England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th October 2006

The Deputy Judge :

1. Before dealing with the facts of this case in more detail, it is useful to give the following general introduction.
2. Mrs Cacheta Louise Johnson died on 21st August 2002. For many years, she had been the owner of a large house at 38 Cecilia Road, London E8. Indeed, that house was her principal asset. In the last few years of her life, Mrs Cacheta Johnson was involved in, or apparently involved in, executing a number of legal documents. On the face of the documents, on 3rd February 1999, Mrs Johnson made her will and the house was to be part of the residuary estate disposed of by that will. In May 2001, Mrs Johnson went to solicitors for the purpose of making a codicil to that will, although it is not clear that she ever executed the draft codicil. On 21st December 1999, she made a second will, leaving all of her estate, including the house, to her son, Harrington Johnson. If valid, the second will would have revoked the first will.
3. In May 2001, Mrs Johnson executed a deed of gift of the house to her son, Harrington Johnson, and his wife, Evelyn Johnson. In April 2002, Harrington and Evelyn Johnson sold the house to a Gloria Edwards for the sum of £150,000 and Gloria Edwards mortgaged the house to the Halifax Building Society.
4. Mrs Johnson had another son, Clement Johnson. Clement Johnson is the Claimant in these proceedings. Clement Johnson was not a beneficiary under either of the wills which I have referred to. He feels aggrieved by the sequence of events I have referred to. Indeed, he contends that the various documents are not to be taken at face value.
5. What he seeks to do is this. First, to establish that the December 1999 will was invalid; secondly, to establish that the February 1999 will was also invalid and that his mother died intestate; thirdly, to obtain a grant of administration of his mother's estate; fourthly, to apply as administrator of that estate to set aside the deed of gift of May 2001; and, fifthly, to set aside the sale to Gloria Edwards. He seeks to achieve these results by asserting that his mother did not know and approve the contents of the wills, that she did not have capacity to execute the deed of gift and that the purported sale to Gloria Edwards was a sham, as Gloria Edwards does not exist and the name is an alias for Evelyn Johnson.
6. In the proceedings which are before me, the only claim by Clement Johnson is for the purpose of establishing that the wills were invalid and that his mother died intestate. No claim to set aside the deed of gift has yet been made and, as I understand it, cannot be made by Clement Johnson until he can bring that claim in the name of the estate of Cacheta Johnson. Therefore, any issues which might arise as to the deed of gift and as to the sale to Gloria Edwards are not before the Court on this occasion. This is not a completely satisfactory state of affairs, as Clement Johnson wants to launch a general attack on the conduct of Harrington and Evelyn Johnson and he wants to use what he regards as their inappropriate behaviour, in relation to the deed of gift and the sale to Gloria Edwards, as relevant material for the purposes of judging their conduct in 1999 and for an attack on the credibility of the evidence of Evelyn Johnson, who was a witness at the trial before me. I did permit Clement Johnson to cross-examine Evelyn Johnson as to credit by referring to his allegations in relation to the deed of gift and in relation to the sale to Gloria Edwards. However, the fact remains that the issues which might arise in relation to the deed of gift and the sale to Gloria Edwards are not technically before this Court in this trial.
7. In these proceedings, Mr Clement Johnson is acting in person. I will refer in a moment to the fact that he earlier was advised by solicitors and counsel. The First Defendant, and the only active Defendant, is the estate of Harrington Johnson. Harrington Johnson survived his mother, but has since died, some time in July 2003. He died intestate and, for the purposes of these proceedings only, his estate is represented by his widow, Evelyn Johnson, as a result of an order which was earlier made in these proceedings.
8. As I have said, Clement Johnson is in person. He was previously publicly funded, but that funding was withdrawn and he did not appeal the withdrawal of funding. On the first day of the trial, he applied for an adjournment to enable him to obtain legal representation. He could only achieve legal representation if he had his public funding restored or if he persuaded a solicitor to take on his case on a no win/no fee basis.
9. On the first morning of the trial, I investigated with Mr Clement Johnson in some detail the prospect of him obtaining legal representation. Having done so, I came to the conclusion that there was no sufficient prospect of him obtaining legal representation for an adjourned hearing of this action. Accordingly, I refused the application for an adjournment and I gave a short judgment setting out my reasons for doing so.
10. I deal next with the question of representation on the part of Evelyn Johnson. In the past, Evelyn Johnson had been publicly funded and she had the assistance of solicitors and counsel. Like Clement Johnson, her public funding was also withdrawn. She initially retained the same solicitors and counsel on a fee paying basis, but she appeared on the first day of the trial as a litigant in person. On the second and subsequent days of the trial, she has been represented by counsel, Mr Ohrenstein, who has appeared for her pro bono. I ought to record that I am grateful to Mr Ohrenstein for the considerable assistance he has been able to give the Court. The case would have been more difficult to try and determine without his assistance. Although Mr Clement Johnson may feel that the representation has been one-sided, I ought to record that Mr Ohrenstein has behaved in accordance with the best standards of the Bar and has drawn to my attention matters which might have been said on behalf of Clement Johnson if he had been represented at this hearing.
11. The next matter I deal with is Clement Johnson's application to amend his Particulars of Claim. The background to this is, as I have stated already, Mrs Johnson died on 21st August 2002. The proceedings were brought in August 2004. Mr Clement Johnson had at that stage the benefit of advice from solicitors and counsel. In the witness statement he prepared in support of the application there is considerable technical skill shown by the solicitors in understanding the legal issues and the consequences of the various outcomes.
12. The Particulars of Claim put forward on behalf of Mr Clement Johnson positively asserted that Mrs Johnson had executed the will of December 1999. In other words, the Particulars of Claim did not assert that the signature was other than her signature. The Particulars of Claim were later amended to refer to the first will of February 1999, but the amended Particulars of Claim similarly proceeded on the basis that Cacheta Johnson had executed both wills. The pleadings did not challenge the testamentary capacity of Cacheta Johnson. The Rules of Court require that an allegation of that kind is specifically pleaded: see Civil Procedure Rules, Rule 57.7.
13. On the second day of the hearing, Clement Johnson applied for permission to amend his Particulars of Claim. He wished to allege, first, that Cacheta Johnson did not execute the will of December 1999; secondly, that Cacheta Johnson did not execute the will of February 1999; and thirdly, that Cacheta Johnson did not have testamentary capacity in either February 1999 or December 1999. Mr Clement Johnson, in effect and in detail, explained the evidence he wanted to rely upon in support of these pleas.
14. I was able to assess something of the weight of that evidence at the time he made the application and, indeed, since. I refused permission to amend and I gave a short judgment explaining my reasons. I will restate them in summary for the purpose of this present judgment. The reasons related to, first, the delay in seeking to amend the Particulars of Claim; secondly, the absence of any adequate explanation for that delay; thirdly, the prejudice to the First Defendant if the amendments were allowed at this stage; and, fourthly, and I will refer to this matter again, the underlying weakness of the case which Mr Clement Johnson wished to put forward for non-execution of the wills and for lack of testamentary capacity on the part of Cacheta Johnson.
15. With those general matters stated, I can now move to a more detailed statement of the facts of the matter. Mrs Cacheta Johnson was born in Jamaica on 16th November 1916. She came to Britain with her husband, Mr Johnson, in 1955. Mr and Mrs Johnson bought 38 Cecilia Road, London E8 in around 1956. Mrs Cacheta Johnson had seven children. It is only necessary to refer to the last three of those children. Of the last three, the eldest was a daughter, Gloria Smith, who married and became Gloria Martin. The next child was Clement Johnson, the Claimant and the youngest child was Harrington Johnson.
16. Cacheta Johnson worked until her retirement in her sixties. I do not have a very clear picture of what the nature of her work was, but reference was made to the fact that she worked as a domestic in a hospital and later in some light industrial process assembling electrical components. There is a reference in the documents to her working in a pin factory, whatever precisely that might have been. Mr Johnson, the husband, died in the 1960s, so Cacheta Johnson was a widow for many years until her death in 2002 at the age of 86. I will now refer to the circumstances of the three children, Gloria Martin, Clement Johnson and Harrington Johnson.
17. Gloria Martin also lived in London E8 until she went back to Jamaica some time in 1999. It is clear that Gloria Martin did a great deal to look after her mother in her later years. Her mother relied heavily upon her. However, there was a rift between mother and daughter in 1999. Gloria Martin went back to Jamaica and has not returned to live in England. The evidence I heard persuades me that Cacheta Johnson missed her daughter very much. She originally thought her daughter was going to return to London after a period of six months in Jamaica, but the daughter never did so. Mrs Johnson then realised that Gloria Martin intended to live permanently in Jamaica. These facts have a bearing on the contents of the wills to which I will later refer.
18. Clement Johnson also lived in London. He currently lives in the SW1 area and he may have lived there for some time for all I know. He tells me he has been an interior decorator in his time, an interior decorator of some skill and experience. The evidence differed as to how attentive he was to his mother. The evidence from Evelyn Johnson was either that Clement Johnson never went to see his mother or that he hardly ever went to see his mother. The evidence from Clement Johnson was to the effect that he often went to see his mother. He said that it was not always the case that he saw other family members and so it is understandable that they did not appreciate how frequently he went to see his mother. He also gave evidence that he regularly telephoned her. However, without resolving the detail of that dispute, it is clear that Clement Johnson did not in any real way take on the burden of caring for his mother as she became elderly and more infirm. I do not express any criticism of Clement Johnson, I just simply record that that appears to be virtually common ground in the evidence before me.
19. Harrington Johnson and his wife, Evelyn Johnson, lived around the corner from Cacheta Johnson. When Gloria Martin went back to Jamaica in 1999, I find that Evelyn Johnson took on the day to day care of Cacheta Johnson. I find that Evelyn Johnson was very attentive indeed to the needs of her mother-in-law. I also find that they had a good relationship. Perhaps the origins of that good relationship can be understood if one realises that Evelyn Johnson, before she married Harrington and when pregnant with Harrington's child, actually went to live in the Johnson household. She was then a young girl in her late teens.
20. Harrington Johnson himself suffered from kidney failure for a long period. He was in a wheelchair for more than 10 years before his death in July 2003. He could, however, drive a car.
21. I turn next to the contents of the will, apparently of Cacheta Johnson, in February 1999. The will which has been called "the February 1999 will" was in the name of Cacheta Louise Johnson. It is a typewritten will and it was prepared for her by solicitors. It bears her signature. I appreciate that I have prevented Mr Clement Johnson from challenging the authenticity of that signature, but I will say something a little later in this judgment about the case against the authenticity of that signature. I proceed for the moment on the basis that Cacheta Johnson did indeed sign this will. It is signed in the presence of two witnesses. The witnesses were employees of the solicitors who acted for Cacheta Johnson in relation to the making of the will.
22. The will contains a number of usual ingredients. By clause 1, Cacheta Johnson revoked previous wills. By clause 2, she appointed Gloria Martin and Gloria Martin's son, Michael Martin, to be executors and trustees of the will. By clause 4, she gave a specific gift of a dinner table and chairs to a Shaneka Martin and, by clause 5, she gave a specific gift of another piece of furniture to Tia-Oonagh Martin. Shaneka and Tia-Oonagh were both great granddaughters of Cacheta Johnson and they were granddaughters of Gloria Martin.
23. So far as the residuary estate was concerned, this was dealt with in clause 7. The residuary estate was to be divided three ways, between Gloria Martin and her two sons, grandsons of the testatrix, Michael Martin and Richard Martin.
24. The other relevant feature of this will is clause 9, which I will read in full. The testatrix said:-

"I have at all times kept in mind my son, Clement Johnson, whose address is unknown to me, and seen fit not to provide for him under this my will feeling it more appropriate to leave my estate to the above mentioned beneficiaries."

I remark that the will does not mention Harrington Johnson.

25. I refer next to the circumstances, which were established in the evidence, in which the February 1999 will came to be made. The Court has had a bundle of documents from the solicitors' file. The solicitors for the February 1999 will were a firm of Sanders, Mare Street, London E8. In the course of 1999, Sanders were merged with or taken over by the firm of Traymans, and that firm maintained the Mare Street office for a time. In that bundle there is a letter from Sanders, dated 29th October 1998. It is addressed to "Ms C L Johnson". The address is an address in Hackney, which was the address of Gloria Martin and not the residence of Cacheta Johnson herself. The letter of 29th October 1998 refers to a meeting with Cacheta Johnson. The letter enclosed a draft will and suggested that Cacheta Johnson reads it through carefully, making alterations as appropriate. The letter goes on to state that Sanders will telephone Cacheta Johnson in due course with a view to fixing up a meeting in their offices when Cacheta Johnson can sign the will in the presence of two independent witnesses at the solicitors' office.
26. In relation to the February 1999 will, it is clear that Gloria Martin, who was to take a third of the residuary estate under it, did assist her mother in relation to the will. Sometimes assistance given by a beneficiary creates a cloud of suspicion over a gift in favour of that beneficiary. However, set against that is the very natural consideration that if an elderly lady wants to make a will and instructs a solicitor to do so, and if that elderly lady is becoming less able to get about independently, it is the most natural thing in the world for an elderly lady to rely upon a trusted daughter to assist her with the process of instructing solicitors and going to solicitors. My overall reaction to the events of October 1998 to February 1999 is that I am not particularly suspicious as to the behaviour of Gloria Martin just because she assisted her mother in instructing the solicitors and in going to the solicitors.
27. I ought to make one or two other comments about the February 1999 will. Harrington Johnson was not mentioned in the February 1999 will, whereas Clement Johnson was, but only to explain why he was not to take under it. Evelyn Johnson in her evidence to me told me that Harrington knew that the February 1999 will was being made and he did not express any wish to take under it. He was in contact with his mother at the time and his mother may well have felt that it was unnecessary to make a statement relating to Harrington Johnson of the kind in clause 9 of the will relating to Clement Johnson. I accept Evelyn Johnson's evidence to that effect.
28. Clement Johnson has made a number of allegations as to the circumstances in which Cacheta Johnson made her wills. One of his allegations was, I regret to say, particularly bizarre, to the effect that Harrington Johnson had impersonated his mother and had signed the February 1999 will, purporting to be the signature of his mother. I simply do not understand how it could realistically be argued that the male Harrington Johnson, some decades younger than Cacheta Johnson, a female, could effectively carry off an impersonation of his elderly mother in a solicitor's office in that way.
29. The next relevant event is the draft codicil. The codicil was prepared by Sanders/Traymans. We have a copy in the solicitors' file. The relevant change to the February will was a change in the gift of residue. Instead of it being divided three ways, as I have described, it was now to be divided four ways and the newcomer taking a fourth share was Harrington Johnson. We have some information as to the circumstances of the codicil being prepared. In the solicitors' file, the solicitors made a handwritten note. I will not read out everything contained within it, but it conveyed the sense that Harrington Johnson was to be added as a beneficiary. What is significant is that the note said that Harrington Johnson's address was "tba" (to be advised). That indicates to my mind that it was not Harrington Johnson who instructed the solicitors to add him as a beneficiary, it was likely to be Cacheta Johnson herself. She may have used Gloria Martin to assist her in relation to that, because Mrs Martin's name appears on the solicitors' note. What might well have happened was that Gloria Martin was still in London when the solicitors were first instructed about the codicil, but she may well have left London shortly thereafter and did not carry through the instruction on her mother's behalf in relation to the codicil.
30. On 11th May 1999, Mr Albert at the firm of Sanders wrote to Cacheta Johnson sending the draft codicil and saying that he would telephone Cacheta Johnson's daughter, that is Gloria Martin, to let her know when the engrossed copy was ready for execution. In fact, as I have said, we do not know if the codicil was executed or not. It looks as though it might very well not have been executed.
31. One can take the matter up in August 1999, when preparations were in hand for the execution in December 1999 of the later will. I will go first to the terms of the December 1999 will and then say a little bit about the circumstances in which it was executed. The December 1999 will is dated 21st December 1999. There appears to be the same signature of Cacheta Johnson as appeared on the February 1999 will. It is witnessed by Mr Albert, who was at the firm of Sanders or Traymans, and it is also witnessed by a Miss Cohen, who was a legal secretary at that firm.
32. The will is very short. The operative parts are confined to a single page, although the witness and testation parts appear on the second page. It is not a difficult will to read or understand. It appoints Harrington Johnson to be sole executor and trustee and, in clause 7, it contains a gift of the residuary estate to Harrington Johnson absolutely. In clause 1, former wills are revoked. In clause 2, Cacheta Johnson expresses her desire to be buried. I refer to that because that appears in a manuscript note made by the solicitors when instructions were taken in relation to this will.
33. Turning to the solicitors' file which deals with the relevant will, there appears to be a note relating to the December 1999 will prepared by the solicitors. It refers to Harrington Johnson being sole executor. It then contains this phrase: "I desire to be buried". The impression one gets from reading that is that these were the instructions of Cacheta Johnson herself. It is not put in the third person. It is in the first person as to what she wanted. But, as I have drawn attention already, clause 2 of the will when executed does faithfully carry forward that expression of desire. The note refers to something else, one imagines the reference is to the draft will being sent to Harrington Johnson.
34. Later in the file, there is a clearer typewritten note, dated 10th August 1999. It refers to Mrs Cacheta Johnson coming into the office. She was accompanied by her son Harrington. He was described as being in a wheelchair. I draw attention to that because there is nowhere in the note any reference to any particular relevant disability that Mrs Cacheta Johnson had. There is a suggestion that Gloria Martin had transferred the house at 38 Cecilia Road into Gloria Martin's name, effectively against the wishes of Cacheta Johnson. I think that shows that there had been a rift by August 1999 between mother and daughter. The mother was certainly suspicious of the daughter and what she might have done. There is also a suggestion that Gloria Martin forced Cacheta Johnson to alter her will. It is not quite clear what that is about, unless the February 1999 will replaced some earlier will which was less favourable to Gloria Martin. At any rate, that, to my mind, does not bear on the present dispute. The note ends by referring to an appointment made for Cacheta Johnson and her son at 11am the following day.
35. On 18th August 1999, Traymans wrote to Cacheta Johnson. Indeed, they wrote to her at her own residence, 38 Cecilia Road. The solicitors referred to the visit to the office and to the possibility of a new will and to another matter about the land certificate. When referring to the will, the author of the letter suggests that Cacheta Johnson comes to see the author of the letter, "when your son", whom I find to be Harrington Johnson, "returns from holiday and you can then make a new will if you so require". So it looks as if the solicitors were regarding the other matter about the land certificate and Gloria Martin having possibly transferred the house as being the more pressing matter and the question of the will was something that could be attended to when Harrington Johnson was back and available to bring his mother into the solicitors' office.
36. On 17th November 1999, the solicitors wrote to Harrington Johnson at his address. The letter referred to a recent meeting in relation to his mother's will, so there must have been a meeting, as envisaged, between August and November in relation to the will. The letter enclosed a draft of the proposed will. Harrington Johnson was asked to check that it accorded with her, that is Cacheta Johnson's, instructions. Cacheta Johnson was asked to read it through carefully and the author of the letter stated that he would telephone her, that is Cacheta Johnson, when a final copy was ready for collection. There is a reference to the will intended to be signed in the solicitors' office with two independent witnesses.
37. The Court has been provided with a witness statement from Mr Sander of Sanders, later of Traymans. He did see Cacheta Johnson in August 1999, although the December 1999 will was then delegated by him to another employee or member of the firm. Mr Sander did not attend to give oral evidence, but his witness statement is admissible and has been admitted as relevant hearsay evidence. In paragraph 5 of his witness statement, he says he was instructed by Mrs Cacheta Johnson. He refers to the circumstances and he concentrates in particular upon the problem of Gloria Martin and the transfer of the property or the perceived problem at that time.
38. While I have Mr Sander's statement open, I would also refer to paragraph 7 of it. He there refers to his belief and his understanding, rather than something that he observed himself. He refers to Mrs Cacheta Johnson later attending the office of Traymans, but he in part in that paragraph is also dealing with the time when he himself met Cacheta Johnson. There is no suggestion in Mr Sander's statement that she had any difficulty in giving him instructions.
39. In paragraph 11 of the statement -- this is a paragraph that must include the meeting in August 1999 or thereabouts -- he says:-

"I do have a recollection of meeting Mrs Johnson when she came to my office to deal with the question of the statutory declaration. I certainly do not recollect Mrs Johnson as being blind",

and he says he would have remembered if she had been blind.

40. There is some other oral evidence about the circumstances of the making of the December 1999 will. Mrs Evelyn Johnson prepared a statement on 28th February 2006. In paragraph 4 of that statement, she says this:-

"In or about March/April 1999, my mother-in-law and Gloria had an altercation. I saw my mother-in-law shortly after and she was very upset. Gloria said she was going to Jamaica for six months. Gloria ceased all contact and did not ring her mother or write and never returned from Jamaica. My mother-in-law waited and waited and finally started cursing Gloria. As my late husband, Harrington, and I were the only ones looking after her, she then decided to make a new will in December 1999, appointing my late husband, Harrington, as the sole executor and leaving him her entire estate. My late mother-in-law told everyone that the Claimant was not to get a single penny that she had worked for as he was never around. I recall that I took my mother-in-law to the solicitor's office and sat outside in the waiting room while she went in to see the solicitor. We then went back to the solicitor's office approximately ten days later for her to sign the will. She also had full capacity to do this will. My mother-in-law was certainly not blind and did not carry a white stick."

41. I believe that the essence or substance of that passage is correct. Evelyn Johnson says that she took her mother-in-law to the meeting between August and November 1999. A statement that Evelyn Johnson took her mother-in-law does not preclude the possibility that it was both Evelyn Johnson and Harrington Johnson who went with Cacheta Johnson to the solicitors' office. As to the precise dates and the starting and the end of the period of six months, I have of course got the more detailed chronology from the solicitors' file. It seems clear that the possibility of a new will was raised as early as August 1999. It did not just happen shortly before 21st December 1999.
42. I ought to say a word about Evelyn Johnson's evidence generally. Clement Johnson would wish me to decide that Evelyn Johnson is not a truthful and reliable witness. He wanted to advance that case specifically by reference to the deed of gift of May 2001 and the sale, or purported sale, to Gloria Edwards in April 2002. As I said earlier, those issues as to the deed of gift and the sale are not strictly before the Court, but I do recognise that they go in a general sense to the credibility of Evelyn Johnson.
43. I also can say in Clement Johnson's favour that there is something which needs to be investigated, if it were a relevant issue, as regards the deed of gift and the sale to Gloria Edwards. It is not clear cut. I do not say that I am particularly suspicious, but I can see that the matter might take on a different complexion from that shown by the documents if one went into it further.
44. Having said all that, my own assessment of Evelyn Johnson is that she was a truthful witness. The need for an investigation, if it ever became relevant, of the deed of gift and the sale to Gloria Edwards did not undermine, in my judgment, the reliability of Evelyn Johnson. Indeed, in most respects, Evelyn Johnson's evidence is corroborated either by the picture revealed by the contemporaneous documents or by letters which have been written, to which I will later refer. So I do accept the main thrust of paragraph 4 of Evelyn Johnson's witness statement of 28th February 2006 and, anticipating what I shall have to say later, I generally accept the reliability of Evelyn Johnson's account on matters which are relevant. I do so the more readily where they are corroborated by documents or by letters giving evidence of circumstances.
45. I have now dealt with the two wills and the draft codicil and the circumstances behind them. The challenge which is put forward by Clement Johnson is that his mother, Cacheta Johnson, was illiterate and that she was virtually blind in 1999. He says that, in those circumstances, she did not know and approve the contents of either will or, more particularly, the propounder of the will fails to discharge the burden of proving that Cacheta Johnson did know and approve the contents of the will. If either of these allegations were true, it would follow that Cacheta Johnson would not be able to read the will herself. That does not necessarily mean that she would not know and approve the contents of it, but one would have to investigate how she came to know and approve the contents if she could not read the will for herself.
46. It seems to me that the first question I should answer is whether Cacheta Johnson was illiterate. Clement Johnson says she was. His first witness statement makes that assertion but does not give any supporting evidence. In a later witness statement, which he prepared the Friday before the trial began on the Monday, he explained this matter a little more fully. He talked about his mother's family and siblings. He said that he, Clement, wrote letters for his mother. He tried to teach her to read and write (and I infer he would say that he failed to teach her to read and write). He said she was embarrassed by being illiterate. She had various techniques for covering that up. She would often say she did not have her glasses as an excuse for not reading something. In the course of his evidence and/or submissions to me, he reiterated that people read things for her. She asked people to read things for her and she used her glasses as an excuse. I readily accept that people who are illiterate often go to some lengths to cover it up. I can see that there is a possibility from the fact that she made an excuse about her glasses (if she did so) that Cacheta Johnson did have difficulty in reading. That is Mr Clement Johnson's evidence.
47. As against that, I have Evelyn Johnson's witness statement of 28th February 2006. In paragraph 2 of that statement what is said is "My mother-in-law was not blind. She did have cataract problems and used to wear glasses. She was certainly not illiterate and used to read her Bible, which she kept next to her bed. I recall I bought her a magnifying glass to make it easier to read. She used to love bingo and used to go to the bingo hall two to three times a week or more if she could afford it. She would hop on the bus and go by herself." The reference to bingo was qualified by some oral evidence given. It is clear that Cacheta Johnson was failing in her general abilities towards the end of her days and she stopped going to bingo just perhaps before the making of these wills in 1999. I find her not going to bingo was particularly, if not exclusively, attributable to difficulties in mobility. I do not find that not going to bingo says anything about her ability to see.
48. The matter does not rest there, because Evelyn Johnson has produced two letters from friends or acquaintances of Cacheta Johnson. I will not read out these letters, but I regard them as of very considerable help in judging this matter. The first letter is from a Mrs Isolene Watson, dated 27th June 2005. She gives a large number of examples which powerfully support the case that Cacheta Johnson was not illiterate; and indeed that she was not blind or virtually blind at the relevant time, 1999. To similar effect is a letter from Mrs Eunice Riley, dated 29th June 2005. Neither Mrs Watson nor Mrs Riley came to Court to give evidence. Mrs Riley, we were told, was not an elderly lady and so one imagines would not have had undue physical difficulty in coming to Court. The Court would have felt more confident if these witnesses had come to Court and given evidence and been cross-examined and their credibility could be judged. As against that, there is no particular motive that they would have for distorting their evidence except conceivably a misguided sense of friendship to Evelyn Johnson. But the suggestion that they are in league with Evelyn Johnson was not put to Evelyn Johnson and I am not prepared to make adverse findings about these two witnesses. In short, I regard their evidence as of considerable assistance in assessing the matter on the balance of probabilities.
49. In these circumstances, I find that Cacheta Johnson was able to read, certainly to a sufficient extent to read the wills of February and December 1999 and to understand what the words she read meant. The words, of course, are in legal form, but the basic operation of the language is not difficult and would have been understood by someone of reasonable intelligence and ability. I will say something later about Mrs Cacheta Johnson's general abilities. So I find that Clement Johnson fails to establish that his mother was illiterate at any time, but in particular in 1999.
50. Clement Johnson then says that his mother was virtually blind. We have much the same evidence on this topic. I have referred to Evelyn Johnson's witness statement at paragraph 2. I refer again to the letters from Mrs Watson and Mrs Riley.
51. A document to which I attach considerable importance is a Social Services report of 1st November 1999. This was a review of the social work case of Cacheta Johnson. It was conducted by Anna Fleming, who was a social worker with the London Borough of Hackney. There is a considerable amount of detail as to Mrs Johnson's state and condition. As written, the report indicates that the informant is Mrs Johnson herself and not someone saying these things on her behalf. No one else is recorded as being present at the interview, but the second page of the note refers to a discussion with Evelyn Johnson. It might be that that discussion was at another time. If Evelyn Johnson had told me that the discussion was at another time, I would have been minded to accept that evidence, but Evelyn Johnson very fairly thought that she was present, even though she is not recorded as being present, at this interview. Nonetheless, I feel I ought to give effect to the way in which the interview note is written and to regard this as a series of statements by Cacheta Johnson herself. That is highly relevant in considering her general capacity and ability to understand what was going on around her.
52. For present purposes, dealing with blindness, there is only really a passing reference to eyesight in the note. It says that Mrs Johnson has cataracts in both eyes and is under the care of Moorfields for this. If Cacheta Johnson was blind or virtually blind, this careful and detailed note about her condition would have mentioned it. The absence of any such reference is powerful evidence that in November 1999 Cacheta Johnson was not blind or virtually blind.
53. I have also referred to paragraph 11 of the witness statement of Mr Sander, the solicitor who saw Cacheta Johnson in August 1999. Furthermore, if one looks to a slightly later time, May 2001, this was at a time when another firm of solicitors, the firm of Hutchins, made a home visit to Cacheta Johnson. There is a letter of 25th May 2001 from Hutchins to Cacheta Johnson referring to the home visit and enclosing a draft deed. The author of the letter asks Cacheta Johnson to check that her name was spelt correctly and to obviously overlook the deed. It seems to me that that would be a most remarkable letter for the solicitors to have written if it had been apparent at the home visit in April or May 2001 that Cacheta Johnson had virtually no eyesight.
54. I do not disregard the documents which Mr Clement Johnson has put before me and forcibly relied upon. Because of the detail of the matter, I am not going to go through every such document. They are in a bundle of documents which Clement Johnson prepared to advance his case during the course of the hearing. They begin with a note of 4th May 1978. They continue in that bundle up to 1994. There is also a further bundle that Mr Clement Johnson prepared which contains some later documents from 1999, and I will refer to these.
55. On 5th January 19999, Cacheta Johnson's general practitioner wrote to a consultant ophthalmic surgeon at Moorfields Eye Hospital and stated that:-

"[Cacheta Johnson's] family have recently become concerned because of her rapidly deteriorating vision. She is at the moment hardly able to sign her name", and there is a reference to an earlier diagnosis of Jamaican optic atrophy.

56. The next letter that is relevant is the ophthalmic surgeon's response of 4th August 1999, following a clinic on 12th July 1999. The surgeon stated that Cacheta Johnson had presumed Jamaican optic atrophy, which "limits her visual potential". There is a reference to cataract surgery in the past and "her best corrected acuities are 3 over 24 in either eye". It goes on to say that she did not require a change of spectacles.
57. I have read and re-read the documents from the eye people (if I can call them that). I have great difficulty in understanding what exactly those documents show. The difficulty is that they do not deal with matters of ordinary understanding, they deal with technical and expert matters. Both parties were given the opportunity to call expert evidence in this case. There was to be sequential disclosure, with Clement Johnson disclosing his expert evidence on this topic first. Neither side has called any expert evidence to assist the Court. I, therefore, have to do the best I can with regard to all of the evidence, including the technical material, to the extent that I am able to understand it.
58. I have already referred to the non-technical evidence being all one way about blindness or virtual blindness. Indeed, the letter of 4th August 1999 stated that Cacheta Johnson did not require a change of spectacles. If Cacheta Johnson had been virtually blind, the idea of spectacles being in any way material would be a surprising one. Her acuities were said to be 3 over 24 in either eye. I have to say I simply do not know what the technical significance of that is. Technical people reading this judgment may know and may react to that information in a way I know not.
59. It seems to me, on the basis of the other evidence that I have comprehensively set out, that the correct finding is that Cacheta Johnson was not blind in 1999. Secondly, Cacheta Johnson was not virtually blind in 1999. Thirdly, Cacheta Johnson had poor sight but, fourthly, she was able and would have been able to read the wills of February and December 1999.
60. I will deal briefly with other features of Cacheta Johnson's health. Mr Clement Johnson has put before the Court other information as to his mother's medical condition. In particular, Clement Johnson relies on references in documents to dementia. Taking them in date order, Homerton Hospital produced a note relating to Cacheta Johnson. The diagnosis was said to be two-fold. Dementia was one and a leg ulcer was the second. In a discharge note following a discharge on 21st September 2001, there were a number of matters referred to. Dementia was not the cause of admission to hospital on that occasion, but amongst the related matters her complications were said to be poor vision and multi-infarct dementia. What has not been established is the gravity, severity or lack of severity of the dementia. Mrs Cacheta Johnson was in her eighties around that time.
61. What, I repeat, I regard as helpful to me is the social worker's notes of 1st November 1999. I have already referred to those and the finding I make is that, in November 1999, Cacheta Johnson was able to be interviewed, have a conversation with the social worker and give the social worker a great deal of information, all of which appears to be accurate, as to her circumstances. So I do not think that Cacheta Johnson was severely impaired, certainly nowhere near sufficiently impaired, to lack testamentary capacity, in 1999.
62. Before I make my final findings on this matter, I ought to identify the relevant legal principles which fall to be applied. For the wills of February or December 1999 to be effective, the testatrix must have known and must have approved the contents of her wills. This question of knowledge and approval is perhaps bedevilled by language used in cases long ago about the "righteousness of the transaction", but that language has to an extent been put on one side and "knowledge and approval" are in short given their ordinary meaning.
63. That is demonstrated by a decision of the Court of Appeal in Fuller v Strum [2002] 1 WLR 1097. In his judgment, Lord Justice Chadwick (who gave the second judgment) paraphrased the requirement of knowledge and approval by saying at paragraph 59 that:-

"… the judge needed to be satisfied that it did truly represent the testator's testamentary intentions …"

So I have to ask whether the wills of February and December 1999 have been shown to represent Mrs Cacheta Johnson's true testamentary intentions.

64. There is of course a presumption from due execution: if a person of sound mind signs a will which is not particularly difficult to understand or has no extraordinary features, then one would readily assume that the testator or testatrix knew and approved the contents of the document so signed. There are circumstances in which that presumption will be treated as rebutted. There may be positive evidence, for example, that the testatrix thought she was signing a wholly different class of document. There may be positive evidence as to the state of the testatrix's mind that she did not know of the existence of a particular clause. There may be other cases where the whole circumstances of the execution of the document reek of suspicion and the Court is vigilant and jealous as to what was really going on. It may be a case where an intended beneficiary has taken advantage of a somewhat vulnerable person, an elderly person in particular.
65. Cases where those considerations have been investigated include the Fuller v Strum case itself, but I have also been referred to three other authorities which I have found helpful. The first is Hart v Dabbs [2001] WTLR 527, the second Reynolds v Reynolds [2005] EWHC 6 (Ch) and the third the decision of the Court of Appeal in Sherrington v Sherrington [2005] EWCA (Civ) 326. It is not necessary for me to go to the circumstances of those cases, but I found them useful in seeing how other courts have reacted to other sets of facts.
66. The overall burden of proof in relation to knowledge and approval is on the propounder of the will, but the propounder of the will has the benefit of the presumption which follows from due execution, unless that presumption is affected by contrary evidence. Finally, in this area, as generally in civil litigation, the burden of proof is on the balance of probabilities.
67. Before I give my final conclusion on the question of knowledge and approval, I do want to say something very briefly about the questions of due execution and testamentary capacity. I have recorded that I refused permission to allow Mr Clement Johnson to put those forward as specific heads of challenge to the will or wills. However, I have heard all the evidence that Clement Johnson wanted me to hear on those matters. Having heard it, in fairness to the parties, I ought to explain the impact that that evidence had upon me.
68. In my judgment, there is no real case for saying that Cacheta Johnson did not execute the wills of February and December 1999. Further, there was no real case that Cacheta Johnson did not have testamentary capacity in February and December 1999. I would not want Mr Clement Johnson to think that he had somehow been denied justice because, if he had only been able to amend his pleadings, he would have been able to succeed on those topics.
69. So I come to my conclusion on the issue before the Court as to Cacheta Johnson's knowledge and approval of the contents of the will or wills. I find as follows, essentially on the basis of the evidence that I have been given. Cacheta Johnson knew and approved the contents of her will of December 1999. I can summarise the various findings I have already made. Cacheta Johnson was not illiterate. She was not blind or virtually blind. She had a good understanding of her own affairs. The December 1999 will, in particular, was short and easy to understand. Cacheta Johnson gave her own instructions to her solicitors, received legal advice and signed the will in her solicitors' office. The background facts do not make the contents of the will in any way surprising. The December 1999 will effectively revoked the February 1999 will. The December 1999 will is the effective last will and testament of Cacheta Johnson. If it had been relevant, I would have held that Cacheta Johnson knew and approved the contents of the February 1999 will also. It follows from these findings that Cacheta Johnson did not die intestate.
70. So far as relief is concerned, the Claimant seeks a declaration asking the Court to pronounce against the wills. There is no counterclaim asking the Court to pronounce in favour of the wills. There is in particular no question of a grant of probate in solemn form, not least because the executor, Harrington Johnson, is dead, there is no chain of executorship and I am not asked to do anything in relation to letters of administration with the will annexed.
71. It seems to me that I ought to make a declaration which records the outcome of the judgment I have given, and the declaration that I propose to make, subject to hearing the parties, is a declaration to the effect that the will of 21st December 1999 is the effective last will and testament of Cacheta Johnson, who therefore did not die intestate. In other respects I will dismiss the claim.
72. In relation to costs, subject to any change from the discussion yesterday, I will make an order that Clement Johnson pays the costs of these proceedings, to be the subject of a detailed assessment. I will direct that that order is not to be enforced in accordance with the provisions of the Legal Aid Act. It may be that Mr Ohrenstein can assist me with the usual form of order. Mr Clement Johnson had costs protection, but technically only during the period that he had public funding. So I cannot give him costs protection for the period when he ceased to have public funding. As both sides were legally aided at some point, it seems to me that I should also make an order for legal aid assessment of the costs of both parties during the period that they have public funding. I believe that those are all the matters which arise, and that is the judgment which I give in this case.

THE DEPUTY JUDGE: Mr Ohrenstein, can you tell me if there is anything else that needs to be attended to?

MR OHRENSTEIN: Not that I am aware of, my Lord.

THE DEPUTY JUDGE: Right. Mr Clement Johnson, is there anything you want to seek?

MR JOHNSON: Yes, my Lord. Obviously, my Lord, I will appeal your judgment.

THE DEPUTY JUDGE: Right. Do you want permission to appeal from me?

MR JOHNSON: If I could, my Lord.

THE DEPUTY JUDGE: Do you want to say anything as to why I should give it? It may be obvious why you think I should give it.

MR JOHNSON: I do submit that my case was badly presented and I do believe I have an appeal.

THE DEPUTY JUDGE: Right.

MR JOHNSON: To put a stronger case on legal advice and I will appeal.

THE DEPUTY JUDGE: Right. Well, I refuse you permission to appeal. You are free to go to the Court of Appeal and ask them. I will have to fill in a form explaining my reasons for refusing you permission to appeal, and I will tell you that my reasons are that the case did not involve any principle of law. It involved an assessment of the evidence and, in particular, in some respects the credibility of witnesses. I have formed the views that I formed on that, and it is my understanding that the Court of Appeal would not be inclined to interfere unless I have (to put it colloquially) made rather a mess of it and I am not persuaded I have done that.

MR JOHNSON: I am not saying you, my Lord.

THE DEPUTY JUDGE: No. I am not in the least bit put out by your application. I am just recording what my reasons will be for withholding permission to appeal. So far as the documents go, I got a message from the usher that you would like to have some of you documents back.

MR JOHNSON: Yeah.

THE DEPUTY JUDGE: One of the difficulties is, particularly if there is to be an appeal, it may be appropriate for the Court file to have all the material that was before this Court. I am inclined to hang on to the documents and keep them on the Court file for that reason.

MR JOHNSON: I can get other copies.

THE DEPUTY JUDGE: Well, I think everything you have given me is a photocopy, with the possible exception of what you had from Master Bowles on 5th October. No, those are all photocopies too. I think what I will do is I will keep the documents on the Court file and if you feel that you need a document you cannot otherwise get access to, you can ask for it to be made available to you. I think that is everything. Thank you both and I will rise.

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