England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th October 2005

Miss Sonia Proudman QC:

1. In this action the claimants seek revocation of probate of a will dated 11th August 2001 ("the 2001 Will") made by Mrs Florence Edith Cooper who died on 20th August 2001. Probate of the 2001 Will was granted to the first defendant, Mr Emery, on 2nd September 2003. The claim is made on three grounds: lack of testamentary capacity, want of knowledge and approval and undue influence. The claimants seek to prove Mrs Cooper's Will dated 26th November 1999 ("the 1999 Will") which it is common ground was valid and unimpeachable. Thus the only question is whether or not the 1999 Will was revoked and replaced by the 2001 Will. Legatees other than Mr and Mrs Emery have not been joined as parties; the claimants accept that, if successful, they cannot deprive those beneficiaries of their legacies under the 2001 Will. The contentious subject matter is Mrs Cooper's house 111 Lansdown Road Leicester and its contents which Mrs Cooper specifically devised and bequeathed to Mr and Mrs Emery under the 2001 Will.
2. Mrs Cooper was born in 1913. By the time of the events in question she had been a widow for many years. She had no children. Her brother Tom predeceased her and her nearest relatives at the time of the three wills which were in evidence were the claimants, her first cousins on her mother's side. The first claimant, Mrs Allen, gave evidence, as did Mr Peter Rock, the son of another cousin, Doreen, who had died in 1997. Mrs Allen's evidence was not easy to follow: she contradicted herself on several occasions and was extremely vague about dates and the order of events. However I understood her eventually to admit under cross-examination that for forty and more years after she moved to Skegness in 1955 she saw Mrs Cooper only very rarely. They were still on affectionate terms and kept in touch by telephone, and (possibly, although she may have been referring to a later or earlier period) made occasional visits and trips to the seaside together with the second claimant. It is clear that it was only after Mrs Allen and Mrs Cooper met at the funeral of Doreen Rock in 1997 that they re-established their relationship and began to meet with any frequency. Mr Rock and his daughter Lorraine too only began to visit Mrs Cooper on a regular basis in the last 5 years of her life.
3. The defendants, Mr and Mrs Emery, also lived in Lansdown Road. At first they were merely on nodding terms with Mrs Cooper, but when her husband died (some 10 years before the events in question) they became close. Although she was popular and had many friends Mr and Mrs Emery were the closest to her. She regularly went to their house for Sunday lunch and they often went out for day trips and for meals together. She would spend Christmas with them. Mr Emery drove her in his car when she went shopping or otherwise needed transport (for example to visit friends or the doctor) and on occasions he also brought Mrs Allen to and from Skegness to visit Mrs Cooper. Mrs Cooper would confide in the Emerys and ask their advice on day-to-day matters and they spent a great deal of time in each other's company. At various times when Mrs Cooper was in hospital Mrs Emery did her washing for her and kept her house clean. On one occasion Mrs Cooper went on holiday to Jersey with Mr and Mrs Emery and the three claimants. At Mrs Cooper's suggestion Mr Emery did the driving and she bore most of the expenses of the trip.
4. I have no doubt not only that Mrs Cooper was fond of Mr and Mrs Emery but that Mr and Mrs Emery were genuinely attached to her in return. The point needs making because Mrs Allen and Mr Rock both implied that the relationship was entirely self-serving on the Emerys' side. In this regard I prefer the evidence of Mrs Gwen Jeffrey, who was an impressive witness and the one best placed to form a judgment on Mrs Cooper's relationship with the Emerys. She had been a friend of Mrs Cooper for some 70 years. They met regularly, latterly on most days, she knew Mrs Cooper's views and saw her in company with the Emerys. She described Mr and Mrs Emery as "marvellous" friends and said Mrs Cooper "thought there was no-one like them for kindnesses". I also attach weight to the evidence of Mr Roy Martin, another long-standing friend of Mrs Cooper's. He too described her relationship with Mr and Mrs Emery as a very good one. Neither Mr Martin nor Mrs Jeffrey observed any signs of bullying or overbearing behaviour by Mr Emery as suggested by Mrs Allen and Mr Rock.
5. In 1997 Mrs Cooper made the first of the wills which were in evidence in these proceedings ("the 1997 Will"). It was drafted for her by Mr Eagle, the probate partner in Josiah Hincks and Bullough ("JHB") solicitors of Leicester. By the 1997 Will Mrs Cooper appointed partners in JHB to be the executors, left a number of legacies to friends and charities, and her Barclays Bank accounts and residuary estate (which would have included her house) to the claimants in equal shares. Among the legatees were Mr and Mrs Emery, who were given £1,000 between them, and Mrs Emery's son Robert Darre, who was given £500.
6. The 1999 Will too was drafted by Mr Eagle and the executorship was unchanged. Again, there were several legacies, but some legatees were new, some previous legatees were excluded and there were differences in amount. For example, a Mr and Mrs John Cooper received £10,000 under the 1997 Will but Mrs John Cooper (who I infer had been widowed in the interim) only received £1,000 under the 1999 Will. Robert Darre was given £1,000. Mr and Mrs Emery were given £3,000 each and became the most substantial fixed pecuniary legatees, thus lending support to the finding that Mrs Cooper regarded them as close friends and (to use an old-fashioned expression) proper objects of her bounty. Residue (but not the bank account) was again given to the claimants and again this gift would have carried Mrs Cooper's house.
7. Mrs Allen and Mr Rock both testified that Mrs Cooper was particularly fond of Lorraine Rock. They said that Mrs Cooper could not have failed to provide for Lorraine (who is physically disabled and has special needs), if she had known what she was doing and had acted of her own volition. They therefore regarded the fact that Lorraine received no benefit under the 2001 Will as suspicious. However Lorraine received only a very small legacy (£200) under the 1999 Will and had been given nothing at all by the 1997 Will. It seems to me that the attitude of Mrs Allen and Mr Rock to the question of a legacy for Lorraine is fuelled by dislike, or at any rate mistrust, of Mr Emery coupled with the conviction, particularly in the case of Mr Rock, that family ought to come before friends. Although he did not use the expression, I kept expecting Mr Rock to say, "blood is thicker than water". He made frequent allusions to the priority that should have been, but in his view was not, afforded to family members by Mr Emery, in relation to access to Mrs Cooper in her last illness, the arrangements for her funeral, entry to her house after her death, the allocation of her personal effects and so on. In the event severely prejudicial criticisms made of Mr Emery's behaviour in Mr Rock's witness statement completely failed to stand up in cross-examination.

Making of the 2001 Will

8. The important period for the purposes of the matters I have to decide began at about the beginning of July 2001. Mrs Cooper was 88 years of age. In the past she had had a colostomy operation which was subsequently reversed. Her ill health persisted and she went into hospital for observation and tests. The results showed that she had advanced cancer of the colon and she was told that she would not live beyond Christmas. This came as a shock to her as she had believed she was getting better. According to Mr and Mrs Emery, Mrs Cooper realised that she would not now need to sell the house to pay for residential care in her old age. Mr and Mrs Emery's evidence was that at this stage (or possibly an earlier stage- and I return to this point later) Mrs Cooper asked Mrs Emery if she would like to have the house. They said that Mrs Cooper told them that the house had originally belonged to her husband's father and that she felt no obligation to leave it to her own family. Mrs Jeffrey also testified that she heard Mrs Cooper make this latter comment many times.
9. It is the defendants' case that after the diagnosis of cancer Mrs Cooper was eager to change her will and get her affairs in order. It is apparent that Mr Emery also was keen to secure the gift of the house and was very ready to help her get a new will made.
10. An appointment was made for Mrs Cooper to see JHB with a view to the preparation of a new will and Mr Emery went with her to JHB's offices on 31^st July 2001. She was interviewed by Louise Clarke, a paralegal employed by JHB, who took instructions from her, including provision for a sale to Mr Emery of the house at a price of £10,000. Miss Clarke's notes of her instructions show all the legacies existing in the 1999 Will were to be increased ("pecuniary legacies- all as before but more") and one or two extra charitable gifts were to be added. Mrs Cooper gave the instructions with the assistance of Mr Emery who read items from notes he had brought with him. Mr and Mrs Emery's house and all its contents were destroyed by fire at the beginning of 2003 and the notes do not survive.
11. Miss Clarke says she had no concerns about Mrs Cooper's mental capacity on that day, but she was doubtful whether she should proceed bearing in mind the sale of the house at an obvious undervalue. Mr Emery himself told Miss Clarke that it was worth some £70,000. Mr Eagle was away on holiday, so she discussed the matter with a more senior colleague, Mrs McDonald Allsop, and they decided to visit Mrs Cooper when Mr Emery was not present. They did so on 3^rd August, and noted that Mrs Cooper seemed vague and vacillated about legatees, the amounts of legacies and what price Mr Emery should pay for the house. However it is also true to say that Mrs Cooper was expecting to, and wanted to, see Mr Eagle and seemed disconcerted by his absence. Miss Clarke and Mrs McDonald Allsop decided that they should not proceed without Mr Eagle. An appointment was made for 15^th August.
12. At the end of July Mrs Allen went to stay with Mrs Cooper. Mrs Cooper's GP Dr Shikotra visited her on 6^th August and possible admission to LOROS, the local hospice, was discussed, because of the progression of the cancer. On 7th August Mrs Cooper telephoned JHB. Mr Emery spoke to Mrs McDonald Allsop to say that Mrs Cooper wanted to sell the house and contents to him for £30,000. On 8^th August Mr Emery telephoned JHB (he says on Mrs Cooper's instructions) asking for an earlier appointment in view of her imminent admission to LOROS but was told that 15th August was the first available date and if she could not wait she would have to go elsewhere. Mrs Cooper then spoke to Mrs McDonald Allsop saying that she wanted to sell the house to Mr Emery but it was agreed that she would wait until the appointment with Mr Eagle the following week.
13. On the morning of 9^th August Mrs Allen found Mrs Cooper sitting on the stairs, having had a fall in the night. The district nurse, Rita Staniforth, attended. Mrs Cooper then telephoned Louise Clarke at JHB to tell her that JHB's services were no longer required. Mr Emery was present when that call was made. Mrs Staniforth came again the next day and arranged for Mrs Cooper's admission to LOROS. Her file note says "admission to LOROS requested as cousin is not coping", indicating that it was this, and not any deterioration in Mrs Cooper's mental condition, which necessitated the transfer.
14. On 10^th August, Mr Emery telephoned Mr Barry Webster, a solicitor who had acted for him on his divorce some 10 years previously, and gave him instructions for Mrs Cooper's Will. Mr Emery says that the instructions were taken from the written note of her wishes that he made before the visit to JHB on 31st July, and that Mrs Cooper was present when he made the call to Mr Webster. On the same day, Mrs Cooper was admitted to LOROS.
15. Mr Webster drafted a will in accordance with what he had been told on the telephone by Mr Emery and attended Mrs Cooper at LOROS at about noon on 11^th August. He had not met her before. Mr Emery was present throughout that interview. Mr Webster's evidence, unchallenged in cross-examination, was that he went through the draft line by line with Mrs Cooper. His contemporaneous file note (the accuracy of which as a record was again unchallenged) states:-

"BJW went through the contents of the Will carefully with Mrs Cooper to ensure that the instructions received were in accordance with her wishes (and no one else's). Mrs Cooper was frail and weak but understood fully what BJW was saying. She referred to one or two other people who were missing from the Will and Mr Emery indicated that he would "see them right". Their full names and addresses were not known- they were simply friends who she wished to thank in her Will."

16. Mr Webster asked Mrs Cooper if she had sufficient assets to meet the legacies and leave a residual amount and she said she had. The file note shows that there was a discussion about her family and her cousins' claims to her bounty. The note says she commented,

"they had had plenty off her over the years and she was not inclined to leave them anything else. She wished to repay all those friends who had helped her though her life. In particular, she wished to see that Norman Emery and his wife Margaret received her house and contents".

The file note concludes:

"Mrs Cooper was perfectly aware of what was happening and was happy to sign the Will. She duly signed the same as well as initialling where necessary".

In evidence Mr Webster said,

" …I was satisfied that having discussed the will with her in detail she was mentally and physically capable of making a will".

17. He asked for a member of the hospital staff to act as one witness, he himself being the other. As it was a Saturday, the usual administrative staff members were not available and a doctor, Dr Waterhouse, witnessed the will. She asked whether a formal assessment of testamentary capacity was required and Mr Webster said that it was not. Dr Waterhouse therefore witnessed the 2001 Will as a lay witness.
18. By the 2001 Will Mr Emery was appointed Mrs Cooper's sole executor. There followed a number of legacies to charities and to friends of Mrs Cooper, although there are marked differences not merely from the 1999 Will but also from the instructions given on 31st July. Her house is left absolutely to Mr and Mrs Emery and residue goes, as before (but with the house now taken out) to the claimants.
19. As Mr Webster was leaving the hospice Mr Emery commented that Mrs Cooper's relatives would not be happy with the 2001 Will. Mr Webster, who regarded a gift of a house to a neighbour as an unusual transaction, decided that he ought to see Mrs Cooper in the absence of Mr Emery to make sure that she understood and was happy with the contents of the 2001 Will. Accordingly he returned to LOROS at about 4 pm the same afternoon. His second attendance note reads as follows:

"BJW again visited Mrs Cooper at about 4 pm on 11th August without Mr Emery being present. BJW said to Mrs Cooper that he wished to be sure that she was happy with the contents of the Will and had not been coerced into signing it. She said that she was happy with it and that it was her decision to do this. She said something about Norman Emery paying £10,000 for the house and I pointed out that this was not the case. She was giving him the house free of charge. No payment would be required from him. She said she would think about this and discuss it with Norman and if she wished to change the Will, she would tell Norman who would advise BJW as soon as possible.

On the way out of LOROS BJW bumped into Norman Emery and explained what Mrs Cooper had said. Mr Emery said that she was referring to a private arrangement he had come to with Mrs Cooper to the effect that he would pay £10,000 to one of the cousins (Elsa) but the other two cousins were not to know about it. Mrs Cooper and he felt it would be best to leave this out of the Will entirely.

BJW suggested there should be a separate note by Mrs Cooper just confirming the proposed arrangement which could be kept private and separate from the Will. Mr Emery said he would discuss this with Mrs Cooper and advise BJW".

Mr Emery's explanation to the Court was that he and Mrs Cooper had settled on a secret trust arrangement to compensate Mrs Allen for having been left out of an uncle's will. He says it was Mrs Cooper's original intention to pay each of the cousins £10,000 (hence the explanation for the sum of £30,000 which he mentioned to Miss Clarke) but Mrs Cooper changed her mind and decided that she only wanted to benefit Mrs Allen. In cross-examination Mrs Allen accepted that Mr Emery told her at the beginning of August 2001 that she was to have the sum of £10,000 "apart from anyone else". She also accepted that she was the only family member excluded from her uncle's will but said she could not remember if this was the reason Mr Emery gave for the payment.

20. Mr Eagle of JHB returned from holiday on 12th August. The following day he wrote to Mrs Cooper at her home to say that he would call and see her on the 16^th August. On 14^th August Mr Emery called at JHB's offices to ask for the 1999 Will to be released. Mr Eagle replied that he had concerns about Mrs Cooper's mental capacity and would not release it. He then called on Mrs Cooper at LOROS on 16^th August. He said nothing about her withdrawal of instructions, although he says he asked if JHB were still instructed by her. He did not apparently mention Mrs Cooper's instructions to Miss Clarke and Mrs McDonald Allsop. Mrs Cooper, for her part, did not tell Mr Eagle about the 2001 Will. He discussed the terms of the 1999 Will with her. He asked her whether she wanted to change her will, and she told him she "felt that everything was acceptable". She asked him whether she had enough money to pay the legacies and he felt that she was unaware of the extent of her assets. In his witness statement he says that

"I had a discussion with the medical staff who advised me that in their opinion she was incapable of making a will in any event and even if she had wanted to change it they would not have been happy with me doing so".

Under cross-examination it appeared that Mr Eagle had only spoken to one member of staff (Nurse Harding) who had not made any formal assessment and was not in any event qualified to do so. Neither Mr Eagle's note nor the LOROS notes make any mention of possible lack of capacity.

21. It is plain that Mrs Cooper's condition deteriorated very quickly. On the next afternoon, 17^th August, (six days after the 2001 Will), Dr Idris Baker examined Mrs Cooper. He reported:

"She appeared confused and perhaps a little restless in that she was picking at her bedclothes. When I asked her whether she was comfortable she confirmed that she was but gave no other sensible answers to routine questions, in my attempt to examine her mental state. My conclusion was that on that day she was not capable, as far as I could judge, of making any competent decisions. I am afraid that I cannot really make any objective comments about her mental state or competence in the previous few days."

Mrs Cooper died on 20^th August 2001.

Testamentary Capacity

22. The first issue I have to decide is whether Mrs Cooper had testamentary capacity when she executed the 2001 Will on 11^th August 2001. The claimants allege that she did not. The defendants accept that the evidential burden is on them, as the propounders of the 2001 Will, to prove affirmatively that she did. To use Cockburn CJ's classic formulation in Banks v. Goodfellow (1870) LR 5 QB 549 at 565:

"It is essential…that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he might give effect"

23. The claimants point to Mrs Cooper's old age, terminal illness and physical frailty, the fact that Mr Webster had not previously met Mrs Cooper and the fact that he took his original detailed instructions from Mr Emery. In these circumstances they say in effect that Mr Webster's evidence of capacity should be rejected. He should have arranged for the will to be witnessed by a doctor who had made a formal and documented assessment of the capacity and understanding of the testatrix; the so-called "golden but tactless rule" described by Templeman J in Kenward v. Adams The Times 29 November 1975 and Simpson, Schaniel v. Simpson (1977) 121 Sol Jo 224. The Guide to the Professional Conduct of Solicitors lays down a similar principle that "if in doubt" the solicitor should "consider seeking an opinion from the client's doctor" although it is stressed that the solicitor should also make his own assessment.
24. When asked in cross-examination why he did not obtain a medical report on capacity, Mr Webster replied:

"A solicitor has to make a judgment- if you have any doubts about testamentary capacity, you must get a medical opinion- if you have no doubts, you don't. I had no doubts…".

25. It is undoubtedly a desirable precaution, and one which can save a deal of trouble in the future, for a solicitor to observe the golden rule where there is the possibility of dispute as to testamentary capacity. Failure to do so, however, is not in my judgment determinative; the rule is no more than prudent guidance for a solicitor: see the observations of Peter Gibson LJ on the golden rule in the context of want of knowledge and approval in Hoff and Others v. Atherton [2004] EWCA Civ 1554. Ultimately capacity is a question of fact like any other which the Court must decide on the evidence as a whole.
26. I therefore turn to the evidence as to capacity. The first doubts were raised by Mrs McDonald Allsop and Miss Clarke at their meeting with Mrs Cooper on 3^rd August, as to whether Mrs Cooper was "well enough to give clear instructions" because of the behaviour they observed. The claimants also rely on Mr Emery's prompt to JHB to remind Mrs Cooper of the claims of Elaine Berry since she would "probably have forgotten".
27. Further, there is the picture painted by Mrs Allen in her witness statement of Mrs Cooper acting "like a bemused child" when Mrs Allen was staying with her at the beginning of August and particularly at the time of her fall. However, under cross-examination Mrs Allen entirely resiled from this part of her witness statement. She insisted that although physically very weak Mrs Cooper was "as mentally alert as ever" and not at all childlike or bemused. She scoffed at the thought that anyone might describe her in that way, unaware that it was she herself who had done so. She insisted that after her fall Mrs Cooper was quite rational, and seemed mentally fine.
28. The evidence of Mrs Cooper's GP, Dr Shikotra, supports the description which Mrs Allen gave in Court. When he examined Mrs Cooper on 6^th August he commented that her mental capabilities seemed fine: she was alert and conscious and there were no signs of confusion. She was able to converse normally and fully understood her circumstances and everything he said to her.
29. The District Nurse, Mrs Staniforth, made a general nursing assessment of Mrs Cooper when she visited her after the fall on 9^th August. She had known Mrs Cooper for many years, having nursed her late husband, and she was in a good position to compare Mrs Cooper's mental faculties with how she had been previously. Mrs Staniforth's evidence was firm that Mrs Cooper was lucid and showed no signs of confusion. Her notes made no reference to confusion and she was adamant that they would have done if she had observed any such deterioration of Mrs Cooper's mental condition. She gave evidence as to the discussion she had had with Mrs Cooper on the 10^th August about going to LOROS and had no doubts about her understanding and ability to give an informed consent to her admission.
30. There is nothing in Mrs Cooper's notes at LOROS about confusion or any other departure from normal mental processes at the time of her admission or the following day. The only reference to confusion is on 15^th August when Mrs Cooper is described as being "sleepy but not confused".
31. Mrs Jeffrey visited Mrs Cooper in LOROS after her admission. She said in cross-examination:

"The illness took its toll on Florrie, but not mentally. She was feeble, but she did not become forgetful".

Mr Martin too visited Mrs Cooper at LOROS on the day she was admitted. He said she was mentally fine and not confused, distracted or forgetful.

32. Mr Worster, Counsel for the claimants, sought to explain away the evidence of Mrs Jeffrey and Mr Martin with the submission that they would not want to speak of Mrs Cooper as having lost any of her alertness of mind. They would naturally tend to forget the unpleasant. I do not agree. The last days of a much-loved friend are likely to be remembered especially clearly. Indeed, evidence of people who knew the testatrix well and saw her regularly over a long period of time is particularly important when assessing capacity as they are best placed to observe any changes from the norm.
33. Dr Waterhouse, who witnessed the 2001 Will, has quite properly always stressed the fact that she was not asked to, and did not, conduct an assessment of capacity and cannot therefore give her professional opinion on the question. However she was drawn in cross-examination to accept that Mrs Cooper exhibited no signs of confusion such as to lead Dr Waterhouse to advise that there be such an assessment.
34. The evidence of Mr Webster is also important. He did not observe the golden rule, but he is a solicitor of 30 years will-making experience. His unchallenged note shows that Mrs Cooper knew she was making a will, that she told him that she had the house and enough savings to pay the legacies, that she knew the state of her family and had views about their claims on her bounty and those of her friends. There is nothing odd about any of her remarks. Those notes therefore appear to cover each of the heads of the Banks v. Goodfellow test.
35. Mr and Mrs Emery also both gave evidence that Mrs Cooper retained all her faculties until she was near death. They were of course partial witnesses but their evidence is consistent with that of the others I have mentioned.
36. Mr Rock's witness statement gave evidence of Mrs Cooper's deterioration on 5th and 8th August, but in cross-examination he appeared to resile from the descriptions which might touch upon her mental, as opposed, to physical state. He also said that when he visited her at LOROS she was in a bad way and seemed to think his mother was still alive. However he did not visit Mrs Cooper at LOROS until 15^th August. In any event I have reservations about Mr Rock's evidence about his visits: for example a hearsay account of Mr Emery being ejected from the LOROS premises is inherently unbelievable and unsupported by the LOROS records.
37. Mr Eagle did not visit Mrs Cooper until 16^th August and we have Dr Baker's report as to her condition on the following day. Plainly she was by then deteriorating fast. Her question about whether there was enough money to pay the legacies contrasts with the answer she gave Mr Webster on 11th August. In any event Mr Emery's surmise that she did not want to tell Mr Eagle that she had made the 2001 Will without his participation is quite possibly correct. If so, her comment that her existing will was satisfactory and she had no reason to change it supports the defendants' case.
38. I agree with Mr Worster's submission that the most probative medical evidence is that of Dr Idris Baker. I am therefore confident that there were serious doubts about Mrs Cooper's testamentary capacity on 17^th August. However, that was just three days before Mrs Cooper died and by that stage her condition had deteriorated in all respects. Dr Baker did not previously examine her and, as he himself said, he is unable to express any opinion about Mrs Cooper's mental state on 11^th August.
39. The claimants point to the 2001 Will itself as demonstrating a lapse of memory. The legacy to Mrs Jeffrey in the 2001 Will is made just to "Gwen" as though Mrs Cooper had forgotten her surname, something which Mrs Jeffrey herself said Mrs Cooper could never have done. I am not persuaded by this. Mr Webster was not cross-examined on whether he had asked Mrs Cooper for Mrs Jeffrey's surname. It is likely that the question of the surname was overlooked by both Mr Webster and Mrs Cooper, since the will as drafted and typed left no space for a surname to be inserted.
40. In my judgment the only real doubt as to capacity is cast by the evidence of Miss Clarke and Mrs McDonald Allsop about what took place on 3rd August. They are impartial witnesses who were directing their minds to the question of capacity. However, whatever the reason for Mrs Cooper's distractedness on that day, the evidence as to Mrs Cooper's state thereafter is such that I find that the defendants have discharged the burden of showing that Mrs Cooper had testamentary capacity to make the 2001 Will on 11th August 2001.

Want of knowledge and approval

41. The defendants accept that in this case formal execution does not prove that the testatrix knew and approved the contents of the 2001 Will and that the onus rests on them to establish such knowledge and approval affirmatively.
42. The claimants rely on the doctrine of righteousness of the transaction. In Michael Fuller v. Strum [2001] EWCA 1879, Peter Gibson LJ said (at paragraph 32-3),

"Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who wish to challenge the will are often not able to give evidence of the circumstances of the will. The doctrine of "the righteousness of the transaction" whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged.

But "the righteousness of the transaction" is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be "vigilant and jealous" in examining the evidence in support of the will (Barry v. Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.)"

43. Mr Webster clearly thought at the time that the gift of the house to Mr and Mrs Emery was by itself a suspicious circumstance, as he described it in his evidence as "an unusual transaction- a gift of a house to a neighbour". However Mrs Cooper's nearest relatives were the claimants and it is evident that she was not as close to them as she was to Mr and Mrs Emery. In my judgment what arouses the "vigilance and jealousy" of the court, as the defendants accept, is the fact that Mr Emery, the executor and a principal beneficiary, was the person who initially gave instructions to Mr Webster (a solicitor who had acted for him in the past and whom he introduced to Mrs Cooper) on Mrs Cooper's behalf. There is no independent evidence that Mrs Cooper knew and approved of the contents of those instructions. Moreover Mr Emery was with Mrs Cooper when she executed the 2001 Will. The Court must therefore be satisfied that Mrs Cooper appreciated and approved what was in the 2001 Will when she executed it, i.e. that it did truly represent her testamentary intentions rather than being a mechanical acquiescence in provisions formulated by Mr Emery.
44. Mr Worster submitted that there were various inconsistencies from which the Court should infer that Mrs Cooper did not understand the contents of the 2001 Will. There was the overriding circumstance that Mrs Cooper was on her deathbed; frail, easily tired and therefore likely to be suggestible. He drew attention to the fact that as recently as 31st July Mrs Cooper had given instructions to Miss Clarke about legacies and the payment of £10,000 for the house, but the 2001 Will as drafted by Mr Webster in accordance with these instructions departed significantly from what she had said less than a fortnight before. He pointed to Mr Emery's evidence that he gave his telephone instructions to Mr Webster from the same notes that he had used when visiting JHB on 31st July, so that there was no explanation for the discrepancies. It may be, as Mr Worster submitted, that some of them may be accounted for by the fact that Mrs Cooper told Miss Clarke that she wanted to increase all the legacies of the 1999 Will but that Mr Emery did not know what was in the 1999 Will. He submitted that Mr Webster failed to follow another important rule of practice, namely to ask Mrs Cooper about her previous will so as to consider her new dispositions in that context.
45. Another matter on which Mr Worster laid stress is the fact that when Mr Webster went back to speak to Mrs Cooper in the absence of Mr Emery Mrs Cooper told him that she thought that Mr Emery was paying £10,000 for the house even though the 2001 Will itself clearly provided for an outright gift. This demonstrates, submits Mr Worster, that Mrs Cooper did not know what was in the 2001 Will.
46. Mr Webster's unchallenged evidence included the following matters. First, that he went through the 2001 Will with Mrs Cooper, line by line. Secondly, that she told him that she was not inclined to leave her cousins anything else. Thirdly, that she wished to repay the friends who had helped her and in particular she wanted Mr and Mrs Emery to have her house and contents. Fourthly, that one or two people whom she wished to thank (but whose full names and addresses were not known) were missing from the Will. (She expressed herself content to trust Mr Emery to "see them right").
47. In the face of this evidence it is plain that Mrs Cooper was (as Mr Webster judged) not only able to understand what he told her but did in fact understand it. How can it be said that she did not know what the 2001 Will contained in the face of her comments about her cousins and Mr and Mrs Emery? Further the fact that she referred to some friends being left out demonstrates that she was fully aware of which ones were included.
48. There are several possible explanations for the discrepancies between the instructions given to JHB and the terms of the 2001 Will. One is that although Mr Emery used the same note to instruct Mr Webster as he had taken to JHB there had been further discussions with Mrs Cooper in the intervening period. Mr Worster protested that Mr Emery did not give evidence that his note was ever changed. However this was in my judgment the effect of some of the evidence which he did give, namely that Jane Cooper had remarried a rich man and she was to be cut out; that some of the previous legatees had died since the 1999 Will; that Mrs Cooper had decided Elaine Berry's mother should provide for her daughter; that she had decided to cut out the gift to the Leicester Royal Infirmary as that hospital had failed to cure her. It is also likely that before Mrs Cooper went to JHB she did not herself have the 1999 Will in front of her. Accordingly a list prepared from scratch would not result in the "same as before but more" that she mentioned to Miss Clarke. Again, it is evident from what transpired at the meeting with Miss Clarke and Mrs McDonald Allsop on 3rd August that Mrs Cooper's earlier instructions were far from finalised. Doubtless it would have been best for her to be shown the 1999 Will before the 2001 Will was drafted, but there were serious time constraints. The fact that some people may have been left out who, after further consideration or after her memory had been jogged by the 1999 Will, she might have decided to include, does not mean that Mrs Cooper did not know and approve of the contents of the 2001 Will.
49. Mr Worster's second submission is that knowledge and approval at the time of execution is irreconcilable with what Mrs Cooper said to Mr Webster in the afternoon about Mr Emery paying £10,000 for the house. Mr Webster's note does not in fact say that Mrs Cooper believed that the 2001 Will provided for a purchase. It merely says that she said something about paying £10,000 for the house, which is consistent with the secret trust Mr Emery says was imposed on him by way of private arrangement. In any event, it is not enough to cast doubt on the procedure followed by Mr Webster at the time of execution. Again it seems to me that the defendants have discharged the burden of proving that Mrs Cooper knew and approved of the contents of the 2001 Will.

Undue influence

50. That leaves the issue of undue influence. The claimants do not allege either that the presumption of influence of the kind explained by the House of Lords in RBS v. Etridge No 2 [2002] 2 AC 773 is capable of applying to a testamentary gift, or that, if so, it could apply on the facts of this case. Accordingly the burden is on the claimants to prove improper pressure on the part of Mr and Mrs Emery. In Wingrove v. Wingrove (1885) 11 PD 81, Sir James Hannen P said:

"To be undue influence in the eye of the law there must be- to sum it up in a word- coercion…"

There is only undue influence if

"…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'."

51. It is true that Mrs Cooper was dying and that Mr Emery was, as I have found, eager to secure the house. That does not however mean that he acted improperly. As James Munby QC said in Killick v. Pountney and Anor, 31st March 1999,

"I can readily accept that, if there is evidence showing the exertion of improper pressure in relation to the execution of a will, it will be easier- and sometimes very much easier-, where the testator is enfeebled in body or mind, and all the more so if he is enfeebled in both body and mind, to find that such influence was in all the circumstances undue and, to adopt Viscount Haldane's words, that it was by means of the exercise of that influence that the will was obtained. This is because…a lesser degree of pressure or inducement may suffice to produce the desired result where the testator is feeble in body or mind than would be required were he in vigorous health. But no amount of evidence of bodily or mental infirmity will of itself establish undue influence in the absence of some independent evidence tending to show the exercise of an improper influence."

52. I therefore turn to the evidence. In her witness statement Mrs Allen said that Mrs Cooper had told her that Mr Emery had tried to persuade her to give him the house. However, when cross-examined about this Mrs Allen changed her account completely, saying that Mrs Cooper had said that she had asked Mr Emery if he wanted to buy the house, but anyway she, Mrs Allen, "didn't really take it in". Again, although both Mrs Allen and Mr Rock said that Mr Emery was overbearing Mrs Allen was unable to give particulars and, as I have said, serious allegations against Mr Emery made in Mr Rock's witness statement were withdrawn, watered down or simply did not withstand scrutiny.
53. In his closing submissions, Mr Worster relied on the confusion in Mr and Mrs Emery's evidence about when Mrs Cooper first offered them the house. If, he submits, the offer was made before July 2001, Mrs Cooper could not have said that she would not need to sell the house, the ostensible reason for the gift. I do not find anything sinister in the defendants' evidence; the gift could have been canvassed at an earlier time, but it was only when Mrs Cooper was told she was dying that she decided to do something about it. Be that as it may, and taking the claimants' case on this issue at its highest, such discrepancies do not constitute evidence from which coercion can be inferred. The claimants must show not only that the circumstances attending the making of the will are consistent with the hypothesis of its being obtained by undue influence; they must show that those circumstances are inconsistent with a contrary hypothesis: Boyse v. Rossborough (1857) 6 HLC 2 at p.51.
54. It seems to me that the claimants' case, at its best, is that Mr Emery gave all the assistance to Mrs Cooper within his power to make a new will. However, there is in my judgment no evidence at all of the kind of improper pressure required to prove undue influence. I accordingly find for the defendants on this issue also.
55. I will dismiss the claim and pronounce for the 2001 Will.