England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIISION
PROBATE

		19th Dec 2007

Mr Justice NORRIS

1. Freda Walters ("the Deceased") died on the 20^th May 2006 aged 93. She was survived by her husband Harold Walters ("Mr Walters") now aged 96, and by the two daughters their marriage - Leone Ruth ("Leone") and Rosalind Andrea ("Rosalind"). Leone married and had children, three of whom survived the Deceased; they are Joanna, Andrew and Edward. Rosalind married and had two children, both of whom survived the Deceased. I will call the children of Leone and of Rosalind together "the Grandchildren".
2. The principal asset in the Deceased's estate is a substantial house in Mill Hill which had been the family home since 1948. But the Deceased also owned 13.33% of the shares in the family property company, Walters Properties Ltd, and 14.2% of the shares in the family trading company, Walters (Battersea) Ltd. The business of a department store and clothing chain had originally been operated through these companies, but in the early 1980s that business refocused on property investment, letting out serviced offices on the upper floors of the Battersea premises and retail units on the ground floor. It was common ground at trial that these businesses were substantially the creation of Mr Walters.
3. The Deceased had made a will in February 1953, as had Mr Walters ("the 1953 Will"). It appointed Mr Walters and two solicitors to be her executors and gave her entire estate to Mr Walters if he survived her by three calendar months; but in the event of his not so surviving her then the 1953 Will gave the estate to Leone and Rosalind in equal shares absolutely.
4. The 1953 Will was apparently revoked by a will made on the 11^th March 1988 ("the 1988 Will"), on which date Mr Walters also made a will in almost identical terms. The 1988 Will appointed Mr Walters and Andrew (then about to be admitted as a solicitor) to be the executors. By clause 3 it created a settled legacy in a sum equal to the nil rate capital transfer tax band, providing for a discretionary trust of income and then a stirpital division of capital amongst the Grandchildren. The residue of the estate was then by clause 6 left to Mr Walters if he survived for a period of 30 days; but should he fail so to do then the residue was divisible into three equal shares – one for Leone, one for Rosalind and one for the Grandchildren in equal shares.
5. The 1988 Will was apparently altered but otherwise confirmed by a codicil dated 18^th May 1998 ("the Codicil"). This revoked clause 6 of the 1988 Will and substituted a new clause. The new clause 6 still provided for the entirety of the residue to pass to Mr Walters if he survived for 30 days. If the survivorship condition was not satisfied then the residuary estate was still divisible into three equal shares. But under the Codicil in this event Leone took only a life interest, on her death her share passing " to such of her children or remoter issue as shall be living at her death if more than one equal shares but so that no issue shall take whose parents are still alive so capable of taking". The share passing to Rosalind was treated in the same way. There was a small alteration in the trusts of the one third share passing to the Grandchildren.
6. In these proceedings commenced in March 2007 Andrew asks the Court to pronounce in solemn form of law in favour of the 1988 Will and the Codicil; and he seeks a declaration that the Codicil takes effect as a valid and effective mutual Will. By way of consequential relief he seeks a declaration that Mr Walters "holds the Deceased's estate (sic) upon the trusts identified within the mirror codicils" (this is the formulation in the Claim Form: the Particulars of Claim put the matter slightly differently). A further claim for an injunction restraining Mr Walters from making any inter vivos dispositions intended to defeat the alleged mutual codicils was not pursued at trial (because of the frank recognition by Mr Blackett-Ord, who did not settle the Claim Form or the statements of case, of the extreme difficulty of formulating the terms of such an injunction).
7. In his Defence and Counterclaim Mr Walters

(a) alleges that the 1988 Will is invalid (being not properly attested since the Deceased was not present when her signature was purportedly witnessed by Mr Lewis and Miss Podger):

(b) alleges that the Codicil is invalid (being not properly attested since the Deceased was not present when her signature was purportedly witnessed by Mr Lewis and Miss Podger):

(c) denies that the Deceased and he made any contract in law that had the result that their codicils were irrevocable after the death of the first of them;

(d) alleges that Andrew was in breach of his fiduciary and contractual duties and was negligent in connection with the preparation of the Codicils (and seeks damages).

The Counterclaim contained a prayer that the Court should pronounce in favour of the 1953 Will: but this was not pursued at trial.

8. In the course of giving judgement on an interlocutory appeal in this case Lord Justice Rimer described the doctrine of mutual wills "as anomalous and unprincipled". I respectfully agree. This character is perhaps not surprising since the doctrine has developed out of the application to similar (but not identical) situations of ideas deriving from joint wills, covenants to make wills and secret trusts, so that the authorities do not always speak with one voice as to what is truly essential to the doctrine or as to the mechanisms by which it operates or as the consequences of its application.
9. But there is at least clear guidance on what must be established before the doctrine can be invoked. In my judgement its irreducible core is that there must be a contract between T1 and T2 that in return for T1 agreeing to make a will in form X and not to revoke it without notice to T2, then T2 will make a will in form Y and agree not to revoke it without notice to T1. If such facts are established then upon the death of T1 equity will impose upon T2 a form of constructive trust (shaped by the exact terms of the contract that T1 and T2 have made). The constructive trust is imposed because T1 has made a disposition of property on the faith of T2's promise to make a will in form Y, and with the object of preventing T1 from being defrauded. So much is established by Re Dale [1994] Ch 31 in passages from the judgement of (and citations by) Morritt J at pages 38B-C and D-E, 41A-B, 41H-42B, 46E, and 48E-49B. There is no need to refer to the decisions that precede Re Dale, but I should refer to Re Goodchild [1997] 1WLR 1216 for its confirmation of the need (a) for an underlying contract (at p.1224E-G per Leggatt LJ and at 1229C-E per Morritt LJ) and (b) for agreement on the irrevocability of the intended disposition after the death of the first to die (at p.1225F-G per Leggatt LJ). (In my formulation, and particular by the use of the expression "a form of constructive trust", I have tried to avoid entering upon the controversy of whether the trust is a "floating trust" during the survivorship of T2 and a more conventional constructive trust only upon the death of T2: for this point is not in the event material to the case I have to decide).
10. It is by reference to these principles that I must address the evidence. All evidence was given in a straightforward fashion, with each witness doing his or her honest best to tell me the truth as he or she recollected it. The key task for me has been an assessment of the reliability of that recollection, and in that connection I have of necessity placed considerable reliance upon contemporaneous documents and the inferences that may properly be drawn from them, and the inherent probabilities weighed by reference to the characters of the participants as I measured them when they gave evidence.
11. I turn to my findings of fact. Mr Walters is undoubtedly the patriarch. That is the way he sees himself and that is the way he is seen by Leone, Rosalind and the Grandchildren. There can be no clearer demonstration of this than the fact that in support of Mr Walters his two daughters and four of his five grandchildren have each made witness statements in identical form, each acknowledging that the position he or she is adopting is adverse to their direct financial interest, but each (irrespective of age) expressing the "long held view that [Mr Walters] should be allowed to deal with his property entirely as he sees fit whether during his lifetime or upon his death", and also the view that the Deceased's estate "be properly administered by [Mr Walters] and not by [Andrew]". (This last observation has nothing to do with the issues in this case but forcibly demonstrates that, even if the Deceased validly appointed Andrew to be her executor, the witness did not want Mr Walters' control to be trammelled in any way by having to consult his co-executor). The genesis of this statement was explained to me by Joanna Kent. She said "we were asked to write our views that we would allow Grandpa to have his wishes go ahead, so we wrote a statement". This occurred at a family meeting and a common form witness statement (not in the words of any of the witnesses) emerged from Mr Walters' solicitors, which each family member signed.
12. Mr Walters was (in 1988 and until recently) proud of Andrew. There are grounds for that. Andrew qualified as a solicitor, is now a partner in a sizeable firm and is also an Associate Professor of Law at Brunel University. It was the evidence of Mr Mark Kent (which I accept) that Mr Walters depended upon Andrew for legal matters and trusted him implicitly, treating him in some ways as the son he never had.
13. By 1998 Andrew could properly be regarded as the legal adviser to Mr Walters and the Deceased: he was their first point of contact for legal services although he would not necessarily deal with all matters himself. His particular skill is in property litigation, but he had for a time dealt with private client work, especially issues relating to mental capacity, and he described it as "the mainstay" of his articles. He had dealt with two or three cases of mutual wills.
14. By 1998 the Deceased was in failing health, with severe psychological problems and some physical frailty. She was beginning to suffer from minor strokes. It was to Andrew that Mr Walters turned for advice. On the 2^nd February 1998 Andrew advised Mr Walters that it would be appropriate to consider the grant by the Deceased to Mr Walters of an enduring power of attorney. Mr Walters asked Andrew to prepare such grants both for the Deceased and for himself, with Andrew being one of the grantees.
15. In due course Andrew prepared draft grants. That prepared for the Deceased appointed Mr Walters and Andrew jointly and severally to be her attorneys but (at Andrew's insistence) included a restriction that he could not act on behalf of the Deceased until he had reason to believe that both she and Mr Walters were becoming mentally incapable. That prepared for Mr Walters appointed Andrew sole attorney, but (again at Andrew's insistence) provided that he could not begin to act until he had reason to believe that Mr Walters was becoming mentally incapable. Because he was in some circumstances being given power to act on behalf of his grandparents Andrew decided to ask his brother Edward to attend with him, so that the other members of the family could be satisfied that the Deceased and Mr Walters had not been pressured and that the EPAs represented their true wishes.
16. On 21^st February 1998 Andrew and (shortly afterwards) Edward attended on Mr Walters and the Deceased for the purpose of completing the EPAs. This was duly done and Edward witnessed them. Andrew was not anticipating the conduct of any other business. But after completion of the EPAs Mr Walters began to talk about their testamentary affairs. He said that he and the Deceased wished to ensure that their estates eventually passed to the Grandchildren. Andrew reminded him that under the 1998 Will (and under Mr Walters' mirror will) one third share passed to each of Leone and Rosalind absolutely, and that they could do what they wished with their share. Mr Walters then delivered himself of views about the possibility of Andrew's and Edward's father influencing Leone's disposal of her share, and asked whether Leone had left her share to Andrew, Joanna and Edward (which Andrew could not answer). In response to an inquiry whether anything could be done about that Andrew explained the concept of a life interest. Further discussion followed as to the possibility of dealing with Rosalind's share in the same way, and as to the wisdom of the arrangement (in which the Deceased participated). At the conclusion of the discussion Mr Walters asked Andrew to prepare the appropriate papers to carry into effect these wishes that Leone's and Rosalind's respective shares should be cut down to life interests with the capital passing to their respective children. Andrew left the meeting, leaving Edward with his grandparents to take some tea (and afterwards to revise for some examinations). If the Deceased or Mr Walters had been in the least bit unhappy about Andrew's conduct of the meeting they had an immediate and unrestricted opportunity to complain to Edward. Neither did so.
17. So much is clear from the evidence of Andrew (written and oral) and of Edward (written and oral). It is directly supported by a comprehensive attendance note which I find that Andrew dictated within about an hour of the conclusion of the meeting. It is also directly supported by a short note written by Edward (having been requested by Andrew after the conclusion of the meeting so to do) on the 2nd March 1998. I was struck by Edward's summary in these terms:-

"[Mr Walters] stressed strongly that he had worked extremely hard throughout his working life and wanted to make sure that what was to be handed down was to be used properly and constructively for the benefit of the whole family and not squandered. It was his intention and he discussed this with Andrew and myself that he would like his children (Mum and Roz) to be comfortable by having the benefit of the income whilst the capital was to be placed in a trust for the grandchildren. The capital could only be released once the grandchildren's parents had passed away"

It is quite plain that Mr Walters wished to exert control over the destination of what was to be handed on even after his death: and the Deceased may be taken to have shared his view (since on the evidence she followed his lead).

18. It was upon these instructions that the Codicil was drafted by Andrew. But the Codicil contains another provision which is more contentious. On that I will review the evidence before stating my conclusion.
19. It is Andrew's evidence that at the meeting Mr Walters and the Deceased stated that after the first of them died they did not want the survivor to come under pressure to change the testamentary arrangements; in particular Mr Walters wished to protect the Deceased from such pressure (though he did not state from what direction that pressure might come). He has a clear recollection of Mr Walters raising this topic. Andrew says that in the course of the next 10 minutes he advised that there was a method of dealing with that difficulty in such a way that the survivor could say "Back off: even if I change my will, it will make no difference". In layman's language he told them that they could make an agreement referred to in their wills which, once made, could not be changed after one of them died: but that while they were both alive they could do what they liked by agreement. He gives evidence that upon being instructed to implement such an arrangement he drafted clause 2 of the Codicil in these terms:-

"This codicil is made pursuant to an agreement made between my husband and me for the disposal of our property in a similar way by mutual testamentary dispositions"

He says that he sent an engrossment of this Codicil to Mr Walters and the Deceased under cover of a letter dated the 21st of March 1998, one paragraph of which reads:-

"The other main change to your Wills is at clause 2 of your Codicils. By clause 2 you agree that neither of you will, at any time in the future, seek to make any further changes to the testamentary arrangements for distributing your estates without the consent of the other. Obviously after one of you dies no changes at all will be possible. You told me that you wanted this agreement in place so that the survivor of you, especially if it is Grandma, does not come under any pressure from family members to change the testamentary arrangements"

It is this Codicil that was signed by the Deceased.

20. Andrew was not cross examined at any length as to the omission from his attendance note of the meeting of the 21st February1998 of any mention of a discussion about mutual wills (an omission which Andrew described in his witness statement as "inadvertent"): Mr Warwick reserved that matter as one for comment in closing. But Andrew was cross-examined as to what he understood to be the effect of the arrangement he was proposing. In his answers he made clear that he did not consider that anybody was "locked in" whilst both grandparents were alive, and that he told them so. He said that he did not think that the arrangement prevented the Deceased or Mr Walters spending money to take care of their needs, and that he would never have come up with such an arrangement which he regarded as "absurd": but he appeared in some doubt as to whether this now enabled Mr Walters to sell the house (which Mr Walters took under the Deceased's Will). It was evident that such practical matters had not been discussed at the meeting. He was also cross-examined as to exactly when "the agreement" was made. He expressed the opinion that the agreement was made at the time when the document (that is the Codicil) was signed: but he said (in my judgement, correctly) that he could not state exactly when it was made, but could only say what he advised and what his grandparents did.
21. This account of events is not accepted by Mr Walters. In paragraph 23.1 of his Defence Mr Walters states that he has no recollection of the alleged meeting but that he does not accept the accuracy of Andrew's attendance note (and puts him to proof of its contents). In paragraph 23.2 he specifically denies that he and Deceased made a contract in law that had the result that their respective codicils were irrevocable or irrevocable from the death of the first to die. He says that he has no recollection of receiving any letter in the terms which I have quoted above.
22. Nor is Andrew's account supported by Edward. Edward can recall a general discussion between Andrew and Mr Walters of "what would happen to [his] grandparents' estate once they died" but he has no recollection of any discussion to the effect that is grandparents "would be prohibited from making any further changes to their wills", and he points out that his note records no such discussion.
23. On this evidence I make the following findings:-

(a) During the last 10 minutes or so of the meeting on the 21^st February 1998 a discussion took place between Mr Walters and Andrew in the presence of the Deceased in the terms which I have recorded in paragraph 19 above;

(b) Andrew's evidence on this was clear and unshaken by cross-examination;

(c) Neither of the other surviving participants in the meeting has any positive recollection to the contrary;

(d) There is every reason to suppose that the conversation took that turn because at Mr Walters' instigation the conversation had moved from arrangements for the management of his and the Deceased's affairs during their lifetimes to the topic of how they could control the devolution of their estates after their deaths and ensure that their wish that their grandchildren should inherit could be made to secure (recorded in Edward's note), and the progression from "life interests" to "mutual wills" is in that context unsurprising ;

(e) The omission from Edward's note of any reference to the discussion is understandable because he had originally been asked to attend for the purpose of observing the grant of the EPAs, and had then been asked to make a note of the meeting because of anticipated discord occasioned by the cutting down of Leone's and Rosalind's interests from absolute interests to life interests (which took up most of the meeting), a focus which explains why he did not in his note record that he had witnessed the EPAs (an event that undoubtedly occurred);

(f) The omission from Andrew's note of any reference to the discussion is less understandable, but Andrew's note was plainly not comprehensive (for it omits to record the signing of the rent review documentation to which Edward does allude in his note), and the omission is remedied by the account of events contained in his letter of the 31^st March 1998;

(g) The discussion lead to an agreement between Mr Walters and the Deceased that the solution that Andrew offered should be adopted and that Andrew be asked to implement the arrangement under which their respective wills in the agreed form could only be changed by agreement during their joint lives and could not be changed by the survivor;

(h) I have no doubt that the letter of 31^st March 1998 recording this arrangement was received by Mr Walters and the Deceased, because they signed the documents that it enclosed;

(i) Although I have only seen Mr Walters nine years after the events in question and affected by the passage of those years, I am satisfied that in 1998 he was a capable and forceful man who, if he had received a letter which falsely said

"You told me that you wanted this agreement in place so that the survivor of you….. does not come under any pressure from family members to change the testamentary arrangements"

would have challenged the statement and would certainly not have signed a document which recorded such an agreement.

24. The witnesses called by Mr Walters sought to surround the Codicil with a haze of impropriety. The case (never squarely put to Andrew) appeared to be that no such conversation (about life interests or mutual wills) had taken place and no such agreement about mutual wills had been made, that Andrew had thought (for the purpose of entrenching his own position in the family – "creeping in and taking control like a Godfather" - and his personal financial gain) of the idea of life interests and mutual wills, had smuggled it passed his unsuspecting grandparents, and then suppressed and concealed the codicils, so that Mr Walters and the rest of the family thought that the testamentary arrangements were to be found in the 1988 Will (and in Mr Walters mirror will), leaving absolute interests to Leone and Rosalind.
25. If such a case is made I reject it out of hand. In a very full defence the Codicil was challenged upon the ground of "want of due execution" but no case was run of "want of knowledge and approval" let alone "undue influence". If the case is not openly pleaded it cannot be covertly run. Andrew's silence about the Codicil is understandable: he owed a duty to keep the affairs of Mr Walters and the Deceased confidential. He may well, by accident, inefficiency or otherwise, have failed to secure that Mr Walters obtained a copy of his codicil when requested: but that does not invalidate the Codicil itself. If he was embarked on some improper scheme it was extraordinarily inept to ask Edward to make a note of the meeting of 21^st February 1998 or to advise Mr Walters (as he did) to consult other solicitors. Finally, it is clear that Mr Walters himself told Leone that he had changed his will and cut down her interest, saying during the lifetime of the Deceased (and probably after 1998) , "I will always look after you but you will not have a lump sum". So there is no doubt that he knew of the effect of his codicil at the time, though failing memory may now give rise to other suspicions.
26. The question is: what is the effect of the agreement? Mr Warwick says first that it was not intended to be a binding agreement, and that if it had been then (because of the need for precision in the creation of equitable obligations) Andrew would have used a standard precedent such as that now found in "Williams on Wills" 7^th edition olume 2 page 1046:-

" I declare that my wife and I have agreed with one another to execute wills of even today and in similar terms and in consideration of such promise we have agreed that such respective wills shall not hereafter be revoked or alter either during our joint lives……. or by the survivor of us"

I reject this submission. As I analyse the situation, on 21^st February 1998 Andrew gave advice in consequence of which Mr Walters and the Deceased reached an agreement in principle to execute mutual wills i.e a document that could be changed in their joint lifetimes but could not be altered after the death of the first to die. At that point nobody was bound; and if on 22^nd February 1998 Mr Walters had telephoned Andrew and said "I have changed my mind" the Deceased could not have complained. The agreement could only become binding when each signed their respective testamentary document. They then received documents recording the agreement that they had made in principle under cover of a letter which explained the effect of signing such documents. In the light of that advice (subject to the question of due execution) they did sign those documents. The documents which the Deceased and Mr Walters each signed on the 21st February 1998 were intended to have legal effect. There is no ground for distinguishing between clauses 1 and 3 and clause 2.

27. Next Mr Warwick said the agreement did not satisfy the requirements for mutual wills because although the document records the making of an agreement to make wills it does not record any agreement not to revoke the wills so made (see the precedent from "Williams" (supra) and Gray v Perpetual Trustee [1928] AC 391). The question here is what the Deceased meant by describing the agreement in clause 2 of the Coidicil as one "for disposal of our property in a similar way by mutual testamentary dispositions". As a matter of construction that seems to me to be a reference to an agreement to dispose of property in a particular way ("in a similar way") and by a particular method ("by mutual testamentary dispositions"). The word "mutual" is important as having technical connotations. Had the reference been to the expression "by mutual wills" I do not think that there could be any doubt that the expression would have been read as "by effective mutual wills" rather than as "by ineffective mutual wills". In my judgement the same applies to the expression "by mutual testamentary dispositions" (an expression which had to be used because the "dispositions" were codicils not wills). I do not regard the absence of any explicit mention of revocation as rendering "the mutual testamentary dispositions" incapable of enforcement as mutual wills.
28. That reading is reinforced by a consideration of the surrounding circumstances Those circumstances include the letter under cover of which the Codicil was sent, which explained that during the joint lives no further changes to testamentary arrangements could be made without consent (an explanation consistent with the law as explained in Re Hagger [1930] 2 Ch 190), and during the life of the survivor no change at all was possible.
29. Mr Warwick then submitted that there could be no question of enforceable mutual wills because of a failure to comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. The argument was that since mutual wills depend upon the existence of a binding contract, and since the Deceased owned the matrimonial home, unless a contract to make a will which had the effect of disposing of the matrimonial home to Mr Walters complied with the formalities of section 2 then the contract was void; and if the contract was void there could be no mutual wills. In effect it was said that each mutual will had to be signed by both parties to the agreement (or ther mutual wills be in absolutely identical terms and exchanged). I reject this submission on the facts of this case.
30. Mr Blackett-Ord's first answer was that no-one was seeking to enforce a contract: what was sought to be enforced was a constructive trust to which section 2 had no application. But I am not persuaded that that is a wholly satisfactory answer where the constructive trust itself depends (as it is now clear mutual wills do depend) upon a binding contract. Mr Blackett-Ord's second point was that the Codicil disposed of the Deceased's residuary estate, and section 2 had no application to a contract to dispose of residue. In my judgement that is correct.
31. The argument on both sides was short and neither side referred me the decision in Healey v Brown [2002] EWHC 1405, so I say no more than is necessary to found my decision in this case. In Healey v Brown each spouse by mutual will left to the other if surviving " all my share and interest in my flat known as 3 Phoenix Court.", but if not surviving then left that interest to a niece. Mr David Donaldson QC held:-

"There can be no doubt, as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land. An undertaking not to revoke a testamentary disposition is the same in effect as a promise to make that disposition."

In the doctrine of mutual wills there is a tension between the contract (which is a binding according to its terms when made) and the will (which speaks only from death). The Deputy Judge resolved that tension by holding that the contract to make a will had to comply with the formalities requisite to dispose of the property actually described in the will (even though at death that property might have altered). In the case of the 1998 Will and of the Codicil the Deceased directed her executors to convert her estate, and after directing them to pay her testamentary and funeral expenses, debts and taxes, disposed of the residue so realised. No formalities are required for such a disposition. I hold that the gift contained in Clause 6 of the Codicil does not fall within the rule applied in Healey v Brown . This is consistent with the reasoning in Birmingham v Renfrew (1937) 57 CLR 666 at 690 per Dixon J and at 678-680 per Latham CJ; and with the decision in Horton v Jones (1935) 53 CLR 475.

32. I therefore hold that (subject to the question of due execution) a valid mutual will was made. But there now arises the question whether the Codicil was validly signed by the Deceased. The question is important because Mr Warwick submits that if the Codicil was not validly signed then there was no "mutual will" and there can be no question of Mr Walters holding either the Deceased's estate or his own upon any form of constructive trust. (Mr Blackett-Ord submits that the question is not important because once a valid mutual will agreement is made and Mr Walters receives the Deceased's estate then his conscience is equally affected whether he receives the estate under the Codicil or under the 1998 Will or under the 1953 Will or on intestacy). The legal point arises for decision only if the Codicil was not validly signed by the Deceased, and I will therefore determine the factual position first.
33. The Codicil is dated the 18^th May 1998 and bears a familiar attestation clause. It says that the document was signed by the Deceased as a first codicil to the 1988 Will "in our joint presence and then by us jointly in her presence", and alongside the clause are the admitted signatures of the Deceased, of Harold Lewis and of Patricia Podger.
34. At trial the following evidence was adduced relevant to the case that the Deceased did not sign in the presence of Harold Lewis and Patricia Podger:-

(a) In his Defence (which he signed with a statement of truth) Mr Walters said that the Deceased had signed the Codicil at the house in Mill Hill and that he afterwards took it to the offices at Battersea where Mr Lewis and Miss Podger purported to witness it;

(b) In his witness statement Mr Walters said he remembered nothing about how the 1988 Will came to be signed and very little about how the changes in the Codicil came about, and that he was not even aware of the existence of the Codicil until a few weeks after the death of the Deceased.

(c) But he also said that the Codicil "would have been signed" in the same manner as the 1998 Will and that "[the Deceased] and [Miss Podger] would not have been together at the same place in order for [Miss Podger] to have witnessed [the Deceased's] signature" (emphasis supplied). As the terms in which that evidence is given demonstrate, Mr Walters is drawing upon his general recollection that the Deceased never went to the Battersea offices save for one or two social functions held over the Christmas festive period." (At trial in oral evidence Mr Walters said that the Deceased never ever went to Battersea: but Miss Podger said otherwise).

(d) Mr Walters signed his own will in 1988 and his own codicil in 1998 on the same date as the Deceased and the same persons witnessed them. Both his will and his codicil contained an attestation clause in identical form to that which I have quoted from the Codicil.

(e) Mr Harold Lewis died in about 2001. Mr Walters said that he was an honest man and accepted that if Mr Lewis had signed to say that he had put his signature on a document in somebody else's presence he was probably telling the truth; though he then added "but he didn't" (an answer itself inconsistent with his evidence that he had no recollection of the Codicil). Miss Podger said that Mr Lewis was at an honest and very truthful man for whom she had as much respect as for Mr Walters himself.

(f) Miss Podger has worked for Mr Walters for 43 years, beginning as "a Saturday girl" in the department store, becoming the office manager of the property business and now being a director of the family property company. In her written evidence she said that there had only been a few times when Mr Walters had asked her to act as a witness, but in oral evidence she said that the only documents she had ever witnessed were the 1998 Will and the Codicil (though she had plainly also witnessed Mr Walters' will and codicil). She explained that what she understood from Mr Walters was that there was a dispute about the 1988 Will and the Codicil between Mr Walters and Andrew, and that she had witnessed these two documents "and whether [the Deceased] was present when [I] witnessed". In April 2007 she was asked to go to Mr Walter's solicitors to make a statement; she said Mr Walters just told her to tell the truth and that she did not know what she was expected to say. At the solicitors' offices she was shown the 1988 Will and the Codicil and asked whether the Deceased was in the room when she signed. The result was a witness statement in which Miss Podger said that she had never seen the Deceased sign anything, that if Mr Walter asked her to sign as a witness she would not question it, that Mr Walters was her boss and it would never have crossed her mind to say "no" to him, that the Deceased was not present when the 1988 Will was signed by Miss Podger and that she did not think that was anything peculiar in being asked to witness the signature of a person who was not present and whom she had never seen sign a document before. She said that the same was true of the signing of the Codicil, and that because she had already witnessed the 1988 Will she did not think that there was anything unusual about being asked to "witness" the Codicil without the Deceased being present. In oral evidence she said that she was 110% sure that the Deceased was not present at the signing of the Codicil.

(g) Andrew gave evidence that he had received the Codicil from Mr Walters in the latter part of May 1998, but when it was handed over he checked the mode of signature and noted that it two company employees had witnessed the signatures. He says he has a clear recollection of asking Mr Walters why the deceased had gone over to Battersea to execute the codicil when she could have done it locally: and he recalls the explanation that his grandparents had visited Battersea en route to visit their friends Lenny and Annette Waldman who lived near Richmond. (Miss Podger said in her evidence that Mr Walters was incapable of finding his way from Richmond to Battersea, and other family members in Court sniggered at this remark).

35. On this evidence I find on the balance of probabilities that the Codicil was duly executed in accordance with section 9 the Wills Act. These are my reasons.
36. First, I place great reliance on the Codicil itself, containing, as it does, a formal attestation clause. That of itself raises presumption of regularity. A clear line of authority from Wright v Rogers (1869) LR 1 PD 678 to the recent Court of Appeal decisions in Sherrington v Sherrington [2005] EWCA Civ 326 and Channon v Perkins [2005] EWCA Civ 1808 establish both the presumption and its strength. Where it appears from the face of a testamentary document that it has been properly executed in all respects and where there is no suggestion but that the contents of that document represent the testator's intention then one needs "the strongest evidence" to the effect that the Will was not duly executed.
37. Second, that presumption is supported by what one knows of Harold Lewis, an honest and truthful man, who was signed a statement that he, the Deceased and Miss Podger were all present when the Deceased signed, and when his signature and that of Miss Podger were put on the document.
38. Third that presumption is supported by what one knows of Mr Walters. Mr Walters relied on Andrew for advice. He was attending to the signature of his own codicil at the same time as the Deceased was attending to the signature of the Codicil. Both documents had come under cover of a letter from Andrew dated the 31^st March 1998 which had concluded with these words:-

"If you decide to proceed with the codicils then I need to give you some advice about how they should be signed. You must both sign your respective codicils in the joint presence of two witnesses. The witnesses must then sign their name address and occupation where indicated. It is absolutely vital that no member of the family act as a witness"

I have found as a fact that Mr Walters received this letter. I have no reason to suppose that Mr Walters decided to substitute his own judgement as to how the documents should be signed for the clear and comprehensible advice of Andrew, to whom he looked for advice on such matters. I have no reason to suppose that Mr Walters overlooked or forgot the advice: indeed he appears to have followed it by ensuring that no member of the family (all of whom were readily available) witnessed the documents. The very document arose in the context of Mr Walters trying to assert control over family property after his death (the life interests and the mutual wills), and I can think of no reason why he would have risked failing to achieve that objective. On the balance of probabilities he would have followed the advice "to the letter"

.

39. Fourth, whilst the evidence of Miss Podger plainly cannot be ignored, it does not constitute "the strongest evidence" sufficient outweigh the presumption of due execution bolstered by the considerations relating to Harold Lewis and Mr Walters. (In making this assessment I have had much mind the "sliding scale" of which Arden LJ spoke in paragraph 45 of her judgement in Channon). I absolutely acquit Miss Podger of fabrication or any form of dishonest recollection. But I am entirely unconvinced that her honest recollection is reliable. Its foundation is a purportedly accurate memory of the signing of the 1988 Will (19 years ago), which being recollected, allays all suspicion at the circumstances attending the signing of the Codicil (9 years ago). As Neuberger LJ observed in Channon (at paragraph 8)

"Oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place, the less accurate their recollection is likely to be"

I have a deep sense that her evidence is not based upon a real recollection of two brief incidents (putting her signature on a document one or two decades ago) but upon a reconstruction of what she would have done having regard to her inability to recollect the Deceased's attendance at Battersea and her willingness to do whatever Mr Walters requested. I am also alert to the danger that recollection can be coloured by the context in which it is invited. Inability to recollect the presence of the Deceased, coupled with a recollection that the Deceased did not regularly attend Battersea, has hardened into 110% certainty (itself remarkable give the timescale) that the Deceased was not there.

40. I therefore find and hold that the Codicil was duly executed in accordance with the Wills Act, and ought to be admitted to proof in solemn form of law. By clause 3 of the Codicil the Deceased confirmed the terms of the 1988 Will. The latter was thereby republished (see Theobald on Wills 15^th ed p.93) and ought also to be admitted to proof: see Re Turner's Estate [2004] WTLR 1467 for recent British Columbian example of the operation of the doctrine. Had the 1988 Will required separate consideration by me, on the material and for the reasons already set out in relation to the Codicil I would have found and held that it ought to be admitted to proof .
41. The question that then arises is: what relief ought to be granted? I will decree probate in solemn form of law of the will dated 11^th March 1988 and the codicil dated 18^th May 1998. I will declare that the codicils executed by the Deceased and Mr Walters on the 18^th May 1998 take effect as valid and effective mutual wills so as to bind the Deceased's estate. The italicised words require some explanation. An agreement relating to mutual wills normally affects the combined estates in the hands of the survivor (as opposed a secret trust which attaches solely to property coming to the constructive trustee under the will, not his own property as): but this depends ultimately on the terms of the contract between T1 and T2 which defines the freedom they are to have. As I pointed out when the case was opened the draftsman of the Claim Form (not Mr Blackett-Ord ) sought a declaration that Mr Walters holds the Deceased's estate (not to the combined estates) on the trusts identified within the mirror codicils. No amendment was sought. Although I have found and held that there is a mutual wills agreement, I have made no findings or holdings as to the scope of that agreement (i.e whether it was intended to give T2 the estate of T1 subject to the floating trust during T2's lifetime and on T2's death to a full constructive trust, or whether it was the combined estates that were subjected to the floating and constructive trusts). This is a question of construction of the agreement embodied in clause 2 of the Codicil. The Deceased's estate is certainly bound when in due course of administration it passes to Mr Walters or his executors. But I regard the issue of Mr Walters own estate as simply not before me. I will make a declaration as to the Deceased's estate, but nothing else.
42. There remains one short matter with which to deal, namely Mr Walters Counterclaim against Andrew for damages negligence and breach of fiduciary duty. I regard this claim as almost as regrettable was Andrew's claim (now abandoned) damages for deceit against Mr Walters. The claim for damages was in the alternative. One branch was that Andrew failed to take all proper and reasonable steps to secure that the Deceased executed a valid codicil embodying her instructions that Leone and Rosalind should only have life interests in their respective shares. I have admitted the Codicil to proof, so this claim falls away (even assuming that the alleged breach gave Mr Walters a right of action).
43. The alternative claim is that Andrew failed to give adequate advice to Mr Walters regarding the unusual and onerous nature of a mutual wills agreement, and this obligation was all stronger since Andrew benefited personally from the Codicil and Mr Walters' mirror codicil which were or would become irrevocable. This claim fails because I consider that Andrew did give clear and comprehensible advice both that the meeting on the 21^st February 1998 and in his letter of the 31^st of March 1998. Furthermore I am satisfied that at the meeting and in his letter Andrew urged Mr Walters (who is advancing this claim) to take advice from his former solicitor Gerald Williams. Andrew's attendance note reads:-

"I said that I would be reluctant to draft the codicils as I would be personally benefiting from the change. Grandpa said that I was his solicitor and he wanted me to draft the papers. I said that if I did that then at a later stage a member of the family might raise an objection. He said no they wouldn't and I should not argue with him."

In the letter sending the drafts Andrew wrote:-

"Although it is a matter entirely for you, I would still personally feel more comfortable if you would, even at this stage, consult with Gerald Williams. All you would need to do is to show him the wills and codicils, explain why you want to make changes to your testamentary arrangements and get him to confirm that the codicils give effect to the changes that you want to make. I would emphasise that there is no hurry for you to sign your codicils. Before doing so, I would rather prefer that you first give further consideration as to whether it is appropriate to deprive Mummy and Auntie Rosalind of a one third share of the capital of the survivor's residuary estate and to talk matters over with Gerald Williams".

No evidence was lead as to what a reasonably competent practitioner would have advised, or as to what Mr Walters would have done (and why) if he had received that advice was different from what he actually did having had the benefit of Andrew's advice. Neither breach of duty nor causation was established.

44. In my judgement this was proper discharge of the legal duty that Andrew owed to Mr Walters. I regard it also as compliance with the Solicitors' Code of Conduct. Andrew benefited to no greater extent than his siblings (and to a lesser extent that his cousins). He was simply a member of a class that Mr Walters specifically wished to benefit. The gift was nonetheless significant and Principle 15.05 of the 7^th edition of the Guide to the Professional Conduct of Solicitors applied. Paragraph 4 of the commentary on that Principle addresses the situation of the solicitor who is related to his client. It provides:-

"Where the….. testator is a relative of the solicitor and wishes to make a gift or leave a legacy to the solicitor, the solicitor must consider whether in these circumstances independent advice is desirable."

This Andrew did and in unambiguous terms told Mr Walters of the desirability of consulting Gerald Williams. I dismiss the Counterclaim.

45. I give judgement in the terms indicated in paragraphs 40, 41 and 45. I will formally hand down judgement at 2 p.m. on the 19^th December 2007. I do not expect attendance by Counsel. I will on that occasion adjourn all questions of costs and all applications arising out of this judgement door hearing to be fixed through the usual channels.

Mr Justice Norris…………………………………………….19^th December 2007