England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 June 2008

Sarah Asplin QC (Sitting as a Deputy High Court Judge):

1. The Claimants are respectively, the widow and daughter of the deceased, Bertrand Theodoor Ciebrant, ("the Deceased") who died on 3 January 2005. It has not been disputed that he died domiciled in England and Wales. Both the Claimants are Dutch nationals who live in Holland. The First Claimant is 92 years of age and has taken no part in these proceedings. She acts in this matter through her daughter, Lenny Dorien Ciebrant, the Second Claimant, ("Ms Ciebrant"), to whom she granted a power of attorney dated 18 July 2006. It is alleged that Ms Ciebrant is the only child of the Deceased. Accordingly, if the Deceased left no valid will, in the absence of any other children of the Deceased, the Claimants are solely entitled to the Deceased's estate on intestacy. They seek a declaration that the Deceased died intestate and a grant of Letters of Administration in his estate.
2. The Defendants, the Royal National Lifeboat Institution and Cancer Research UK, ("the Charities"), contend that the Deceased left a will and counterclaim that the Court pronounce in favour of that will and that letters of administration with the reconstituted will annexed be granted. They put the Claimants to strict proof that Ms Ciebrant is the only child of the Deceased.
3. As I have already mentioned, the Deceased died on 3 January 2005. A caveat was lodged in respect of his estate on behalf of the Charities on 12 May 2005 and was extended on 11 November 2005 and thereafter, to 11 November 2006. The caveat was warned on 30 October 2006 and an appearance entered on behalf of the Charities on 22 November 2006. The Claim Form was issued on 21 May 2007.

Amendment

4. At the beginning of the hearing, I gave permission to the Charities to amend the form of the reconstituted will annexed to their Defence and Counterclaim in order to add the words, "(known as Siep)" in the first line of the reconstituted will and to delete clauses 1 and 2. This was in order to bring it into line with the evidence before the Court. The application was not opposed.
5. The deleted clauses appointed Ms Phyllis Clarke as the Deceased's sole executrix and left all the Deceased's property whatsoever and wheresoever to her and provided that the remaining provisions of the will should take effect if she predeceased the Deceased. The remaining clauses contained the appointment of Miss Muriel Ruth Eldridge, ("Miss Eldridge"), as executrix and left the entirety of the Deceased's estate to "The Cancer Research Campaign (British Empire Cancer Campaign for Research) and The Royal National Lifeboat Institution", in other words, the Charities.
6. In its amended form the reconstruction of the will simply contains a clause appointing Miss Eldridge as executrix and leaves the Deceased's entire estate to the Charities. On the assumption that I hold that the will existed, Miss Eldridge renounced probate on 12 May 2008 and on 20 May, Mr Peter George Jeffreys, whose fitness to act was attested to by Mr Peter John Steer, consented to act as administrator.

The Issue

7. The issue in this case is one of fact. Did the Deceased die intestate or did he leave a valid last will in the form alleged by the Charities? It is for them to satisfy the Court, on the balance of probabilities, that a such a will existed at the date of the death.
8. In the absence of any evidence of any other will, of which there is none, if the Charities fail to satisfy the Court that such a valid will in the form of the reconstruction existed, it follows that the Deceased died intestate and that the Claimants are entitled to the declaration which they seek and, subject to having been put to strict proof of the existence of other children, a matter to which I shall return, to a grant of Letters of Administration in the estate of the Deceased.
9. Obviously, therefore, it is necessary to evaluate the evidence before me and before doing so I turn to the witnesses themselves.

The Witnesses

(i) Ms Ciebrant

10. Ms Ciebrant is a teacher or youth counsellor who lives and is domiciled in the Netherlands. She appeared to have a reasonably good command of English, although it is not her first language and certainly understood all that was put to her. She gave her evidence somewhat haltingly. On numerous occasions, her evidence in cross examination was inconsistent with her witness statement and rather than accept that the statement was inaccurate, attempted to meld the two in a way which I found very unconvincing. At times, she went on to be clearly self contradictory. She was often evasive and her evidence lacked detail. On occasion, her evidence was shown to be untrue. For example, despite having informed her solicitor by letter of 17 April 2006 that she had paid for her stay at Mrs Kakkavas' house in January 2005, she admitted in cross examination that although she had purchased groceries in gratitude to Mrs Kakkavas, she had not paid for her stay. There were other inaccuracies of more importance to which I refer below. Overall, I did not find her to be a truthful witness. Where her evidence differs from those of others, I prefer their evidence.

(ii) Mr van der Woolf

11. Mr van der Woolf is a business man. He is a Dutch national, domiciled in the Netherlands and is Ms Ciebrant's partner. He appeared to have an adequate grasp of English which was not as strong as that of Ms Ciebrant but was sufficient for him fully to understand the proceedings and the questions put to him. However, in cross examination, he often sought to rely upon the effects of translation and his understanding of conversations in English in a way which I found unconvincing. Overall, where his evidence differed from that of others, I prefer their evidence.

(iii) Mrs Kakkavas

12. Mrs Kakkavas lived opposite the Deceased for approximately fifteen years immediate before his death and indeed, she nursed him in her home in his final hours. She had difficulty remembering detail and precise chronology. However, she came across as an honest witness who was careful to state those matters in relation to which she could no longer be sure as opposed to those of which she was certain.

(iv) Mrs Membery

13. Mrs Membery was another neighbour of the Deceased, her house abutting his. She is a solicitor, although she is no longer practising and at the time of the Deceased's death was on sabbatical. She was meticulous in the detail which she provided in evidence and was careful to differentiate between those matters of which she had a clear recollection and those of which she was less certain. Save with regard to the level of interest in purchasing the Deceased's property, to which I shall refer, she was a straightforward witness who overall struck me as honest.

(v) Miss Eldridge

14. Miss Eldridge is an elderly retired solicitor who gave her evidence to the court by video link. She had contact with the Deceased in the early 1970s and is named as executrix in the reconstituted will for which the Charities contend. Despite her age and failing eye sight, her evidence was clear and I was in little doubt but that she fully understood the issues in the case and all the questions put to her. Her responses were precise and at times forceful and I have no reason to doubt her honesty or integrity. This view was shared by her former partner, Mr Rowe, who had no doubt as to her professional integrity and honesty. Neither did the Claimants seek to impugn her honesty.

(vi) Mr Rowe

15. Mr Rowe is also a solicitor and continues to practice at Lithgow, Pepper & Eldridge, the firm of which Miss Eldridge was formerly the senior partner. He was instructed by Ms Ciebrant in relation to the administration of the Deceased's estate, contacted Miss Eldridge about the existence or otherwise of a will and was contacted by Mrs Membery when she became concerned that Ms Ciebrant may not have told him about the will which Mrs Membery states she saw. He gave his evidence carefully and precisely by reference to his contemporaneous notes and correspondence, much of which he provided to the Court on the second day of the trial. He struck me as entirely honest and a straightforward witness who was concerned to give his client the benefit of the doubt as he saw it.
16. In weighing the evidence of the witnesses, in my judgment, it is appropriate to take account of the fact that neither Mrs Kakkavas nor Miss Eldridge, both of whom gave evidence as to the existence of a will, have any interest whatever in the estate of the Deceased or in the Deceased's property known as The Lodge, Queen's Gate Place Mews, London SW7, ("the Lodge") and that Mrs Membery does not stand to gain from the Deceased's estate. It is said by Ms Ciebrant that Ms Membery had had a keen interest in purchasing the Lodge both before and after the Deceased's death and that she has fabricated the story of finding a will in order to thwart Ms Ciebrant and her mother, having been unsuccessful in persuading them to sell the Lodge to her at a substantial undervalue, a hypothesis to which I shall return below.

Background

17. The Deceased was a Dutch national who was born in the Dutch East Indies as it then was, in 1921. He worked in the oil industry which took him abroad and appears to have married Ms Ciebrant's mother on 6 January 1949, in Indonesia which is where Ms Ciebrant was born on 12 October 1954. He moved with his wife to Holland from 1956-58, to Ghana from 1958 to 1960 and then to Lagos, Nigeria from 1960 to 1966. As a result of unrest in Nigeria, Ms Ciebrant and her mother returned to Holland in 1966, leaving the Deceased behind. Although, Ms Ciebrant gave evidence that the Deceased visited them thereafter, when on leave or when called to London on business, she and her mother lived separately from the Deceased from that time onwards and according to Ms Ciebrant, over the period from 1966 to 1976, the contact became less and less.
18. Ms Ciebrant told the Court that the last occasion on which she saw her father was her graduation in 1976. She also stated that she did not know his address in England. She wrote to him via a Post Office box number and he corresponded with her. Despite her suggestions that they meet, they never did so. Correspondence from her was found at the Lodge after the death of the Deceased, together with unopened letters from Ms Ciebrant's mother.
19. It is not in dispute that the Deceased had purchased Ms Ciebrant and her mother a house in the Netherlands and until his death, he sent a regular sum in monthly maintenance to the First Claimant, approximately half of which she remitted to him as in excess of her needs.

Purchase of the Lodge

20. By 1974, the Deceased was living and working in Doha, Qatar. It was at this stage that a friend of his, Ms Phyllis Clarke, had the opportunity to buy a long lease of the Lodge. In fact, the freehold title to the Lodge is the major asset in the Deceased's estate. There is no evidence of any assets outside the jurisdiction.
21. It is unclear whether Ms Clarke was the sitting tenant at the Lodge, although in this regard, there is reference to the possibility of the enforcement of a possession order against Ms Clarke, in a letter from Miss Eldridge to the Deceased dated 22 January 1974. In any event, she certainly had an interest in the estate of a relative, Mrs W.R. Sichel, described as "on the most optimistic assessment", not exceeding £1,000 of which the Lodge formed part. In order to take up the opportunity to purchase the leasehold interest from Mrs Sichel's administrators, Ms Clarke sought financial assistance from the Deceased. Ms Clarke took the advice of Miss Eldridge of Lithgow, Pepper & Eldridge and by 20 January 1974, the Deceased himself was in correspondence with Miss Eldridge in relation to the purchase.
22. A letter of 3 February 1974, from the Deceased to Miss Eldridge records that the Deceased provided the entirety of the purchase monies for the long lease of the Lodge, being £22,500. However, he stated that the purchase was on a joint basis but that the title documentation should record that he had provided £21,500 and Ms Clarke £1,000. By 24 July 1974, the leasehold interest in the Lodge had been registered in the joint names of Ms Clarke and the Deceased as tenants in common in the proportions in which it had been agreed that they had contributed to the purchase price.
23. It is also clear both from Miss Eldridge's letter to the Deceased of 23 August 1974 and the relevant stamps in his passport, that the property transaction having been completed, the Deceased was in London and was staying at the Lodge in late August 1974.
24. It is not disputed that prior to 27 August 1974, Miss Eldridge had drafted a will for Ms Clarke which was executed on that date in the presence of Lithgow Pepper & Eldridge's legal executive. By clause 1 of that will, the Deceased was appointed as sole executor and Ms Clarke left all her property of whatsoever nature and wheresoever to him absolutely. In the event that he predeceased her, she appointed Miss Eldridge as her executrix and left her entire estate to the Charities in equal shares.
25. Ms Clarke, who was some twenty years the Deceased's senior, died of cancer on 18 November 1975. It is clear from the correspondence and is not in dispute, that the Deceased provided Miss Eldridge with the original of Ms Clarke's will which had not been retained in Lithgow, Pepper & Eldridge's strong room and Miss Eldridge dealt with the administration of Ms Clarke's estate on behalf of the Deceased in 1975 and early 1976. Probate had been granted to the Deceased on 8 April 1975. Miss Eldridge also dealt with the transfer of Ms Clarke's interest in the Lodge to the Deceased and his subsequent purchase of the freehold title which was completed on 9 April 1976.

The Deceased in England

26. By June of 1976, the year in which Ms Ciebrant last saw her father, the Deceased had come to live permanently in England and Miss Eldridge corresponded with him at the Lodge. Despite her evidence that contact between the Deceased and Ms Ciebrant and her mother had gradually diminished in the decade from 1966 when they first returned to Holland, until her graduation in 1976, after which all contact ceased, Ms Ciebrant in cross examination told the court that in 1976, the Deceased had asked her mother to come to live with him at the Lodge but that her mother had refused. However, as I have already mentioned, throughout his residence in England, Ms Ciebrant corresponded with the Deceased via a Post Office Box number and did not know his address and there is no evidence that her mother was aware of the Deceased's address either.
27. Mrs Kakkavas, a resident of Queen's Gate Place Mews, whose property is immediately opposite the Lodge and who moved there in or about 1988, gave evidence that in the late 1980s and early 1990s the Deceased visited the Lodge occasionally and that it was not until about 1995 that he came to live there. Very little was known about him even by Mrs Kakkavas with whom he became friendly. She gave evidence that she only knew him as "Siep" and it was not until she collected a prescription for him in the days immediately before his death, that she discovered his surname. He never invited anyone into the Lodge and never mentioned Ms Ciebrant or her mother. On one occasion, Mrs Kakkavas told the Court that he had stated that his wife had died some eight years earlier. This may have been a reference to Mrs Kay with whom he may have lived for some years in Hampstead.
28. From about 2000, Mrs Kakkavas saw him on an almost daily basis and he took tea at her house. When he was unwell having returned from visiting friends at Christmas 2004, it was to Mrs Kakkavas that he turned and she nursed him in her home in his final days. He died in her sitting room on 3 January 2005, aged 84.
29. It is said on behalf of the Charities, that when searching through the Deceased's effects, a copy of the will of Ms Clarke and the original of the Deceased's will were found, that the Deceased's will was in similar form to that of Ms Clarke in that it appointed Miss Eldridge as executrix and left the entirety of the Deceased's estate to the Charities. The Charities also contend that Ms Ciebrant took possession of the Deceased's will and that it has never been seen again. Ms Ciebrant and her mother on the other hand allege that although copies of Ms Clarke's will were discovered at the Lodge, which was in considerable disarray, no last will of the Deceased was ever found.

Was a will executed in 1974?

30. It is the Charities' case that the will that they allege was found shortly after the Deceased's death was drawn up for the Deceased by Miss Eldridge of Lithgow, Pepper & Eldridge in 1974 and was executed at the same time as that of Ms Clarke on 27 August 1974. They contend that the making of the wills was part and parcel of the purchase of the leasehold interest in the Lodge in the joint names of Ms Clarke and the Deceased and his advance of £22,500 for that purpose. As I have already mentioned, it appears that the Deceased was in London at the time.
31. Despite the considerable passage of time, Miss Eldridge stated in her witness statement that she recalled with absolute clarity the matters on which she acted for Ms Clarke and Mr Ciebrant. She stated and repeated in cross examination that Ms Clarke had consulted her in relation to the purchase of the long lease of the Lodge, which she described inaccurately as a one bedroom flat.
32. She associated the purchase with the sale of leaseholds to sitting tenants as a result of the ramifications of the Rent Acts, an assumption that Mr Jones on behalf of Ms Ciebrant and her mother, suggests is inaccurate. He says that there is no evidence that in fact, Ms Clarke was a sitting tenant at all and that this casts doubt upon Miss Eldridge's recollections. I do not regard the reference to the Rent Acts as particularly significant. However, there is possible support for the association in correspondence between Miss Eldridge and Ms Clarke at the Lodge, prior to the purchase of the leasehold interest. There is reference in one of those letters to possible enforcement of a possession order. Accordingly, I do not regard Miss Eldridge's assumption as necessarily without foundation or as casting doubt upon her evidence as a whole.
33. Miss Eldridge also gave evidence that when questioned about whether in the light of the contribution of the purchase price by the Deceased, there would be a mortgage in his favour, Ms Clarke had responded that she and the Deceased were going to make wills. In cross examination, Miss Eldridge told the court that it was the Deceased's idea that both he and Ms Clarke should make wills. Miss Eldridge stated that Ms Clarke and the Deceased attended her offices and told her that they had made up their minds as to what was to be done. She took their instructions and drafted wills on behalf of both of them. She said that she had been asked by the Deceased to suggest charities to be named in the will and did so. She said that that was far from unusual and I accept her evidence in this regard.
34. Mr Jones on behalf of Ms Ciebrant submitted that it would have been unlikely that a practitioner of Miss Eldridge's experience would have drawn a will for a foreign national without advising him about the effect upon any foreign property. In cross examination, Miss Eldridge accepted this but said that she recalled that the Deceased and Ms Clarke had been certain about what they wanted and that accordingly she took their instructions. I accept her evidence in this regard.
35. In her witness statement, she adds that the wills were drawn up using her firm's precedent and that they were in similar form. She states that she recalls that on the death of the last survivor of them, the residuary estate was left to the Charities. This is contrary to the purported reconstruction of the will annexed to the Charities' counterclaim. In cross examination however, she emphasised that she had said that the wills were in similar and not identical form, that she remembered that he left everything to the Charities and that she did not recollect the Deceased leaving anything to Ms Clarke.
36. Miss Eldridge stated that she recalled the Deceased because of his unusual appearance which she described in rather dramatic terms. As Mr Jones points out, this is not consistent at least, with the photograph in the passport the Deceased was using in the 1970s.
37. She also explained that when originally questioned about her recollections of this matter with which she had dealt more than thirty years previously, she had been unable to recall making a will for the Deceased but had said that she could not say that she did not do so. She had recalled the Deceased in the context of the purchase of the long leasehold, and thereafter, having considered the matter at length, she saw him in her mind's eye and recalled drawing up the will for him.
38. Miss Eldridge also stated that both the Will of Ms Clarke and that of the Deceased were entered in her firm's Wills Register which was later transferred to a card index which she had been informed was still in existence. In fact, this is inaccurate in two respects. First, Mr Rowe told the court that there was no card index. Secondly, he confirmed that neither Ms Clarke's will nor one for the Deceased was recorded in the firm's Deed Register, the significance of which was that the original had not been retained in his firm's strong room. In Ms Clarke's case this is consistent with the fact that the contemporaneous correspondence suggests that the original of Ms Clarke's will was provided to Ms Eldridge by the Deceased, after Ms Clarke's death.
39. At trial, Mr Rowe produced a copy of the relevant pages of his firm's dead files register which reveals two entries recorded immediately after each other. It seems likely that this is the record to which Miss Eldridge intended to draw attention in her witness statement. The first relevant entry in the register is undated but records "Ciebrant & Clarke" in the client or parties column, "Re Wills" in the nature of papers column and then the box and parcel numbers. The second entry is dated 1974, has the same names in the client or parties column and records, "The Lodge, Queen Gate Pl. Mews" in the nature of papers column. The files themselves have long since been destroyed.
40. Both Mr Rowe and Miss Eldridge gave evidence in cross examination that the register would have been compiled by a junior member of staff and that both the "client or parties" and the "nature of papers' columns would have been filled in by reference to what had appeared on the front of the files themselves.
41. Mr Jones on behalf of Ms Ciebrant submits that the reference to wills in the plural may well have been merely a typographical error. In addition, whilst not wishing to impugn Miss Eldridge's integrity or honesty, he draws particular attention to the discrepancy between what he contends was her original evidence, being her initial comments having been contacted by Mr Rowe in 2005 and her further responses recorded by Mr Rowe to questions framed by counsel and his litigation assistant which he put to her on the telephone in 2006 and that which is now contained in her witness statement.
42. In this regard, I give greater weight to the manner in which Mr Rowe described Miss Eldridge's initial position in his letters to his client, Ms Ciebrant than to the notes which he wrote whilst on the telephone. In his letter of 20 June 2005, he stated that Miss Eldridge "believes that the making of a Will or Wills was connected with this arrangement of purchasing property" and on 8 August 2005, having had a further conversation with Miss Eldridge, reported to his client, "her reading of our records is that it is likely that wills were made both for your father and for Miss Clarke, but she cannot specifically remember making a Will for your father. She states that if, as appears likely a Will was made for him, he may well have taken the Will with him in view of the fact that at that stage he was not permanently resident in the United Kingdom." These explanations are entirely consistent with Miss Eldridge's initial position as described in her witness statement.
43. Furthermore, the propositions posed by Mr Rowe to Miss Eldridge on the telephone in August 2006 which were framed by counsel involved at that stage, do not accord with the correspondence to which I have referred or Miss Eldridge's early recollections as recorded in Mr Rowe's contemporaneous notes or her witness statement. In any event, it appears from Mr Rowe's record of his conversation in August 2006, that on that occasion Miss Eldridge took issue with a number of the propositions put to her including the suggestion that she had ever said that she could not have made a will for the Deceased.
44. Mr Jones also draws attention to the fact that in cross examination, Miss Eldridge explained the transition from not being able to recollect whether she made a will for the Deceased but being unable to state that she did not do so, to being certain that she recalled having drawn the Deceased's will, as a vision. He urges the Court to place no reliance upon such a recollection.
45. However, save for the obvious inaccuracies which have either been explained or are not central to the thrust of her evidence, I accept Miss Eldridge's evidence and consider that despite having recalled at an early stage the existence of the Deceased and his part in the property transaction relating to the Lodge, the transition in her memories to certainty in relation to having made his will makes perfect sense. Her evidence is supported by the existence of the entry in the dead files register which not only refers to "wills" in the plural, which in itself, could be explained as a typographical error, but also includes the Deceased's name in the client column of the dead files register. In my judgment, the inclusion of "Ciebrant" in the client column would be very unlikely if no work had been carried out by Miss Eldridge in relation to a will for the Deceased.
46. In addition, as I have mentioned, the stamps in the Deceased's passport together with contemporaneous correspondence indicate that he was in London in late August 1974. It is also clear from the correspondence that he had dealt with the purchase of the long lease of the Lodge by post. Miss Eldridge in cross examination told the court not only that she could recall making a will for the Deceased, but that she had met him before Ms Clarke's death.
47. When weighing Miss Eldridge's evidence, I also take into account the fact that Mr Jones did not seek to challenge the honesty of her recollection and that she had no reason whatever to fabricate her evidence. Therefore, I find that the weight of the evidence is such that on the balance of probabilities, it is more likely than not that a will leaving the Deceased's entire estate to the Charities was drawn up and executed in late August 1974.

Was a valid will discovered in January 2005?

48. I also have to decide whether in fact, it is more likely than not that a valid will in the form of the reconstituted will was still in existence and was found after the Deceased's death in early January 2005. As I have already mentioned, in this regard, there is conflicting evidence. Mrs Kakkavas and Mrs Membery say that they saw the original of the Deceased's will and this is denied by Ms Ciebrant who says that no will was ever found amongst the Deceased's effects. In this regard, it is necessary to consider the evidence relating to period from January to May 2005, in more detail.
49. The Deceased died on 3 January 2005. Mrs Kakavass told the court and it is undisputed that as his condition deteriorated, she had become concerned to discover where to contact the Deceased's next of kin and reluctantly, he had given her the name of a niece in Switzerland. After his death, the police entered the Lodge, found some contact details and the hospital contacted the niece, who in turn, had contacted Mrs Kakavass.
50. The niece spoke to Mrs Kakkavas on the telephone on or about 4^th January and it is Mrs Kakkavas' evidence that she not only informed her of the existence of Ms Ciebrant and her mother for the first time, but also mentioned a son of the Deceased and possibly other children from a first marriage. Mrs Kakavass also says that when Ms Ciebrant first came to London, she also mentioned that she had a half brother who lived in Holland. The niece did not give evidence. The existence of a half brother or any other siblings is denied by Ms Ciebrant.
51. Shortly after the call from the niece, Ms Ciebrant contacted Mrs Kakkavas. She flew to England on 5^th January and stayed with Mrs Kakkavas at her invitation, for the entirety of her visit, until 13^th January 2005. It is not in dispute that during that period, Mrs Kakkavas was very helpful to Ms Ciebrant and went with her to assist with the necessary appointments and arrangements for the funeral.
52. It is also not disputed that on an evening shortly after Ms Ciebrant's arrival, Mrs Membery was invited to join Mrs Kakkavas and Ms Ciebrant at Mrs Kakkavas' house in order to assist with the interpretation of various documents which had been found in boxes which Mrs Kakkavas had removed from the Lodge.
53. It is disputed whether this meeting occurred on 6^th, 7^th or 8^th January 2005. In cross examination, Ms Ciebrant stated that the meeting was on 7^th, Mrs Kakkavas gave evidence that it was on 6^th but was willing to accept that it was the 7^th and Mrs Membery thought it was on 6^th, 7^th or 8^th but thought it more likely to have been the 7^th or 8^th. To the extent that it is necessary to do so, I find that it is more likely than not that the meeting occurred on 7^th January.
54. The only real relevance of the date other than the credibility of the witnesses, is that Mrs Membery had downloaded certain information concerning the title to the Lodge in the afternoon of 7^th January and Mr Jones on behalf of Ms Ciebrant contended therefore, that she was very interested in purchasing the Lodge and had obtained the information before attending the meeting with Ms Ciebrant and that such an interest is consistent with her having concocted a story about the existence of the will, having been thwarted in her desire to purchase the Lodge at a preferential price. I shall return to this issue below.
55. In any event, Mrs Kakkavas gave evidence that on the evening in question, after tea, Ms Ciebrant handed her a bundle of papers to look at which had been extracted from the boxes. Mrs Kakkavas' evidence was that amongst various documents including details of the title to the Lodge and copies of Ms Clarke's will, was an original will of the Deceased. She stated that she recognised that it was an original because of the quality of the paper, that it started with the Deceased's full name, of which she had not been aware, having known him only as Siep and that it was signed by him. She stated that she was in no doubt that it was the Deceased's will and told Ms Ciebrant that that was the case. She also recalled that Miss Eldridge was appointed as executrix and that the sole beneficiaries were the Charities.
56. There is a conflict of evidence as to how Mrs Membery came to be invited to Mrs Kakkavas' house in the sense of whether she came by appointment or was called upon by Ms Ciebrant and came immediately. There are also discrepancies as to the precise time at which she came. However, it is unnecessary to make findings in this regard.
57. In any event, Mrs Membery, Mrs Kakkavas and Ms Ciebrant all recall that on her arrival in the evening, Mrs Membery mentioned that she might have an interest in purchasing the Lodge and that therefore, Ms Ciebrant might prefer her not to see the Deceased's documents which it was proposed she should explain which included reference to the Deceased's interest in the Lodge. Ms Ciebrant gave her permission nevertheless.
58. Mrs Membery, a solicitor, albeit not one who has professional experience in relation to probate matters, and in fact, who was on sabbatical at the time, also gave clear unequivocal evidence that she went to Mrs Kakkavas' house in order to explain the documents which had been found. She was in no doubt that amongst the papers which she was handed was an original of the Deceased's will. She too confirmed its contents in the manner described by Mrs Kakkavas. She also gave evidence that Ms Ciebrant made a passing suggestion of "getting around" the will and that she explained that it would be improper to hide it. Mrs Kakkavas did not recall this.
59. Ms Ciebrant's evidence in relation to the evening at Mrs Kakkavas' house is simply that although documentation in relation to the purchase of the leasehold and freehold of the Lodge were amongst the papers together with copies of Ms Clarke's Will and correspondence with Lithgow, Pepper & Eldridge, relating to a dispute over the courtyard at the Lodge, no will of the Deceased was ever found.
60. In this regard, I prefer the evidence of Mrs Kakkavas and Mrs Membery which was clear and unequivocal. Their evidence is also consistent with Ms Ciebrant's subsequent conduct.
61. First, as I have already mentioned, Mrs Membery gave evidence that Ms Ciebrant's reaction to the will and to having been informed of its effect was to question whether it could be ignored. Although Mrs Kakkavas did not recall this conversation and said that she had not been interested in the detail of the conversation between Ms Ciebrant and Mrs Membery, I accept Mrs Membery's evidence in this regard.
62. Secondly, despite staying in London for seven clear days on her first visit she made no attempt to contact Lithgow, Pepper & Eldridge and waited until her second shorter visit when she returned to London for the Deceased's funeral. On that occasion, she was accompanied by her partner, Mr van der Woolf. She went to see Mr Rowe on 21^st January 2005.
63. In cross examination, Ms Ciebrant explained the delay by stating that she had made no connection between Lithgow Pepper & Eldridge and her father at the earlier stage. In the light of the fact that the documentation produced on the night of 7^th January contained that firm's name and address, at least in the context of the administration of Ms Clarke's estate of which the Deceased was the executor and in relation to various disputes relating to the Lodge which they had dealt with on behalf of the Deceased and that firm's details were set out in Mrs Membery's contemporaneous note upon which Ms Ciebrant wrote her full name, I do not find Ms Ciebrant's explanation credible.
64. Mr Rowe's evidence was that at the meeting on 21^st January, Ms Ciebrant informed him that no will had been found and that she and her mother did not think that the Deceased had made a will. However, Mr Rowe explained that nevertheless, they discussed what the position would be in English law if there were a will, namely that a will took precedence and that there was no automatic heirship. He also outlined the effect of the Inheritance (Provision for Family and Dependents) Act 1975.
65. In my judgment, although Mr Rowe described it as theoretical, such a discussion of the statute is consistent not just with the existence of a will but of a will which made no provision for Ms Ciebrant and her mother and is a discussion which would have been unlikely to have taken place at that stage, had Ms Ciebrant not been aware of the existence of a will in such a form.
66. To return to the chronology of events, it was on her second visit to London with Mr van der Woolf from 18^th to 22^nd January 2005, that Mrs Membery recalled having informed Ms Ciebrant that she would not be surprised if the Lodge were worth in the region of €400,000. On this visit, Mrs Kakkavas stated that she discerned a distinct cooling in Ms Ciebrant's relationship with her. As I have already mentioned, it was also during that visit that Ms Ciebrant attended Mr Rowe's offices for the first time and told him that she believed that there was no will. It was also undisputed that on the evening of 21^st January, Ms Ciebrant and Mr van der Woolf had dinner at Mrs Membery's house.
67. On Ms Ciebrant's third visit to London between 6^th and 11^th February 2005, Mr Bailey of local estate agents, Douglas & Gordon visited the Lodge and suggested an asking price in the region of £250,000. This was on 8^th February 2005. There was a dispute as to whether he had been recommended by Mrs Membery. I find that she had certainly suggested his name to Ms Ciebrant. Ms Ciebrant in her witness statement stated that she found his suggested asking price low. However, her explanation of this in cross examination was unconvincing and I find that it is more likely than not that given the value of property in Holland, she was surprised by the potential value of such a small and poorly maintained and presented property.
68. Ms Ciebrant saw Mr Rowe again at his offices on 10 February 2005 when amongst other things, she told him that she had given away the content of the Deceased's self storage lock up to Mrs Kay's daughter. He was formally instructed on 16^th March 2005. Druces, another set of local estate agents had, at Ms Ciebrant's request, informally valued the Lodge on 10 February 2005, at £495,000.
69. Ms Ciebrant was in London again from 28^th March until 2^nd April 2005 during which time at her request, the Lodge was valued by Hamptons and Dominics at £450- 495,000 and £495 -550,000 respectively.
70. During these visits, Ms Ciebrant continued to clear the Lodge and she accepted in cross examination that she took back to Holland a number of items, including jewellery. She also sold books to a second hand dealer. However, the contemporaneous note of her meeting with Mr Rowe on 1^st April records that she had told him that there was nothing of value at the Lodge.
71. During April and therefore, before her next visit to London from 1^st to 6^th May 2005, it is Ms Ciebrant's evidence that she was telephoned persistently by Mrs Membery who was desperate that she should be allowed to purchase the Lodge from Ms Ciebrant at an advantageous price. Mr van der Woolf also gave evidence of persistent telephone calls. In fact, the land line and mobile phone records produced by Mrs Membery revealed one phone call to the Netherlands in March and four in April. Mrs Membery also produced documentary evidence of the dates of her holiday in Jordan in April and her hotel bill which showed that no international calls had been made from her room.
72. The first call in April however, was on 12^th, before Mrs Membery left for her holiday. It is Mrs Membery's evidence that on that occasion, she first challenged Ms Ciebrant that contrary to what she had been saying on her visits to London, in fact, she had not told Mr Rowe about the will and he had not confirmed that she could deal with her father's estate nevertheless. She says that at first, Ms Ciebrant admitted that that was the case and then said that a new Dutch will had been found. It was this call that Ms Ciebrant was adamant took place on 15^th April. This was proved to be inaccurate once the documentary evidence of Mrs Membery's holiday was made available.
73. The second recorded call was on 26^th April which Mrs Membery stated was immediately on her return from holiday. Mrs Membery stated that the call on 26^th April was when she picked up a message from Ms Ciebrant, left whilst she had been away and returned her call. Ms Ciebrant was out and Mr van der Woolf invited her to ring back. In cross examination, he accepted that this was the case.
74. According to Mrs Membery, the more significant call took place the following day on 27^th April. She says that on this occasion she spoke to Mr van der Woolf and mentioned that she was disappointed that Ms Ciebrant had not contacted her about how it was that she alleged that she and her mother could be the beneficiaries of the Deceased's estate. She says that Mr van der Woolf stated that they had a lawyer in the Netherlands who would sort it out and that she, Mrs Membery, was first in the queue to buy the Lodge. Mrs Membery says that she stated that she did not care less about progressing any purchase of the Lodge and that that was not necessarily something in Ms Ciebrant's gift. Matters became heated and Mrs Membery says that she was threatened by Mr van der Woolf. This is all recorded in a note which Mrs Membery says she made at the time. Mr van der Woolf denies threatening her and gave evidence that Mrs Membery had sought to put pressure on Ms Ciebrant to sell the Lodge to her.
75. The last phone call took place immediately afterwards when Mrs Membery phoned back to state as she put it, that the ball was entirely in Ms Ciebrant's court.
76. In relation to the content of the substantive call of 27^th April, I prefer the evidence of Mrs Membery to that of Mr van der Woolf. Her evidence is consistent with the note which she says she made at the time. In addition, it is consistent with the next incident which occurred. As I have mentioned, Ms Ciebrant was in London from 1^st to 6^th May. On 5^th May she literally bumped into Mrs Membery outside a shop. Both women agree that they were reluctant to talk. However, in cross examination, Ms Ciebrant accepted that Mrs Membery told her that she had been threatened by Mr van der Woolf. In my judgment, if Mr van der Woolf's version of the telephone call on 27^th April were correct and Mrs Membery was pressing Ms Ciebrant to sell the Lodge to her, it is unlikely that she would have fabricated a threat by Mr van der Woolf and mentioned it to his partner, the very person it is alleged she was seeking to influence.
77. It was on 6^th May 2005, that Mrs Membery telephoned Mr Rowe in order to inform him about the will, having come to the conclusion that Ms Ciebrant had not told him. She says that she came to this conclusion and that it was appropriate to make the call, finally as a result of her chance meeting with Ms Ciebrant outside the shop when she challenged her again about whether she had informed Mr Rowe of the will. Mrs Membery says that Ms Ciebrant initially agreed that she had not informed Mr Rowe and then added that they had found a Dutch will.
78. In cross examination, Ms Ciebrant refused to accept that she had been challenged in any way but did accept that she had mentioned the existence of a Dutch will. In my judgment, it is extremely unlikely that she would have mentioned a Dutch will unless she had been challenged in the manner which Mrs Membery suggests. Furthermore, it is clear from the documentation, that Ms Ciebrant had asked Mr Rowe to enquire about a Dutch will and had known since February 2005 that there was no will registered in Holland.
79. Mr Rowe's attendance note of his phone call with Mrs Membery on 6^th May, also records that Mrs Membery stated on that occasion that she had been threatened by Mr van der Woolf.
80. The weight of the evidence in this regard, therefore, supports Mrs Membery's account of events, namely that she had become suspicious that Ms Ciebrant had not informed Mr Rowe of the existence of the will, had challenged her on the telephone on 12^th April and sought to speak to her again about it, only to be threatened by Mr van der Woolf and that when she did confront her in the street, Ms Ciebrant resorted to the assertion that there was a Dutch will. In my judgment this is consistent with the suppression of the existence of a will making no provision for Ms Ciebrant and her mother.
81. As soon as he received the telephone call from Mrs Membery, Mr Rowe, began to make further enquiries, got in touch with the Law Society about his position and also made a report to the National Criminal Intelligence Service, as it then was.
82. In June 2005, it having already been established that Lithgow Pepper & Eldridge did not retain a copy of a will of the Deceased and had no relevant record in their Wills Register, Mr Rowe wrote to Ms Ciebrant to ask permission to contact Miss Eldridge, Mrs Kakkavas and Mrs Membery about the existence of the will. In her response of 6 July 2005, Ms Ciebrant authorised contact with Miss Eldridge but firmly refused permission to contact Mrs Kakkavas and Mrs Membery, making reference to the fact that they may have their own personal agendas and requiring him to confirm that he would not do so without her authority. It also appears from the penultimate paragraph of the letter that this request may have triggered an intention to change solicitors. I also consider this to be consistent with a concern that Mrs Kakkavas and Mrs Membery would provide full details of the discovery of the will.

The Challenges

83. As I have already mentioned, Ms Ciebrant seeks to undermine the evidence of Mrs Membery by suggesting that Mrs Membery made up the existence of the will because she was not able to buy the Lodge at an undervalue. It is also suggested that Mrs Kakkavas has chosen to support her. It is suggested that she may have ransacked the Lodge before Ms Ciebrant arrived on her first visit and is otherwise, unreliable. As I have already mentioned, I prefer the evidence of Mrs Membery and Mrs Kakkavas to that of Ms Ciebrant with regard to the finding of the will and therefore, must also address the challenges made to their evidence.

(i) Mrs Kakkavas' evidence

84. The real basis for the challenge to Mrs Kakkavas' evidence is not clear. The allegation that she ransacked the Lodge before Ms Ciebrant's arrival in London, in my judgment, is not borne out by the photographs taken by Ms Ciebrant in the early days of her first visit. They show a house full of boxes, newspapers and magazines and in terrible disarray. However, the vast majority of books in the photographs were still on the shelves and many of the boxes piled up all over the house in a haphazard fashion, contained such items as tinned food. These boxes did not show signs of having been disturbed. The photographs revealed a gap on the shelves where the boxes which Mrs Kakkavas admitted having removed, had been placed. The state of the house was in my judgment consistent with Mrs Membery's and Mrs Kakkavas' evidence that the Deceased never invited anyone into the Lodge. In addition, it was not alleged that Mrs Kakkavas had kept any of the items she removed from the Lodge or had dealt with them in an improper way.
85. Mr Jones also sought to suggest that Mrs Kakkavas was an unreliable witness as a result of an incident relating to the mail at the Lodge. She was discovered by another neighbour, Dr McDonald, attempting to remove mail from the box at the Lodge by means of a coathanger. In evidence, she accepted that she had done so and explained her conduct on the basis that initially she had been responsible for mail at the Lodge after Ms Ciebrant's return to Holland and had forwarded it to Mr Rowe, who had been instructed by Ms Ciebrant to deal with the Deceased's estate and thereafter, had sought to remove junk mail poking out of the box. A report was made to the police in this regard although no action was taken.
86. Mr Jones also sought to cast doubt upon Mrs Kakkavas' evidence by reference to the fact that she had not responded to letters asking her to provide information about the will at an early stage. I accept her evidence that she was reluctant to get involved and that she was advised by her son not to do so.
87. Given that in addition, there was no evidence that she and Mrs Membery were particularly close and Mrs Kakkavas has nothing to gain from doing so, I find it implausible that Mrs Kakkavas would give false evidence as to the existence of the Deceased's will, merely to support her neighbour, Mrs Membery.

(ii) Mrs Membery's evidence

88. As to Mrs Membery, as I have mentioned, it is alleged that she made up the story about the will in a fit of pique because she was unable to purchase the Lodge from Ms Ciebrant at an undervalue and based her false recollection of the content of a will on the basis of Ms Clarke's will which she had seen.
89. In this regard, Ms Ciebrant suggests that Mrs Membery had arranged for a Mr Bailey of a local estate agents firm, Douglas & Gordon, to provide a low valuation for the Lodge on 8 February 2005. He did suggest an asking price in the region of £250,000 odd which was almost half of the asking prices suggested by three other sets of agents. As I have also found, his name was put forward to Ms Ciebrant by Mrs Membery. However, I am not in a position to determine the actual value of the Lodge in February or March 2005.
90. Mrs Membery had some interest in purchasing the Lodge, as she herself made clear to Ms Ciebrant on the evening of 7^th January at Mrs Kakkavas' house. She had sufficient interest and perhaps more than she was willing to accept in cross examination, because it was clear from the contemporaneous documentation that she downloaded information from the Land Registry site on the internet concerning the ownership of the Lodge prior to attending that meeting.
91. However, in my judgment, the suggestion that a low figure was deliberately chosen by Mr Bailey in order to oblige Mrs Membery, cannot stand in the light of Mr Bailey's written response to a letter sent to him by Mr Rowe of Lithgow Pepper & Eldridge of 30 June 2006 and his subsequent letter to Abbot Beresford.
92. In the letter of 30 June 2006, Mr Rowe asked Mr Bailey to confirm whether he had received instructions to value the Lodge directly or indirectly from Mrs Membery, whether she had previously been a client of his or Douglas & Gordon and to provide the comparables upon which he based his valuation.
93. By an undated letter received by Lithgow, Pepper & Eldridge on 10 July 2005, Mr Bailey confirmed that he was instructed by Ms Ciebrant who introduced herself as the vendor's daughter and that Douglas & Gordon had had no instructions or communication with Mrs Membery. He stated that so far as he was aware, Mrs Membery had not been a client of Douglas & Gordon although she had been registered as an applicant, presumably in search of properties, on 11^th October 2004. This is consistent with Mrs Membery's evidence that she had been in search of a suitable property for her elderly mother.
94. By a further letter to Ms Ciebrant's present solicitors, Abbot Beresford, dated 7^th May 2008, Mr Bailey enclosed his original market appraisal sheet for the Lodge of 8^th February 2005, together with copies of search results of the same date for comparable properties sold or withdrawn from the market in the years up to that date and other relevant documentation. He went on to explain the price per square foot which he had adopted in the light of the comparables.
95. In addition, it is not Ms Ciebrant's case that Mrs Membery ever made an offer for the Lodge on a level consistent with the Douglas & Gordon asking price. She says that an oral offer of £390,000 was made by Mrs Membery, in about April 2005, at a time when at least one offer in the region of £475,000 had been made. Mrs Membery says that she never made any offer at all.
96. Therefore, even on Ms Ciebrant's case, it appears that Mrs Membery did not proceed with the alleged plan to purchase at the Douglas & Gordon level and made her offer, if she did, at a stage, when she knew that Ms Ciebrant was already aware of the level of asking prices which other agents had suggested.
97. In any event, Ms Ciebrant's responses in cross examination in relation to the alleged offer, the circumstances in which it arose and the time at which it was allegedly made were extremely vague and unconvincing and I prefer Mrs Membery's evidence that no offer was in fact, made.
98. As I have already mentioned, Ms Ciebrant also alleges that Mrs Membery hounded her with frequent calls to her in the Netherlands in April, in order to persuade her to sell her the Lodge and that their final acrimonious call was on 15 or 16 April 2005. I have already found that the alleged frequency of the calls, the date of this call and its alleged content are all incorrect.
99. Finally, Mr Jones drew attention to the differences between the first short statement provided by Mrs Membery and the full witness statement which was exchanged and the fact that when contacted by Mr Rowe she had not responded. I accept Mrs Membery's explanation in relation to the production of the first short statement and her reluctance to become involved. In my judgment therefore, Ms Ciebrant's challenge to Mrs Membery's evidence has no real basis.

Conclusion

100. In my judgment it is highly improbable that two neighbours, who do not appear to have any particularly close connection, should both seek to allege that a will existed when none did. This is all the more so perhaps in relation to a solicitor albeit not in practice, who would appreciate the seriousness of such a course of action.
101. It is even more implausible that Miss Eldridge, the former senior partner of Lithgow, Pepper & Eldridge, who has had no contact with any of the parties or main protagonists in this matter and has nothing to gain whatever, and whose integrity cannot be doubted, should fabricate a recollection about having made a will for the Deceased, in the form which is described independently by Mrs Membery and Ms Kakavass.
102. Accordingly, I find that a will in the form of the reconstituted will, as amended, ("the Will"), was amongst the Deceased's papers at his death and was found by Ms Ciebrant. In the circumstances, it is unnecessary to make a finding about whether Ms Ciebrant is the only child of the Deceased.
103. Therefore, the Claim is refused and I pronounce in favour of the Will in solemn form. Letters of administration should be granted with the Will annexed to Peter Jeffreys, Miss Eldridge having renounced and Mr Jefferies having consented to act. This requires a re-amendment to the Counterclaim which makes reference to the appointment of Mark William Hallam as administrator in place of Miss Eldridge, for which permission is granted.
---------------------------