Bill Good telephoned Miss Good to arrange to take her to a see a nursing home on 20 March, and then out to lunch. He said in evidence that she became very emotional and said she had no desire to go into a residential home.
61. The joint meeting between Mrs Lintott, Mr Ess and Miss Good took place on 15 February. Mrs Carapeto was not present. Mrs Lintott and Mr Ess each made a full note. Miss Good brought up the matter of the nursing home again and Mrs Lintott explained that Bill and Charles Good were anxious that there was somewhere to which Miss Good could go if she needed nursing care, even if only temporarily. Miss Good explained that she wanted Linnells to take over as her solicitors and again explained the background to her wish to recompense the Carapetos in her will. She spoke affectionately of her nephew Bill Good, and said he had been almost like a son to her. Mrs Lintott explained that the family was perhaps not as well off as Miss Good might think, and that in particular Bill Good was not that prosperous. She explained that she had been doing various calculations and made points to the effect that Miss Good had perhaps been overgenerous to the Carapetos in her latest will. She said that if she gave them the house she did not also need to give them money to pay the tax, as that could be paid in instalments over ten years (although she did not explain how she thought the Carapetos could raise the funds to pay the instalments). On the basis that Miss Good instead left the Carapetos just her house, and left her residuary estate to the nephews, Mrs Lintott explained what the nephews and niece would receive under the trusts and such a will. At the end of the meeting, it was left (according to Mrs Lintott's note) that "[Mrs Lintott] would get up to date valuations of the trust fund, and we would then re-work the figures so that Miss Good can see who would get what. Miss Good wants to think about all this. She said again that she was not certain what she wanted to do." Following the meeting, Mrs Lintott and Mr Ess agreed that they "could see little evidence" that any undue influence was being brought to bear on Miss Good by the Carapetos. Mr Ess concluded his note by recording that there "[w]as some difficulty about getting costs out of Miss Good. No-one likes to charge her very much because she was no nice...". The penultimate paragraph of Mrs Lintott's note was that "Miss Good said again before we left that she did not want to cause any trouble or be unkind to anyone."
62. Mr Furness suggested in his submissions that a novel based on the relevant events of 1999 might be entitled "Miss Good's Dilemma" and this meeting is another good illustration of that. Miss Good wanted to benefit the Carapetos, but was also conscious of the claims of her family. Above all, she did not want to upset anybody. At the end of the meeting, she was once again in some uncertainty as to her testamentary intentions and so she wanted to re-consider them.
63. Following this meeting, Mrs Lintott produced some figures and provided them to Linnells. Before coming to them, I should mention an incident on 19 March. Miss Good telephoned Anthony Raggett of Harris Allday, stockbrokers, who had looked after her affairs for about 10 years. She had previously authorised Mr Raggett to forward to Bill Good everything connected with her affairs, and he reported this conversation to Bill Good in a letter of 23 March. That letter recorded that Miss Good had asked why a cheque in respect of certain transactions had not been sent to her bank to which Mr Raggett had replied that he would have been awaiting instructions from Bill Good. It recorded that Miss Good expressed her satisfaction with the advice given by Mr Raggett over years, but that in future she wished to speak to him direct with regard to any suggestions he had to make. It recorded Mr Raggett's awareness that a woman's voice in the background was prompting Miss Good. It recorded that Miss Good handed the phone to the woman, who was to give Mr Raggett details of Miss Good's banking arrangements. It concluded:

"The woman adopted a fairly aggressive stance and I explained that I was not prepared to answer her questions as the matter was of no concern of hers. She then put me back to your Aunt. I feel that during the few minutes that I was on the telephone your Aunt was repeating the utterances of the woman.

I have since received a letter signed by Miss Good revoking her letter authorising me to accept instructions from you."

64. Mr Raggett said in cross-examination that he already had Miss Good's banking details and that is why he was not prepared to discuss the matter with the woman, whom he said Miss Good said was her housekeeper. He was unable to add much by way of explanation in cross-examination. There is no doubt that the woman was Mrs Carapeto.
65. Reverting to the figures which Mrs Lintott prepared, they were summarised in a note dated 30 March prepared for Mr Ess by Mr Michelbacher, a colleague. It reads:

"Attached to this note is a calculation prepared by Penningtons which shows the total of the free estate and the other trusts which Miss Good has a life interest [in] to be £2,179,500. The Inheritance Tax on this sum is £782,600.

The free estate of Miss Good is calculated to be £663,000 and the value of the [E.B.Good] Will Trust where a power of appointment has been exercised by Miss Good in her Will is £814,000 producing a total of £1,477,000 gross passing under the Will ... and the bulk of this will be inherited by Mr and Mrs Carapeto. After Inheritance Tax of £530,350 the Carapetos would benefit to the tune of £946,650 of which £500,000 is the value of the house.

So far as the rest of the family is concerned, the trusts in which they have an interest [have] a gross value of £700,000 upon which Inheritance Tax would be about £250,000.

Should Miss Good decide that the Carapetos inherit the house free of tax, the amount which we have to present to them would be a gross sum of approximately £833,000."

66. That showed that the effect of the January will was to give the Carapetos the house plus other assets of about £445,650 after inheritance tax. The family would receive, under the trusts, about £450,000 after inheritance tax. Armed with this information, Mr Ess went to see Miss Good on 1 April and told her that he had been looking through the figures Mrs Lintott had supplied. His note records that "Miss Good said she was pleased about this as she had been feeling somewhat guilty about what she had done. She feels she might have acted hastily." It does not record that Mr Ess actually explained the figures to Miss Good, although his oral evidence was to the effect that he did explain them, as I find he did. It would be extraordinary if he had not, since the main point of the meeting was to do just that. Mr Ess's note records that he explained to Miss Good that, in the light of the figures, he thought she had been overgenerous to the Carapetos in the January will: and I find that Miss Good must have understood from him the full extent of that generosity. He said it was important to treat them generously, but there was no need to give them as much as she had done under that will, to which she agreed. He made one or two suggestions. He said that if she gave the Carapetos' the house, they might not have enough income to run it and so might anyway have to sell it. She agreed. He then suggested that she might consider giving them a legacy enabling them to buy a house - perhaps £200,000 - plus some money to provide an income for them - perhaps £100,000. Miss Good agreed with this idea, and Mr Ess then suggested that he should do some recalculations to see what everyone would get if Miss Good left the Carapetos £300,000 free of tax.
67. Mr Ess went away and did some calculations. He returned to see Miss Good on 8 April. She was sitting in the garden with Mr Carapeto. She and Mr Ess went into the sitting room to discuss the matter, and she was particularly anxious that no-one should overhear their conversation. Mr Ess reminded her that, when they had last met, she had been reconsidering her testamentary dispositions after seeing the amount of her estate that would go to the Carapetos. His note records that "She confirmed that was the situation and explained her dilemma on wanting to be fair to everybody and not upset anybody at all." Mr Ess explained that, on the current figures, if she left £300,000 to the Carapetos tax free, the three nephews would each receive about £313,000 under the will and the trusts. If she instead left the Carapetos just £200,000, each nephew would receive about £346,000. His note records that he:

"... went over these figures many times with Miss Good who asked about the house. [Mr Ess] said that even if she gave the house to the Carapetos it is likely that they would have to sell it because the costs of running such a house were colossal. [Miss Good] was clearly worried about accommodation for the Carapetos and [Mr Ess] suggested that perhaps there should be a clause in her Will giving them a right of occupation of the house completely free of all outgoings for, say, one year. [Miss Good] liked this idea."

68. Miss Good's instructions at the end of the meeting were that Mr Ess should destroy the January will and prepare a new will for her. She wanted Bill Good and Mr Ess to be the executors.
69. Mr Ess went away and drafted a new will. It named himself and Bill Good as executors. It gave a list of pecuniary and specific legacies, including a legacy of £300,000 to Mr and Mrs Carapeto "to be paid to them when [the house] is sold ...". Clause 5 directed that it was not to be sold for year after Miss Good's death without Mr and Mrs Carapeto's written authority, and they were to be permitted to occupy it for one year rent free, with all household outgoings and insurance being borne by the estate. Residue was left to Jeremy, Charles and Bill Good.
70. On 15 April (a Thursday), Mr Ess returned to the house with the engrossed will. He was accompanied by Frances Woodward and Philip Kimber, both solicitors with Linnells. Mr Ess's note records that he took Miss Good through the will, which she was happy with and executed in the presence of Mr Ess's two colleagues. Miss Woodward's note is fuller, and records Miss Good "twice seeking clarification of what exactly the Carapetos would be getting but then agreeing that that was what she wanted." Mr Kimber's note records that:

"Miss Good went to some length to explain that she was anxious to do 'the right thing' and asked for [Mr Ess's] opinion as to whether or not she had achieved her aim. [Mr Ess] felt that the Will was ideal given her expressed wish to look after all parties fairly and reasonably. ...

A pleasant and amusing followed [sic] the completion of the formalities and Miss Good seemed to be entirely happy that her new Will arrangements were exactly as she wished."

71. That last note was no doubt an accurate record of Mr Kimber's perception of the outcome, although Miss Good's apparent happiness quickly changed to acute distress. Before it did so, I find that even during the preliminaries leading up to the execution of the April will, Miss Good had internal doubts about whether she was in fact "doing the right thing", her particular concern being whether she was doing the right thing by the Carapetos. She was giving them just under a third of what the January will would have given them and, in particular, was not giving them the house. At the moment of execution, she appears to have satisfied herself that the April will was fairer all round, but she appears to have had continuing doubts about it down to that point and she wanted to be reassured by Mr Ess.
72. The lawyers left the house. Miss Good promptly had second thoughts about what she had done. Mrs Carapeto's evidence is that Miss Good told her she felt she had betrayed them, the betrayal being the breaking of a vow she had made to herself in January. Miss Good telephoned Mr Ess and said she had made a dreadful mistake and asked him to return immediately with the April will, which she wanted to destroy. He immediately arranged to return to the house, together with Miss Woodward. Miss Good had also at some point left a further message for Mr Ess on his voicemail (probably after he had left to return to the house), of which a recording was played in evidence. It was a clear, but audibly anxious, message from Miss Good asking Mr Ess to bring back the papers she had just signed because she wanted to tear them up and revert to her previous will. The message finished with the words "There, he should get that", and Mrs Carapeto's voice can be heard saying "Well, yes, and I think he is on his way."
73. When Mr Ess arrived back at the house, Mrs Carapeto let him in. His note records that she told him that Miss Good had said that she had made terrible mistake, and Mrs Carapeto agreed she might have said that. It reads further, in part:

"[Mr Ess] went into Miss Good's living room with Frances Woodward and Mrs Carapeto in attendance. Mrs Carapeto sat down and Miss Good explained that she did not want the Will carried out, [Mr Ess] asked Miss Good whether she had discussed the contents with Mrs Carapeto. She said that she had. [Mr Ess] asked Miss Good whether she wanted [Mr Ess] to continue talking in front of Mrs Carapeto. Miss Good said she did and that she had told Mrs Carapeto everything. Miss Good said that she felt that she been very wrong and reproached herself greatly for having changed her intention of giving everything to the Carapetos. [Mr Ess] said she had nothing to reproach herself for at all. [Mr Ess] explained that Miss Good had asked him to go and see her and [Mr Ess] had gone through the figures. It was true to say that Miss Good did not know exactly what monies were involved when she had given the initial instructions. Mrs Carapeto interjected and said she knew exactly what the sums were involved. [Mr Ess] expressed some surprise about this.

At one point Mrs Carapeto said that the family had obviously been speaking to [Mr Ess] and had prevailed upon him to change Miss Good's mind. [Mr Ess] rebuked Mrs Carapeto very strongly about this and said this was absolutely wrong. [Mr Ess] acted for Miss Good and would do exactly what she wanted him to do. If Miss Good told him to make a Will leaving everything to a Cats Home thus he would do.

Miss Good explained how she was willing to try and be fair to everybody but it was very difficult. She explained her dilemma. ...

Miss Good specifically instructed [Mr Ess] to tear up the Will which she had made earlier that afternoon. This he did in front of her.

After a long discussion it was told that it was better to adjourn the matter for two weeks. [Mr Ess] said that he would be happy to come and see Miss Good at any time and do exactly what she wanted. If she did not wish to instruct [Mr Ess] again he would quite understand. Miss Good was kind enough to say that she had great confidence in [Mr Ess] and found him approachable. She was pleased to instruct him and she would come back to him.

On the way out Mrs Carapeto apologised for having said things which might not have been true namely that [Mr Ess] was being influenced by the family ...".

74. Miss Woodward also made a full note. It referred to:

"Miss Good then very articulately explaining the confusion that she had with the Will. She waned to be at peace in herself whilst also being fair to everybody. Miss Good acknowledging that the family had never been unkind to her but she did feel that their emphasis was on their own lives which was understandable. However the Carapetos had become almost an alternative family for her. ... Miss Good stating that she wished to have a period to reflect on what to do."

75. The outcome of the meeting was that the April will was revoked by destruction with an hour or so of being executed. Mr Ess advised a cooling off period before Miss Good embarked on further testamentary activity. In cross-examination, he said that the meeting was a quite traumatic one and that Miss Good was very upset about what had happened. He said her conduct was consistent with that of someone who had changed her mind, but saw no evidence suggesting that the Carapetos had pressured her into it. He did not know why she had changed her mind, but said that she was once again troubled to do the right thing by everybody and was worried about the whole affair. Miss Woodward confirmed that Miss Good had clearly changed her mind, but could not say why. Mr Ess was asked in re-examination about Mrs Carapeto's interjections, and said his surprise expressed in his note reflected that he believed it was only after she had made the January will that Miss Good became aware of what wealth she had at her disposal. This was, I find, a reference to the explanations he had given her on 1 April, and I find that was the first occasion on which she had a clear up to date understanding of her disposable wealth.

The May will

76. The effect of the revocation of the April will was not, as Miss Good may perhaps at one point have thought, to revive the January will, but to leave her in a state of potential intestacy. It appears she came to realise that, because by Monday 19 April Linnells had been replaced by another firm of solicitors, John Summers & Co ("Summers"), and Mr Frankum of that firm visited Miss Good on that day in order to obtain her instructions for her will.
77. Precisely how Mr Frankum came to be instructed is unclear. It is at this point in the story that Mrs Carapeto's son-in-law, Kamran Brennan (the former co-claimant), claims to have assumed a central role. He is about 40, came to this country in 1976, is a naturalised British citizen and is a chiropractic doctor. He first met Miss Good in 1983 through his friendship with Ruth Carapeto, whom he met at London University. He and Ruth married in 1988 and his evidence is that over the years he came to know Miss Good well. He too gave evidence as to the close and loving relationship between Miss Good and the Carapeto family.
78. By 1999, Ruth Brennan was expecting her first baby, due in July. The birth was to be at the John Radcliffe Hospital in Oxford - Mr Brennan says this was at Miss Good's suggestion - and he says that, in preparation for it, he and Ruth were at the house more often than usual. According to his evidence, it was during one of these visits that Miss Good asked him to become her "knight in shining armour" and take over the management of her financial affairs. He devotes some 20 paragraphs of his 64-paragraph statement describing in close detail the course of what was apparently an extended discussion with Miss Good after lunch one day, when she broached him with this proposal, a discussion which he describes as having been in two distinct halves, with apparently quite a gap between them. The need for the break was because, he said, at one point Miss Good broke down, wept, held his hand and expressed herself as feeling betrayed by her family. Mr Brennan says he thought it appropriate to defer the rest of the meeting in view of her distress. He says he resumed it "later that day". He explained in his evidence how, during the resumed meeting, she told him she had given in to family sentiment and executed a will in April in favour of her nephews, leaving £300,000 to the Carapetos. He explains how she said she was "deeply unhappy as she felt foolish to have 'given in to a vague rush of emotion'" and how she asked Mr Ess, on the same day, to tear up the April will. He said Miss Good told him (Mr Brennan) that she wanted to reinstate the January will and asked him to recommend a good solicitor from outside Oxford. Mr Brennan replied that he had used Summers, whom he recommended to her. He says she asked him to arrange for them to come and see her as soon as possible. She also asked him to take over the management of her financial affairs, and he says that, with some reluctance, he agreed to do so, limiting the nature of his activities to (basically) keeping an eye on her bank accounts and liaising with the various professionals running her affairs. He says his tasks included ensuring that he would do what he could to see that she was never moved from the house unless this became a medical necessity.
79. Mr Brennan did take over the management of Miss Good's affairs and I accept that at some uncertain date he did have a discussion with Miss Good during which she opened up her heart to him and asked for his help. But there are some odd features about his evidence and, in particular, as to the date of such discussion. It is of course clear that it post-dated the destruction of the April will, which happened on the afternoon of Thursday 15 April. It is also clear that Mr Brennan was the source of the introduction of Summers, who were on the scene by Monday 19 April. Logically, therefore, the most probable time for the discussion would be the afternoon of Friday 16 April. It could in theory have occurred over the weekend of 17/18 April, but that is unlikely since it is improbable that Mr Brennan could have contacted Summers during the weekend and arranged for Mr Frankum to be at the house on Monday 19 April.
80. The oddity in Mr Brennan's witness statement is, however, that its language conveys the impression that his meeting with Miss Good was some time - at least several days, perhaps longer - after the destruction of the April will. It does not, in my view, give the impression that it was held the following day, whereas if it had been it is inconceivable that Miss Good would not have conveyed to Mr Brennan - or that he could have failed to understand - that the dramatic events surrounding the making and revocation of the April will had happened the previous day, something which I would then expect to be reflected in his witness statement. A further oddity is that, having said in his witness statement that it was he who suggested Summers to Miss Good, and that she asked him to arrange for them to come and see her in Oxford, Mr Brennan said in cross-examination that he had no recollection of whether it was he or his wife who actually contacted Summers. I regard that as a surprising omission of recollection bearing in mind the precision with which Mr Brennan claims to recall the course of meeting with Miss Good. Making contact with Summers was the very first task he was asked to carry out by Miss Good and I should have expected him (a) to have done it personally and (b) to have remembered doing so. Mr Brennan's evidence also presented the difficulty that the gap which his witness statement suggested occurred during the two parts of his discussion with Miss Good might have been of such duration as to raise a risk that the meeting might only have resumed after Summers had closed for the evening. In cross-examination, and no doubt sensitive to that, Mr Brennan suggested that by "later that day" in his witness statement he meant that there was only a slight break, perhaps of 10 minutes or no more than half an hour. In my view, that suggestion changed the sense of what he had said in his witness statement.
81. As I have said, I accept that Mr Brennan did at some stage have a discussion with Miss Good about assisting her in the management of her affairs. I do not, however, accept that it took place between 15 and 19 April, but find that it only took place later. On the other hand, I do find that it was either Mr Brennan or his wife who contacted Summers between those two days and arranged for Mr Frankum to visit the house on 19 April. My rejection of Mr Brennan's evidence as to the circumstances in which this came about means that there is no evidence properly explaining how Summers came to be approached. The probabilities are, however, as I find, that there was a discussion between Miss Good and Mrs Carapeto about engaging the services of a new firm of solicitors, resulting in Mr Brennan being asked to make a suggestion. As a result of that, someone rang Summers and arranged for a representative of that firm to come and see Miss Good on Monday 19 April.
82. The solicitor at Summers who came to see Miss Good was Martin Frankum, who became a partner in Summers on 1 May 1999. His evidence was that someone - he did not know who - had contacted Mr Summers, who had in turn then asked Mr Frankum to deal with it. Mr Summers had previously acted for Mr Brennan, but Mr Frankum had not. Mr Frankum said that, before going to see Miss Good, he had been told of the revocation of her prior will and that she wanted to make a new will, and I find that this was relayed to him by Mr Summers, who had apparently been told something of the background. Mr Summers did not give evidence.
83. Mr Frankum visited Miss Good on 19 April. He was with her for two hours. He made a note which records that he was alone with Miss Good for the first 15 minutes, during which he ascertained that she wanted to leave certain specific legacies to family members and

"....that she would like the remainder of all real and personal property to go to Mr and Mrs Carapeto who look after her. Miss Good explained that they had looked after her very well for the last twenty years and still continue to do so so and that the Property should be left to them in order to award [sic] their achievement. ...

From the moment Mrs Carapeto met Miss Good some twenty years ago they have showed themselves to be more than helpful and in fact have been like a family to her and this is why she wanted to leave the house and personal gifts to them. [Mr Frankum] quickly understood that Miss Good had the full mental capacity in which to make a Will and believed that she fully understood what was being spoken to her about [sic].

It was only after I had initial instructions from Miss Good that Mr and Mrs Carapeto then joined in the meeting." (My emphasis in the first two paragraphs).

84. Mr Furness pointed out to Mr Frankum the apparent conflict in the first two quoted paragraphs as to Miss Good's testamentary instructions. The point was a fair one, and added uncertainty was provided by the client questionnaire on which Mr Frankum also made some notes at the meeting. He there noted that the "house & contents" were to be given to Mr and Mrs Carapeto "if still in service & not under notice to go", which is perhaps closer to the instruction recorded in the second quoted paragraph. Mr Frankum was disposed to accept in cross-examination that her instructions at that point were to give the Carapetos the "house & contents."
85. Following the obtaining of those instructions, Mr and Mrs Carapeto joined Miss Good and Mr Frankum for tea, and there was a discussion between the four of them lasting about an hour and a half. Mr Frankum said it was in the nature of general chat. At some point in the meeting - he could not recall whether it was before or after the Carapetos joined them, but in re-examination he said it was more likely that it was before - Mr Frankum also made some notes intended to form the basis for a draft letter accompanying Miss Good's new will, and explaining her reasons for making it. These refer to the Carapetos' 20-year tenure and include the comment that "They have been like a family to you - I call them my adopted family". Mr Frankum recommended such a letter because he had in mind the possibility of a challenge to the validity of the will.
86. Mr Frankum then went away and drafted a new will for Miss Good. He said in re-examination that he would have prepared it first thing the following day. He sent her the draft on 23 April, under cover of a full and careful explanatory letter. His letter explained each clause of the draft. The draft will appointed Mrs Carapeto and Mr Brennan as executors. It left various specific and pecuniary legacies to charity and family members. It left Miss Good's residuary estate to Mr and Mrs Carapeto. Mr Frankum had a copy of the January will at the time he drafted it, as well as copies of Penningtons' letter of 1 July 1996 and Linnells' letter of 26 January 1999. His letter explained the provision in favour of the Carapetos as follows:

"Apart from these gifts you give the remainder of all your real and personal property to Mr and Mrs Carapeto jointly. Your current Will [a reference to the January will] provides that the gift is to be made to them in equal shares. This has the effect that if Mrs Carapeto was to die the half share left to Mr Capareto would not automatically go to Mrs Carapeto. I do not think this is what you wanted but this is what the Will currently says. It is my understanding that if Mr Carapeto was to die then all of your estate would go to Mrs Carapeto. Would you please confirm this.

We did discuss that you do need to give some thought as to what happens if Mr and Mrs Carapeto were to die before you die. I would be grateful if you would kindly let me know what you have decided."

87. If, therefore, Mr Frankum understood on 19 April that Miss Good intended to give the Carapetos the "house & contents" by 20 April he had drafted a will giving them her residuary estate. It is not clear that the documentary evidence includes a copy of the draft will so sent. Mr Frankum suggested in cross-examination that it was one which is described as "Draft ", but I find he was wrong about that since that draft includes a substantial provision in favour of the Carapetos daughters, which reflected Miss Good's instructions following the request made by Mr Frankum in the last quoted paragraph, and which he referred to in a subsequent letter he wrote on 18 May, to which I shall come. The April letter also shows that Mr Frankum did not have a comprehensive understanding as to the extent of the estate of which Miss Good would be disposing by her will, or as to the impact of inheritance tax on it. He expressed in it his doubt that money in the E.B. Good Will Trust (and he referred to its 1996 value of £298,937, he had no current value):

"... would be enough to settle any inheritance tax that will be payable on your estate and therefore unless Mr and Mrs Carapeto could obtain some kind of finance in order to pay off the tax that remains outstanding there would be a possibility that they would have to sell [the house]. Obviously I am only speculating and it may well be that Linnells have altered the trust so that it passes into your estate rather than to Ann and Alan Crawley.

As I said at our meeting I have not advised you on any aspects of inheritance tax which is payable on your estate or indeed on any provisions to avoid inheritance tax. I have simply carried out your instructions in re-drafting your Will to a form you are happy with."

88. On the same day as that letter, Miss Good rang Bill Good and left a message on his answering machine. A recording of was played in evidence. It was a longish message, delivered quite rapidly but in a considered and articulate manner. She was conveying, as tactfully as she could, that she thought it best if she could be left alone for a while, free of family visits, although it also conveys a sense of the real and obvious affection Miss Good had for Bill Good. She was, in particular, cancelling a visit he had planned to make. She said, in part "I appreciate that you may at times feel a bit anxious, or something, but I am always pleased for you to ring me and say 'oh are you all right' and just have a chat, but I don't really think at the moment we should see each other. Let things calm down, let the waters calm. I want to be left happily, enjoying my little, what little pleasures that I do have. I play with the children, I have them down individually or with others, and I enjoy it. I have Nati and Vasco [Mr and Mrs Carapeto] - both very kind and good to me - so please leave me alone for the moment, and let everything, let the waters settle." At the conclusion of the message, Miss Good is recorded as saying "Bye dear, Right?" and Mrs Carapeto as responding "Sounds good." Miss Good then said "How about that?" The defendants point to this as a further example of what they say was prompting by Mrs Carapeto. More bluntly, their suggestion is that Miss Good's words are really Mrs Carapeto's.
89. On 8 May, Mr Frankum received a fax from Miss Good authorising him to discuss any matters relating to her estate with Mr Brennan. The fax was typed - presumably by Mr Brennan - and signed by Miss Good. Mr Brennan and Mr Frankum had a meeting on 11 May, which was the first time they had met. Mr Brennan told Mr Frankum that Miss Good had decided to make a lifetime gift to the Carapetos of her house rather than to devise it them by will, provided she could live there for the rest of her life. Mr Frankum's note records that he discussed the draft will with Mr Brennan and had made certain amendments to it which Miss Good had agreed. His note does not detail them. On the same page of the attendance note is a manuscript note Mr Frankum made of a telephone conversation he had with Miss Good on 12 May. It reads:

"Talking to Miss Goode [sic] re concerns in will & whether or not to transfer the property to Mr & Mrs Carapeto. Miss Goode said she would think about this overnight.

Miss Goode rang to confirm go ahead as my conversation with Kamran [Mr Brennan]".

90. The latter part of the note does not tell us very much, and Mr Frankum could not expand on it in his oral evidence save to say that he probably expressed concerns about the proposed lifetime transfer. A fuller explanation appears in his letter to Miss Good of 18 May, which he wrote "[f]ollowing our telephone conversation last week ... [and] to confirm your instructions concerning the alterations to the Will and other matters." The letter explained the amendments as including (i) the deletion of a gift of jewellery, (ii) the deletion of the provision that the gifts to the Carapetos were conditional on their still being in service at her death and (iii) the making of substitutional gifts to the Carapeto children. Mr Frankum explained that he had discovered that the house was held by trustees, and expressed his uncertainty as to whether Miss Good had the freedom to make a lifetime gift, a matter he said would need to be investigated. His letter recorded that she had agreed that Mr Brennan was to have her enduring power of attorney, and he explained what that meant. He invited her to read both the power of attorney and the draft will carefully. The letter does not say so, but the inference is that both were enclosed with it. In the event, no lifetime transfer was ever made.
91. That letter was posted on Tuesday 18 May and would in the ordinary course have arrived on the following day, 19 May. On 19 May, Mr Frankum returned to the house with the engrossed will in order for it to be executed. He arrived in the early afternoon. Miss Good was in the garden with Mr Carapeto and Mr Frankum helped him take her into the house. Mr Frankum's note records that he was present "with an independent witness when he explained the contents of the Will and Miss Good in both [Mr Frankum's] opinion and the independent witness's opinion appeared to understand the contents of the Will and its effect." He said in his witness statement that he "explained the contents to her face to face and went into detail concerning the fact that she had only provided small gifts to her nephews and niece out of the whole estate." The "independent witness" was Dorothy Berry, to whom I have referred earlier, and Miss Good executed the will in her and Mr Frankum's presence. She also executed the power of attorney in favour of Mr Brennan. Mr Frankum said in his witness statement that he was in no doubt that "the Will correctly expressed her true wishes and that she was not under the undue influence of any third party at the time that her Will was executed or at the time that she gave me instructions for the Will."
92. Mr Frankum said in re-examination that he went through the will with Miss Good clause by clause and that she agreed with all of them. He said that Miss Good confirmed she had received his letter of 18 May: he recalled her mentioning it. Mrs Berry confirmed in her evidence that Miss Good "knew exactly what she was doing [when executing the will] and spent some time on the matter and discussed it fully with her solicitor. ... Miss Good was in control of the meeting and it was not rushed at all and at no time can I say there was undue influence upon her." Mrs Berry was present throughout Mr Frankum's meeting. Her evidence in cross-examination was that it was Miss Good who had asked her to be present to witness the will. She said that, until Mr Frankum read the will out to Miss Good, she had no idea that the Carapetos were to inherit under it. She also expressed her views about alleged undue influence a little more positively: she said she had no reason to suspect any because there was none.
93. Mr Frankum admitted in cross-examination that, at the time of the execution of the May will, he had no comprehensive knowledge of the extent of Miss Good's estate. He said he knew it comprised trusts, the house and contents, and he knew also that Miss Good had a share portfolio of her own. He did not, however, have any accurate idea of the values involved, and in particular did not know that Miss Good's shares were worth some £600,000. He agreed that he had no reason to believe that he had been correct in advising Miss Good that the assets in the residuary estate (apart from the house) might not be sufficient to pay the inheritance tax. It was put to him that Miss Good's instructions were simply to give the house and contents to the Carapetos and that he did not appreciate that a gift of the entire residue - which is what the May will gave them - might give them more than Miss Good intended. He responded that his instructions were that Miss Good wanted to give the Carapetos everything, which I interpret to mean the residue after the various specific and pecuniary legacies. He said that this is what she wanted not just at the time when the May will was executed, but at the time when he took his original instructions on 19 April, a point about which his oral evidence was, I think, not wholly consistent. As I have pointed out, there is some internal inconsistency in Mr Frankum's notes of her then instructions, although the first paragraph of his attendance note does refer to a gift of residue; and of course that was reflected in the will he drafted the following day and in the will as executed.
94. Mr Frankum learnt more about Miss Good's estate as a result of a letter written to him on 26 May by Mrs Lintott on 1 June. This was written in response to a letter of 20 May, one signed by Miss Good and authorising Penningtons to provide Summers with information about her affairs. A similar letter was sent to Mr Ess. The Penningtons letter enclosed the valuations of Miss Good's disposable assets which Mrs Lintott had provided to Mr Ess. There is no need to detail them again, save to note that the bottom line showed that net value of Miss Good's disposable estate after inheritance tax was likely to be about £946,000. This assumed that the house was worth about £500,000. The position, therefore, was that Mr Frankum now appreciated for the first time that, in addition to the house, Mr and Mrs Carapeto would receive personalty worth about £446,000. He admitted in cross-examination that he had not previously appreciated that they would receive anything beyond the house, and he was prepared to admit that he had no reason to suppose that Miss Good understood the position any better. He did not, however, go back to Miss Good and explain the position. This is perhaps surprising bearing in mind that, on 14 June, he spoke to Mr Ess on the telephone - a follow up to his letter of 20 May - and recorded in his attendance note that:

"[Mr Ess] was not totally satisfied that Miss Good was not acting under duress in his professional opinion. He feared that there were a lot of undercurrents, and that she was completely dependant [sic] on the Carapeto's [sic] and that she was terrified of upsetting them.

[Mr Ess] stated that her immediate family were worried about the whole situation and indeed as was Lesley Lintott who was concerned enough to meet with Miss Good at the time [Mr Ess] also saw her. [Mr Ess] concluded as had three members of staff in his office that she was acting under duress and the family were concerned about her."

95. The information so recorded by Mr Frankum ought to have caused him some concern, although it painted a picture materially different from that later contained in the evidence given to me by the relevant members of Linnells. Indeed, it did cause Mr Frankum some concern, and on 15 June he had a meeting with Mr Brennan at which he mentioned Mr Ess's expressed concerns. His attendance note records that:

"[Mr Frankum] explained [Mr Ess's] concerns about the execution of the Will. [Mr Brennan] said that there had been extreme pressure by Miss Good's family in order to change the Will and that [Mr Frankum] himself had satisfied himself (which [Mr Frankum] agreed) that this was indeed Miss Good's wishes."

96. Mr Frankum said in cross-examination that he was satisfied that, at the time of the execution of the will, Miss Good was friendly and happy and that no duress was being exerted on her. He said that on both occasions he met her she was chatty, alert and bubbly and that he had no reason to doubt her wishes.

Subsequent events

97. I heard a good deal of evidence as to various incidents which occurred after the May will, but for the most part I regard their relevance as marginal. The question for me is whether or not the May will was invalid on the particular grounds which the defendants allege - want of knowledge and approval or undue influence - and evidence as to later events is unlikely to have a direct bearing on these questions.
98. However, I do no regard such evidence as wholly irrelevant. In particular, to the extent that the defendants' case is, in part, that the Carapetos coerced Miss Good into making her May will, I regard it as of some assistance to see whether, and to what extent, Miss Good was or was not in personal control of her life during this period. The evidence tends, in my view, to show that she was, although I add that the evidence of Dr Winner supports the conclusion that whilst she was in hospital in August 1999 she was rather more confused than at other times, although this is not surprising. She had suffered a fall resulting in a broken leg and found herself removed from the haven of the house that she loved to a hospital that she hated.
99. I heard considerable evidence about a tea party at the house which I find was on 29 May, although Mrs Carapeto asserted it was in June. Bill Good was there, as were Miss Good, Mr and Mrs Carapeto and Susanna Anca. At some point Bill Good commenced what he believed was a covert recording of it, although Mrs Carapeto appears to have been aware of what he was doing because at one point in the transcript (which was played in evidence, and I referred to it earlier) she says "I don't mind if he is taping it. I am fed up with all the ... threat over the phone from members of the family." Both sides claim to derive support for their respective cases from the recording. The first part reflects a disorderly exchange in respect of which the defendants make the point, with some justification, that the tape shows that one or other of the Carapetos sought effectively to speak for Miss Good, who appears to have had a difficulty in getting a word in edgeways. The essence of the debate appears to be that Bill Good was asking to be left alone with Miss Good, whereas the Carapetos were asserting that they were there because Miss Good had asked them to be. This was consistent with Miss Good's apparent concern by this stage about being pressurised by the nephews with regard to her testamentary activities. Interestingly, and after three pages of transcript when no-one has mentioned anything about wills, Bill Good is recorded as protesting that "I don't want to talk about the will, aunty, I actually just want time to be with you", which would suggest that he at least had the subject of her will in mind. But by the concluding part of the recording, Miss Good had obtained the ear of the gathering and embarked on what was apparently a long address. Bill Good chose to switch the recorder off just as she was getting into her stride, but the recorded part appears to be the beginning of an explanation of how she had, in her words, "grown into this [the Carapeto] family". She expressed herself lucidly, and I find it difficult to accept that her expressed sentiments were other than her own, unprompted feelings. So far as they go, they appear to be directed to showing how her circumstances over the previous 20 years had resulted in the forming of closer ties with the Carapeto family than with her own family.
100. Changing subjects, a consequence of the take-over by Mr Brennan of Miss Good's affairs was that Miss Good changed accountants. For decades she had used Russell New, but now she instructed David H Fishel. Sylvia Spencer, a managing partner of Russell New, telephoned Miss Good to enquire why. Miss Good declined to discuss the matter at any length, but I find that she knew perfectly well what Miss Spencer was talking about and she indicated to her in brief terms that her mind was made up about the change.
101. Dr Silvester is a general practitioner who visited her at home on 28 and 31 August, following her return home from hospital. His evidence is that she was alert, unconfused, glad to be home and fully able to make her own decision that she wanted to stay there and, in due course, die there.
102. It is of some relevance to pick up the events following Mr Bingham's visit to Miss Good in September 1999, when she gave him instructions directed at imposing some fetter on the nephews' activities. Mr Bingham's attendance note of the meeting on 7 September - recording instructions which he said all came from Miss Good herself - is a full one, running to over four pages. It reflects that Miss Good gave him a full and accurate family background; that she decided to make her January will in favour of the Carapetos "realising that if she died they would be homeless". She also considered that all her own family were doing well and were well provided for. It records that, following the January will, she noticed a change in her nephews' attitude towards her: they were annoyed that she should have given her money to strangers. The note records that "Miss Good said that she did not consider the Carapetos strangers and decided to leave the house to them as the nephews were well settled and well established in the world." The trouble from the nephews started in February, when it was obvious someone must have told them she had changed her will: "[t]hey were angry, very angry." The note then refers to the arrival at the house of nursing home brochures, which upset her. It records that there came a time when the nephews were accusing the Carapetos of preventing them from visiting Miss Good, but that she, Miss Good, did not want them bothering her. It records that they came so many times to see her in hospital that she had to ask them to leave. It contains the following passage:

"Everyone seems intent on removing Miss Good from her own home. She wanted to know the reason for this. Everything has changed since February. She does not like the unpleasantness and does not want to have it anymore. She wants to live in peace and quiet with her neighbours. She does not want to be bothered with letters, calls or visits. She is anxious the whole time and does not want to open the door to them. She wants to be left in peace to be carefully looked after with the right help and she is very happy with Mrs Carapeto. She does not want to leave her own home".

103. The note records that Miss Good asked Mr Bingham to obtain an injunction restraining family visits. He said that in the first instance he would write a letter to them. He drafted a letter to send to the nephews. He returned to the house on 17 September and saw Miss Good in private when he went through the draft. He again made a full note. It recorded that Bill Good had turned up at the house with a police officer, and that Miss Good had refused to see him, but had seen the police officer and explained why she did not want to see her nephew. It recorded that Mr Bingham was concerned that Charles Good had suggested she had been the victim of undue influence, which might result in a challenge to her will. It recorded the background to the making of the May will. The recorded explanation is a long one, of more than four pages. Its thrust is that she had given her main asset, her house and contents, to the Carapetos, who had looked after her for 20 years. It set out the very comprehensive services they had provided for her. It dealt with her attitude to her nephews, which I interpret as being primarily one of disappointment at their change of attitude towards her following the January will.
104. On 7 December 1999, Mr Bingham returned to the house in order to take a statement from Miss Good as to her reason for making the May will. He duly prepared it, and Miss Good signed it on 15 December. It was counter-signed by Dr MacLennan (her general practitioner) and Dr Rupert McShane (a consultant in old age psychiatry at the Churchill Hospital, Oxford) who both attended her on that day and confirmed that it was clear she understood her statement. They both gave evidence about that and Dr McShane said that he was satisfied that he could see no reason to suspect that the Carapetos had coerced Miss Good into making the May will, and he said that her opinions seemed to be very much her own. Miss Good explained in the statement that in January she had become poorly and realised that, if she died, the Carapetos would become homeless. She regarded them as her adopted family and particularly wanted to give them the house. Following this, the nephews found out about it and brought moral pressure on her and told her she was being unkind to the family. She said she was astounded, but gave in to the family pressure and made the April will. Having done so, she realised she had given in to false family sentiment whereas:

"I ... had wanted to leave my estate to the people who had been looking after me as if my own family and that is the reason I made the will in January. It was not as if anyone was wanting in the family and I let family sentiment swamp me. ... I therefore instructed new solicitors, [Summers], to prepare my last will which I executed on the 19th of May 1999 leaving the residue of my estate to the Carapetos. They are the people looking after me consistently day by day and any little thing they have done for me. They have done their duty looking after me properly and for this reason I felt very stupid giving in to a vague rush of emotion. I bitterly regretted changing my will so I wanted it changed back. I did so deliberately and without pressure from the Carapetos at all. My gift to them comes from my feelings towards them and I deliberately did what was proper and changed my will back to what I wished it to be. I confirm I did so entirely independently and of my own free mind. ... I wish to leave the house and funds to the Carapetos and they will have to pay what tax there is due. I know that I can at any time revoke my last will, change or make a new one. ... I am not going to be pressurised again and I have instructed my nephews not to contact me unless and until I wish to contact them."

105. Miss Good died shortly afterwards, on 3 January 2000. Mr Bingham's evidence was that he was left in no doubt that the May will was made of her own free will.

The issues

106. It is common ground that Miss Good had testamentary capacity at the time she made the May will. It may, however, be of help to record what that agreement reflects. The classic definition of testamentary capacity is contained in the judgment of Cockburn CJ in Banks v. Goodfellow (1870) LR 5 QB 549, at 565. The judge said:

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

107. The defendants accept that Miss Good passed that test when she made the May will. But their case is that she did not know and approve its contents, alternatively that, in making it, she was the victim of undue influence practised on her by the Carapetos.

Want of knowledge and approval

108. The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion, something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. The relevant standard of proof is, however, simply by reference to the balance of probability: see Fuller v. Strum [2001] EWCA Civ 1879; [2002] 2 All ER 87, Court of Appeal.
109. Mr Furness submitted that the court's suspicion with regard to the May will ought to be considerably excited, particularly if it is not prepared to accept Mr Brennan's evidence as to how it came about that Summers were instructed on behalf of Miss Good.
110. As I said at the outset, Mr Chapman accepts that the Carapetos were sufficiently involved in the events leading to the making of the May will to cast on Mrs Carapeto the burden of proving the requisite knowledge and approval on the part of Miss Good. He also submitted, however, that the degree of the court's excitement ought to be at the lower end of the scale. This was not a case where the Carapetos themselves procured the execution of the will. They did not, for example, simply draw a new will in the form of the January will and present it to Miss Good for execution. They arranged for Summers' representative - Mr Frankum - to attend her to deal with her testamentary instructions and thereafter he gave her his own independent advice about the matter. He had not previously acted for anyone connected with the Carapeto family.
111. Mr Chapman urged me to accept the entirety of Mr Brennan's evidence relating to the instructing of Summers, although I have explained the extent to which I decline to do so. I do not, however, regard this as materially weakening the thrust of Mr Chapman's point. As I have said, I regard it as probable that the initial approach to Summers was made in accordance with Miss Good's instructions. Even so, I agree that the burden is still on Mrs Carapeto to prove that Miss Good knew and approved the contents of the May will.
112. Mr Furness submitted that she failed to discharge this burden. The essence of his submission was that what Miss Good had wanted to do as from January 1999 was to leave the Carapetos the house plus sufficient money to pay the inheritance tax. The January will had been in the form it was because of what appears to have been an erroneous assumption, by both Miss Good and Mr Ess, that the Carapetos would have to be given the entire residuary estate if they were to be able to pay the tax and retain the house. Mr Furness submitted that Miss Good's instructions to Mr Frankum on 19 April 1999 were still essentially the same, namely that she wanted to give them "the house & contents", the note he made in his questionnaire, although his attendance note summarises her instructions in two different ways.
113. Mr Frankum was disposed in cross-examination to accept that, at that stage, Miss Good's instructions were confined to giving the Carapetos the "house & contents". It does, however, appear to me improbable that those were her instructions. It is clear that Miss Good was well aware of the tax charge to which a gift of the house and contents would subject the Carapetos, and a gift merely of the "house & contents" would not provide them with the money to pay. Moreover, in my view a rather better guide as to what her testamentary instructions really were is to be found in the form of will which Mr Frankum in fact - and very promptly - drafted for her, which was one which left her entire residuary estate to the Carapetos.
114. But even if that draft did not in fact reflect Miss Good's instructions of 19 April, I find that there is no doubt that, by the time she came to execute the will on 19 May, she understood that the effect of her will as drawn was that, subject to the various specific and pecuniary legacies, she was leaving her entire residue (including the house) to the Carapetos. Mr Frankum confirmed that she understood that, and I accept his evidence. He had also written his explanatory letter to her of 18 May, which spelt the position out, and I find that, by the time she executed her will, she had received and read that letter. Her intellectual capacity is not in question and I find that not only did she understand that she was giving the Carapetos her entire residuary estate, that is also what she wanted to do.
115. This is, however, not the end of Mr Furness's point because he says that it is not enough that she may have understood that she was giving her residue to the Carapetos, or that she intended to do so. It is also necessary for the Carapetos to show that she understood the effect of such a gift. The point arises because its effect on the figures is that she was giving the Carapetos the house plus some £450,000 after the incidence of inheritance tax. Does the evidence show that she also understood that?
116. Mr Furness recognised that in many cases it will not matter whether the testator has any precise understanding of the value of his residuary estate: he will simply want to bequeath it in a particular direction regardless of what it may be worth. But he said that in this case the circumstances are different. This is because the dilemma with which Miss Good was grappling in the early months of 1999 was as to how to do right by both the Carapetos and the family, and so respond fairly to their competing claims on her bounty. If, says Mr Furness, Mr Frankum had told Miss Good on 19 May that, after the payment of the tax, the effect of her will was to give the Carapetos some £450,000 in addition to the house, would she have made the same will? Or might she have returned to the drawing board, with a view to directing some part of her residue to the family?
117. The question is well raised, and I accept in principle that, in an appropriate case - of which this is an example - proof of the requisite knowledge and approval can and will also require proof that the testator understood not just the nature of the testamentary provision he was proposing to make, but also its effect. Wintle v. Nye [1959] 1 WLR 284 provides House of Lords authority for that, although Mr Furness accepted that that case was a more extreme one on its facts.
118. The answer to the question is not entirely straightforward, because it is clear that Mr Frankum did not have any understanding of the relevant values at the time of the May will. It follows that he could not - and of course did not - advise Miss Good as to the effect of her gift of residue. His own, ill-informed view expressed to Miss Good in his letter of 23 April was that there might not be sufficient in the estate to pay the tax, and that the Carapetos might have to sell the house. However, his letter reflected that he had no up to date information. Given the obvious sensitive of the matter of Miss Good's will, I regard Mr Frankum's failure to take steps to ascertain the value of her estate and discuss the effect of her will with her as amounting to a material shortcoming on his part.
119. If the matter rested there, I consider there would be much to be said for the view that the claimants had not discharged the burden of proving the requisite knowledge and approval of the contents of the will. But it does not. What cannot be ignored is that Miss Good was a highly intelligent woman with testamentary capacity. This included a capacity to understand the extent of the property of which she was disposing by her will, and that extent had been fully explained to her just a few weeks before by Mr Ess, on 1 and 8 April. I find that Miss Good must have understood from his advice on 1 April the true effect of her January will (on which the May will was modelled) and it was in that context that he advised her that he considered she had been overgenerous to the Carapetos in the January will. It was obvious from what he was then advising her that a gift of residue would not necessitate the sale of the house in order to pay the tax. One of the things he mentioned to her was that a gift merely of the house, but free of tax, might mean that the Carapetos would still have to sell it because they could not afford the running costs, a point he repeated on 8 April. His note of the latter meeting is that "Miss G was clearly worried about accommodation for the Carapetos ...". She can only have understood from him that, if she wanted to give the Carapetos both a house and the prospect of living in it, she would need to give them the house, plus the money for the tax, plus money to meet the expenses of the house. I find that, as a result of the meetings on 1 and 8 April, Miss Good had a proper understanding of the values of the assets in her estate and, therefore, of the effect of a gift of residue to the Carapetos. In my view, there is no basis for a conclusion that Mr Frankum's subsequent letter of 23 April - in which his own ignorance of the asset values is apparent - would have caused Miss Good to forget what Mr Ess had explained to her earlier the same month.
120. All this being so, the question comes to this: is it, or is it not, probable that on 19 May 1999 Miss Good understood not just the contents of her will, but also the financial effect of the gift of residue? In my view the answer to that question is yes. I find, therefore, that the claimants have proved that at the time she executed the May will she knew and approved its contents and understood its financial effect. The net result may well be that Miss Good made a very generous disposition in favour of the Carapetos, and that there was scope for her also to make at least some quite generous provision for the family. But I find that the will she made is one she both properly understood and intended to make.

Undue influence

121. Mr Furness accepted that the burden of proving that the May will was procured by undue influence on the part of the Carapetos lies squarely on the defendants. He disclaimed any suggestion that in circumstances such as those of the present case there is any scope for a presumption that undue influence was brought to bear on Miss Good, such that the burden is on the Carapetos to rebut it.
122. In this context, undue influence means coercion. The defendants have to show that, one way or another, the Carapetos so manipulated Miss Good that she felt she had no choice but to make the May will. In Wingrove v. Wingrove (1885) 1 PD 81, Sir James Hannen said in the course of his address to the jury (at p.82):

"To be undue influence in the eyes of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, 'this is not my wish, but I must do it.'...

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced."

123. It is, therefore, necessary for the defendants to prove that the Carapetos so overbore Miss Good as to induce her to make the May will when she would not otherwise have done so. It is not enough for them to prove merely that the Carapetos may have made appeals to Miss Good's affection and to have sought to persuade her to reward her by making generous provision for them in her will. The distinction between legitimate persuasion of this nature and illegitimate coercion - or undue influence - is also illustrated by part of the direction to the jury given by Sir J.P. Wilde in Hall v. Hall (1868) 1 P & D 481. He said (at p.482):

"To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, 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, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of piece and quiet, or of escaping from distress of mind or social discomfort, these, 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 some one else's."

124. Allegations of undue influence, or coercion, are serious ones, although the ordinary civil standard of proof is still the same, namely by reference to the balance of probability. However, even though the standard is the same, in In re H and Others (Minors) [1996] AC 563, Lord Nichols of Birkenhead said this at p. 586:

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred."

125. In my view, the wholesale overbearing of a testator's will by coercion is an inherently more improbable event than, for example, the bringing to bear on the testator of legitimate persuasion of the type referred to in the Hall case, and I bear that in mind in assessing whether, on the evidence, the defendants have discharged the burden of proving coercion. I must also have regard to the advice of the Privy Council given in Craig v. Lamoureux [1920] AC 349 Viscount Haldane said, at p. 357:

"As was said in the House of Lords when Boyse v. Rossborough (1856) 6 HLC 2 , 49, was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean. …

It is also important in this connection to bear in mind what was laid down by Sir James Hannen in Wingrove v. Wingrove (1885) 11 PD 81 and quoted with approval by Lord Macnaghten in delivering the judgment of this board in Baudains v. Richardson [1906] AC 169 , that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained."

126. Turning to the facts, I regard the defendants' claim that the Carapetos coerced Miss Good into making the May will as weak. There is, in my view, no direct evidence of any conduct which might be regarded as amounting to coercion. The absence of any such direct evidence is of course not surprising, because it will be a rare case in which there will be such evidence. Usually, if a case of coercion is to be found, it will involve the court in drawing inferences from the general circumstances which have been proved in the particular case. But in this case I feel quite unable to draw any such inference. I do find that Mrs Carapeto took a greater interest in Miss Good's proposed testamentary activities than she was disposed to admit to in her evidence. She was present at at least two important meetings - the second meeting with Mr Ess on 15 April and the meeting with Mr Frankum on 19 April. I think it likely that it was she who asked Mr Brennan to come up with the name of another solicitor in place of Mr Ess, although I also regard it as probable that she would first have obtained Miss Good's authority to do this. She was at Miss Good's side when Miss Good left the message on Mr Ess's voicemail on 15 April and when she left a like message for Bill Good on 23 April. She may perhaps have engaged in what can be regarded as in the nature of prompting in relation to these calls, and I have referred in my account of the facts to other instances where she became involved in the will-making process. Miss Good's call to Mr Raggett on 19 March 1999 is another instance where Mrs Carapeto appears to have been playing a part in the conversation. I certainly find that that there was no question of her simply toiling quietly away at her duties in the background, ignorant of the somewhat protracted testamentary activities of her employer. She may even, although I make no finding to this effect since it is unsupported by any clear evidence, have made some appeal to Miss Good to provide for her in her will.
127. But none of this satisfies me that there are sufficient grounds for inferring that she coerced Miss Good into making the May will. I do not ignore that Miss Good was an elderly, vulnerable woman, who was substantially dependent on the Carapetos for her continued enjoyment of life at the house. This scenario no doubt provides a background against which there would or might have been scope for the exercise of some subtle, and undue, influence by the Carapetos over Miss Good. The matters to which I have referred no doubt give rise to a legitimate suspicion that this may have been what was happening, and I can well understand how the family's suspicions have been aroused by them. They have concerned me too, and I have given anxious consideration to them. They are, however, also consistent with a perfectly innocent explanation. It must not be overlooked that the Carapeto family had by 1999 played a central and close role in Miss Good's life for some 20 years. I have found, and have no doubt, that she was genuinely very fond of them. They were on hand day and night, and it is by no means unlikely that over the years she would have built up a sufficient relationship of confidence with them such she would or might wish to discuss her affairs with them. Ultimately, all I have heard and read about Miss Good - in particular from the various solicitors who attended on her during 1999 - satisfies me that, at the time of the May will, she was still a very intelligent, sensitive and independent-minded woman, who was capable of making her own decisions. She had been wrestling with herself as to how best to dispose of a substantial estate, and had come to the conclusion that the calls of the Carapetos on her bounty outweighed those of the family. In those circumstances, she decided to make the May will. I ought only to make a finding of undue influence against the Carapetos if I am satisfied according to the standard of proof to which I have referred that such a case is made out. I am not so satisfied. I reject the claim that Miss Good made the May will as the result of the exercise upon her of coercion by any member of the Carapeto family.

Result

128. I propose to pronounce in favour of the validity of the May will and to dismiss the counterclaim.

Approved Judgment Carapeto v. Good and Others