England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
Chancery Division

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 November 2014

Mr Stephen Morris QC:

(A) Introduction

1. This action, commenced on 25 April 2013, concerns the estate of the late Joyce Smith ("Mrs Smith") who died, aged 85, on 7 December 2011. The Claimants are Mr Paul Kicks and Mrs Lisa Martin, two of Mrs Smith's grandchildren. They are the children of one of Mrs Smith's two daughters, the late Norma Kicks and her husband Mr Barry Kicks ("Mr Kicks" or "Barry Kicks"). Norma Kicks herself died from a brain tumour in January 2004. In June 2008, Barry Kicks married Barbara Sargent. Mrs. Smith's other, surviving, daughter, Mrs Georgina Leigh is the Defendant in this action. The Defendant's husband is Desmond Leigh. Mr and Mrs Leigh have two children, Richard and Graham.
2. Mrs Smith was survived by her brother, Roger Coppock and his wife Pauline; by her sister-in-law Mrs Joyce Allen and by her sister Heather, who lives in Florida. Barry Kicks, Roger and Pauline Coppock and Joyce Allen all live in the Oxford area. I refer to these individuals, together with the Claimants, as "the Oxford family". The Defendant and Mr Leigh live in Maidstone in Kent.

The Claimants' claim

3. In addition to seeking orders in relation to the grant of probate of Mrs Smith's last will made in February 2008 ("the 2008 will"), the Claimants make a claim in respect of the proceeds of sale of Mrs Smith's home at 49 Home Close, Wolvercote, Oxford OX1 8PT ("the Property"). The Property was sold on 23 April 2010. The net proceeds of sale, of £292,899.92 ("the Proceeds") were transferred, on the instructions of Mrs Smith, by the conveyancing solicitors to a bank account in the joint names of Mr and Mrs Leigh. The Defendant claims that the transfer of the Proceeds was a gift to her from her mother.
4. The Claimants claim that the transfer by Mrs Smith to the Defendant of the Proceeds should be set aside on either of two grounds, namely that:

(1) Mrs Smith lacked the mental capacity to make such a gift or transfer;

(2) The gift or transfer was procured by the Defendant's exercise of undue influence over Mrs Smith.

5. The Claimants seek the following relief: an order that the Defendant account to the estate for the proceeds of sale of the Property and pay to the estate any sums found due on the taking of account; alternatively, in their capacity as residuary beneficiaries under Mrs Smith's will, by way of derivative claim against the Defendant personally, an order that the gift or transfer by Mrs Smith to the Defendant of the proceeds of sale of the Property be set aside and that the Defendant repay to Mrs Smith's estate the sum of £292,899.92 with interest thereon since 23 April 2010.
6. As regards probate, the Defendant has been removed as an executor and letters of administration have now been granted to Cripps Trust Corporation: see paragraph 175 below.

The Defendant's position at trial

7. At the trial, the Claimants were represented by Ms Constance McDonnell. The Defendant appeared in person, assisted by her husband Mr Leigh.
8. Previously, at a hearing on 3 October 2013, attended by counsel for the Claimant and by the Defendant in person, Master Price had ordered that the Defendant be debarred from defending the claim until further order. The background to the making of that order was that the Defendant had, for a number of months, failed to comply with previous orders; most particularly the Defendant had not filed a defence complying with CPR 16.5, had not provided documents and had in general refused to participate in the proceedings. The history in summary is as follows.
9. On 1 May 2013, the Defendant refused to accept service of the proceedings by recorded delivery. On 4 June 2013, the Defendant filed a defence containing a narrative of events between the family. Prior to the first case management conference, the Claimants' solicitors, Henmans, wrote to the Defendant pointing out that her defence did not comply with the rules, and enclosed a copy of the relevant rules. The Defendant did not respond. On 16 July 2013 Master Price made an order for directions, which included an order for service of a defence compliant with CPR 16.5 and an order for provision of documents. The order was sent to the Defendant by the Court and by Henmans. On 2 August 2013 the Defendant sent a manuscript document to Henmans, purporting to be a defence, in which she asserted simply that all claims and allegations were denied and referring back to the defence previously filed on 4 June 2013. On 22 August 2013 the Claimants applied for an unless order on the basis of the Defendant's non-compliance with the order of 16 July 2013. Henmans wrote to the Defendant to explain the application. By order made on 23 August 2013 and entered on 29 August 2013, Master Price ordered that, unless the Defendant complied with the 16 July order within a further 14 days, the defence would be struck out and the Claimants would be entitled to proceed as if the Defendant had not defended the claim. This order was served on the Defendant. On 3 September 2013, the Court wrote to the Defendant, passing on specific observations from Master Price advising the Defendant to take advice as a matter of urgency in relation to compliance with the Court orders. On 6 September 2013, the Defendant responded to the Court and to Henmans, saying that she was about to take advice from a solicitor. On 24 September 2013 the Court, in turn, responded to the Defendant's letter, passing on Master Price's further comment, advising that an application had to made on notice to vary the unless order of 23 August. No such application was made. The Claimants then applied for an order for judgment in default of compliance with the order of 23 August.
10. That application was heard on 3 October 2013, when the debarring order was made. It is clear (from a follow up letter from Henmans received by the Defendant) that at the hearing itself Master Price had tried to impress upon the Defendant how important it was for her to participate in the proceedings. He also explained the effect of the shifting of the burden of proof in relation to presumed undue influence. In the follow up letter, Henmans once again strongly advised the Defendant to seek independent legal advice and explained that, as matters then stood, the Defendant would not be able to participate in the trial.
11. The Defendant did consult solicitors, Brachers, to whom Henmans supplied all relevant orders. But at no point did Brachers go on the record as acting for the Defendant and by the end of January 2014 Brachers were no longer involved. Thereafter Henmans kept the Defendant informed as to the progress of the case. On 29 November 2013 the Claimants served on the Defendant, and filed with the Court, witness statements of fact and on 20 December 2013 one further witness statement was filed and served.
12. At the outset of the trial, in the light of the order of 3 October 2013 and the history, the Claimants submitted that the Defendant's participation should be limited to the putting of questions to witnesses and the making of argument, and that the Defendant was not entitled to give or call any evidence nor put forward any positive case. Whilst the Defendant made no formal application for relief from the sanction of debarring, I explained the effect of the 3 October order to the Defendant and Mr Leigh and gave further consideration as to whether, in all the circumstances, the Defendant should be allowed to participate to a greater extent than suggested by the Claimants.
13. I concluded nevertheless that there were no grounds for any such relief from the sanction of debarring and that to allow the Defendant at such a late stage to put forward a positive case or to adduce evidence for the first time would work substantial unfairness on the Claimants. They would have had no advance notice of such a case by way of witness statements and no disclosure of documents which might be relevant to such a case. In my judgment, the history set out above indicates that the Defendant had had every chance to participate in proceedings; both Henmans and the Court had gone out of their way to assist the Defendant in understanding the process. The Defendant had had ample opportunity, over a period of more than nine months, to seek to vary the terms of the 3 October order. Instead the Defendant's conduct throughout had been characterised by a refusal to engage in the court process or to put forward a positive case, as well as a refusal to comply with court orders and directions relating to the pleading of a defence and to disclosure of documents. Making full allowance for the fact that the Defendant was largely acting in person, I nevertheless concluded that it would be unfair to the Claimants and undermining of the court's process to vary the terms of the 3 October order and to allow the Defendant now to seek to bring forward a positive case. In the event the trial proceeded on the basis of the Claimants calling their witnesses and Mr Leigh, on behalf of the Defendant, questioning them and making oral submissions.
14. I conclude this introduction by observing that it is clear from all the evidence before me that feelings between the Claimants and the wider Oxford family, on the one hand, and the Defendant and Mr Leigh, on the other, have been running high for some considerable time and remain so. The dispute between the two sides - and in particular between the Defendant and Mr Leigh, and Mr Barry Kicks - has been and remains acrimonious, as is not uncommon when different parts of a family fall out. Each side had its own view about what was best for Mrs Smith. In large part, it is not necessary for me to express a view as to the rights and wrongs of this dispute and I do not do so, save to express regret that matters have come to this stage. My task is to resolve the narrower issues of mental capacity and undue influence, and in reaching those conclusions it is not necessary for me to take sides in the wider dispute within the family, save in so far as it might affect issues of credibility. So for example, I make no findings about the cause of Mrs. Smith's fall in 2008 nor precisely what happened on New Year's Eve 2009.

(B) The Facts in outline

15. Mrs Smith had lived at the Property for many years; with her husband, Roy, until 1999. In 2003 she changed her will, at the initial suggestion of Norma and Barry Kicks. Norma died in early 2004. In February 2008 Mrs Smith changed her will in terms which favoured the Defendant and her children. In November 2008 Mrs Smith had a fall, which led her to be in hospital care for a number of months. By this time, her health was declining - in particular her eyesight was deteriorating. In November 2009 she underwent examination at the John Radcliffe hospital, where certain tests for signs of dementia were carried out.
16. At Christmas 2009, the Defendant and Mr Leigh came to Oxford to be with her. By that time, the Defendant was keen that Mrs Smith should move to live with her and her husband in Kent. Emergency medical call outs were made on 20 December and on Christmas Eve, she was visited at her home by her GP, Dr Huckstep, who recorded that, whilst the Defendant was keen that her mother should move to live with her and her husband in Kent, Mrs Smith expressed a strong desire to remain in her own home.
17. Shortly after Christmas, on 27 December 2009, Mr and Mrs Leigh left for Kent, taking Mrs Smith with them. On the same day, Mr Leigh changed the locks on the Property. Between 27 December and New Year the Oxford family tried, but failed, to speak to Mrs Smith on the phone at the Leigh's home in Kent. They then contacted Oxford Social Services about their concerns for her well being. Oxford Social Services contacted Kent Social Services; who then visited Mr and Mrs Leigh, accompanied by the police, on New Year's Eve.
18. Within a matter of a couple of weeks, and at the instigation of the Defendant and her husband, Mrs Smith had moved into a care home, the Maidstone Care Centre. She continued to reside there, for almost two years, until her death in December 2011.
19. On or around 22 January 2010, the Property was put on the market for sale. The instructions to agents and solicitors were arranged by Mr and Mrs Leigh. The Property was sold on 23 April 2010 and the Proceeds were paid into their joint bank account on that date. The Defendant has said on several occasions that the transfer of the Proceeds was a gift to her from her mother.
20. In the meantime, the Oxford family tried to contact Mrs Smith at Mr and Mrs Leigh's home. They found out only in May 2010 that she was living in the Maidstone Care Centre. Throughout that time Mr and Mrs Leigh had given instructions to the Care Centre to obstruct the Oxford family's ability to speak to or visit Mrs Smith at the Centre. Two visits did take place in July and August 2010. Mrs Smith died in December 2011. The Oxford family were not informed of her passing nor of her funeral.

(C) The parties' contentions and the issues

21. The Claimants' case is, first, that at the time that the Proceeds were paid into the account of the Defendant and her husband, Mrs Smith did not have the mental capacity to make such a gift. The Property was Mrs Smith's principal, if not only, asset of value and thus she had to have been capable of understanding not only the general nature of the transaction, but also that the effect of the gift would have been to deprive her grandchildren of any real interest in her estate under the 2008 will and the effect the gift would have on her resources and her ability to afford the costs of her future nursing care. The Claimants rely on medical notes from July and November 2009 evidencing her declining mental capabilities and suggest that in the following months her condition can only have got worse. They then rely on the circumstances in which the gift came to be made as suggesting lack of capacity and the fact that the Defendant has offered no explanation about the gift.
22. Alternatively, the Claimants submit that there was a relationship of trust and confidence between Mrs Smith and the Defendant and that the gift was a transaction which called for an explanation, giving rise to a presumption that it was procured by undue influence on the part of the Defendant. There was no evidence to rebut this presumption and the gift was thus vitiated by the Defendant's undue influence.
23. The Defendant in response contends that as far as mental capacity is concerned, the evidence is not sufficient to establish that she was not capable of understanding the nature of the gift of the proceeds nor the effect on the grandchildren or on her ability to fund her own care. The medical evidence on her mental capacity is weak and indeed there is much evidence, both from the GP and from others, including members of the family, that although she was old and infirm, she nevertheless was perfectly capable of knowing her own mind and taking decisions for herself. Her faculties were more than adequate for a person of her age.
24. As regards presumed undue influence, the Defendant does not accept that there was a relationship of trust or ascendancy; but rather the dominance had come from Barry Kicks and so the presumption of undue influence does not arise. The Defendant maintains that the gift was a natural gift to be made by a mother to her daughter.
25. Thus, the issues for determination are

(1) Did Mrs Smith have mental capacity to make the gift of the proceeds on 23 April 2010?

(2) Was that gift procured by the exercise by the Defendant of undue influence over Mrs Smith?

(D) The Relevant Legal Principles

(1) The Law on Mental Capacity

26. As regards the relevant legal principles to be applied in this case to the issue of mental capacity, there are two potentially relevant sources of law: common law principles as set out in the case of Re Beaney deceased [1978] 1 WLR 770 and the Mental Capacity Act 2005 ("MCA 2005"). There is some uncertainty as to the potential interplay between the two sources. In the present case, the gift in question took place after the coming into force of the MCA 2005. I understand that there is no previous reported decision where this issue has been considered in the context of capacity to make an inter vivos gift (as opposed to testamentary capacity) made after the coming into force of the MCA 2005. (Singellos v Singellos [2010] EWHC 2352 (Ch) concerned a post-MCA inter vivos gift but the MCA does not appear to have been considered). I set out first the tests under the common law and the MCA 2005 respectively.

(a) The relevant tests for mental capacity

The common law: Re Beaney

27. At common law, the principles to be to be applied in relation to mental capacity to make an inter vivos gift are set out in the judgment of Martin Nourse QC (as he then was) in Re Beaney. The learned judge first stated (at 773A-B) the test in general terms as follows:

"the question is whether the person making it was capable of understanding the effect of the deed when its general purport has been fully explained to him"

Thus the overall test is one of ability to understand, rather than actual understanding. If the maker of the gift does not in fact understand the transaction, in circumstances, where its general purport has not been fully explained, that does not establish lack of capacity. The test is whether he or she would have understood it, if the consequences had been fully explained.

28. As to the degree of understanding required, Martin Nourse QC cited and approved the following statement from the Australian case of Gibbons v Wright that the principle is

"that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument and may be described as the capacity to understand the nature of that transaction when it is explained"

and he then continued (at 774D-F):

"In the circumstances, it seems to me that the law is this. The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of a gift are trivial in relation to the donor's assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor's only asset of value and thus, for practical purposes, to pre-empt the devolution of his estate under the his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of" . (emphasis added)

29. On the facts, in Re Beaney, there was expert evidence from a professor of clinical neurology and from a consultant psychiatrist. The deceased suffered from senile dementia in a very advanced stage and it was getting worse. It was not possible for her to have a lucid interval. The deceased was not capable of understanding that she was even making an absolute gift.
30. The common law test for mental capacity to make a will (testamentary capacity) is to be found in Banks v Goodfellow (1870) LR 5 QB 549. The key passage is in the judgment of Cockburn CJ at 565:

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

The Mental Capacity Act 2005

31. MCA 2005 is essentially concerned with the jurisdiction of the Court of Protection to deal with welfare issues of living persons who have mental incapacity. Sections 1 to 3 of the MCA 2005 set out the relevant principles for ascertaining mental capacity. Section 1, entitled "The principles" provides as follows

"(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

..."

(emphasis added)

32. Section 2 provides, so far as relevant, as follows:

"(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."

...

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities."

33. Section 3 expands upon the meaning of "unable to make a decision" and provides, so far as relevant, as follows:

"(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of

(a) deciding one way or another, or

(b) failing to make the decision."

Thus, section 1(2) deals with the issue of burden of proof. Sections 1(3) and 3(2) reflect the position in Re Beaney to the extent that the question is one of ability to understand rather than actual understanding in fact.

34. Sections 16 to 18 MCA 2005 set out the powers of the Court of Protection to make decisions about the personal welfare (such as residence, medical treatment) and property and affairs (such as control, sale or acquisition of property) of a living person who lacks capacity, under the principles set out in sections 1 to 3.
35. It is clear that the s.3(1) test and other provisions only apply directly where the Court of Protection is considering issues within its statutory jurisdiction and is not a general test applicable to all issues where mental capacity arises nor in all courts.

The Mental Capacity Act 2005: Code of Practice

36. Section 42 MCA 2005 requires the Lord Chancellor to issue one or more codes of practice. By s.42(5) any court conducting any criminal or civil proceedings - thus including this Court - must take account of a provision of such a code if it appears that that provision is relevant to a question arising in the proceedings. Such a code of practice ("the Code") was issued and came into force on 23 April 2007. The Code provides, in particular, as follows:

"4.31 The Act makes clear that the definition of 'lack of capacity" and the two-stage test for capacity set out in the Act are 'for the purposes of this Act'. This means that the definition and test are to be used in situations covered by this Act. Schedule 6 of the Act also amends existing laws to ensure that the definition and test are used in other areas of law not covered directly by this Act.

...

4.32 There are several tests of capacity that have been produced following judgments in court cases (known as common law tests). These cover;

- capacity to make a will [citing Banks v Goodfellow]

- capacity to make a gift [citing Re Beaney]

- capacity to enter into a contract

- capacity to litigate (take part in legal cases), and

- capacity to enter into a marriage

4.33 The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think that it is appropriate. The Act will apply to all other cases relating to financial, healthcare and welfare decisions"

(emphasis added)

(b) The Issues and the Authorities

37. In considering whether Mrs Smith had capacity to make the gift of the Proceeds, two issues arise. First, should I apply the common law principles in Re Beaney or rather those set out in ss.1-3 MCA 2005 or indeed some form of combination of the two? Secondly, what is the correct approach to the burden of proof in relation to mental capacity to make an inter vivos gift?
38. On analysis of the relevant authorities, Ms McDonnell's primary submission, in closing, was that I should continue to apply the approach in Re Beaney and that the MCA 2005 does not apply. In this regard I should follow the approach taken by Stephen Smith QC in Scammell v Farmer [2008] EWHC 1100 (Ch). Alternatively, she submitted that if the MCA 2005 test does apply, then it does not replace the common law approach, but is to be applied alongside it. As regards the burden of proof, she submitted that the correct approach is that set out by Sarah Asplin QC (as she then was) in Gorjat v Gorjat [2010] EWHC 1537 (Ch), namely that the burden upon the person alleging mental incapacity only extends to showing a prima facie case of lack of capacity, and thereafter the evidential burden is shifted to the person seeking to uphold the gift.
39. I turn to consider the authorities which address these two issues. In the course of doing so, I also make observations on the facts of the particular cases. Whilst each case will turn on its own facts, it may be instructive to consider the approach of other courts to the application of the principles to the evidence before them.

Local Authority X v MM (adult) [2007] EWHC 2003 (Fam)

40. This was a welfare case concerning the capacity of a living woman suffering from paranoid schizophrenia. A local authority sought declarations that MM lacked capacity to conduct litigation, to decide about where and with whom she should live, to determine with whom she can have contact, to manage her own financial arrangements and to enter into a contract of marriage. At §§62 to 96 of his judgment, Munby J considered the law on capacity in some detail, referring to various common law authorities and to the MCA 2005. He set out in detail the common law tests for capacity in relation to medical treatment and to litigate, and identified (at §72) what he described as a statement of general theory of what is meant by "understanding". He concluded (at §§73, 74, 78 and 92) that there was no relevant distinction between the common law test in the case of Re MB for capacity to consent to medical treatment and the test in s.3(1) MCA and further that the Re MB test also applied to the other capacity issues before him. He reached this conclusion because (1) those tests reflected a general theory which is now given statutory force in s.3(1) MCA and (2) the s.3(1) MCA test applies to all aspects of personal welfare identified in s.17 MCA and (3) it would be unfortunate if a judge in the Family division (not required to apply s.3 MCA) was to adopt an approach significantly different from the approach adopted by the same judge when sitting in the Court of Protection and exercising statutory jurisdiction (and required to apply s.3 MCA).
41. Most significantly for present purposes, Munby J then cited paragraphs 4.32 and 4.33 of the Code set out above and continued (at §80) as follows:

" A question was raised as to what was meant by the words "When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate (emphasis added). I do not for my part see any difficulty. The meaning of the observation is clear and the sentiment unexceptional. It is not being said - it could not properly be said- that a judge sitting in the (new) Court of Protection and exercising the statutory jurisdiction under the Mental Capacity Act is in some mysterious and undefined way entitled to disregard the statutory test in section 3. Certainly not. What is being said is that judges sitting elsewhere than in the Court of Protection and deciding cases where what is in issue is, for example, capacity to make a will, capacity to make a gift, capacity to enter into a contract, capacity to litigate or capacity to enter into marriage, can adopt the new definition, if it is appropriate, - appropriate, that is, having regard to the existing principles of the common law. And since, as I have said, there is no relevant distinction between the test as formulated in Re MB and the test set out at s.3(1) of the Act, and since, as it were, the one merely encapsulates in the language of the Parliamentary draftsman the principles hitherto expounded by the judges in the other, the invitation extended to the judges by the Code of Practice is entirely understandable, and indeed appropriate"

(emphasis added)

In summary, Munby J held that it was "appropriate" to use the statutory test in s.3 MCA in other courts, where, as in that case, the statutory test "merely encapsulates" the common law principles relating to medical treatment and capacity to litigate.

Scammell v Farmer

42. In this case, the claimants challenged the validity of the will of their late grandmother on grounds, inter alia, of lack of mental capacity. It was alleged that the deceased had been suffering from Alzheimer's disease and serious and incapacitating dementia. All relevant events had taken place before the MCA came into force.
43. The first question for the judge was whether his assessment of capacity should be made under common law principles (namely Banks v Goodfellow in relation to testamentary capacity) or under the MCA 2005. After setting out the provisions of s.1, 2 and 3 MCA, the judge recorded that it was largely common ground that the test under s.3 MCA is a modern restatement of the test propounded in Banks v Goodfellow, but he pointed out (at §24) that one obvious difference was that under the MCA (s.1(2)) the burden of proof remains throughout on the person asserting mental incapacity, whilst at common law the position was different.
44. At §25 of his judgment, the judge concluded that he did not consider that the MCA applied in that case for either or both of two reasons.

"First, this is not a case within the purposes of the 2005 Act, as required by section 1(1). I was referred by Mr Pugh to Sections 16-18 of the 2005 Act, but those provisions concern the power of the Court to make or authorise the making of Wills on behalf of persons who lack capacity, not the ascertainment of whether a particular testator had capacity when a Will was made."

45. The judge (at §§26 and 27) then referred to the Code and in particular paragraphs 4.31 to 4.33. He took the view that a proper reading of those paragraphs did not say that the Act was intended to apply in a case such as his. Rather the Code only said that in such a case, the judges could adopt the new definition, if they think it appropriate. He considered that in that case it was not appropriate since the proceedings could have been concluded long before the MCA came into force. Local Authority X v MM was not referred to in the judgment, nor apparently cited in argument.
46. Secondly, he concluded (at §§28 to 30) that to apply the MCA to the case in question would be to give the Act retrospective effect and that would run contrary to the presumptions against retrospective legislation and the presumption against interference with vested interests.
47. On the facts, the judge held that the deceased did have capacity to make her will, relying on medical evidence which showed that her performance in MMSE tests was never poor and rarely below the mid range of mild dementia. (Her scores were latterly between 23 and 26). In any event, (at §94), those tests were directed largely at memory and powers of recall and under Banks v Goodfellow the possession of an imperfect memory is not to be equated with an absence of testamentary capacity. The deceased's memory was not working well, but she knew her own mind.

Sutton v Sutton [2009] EWHC 2576

48. In this case, Christopher Nugee QC (as he then was) declared an inter vivos transfer of property by a father to his son to be invalid by reason of mental incapacity. The case was not contested; in fact both the father's administratrix and the son supported invalidity. The judge applied the test in Re Beaney. There was no reference at all to the MCA. All relevant events had taken place before it came into force. Thus the case casts no light on the issue of which test I should apply. However, the jge's application of the Re Beaney test is illustrative.
49. The house was the deceased's principal, although not only, asset of any value. The judge found that he had to be capable of understanding not only the general nature of the transaction but also the claims of the other potential donees. In reaching his conclusion, the judge considered three types of evidence before him: first evidence as to the circumstances of the transaction itself and held that it did not persuade him that Mr Sutton lacked capacity. Secondly, he considered evidence of a substantial number of incidents of forgetfulness or confusion on the part of Mr Sutton over time, some of which were quite extreme. He concluded that together they showed a consistent pattern of Mr Sutton exhibiting confused and forgetful behaviour and raised a real question mark over his degree of mental capacity at the time. Thirdly, the judge considered medical evidence provided by a consultant neurologist. In his expert report, the neurologist reached a firm conclusion that the deceased had a significant cognitive decline sufficient to impair his understanding of a legal document or financial transaction. He did not have capacity, on the Re Beaney test, fully to understand a complicated transaction such as a will. On the basis of this evidence, the judge concluded that "Mr Sutton did not have the capacity in August 1997 to understand the nature and effect of what he was doing".

Gorjat v Gorjat

50. Ms McDonnell relies on this case particularly in relation to the issue of the burden of proof. It concerned an inter vivos transaction where the deceased had transferred very substantial sums to his second wife and himself, and ultimately to her. The transfer was challenged by his three children of his first marriage as invalid on grounds of, inter alia, lack of capacity and undue influence. Sarah Asplin QC (as she then was) held that the deceased had not lacked capacity, even though the deceased suffered from cerebrovascular cognitive impairment and dementia and memory loss and diminution of mental faculties in the period of 1 to 2 years before the transfer.
51. The judge applied the Re Beaney test. At §132 of her judgment, the judge addressed the MCA 2005, noting that it was not in force at the time and thus was not directly relevant to the case. She rejected the claimants' submission that she should nevertheless use the MCA 2005 as guidance as to how the question of capacity should be assessed. In this regard, she followed the decision in Scammell v Farmer in relation to the presumption against retrospectivity. However she did not address the first ground in Scammell v Farmer based on the construction of the words "for the purposes of Act".
52. Then, at §§139 to 140, the judge addressed the burden of proof in relation to mental capacity as follows:

"139. Finally, at common law, the burden of proving lack of mental capacity lies on the person alleging it. To put the matter another way, every adult is presumed to have mental capacity to make the full range of lifetime decisions until the reverse is proved. Section 1(2) Mental Capacity Act 2005 which came into force after the decision which is under consideration in this case, put the presumption of mental capacity on a statutory footing. This evidential burden may shift from a claimant to the defendant if a prima facie case of lack of capacity is established: Williams v Williams [2003] WTLR 1371 at 1383.

140. Miss Rich on behalf of the Claimants submits that the Claimants have discharged the burden of showing a prima facie case of lack of capacity and that accordingly, the positive burden of proving that Jean had capacity shifted to Lucrecia. Mr Waterworth on the other hand, submitted that the Claimants had not advanced a case which was sufficient to cause the evidential burden to shift and described the exercise as sterile in this case. He also submitted that what was necessary was for the Claimants to make out a case that Jean lacked capacity to a sufficient degree to call into question the validity of the transaction in question. He said that it was not enough to bring capacity into question generally. He emphasised that the lack of capacity must be material and relate to the transfer of the Credit Suisse accounts into joint names. In my judgment, this is inevitably correct. However, evidence as to a person's mental capacity both before and shortly after the transaction in question may well shed light on that person's capacity at the relevant time."

53. As regards the facts, the judge considered various types of evidence: mental tests, observations of lay witnesses and medical expert opinion. As to the former, there were a substantial number of results (including relatively high scores in MMSE tests, but regarded by experts as rudimentary) and contemporary medical evidence that the deceased had "moderate cognitive impairment undoubtedly vascular of mixed origin" (§75). One of the experts accepted that the majority of persons with MMSE scores of over 20 would have testamentary capacity (§126). There was also expert medical evidence from two professors of old age psychiatry - specifically addressing questions of mental capacity derived from MCA and Re Beaney. Both gave opinions on specific mental capacity issues - i.e ability to understand the transactions, competing interests and consequences etc (§128). Both agreed that the deceased suffered from cerebrovascular impairment (§119) but this did not necessarily mean that he did not have capacity to make and understand the decision. One expert, accepted by the judge, took the view that the degree of vascular dementia was not sufficiently severe to have been diagnosed as significant vascular dementia.
54. In conclusion, at §149, the judge considered that whether the claimant had done enough to put forward a prima facie case of lack of capacity, so as to shift the evidential burden, was borderline and in any event, even if the burden had shifted, she concluded that on the totality of the evidence, the defendant had proved that he had capacity. She found no distinction in this regard made between different categories of evidence. The non-expert evidence of the GP and a lawyer, both of whom were independent, and their observations of the deceased were important.
55. As to undue influence, the judge made it clear (at §146) that in a case of presumed undue influence what must be shown is that donor in fact knew and understood what he was doing. Thus a donor might be capable of understanding and thus have capacity and yet, because he did not in fact understand, might have been operating under undue influence.

Fischer v Diffley [2013] EWHC 4567 (Ch)

56. This was a case of testamentary capacity in respect of two wills made in 2009 and 2010. HH Judge Dight held that the testatrix did not have testamentary capacity. At §§24 to 34 of his judgment, the judge set out the law on capacity to make a will, saying that the law is not in dispute

"25 As far as capacity is concerned, there are many reported decisions setting out the common law, the principal case being Banks v Goodfellow, which has recently been supplemented by statute, to which, it seems to me, that I am entitled to have regard as a starting point in connection with the question of capacity."

After setting out, and making an observation on, s. 1 MCA 2005, the judge continued:

"28. Notwithstanding the wording of sub-section 1 [presumably a reference to the words "for the purposes of this Act"], it seems to me, having regard to the terms of the Act and the context in which it was enacted, that the principles go further and are applicable in situations such as the present and must be looked at alongside the classic test contained within the common law as set out in the case of Banks v Goodfellow."

Then, after setting out relevant parts of ss.2 and 3 MCA 2005, the judge concluded by observing that the experts in the case before him had in mind what he termed "this modern statement of the principles relating to the assessment of capacity in a court of law" and in their evidence had dealt with the factors identified in the statutory provisions.

57. On the facts of the case, the judge found that the testatrix was suffering from Alzheimer's disease which brought on severe dementia. (She scored 13 out of 28 on the MMSE test). In reaching that finding he relied very heavily on expert medical evidence from a consultant old age psychiatrist in preference to evidence of lay witnesses and friends and from two other consultants.
58. The following is to be noted. First, this is a post-MCA case, so the issue of the application of the MCA did arise. Secondly, the defendants were acting in person so the point may not have been fully argued. Thirdly, the judge held that in respect of testamentary capacity, the statutory provisions applied to determining such capacity and those provisions were both "a starting point" and must be applied "alongside" the common law test.

Bray v Pearce (Ch D) Murray Rosen QC 6 March 2014.

59. In this, the most recent case, there was a challenge to the validity of three wills, made in 2005 and twice in 2007 on grounds of, inter alia, mental incapacity. The judge found that the wills were to be set aside on grounds of mental incapacity. As in the present case, the main defendant acted in person and did not fully participate in the proceedings; the second defendant, the executrix, adopted a neutral stance.
60. The judge addressed the law on testamentary capacity at §§69 to 74, and 87 to 91 of his judgment. He first set out the common law test from Banks v Goodfellow and then set out ss.2 and 3(1) MCA. He addressed the question of the impact of the MCA on the common law rules as follows:

"73. An issue has been raised as to whether the 2005 Act replaced the common law as regards testamentary capacity in respect of wills executed after it came into force .. which I briefly address in paragraph 87ff below.

74. However both at common law and, as it seems to me, under the 2005 Act if and insofar as applicable - and I do not seek to distinguish between them at this stage -

(a) the Court will start by assuming that a testator had capacity at the time when he made his will (see section 1(2) of the 2005 Act if applicable);

(b) at least unless the Court considers that the disputed will is irrational upon its face, the evidential burden is upon the Claimant to raise a real doubt as to the Deceased's capacity, from which if there is no more, incapacity could be inferred;

(c) the evidential burden should then shift to the person propounding that capacity;

...."

The judge then considered that the unchallenged expert report of an eminent professor did raise a real doubt as to the deceased's capacity (under both the last part of the Banks test and s.3(1)(c) MCA). He concluded (at §81) that he would regard both her paranoid personality disorder and her paraphrenia as constituting testamentary incapacity and thus the evidential burden moved to the first defendant to establish that the deceased did have testamentary capacity.

61. At §§82 to 84, the judge cited two cases as examples of the operation of the shift in the evidential burden of proof. In the second of those cases, in the light of the claimant's witness and medical evidence, the burden had shifted and there was no evidence adduced to the contrary effect. At §86, the judge concluded that, in the instant case set against all the evidence (medical and non medical) adduced by the claimant, and in the absence of any evidence to the contrary, the first defendant could not discharge the evidential burden which had shifted to him. It was in this context of the approach to the burden of proof, that the judge then returned to the issue of the relationship between the MCA 2005 and the common law principles. He continued:

"87 Finally on this topic, I ought to mention (a) first that Mr Bray submitted, by reference to paragraph 25 of Scammell v Farmer... that the 2005 Act did not apply to probate claims about testamentary capacity because that was outwith the 2005 Act's "purposes" as referred to in sections 1 to 4; and (b) secondly, that in that case the learned deputy judge also stated ... that the onus of proof of incapacity under section 1(2) of the 2005 Act "is from the outset and remains on the complainant"

88 The meaning and reasoning in the judgment in Scammell on these points is not entirely obvious to me. I cannot and do not say that it was wrong, and these issues are not decisive for this present judgment.

89 As regards the first aspect, whether the 2005 Act applies, I note that in the recent case of Fischer v Diffley ... HHJ Marc Dight referred to the 2005 Act as supplementing the common law test and as being the starting point in connection with capacity - which in context must have meant testamentary capacity on a probate challenge. This is in line with the Mental Capacity Code of Practice, paragraphs 4.31 to 4.33 of which suggest that the 2005 Act's definition of capacity is in line with common law and does not replace it, such that judges can adopt the new definition if they think it appropriate.

90 If I was left to my own devices as regards the first aspect, I would follow that flexible approach. Indeed:

(a) I myself do not readily see why the "purposes" of the 2005 Act should be narrowly construed and why it should not be applied at least by analogy to a "matter" such as testamentary capacity to execute a valid will on or after 1 April 2007, which is closely connected to other matters turning on capacity as expressly dealt with by the 2005 Act;

(b) I might have been tempted to approve of the views (expressed by the editors of Theobald on Wills ...) - if different from Scammell, which they do not cite.

91 On the second aspect of Scammell mentioned above, the assumption of capacity unless it is established to the contrary, whilst there may or may not be a distinction in respect of the shifting of a legal or persuasive burden as between the common law and the 2005 Act, to my mind it may indeed be "established" that a person lacks capacity under section 1(2) if a real doubt is raised by the claimant's evidence, from which one might infer incapacity, and this is unrebutted in evidence by the defendant".

He concluded (at §92) that even if his interpretation of the burden of proof under the MCA was wrong and there was no shifting of the evidential burden, he would still find that the claimant had discharged that burden on the evidence.

62. In summary, on the issue of which test to apply, the judge followed Fischer and did not follow Scammell, and held that the MCA test can be applied and should be applied - in some way as supplementing, or alongside, the common law. He construed "for the purposes of the Act" in s.1(1) widely and not limited to things done under the MCA 2005. Munby J's analysis of the relevant provisions of the Code in Local Authority X v MM does not appear to have been cited to the judge.

Conclusions on the legal principles

(1) Which test applies?

63. As indicated above, this is an issue which has given rise to differing judicial views and I have not found it easy to resolve. Nevertheless in my judgment, the correct approach to a post-MCA inter vivos gift is to apply the common law principles in Re Beaney rather than those set out in s.2 and 3 MCA 2005.
64. First, the words in s.1(1) MCA 2005 "for the purposes of the Act" indicate that the MCA test is a test to be applied in relation to matters specifically arising under the Act. I refer to those matters in paragraph 34 above; they do not include consideration, retrospectively, by a court in civil proceedings of the capacity to make an inter vivos gift. This conclusion is confirmed by paragraph 4.31 of the Code itself. On this issue, I prefer the analysis in Scammell v Farmer to that in Fischer v Diffley and Bray v Pearce. The wider view of these words taken at §90(a) in Bray v Pearce and at §28 in Fischer v Diffley does not, in my judgment, sufficiently take account of the very specific ambit of the MCA dealing with prospective decision making for living persons and the role of the Court of Protection, nor what is said specifically in paragraph 4.31 of the Code. So the starting point is that s.3(1) does not apply and the common law principles still apply. This is confirmed by the first sentence of the paragraph 4.33 of the Code. Moreover, as regards Fischer v Diffley, I note that on this issue, neither Local Authority X v MM nor Scammell v Farmer were cited nor did the judge refer expressly to the Code. In my judgment his view (at §25) that the statutory test is the starting point is inconsistent with both the words of the MCA and the Code itself.
65. Secondly, nevertheless I am required to take account of the Code and thus, to consider, whether, in accordance with the second sentence of paragraph 4.33 of the Code, it is "appropriate" to adopt the s.3(1) test in this case. I apply the considered analysis of that phrase by Munby J at §80 in Local Authority X v MM. Thus, in the context of capacity to make a gift, I ask myself the question whether test in s.3(1) "merely encapsulates" the principles expounded in Re Beaney. It is not clear to me that the s.3(1) test does "merely encapsulate" the Re Beaney approach. Whilst I am not saying that the statutory test is inconsistent with it, it does seem to me to expand upon it, for example by identifying a number of specific sub-categories of capacity, and by dealing expressly with short term retention. Furthermore, it is very arguable, as I consider below, that the approach to the burden of proof in s.1(2) is not the same as that under the common law. (In this regard, I now note the detailed comparison conducted by Nicholas Strauss QC at §§21-26 of his judgment in Walker v Badmin: see postscript, paragraph 228 below). I should add this. If s.3(1) does in fact merely encapsulate the common law principles, then it might be said that it does not add to Re Beaney and that the latter should be used in any event.
66. Finally, if, contrary to the foregoing, it is appropriate for me to adopt the statutory test, I consider that it can only be applied "alongside" the test in Re Beaney and that the two tests would need to be synthesised. On this basis, I would consider that the detail of ss.2 and 3 MCA 2005 should be applied, as a more detailed exposition of the common law principles. Further, I do not think that any difference between these two approaches - common law alone or common law as expounded by the statutory test - would have made any material difference to the outcome on the facts of this case.

(2) Approach to Burden of Proof

67. In the light of the conclusion I have reached in relation to the first issue, I apply the approach to the burden of proof identified in Gorjat v Gorjat. With the exception of Sutton v Sutton where (at §18) there was no reference to the possibility of the evidential burden shifting to the party asserting capacity, the authorities all seem to support the proposition that whilst the legal burden is on the party asserting incapacity, if that party adduces evidence to raise a sufficient doubt from which incapacity can be inferred, then the evidential burden shifts to the opposing party: see also Scammell v Farmer at §24 and Bray v Pearce at §74. In these circumstances, it is not necessary for me to express a conclusive view on the nature of the burden of proof under s.1(2) MCA, although on the basis of Scammell it is certainly arguable that it remains throughout on the person asserting incapacity. I add that, if the alternative answer to the first issue is that the statutory test is to, in general, to be applied alongside common law principles, if s.1(2) does embody a different approach to the burden of proof (more favourable to the party seeking to uphold the gift), then I would hold that the common law approach should be take precedence.

(2) The Law on Undue Influence

68. As regards the relevant legal principles applicable to undue influence, the position can be stated more simply. The leading authority is the decision of the House of Lords in Royal Bank of Scotland plc v. Etridge (No 2) [2002] 2 AC 773, and in particular the speech of Lord Nicholls at §§6 to 25. I also refer to the decision of the Court of Appeal in Hammond v Osborn [2002] WTLR 1126 and the recent judgment of Sir William Blackburne in Hart v Burbidge [2013] EWHC 1628 (Ch) where he comprehensively summarised the principles at §§37 to 51. The position can be stated as follows.
69. First, there are two forms of undue influence - actual undue influence and presumed undue influence. In the case of presumed undue influence, the party alleging that a transaction should be set aside for undue influence must establish two elements or "prerequisites": the existence of a relationship of trust and confidence, and a transaction which calls for an explanation.
70. Secondly, as to the first pre-requisite, a relationship of trust and confidence, in Etridge Lord Nicholls stated (at §8) that presumed undue influence

"arises out of a relationship between two persons where one has acquired over another a measure of influence or ascendancy, of which the ascendant persons then takes unfair advantage."

He continued (at §9)

"The relationship between two individuals may be such that, without more, one of them is disposed to agree to a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired."

Then (at §11):

"The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. .... Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. ..."

So, in summary, the relationship may be characterised in several ways: as one of trust and confidence or as one of ascendancy, where there is vulnerability and dependence on one side and ascendancy, domination or control on the other.

71. Thirdly as regards the second pre-requisite - a transaction calling for an explanation - Lord Nicholls stated at §22

"Lindley LJ summarised this second prerequisite in the leading authority of Allcard v Skinner 36 Ch D 145, where the donor parted with almost all her property. Lindley LJ pointed out that where a gift of a small amount is made to a person standing in a confidential relationship to the donor, some proof of the exercise of undue influence must be given. The mere existence of the influence is not enough. He continued, at p185 "But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift. In Bank of Montreal v Stuart [1911] AC 120, 137 Lord Macnaghten used the phrase "immoderate and irrational" to describe this concept"

In Hammond v Osborn, the Court of Appeal held that the defendants had been correct to concede that the transaction called for an explanation (and thus the presumption of undue influence arose) in circumstances where a deceased man had made of gift of nearly £300,000 representing almost 92% of his assets and "practically all of his free capital": per Sir Martin Nourse §25 and Ward LJ at §§35 and 39.

72. Fourthly, once the claimant establishes these two prerequisites, the presumption of undue influence arises and the evidential burden then shifts to the defendant to produce evidence to counter the inference: Etridge per Lord Nicholls at §§14 and 21. The defendant has to show that the gift or transaction was made free of this influence and "only after full, free and informed thought about it" (per Sir Martin Nourse in Hammond v Osborn at §25). One of the ways in which the donee may commonly do this is by establishing that the donor had received advice from an independent person as to the nature and effect of the transaction. Whilst such advice is not always necessary nor indeed sufficient, its absence is a relevant factor: per Lord Nicholls in Etridge at §20 and Hammond v Osborn §§27, 28.

(E) The Evidence

73. The main documentary evidence before me comprised the conveyancing files of Withy King, medical records and the records of the Maidstone Care Centre, and inter partes correspondence. Little or no documentation concerning Mrs Smith's estate and personal affairs has been produced. In January 2014, Cripps Harris Hall acting for the newly appointed personal representative wrote to Brachers asking the Defendant to deliver up the estate papers in accordance with the order of 3 October 2013. The Defendant herself responded saying that she did not have the original of the 2008 will. She did not respond in relation to any other papers and at all material times she has failed to provide copies of any papers relating to Mrs. Smith's estate.

The Witnesses

74. In addition to the documentary evidence, I heard oral evidence from a number of witnesses, each of whom provided witness statements and were subject to questioning by Mr Leigh and supplemental questions from myself. As well as giving evidence themselves, the Claimants called members of the family, Barry and Barbara Kicks, Roger Coppock, and Joyce Allen. They also called Mrs Smith's neighbour, Mr Fidler and, finally, two professional witnesses, Dr Huckstep the GP and Ms Treherne, a solicitor.
75. Lisa Martin gave her evidence clearly and eloquently. She had been very attached to her grandmother, Mr Smith. At times she was quite tearful when recalling her grandmother. She was forceful in her rebuttal of points that were put to her by Mr Leigh. Her recollection was not perfect in every detail - for example, she was unclear about whether, on her return from France in 2010, she had actually visited her grandmother in the care home or merely telephoned her once she herself got home. Nevertheless, overall, I found her oral evidence to be given honestly and fairly, and I accept her as a reliable witness.
76. Paul Kicks by contrast, was clearly less close to his grandmother than his sister was. He had not been much involved with her. He accepted, in cross-examination, that he did not go to visit his grandmother at the Maidstone Care Centre during the time she was there. He appeared embarrassed by that. He had little recollection of detail and, for that reason, was a less impressive witness.
77. Roger Coppock was a truthful witness. However at times, his recollection was either unclear or inaccurate. He was not very clear about whether, at the end of December 2009, it was Kent or Oxford social services that he spoke to. His evidence about how long, in the course of 2009, Mrs Smith was recuperating in Witney Community Hospital was mistaken - saying initially that he thought it was only a month. He was clearly very attached to his sister and understandably upset by the fact that he had not seen her in her last months.
78. Joyce Allen was a witness who was clear in her evidence and was persistent in her answers. I accept her evidence as reliable.
79. Barbara Kicks is a solicitor who in late 2008 was working as a locum at the firm of Withy King (formerly Marshall & Galpin). She had also worked, at some stage, as a locum at the firm of Hodsons. She gave evidence both about discovering, in November 2008, the contents of Mrs Smith's 2008 will and about the advice given to Mrs Smith in November 2009 about the proposed lasting power of attorney ("LPA") As regards the former, she was plainly embarrassed about finding out about the will. As regards the latter, I did not find her evidence to be fully consistent, in the detail, with the evidence given by others. I did have a concern that, given that at that point she knew about the contents of Mrs Smith's will, which she had not disclosed to her husband, whether she was sensitive about having been involved in the events leading to advice being given to Mrs Smith about the LPA. However the Solicitors Regulation Authority ("SRA") concluded that she had not acted in any way unprofessionally in this regard. In any event, I do not consider that, ultimately, the details of her involvement are central to the issues which I have to resolve, namely Mrs Smith's mental capacity and whether the Defendant exercised undue influence.
80. Barry Kicks was an impressive witness. He gave his evidence in a clear and forthright manner and he had definite views. He gave the impression of being a man with a dominant personality. At times his answers to questions were long, and sometimes unnecessarily so and his evidence was also at times inconsistent or inaccurate in some of the detail. However he was also quite prepared to accept when he was wrong in his recollection, for example about particular dates when events happened. He had had considerable affection for Mrs Smith, his mother-in-law and was genuinely distressed by his recollection of events and by the fact that he had not seen her in the last two years of his life. He also had genuine affection for the Defendant. I accept his evidence that he had wanted the best for Mrs Smith. I do not accept that he was bullying in his manner towards her. I accept his evidence as reliable.
81. Dr Huckstep was Mrs Smith's GP at the relevant times and was much involved in her health issues. He was consulted just before she moved to Maidstone. He was an independent witness and gave his evidence clearly. His independence was illustrated by the fact that he understood the concerns of the Defendant, as well as those of Mrs Smith. In parts his evidence tended to overstate matters; for example, in cross-examination he gave the impression that the mental capacity test he carried out on 24 December 2009 was more comprehensive that he had indicated in his notes and witness statement too. Nevertheless in general I accept his evidence as reliable.
82. Ms Susannah Treherne is a solicitor from the firm of Hodsons, who was involved in events concerning Mrs Smith granting an LPA. She was an independent witness who gave clear and careful evidence. I accept her evidence as truthful and reliable. I accept she had no involvement with the family and do not accept the suggestion that she was "in the pocket of" Barbara or Barry Kicks.
83. Edward Fidler was a neighbour of Mrs Smith's in Wolverston. I accept his evidence describing seeing Mrs Smith leaving the Property on 27 December. He also gave evidence about seeing the locks being changed on the Property on or around 27 or 28 December. His recollection about that aspect was not very clear and in my judgment, whilst doing his best to assist the court, that evidence did not take matters much further.

Mr Desmond Leigh

84. Finally, as regards Mr Desmond Leigh, he did not give evidence. He did however question the oral witnesses, sometimes at some length and he also made submissions to the Court. One of the issues in the case is the role played by Mr Leigh in the relevant events, and in particular his relationship with the Defendant and with Mrs Smith directly - the Claimants' case being that Mr Leigh conducted himself in an overbearing and bullying manner. The Oxford family strongly dislike Mr Leigh. Further, in this regard, I accept Ms McDonnell's submission, that, in this connection, it is appropriate for me to take account of Mr Leigh's demeanour in court and the manner in which he conducted himself towards witnesses and indeed to the Court. Whilst Mr Leigh at times did his best to assist the Court and to restrain himself, at other times he was combative, to the point of being threatening towards witnesses and in particular in the course of his questioning of Barry Kicks. Furthermore, I note the references in two contemporaneous documents before the Court to the views of others, independent of the family, who had experienced his aggression: the call sheet (paragraph 123 below) and the record of the conversation between Mr Leigh and Ms Latimer (paragraph 136 below).

Care home bills and the evidence of Ms Schroedel

85. At a late stage in the trial, the Defendant, through Mr Leigh, sought to introduce new medical evidence and, he said, evidence to show that Defendant had paid the bills of the Maidstone Care Centre and that he wished to put these documents to Ms Schroedel of Henmans who should be called as a witness for that purpose. The background to this is that on 21 March 2014 Henmans filed and served a witness statement from Ms Schroedel, exhibiting, a copy of the Care Centre's files on Mrs Smith, pointing out that they were sending this to the Defendant to ensure that she was aware of the available evidence. In that witness statement, Ms Schroedel said she understood that Oxfordshire County Council assumed the entire costs of funding Mrs Smith's stay at the home. Then on 15 May 2014 a further witness statement from Ms Schroedel, exhibiting the conveyancing file from Withy King was filed and served. In the covering letter to the Defendant, Henmans pointed out that this was a further witness statement from Ms Schroedel and that Mr Schroedel could be called to give evidence if the Defendant so wished. Thus two letters were sent to the Defendant indicating the existence and content of the first statement.
86. As regards the application to introduce new documents, including documents relating to the bills from the Care Centre, I determined that this could not be allowed, consistent with my ruling at the outset that the Defendant was not to be permitted to advance a positive case nor adduce evidence or rely on documents at the trial. Such documents could and should have been disclosed and deployed much earlier, regardless of the position relating to the evidence of Ms Schroedel.
87. I also declined the suggestion that Ms Schroedel should be called to be cross examined. Mr Leigh told the Court neither that he nor the Defendant had in fact received the first witness statement from Miss Schroedel nor the letters enclosing that statement or the further statement. Although there is no direct evidence to show that these letters were received, based on Henmans' course of conduct over the previous several months, I am not prepared to find that the two letters were not in fact sent. Furthermore it is hard to understand why, given that clearly, other correspondence sent by Henmans to the Defendant at the same address was received, both of these letters with enclosures were not delivered to the Defendant's address. In any event and more significantly, I concluded that no purpose would have been served by requiring Ms Schroedel to attend for cross examination at that late stage in the trial, since, as pointed out in the letter of 15 May 2014 and made clear in her statement, she had no first hand knowledge of matters generally nor in particular relating to the payment of the care home bills, and her statements were made purely to explain the origin of the files which had been obtained from the Care Centre and from Withy King. I deal below, at paragraphs 219, 220 and 223, with the significance, if any, of who it was who paid the Care Centre bills.

(F) The Facts in more detail (with findings of fact)

(1) Chronology of events

88. Mrs Smith had lived at the Property since about 1960. Her husband, Roy, died on 3 January 1999.

Mrs Smith's 2003 will

89. Mrs Smith's will, prior to 2003, left her estate equally between her two daughters. On 16 October 2003, Mrs Smith made a new will. Under the terms of the 2003 will, 80% of Norma's share was passed directly to her two children, the Claimants. As to the Defendant's half, half of that was to be left to the Defendant and the other half directly to her two children. The executors under this will were Roger Coppock, the Defendant and Norma.
90. Barry Kicks in his witness statement explained that the change in relation to Norma's share had been made at Norma's request. In cross examination, Barry Kicks said that at the time his wife was ill. They had asked Mrs Smith if she would change her will for inheritance tax reasons, so as to by-pass Norma. The inheritance tax concern was related to his and his wife's own estate. He had told the Defendant about this and asked her if she wanted to do something similar with her half share. The Defendant replied that she wanted to keep the largest part of her 50%. He and his wife had accompanied Mrs Smith to Marshall & Galpin and Mrs Smith gave instructions about changes to Norma's share. He said that he now thought that, at the time, Mr Leigh thought that it was unfair for Norma's children to get half the estate under the 2003 will. But this was only his assumption.
91. Norma Kicks died in January 2004.

Mrs Smith's last will: 22 February 2008

92. Barry Kicks said, in his evidence, that it was around New Year 2008 that Mrs Smith told him that Mr Leigh had started to take an interest in her finances. In February 2008 Mrs Smith changed her will again.
93. By her last will dated and executed on 22 February 2008, Mrs Smith appointed the Defendant as her sole executrix and trustee. Under that will Mrs Smith gave her entire net estate to the Defendant to hold on the following trusts, namely 50% for the Defendant and 50% equally between Mrs. Smith's four grandchildren. Thus the Claimants are each entitled to 12.5% of Mrs. Smith's net estate. In this way, the new will was more favourable to the Defendant and her family, reducing the Claimants' share from 50% to 25%.
94. This will was drawn up by Marshall & Galpin. The Defendant and Mr Leigh were present when Mrs Smith came to give the instructions on 15 February 2008, although they were not present when the solicitor explained the terms of the new will to Mrs Smith nor when she signed the will. It appears that at the time neither the Claimants nor any other member of the Oxford family knew about the 2008 will. A copy of the will as executed has not been produced to the Court. What has been produced is a draft engrossed will.

November 2008: Barbara Kicks finds out about the change of will

95. In November 2008 Barbara Kicks found out about the contents of the 2008 will. In her witness statement she explained that at that time she was working as a locum at Withy King (who had just taken over Marshall & Galpin) and in that capacity she was dealing with outstanding files relating to wills, including chasing up outstanding bills. One such file was that for Mrs Smith's 2008 will. In the course of looking at that file, she found out that Mrs Smith had changed her will. It was only when she rang the number on the file cover and Mrs Smith answered that she realised that the file related to Mrs Smith. Mrs Smith told her that she was extremely embarrassed that she, Barbara Kicks, was aware of the change of will and that the Defendant and Mr Leigh "had made her do it" and had taken her to Marshall & Galpin to ensure she made the changes they wanted. She had assured Mrs Smith that she could not, and would not, discuss the will with Barry Kicks due to reasons of client confidentiality. She stated that in fact she did not discuss the will change with Barry, although she felt very uncomfortable about it. In cross-examination, she said that Mrs Smith told her that Mr Leigh was paying the bill for the preparation of the will and that she thus wrote on 12 November 2008 to Mr and Mrs Leigh seeking payment. She reiterated that she had been unhappy about having found out about the will and wished she had not had that information. She accepted that Mrs Smith was embarrassed and distressed that she, Barbara Kicks, had found out about will.

Barry Kicks finding out about the 2008 will

96. In her witness statement, Barbara Kicks stated "Barry did find out about the Will change from Joyce herself just before she was taken to Maidstone as he told me she had blurted out to him how it came to be that she changed the will".
97. Barry Kicks in his witness statement, said that he had found out about the 2008 will on one of his visits to Mrs Smith in early December 2009. She told him that the Defendant and Mr Leigh had marched her down to Marshall & Galpin. In cross-examination, he said that Mrs Smith was persuaded to change the Defendant's share and add significantly to the Defendant's children's share. He did not know about the changes to the will in late November 2008, but he now believes that at the time Mr Leigh had thought that he did know, and he believed, for this reason, Mr Leigh was worried that he, Barry Kicks, would try to change it back again. He said he found out about the changes to the will from Mrs Smith herself in late November 2009 after the LPA issue arose. Then he had found out more about the will from Barbara in early 2010 when the complaint from the SRA came in. (Barbara Kicks was notified of the complaint by letter from the SRA dated 3 February 2010). At that point Barbara told him that she had known about the will change earlier.
98. This evidence as to when and how Barry Kicks found out about the 2008 will is not entirely clear or consistent. Barry Kicks seemed to suggest that although he heard something about a will change in later November or early December 2009, he did not find out or ask any more about it until early 2010 when SRA complaint came in. I find it difficult to understand why he would not have sought to find out the contents of the change as soon as he found out in late November/early December.

November 2008: Mrs Smith falls and is hospitalised

99. Returning to the narrative, in November 2008, the Defendant and Mr Leigh were away on a cruise. On about 12 or 13 November 2008, Barry Kicks took Mrs Smith on her weekly shopping trip. As she was getting into his car, Mrs Smith had a fall, breaking her wrist and cracking her pelvis. This led to Mrs Smith being hospitalised for some considerable time - in the John Radcliffe hospital for initial treatment and thereafter at the Witney Community hospital until May 2009.

Stay at Witney Community hospital

100. Mr Coppock visited his sister, Mrs Smith whilst she was in Witney. In his witness statement, he said that it was at that time that he first became aware that the Defendant and Mr Leigh wanted her to go to Maidstone. He said that "Joyce asked me to promise that I would never let her end up in Kent as she wanted to stay in her own home - she had lived there since about 1960" He repeated this in cross examination, saying that Mrs Smith had said that she wanted to die in her own house. Mr Coppock was very upset at the thought that he had not kept this promise. Paul Kicks in his witness statement said that he kept in regular contact with his grandmother up to the winter of 2009 and called on her regularly when she was in Witney Community hospital and also when she was allowed home in mid 2009.

Mrs Smith's finances

101. As regards who looked after Mrs Smith's finances, Mr Kicks said that, after Roy Smith died, he went to see Mrs Smith every week and took her to the post office where she paid her bills. He had no involvement in her finances until Norma died. After 2004, he would go to see Mrs Smith every week - even though he lived then in Coventry and he took her to the post office to pay the bills. The first time he had anything to do with her finances was immediately after her fall in November 2008. It was whilst Mrs Smith was in Witney Hospital that she gave Barry Kicks her purse and payment cards. At that point, he went and paid the bills himself. In his witness statement, Barry Kicks said that he never controlled Mrs Smith's finances. She had asked him not to give the purse and payment cards to the Defendant and Mr Leigh. She didn't want Mr Leigh to have anything to do with her money. However Mrs Smith was not prepared to tell the Defendant herself that she wanted him, Mr Kicks, to carry on paying the bills.
102. In cross examination, he could not recall exactly when he gave the purse back, but he had handed it over to the Defendant. His recollection was that he paid for things for the majority of the time she was at Witney. When it was put to him that in fact the Defendant had been paying Mrs Smith's bills in December 2008, he said that if that was indeed the case, then he would have to accept it. He was clear that Mrs Smith did not want the Defendant and Mr Leigh to have the purse, but she was not willing to say that directly to the Defendant, so he, Barry Kicks, had handed it over.

May 2009: Mrs Smith goes home

103. In May 2009, Mrs Smith was discharged from Witney and went home. Mr Kicks in his witness statement said that the family were pleased she was back home, except for the Defendant and Mr Leigh, who pressured her to go and live with them in Maidstone. Mrs Smith was adamant that she did not want to and told everyone that she wanted to die in her own home; and if she had to go into a care home, it would be in Oxford. In cross-examination, Mr Kicks said that whilst she was at Witney, Mrs Smith said to him that Mr Leigh kept on saying to her that the best place for her would be in Maidstone. It was the number one topic of conversation at every meeting with Mrs Smith and became even more of a topic when she came home. Mr Kicks understood Mrs Smith wanting the Defendant to look after her, but he did not believe that she wanted to go to Maidstone even temporarily. There was a sustained attempt to persuade Mrs Smith that she couldn't manage on her own and to come to live in Maidstone. He believed that she would have been better in a home in Oxford, if needed, as the Defendant and Mr Leigh were regular visitors to Oxford in any event. On this evidence, I find that, by this time at the latest, the Defendant and Mrs Leigh were keen to persuade Mrs Smith to move to Maidstone with them.

July and November 2009: Medical and other evidence as to Mrs Smith's mental capacity

104. On 30 July 2009, Mrs Smith attended an outpatient clinic at the John Radcliffe hospital with the Defendant, who reported that her main concern was her mother's worsening memory and on the same day Mrs Smith was noted to have poor vision. She had been diagnosed in 2004 as having senile macular degeneration.
105. On 5 November 2009, Mrs Smith attended the Memory Clinic at the John Radcliffe Hospital in Oxford on her own. In a report to Dr Huckstep, the registrar, Dr Misra set out Mrs Smith's then current living arrangements, including recording that she did not deal with her own finances as the Defendant and her husband managed all her bills and did the shopping for her every two weeks. The report continued:

"On this clinic visit she had an MMSE of 23/29 and her HVLT was 9/36. ... She has had a CT scan of her brain which reveals generalised involutional change, small vessel disease and probably lacunar infarcts in the basal ganglia internal and external capsule.

I have discussed this lady with Professor Wilcock. We suspect that she has vascular cognitive impairment"

(emphasis added)

106. In his witness statement, Dr Huckstep explained that the MMSE is

"one of the simple tests for dementia used widely by clinicians. It tests orientation in time, orientation in place, repeating named prompts, calculating serial sevens i.e. listing the seven times table as in 7, 14, 21, 28, 35, 42 etc, recalling certain words, recognising a pencil and a watch, speaking back an entire phrase, and obeying complex commands such as drawing interlocking pentagons. Any score greater than or equal to 27 indicates a normal cognition. A score of 19 to 24 points indicates mild cognitive impairment. A score of less than nine points would have indicated severe impairment a score of 10 to 18 points would have indicated moderate cognitive impairment. It should be noted that in Mrs Smith's case she was evaluated to have only mild cognitive impairment and her score of 23 points was at the upper end of the range for mild cognitive impairment i.e. from this test her impairment could be classified as very mild"

In cross-examination, he said that the MMSE test is a quite taxing test.

107. As to the HVLT test, in his witness statement, Dr Huckstep said that "this test of learning and memory was developed specifically to detect dementia. From my reading on the Internet about this test, it appears that a score of nine signifies a significant level of dementia". In cross examination, he accepted that this is a test which he did not fully understand and on which he was not an expert. He said that, from his own research on the internet, he understood it to be a more specific test directed towards short term memory, based on seeking to memorise a number of words or objects over a short space of time (as opposed to comprehension). In his witness statement, Dr Huckstep read Dr Mistra's letter of 5 November 2009 as stating that Mrs Smith did suffer from a degree of dementia. He continued "However my understanding when I saw her approximately six weeks later on 24 December 2009 was that she had capacity to understand the issues that she was faced with."

The Lasting Power of Attorney

108. In the meantime, on 15 October 2009, Withy King had sent the original of the 2008 will to Mrs Smith, but to the Defendant's home address in Kent.
109. About a week before the visit to the memory clinic, on 28 October 2009, Mrs Smith executed an LPA appointing the Defendant as her sole attorney. The Claimants were identified as persons to be notified. As a result, at around that time the Claimants received notice that the Defendant wished to register that sole LPA. They objected.
110. There was a good deal of evidence from the Claimants and from Barry and Barbara Kicks as to the sequence of events between the Claimants receiving notification of the sole LPA and Ms Treherne visiting Mrs Smith on 26 November 2009 to advise her about it. Some of the detail of that evidence was inconsistent. However, I find the following to be clear. On receiving the notice, each of the Claimants spoke to their father and Barbara Kicks. Barbara Kicks visited Mrs Smith and explained to her about the nature and effect of the sole LPA. Thereafter, Ms Treherne was instructed to visit and advise Mrs Smith. It was Mr Kicks (and not his wife) who instructed Ms Treherne, having been introduced to her previously, at a time when Barbara Kicks was working at Hodsons as a locum.
111. As regards particular aspects of witness evidence on these events, Lisa Martin said she was unhappy at the thought of the Defendant having sole LPA as she believed that she and Desmond would sell her house at the first opportunity. Her grandmother was always telling her that Desmond could not wait to get his hands on her money. Paul Kicks' evidence was that at that time, the Defendant refused to speak to him on the phone about this. In cross examination, he said his objection to the sole LPA was that he thought that it would be Mr Leigh who would have control and be pulling the strings. Barry Kicks, in his witness statement said that, before Barbara Kicks had visited, he had seen Mrs Smith and told her that he thought the sole LPA was to enable the Defendant to move Mrs Smith to Maidstone and sell her house. Mrs Smith also mentioned at the same time that the Defendant was trying to get her to go to Maidstone for Christmas. Barbara Kicks, in her witness statement, said that Lisa and Paul were concerned because they thought that it would be Desmond Leigh who would be actually managing Mrs Smith's financial affairs and also Desmond Leigh had been badgering Mrs Smith to leave the house and go and live in Kent. They believed that Mr Leigh would ensure that she moved to Maidstone so that the house could be sold. When she went to see Mrs Smith, the latter had said she would like Paul Kicks to be a joint attorney and that she did not trust Mr Leigh as he was always getting on to her about selling the house. In cross examination, she said she had suggested the idea of there being a joint attorney.
112. In summary, the evidence as to how Ms Treherne came to be asked to visit Mrs Smith, and the involvement of Barry Kicks and of Barbara Kicks in those events was not entirely consistent. This may well be due to the effect of passage of time upon detailed recollection. I also do not rule out that it may also have been due to a concern that Barbara and Barry Kicks should not be seen to have been too closely involved in seeking to advise Mrs Smith in relation to the LPA. In either event, I do not consider that it is necessary, in order to resolve the issues before me, to make more detailed findings on the precise sequence of events. Even if Barbara Kicks was involved indirectly in the instruction of Ms Treherne, as I explain below I am satisfied that Ms Treherne's contact with, and advice to, Mrs Smith was clear and independent. As to Barbara Kicks' role in these events, the SRA was satisfied that she had not acted in any way improperly.

26 November 2009: Ms Treherne visits Mrs Smith about the LPA

113. On 26 November 2009, Susannah Treherne attended Mrs Smith at her home in order to establish her wishes in relation to the LPA.
114. According to her witness statement and in cross-examination, she was clear that she had been approached by Barry Kicks on behalf of his son, the First Claimant, to give Mrs Smith some independent advice on preparing an LPA. She was a full time employee at Hodsons. Barbara Kicks worked as a locum, one or two days a week.
115. At various points in cross examination, Mr Leigh suggested that Barbara Kicks also attended at that meeting. This was denied by Ms Treherne and also by Mrs Kicks. I accept their evidence. The SRA in its letter of 15 April 2010 also concluded that Ms Treherne had seen Mrs Smith on her own. Ms Treherne's evidence was that Barry Kicks took Ms Treherne to that meeting, but was not in the room when Ms Treherne spoke to Mrs Smith. Ms Treherne made an attendance note of her discussion with Mrs Smith that day, which she verified in her evidence. The note recorded as follows.
116. Mrs Smith told Ms Treherne that she wished to carry on living in the Property, that if she went into a care home, she did not wish to move away from the Oxford area, and that she did not wish the Defendant to be her sole attorney. She had explained to Mrs Smith that sole attorney could extend to selling her property without further reference to her. "She told me that she did not want this and also mentioned that she did not want any further "influence" from that side of the family", referring to the Defendant, but rather wanted the Defendant and the First Claimant, Paul Kicks to be joint attorneys.
117. Ms Treherne recorded that she "had no concerns regarding her mental capacity and whilst she did demonstrate difficulty seeing paperwork close up, she showed a full appreciation and understanding throughout our meeting and we discussed her questions concerning the forms and the process and I read the content of the forms to her during the meeting". In cross-examination, she confirmed that this was an accurate record.
118. Mrs Smith then signed a written notice to cancel registration of the existing LPA and executed a new LPA appointing the First Claimant and the Defendant to be joint attorneys. The attendance note concluded by recording that Mrs Smith "was very concerned as to Georgina's reaction to this and did not wish to be the person to tell her about this." Hodsons then sent to the Office of Public Guardian her objection to the registration of the LPA appointing the Defendant as sole attorney.
119. Despite this, two days later on 28 November 2009, a manuscript document was produced in the Defendant's handwriting but signed by Mrs Smith and witnessed by Mr and Mrs Fidler. The document was addressed "to whom it may concern" and stated that she, Mrs Smith, wished the Defendant to be her sole power of attorney and continued "I fully trust her and understand that if my health deteriorated to the extent that I needed 24-hour care, my daughter could sell my house for the use of using the proceeds to pay for my care". An oddity about this letter is that it appears that as at 28 November 2009, the Defendant was still away on holiday. Mr Kicks in cross examination said he believed that this document had been prepared by Mr and Mrs Leigh after they had come back from holiday and after they had seen the objection to the sole LPA and was done so as to counteract anything that they believed Mr Kicks had done in the meantime in relation to a new will or a new LPA.
120. Then, on 29 November 2009, the Defendant wrote to Barry Kicks saying that she was disgusted with his and his wife's behaviour in the previous week and stating that he and his wife were not to go near Mrs Smith in the future and that he should return the key to the Property which he was holding.
121. On 8 December 2009, Ms Treherne wrote to the Defendant, recording that Mrs Smith had recently instructed her to prepare a new LPA appointing joint attorneys and enclosing relevant documentation for the Defendant to sign, but Ms Treherne did not recall receiving a response.

Complaint to the SRA

122. By letter also dated 29 November 2009 Mrs Leigh submitted a complaint to the SRA about Barbara Kicks' conduct in allegedly intimidating Mrs Smith about signing the LPA. Further, at some time at the end of December 2009, Mr Leigh complained to the SRA about this conduct and also complained about Ms Treherne's conduct in relation to the LPA. In March 2010, Mr Leigh raised a further complaint - about Mrs Kicks informing Barry Kicks about the 2008 will. Subsequently, by letter dated 15 April 2010, the SRA concluded that there was no evidence of professional misconduct by either person.

Events around Christmas 2009

123. On around 19 or 20 December 2009, the Defendant and Mr Leigh came, from Kent, to stay with Mrs Smith in Oxford for Christmas. On 20 December 2009, Mrs Smith was not well. The NHS and ambulance service records suggest that her daughter had reported Mrs Smith as having vomited and had diarrhoea since 6am. The call sheet records that NHS service spoke first to son in law who "seemed angry, uses foul language and seemed panicky" and was then passed on to her daughter. An ambulance was then called out. Later that day Mrs Smith was again reported as not being well, not eating and incoherent. A Dr Aylward made a home visit in the evening and identified probable gastroenteritis.
124. On 22 December 2009, Mr Leigh telephoned Ms Treherne. Ms Treherne's contemporaneous attendance note records that he said he was calling on behalf of his wife, in response to the letter from Ms Treherne, and that the Defendant would not be signing the new LPA appointing the First Claimant and the Defendant as joint attorneys. Mr Leigh also questioned Ms Treherne on the family connection between Barbara Kicks who worked for Hodsons and Mrs Smith.

Dr Huckstep's visit on 24 December 2009

125. On 24 December 2009, Dr Huckstep visited Mrs Smith at her home at 8pm. The Defendant and Mr Leigh were also present. In his notes of the visit, which he typed up on 31 December 2009 and which he verified in his witness statement, Dr Huckstep recorded that he had in the past expressed concerns to the Defendant as to Mrs. Smith's vulnerability and forgetfulness, and that Mrs Smith had said that she did not want to be put in a home, but felt happy in her own home at the Property and wanted to stay there.
126. Dr Huckstep carried out a brief mental capacity test of his own, which comprised asking Mrs Smith various questions such as the name of the prime minister, the date year and month. Dr Huckstep formed the opinion during his visit that Mrs Smith had capacity to make decisions about her own welfare. The Defendant had said she would not go back to Maidstone without her mother and Dr Huckstep then spoke to the Defendant and advised her that it would be wrong for her, the Defendant, to overrule her mother's right of free choice.
127. That this took place is confirmed by the subsequent account contained in a letter dated 22 February 2010 from Oxford Social Services to Mr Leigh (see paragraph 136 below) recording that Dr Huckstep had reported that conversation in practically the same terms to Jenny Latimer of Oxford Social Services. I accept Mr Huckstep's account of what happened on his visit as accurate.
128. In his witness statement, Dr Huckstep's evidence was that at that visit Mrs Smith expressed clearly her wish that she did not want to move away from the Oxford area and not to move to Kent, where the Defendant lived. He said that he recalled feeling that the Defendant was being rather pushy about this. As a result of his brief mental state examination - which he regarded as pretty similar to the MMSE - he considered that Mrs Smith was clearly orientated in time and space. In cross-examination, Dr Huckstep said that he knew Mrs Smith well and that his opinion was that she did understand the question about whether she wanted to move. He, Dr Huckstep, also understood that the Defendant was genuinely worried about her mother and was very unhappy about the prospect of leaving her mother in her home in Oxford. Mrs Smith also understood her daughter's concerns and that they were appropriate. His opinion was at that time she had capacity to make the decision about whether she should stay in her own home or move into a nursing home somewhere. He said he had asked her detailed questions and she had passed every one: "She was pretty with it". His view was that at the time, for Mrs Smith, the decision whether to leave her home was a much weightier decision than what she should do with her money and he was clear that she understood that.
129. There is no further evidence, medical or otherwise, of Mrs Smith's mental capacity on any date after 24 December 2009.

Christmas and Boxing Day 2009

130. Barry Kicks, in cross-examination, said that Mrs Smith had refused to go down to Maidstone for Christmas. He had told her that if she went, she wouldn't come back. She decided not to go, based on what he, Joyce Allen and Roger and Pauline told her would happen. It made no sense for her to go to Maidstone as the Defendant's house was completely unsuitable for her and the Defendant and Mr Leigh could come easily to Oxford. Mrs Smith was forthright enough to stick to her guns. She decided she would stay at home for Christmas. On Christmas Day and Boxing Day, there is evidence that a number of members of the Oxford family had called and gone round to Mrs Smith, but no contact had been made. Lisa Martin described how she had gone to see Mrs Smith on Boxing Day, but there was no answer and she had cried all the way back to her father's home.

27 December 2009: Mrs Smith is taken to Kent

131. Then, just after Christmas, and probably on 27 December, Mrs Smith was moved, by the Defendant and her husband, to their home in Maidstone. Other members of Mrs Smith's family were not informed of this move either at the time or afterwards. This is not disputed. Over the next few days, the Oxford family tried to visit and call Mrs Smith at the Property.
132. Roger Coppock in his witness statement said that he had gone to the Property on that day and found that his key no longer fitted the lock and there was no answer. Mrs Smith's neighbour, Mr Fidler, said that the last time he had seen Mrs Smith was she was getting into a people carrier, with no luggage and assumed she was being taken out for dinner. A short time later, he saw Mr Leigh return with another man and change the locks. Whilst, in cross-examination, he could not necessarily see the locks, he remembers seeing Mr Leigh and another man working at the front door. His evidence was that on that evening the Defendant called the Fidlers to say that they had taken her to their home in Maidstone because she was not safe to leave on her own.

27 to 30 December 2009: after Mrs Smith moved

133. A number of witnesses explained that in the next few days, members of the family were repeatedly ringing the Defendant and Mr Leigh at their Maidstone home. Barry Kicks said that between 27 December and New Year, people rang to Maidstone. Mr Leigh chose not to answer the phone to any of the family. He rang every day and Roger and Pauline and Heather and Paul all called: "there must have been 20 calls that week, maybe more". He believed that the phone was not answered because Mrs Smith would have told the family the truth that she did not want to stay there. Mr Coppock also said he phoned and got no answer. It was he who then called the Oxford Police who in turn referred him to social services. Lisa Martin in her witness statement, said she called the Defendant in Maidstone, but Mr Leigh answered and fobbed her off. Mr Leigh became aggressive on the third or fourth call and she stopped calling by mid January.
134. Barry Kicks explained in his witness statement that, at the request of the rest of family, he contacted Oxford Social Services, and, on 29 December, spoke to a member of safeguarding team and then to Linda Green, a supervisor, when he outlined the family's concerns about Mrs Smith being taken to Kent.
135. On 30 December, he was called by Linda Green, who, by then, had spoken to Dr Huckstep and had serious concerns for Mrs Smith's welfare. In cross-examination, Mr Kicks said that Linda Green told him that Dr Huckstep himself had expressed similar concerns and agreed with the version of events given to her by Mr Kicks. Dr Huckstep had told Oxford Social Services that he knew that Mrs Smith wished to stay in her own home. In his statement, Mr Kicks continued that Linda Green told him that there would be a visit from Kent Social Services and that the police were likely to be involved. At this Mr Kicks had said this was a bad idea, as Mrs Smith was nervous and the Defendant was in poor health. Linda Green assured him that if police were involved, they would be non-uniformed welfare officers. However in cross-examination his evidence was that he assumed that this would be the case rather than this was what Linda Green told him. He said he did not know until later that in fact it had been "2 burly gentlemen in flack jackets and helmets" who had visited the Defendant's home. But he was adamant that he had not set the police on to the Leighs and that all he had done was to ring social services. He denied that he had told the police that Mr Leigh was extremely dangerous "Controlling, yes, but not dangerous".
136. This account of events is corroborated by the account in the letter dated 22 February 2010 from Oxfordshire County Council Social and Community Services to Mr Leigh. In that letter, Oxfordshire Social Services rejected a complaint made by Mr Leigh about the conduct of Jenny Latimer and Linda Green of that department. The letter recorded that on around 30 December 2009, Barry Kicks contacted Oxfordshire Social Services to express his concerns that Mrs Smith had been taken to live in Kent against her will. According to the narrative account there, Jenny Latimer of Oxfordshire Social Services, concerned about what she had been told, telephoned Mrs Smith at the Defendant's home in Kent. Mrs Smith said that she had gone to live with the Defendant because the Defendant "was going to look after her". Ms Latimer was concerned that she could hear the Defendant and Mr Leigh talking in the background and was concerned that she could not speak freely to Mrs Smith. Mr Leigh then spoke to Ms Latimer directly on the phone, in a threatening manner, raising his voice and saying that she was doing "Mr Kicks' dirty work". In order to obtain an objective perspective, Linda Green and Jenny Latimer decided that the latter should contact Dr Huckstep, which she did. Dr Huckstep repeated his opinion that Mrs Smith had not wanted to move to Kent and that he had advised the Defendant that if Mrs Smith did not want to go to Kent then she could not be made to. He too was concerned that Mrs Smith had been taken against her will. As a result, because of these concerns, Oxford Social Services contacted Kent Social Services to request they carry out a welfare visit to the Defendant's home.

New Years' Eve 2009: The police go to Defendant's home in Kent

137. On New Year's Eve, a social worker from Kent Social Services, accompanied by two police officers, called at the Defendant's home in Kent. The Defendant and Mr Leigh considered this to be a gross, unnecessary and heavy handed intrusion into their home. Thereafter, it is clear that Barry Kicks was blamed for causing this event. Mr Kicks in his witness statement, said that the police visited and were in full riot gear. Mrs Smith told them that she was quite happy. In cross examination, he said that she had said that because she was frightened that the Defendant and Mr Leigh would be put in prison, if she had not said it. He accepted that social services in Kent did try to help the Defendant and that they might have been happy with her staying there as a temporary measure. Joyce Allen also said that she believed that the only reason why Mrs Smith had told social services that she was happy to stay there in Maidstone was that she was afraid that otherwise the police would have put the Defendant in prison.

January 2010

138. Mr Coppock said in his witness statement, that in early January, Mr Leigh had rung and threatened both himself and Barry Kicks following the visit on New Years' Eve. Lisa Martin, in cross-examination, was adamant that she spoke to Mr Leigh several times on the phone at the start of January 2010 when they were all worried that Mrs Smith had been taken against her wishes. Joyce Allen said that she also telephoned in January 2010 and was given various excuses by the Defendant as to why she could not speak to Mrs Smith.
139. A few days after the police called, and before she was moved into the Maidstone Care Centre, on 4 January 2010 Mrs Smith signed a manuscript letter to the Office of the Public Guardian, which appears to have been written by the Defendant, stating that she did not object to her original LPA appointing the Defendant as sole attorney. The letter continued "I did not lodge an objection to my daughter being my sole power of attorney. This was arranged without my knowledge by Barbara [Kicks] and Susanne Treherne both of Hodsons.... " Barry Kicks' evidence in his witness statement was that this document was written by the Defendant. On the same date, Mrs Smith wrote a letter - this time clearly and, by contrast, in her own handwriting - saying that she had not knowingly made a new will since 22 February 2008 and that she was worried because Mr and Mrs Kicks had got her to sign papers and forms. Both these documents were witnessed by Dr Winder.
140. I have accepted Ms Treherne's evidence, as recorded in her attendance note, that Mrs Smith had given her instructions at the meeting on 26 November that she wished to cancel the original sole LPA. Accordingly, the statement in the manuscript letter to the Office of the Public Guardian that Mrs Smith had no knowledge of the objection to the sole LPA was plainly untrue.
141. As regards the second letter, about the will, Mr Kicks' evidence was that this had been motivated by a concern on the part of Mr and Mrs Leigh that he, Mr Kicks, would seek to change Mrs Smith's 2008 will, which was in turn based on the belief that he, Mr Kicks, knew, at that time, about the 2008 will.

By 13 January 2010: Mrs Smith moves into the Maidstone Care Centre

142. On or before 13 January 2010, the Defendant and her husband arranged for Mrs Smith to be placed in a care home in Maidstone, the Maidstone Care Centre at 259 Boxley Road, Maidstone, Kent. This was contrary to the wishes expressed, to Dr Huckstep less than three weeks earlier, that she did not wish to go into a home. Thereafter Mrs Smith lived in that care home until her death in December 2011. Evidence relating to the funding by Oxfordshire County Council of the care home costs suggests that, in fact, she moved to the Centre by as early as 6 January 2010.
143. Within a matter of days, the Defendant had given the Care Centre an instruction that none of the Oxford family were to be allowed to visit Mrs Smith. On 14 January 2010, the Defendant herself wrote a manuscript letter to the Maidstone Care Centre in the following terms:

"As there is a legal case going on, the following people are not to visit my mother .... Barry and Barbara Kicks, Paul Kicks and Lisa Martin and Mr and Mrs Coppock".

The letter went on to state that none of these people knew where Mrs Smith was, but if they did turn up, they should let her or Mr Leigh know. It continued that "they have been responsible for getting my mother to sign documents which she did not know what she was putting her signature to". By this time there was a battle between the two sides of the family.

144. If, as appears to be the case, this is a reference to the notice of cancellation signed on 26 November 2009, I note that the allegation made here by the Defendant (that Mrs Smith did sign, but did not know what she was signing) is directly inconsistent with what was written in the manuscript letter of 4 January 2010 (that she had no knowledge at all of the document). This is further evidence that these documents did not truly reflect Mrs Smith's actual belief at the time. Moreover I do not accept the suggestion made by the Defendant and Mr Leigh and in this letter that the Oxford family were making Mrs Smith sign things she had not agreed to. I accept the independent evidence of Ms Treherne that Mrs Smith's conduct in relation to the joint LPA had been taken with the benefit of clear, fair and independent advice.

Instructions not to speak to Barry Kicks

145. After she had moved to the Care Centre, the Care Centre would not let Barry Kicks speak to Mrs Smith and he became aware of this fact. A number of witnesses gave evidence that Mrs Smith explained the reason for this as being that Barry had been "naughty". She had told Mr Munn this too. However when asked to explain what she meant by this, Mrs Smith was unable to elaborate. Lisa Martin had wondered whether Mrs Smith had been told that the police officers attending on New Years' Eve had been down to her father.

Marketing and Sale of the Property

146. On 22 January 2010, the Defendant arranged for Withy King to be instructed as conveyancing solicitors in respect of the sale of the Property and gave her own address as Mrs Smith's address for correspondence, despite the fact that Mrs Smith was, by that time, residing at the Maidstone Care Centre. Thereafter Withy King sent all correspondence to Mrs Smith to that address c/o the Defendant. The individuals at Withy King dealing with the sale were Eula Ramsell and Alma Filer.
147. On 29 January 2010 the original LPA, which had been signed on 28 October 2009, appointing the Defendant as sole attorney was formally registered. On 9 February 2010, Ms Treherne telephoned the Office of the Public Guardian who informed her that the LPA appointing the Defendant as sole attorney had been registered.
148. In the meantime, on 5 February 2010, an agreement for the sale of the Property, subject to contract, had been concluded at a price of £300,000. On 11 February 2010, Mrs Smith signed the disclosable interest questionnaire and the new instruction questionnaire from Withy King and the fittings and contents form. On 16 February 2010 Withy King's terms of business letter was returned to them, signed by Mrs Smith, who also signed the Property Information Form.
149. It appears that Withy King were dealing directly with Mr Leigh in relation to the sale of the Property. First a telephone attendance note made by Eula Ramsell dated 8 March 2010 recorded that she spoke to "Mr Smith" who couldn't find "his mother's passport". The fair inference from this is that Eula was speaking to Mr Leigh, and that he was involved in handling sale matters. Secondly on 25 March 2010, Alma Filer wrote to Mr Leigh referring to a telephone conversation between them and asking him to arrange for Mrs Smith to sign the contract and transfer. Withy King were given Mr Leigh's mobile phone number and email address. It also appears from a comparison of relevant documents that many of the documents signed by Mrs Smith were in fact completed by Mr Leigh in his handwriting.

Exchange of contracts: 9 April 2010

150. On or around 1 April 2010, Mr Leigh sent a manuscript note, signed by him, to Alma Filer, of Withy King enclosing "all forms signed as requested". Amongst the enclosed documents was an authority to exchange contracts completed, and signed by Mrs Smith on 30 March. The other manuscript details on that authority, including in particular the instruction that the sale proceeds were to be paid into Mr and Mrs. Leigh's bank account at HSBC were completed in handwriting which appears to be the same as that in which the enclosing manuscript note is written, signed and sent by Mr Leigh. It is a fair inference, and I so find, that the authority to exchange was indeed completed by Mr Leigh, albeit signed by Mrs Smith.
151. In a telephone attendance note dated 7 April 2010, Alma Filer recorded that Mr Leigh had told her that Mrs Smith would telephone them the next day and that he had said that "she has capacity". As a result, Alma Filer informed the buyer's solicitors that they could not exchange today "as speaking to client tomorrow". On the next day, 8 April 2010, Alma Filer made a phone call and spoke to Mrs Smith. Her telephone attendance noted timed at 1255pm that "Mrs Smith auth'd ex and conf'd funds to be transferred into her daughter & son-in-law's account". This is the only evidence of any conversation between Mrs Smith and Withy King. On 9 April 2010, after leaving messages for Mr Leigh on his home phone and his mobile, Alma Filer spoke to him on the phone at 427pm. Her attendance note recorded "Mr Leigh auth'd ex today with completion set for 7/5/10" (emphasis added). Exchange took place shortly thereafter.

Mrs Allen goes to the Defendant's home in Kent

152. On 22 April 2010, Mrs Allen and her son travelled to the Defendant's home in Kent. In her witness statement, she explained that Mr Leigh was there and came to the door, saying that the Defendant and Mrs Smith were out. She found this strange. By the time she returned later that day, Mrs Smith was there sitting next to her daughter. But, there were no signs whatsoever of Mrs Smith living at the Defendant's home. She considered it to be obvious that she was not living there. Mrs Smith seemed very wary and careful about what she said and almost let it slip that she was not living there. In cross-examination, Mrs Allen said that when she visited them in Kent in April, she had no idea where Mrs Smith was. When she got back to Oxford, she rang round and told Roger Coppock that Mrs Smith was not living with the Defendant and Mr Leigh. No-one knew where she was living.

23 April 2010: Completion of the sale and the transfer of the proceeds

153. In fact completion of the sale of the Property took place on 23 April 2010. The net proceeds of sale, of £292,899.92 were, on that date, paid into an HSBC bank account in the joint names of the Defendant and Mr Leigh. The formal transfer document, the TR1 form, dated 23 April 2010 was signed by Mrs Smith and witnessed by a Dr. Mary Winder, a neighbour of the Defendant and Mr Leigh. Subsequently, in letters in 2012 and 2013, the Defendant has asserted that this transfer of the Proceeds represented a gift to herself by her mother.

7 May 2010: letter from Kent Social Services

154. On 7 May 2010 the Oxford family found out, for the first time, from Kent Social Services, that Mrs Smith was living at the Maidstone Care Centre. This was conveyed in a letter from Richard Munn to Mr Coppock, which reported that Mrs Smith was well and "has expressed a preference to remain in Maidstone".
155. On 22 May 2010, a note, again apparently in the Defendant's handwriting, but signed by Mrs Smith in an increasingly shaky signature, instructed the care home staff that no telephone calls were to be put through to herself. Mr Coppock, in his evidence, explained that after finding that out, his calls to speak to Mrs Smith at the Centre were blocked and they were told that they could not speak to Mrs Smith without the Defendant's permission. Mrs Allen said that, after she found out that Mrs Smith was living in the care home, she called her, but it was obvious that her calls were being monitored. She added that, in her conversations, Mrs Smith told her that she was lonely in the home.

Personal correspondence

156. Between March and early May a series of manuscript personal letters were exchanged between Roger Coppock and Barry Kicks and Heather on the one hand and the Defendant on the other. The contents of these letters are highly emotionally charged, and involved the trading of insults. They do not shed much light and only served to exacerbate the ill-feeling. They are a reflection of the depth of feeling between the two camps over the treatment of Mrs Smith and evidence a complete breakdown in relations between the two sides of Mrs Smith's family. They do not assist in the resolution of the issues which I have to decide. I say nothing further about these letters, save to say that I reject the suggestion, made at the time and subsequently, that in his letter to the Defendant, Mr Kicks made what the Defendant termed as a "death threat" to her. Whilst no doubt the Defendant was upset by Mr Kicks' letter, this serious allegation was unfounded.

29 July 2010: Lisa Martin visits the Maidstone Care Centre

157. On 29 July 2010, Lisa Martin and her two children visited Mrs Smith at the Maidstone Care Centre. The Care Centre contemporaneous notes record that the Defendant was informed of the visit and she instructed the care home staff that she did not want Lisa Martin and her children to come near Mrs Smith. Despite this, Lisa Martin and her children did see Mrs Smith on that occasion. The Care Centre notes record that, despite the Defendant's instruction that "she didn't want them near to Joyce", they could not tell Lisa Martin anything "because Joyce is very happy to see them".
158. Lisa Martin in her witness statement explained that they went to visit Mrs Smith in the home on the way to a holiday in France. She was told that the Defendant was not allowing her to see Mrs Smith. She, Lisa, became very very upset and, when she became distressed, she was told by the staff to come back at 8pm, when Mr and Mrs Leigh wouldn't be there; the staff gave her the code to get in.
159. Then on the way back from France, in August, she had tried to go back to see her, but was told she was not available so she phoned Mrs Smith when she got back to Derby and spoke to her on the phone. However speaking to her on the phone was difficult, because she always thought she was being listened to. She, Lisa, had been made to feel uncomfortable by the care home.

24 August 2010: Mr and Mrs Coppock and Joyce Allen visit

160. On 24 August 2010, Mr and Mrs Coppock and Joyce Allen visited Mrs Smith at the Maidstone Care Centre. The Care Centre staff notes record that the Defendant and Mr Leigh were notified so that they could be there when the visitors arrived. The Defendant and Mr Leigh came to the Care Centre in an attempt to prevent Mr and Mrs Coppock, and Joyce Allen from seeing Mrs Smith, although Mrs Smith seemed very happy to see them.
161. Mr Coppock in his witness statement said that when they arrived they were told by the manager that they could not see Mrs Smith. When they returned, they found Mrs Smith there with the Defendant and Mr Leigh sitting on either side of her. Eventually the Leighs left and he spoke to his sister who was resigned to her fate. He became very upset and went back to sit in his car. At that point Mr Leigh approached him and threatened to "punch his lights out". When he went back in, he found Mrs Smith, Pauline and Joyce having a good conversation. He found the visit upsetting. In cross examination, he accepted that when he came back in from the car, Mrs Smith had put her arms out to cuddle him, but that he had not done so. When Mr Leigh suggested that Mr Coppock had pushed her away, he did not directly deny this. Mr Leigh had said "keep your nose out and I'll punch your lights out and that goes for Kicks too".
162. Mrs Allen's evidence as to the sequence of events was broadly the same. When eventually, the Defendant and Mr Leigh retired to cool off, the visitors were then able to speak more freely. The Defendant then came back. At one point in the conversation, Mrs Smith said she didn't know where her money was and, when Mrs Smith asked the Defendant, the Defendant "looked embarrassed and said it was in a safe place with your other money ready for when you want it". As they were leaving, she asked Mrs Smith if she wanted them to visit or phone again and Mrs Smith said that she did and in doing so Mrs Allen made sure that all the staff could hear this.
163. On 11 November 2010, the Defendant gave a written instruction to the care home staff that, whilst she and her husband were away in November and December, no visitors (other than her own sons) were to be left unsupervised with Mrs Smith.

Events in 2011

164. Mr Coppock and Mrs Allen complained to Kent Social Services about being unable to visit and speak to Mrs Smith in the care home. On 5 January 2011, Mrs Smith told Richard Munn that she would like to speak to, and have visits from, all the family other than Barry Kicks. In a letter to Mr Coppock, dated 11 March 2011, Mr Munn reported that Mrs Smith had expressed the desire to stay at Ashley Gardens and that she does not feel that she was taken against her will. Mr Munn also expressed his view that whilst her memory was affected, Mrs Smith still retained the ability to understand the issues around her move to Maidstone Care Centre and concerning contact with her. Mr Coppock agreed that she had said this, but believed that, knowing his sister, it was said under duress.

7 December 2011: Mrs Smith dies

165. Mrs Smith died on 7 December 2011 and was cremated on 23 December 2011. The Defendant did not inform any other member of Mrs Smith's family, and in particular the family in Oxford of these events. When the Oxford family found out a few days later, they were extremely upset and complained to Kent County Council as to the way they had been treated.
166. Lisa Martin, in her witness statement, said she was devastated not to have been allowed to attend her funeral and that her ashes are not buried with her mother and Granddad and her parents. In cross-examination, when it was suggested that Mrs Smith had been clear that she did not want the Oxford family there, Lisa Martin said she was very close to her grandmother and that she did not believe that her grandmother did not want her and her children at her funeral. If she had in fact said that, it was because she was frightened and had been bullied.
167. Mr Coppock, in his witness statement, said that just before Christmas 2011, Barry Kicks called him. He called the home and the manager rang back and said that she had permission from the Defendant to tell him that Mrs Smith had died. In cross-examination, he denied as "absolutely ridiculous the suggestion" that the reason Mrs Smith did not want the Oxford family at her funeral was because he, Mr Coppock, had pushed her away when he had visited in August 2010. Mrs Allen too had not been told about Mrs Smith's death. When she found out, she complained to Kent County Council. Mr Kicks said that he received a christmas card from a cousin of the Defendant informing him that Mrs Smith had died. He immediately informed the rest of the family.

The Claim and correspondence

168. On 14 February 2012, the Defendant wrote a letter "To whom it may concern", in which she asserted, inter alia:

".... during 2010 My Mother gave me her money and requested that should there be any left over after she had been cared for then I should do what I feel is best with it.

This was confirmed by a solicitor at Marshall & Galpin (Withy King Oxford Branch) Before they would transfer over the proceeds of sale of My Mothers Home."

169. The Defendant took no steps towards applying for a grant of probate of Mrs Smith's 2008 will. On 23 March 2012, the Claimants' solicitors, Henmans, wrote a detailed letter of claim to the Defendant, setting out all the circumstances now relied on and concluded by strongly recommending that the Defendant seek independent advice. Thereafter, despite numerous chasing letters which continued to urge the Defendant to seek independent advice and which sought to settle matters, the Defendant steadfastly refused to respond to the allegations or to put forward any account of her own. The Defendant did respond, on 18 April 2012, in a short letter, referring to Mr Kicks' letter and the alleged threat to her life.
170. On 15 September 2012, Withy King confirmed, in response to inquiries from Henmans, that they did not advise Mrs Smith in relation to any gift of the proceeds of sale of the Property that may have been made.
171. On 9 November 2012, Henmans wrote to the Defendant updating her with the results of their further inquiries concerning the case. Recognising that the matter was emotionally charged, Henmans offered to settle the matter on the basis of repayment of proceeds into the estate and Claimants taking their 12.5 % share each. Once again Henmans strongly advised the Defendant to take independent legal advice. They sent two further chasing letters. On 10 December 2012, the Defendant sent a one line response referring back to her brief letter of 18 April. The Defendant was effectively refusing to engage with the Claimants and to respond to the allegations made.
172. On 28 March 2013, Henmans noted the Defendant's failure to respond to their letters and indicated that proceedings would be issued shortly. On 4 April 2013, the Defendant responded, stating that "there is no estate" as the Proceeds had been paid "legally" to her on Mrs Smith's wishes. The Defendant complained that Henmans were harassing her and made reference again to the claimed threat to her life made by Mr Kicks in his letter.

The proceedings

173. Proceedings were issued on 25 April 2013. The Claimants sought an order that probate be granted to the Defendant and/or to Mr Coppock or such other person. The course of the proceedings is summarised in paragraph 8 to 11 above.
174. On 28 August 2013, the Defendant responded to Henmans' letter of 22 August, reiterating, inter alia, that "prior to my Mum giving me her money she signed forms and spoke on the telephone to a solicitor at Withy King".

Appointment of personal representatives and the position about expert medical evidence

175. At the hearing on 3 October 2013 Master Price also ordered that letters of administration in respect of Mrs Smith's will be issued to such person as may be agreed by the parties or in default of agreement to such person as is nominated by the Court, and that, upon the substitute personal representatives being appointed, the Defendant be removed as an executor of the will. He further ordered the Defendant to deliver up to the substituted personal representatives all papers relating to Mrs Smith's estate, including the original of the 2008 will. The Defendant failed to respond to the Claimants' suggestions in relation to the personal representatives, and, by order of Deputy Master Matthews dated 25 October 2013, Mr John Allison of Cripps Harries Hall was nominated by the Court as substitute personal representative and from that date the Defendant was effectively removed as executor. Subsequently, on 16 July 2014, I made a further order, removing Mr Allison as personal representative and granting letters of administration of the will to Cripps Trust Corporation.
176. On 3 October 2013 Master Price had also given the Claimants permission to adduce expert evidence in the field of psychogeriatric medicine. On 5 or 6 March 2014, the Claimants then sought to defer the service of such expert evidence conditional upon the Defendant being allowed substantively to defend the claim, on the basis that unless she was so allowed, such a report might be wasted, since the undue influence claim was likely to succeed in any event. By order dated 24 March 2014, Master Price made an order to that effect.
177. Finally, on 3 October 2013, Master Price also gave permission to the Claimants to proceed with the claim on behalf of Mrs. Smith's estate by way of a derivative claim. Such a claim may be brought in special or exceptional circumstances, in order to restore assets belonging to an estate, where the trustee is unable or unwilling to do so: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th edn) §64-35 and Bayley v SG Associates [2014] EWHC 782 (Ch) at §§47 to 53. Here, the cause of action to set aside the gift by Mrs Smith to the Defendant in her personal capacity was vested in the Defendant in her capacity as executor and trustee of Mrs. Smith's estate. The Defendant thus had a conflict of interest and was unable to sue.

(2) Other matters in issue

Relationships between the various members of the family

178. Much of the evidence addressed the nature of the relationships between the various members of the family.
179. As regards the relationship between Mrs Smith, the Defendant and Mr Leigh, Lisa Martin said in cross examination "I believe you're a bully and you bullied Auntie George and my grandmother . They were frightened of you." "The way you have just shouted at me shows what you're like". Mr Coppock said that Mrs Smith did not like Mr Leigh, who was bullying towards her. He would constantly harangue her to sell her house. The Defendant loved her mother, but Mr Leigh "is domineering, possessive money grabbing person and I blame him for everything". He believed that but for Mr Leigh, the Defendant would have been happy for Mrs Smith to stay in Oxford. Mrs Allen said that Mrs Smith did get on with the Defendant. She was the only child she had left. Barry Kicks said that, after Norma's death, Mrs Smith was beside herself with despair and she was worried to death about upsetting the Defendant - she didn't want another daughter to die. In answer to a question from me, Mr Kicks said that Mrs Smith was frightened. She had lost one daughter and her other daughter was in poor health. She was paranoid about upsetting the Defendant. She was not frightened of her; rather she was intimidated by Mr Leigh. The Defendant was "a loving daughter but Desmond was a not so loving son-in-law". He said "Mrs Smith did not like Desmond and Desmond did not like Mrs Smith". Mr Fidler also said that Mrs Smith hated Mr Leigh.
180. As to the relationship between the Defendant and her husband, Mr Kicks believed that Mr Leigh controlled the Defendant and that the Defendant did not have any money of her own, because all of her money went into Mr Leigh's bank account. As far as he was aware - and he did not know - the Defendant had no control over her finances. He did not know whether they had a joint bank account, but firmly believed that Mr Leigh controlled her finances. He believed that the reason she took Mrs Smith to Maidstone was because of Mr Leigh and not because of her concern about her health. Mr Fidler in his witness statement said that Mrs Smith told him the Defendant had no bank account and no money of her own.
181. As to the relationship between Barry Kicks and Mrs Smith, Barry Kicks said that he thought of himself as her son in law and he treated her like his mother. He denied the suggestion that he was trying to be her son. He never bullied Mrs Smith - he just wanted the best for her. In response to repeated questions from Mr Leigh, he denied that he was controlling of Mrs Smith. He denied the suggestion that he did not want Mrs Smith to go into a home to save money that his family would inherit. He was not a bully or a bullying manager. He said, "the fact that I never had any cuddle, meeting or interaction with Joyce Smith in the last 2 years of her life is a source of great distress to me". "I had a good relationship with the Defendant - I loved her and Graham".
182. On the basis of this evidence, I find as follows. The Defendant and Mrs Smith had a loving mother-daughter relationship. Mrs Smith was however frightened of upsetting the Defendant. The Defendant in turn was dominated by her husband, Mr Leigh. Mr Leigh and Mrs Smith did not get on. Barry Kicks and Mrs Smith had a good relationship for some considerable time; that relationship appears to have been soured by the events surrounding Mrs Smith's move to Maidstone, and this fact caused Barry Kicks considerable distress.

Pressure upon Mrs Smith to move to Kent

183. Mrs Allen said that on one occasion in 2009, Mrs Smith told her that the Defendant and Mr Leigh were pushing her to go and live with them in Maidstone. Mrs Smith said she didn't want to go to Kent; she said that several times. There was nowhere for her to sleep and she, Joyce, and Mr Leigh did not get on very well. Mr Fidler said that Mrs Smith had told him she wanted to stay in her home.
184. Paul Kicks in his evidence said that in or around November/December 2009 he also spoke to Mr Leigh about his concern about Nan being moved to Maidstone against her wishes. His concerns were confirmed when it became clear in Christmas that she had been moved.
185. Barry Kicks' evidence in cross examination was that the Defendant and Mr Leigh, and Mr Leigh in particular, were desperate to move Mrs Smith to Maidstone. "They were concerned that I knew about the 2008 will and that I would seek to get Mrs Smith to change it". In this regard, he referred to the January 2010 handwritten note (paragraph 139 above) saying she had not knowingly signed another will. At the time, he could not understand why they wanted to move her to Maidstone, but now he believes that they were worried about the will and that Barry would want to change it (because Barbara Kicks knew by then).

Mrs Smith's mental capacity

186. Several witnesses spoke about Mrs Smith's health and in particular about her mental faculties over time. Lisa Martin said that Mrs Smith managed to look after herself. Her father often took her to the shop and to the bank, but she could manage her affairs well. From the mid 2000s Mrs Smith was "just doddery"; she would repeat things more. Roger Coppock said that Mrs Smith was old and fragile but she could cope. She often repeated things but this was nothing other than forgetfulness. Barry Kicks said that Mrs Smith was fragile in 2009. She repeated herself sometimes. But he agreed that she had capacity to decide where she wanted to be and it was her decision to stay in Oxford on her own and not to go into a home. He agreed "she had capacity"

Mr Kicks' loan to his children

187. Mr Leigh in cross-examination and in submission, suggested that the motivation for the Claimants bringing these proceedings was that they owed money to their father, which they would repay out of the proceeds of their entitlement under the 2008 will. In this regard, Mr Kicks accepted that he had made transfers of money to his children and on the understanding that they would repay him when Mrs Smith died. He had lent Paul Kicks £40,000 so that he could get a mortgage and made him sign a document. If Paul got money from his grandmother, he would have expected Paul to pay him back. The loan document did not specify repayment from Mrs Smith's estate and they did not talk about how Paul would pay the money back. Paul had not paid the money back and he had never lent any money to Lisa. He said that he wanted his money back when Paul could afford it.

"Q You are driving this litigation to get the money back from Paul

A. Not true. If he doesn't pay it back, he will get less from my estate when I die. It will be a debt against him".

188. It was also suggested that Paul Kicks was not particularly attentive towards his grandmother and that this litigation had really been brought to secure repayment of the loan he had received from his father. In cross examination, he accepted that he hadn't written to Mr Munn, that he had last seen his grandmother in November 2009 and that he had seen her less than his sister had.

Fears that the Defendant and Mr Leigh would sell the house

189. A number of witnesses referred to Mrs Smith expressing concern that Mr Leigh would seek to sell the Property. Barry Kicks said that at New Year 2008 Mrs Smith told him that Mr Leigh had started to take an interest in her finances. Lisa Martin said that whenever Mrs Smith spoke about Mr Leigh, she would say that he wanted his hands on her money. Mr Coppock said that Mrs Smith used to say to her "I hope Lisa and Paul get their share". He presumed that she feared that the Defendant and Mr Leigh would manipulate her to make another will.

(G) Analysis and Conclusions

Issue (1): mental capacity

190. The issue is whether the gift of the Proceeds should be set aside on the grounds that Mrs Smith lacked capacity to make it. Have the Claimants established a sufficient case to raise doubts as to Mrs Smith's capacity? If so, has the Defendant discharged an evidential burden to show that Mrs Smith did have capacity?

The parties' cases in summary

191. The Claimants' case is that, since the Property appears to have been Mrs Smith's principal asset, then, applying Re Beaney, Mrs Smith had to be capable of a high degree of understanding in order to have capacity to make the gift. She would have had to have been capable of understanding not only the general nature of the transaction, but also that the effect of the gift would be to deprive her grandchildren of any real interest in her estate and the effect which the gift would have had on her resources and her own ability to afford the costs of her future nursing care. They submitted that they had adduced evidence which raises a real doubt as to Mrs Smith's mental capacity to understand these matters, relying in particular on the medical evidence, and in particular the report of Dr Misra in November 2009 and that the Defendant had not produced any evidence to discharge the evidential burden upon her. Whilst she may have had capacity to make decisions as to where she wanted to live, decisions about welfare are not the same as decisions about property and affairs. In relation to the latter, the evidence did not satisfy the high threshold set by Re Beaney. At the time when she allegedly made the gift, Mrs Smith needed to have remembered the provisions of her will, what her other assets were and how she would fund her life after making the gift.
192. The Defendant argued that the case that Mrs Smith did not have capacity as at April 2010 was not established. In fact, there was a lot of evidence that in November and December 2009 Mrs Smith knew what she was doing. There was a discrepancy between the formal medical test results and Dr Huckstep's view. The Claimants had chosen not to adduce any expert medical evidence on this issue. Finally, and by contrast, in the case authorities to which the Court had been referred, the medical and other evidence of impairment was much stronger.

Analysis

193. First, I am satisfied that the Property was Mrs. Smith's principal, if not her sole, asset. It is not known what proportion of the assets of the estate was represented by the Property. Despite the Court's orders for disclosure addressed to the Defendant, there is no positive information before the Court as to Mrs. Smith's assets. It does however appear very likely that the Property represented a substantial proportion of her assets. There is no evidence of any other substantial assets. The Defendant could have adduced evidence to the contrary, and, in the circumstances, I am prepared to infer that the Defendant's refusal to comply with the Court's orders supports the conclusion that the Property was the principal asset.
194. It follows that the gift of the Proceeds would have the effect of very largely depriving the beneficiaries under the 2008 will, including the Claimants, of their inheritance and would affect Mrs Smith's own ability to afford the costs of her future nursing care due to reduction in her own resources.
195. Secondly, therefore, applying the approach in Re Beaney, Mrs Smith would have had to have been capable of a high level of understanding of the effect of the gift, in order to have had the mental capacity to make it. The question is whether it has been established that she was not capable of understanding all claims of all potential donees and the extent of the property she was disposing of, and the effect upon her own life. In my judgment what is in issue here is whether Mrs Smith was capable of understanding, had the nature and effect of the gift been fully explained to her; and not whether she did in fact understand, absent an explanation. The fact that she may have been kept in the dark about the nature and effect of the gift is not sufficient to establish incapacity; such matters might well be relevant to the issue of undue influence, but that is a distinct matter.
196. As regards the burden of proof, in the present case all the relevant evidence on this issue has been adduced by the Claimants and the Defendant has adduced no evidence. In my judgment, I consider that, in deciding whether the Claimant has adduced sufficient evidence so as to shift the evidential burden, the Court is entitled to consider all the evidence adduced by the Claimant. Alternatively, even if there is sufficient evidence (say parts of the medical evidence only) to shift an evidential burden to the Defendant, the Court is entitled, once that burden has shifted, to consider all the evidence before the Court, whether or not that evidence has formally been adduced by the Defendant.
197. Thirdly, in assessing this issue of capacity, I consider three strands of evidence (as in Sutton v Sutton): the medical evidence, the evidence of other witnesses as to Mrs. Smith's behaviour and capacity at the time; and the evidence surrounding the transaction itself - the sale of the Property and the gift of the Proceeds. I look at the totality of the evidence: see Gorjat v Gorjat at §131.
198. As to the medical evidence, as regards the two numerically evaluated tests carried out in November 2009, they seem to point in different directions. Mrs Smith's score on the MMSE test was relatively high. The MMSE test is one which is relatively commonly carried out. It was in evidence in many of the reported cases which I refer to above. I accept Dr Huckstep's evidence that, as result of her score of 23, "from this test her impairment could be classified as very mild". On the other hand, Mrs Smith's score on the HVLT test was low and perhaps significantly low. However, whilst Dr Huckstep sought to explain the nature of the HVLT test, he readily accepted that this was not a matter in which he held relevant expertise. This appears to be a test which addresses short term memory retention. There is no further expert evidence before me to enable me to understand the significance of this test, of Mrs Smith's score on it and most importantly, what it indicates about her capacity for understanding the nature and effect of the gift (and not just short term memory retention).
199. It is the case that Dr Misra, in conjunction with Professor Wilcock, did make a diagnosis of vascular cognitive impairment. However, first, this conclusion was less than definitive; it was expressed as a "suspicion"; secondly there is no evidence as to the relative degree of such impairment and, whatever its degree, what effect that would have had on Mrs Smith's capacity to understand and the particular issues which arise under the Re Beaney approach. (For example, in Gorjat, medical evidence of moderate vascular impairment did not lead to a finding of incapacity).
200. Dr Huckstep's evidence was that, as at December 2009, Mrs Smith was fully capable of making decisions about her own future and in particular about where and how she wished to live. He considered that capacity to make such decisions relating to her welfare were just as, or indeed more significant, than decisions about relating to her property and affairs.
201. Unlike many other such cases, there is before me no expert medical evidence relevant to this issue, and in particular as to the degree of impairment under which Mrs Smith was labouring and as to the impact of such upon her ability to understand. Whilst not necessarily critical in all cases, in this case, where the general medical evidence points in different directions, the absence of such evidence is significant. The Claimants chose not to adduce such evidence, for the reasons set out in paragraph 176 above.
202. It is also the case that there is no further medical evidence after December 2009 and that it is very possible that her condition may have declined between then and April 2010 when the gift is said to have been made. But once again, absent factual or expert medical evidence, in my judgment such a conclusion would be no more than speculation.
203. I conclude that overall the medical evidence as a whole before me is not sufficient to raise a real doubt as to Mrs Smith's capacity and thus no evidential burden shifted to the Defendant. However, in any event, even if it did raise such a real doubt, I nevertheless conclude, for the reasons I now turn to, that on the totality of evidence, the case for mental incapacity is not established.
204. As regards the evidence of others, many of the lay witnesses referred to the fact that Mrs Smith had become increasingly forgetful and was repetitive in her conversation; she was "fragile" and indeed "doddery". But nearly all of them - Lisa Martin, Roger Coppock and Barry Kicks - took the view that, as at December 2009, she had sufficient capacity to know and understand where and how she wanted to live. In this context, the most significant evidence came from Ms Treherne which was that when she visited on 26 November 2009, she had no concerns about Mrs. Smith's capacity: see paragraph 117 above. I attach weight to this evidence: it is contemporaneous and independent, and, as it related to the issue of the LPA, it goes to mental capacity in relation to property and affairs, and not just to welfare issues such as where she wanted to live. Her mental capacity appears not to have been markedly worse than that to be expected of someone who was 83 at the time.
205. As to the circumstances surrounding the sale of the Property, the Defendant has proffered no explanation as to how the gift of the Proceeds came to be made to her. The sale of the Property, including the transfer of the proceeds, was entirely managed by the Defendant and Mr. Leigh. Furthermore there is no witness or documentary evidence that when she made the gift, Mrs Smith actually understood the effect of the gift, in relation to the beneficiaries under her will or in relation to her own future care. In my judgment, however, these matters go to the question of whether she did in fact have sufficient understanding (see Gorjat v Gorjat above, §146), rather than whether she was capable of understanding, had the general purport of the gift been fully explained to her. I am not satisfied that the circumstances surrounding the sale support the conclusion that Mrs Smith did not have capacity.

Conclusion

206. In conclusion, I am not satisfied that the Claimants have discharged the legal burden of proof which they bear to establish, on the balance of probabilities, that Mrs Smith did not have capacity to make the gift of the Proceeds. On the totality of the evidence adduced by the Claimant, this has not raised sufficient doubt as to capacity so as to shift the evidential burden to the Defendant, or, alternatively, even if the medical evidence is sufficient to raise such doubts, on the totality of the evidence, the Claimants' case has not been established. I am not satisfied that Mrs Smith was not capable of understanding the nature and effect of the gift, had its general purport been fully explained to her. Accordingly, the Claimants' first ground for impugning the gift of the Proceeds fails.

Issue (2): Undue influence

207. In considering whether the gift of the proceeds should be set aside on grounds of undue influence, three questions arise. First, was there a relationship of trust and confidence, or ascendancy, between Mrs Smith and the Defendant? Secondly, if so, was the gift of the proceeds a transaction which called for an explanation? Thirdly, has the Defendant rebutted the presumption of undue influence?

The parties' cases in summary

208. The Claimants submit that the necessary relationship existed between Mrs Smith and the Defendant, and rely upon a number of events as demonstrating this, in particular the events around the LPA, Mrs. Smith's move to Maidstone and then to the Care Centre, and the efforts to keep Mrs Smith isolated from the Oxford family. The gift of the Proceeds to the Defendant called for an explanation as she was thereby giving away her principal asset and there is no evidence that she understood that, or its effect upon her 2008 will or upon her ability to fund her future life. The presumption of undue influence thus arises. The Defendant has not adduced, nor is there, any evidence which might rebut that presumption, to show that in making the gift, Mrs Smith was in fact acting free of the Defendant's influence.
209. The Defendant's case in closing argument was that the entire claim had been driven by Barry Kicks, who had lent money to the Claimants on the strength of their inheritance due under Mrs Smith's will. Mr Kicks had been trying to keep Mrs Smith where she was in Oxford. The Defendant and Mrs Leigh had not been "hellbent" on moving Mrs Smith to Maidstone. It had merely been mentioned in one conversation in December 2008. At the relevant time, Mrs Smith was not well enough and needed to go into a care home. She knew that that would cost money. Mrs Smith had been happy to go to Kent on 27 December 2009. As regards the care home fees, Oxfordshire Social Services had only paid for a 12 week period.

Analysis

(i) Relationship of trust and confidence and/or ascendancy

210. In my judgment, the relationship between Mrs Smith and the Defendant was one of trust and confidence and one in which the Defendant was in the ascendancy and Mrs Smith was vulnerable.
211. First, I find that, in general, Mrs Smith was frightened of doing things which would upset her only remaining daughter, the Defendant, and that this fear was driven by her experience of having lost her other daughter, Norma. Thus, Ms Treherne, an independent witness, recorded, in the attendance note of the meeting of 26 November that Mrs Smith did not want to be the person to tell the Defendant about her own decision to cancel the appointment of the Defendant as sole attorney. Mr Kicks gave evidence to similar effect that Mrs Smith did not want to tell the Defendant directly that she did not want her and Mr Leigh to have control of her finances and more generally that Mrs Smith was frightened of upsetting the Defendant. I also accept the evidence that the reason why, on New Year's Eve, Mrs Smith had told Kent Social Services and the police that she was happy to remain in Maidstone was that she was worried about the consequences for her daughter if she had told those authorities that she was not content. Since, as I find, Mrs Smith herself had expressed her clear preference to stay in Oxford, I accept that this is the likely explanation for the contrary view she expressed to officials on New Year's Eve. The relationship between the Defendant and Mrs Smith was a loving relationship. Nevertheless the Defendant herself was in turn dominated by her husband Mr Leigh. Mrs Smith and Mr Leigh did not get on and Mrs Smith was frightened of doing things contrary to Mr Leigh's will because to do so would cause upset to her daughter. In this way, the Defendant's ascendancy over her mother was driven by her own husband's ascendancy over her.
212. Secondly, the circumstances surrounding the LPA evidence the relationship of ascendancy. Mrs Smith was initially prepared to give her daughter sole LPA, but when this was explained to her by an independent advisor, she did not wish to do this and signed documents withdrawing the sole LPA and appointing joint attorneys instead. At the same time she expressly told Ms Treherne that she did not want any further influence from the Defendant's side of the family. Most significant in this regard, however, is the fact that shortly after signing the documents, Mrs Smith signed two documents purporting to go back on the decision she had reached in the presence of Ms Treherne. The documents - bearing the dates 28 November 2009 and 4 January 2010 respectively - were manuscript and in the handwriting of the Defendant herself. In the first document, Mrs Smith states that, after all, she did want the Defendant to be sole attorney. This itself clearly suggests that, given the length and detail of Ms Treherne's meeting with her, the document was written at the Defendant's behest and did not represent Mrs Smith's own view. However what confirms that these two documents did not express Mrs Smith's true wishes, but rather were written at the behest of the Defendant and Mr Leigh is the statement in the letter of 4 January 2010 to the Office of the Public Guardian that the objection to the original sole LPA had been "arranged without her knowledge". This was wholly untrue, and is evidence of the ascendancy and control of the Defendant over Mrs Smith.
213. Thirdly, I find that the Defendant and Mr Leigh caused Mrs Smith to move to their home in Maidstone on 27 December 2009 and that they did so contrary to Mrs Smith's wishes. Both in the period leading up to and in the days immediately prior to that date, Mrs Smith had consistently expressed her view that she did not want to move from her home in Oxford. I refer in particular to Dr Huckstep's evidence of his meeting with Mrs Smith and the Defendant only three days earlier and the fact that he advised the Defendant not to override her mother's wishes. This is supported by the evidence of Ms Treherne's attendance note of her visit on 26 November 2009, and by the evidence of Mrs Allen and Mr Fidler that Mrs Smith had over time consistently expressed her desire to stay at her home. That it was against her wishes is also borne out by the steps taken by the Defendant and Mr Leigh, in the immediately following days, to keep the Oxford family in the dark about what had happened and where she was.
214. Fourthly, the Defendant placed Mrs Smith in a care home on or before 13 January 2010. This too was against Mrs Smith's wishes, expressed to Dr Huckstep less than three weeks earlier, that she did not wish to go into a home.
215. Fifthly, once at the Care Centre, the Defendant went to considerable lengths to isolate Mrs Smith from the Oxford family and to prevent them from contacting her, or even finding out where she was, despite the fact that it is clear that Mrs Smith welcomed such contact. The Oxford family did not find out where Mrs Smith for over five months. On 14 January 2010, the Defendant instructed staff that named members of the family were not to visit Mrs Smith. On 22 May 2010, she instructed staff that phone calls were not to be put through. On 29 July 2010, she instructed staff not to let Lisa Martin and her children see Mrs Smith. On 24 August 2010, she and Mr Leigh came to the Care Centre to prevent Mr and Mrs Coppock and Mrs Allen from seeing Mrs Smith. On 11 November 2010, the Defendant instructed the staff in writing that no visitors were to be left unsupervised with Mrs Smith.
216. Finally, the marketing and sale of the Property was managed, almost entirely, by the Defendant and Mr Leigh. Mr Leigh changed the locks on the Property on the day that Mrs Smith went to Maidstone. Instructions to Withy King were given by the Defendant or Mr Leigh. The address for correspondence given to Withy King was the Defendant's address, despite the fact that Mrs Smith was, at the time, living at the Care Centre. There was only one occasion when Mrs Smith herself made direct contact. It was Mr. Leigh who expressly authorised exchange.
217. As to the Defendant's suggestion that in fact it was Mr Kicks who was the controlling influence and that this litigation has been brought so that the Claimants can pay off loans to their father, whilst there is no doubt that Mr Kicks played an important role in the life of Mrs Smith, I do not accept that his conduct was controlling or bullying of Mrs Smith. Mr Kicks accepted, there is an outstanding loan to Paul Kicks and the outcome of this litigation may be that this loan will be repaid to his father. However, save possibly in relation to credibility, these facts are not relevant to the issue here, namely as to the relationship between Mrs Smith and the Defendant. They do not explain or cast light on the matters outlined above. I do not accept that they affect the credibility of the evidence of Barry Kicks, as corroborated by the evidence of others.

(ii) A transaction which calls for an explanation

218. As I have found in paragraph 193 above, the Proceeds represented Mrs Smith's principal asset and there is no evidence that Mrs Smith had any other asset of substantial value. The effect of making a gift of that asset to the Defendant was effectively to deprive the beneficiaries under her will of all or a substantial part of their inheritance under that will. It would leave Mrs Smith with little money to fund her future life, including her care home and nursing fees. Moreover, given her age, poor memory and poor eyesight, and even though, as I have found, Mrs Smith was capable of understanding the transaction, the nature, size and effect of the transaction was such that it was out of the ordinary and called for an explanation.
219. As regards the effect of the gift on Mrs Smith's ability to fund her future life and in particular the care home fees, on the evidence before me, I am not satisfied that Oxfordshire County Council paid all the fees of the Care Centre whilst Mrs Smith resided there. It appears from the documents exhibited to Ms Schroedel's witness statement that the Council may have paid those fees only for a period of 12 weeks from January to April 2010. In argument, the Defendant suggested that she and Mr Leigh had paid the remaining care home bills. There is no evidence to that effect before me. This was due to the Defendant's own conduct leading to her being debarred from defending the claim. However the Claimants do accept that, if in fact, the Defendant can show that she discharged those fees, then she can request the estate to refund her such sums paid out on behalf of Mrs Smith.
220. As regards the effect, if any, of payment for care home bills, on this issue of undue influence, I consider that, even if there had been evidence that the Defendant had paid for some, or even, a substantial part of these fees, this would not have prevented the presumption of undue influence arising, (nor been sufficient to rebut that presumption under (iii) below). Even if there had been evidence that Mrs Smith understood at the time that her care home fees would be met out of the Proceeds, the facts would have remained, first, that gift would have been out of all proportion to the likely level of those fees and, after payment of such fees, the gift to the Defendant would remain very substantial and secondly it would have substantially undermined the testamentary provisions of the 2008 will. Accordingly, even on this hypothesis, it would have been a transaction which still called for an explanation.
221. I am satisfied that, just as on the facts in Hammond v Osborn, the gift of just under £293,000 to the Defendant was a transaction which called for an explanation. In these circumstances the presumption of undue influence arises.

(iii) Rebutting the presumption

222. The question then is whether Mrs Smith was in fact free from the Defendant's influence when making the gift and whether she acted only after full, free and informed thought about it.
223. First, for reasons set out in paragraphs 8 to 13 above, the Defendant has adduced no positive evidence herself to rebut the presumption of undue influence. Secondly, and in any event, there is no evidence before me which can rebut the presumption. There is no evidence that Mrs Smith received any independent legal or financial advice about the nature and effect of the gift. Contrary to the Defendant's assertion, Withy King has confirmed that they did not advise Mrs Smith in relation to any gift of the Proceeds. Indeed there is virtually no evidence as to the circumstances in which the gift came to be made. There is merely an attendance note of a telephone conversation between Withy King and Mrs Smith, recording in the barest terms an authorisation to transfer the proceeds into the joint account of the Defendant and Mr Leigh. Moreover there is no evidence at all that Mrs Smith gave any consideration to the gift, the size of it and its effect upon the provisions in her will or her ability to fund her own care in the future. In this regard, I note too the evidence of Mrs Allen that when she visited in August 2010, Mrs Smith said that she did not know where her money was and that the Defendant was embarrassed when Mrs Smith raised that. As regards the care home fees, even if there had been evidence that Mrs Smith consciously decided that the fees were to be paid out of the Proceeds, this does not show that she gave any consideration to the effect of the gift upon the provisions of her 2008 will.

Conclusion

224. For these reasons, I conclude that the gift of the Proceeds on 23 April 2010 was procured by the Defendant's exercise of undue influence over Mrs Smith.

Conclusions

225. In the light of my conclusions at paragraphs 206 and 224 above, the Claimants' claim based on mental incapacity fails but their case on undue influence succeeds. It follows that the gift of the Proceeds should be set aside on grounds of undue influence. In principle, and subject to any further submissions as to the precise terms of the order, I will make an order that the Defendant pays the sum of £292,899.92 into the estate of Mrs Smith together with interest thereon since 23 April 2010.
226. I will now hear submissions as to the appropriate orders to be made consequential upon this conclusion. I propose dealing with this and other consequential matters, including costs, immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently and in which event, I will give further directions as to the procedure to be followed.
227. Finally I should add that I am grateful to Ms McDonnell for the assistance she has provided to the Court in the presentation of oral and written argument in this matter.

Postscript

228. Since drafting this judgment, Ms McDonnell has drawn to my attention the judgment of Nicholas Strauss QC handed down last Thursday in this Court in Walker v Badmin, as yet unreported. In that judgment, the learned judge considered (at §§12-13 and 16-50), the interplay between the MCA 2005 and the common law tests for capacity and in particular the test for testamentary capacity in Banks v Goodfellow. He cited Local Authority X v MM and followed the approach in Scammell v Farmer and disagreed with Fischer v Diffley and Bray v Pearce, and thus applied only the common law test to determine testamentary capacity. Whilst his reasoning, in some respects, expands upon my analysis above, his decision is in line with the conclusions I have reached and I do not consider it necessary to recite it in detail.