England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Birmingham Civil Justice Centre Bull Street, Birmingham B4 6DS
		19/08/2016

HHJ David Cooke:

Introduction

1. This case concerns a will executed by David John George Poole (whom I will refer to as "David", as he has been throughout the case) on 26 December 2012 ("the December will"). David died on 19 March 2013, aged 46. The will was prepared by the first defendant Mr. Mark Everall, who had been David's carer or "supporting landlord" since 1994 under a placement made by Worcestershire County Council following a motorcycle accident in 1985 in which David suffered severe physical and psychiatric injuries, and as a result of which he was in 2000 awarded damages exceeding £1m and the Court of Protection appointed a Receiver (later renamed a Deputy) to manage his financial affairs. It leaves 95% of David's estate to Mr. Everall.
2. The remaining 5% is left to Susan White, who had been for some time David's cohabiting partner until her ill health meant they could no longer live together. She is the second defendant and now acts by her daughter Ms Gibbs as litigation friend, and has filed a defence indicating that she does not oppose the relief sought. She took no further part in the proceedings, though Ms Gibbs appeared as a witness for the claimants.
3. The claimants are David's brothers (whom I will call Darren and Sean) who had benefitted under previous wills prepared with the assistance of the Deputy, including one made on 29 February 2012 ("the February will") of which they seek proof in solemn form, but receive nothing in the December will. They allege that that will was not duly executed, that David lacked testamentary capacity and/or did not know and approve of its contents, and/or that its execution was procured by undue influence on Mr. Everall's part.

Factual background: Events up to execution of the February Will

4. The following is a brief description of the factual background, to set the allegations and issues in context. David had a troubled personal history. His mother had three children, David, Darren and Sean, all by different fathers. She separated from David's father who was violent towards her, after which all three boys were taken into care. When a young man, David was involved in two motorcycle accidents. The second and more serious was in 1985 when he was about 19 and being carried as a pillion passenger. As a result of that accident, David sustained serious head injuries and physical injuries which reduced the use of his limbs on one side. Thereafter, he had a history of serious cannabis abuse and was compulsorily admitted to hospital under the Mental Health Act on a number of occasions on account of psychotic episodes which, his psychiatrist believed, were linked to his drug abuse.
5. From 1994 onwards, after discharge from a mental health hospital, David was placed by Worcestershire County Council with Mr Everall at Mr Everall's home, under a scheme called "Home from Home" which Mr Everall described as a sort of adult fostering. Two other men, with no connection to David, were similarly placed there. Initially, Mr Everall's home was registered as a care home but in about 2002 it was deregistered because the form of accommodation provided did not involve the provision of personal care services such as would require registration. Mr Everall was paid for his services in relation to David by Worcestershire County Council, initially at the rate of £350 per week.
6. A claim was brought in respect of David's injuries. I have little in the way of detail about it, save that it appears to have been settled in about 2000 with the payment of damages in excess of £1 million to the Public Guardian, who had been appointed by the Court of Protection as David's Receiver to manage his financial affairs on the basis that he did not have capacity to do so himself. According to Mr Lloyd, who now acts as David's Deputy, the receivership appointment was made in the early 1990s. According to Mr Everall, it was not made until much later, about 1998.
7. After the settlement, the Public Guardian assessed the level of services provided by Mr. Everall and approved payment from David's own funds of fees at the rate of £825 per week. According to Mr Everall (there are no independent documents to support this) the amount initially assessed was higher, but he refused to accept more than £825.
8. In July 2001, Mr Jonathan Lloyd, a solicitor in private practice was appointed as Receiver in succession to the Public Guardian. From then on, he became responsible for administering David's financial affairs, including in particular the payments made to Mr Everall. It is apparent that he was concerned at the level of fees being paid to Mr Everall, and he commissioned two reports from an independent social worker with a view to establishing what services were being provided and whether the fees paid were appropriate. He did not, however, in the end seek any reduction in those fees.
9. Mr Lloyd made a claim for the costs of David's care to be reimbursed by the local authority pursuant to section 117 of the Mental Health Act. Mr Everall claims that he was responsible for initiating this on David's behalf, but I do not think that Mr Lloyd accepts that this was the case. In any event, the outcome was that the local authority accepted that it was liable to pay for David's care, but would only agree to make payment at the rate of approximately £400 per week, which corresponded to what it had been paying immediately before the Public Guardian agreed the figure of £825. Mr Lloyd's evidence, which was unchallenged and which I accept, was that he negotiated the amount of this payment as hard as he could, but it eventually became clear that the local authority would not agree any higher figure. A full backdated payment was made at the figure eventually agreed.
10. In 2007, following the commencement of the Mental Capacity Act 2005, Mr Lloyd's appointment became that of Finance and Property Deputy under that Act. He was initially appointed for a five-year period, which he explained was the policy of the Public Guardian for a short period, but in 2012 made a successful application for his appointment to be renewed.
11. At or about the time that Mr Lloyd was appointed, David met and developed a relationship with Susan White. She was living in a rented property at Drakes Broughton and David began to spend increasing amounts of time with her, eventually moving in to live with Susan at her property at some point, it appears, after 2003. He was not, therefore, at that time living any longer with Mr Everall, although Mr Everall did continue to provide some support to him in his new accommodation. According to Mr Everall, he engaged his friend and neighbour Karen Scott to provide support for Ms White at her home and either he, his partner Russell Theron or Ms Scott was travelling daily to see David at the house at Drakes Broughton. Mr Lloyd was nevertheless concerned that the fees being paid to Mr Everall, which had by then risen to £935 per week, might no longer be appropriate given the change in the level of support being provided.
12. Mr Everall said that David had moved "officially" to Drakes Broughton in 2007, although he accepted that in practice David had been living there full time for some period before that. David remained at Drakes Broughton after Ms White herself, who was suffering from MS, had to move into a care home to receive full-time nursing care. At that point, David took over the tenancy. Mr. Everall continued to be paid at the same rate, and although he continued to provide support to David, his contribution to the support of Ms White must have been minimal.
13. In July 2010 Mr Lloyd engaged Jayne Cooper, a founder member of the British Association of Brain Injury Case Managers, to assess what David's needs were and what support precisely Mr Everall was supplying. Ms Cooper made a witness statement in these proceedings, attaching a number of contemporary documents, but unfortunately had died before the trial. Her statement was admitted as hearsay, and although Mr Everall had no opportunity to cross-examine her, I should say that her evidence given in that statement is in my view inherently credible and also supported by the contemporary documents, such that I felt confident in being able to place significant weight upon it. In that statement, she said that the instructions she was given were to report on the support that Mr Everall was providing, and assess what if any other support or alternative means of support might be available. She said that Mr Lloyd was concerned at the amount of fees he was paying and what he considered to be the lack of straight answers he was receiving from Mr Everall about Mr Everall's role, and also about the additional monies of about £200 per week which Mr Lloyd was at that time paying into an account administered by Mr Everall to pay for David's day-to-day spending.
14. Ms Cooper said that it was several months before she was able to see David and Mr Everall. It is clear that she put this down to obstructiveness on Mr Everall's part. When she did, among the matters he told her about was that he and David were having difficulty with David's two brothers, the claimants, and another person, all of whom were alcoholics and drug users and were harassing David. According to Mr Everall, the brothers in particular regarded David as a source of funds to pay for their own drug habits and would hang around him, particularly when his weekly "pocket money" was received, in order to get money from him which they would then use to pay their own drug dealers. Mr Everall said that part of his role was then to be firm about refusing David access to any further money, knowing that if he gave way it would only be used to pay for more drugs. At one point Sean moved in to the property at Drakes Broughton with David; according to Mr Everall without David's consent.
15. In about August 2011, consideration began to be given to obtaining some form of protection for David from this harassment. According to Ms Cooper, she initiated this. Mr Everall maintains that he was the driving force. At all events, in August of that year the local authority convened a "safeguarding" meeting, following which steps were taken to prepare an application for an injunction under the Protection From Harassment Act 1977. This was a somewhat prolonged process in which evidence was assembled from David himself and from Mr Everall and Ms Scott. Eventually, the application was made to court and an ex parte injunction granted in the Worcester County Court on 14 May 2012. Ms Cooper acted as David's litigation friend in those proceedings, although David was considered to have sufficient capacity to make his own witness statement for the purpose.
16. The injunction was however in limited terms, and only directed to Sean. It prevented him from going to David's property at Drakes Broughton between 9 PM and 8 AM, or contacting David by telephone or text or otherwise between those hours, but there was no similar restriction during the day. There were however restrictions applicable at all times against harassing pestering or otherwise alarming David, which were extended also to Ms Cooper, Mr Everall and Ms Scott as witnesses.
17. In his evidence in these proceedings, Sean maintained that the allegations of harassment against him were manufactured or exaggerated by Mr Everall in order to exclude David's brothers from his life and cement Mr Everall's control over David. Sean and Darren both accepted that at that time they had been alcoholics but Sean said he was now recovering, and free from alcohol abuse. Their contact with David, including visits to his house, had been with David's consent and in accordance with his wishes.
18. Although as Mr Burton submitted both brothers, and particularly Sean, gave their evidence with dignity, conviction and restraint, I am unable to accept that the allegations against them were entirely the product of manipulation by Mr Everall. It is apparent from the documents that David himself was interviewed for the purpose of the proceedings extensively not only by Ms Cooper but also by Dr Doran, his treating clinical psychiatrist, who must have satisfied themselves both that David did consider himself to be harassed, and also that he was sufficiently upset by it to wish to take proceedings. Further, it is evident that he said the same to Mr. Lloyd, and that there was a real issue that Ms White's carers might not be permitted to come to the property if Sean was present (see attendance note at bundle p 2.252).
19. It is right however to take note of the fact that the injunction was sought only in limited terms. David evidently did not give instructions that he did not want to see his brothers at all, but only that they should not stay at his house or contact him during the evening and night time hours. Further, it is accepted that when the injunction was served it was obeyed; although there are records of Sean repeatedly attending the local police station seeking advice about the court order there was no repetition of any of the incidents complained of so that there was no occasion to consider taking any further court action.

The February Will and previous instructions given to Mr Lloyd

20. Mr Lloyd took instructions from David in relation to the preparation of Wills on a number of occasions. It is apparent that the question of testamentary capacity was at the forefront of his considerations, and that he took careful steps on each occasion to satisfy himself firstly that David's wishes as expressed to him represented his considered view, and secondly that when the time came to approve and execute the will, David had the necessary capacity. The claimants' case is that these wishes showed a fairly consistent pattern over a long period of time, and there is no good reason for the apparent dramatic change in David's intentions between all of those previous occasions and the December will in which 95% of the estate was left to Mr Everall.
21. It is also apparent from the records of these occasions that Mr Lloyd throughout expressed caution about proposals to make gifts to Mr Everall, on account of his position as a paid carer.
22. The first occasion was in December 2001. There is an attendance note dated 4 December, 2001 in the bundle at page 2.232. It records that David was asked what his wishes were, and said that he would like to give £25,000 each to his two brothers, and £10,000 each to 3 other relatives. He also wished to make gifts of £25,000 to the Pershore Day Centre and £50,000 to Mr Everall, in relation to which Mr Lloyd noted "JL… explained that there are issues with regard to someone in Mark's position as a paid carer benefiting under a will." David said that he would like to give the remainder of his estate to charity, but did not name specific charities. He said that his charitable objectives were to support cancer research, help for starving children abroad and animal welfare and after discussion with Mr Lloyd agreed that he would divide the residue of his estate between these three objectives in the proportions 50%/40%/10%. Mr Lloyd explained that a medical report from the GP would be necessary to confirm testamentary capacity. In the event, these instructions were not followed through because one week later David was detained in hospital under the Mental Health Act.
23. Mr Lloyd was again able to take instructions in October 2002. A note of his meeting with David on 24 October is at page 2.233. Mr Lloyd noted that David could remember whom he had previously wished to provide for, but said that he now wished to add a bequest to Susan White. He had significantly changed the monetary requests he wanted to give, and said his intentions were to leave £150,000 each to Darren, Sean and Ms White, £50,000 each to Sean's children, £100,000 to Mr Everall and £100,000 to the Pershore Day Centre. Although he said that his charitable intentions remained the same, Mr Lloyd noted that these monetary bequests amounted to £1.1 million. The result would have been that the residue passing to charity would be very much smaller than had been anticipated the year before. Mr Lloyd sought an opinion as to testamentary capacity from David's GP (2.234) who suggested that it should be better obtained from David's treating clinical psychiatrist, Dr Doran.
24. Dr Doran wrote on 8 November, 2002 (2.238) saying "… there is something of a dilemma here as his mental state can change so rapidly as you note in your letter. I wonder whether it would be advisable if I were present when he reads and signs his will, so that I could say that at that moment in time he was fully capable of doing so."
25. Mr Lloyd sent a draft will to David with a letter on 14 January 2003 noting that he had expressed the requests in percentage terms rather than fixed amounts, which it appears he had discussed with David at the previous meeting. The effect of that was that the bequests to the brothers were expressed as being 15% shares of the residue, with a 10% share being left to Mr Everall (2.176) Mr. Lloyd said that he had picked three charities "which seem to me to fulfil your wishes in respect of charitable purposes. However if you want to research this further I can provide you with more information on charities." He also said "I have informed Mark that I am sending the draft will to you and he will doubtless speak to you as to whether you are happy to go through this yourself and call me or whether you want me to come down and see you. There is absolutely no reason why you should need to disclose the contents of the draft will to Mark or to anyone else." Mr Lloyd did in fact go to see David on 4 March, with Dr Doran, when he went through the will with him, David expressed himself to be satisfied with it, and Dr Doran satisfied himself that David had testamentary capacity. It was executed at that meeting, and witnessed by Dr Doran and Mr Theron (2.241-2). Ms White's share was in fact left to the executors on discretionary trusts so as not to affect her benefit entitlement.
26. Mr Lloyd wrote to David in August 2007 suggesting that he should review his will. He was aware that by this time David was living with Ms White in Drakes Broughton and said "… you may wish to review the way in which you have distributed residue. I am aware that since that time your relationship with Susan has become much closer and your dependence on Mark Everall has become somewhat less." There was a meeting on 17 August, in which Mr Lloyd discussed David's living arrangements with Phil Millington, a social worker from Worcestershire County Council. They noted that David had now moved in full time to live with Ms White and agreed that his placement at Mr Everall's house should be terminated. Mr Everall had demanded three months' notice and although Mr Lloyd said that no such period had ever been agreed, Mr Millington said that the council "do not want to rock the boat with Mark on that particular point". Although they discussed a future arrangement on the basis of payment to Mr Everall for 10 hours per week, it appears that either it was not pursued or Mr Everall must not have been prepared to agree this, because, as noted above, in the event payments to him continued at the original rate.
27. Mr Lloyd then saw David on his own and noted (2.249) that "He has thought about the proportions and instructed JL that he would like Sean, Darren and Susan each to receive 20%, Mark 5% the Day Centre 20% with the remaining 15% going to the charities he named previously. JL said that this involves a reduction in the amount going to charity and David confirmed that he understood that that is what he wants."
28. In the event, no will along these lines was ever prepared or executed. Mr Lloyd accepts, with some embarrassment, that he simply forgot about the matter. He realised that he had done so in January 2012, by which time discussions were going on about the possibility of an application for an injunction against harassment. He asked Dr Doran to assess David's testamentary capacity, and Dr Doran wrote on 25 January 2012 (2.251) saying that he had done so whilst meeting David for the purposes of assessing his capacity to bring the injunction proceedings on 24 January. He said he had considered David's "ability to understand the nature and extent of his assets, to weigh up the possible routes of disposal of those assets after his death and to communicate his wishes. Although he did not have a clear idea what his wishes would be at the interview on 24 January, he certainly displayed full capacity to be able to do so had he chosen to express a wish. Were there to be a relapse of his psychiatric condition, namely bipolar affective disorder, his capacity may no longer persist for brief periods, but there is no sign that there is a relapse of his condition is pending."
29. Mr Lloyd met David, with Jayne Cooper, on 9 February, 2012 (2.252). They discussed the proposed injunction, David's living arrangements and possible redecoration at the Drakes Broughton property, and then moved on to instructions for a new will. The note records as follows:

" JL raised the question of David's will and said that it was never in fact signed off previously.

JL asked David if he could remember who he had provided for and he said for his brothers but he does not want to leave them so much. JL asked who else and he mentioned Sue. After some prompting he remembered Mark. JL had to remind him that he had made provision for the Pershore Day Centre. David said that he no longer wants to leave anything to them. He has little to do with the Day Centre now. JL reminded him that he had left the balance of the money to charity and asked him if he could remember which ones. JL told him there were three. He remembered, after some prompting, that there was Cancer Research because his mother had died of cancer, Save the Children Fund because he remembered seeing programmes about their work in Africa and an animal welfare charity and JL reminded him that it was the British Veterinary Association Animal Welfare Foundation.

JL explained that at present these are left in proportions of five shares to Cancer Research, four shares to Save the Children and one share to the Animal Welfare Foundation. David thought about this and decided that he would like them to have five shares each. He only wants his two brothers to receive 10% each, and also Sue and confirmed that he is happy that anything left in her share on David's (sic) death to go to the residuary charities. JL said that only a small share would be appropriate for Mark who was paid handsomely for the work that he does supporting David. After some discussion, David agreed 2.5 % for him…

Having confirmed this Mark Everall turned up. JL summarised what had been discussed. Mark said it would have been helpful if he was there because David will ask him questions and he won't be able to answer them."

30. This note shows in my view that David had a reasonable though not perfect memory of matters last discussed almost 5 years previously. He knew that he had left money to his brothers, and was able to say that he wanted to reduce their gifts, but he evidently did not want to exclude them altogether. In other respects, including his intention to leave money to Mr Everall, he had to be prompted, but it appears that he was then able to recall in general terms what his other gifts were, and to express views about them. It is clear that Mr Lloyd continued to express reservations, as he had in 2001, about the size of any gift to Mr Everall. Mr Everall's intervention shows, taking what he said at face value, that he was conscious that David might have difficulty recalling, within a fairly short time, what he had decided and why. Taking account of the other evidence, it also shows in my view Mr Everall seeking to insert himself in the will making process for what, I consider, are likely to have been self-interested reasons.
31. The following day, 10 February 2012, David telephoned Mr Lloyd's office and spoke to an assistant, Emma Sproston. Her note (2.254) records:

"… He was calling to say that he should have said something about Mark to Jon and Jayne yesterday. From what I could gather David said he didn't feel comfortable saying anything as he knew Mark would be attending the appointment. He said there is a bit of bullying going on. He said Mark is always telling him what to [do] and shouting at him, David said that he was on the phone to him this morning and Mark was really horrible to him… I reassured him saying that he shouldn't be worried about discussing such matters with Jon and Jayne…"

32. Mr Lloyd went again to see David at the bungalow at Drakes Broughton on 14 February, taking the draft will with him. His note of that meeting (2.255) records:

"… JL went through the draft with David.

When it came to the share for Mark, JL asked David to confirm that this is what he wants to do. JL said he asks because David has apparently said to Jayne that he feels "bullied" by Mark to some extent. David not sure. JL said that if he is not sure then he need not put anything in and can add a gift to Mark in the future if he wants to. He thought this was a good idea.

He went on to say that he wants to leave something to Sean's children JL asked him how many there are and he said four. JL asked him if he could remember their names and with some difficulty he listed them. He said he wants 10% to go to them. JL explored this and he wants the 10% to be split equally between them with each to get their share at 18.

David confirmed the rest of the will."

33. The draft will was revised and David went to Mr Lloyd's office on 29^th February 2012, taken there by Mr Everall and Karen Scott. There was some discussion of the injunction proceedings, but the principal matter considered was the execution of the will. Mr Lloyd's note (2.256) does not record in detail what was said, but notes "Attending to going through will and get [it] signed off 24 minutes" and afterwards "JL checking that David content with the arrangements made. General discussion re the situation with Sean and Sue 24 minutes".
34. There is however a detailed note prepared by Miss Gilham, the assistant who was dealing with the injunction and who also acted as a witness to the will. That note (2.265a) records in considerable detail the discussion between Mr Lloyd and David about the content of the will. Mr Lloyd went through all the bequests to charities and relatives and then:

"JSL [asks] whether that sounds right, and whether that's what David wants.

here is no response from David, and so JSL prompts him saying he has added in Sean's children as requested and taken out Mark.

David says yes, but then pauses.

JSL then asks whether he is uncomfortable or whether there is anything that he is unsure about? David asks if he can recap again on the will.

[Mr. Lloyd then ascertains that David is aware that his estate is worth approximately £1.1 million and goes through again the details of how this is to be distributed, including the amounts going to each beneficiary]

JSL asks whether that sounds good? David says not really, no. There is someone else I want to bring in. There is Russell, Mark's partner.

JSL points out that until two weeks ago, he was going to put a small amount of money in for Mark. JSL reminds him that he asked him to think carefully to give money to a person who is paid a lot of money to look after. Russell is in fact in this category, as he is a business partner of Mark. JSL makes it clear that it is up to David whether he wishes to give the money, however he needs to consider the things that Jon has said to him in the past and what David thinks he really wants.

David says, well you know better, and you know the advice you have given me.

JSL states that when making gifts in wills, you should be sure about making them to those who provide a service to you. You do not normally make gifts in the area of hundred thousand pounds, but perhaps £1000. JSL notes that David has said in the past that Mark was bullying him a bit. Jon advises to be cautious. He can at this point leave it out of the will, but if in the future you would like to change it, you can of course add in anything for Mark and Russell that he would like."

35. Mr Lloyd then went through the terms of the will again, before it was signed. There was thus ample opportunity for David to tell Mr Lloyd if he was unhappy in any way with the will. David was reminded of the change that had been made in relation to Mr Everall and did not express any concern about it. He did raise, apparently for the first time, the possibility of making a gift to Mr Theron, but he did not persist with that. If he had had second thoughts having signed it, the meeting continued for some time afterwards so that he could have expressed any such thoughts to Mr Lloyd. He does not appear to have done so.

Events leading up to the December will

36. Mr Lloyd sent David a copy of the will with a letter on 26 March 2012 (2.257) reminding him of the gifts made and adding "if on reflection there is anything that you are not happy about or you want to include anyone else as a beneficiary, then please do get in touch with me."
37. There was no immediate direct response from David, though he was obviously capable of telephoning Mr Lloyd if he wished to do so, as he had shown on 10 February. However when Mr Lloyd's letter arrived on 27 March, Mr Everall immediately sent an email to Mr Millington, the social worker at Worcestershire County Council (2.258). In it he said that David had been upset when he received the new will because "unlike the last will there was no provision in this one for me" and that David had told Ms Scott about this and asked Ms Scott to tell Mr Everall. According to Mr Everall David "had told Jon Lloyd that he wanted to make a similar provision for me as he had in the last will however Jon had told him that he really shouldn't bother about me because in his opinion I am paid enough to look after him without being included in the will… Obviously all I could do was tell him that if he wanted any changes making it was up to him to get in touch with Jon and sort it out and that it wasn't anything I should be involved with."
38. It is not clear from this email what Mr Everall expected Mr Millington to do about it. Notwithstanding his final remark, Mr Everall did involve himself further. He sent a copy of his email to Mr Lloyd on 3 April (2 .259) saying that "David has put me in somewhat of an ethical dilemma… I feel awful about bringing this matter up but I have to, as David is still wanting to talk about the subject…". He again did not say what he expected Mr Lloyd to do about it. Understandably Mr Lloyd responded to the implication in what Mr Everall said. He wrote to Mr Millington (2.260) saying "the report contained in Mark's email to you… is simply incorrect insofar as it suggests that I ignored his instructions and sought to unduly influence him." He also wrote direct to Mr Everall (2.261) refuting the suggestion that he had told David "that he really shouldn't bother about leaving anything" to Mr Everall, that he had seen David on three occasions and was satisfied that the will as signed represented his considered wishes, and that David could contact him if he wished to make any changes.
39. Mr Everall also sent an email on the same day (2.262) maintaining that what he had said had all originated unprompted from David, and that David had arrived that day by taxi "clutching his will, telling me to look after it and wanting to discuss it".
40. David did make a telephone call to Mr Lloyd's office on 5 April 2012, when he spoke to Miss Sproston. She noted (2.266) that "David was calling because he explained that he was concerned about a letter he had received from Jon with regards to his will." She looked at the letter and noted that it advised David to contact Mr Lloyd if he wanted to make any changes to the will. Her note continues "David confirmed that he does want to make (sic) some money to Mark in his will. I advised David that I could liaise with Jon on his return to the office on Tuesday so that Jon could discuss this further with him to see what provisions he wants to make. David confirmed that he would like to leave 50% to Mark."
41. Mr Lloyd asked Jayne Cooper to discuss with David whether he wanted to make any changes to his will. She did so on 10 April, and sent Mr Lloyd an email (2.264) saying "I did discuss the matter of the will with David, as you requested. David told me that he understood that he was not going to leave money to Mark in his will as Mark had been paid a lot of money to look after him all these years... Please let me know if you want me to follow this up any further as I will be seeing David next week. "Mr Lloyd replied saying "Perhaps you could just raise it with him again next week and establish with clarity either that he is content with the arrangements as per the Will recently signed (which seems to be the case as per your email below) or that he wants to review further." There is nothing in the documents to show what was the outcome of this discussion. Ms Cooper makes no mention of it either in her witness statement or in the note that she prepared recording her involvement with David (3.12). It would appear that David cannot have told Ms Cooper that he wanted to make any changes to the will, since I have no doubt that she would have reported it to Mr Lloyd if he had done so.
42. It would appear from this therefore that what David said about his wishes in relation to leaving money to Mr Everall varied very considerably over short periods. When unaccompanied by Mr Everall he either made no mention of a gift to Mr Everall unless prompted or referred to gifts of up to 10% of his estate, but reconsidered and did not pursue the matter when Mr Lloyd advised him to consider carefully whether such a gift was appropriate. After discussing the matter with Mr Everall however (whether that discussion was initiated by David himself or by Mr Everall) David began talking of leaving 50% of his estate to Mr Everall. When he subsequently discussed it however with Ms Cooper, whose witness statement makes clear that she regarded it as vital when dealing with brain injured patients to have a number of conversations with them in the absence of potential beneficiaries in order to establish their settled wishes unaffected by even the presence of those who might exercise influence over them, he did not himself pursue the question of making any gift to Mr Everall, let alone a very substantial one.
43. Mr Everall however continued to maintain that David was frequently mentioning a wish to change his will. On 14 May 2012, David attended court when the injunction against his brother Sean was obtained. It seems that he became ill shortly after that but he was still living in his bungalow on 21 May when Mr Everall sent an email to Ms Cooper and Mr Lloyd saying "David is telling us in his own words that he 'made a mistake by taking on the bungalow after Sue left and that he wants to move back'; he also keeps mentioning changes to his will; advice is required please?". Mr Lloyd responded that any change to living arrangements by moving back to live with Mr Everall would need to be talked through with social services and "with regard to his will, if he wants to review this again I am very happy to advise him. Again I have asked Jayne to raise this with David. If he wants to contact myself or Emma direct then he can of course do so."
44. David was admitted to hospital on 26 May 2012 and underwent a series of tests. According to Mr Everall, he was diagnosed with terminal and probably untreatable cancer; see his email dated 30 May at page 3.11 in which he again says that David wishes to be discharged from hospital and return to live at Mr Everall's house. Strangely, it appears that the medical records that have been obtained do not confirm this diagnosis.
45. David was in fact discharged from hospital on 31 May. It is clear that Ms Cooper thought that this was inappropriate and had been procured or influenced by Mr Everall in a way that was not consistent with David's best interests. Mr Everall told Ms Merrill Gilman, another social worker, on 31 May that staff at the hospital had "accepted his wish to come back here after discharge" and "would allow David to be discharged tomorrow" (3.19). Ms Gilman responded that she had spoken to the ward and they were not looking to have a discharge meeting "until at least next week". Ms Cooper reported to Mr Lloyd by email on 1 June as follows:

"Merrill has just confirmed that she had two conversations with Christie, staff nurse, this afternoon. During her first conversation she advised the nurse, David and his carers that she could not sanction discharge without a multiagency discharge planning meeting. The nurse told carers this, but Mark said David is going home. Final. Nurse confirmed that this will be classified as a self discharge and that there is nothing anyone can do as David is considered to have capacity to decide this. Nurse advised Merrill that as it is a self discharge she cannot provide any medication for him to take away with him.

… I questioned whether a carer paid by social services was acting in the best interest of the client by actively encouraging self discharge. Merrill commented that this is a totally unique and complex setup…

Merrill and I agreed that I will call the Macmillan nurses and ask if we can use the time already allocated for the planning meeting next Thursday to use for Merrill and I to meet with new Dr and Macmillan nurse to find out what treatment/care/intervention is recommended so this can form part of Merrill's new assessment.

Mark has not made contact with either Merrill or me. We presume that David has been taken to Mark's home "

46. The hospital insisted that David sign a discharge release form, confirming that he had made his own decision "fully realising that it is contrary to the medical advice which I have received" and absolving the hospital from any responsibility (3.81) David then returned to live at Mr Everall's house.
47. These notes do not show the extent to which David was himself expressing the wish to be discharged from hospital or Mr Everall was expressing it on his behalf. Mr Everall is adamant that David insisted on being discharged and he was only ensuring that David's wishes were carried out. If so, Ms Cooper's email shows that Mr Everall was prepared to see that the advice of medical staff was forcefully overridden and that David left hospital without having any medication provided or even having his medication and future treatment needs assessed. He gave a misleading account to Ms Gilman of the willingness of medical staff to allow David to be discharged and moved effectively to isolate David from influence by his responsible social worker and Ms Cooper. Ms Gilman's unwillingness to confront Mr. Everall echoes that of Mr. Millington earlier in relation to notice to terminate David's placement and suggests that Mr. Everall was considered a difficult person to oppose. It is clear that after this episode, relations between Mr Everall and Ms Cooper deteriorated further.
48. On 19 June 2012, Mr Lloyd went, with a trainee solicitor who took a note, to see David at Mr Everall's house. Karen Scott was also present. David gave him two documents headed respectively "My own words- things I am angry about" and "Things I want to happen". It is clear from the note that these documents had been typed up by Mr Everall, although according to him he had merely put down what David told him to. There was then a discussion about the content of these documents; from the documents themselves and that discussion it is I think apparent that although David was aware of and understood the content of those documents, a significant part of the discussion was led by Mr Everall and some of the concerns expressed in the documents he had drawn up seem to have been generated by Mr Everall or to represent his point of view.
49. For instance, the "Things I am angry about" document (2.274) included "I was left in hospital by Jon, my social worker and Jayne Cooper, when all the doctors said I could go home with Mark." In fact it appears from the documents referred to above that Mr Lloyd played no part in whether David was discharged, and that insofar as medical staff were involved, it was their view that it was not appropriate for David to be discharged, but they could not resist when he, encouraged by Mr Everall, insisted on discharging himself. This particular point appears to show that, if the document truly reflected what David now thought, Mr Everall must have also given David a misleading account of the circumstances of his discharge and so persuaded David that only he, Mr Everall, was on David's side and Mr Lloyd, Ms Cooper and the social worker were not to be trusted.
50. Another point noted was "I am angry that my compensation makes little; I could get much more in a bank and I want to know what Jon Lloyd charges me for everything he does." In the meeting, Mr Lloyd told David and Mr Everall that all of David's money was invested in a special deposit account at the Court of Protection and earned just under 3% interest per annum, where as if it had been in a bank it would only receive about 1%. The note records that "Mark was under the impression that the money was held by the Court of Protection and only growing at a rate of 0.5%". Although Mr Everall presented this as David's concern, it would appear from the note that he took the lead and it was his own misapprehension that had given rise to any concern on David's behalf.
51. The same document says "I said that I wanted to leave money to Mark, like in my old will. When I made the new one I was told not to by Jon Lloyd, he said Mark was paid enough, when I saw it I told Karen and I asked that Jayne Cooper to tell him to change it; but she ignored me; it was not right I want it changing". That was not an accurate account of what had happened and seems likely to have been Mr. Everall's view, of which David may have become persuaded.
52. The points on these documents were discussed with David and Mr Everall both present. Mr Lloyd and his assistant then had a discussion with David alone, principally about the will. Mr Lloyd went through the terms of the existing will and the gifts to family members. The note records that "David said his family are too greedy" and that he wanted to reduce the shares given to Sean and Darren from 10% to 5% each. They discussed the gifts to charities and the note records that "at this point David said he would like to leave some to Mark. He stated this would be 5% and asked how much that would be. JSL confirmed that this would be approximately £50,000 and David said he would be happy with that. He then stated that he had known Mark a long time." There was a further discussion of whether David was in fact happy to be living with Mr Everall and he said that he was. Mr Lloyd was obviously concerned that David had previously said he felt bullied by Mr Everall and told him that if he ever felt he needed to speak to anybody he should telephone him. After that "JSL returned to the issue of the will and asked if there was anyone else that David would like to leave money to. David said 'no'. JSL confirmed that the rest would be distributed to the three charities as he had set out and asked if David was happy with that. David said yes. JSL asked if there would be any other changes. David said no." It does not appear that when he had the opportunity to do so in his own words David complained that Mr. Lloyd had previously pressured him not to leave anything to Mr. Everall. Nor was he proposing himself any more than a relatively modest percentage gift to Mr. Everall. There is nothing to suggest Mr. Lloyd sought to advise or persuade David against that gift, let alone that he "cornered and bullied" David and told lies about Mr. Everall, as Mr. Everall would later allege.
53. Mr Lloyd spoke by telephone to Mr Everall on 22 June (2.277) telling him that David had said he would like to include Mr Everall in his will and asking whether he had any "policy with regard to the acceptance of bequests and gifts" Mr Everall responded that if David had been placed by social services "then their policies and procedures would apply but that is not the case with David as this is a private arrangement between David and him. He does not think there is any ethical problem." Mr Lloyd told him that "from a professional point of view the NHS, social services care homes etc all regard this as a 'no no' and there is a perception issue" but Mr Everall reiterated that he did not feel there was any problem. Mr Lloyd noted that a 5% gift to Mr Everall would reinstate the position in the previous will.
54. On 24 July, Mr Everall sent an email to Mr Lloyd (2.279) in which he said "After our recent meeting David was very concerned to find out that his monies have been removed from the COP and invested elsewhere without any consultation whatsoever." In fact, as noted above, this was the opposite of what Mr Lloyd had said at the meeting. If Mr Everall had, as seems likely, discussed the matter further with David, it may well be that he had told David, quite wrongly, that his money was being inappropriately invested or had been inappropriately taken out of the CoP account. Mr Everall continued "David has intimated that he may well wish to change his will at some point because of what has recently happened with Sean and Darren, but at the moment he is not pressing it."
55. In fact, Mr Lloyd had already prepared a draft will in accordance with the instructions David had given on 19 June. He suggested to Mr Everall on 25 July (2.280) that he should see David to go through that with him. It appears that Mr Everall however effectively prevented that happening. He took a number of steps which, Mr Burton submits, were self-serving moves to bolster his own position. On 9 August 2012 he wrote to Mr Lloyd (2.281) saying "Jon, because of what you said about me to David I have had to report myself to County Council under their POVA [Protection of Vulnerable Adults] policy so obviously I do not feel comfortable about having you in my house; let alone meeting with you." This presumably is a reference to Mr Lloyd having previously cautioned David in relation to making a large gift to Mr Everall.
56. The following day Mr Lloyd told him (2.282) that "I would like to see David again in order to finalise his instructions. The local authority has questioned whether David has the requisite testamentary capacity. I have told them that Dr Doran was clear as of 25 January that David had testamentary capacity and I do not myself see that his capacity in relation to that has changed. Nevertheless in the face of any query as to capacity it would seem prudent to get a fresh medical opinion…". Mr Everall appeared to take umbrage at this and to regard it as some sort of move against him by the County Council: see his email at 2.283. Nevertheless he agreed that a capacity assessment should be obtained.
57. Strangely, in this email, Mr Everall was adamant that there were no problems with David's capacity, and yet sought to put off Mr Lloyd seeing David using doubts about capacity as a reason, saying "as to your proposed visit to discuss his accounts and take instructions etc; there is no point whatsoever in any of that happening until his capacity is established otherwise anything that is done or said can be questioned afterwards." This does not make sense; if David in truth wanted explanations about his financial affairs there seems no reason why Mr Lloyd should not have visited him in order to explain matters to him, and it is not easy to see in what respect this could be "questioned afterwards". No doubt testamentary capacity would have to have been confirmed at the time of execution of a will, but that seems no good reason not to have the instructions confirmed as representing David's settled intention in preparation for execution.
58. The result of this appears to have been that Mr Lloyd took no further steps for some time to take instructions from David about making a new will. Nor did David pursue, either himself or with Mr Everall's assistance, the suggestion that Mr Lloyd had made that if he wished to consult another solicitor about a will David was free to do so and Mr Lloyd would provide any assistance required.
59. Mr Everall took a number of steps to complain about Mr Lloyd and have him removed from the management of David's financial affairs. He maintains that all of these were David's own concerns and that he was only doing what David wanted. I am satisfied however from considering the evidence as a whole that in truth Mr Everall was the driving force. I have referred above to a letter that Mr Everall sent on 24 July 2012 to Mr Lloyd making incorrect assertions about the investment of David's funds. On the same day, Mr Everall had a meeting with social workers (see the letter from the County Council dated 9 October 2012 at page 3.127). At that meeting, the social workers noted (3.86) "David/Mark state that they are not happy with the performance of the current CoP Deputy Jon Lloyd… Mark intends to make a complaint about Jon Lloyd's lack of 'transparency with regard to David's finances'. Jon's period of deputyship seemingly ends next November. SW [a social worker] to refer to Onside Advocacy-David has agreed for an involvement of an independent advocate."
60. This meeting seems to have been initiated by Mr Everall expressing concerns about David's financial affairs. The social workers' own assessment of David's capacity in that respect and the risks to him is also set out in the note as follows:

"David requires assistance to manage his finances in a way that is beneficial to himself. David has a court appointed deputy-Jon Lloyd who manages David's finances for him.

David can easily be persuaded to spend his money on other people to the detriment of his own well-being. He may not always be able to see the consequences of the way in which he may want to spend his money. This has placed David at risk of financial exploitation and he has been taken advantage of in the past.

Professional concerns about safety and risk.

It is unlikely that David would be able to make rational decisions about his finances without support. If he were left to make them himself it is highly likely that he would give much away without thinking of the consequences. He would also be at risk of financial exploitation by those who know David's vulnerability and could use it to convince him to give them money…"

61. The council did appoint an advocate, Ms Elt. Mr Everall later made it clear to Mr Lloyd that he regarded (he said David regarded) the purpose of this appointment as being to pursue complaints against Mr Lloyd. Mr Everall made his own complaint to the Court of Protection which resulted in the Court sending a Visitor to interview David and investigate his concers. Mr Everall and Ms Elt (3.152) made allegations about matters that they considered were unexplained or contrary to David's wishes in the accounts that Mr Lloyd had provided. These allegations were made both to the Court of Protection and to social workers. As a result the county council convened a meeting (on 9 May 2013; see page 3.162) at which the allegations were considered, which was attended, apparently at the council's invitation, by police officers. Mr Everall regards the fact that this meeting was convened and that the police attended as evidence that he was right to be concerned and that there was serious impropriety in the way in which Mr Lloyd had managed David's funds.
62. However no such impropriety has been established by any of the evidence before me. The Visitor told Mr Lloyd (see 3.156) that she was fully satisfied with the management of David's financial affairs. She confirmed the same in writing to Mr Everall (letter of 24 January 2013, 2.265F). It must be inferred from that that she did not believe there was anything in any of the specific points that Mr Everall or Ms Elt had raised. Mr Everall's view of this is that the Visitor was biased in favour of Mr Lloyd; he seemed to think that it was evidence of this that when she visited David she said she had come to the meeting from south Birmingham and that Mr Lloyd lived in south Birmingham.
63. The county council did not pursue any complaint or enquiry about David's finances with Mr Lloyd. He received no enquiry from them, or from the police, at any time. Mr Everall says that this was because David had died before any such enquiries could be pursued, and thus was no longer the responsibility of social workers. Whilst that may conceivably be a reason for the council discontinuing any enquiries, it does not appear that they had even initiated any. David's death would be no reason whatever for the police to discontinue any enquiries if they felt there was evidence that a crime had been committed. Mr Everall is the executor of David's estate; if he felt that loss had been caused by anything Mr Lloyd had done, he could have followed it up and made a claim himself, but he has not done so. No questions were put to Mr Lloyd in cross examination about any alleged irregularity or discrepancy in David's finances or accounts.
64. The mere convening of a meeting by the council is no evidence that there was any substance in Mr Everall's allegations. As he said himself in evidence, the duty of the Council to investigate any suggestion of abuse of a vulnerable adult is such that "I only have to say there is £1 missing from a purse and the council has to have a full investigation".
65. Mr Everall repeatedly said that as a result of what he regarded as Mr Lloyd's implication of impropriety in his receiving any benefit under David's will he had "had myself investigated under POVA". There is a note of a discussion between two social workers on 24 July 2012, so apparently initiated after Mr Everall's meeting with social workers that day, which notes (3.87):

"PE and SW need to review David-clear boundaries need to be established between David and his service provider Mark Everall. From looking at past notes and emails from Mr Everall there does appear to be some blurring of roles. Perhaps something which has developed over a long period of time. Andrea [Briggs] and I have decided to arrange a visit to review David's situation, update assessment and ascertain what the situation is between Mark and David and perhaps ensure that clear boundaries are established. Andrea will complete an initial visit to try and ascertain if David was willing to agree to go to Mark's following recent hospital discharge."

66. The same note records that visit has taken place, apparently on the same day, by two social workers, Ms Briggs and Mr McColl, who both felt that David had capacity to make decisions about where he lived, was well looked after and wanted to remain at Mr. Everall's house. No comment is made about establishing "boundaries" with Mr Everall. A similar note of a meeting on 17 August 2012 does address the question of whether it was appropriate for Mr Everall to be a beneficiary under David's will, though this does not appear to have been a result of any process begun by Mr Everall but rather by concerns expressed by Mr Lloyd. That note says (3.91)

"David has a Deputy Jon Lloyd who administers his finances. Jon informs me that David had his capacity assessed by Dr Doran in January and it would appear that David has capacity to decide who is in his will. However there remain concerns over the blurred boundaries between David and his paid carer Mark. Mark has cared for David for many years. As well as his carer, Mark is listed as next of kin, his Brain Injuries Caseworker, his advocate and now a beneficiary to his will. Jon Lloyd is worried about possible 'undue influence'."

67. That note goes on to record that there were at least two meetings at David's home and that social workers were satisfied that David was able to make decisions regarding his accommodation and was happy to continue living with Mr Everall. So far as "blurred boundaries" were concerned the social workers merely suggested that Mr Everall should not refer to himself as "next-of-kin" as he was not a family member. The social workers had no concerns over David making a gift to Mr Everall in his will; the note says:

"… We are satisfied that there is no further issue with David deciding who is in his will. Following a professionals' meeting at County Hall the issue about Mark's 'influence' over David was discussed. The general consensus was that it is inevitable that there would be some influence over David from Mark as Mark has been David's carer for over 10 years. There was no evidence that Mark's influence over David had any negative impact on David. A recent professionals' meeting about Mark Everall suggests that this AP [Adult Protection] referral is closed."

That decision appears to been taken on 7 December 2012 (see page 3.92).

68. The only documentary indication of any request by Mr Everall that there be some investigation of his position is in a letter from the council dated 9 October 2012 (3.127). This refers to two letters from him, which are not in evidence. They appear to have been discussed at a meeting held with Mr Everall on 28 September. It appears that Mr Everall had complained that social workers had not wanted David to be discharged from hospital to come back and live at Mr Everall's house; the writer says, somewhat equivocally, that she found no evidence of that in the case notes, though they did show that David had discharged himself against medical advice. The letter goes on to say:

"Secondly, you are concerned that WCC staff questioned David's capacity to make a will, however, I could find no evidence that these concerns emanated from WCC staff. Following the meeting between David's social worker, Stuart McColl, David and yourself on 24 July 2012 it is recorded that you had stated that David had made you a beneficiary in his will and that the psychiatrist Dr Doran had assessed and declared that he would have capacity to make this decision. Shortly afterwards, however, you reported to us that you were incensed by the minutes of a meeting obtained between David and his deputy Jon Lloyd on 19 June 2012 in which David's capacity to make a will was questioned. As a result of statements in these minutes, on 29^th July you asked to be investigated under 'POVA' in order to clear your name. In view of this the Social Worker contacted our Adult Protection Team. They advised that 'it was not clear from case [records] that Mr Poole's capacity to make changes to his will in this manner has been assessed. Given that he has a deputy for his finances it would be reasonable to consider his capacity to make significant financial gifts'.

Subsequently the Social Worker contacted David's financial deputy, Jon Lloyd, who confirmed that Dr Doran, psychiatrist, had assessed David as having mental capacity to decide who he wished to be beneficiary of his will. Consequently it has been decided that there are no other concerns regarding this matter for our department and this was agreed by all at the meeting on 28 September. "

69. Mr Everall's response was a long letter dated 12 October 2012 (3.129) in which he said "… Although it's complicated I feel it needs to be cleared up under POVA and I am complaining about the Deputy to both you and the OPG". He went on to give an extended list of complaints, including the fact that Mr Lloyd had told David "despite his wishes to the contrary" not to leave anything to Mr Everall in his will, questioned Mr Everall's "ethics regarding being named as a beneficiary" and that Mr Lloyd had said he would have to have David's capacity "checked again before he would release any information to me or allow David to make another will". He further complained about Mr Lloyd's conduct of David's finances, his questioning of the amount Mr Everall was being paid and his having expressed the view that Mr Everall should not be listed as David's next-of-kin.
70. These notes taken together in my view show that insofar as any concern was raised over the propriety of Mr Everall accepting a gift and David's will, it was raised either by social workers themselves or by Mr Lloyd and not by Mr Everall. The council however evidently did not consider that this raised any ethical or professional issue as far as it was concerned. Mr Everall's engagement with the Council was to complain that he thought social workers had been opposed to David's discharge from hospital, presumably because of the implication of criticism of Mr Everall's role, to express his outrage at the suggestion that social workers thought that David might not have the capacity to make a will leaving money to him, and to seek to engage the council, and an "advocate" appointed by it on David's behalf, to pursue Mr. Everall's grievances, presented as being David's, against Mr Lloyd.
71. Mr Everall also made a Data Protection Act subject request to Mr Lloyd's firm, in David's name, and on 10 November 2012 wrote a long email, in which he said he was replying with David's permission to correspondence sent to him (3.140) saying, amongst other things, that no further visit to take his instructions on a will would be necessary, that Mr Everall was not happy about having Mr Lloyd in his home again, that Mr Lloyd's request to meet David's advocate could not take place because David had instructed her not to talk to him and refusing himself to meet Mr Lloyd, concluding:

"I am sorry you have had years to sort out the mess you have caused; your last visit was supposed to address that; instead you cornered David when he was alone and vulnerable and told him a load of lies about me. You have bullied and lied about me; I don't want you in my house, neither does David."

72. Mr Everall wrote a letter dated 11 November 2012 in David's name to the firm complaining about Mr Lloyd (3.144) in which he said

"For a long time my friend Mark has been making complaints to you and the OPG about Jon Lloyd for both of us and asking you questions for information that he needs that may have stuff in it about me. He has always done this with my full permission… Mark has had my full permission to do anything like this for me since 1994…. I want to complain about you; about Jon Lloyd and about what he has said and done to me and Mark. I have told Social Services and my Advocate that I do not like him and that they are not to talk to him; and I would like a local solicitor to make my will."

73. Although Mr Everall maintains that this letter represents what David told him to write, it is not confined to David's own affairs but also pursues complaints on behalf Mr Everall, and I consider it more likely that once again it was something led by Mr Everall. It is correct that David did tell Ms Elt that she should not meet Mr Lloyd or Ms Cooper, but I think it is highly likely that this was driven by Mr Everall seeking to isolate David from them. Insofar as we have records of previous meetings between David and either Mr. Lloyd or Ms Cooper, although there are points at which he says there have been difficulties in his relationship with them, he does not in fact appear to have been in any difficulty in discussing any particular matter with them, and has never said to them himself that he wishes to have nothing more to do with them. Those sentiments emerge only in documents prepared by Mr Everall or in the instructions given to the advocate in circumstances in which the advocate was engaged to pursue an agenda that appears to have been either Mr Everall's or driven by him. When David met the advocate, it was either in the presence of Mr Everall when Mr Everall seems to have led the conversation, or immediately after Mr Everall had left the room in circumstances in which, in my view, there must be a real question whether the advocate made any sufficient effort to establish whether the concerns David was expressing were substantiated or were genuinely his own as opposed to matters that might have been planted in his mind by Mr Everall.
74. In the second half of November, Mr Everall took David for an extended holiday to Europe whilst work was done in Mr Everall's house to build a bathroom on the ground floor for David's use. Part of the purpose of the trip was said to be to investigate renting a property in Spain to which David would move with Mr Everall and his partner Mr Theron. Mr Lloyd agreed to pay from David's funds for the cost of the trip abroad but wanted to be provided with further information and some estimates of the cost before he would agree that David should pay for the alterations to Mr Everall's house. According to Mr Everall, during this trip he and Mr Theron discussed extensively David's wish to prepare a new will and the fact that he wished to leave most of his estate to Mr Everall. There are no notes of any such discussion, but Mr Everall says that it was on this basis that he later prepared the will that David signed.
75. In his letter of 10 December 2012, Mr Lloyd also said that he wanted to meet David himself in order to be satisfied as to David's capacity to make the data request and to discuss "a fundamental issue of David's willingness to engage with me" and ascertain his feelings about the building works, the plan to move abroad, the purchase of a car for use by Mr Everall and his partner and his financial affairs. He said, understandably, that he was troubled that David had apparently told his Advocate not to discuss anything with him, and that he thought that the Court of Protection Visitor would want to ascertain whether David had the capacity to give that instruction. He expressed the view that it should be the advocate, rather than Mr Everall who should "take up with me requests for information, complaints and so on." I have no doubt that this letter was written because Mr Lloyd felt that Mr Everall was inappropriately influencing David to detach himself from engagement with Mr. Lloyd.
76. On 13 December 2012, the Court Visitor visited David. A recording was made of this occasion, apparently without the knowledge of the Visitor. Mr Everall maintains that David made this recording himself, though I think it unlikely, since David said himself that he had only recently acquired the iPad used and apparently needed Mr. Everall to type letters for him, that he did so without at least the assistance of Mr Everall. Mr Everall prepared a transcript; it is somewhat difficult to follow because it is heavily interspersed with Mr Everall's own comments and interpretation. It has not however been contended that this transcript (or the others I will refer to below) does not accurately record what was said.
77. There was an opening session in which Mr Everall and Ms Scott were present. The Visitor attempted to speak to David, but it is apparent from the transcript that most of the responses came from Mr Everall. After a while, the Visitor asked to speak to David on his own. David confirmed to her that he was happy living with Mr Everall and wanted to remain there (3.178). The Visitor referred to a letter from Ms Elt saying that David wanted see details of his finances. She told him that Mr Lloyd was required by the court order appointing him to send accounts to the OPG who would consider them and raise any questions with him, but David was plainly not satisfied with that, and said he wanted to see "everything". He said to her "But why is it I do not get the money?... I should be entitled to more… I think I am entitled to more" and that he wanted to see the papers "to make sure they are all in order…[And] are not missing altogether; why can't I have it, why can't I add it up?... I want to know everything; where it is and how much is in there."
78. The visitor told David that the court order said he needed help to manage his finances unless he could show that he had the capacity to do so himself, and he insisted that he had that capacity. She said to him "You think that you would like to manage your own money?" And David said "yes" she then asked him whether he would do this on his own and he said "I would want to do it with Mark". She told him that he could not do this and he said "with Mark and the bank". He said that he had wanted to manage his own money for a long time and "Jon Lloyd is finished off; I could not talk to him; he would not listen", and later "If Jon thinks I can't manage I can ask for help". The Visitor asked who he would ask the help from and he said "the bank". She then said "but the bank would not pay your bills would they? Who would you get to pay your bills?" and David said "the bank… They would pay everything". The Visitor then said "somebody has to tell the bank to pay things… Would you need somebody to tell the bank what you wanted doing?" David responded "Mark". She asked him "are you saying that you want Mark to look after all your money for you?" And David said "no, I want Mark to help me, the other one is a pain in the arse". He went on to say that he thought he could manage his own money and he already did manage what was paid to him, which was at that time £160 per week.
79. It is certainly right that in this session David said in his own words that he wanted to have more information about his financial affairs. As a result, the Visitor recommended that Mr Lloyd should provide full copies of the accounts to David, which he subsequently did. She was plainly however not persuaded that there was any real prospect that David could show he had capacity to manage all of the £1 million or more of money held on his behalf because he was able to deal with the £160 per week that he was allowed in cash, or that it was appropriate for him to rely on the assistance of Mr Everall and his bank to manage his financial affairs in place of the professional Deputy.
80. There is also a transcript of a recording made when David was visited by two managers from the "Onside" advocacy service referred by the county council, evidently before Ms Elt was nominated as the advocate to act in the case. Mr Everall has again made a transcript of this. Although he said the meeting took place in 2013 that cannot have been the case because the referral was made in 2012 and Ms Elt had been appointed by December of that year. I assume that it must have been in about October or early November, since Ms Elt appears to have been in position by at least 10 November 2012.
81. The transcript begins with David saying to Mr Everall "can you tell them about Jon Lloyd now?". Mr Everall goes over the background to Mr Lloyd's appointment and then told the advocates that "we" had been complaining about Mr Lloyd since he became the deputy "in 2002 and we are sorting out a POVA complaint against him because of the way he has been with David… He has done nothing for Dave, he's provided no accounts…". In relation to the February 2012 will Mr Everall said that he had taken David to see Mr Lloyd and "David said he wanted to leave me some money… Jon Lloyd cornered him on his own and told him not to… Which upset you didn't it?" To which David responded "yes it did, not fair". He went on to complain that Mr Lloyd had "cornered" David at a meeting (evidently the meeting on 19 June) and asked him repeatedly whether he was happy living with Mr Everall and told him "Mark likes to shut people out". He said that "I immediately got in touch with social services and reported myself to them under their POVA policy… Because obviously if Jon Lloyd is saying to David that I'm putting undue influence on him then I need to get that sorted out…". He told them "the reason that I (sic) think we need an advocate is this conflict with Jon Lloyd". Throughout this section of the meeting, the discussion is all led by Mr Everall, although at various points he invites David to confirm what he has said, and David does so. As seen above, it was not case that Mr Everall had asked the county council to make any investigation into the extent of his influence over David; to the extent they did consider that it was either as a result of their own concern or at the invitation of Mr Lloyd and not Mr Everall.
82. The advocates then asked to see David on his own. They told him they would be able to support him if he had any difficulty with Mr Lloyd. It appears that David understood this, but he did not himself volunteer anything further about what he considered to be the difficulty with Mr Lloyd. They went on to discuss a will and said that they could support him with making a will to ensure that he was happy with everything. They asked him whether he wanted a solicitor and he said "no I don't have one, I want Mark". They asked him whether he had said he wanted to change his will and he said "yes I did" and they said they would make arrangements for somebody to come out and talk to him about it. David did not have any discussion with them about what he wanted to be in his will, nor did he repeat for himself what Mr Everall had said about Mr Lloyd telling him not to leave anything to Mr Everall.
83. No further assessment of testamentary capacity was made by any medical practitioner. David attended an outpatient appointment in the psychiatric clinic on 17 December 2012. The following day, the psychiatric clinic discharged him back to the care of his GP. According to Mr Everall, this was something initiated by the doctor at the outpatient appointment. That does not however appear to be the case; the discharge letter (3.103) to the GP indicates clearly that the discharge was made as a result of a subsequent specific request by Mr Everall himself. The doctor wrote:

"your above patient was seen in outpatients on 17 December 2012… Mark, the patient's carer also contact me on 18 December 2012 by telephone.

Has stopped tobacco and cannabis (June 12). Progressive medical condition (moderate cerebral atrophy), looked malnourished. No sign of mental illness. Please could you facilitate appropriate referrals for more specific input for his medical condition.

David's carer Mark telephoned today 18/12/12) to request that he would like David's care to be discharged back to GP. As there have not been acute mental health concerns in recent times, I am happy to discharge his care back to you."

84. Further, Mr. Everall told Mr. Lloyd (3.352) that "the subject of David's capacity was raised; the psychiatrist said he had no concerns regarding the matter…". There is however no mention of any such discussion in the discharge letter, unless it is implied by "no sign of mental illness".
85. At the same time, Mr Everall arranged to transfer David's care from the GP practice he had been with the many years in Pershore to another in Evesham. Mr Everall says, correctly no doubt, that the Evesham practice was closer to his home and more convenient for David to attend. The result however was that David ceased to be seen by the medical professionals most closely familiar with his mental health history.
86. According to Mr Everall, the preparation and execution of the December will took place over a short period. He said in his first witness statement (1.178) that David told him on 22 December 2012 that he wanted to make his will, which had been "roughed out" while they were in Spain the previous month. Mr Everall had suggested that David should use a local solicitor but David had insisted that he should sort it out himself, knowing that he and Mr Theron had recently made their own wills using an online service. David had told him, in front of Ms Scott, "the simple way he wanted to divide his estate… And to leave a note explaining to his half brothers why he was not leaving anything to them; I asked about the charities and his other relatives his reply was that they could all go f***themselves; he said he had only put them in because the deputy told him to."
87. Mr Everall had then gone upstairs and filled out forms using an online will making service and returned with the draft will and a letter of wishes. David had read this through "for about 15 minutes". Mr Everall said "I wasn't concerned about his capacity at all but I was concerned about the family and their reaction; that's when he said that like the meeting with the Court Visitor we should record it as audio on his iPad, which he did".
88. Mr Everall has also prepared a transcript of this recording; again it is not challenged for accuracy insofar as it sets out what was said, although it also includes a considerable amount of Mr Everall's own comments. The most relevant parts of it are as follows:

"ME:… We need to make sure that we get this right, so that I don't end up getting myself in a load of trouble…

This is what I drafted for you… [Mr Everall says that at this point he gave David the "wish list" which sets out what he wishes to happen if he became seriously ill. He does not say that gave David the draft will]… Do you want me to read it to you?

DP: Yes

ME: It's what we talked about yesterday. [He then reads some parts of the letter of wishes relating to treatment]

okay; the next bit was "I realise that I have not left any money to my family" right? "as they would not be able to handle it. Instead I've asked my friend Mark Everall to keep an eye on them and if he decides they need a bit of sensible help I'm sure he will do his best to help them; without giving them money." That's typical after seeing Darren

DP: Write it in

ME: What, that I saw Darren?

DP: Yes

ME: I can't, there's no point, the point is to keep the document… as simple as possible

So that's that.. And that's just about leaving your funeral arrangements to me "knowing he'll do the right thing and give me a proper sendoff, I won't be there so I don't care much"

DP: Too right… I won't be around

ME: All right, so that's the one thing… That isn't part of your will… But [it] goes in the envelope with your will

[at this point, Mr Everall says he gave David the draft will with the gift to him highlighted, although there is nothing on the transcript to confirm this]

ME: The will bit is just a perfectly simple thing that Bill and Jane can witness… Karen and I are the trustees and then if say I died or if Karen died then Bill from round the corner, Bill England, he would be the trustee so he would be the one who would sort out all the paperwork

So there's just me and Sue and then everything is just basic then.

DP: Can I give Bill and Jane something for doing it?

ME: Well … He can take expenses for sorting it out … You can't be a beneficiary and witness it, so we'll sort somebody out …

When you sign this it will get put in the same deposit thing as ours … So nobody can steal it or you can't lose it, because that's an important thing isn't it? …

We'll get it sorted; might not do it over Christmas, probably leave it till after Christmas . It all depends on whether I can find somebody that.. Because the two witnesses haven't got to be… I would rather that it was somebody that wasn't anything to do with the house or me or Karen or Russell or anybody because then it keeps everything out in the open

[there was then a discussion about other possible witnesses]

I want to make sure you're fit and well…

DP: I should think so: I want to do it

ME: Yes okay so we'll get it sorted out then, all right?

DP: Yes"

89. The letter of wishes (2.298) is signed by David and dated 22 December 2012, and begins "I have asked my friend Mark to write this down for me so that should I become seriously ill people will know what I want to happen to me." In the recorded conversation Mr Everall does not read the terms of the will itself to David, although he does read the part of the letter of wishes noting that nothing has been left to the family. I observe that the reference in that document to their "not being able to handle it" would be potentially appropriate to Sean and Darren themselves, but not to David's young nieces. There was no reference to the omission of the previous bequests to them, or to the charities.
90. Mr Everall says that during this conversation he showed David not only the will but a summary of it produced by the online service (2.302) which includes the statement (according to Mr Everall highlighted on the copy he showed David) "… Your residuary estate will be distributed in the following shares: 5% to your friend Susan White. 95% to your friend Mark Everall." If he did so, that is not apparent from the transcript itself. It is not even clear from anything that was said that David was in fact looking at the will document. The only reference to the terms of the will was Mr Everall saying the will was " perfectly simple" and "so there's just me and Sue and then everything is just basic then". As an explanation of the terms of the will, that was, to say the least, minimal. It seems more designed to suggest that David need not look at it closely than to ensure he thought about its terms.
91. According to Mr Everall, on Boxing Day 26 December, David had insisted that the will must be executed. As can be seen from the transcript, there had been some discussion of who might be able to witness it, but Mr Everall says that none of those discussed were, in the event, available. Instead, he went next door to Karen Scott's house where he met Janet Brown, a friend of Ms Scott's who was visiting her, and asked her and Ms Scott's partner Nargiz Alimova, to act as witnesses. The two of them came back to Mr Everall's house together, he showed David the will and the letter of wishes, David said he was happy with them and he then signed both documents in the presence of the witnesses, who then signed in each other's presence as witnesses.
92. Mr Lloyd was not told that the new will had been executed. The advocate, Ms Elt, had discussed with David before Christmas making arrangements for him to discuss with her what he wanted in a will and to see a solicitor to have it drawn up. She was away over Christmas herself, and when she came back, she said that David had told her that he had made a will, that he was happy that he had done so, but she did not ask him about, and he did not discuss with her, the content of the will. She does not appear to have been surprised or at all concerned that the will had been executed without discussion with her and without a solicitor being involved. In her evidence to me, she said that she was not at all surprised or concerned to learn that the will had been prepared by Mr Everall himself and left 95% of the estate to him. As Mr Burton said, that was a worrying approach for someone professionally engaged to represent David's interests.

The grounds of challenge: lack of due execution.

93. S9 Wills Act 1837, as amended, provides as follows:

"No will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either—

(i) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary."

94. Mr Burton accepts that where a will is on its face regular and appears to have been duly executed (and in particular where as in this case the attestation clause records that it has been executed in circumstances that would satisfy the requirements of section 9) it will be presumed that these formal requirements have been satisfied. He submits however that the presumption can be rebutted, and that on the evidence in this case I should find that the requirements were not complied with, specifically because the two witnesses were not both present at the same time when David signed the will on 26 December 2012.
95. The evidence relied on is as follows. When Mr Lloyd was notified that David had died, he arranged for a standing search in the Probate Registry and was notified of a grant of probate to Mr Everall. He looked at the will attached to it and was concerned that the terms of it were a radical departure from those previously executed by David and that it appeared to be a home-made will with no involvement of a solicitor or assessment of capacity. He contacted the charities who had been named in the previous will, one of which (Save the Children) instructed Ms Fiona Campbell-White, a solicitor at Wilsons LLP, to make enquiries on their behalf. She wrote to both witnesses in June 2013 asking for information about the circumstances of execution.
96. Ms Brown responded by telephone. She said that she had been visiting David when she was asked to witness the will. She was asked whether anyone else was in the room apart from herself and David and she said that the "other lady" had not been there. Ms Campbell White wrote a letter summarising the content of this conversation, which she sent to Ms Brown and asked to countersign and return. Ms Brown telephoned again and said that in fact Mr Everall could also have been in the room at the time, but confirmed in response to questions that there had been no one else. Ms Campbell White amended the letter she had drafted and sent that to Ms Brown. When she had not received it back, Ms Campbell White telephoned Ms Brown again and was told that the letter had been signed and was in the post, but she could not now remember whether Mr Everall had been present or not. Ms Campbell White asked her specifically whether the other witness had been present and Ms Brown said "no, no". A further amended copy of the confirmation letter was sent to Ms Brown, which in due course she did sign and return (2.58).
97. Ms Alimova responded by letter (2.32) in which she said that she had witnessed David's signature on the will "on 29.12.2012. David was in complete sound of mind". That date, of course, was three days after the date of execution according to Mr Everall. Mr Burton submits that these responses from the witness indicate that the two witnesses were not both present when David signed the will, and that Ms Brown must have signed 26 December, Ms Alimova not being present on that date but attending on her own three days later.
98. Subsequently however both witnesses wrote again to Ms Campbell-White. It is clear from what they said that they had by then spoken to Mr Everall and wished to amend what they had previously said. Both now said that in fact they had been present together on 26 December when both David and they had all signed the will in each other's presence. They later gave witness statements to that effect, and maintained that position under cross-examination before me. Mr Burton invites me however to disbelieve that testimony and find that the true position was as appears from their original responses to Ms Campbell-White.
99. Although the burden of proving due execution is formally on those propounding a will, the presumption that an apparently duly executed will is in fact in compliance with the requirements of formality is a very strong one and may be relied on to discharge that burden. In Sherrington v Sherrington [2005] EWCA Civ 326 and again in Channon v Perkins [2005] EWCA Civ 1808 the Court of Appeal cited the well-known passage from the judgment of Lord Penzance in Wright v Rogers (1869) LR 1 PD 678 at p. 682:

"The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed."

100. All these were cases in which the witnesses to the will, at trial, to a greater or lesser extent cast doubt as to whether it had been executed as stated in the attestation clause; saying either that they now could not remember the circumstances, or even that they had not signed as the will recorded them to have done. Nevertheless, it was held that the court could not accept that evidence as reliable in the face of their contemporaneous declaration set out in the attestation clause. In the present case, Mr. Burton seeks to go further, inviting me to find that although the witnesses now positively affirm the truth of the attestation clause, their testimony should be disbelieved and I should find because of their previous inconsistent statements that attestation is not proved.
101. Mr Burton is right to submit that the explanation of Ms Brown, in particular, for the apparent retraction of what she said to Ms Campbell White is hard to accept. She said that when answering Ms Campbell White's questions she had "assumed" that any solicitor would know that both witnesses had to be present at the same time and so not thought it necessary to state that that was the case. This explanation, it seems to me, cannot be reconciled with what she actually said to Ms Campbell White, whose evidence I entirely accept, that apart from herself, David and possibly Mr Everall, no one else, and specifically not "the other lady", had been present when David signed. Had there been any reliable positive evidence before me to the effect that the two witnesses had not been present at the same time, it is likely I would have found it more convincing than what Ms Brown said.
102. Ms Alimova said in her later letter to his Campbell White and in her evidence that she had become confused about the date because she was not at the time familiar with the English concept of Boxing Day, which does not exist in her country of origin. That explanation also makes no sense, since, at the time she wrote saying that she had witnessed the signature on 29 December Ms Campbell White had not made any reference to "Boxing Day"- her own letter (2.31) referred to execution on 26 December. It is however no doubt possible that Ms Alimova simply made an error when she wrote the date in her letter replying.
103. All the positive evidence before the court, both of the witnesses and of Mr Everall and Mr Theron, supports the position that both witnesses were present at the same time when David signed the will on 26 December. In the circumstances, whatever doubts I have about the credibility of some of those witnesses, it seems to me that it cannot be said that there is "the strongest" evidence against due execution, and so relying on the presumption of due execution, supported by that positive evidence for what it is worth, I am bound to find that the formalities of execution were complied with.

Capacity

104. The test of capacity to make a will is the one (familiar to lawyers, and I know also to Mr Everall) set out by Cockburn CJ in Banks v Goodfellow (1869-70) LR 5 QB 549 at 565. There are three aspects to it:

i) was the testator capable of understanding the nature of the act of making a will and its effects?

ii) was the testator capable of understanding the extent of the property of which he was disposing by making the will?

iii) was the testator able to comprehend and appreciate the "claims on his bounty". Such claims are not claims in the legal sense of entitlements, but matters such as family or moral obligations and expectations.

105. The onus is on those propounding a will to prove that the testator had capacity at the time he made it. Although in some circumstances capacity may be presumed, once any substantial doubt is raised by the pleadings or evidence, the court must be satisfied by positive evidence. That is so in this case; there plainly is a reasonable doubt as to capacity raised, for instance, by the evidence of David's history of brain injury, psychiatric illness and lack of capacity to manage his financial affairs. A person who is assessed as not having the capacity to manage his financial affairs does not of course necessarily lack testamentary capacity, but the issues are obviously related.
106. It is not necessary in every case that there should be a contemporaneous formal assessment by a qualified medical professional before the court can be satisfied. Such an assessment is of course important evidence where it exists, and the absence of one may no doubt, in the circumstances of a particular case, mean that the court cannot be satisfied by the other evidence that is available.
107. In the present case, there was a formal assessment by Dr Doran at the time of the February 2012 will, but not thereafter. In that assessment (2.251), Dr Doran said:

"I [considered] his ability to understand the nature and extent of his assets, to weigh up the possible routes of disposal of those assets after his death and to communicate his wishes. Although he did not have a clear idea what his wishes would be at the interview on 24 January, he certainly displayed for capacity to be able to do so had he chosen to express a wish.

Were there to be relapse of his psychiatric condition, namely bipolar affective disorder, his capacity may no longer persist for brief periods, but there is no sign that there is a relapse of his condition impending."

108. The doctor's opinion was, therefore, that David was likely to continue to have capacity except for any temporary periods in which it might be affected by a recurrence of his bipolar disorder. It is common ground that by this time David had not suffered a bipolar episode for some years, and there is no evidence that he did so thereafter. It is also common ground that his capacity might have been affected in the past by episodes of abuse of drugs, but these would also be temporary manifestations, and there is no indication that he was so affected at any time in 2012. The direct evidence of Mr Everall, Mr Theron and the witnesses to the will is that David was in his normal state of mind at the time of execution of the will.
109. Although David's physical health deteriorated in 2012, requiring his admission to hospital and an extended period of recovery thereafter, I was not shown any medical evidence that this had any impact on his ability to understand the matters relevant to testamentary capacity. Mr Lloyd's opinion was that David retained testamentary capacity. He took the view, as a prudent solicitor, that this should be confirmed by a suitable medical professional but I have no doubt that he expected that the result would be favourable. He took instructions from David on at least two occasions with a view to preparing a will, and sent Ms Cooper to discuss when David wished to make any changes to his will, without at the time apparently harbouring any doubts as to whether he would have capacity to do so. In his letter to Mr Everall of 10 December 2012 (3.148) while Mr Lloyd reiterated that he wanted to be satisfied that David had the capacity to make the Data Protection Act request that Mr Everall had put forward on his behalf, he made the point that capacity is issue specific and said "Although it was at one point questioned by the local authority I do not myself doubt that David has testamentary capacity which was again confirmed by Dr Doran earlier in the year".
110. It is right in my view to place weight on Mr Lloyd's opinion at the time. Although not a medical practitioner, he was an experienced solicitor and one with particular experience of David's condition, the previous assessments by doctors, and his current level of functioning. He had seen David relatively recently, and was in a position to assess whether his mental condition had deteriorated to the point where testamentary capacity would be in doubt.
111. I do not accept, as Mr Everall maintained, that David's mental capacity was entirely normal in all respects and that his only problem was a speech defect which made it difficult for him to communicate. There is no reason, apart from Mr Everall's assertion, to think that the original assessment of David's inability to manage his financial affairs was wrong, or that since that assessment was made David had recovered that capacity. He remained, as is clear from what the social workers, Ms Cooper and Mr Lloyd in particular said about him, a vulnerable person, prone to suggestibility and to being led by those close to him particularly in relation to dealing with his money, and someone who required careful discussion and reminder of relevant factors in order to be able to consider and express a view on significant financial matters. That in my view was amply shown by the notes of Mr Lloyd's discussions with him about making a will, in which he needed prompting about a number of things including, at various points, whether he wished to make a gift to Mr Everall. It was also apparent from the way that Mr Everall dealt with David; he laid considerable stress on the need for David's access to cash to be restricted and controlled (by himself) since David would otherwise spend it rashly on drugs or give it away to his brothers whenever they asked for money.
112. Mr Burton submitted that if David's capacity was such that he could only understand complex issues with careful explanation, I should find that in the absence of such an explanation his capacity to make the will that he did was not established. He points to a passage in the decision of Mr Nicholas Warren QC (as he then was) in Hoff v Atherton [2004] EWHC 177 (Ch) at paragraphs 252-3, in which the judge addresses, on the issue of testamentary capacity, whether a testator might be capable of understanding the relevant matters but only if they were explained to her. On the facts of that case, the issue did not arise because the judge held that the testator had been capable of understanding without any explanation. For myself, I think that any issue as to whether a testator required an explanation in order properly to understand the nature and effect of what he was doing is better considered under the heading of knowledge and approval rather than capacity. If the testator was capable of understanding the relevant matters, even if he could only do so if they were suitably explained to him at the time, in my view he is to be treated as having testamentary capacity. Whether in the circumstances of the case he in fact understood the nature and effect of what he was doing in the absence of an explanation appropriate to the level of his ability and the complexity of his affairs is a separate, and in my view logically subsequent, enquiry.
113. That is, I think, the way in which the matter was approached by the Court of Appeal in the same case: see the judgment of Chadwick LJ [2004] EWCA Civ 1554 at paragraphs 58-64.
114. I conclude that, although a formal assessment of capacity would have been desirable, taking the evidence as a whole and on the balance of probability I am satisfied that David did have capacity at the time he executed the December 2012 will.

Knowledge and approval

115. I turn then to the question of knowledge and approval. The court must be satisfied that at the time of execution David in fact understood what he was doing and the effects of the will, so that the will as executed truly represents his testamentary intentions. I do not doubt that David understood that he was executing a will. The question is whether he had a sufficient understanding of its contents and their effect so that it can be said truly to represent his freely formed intention.
116. In this respect, again the burden is on those propounding the will to prove knowledge and approval. There are cases in which knowledge and approval will be presumed, the classic one being where a testator of full capacity has the content of the will read over to him by an independent solicitor immediately before he executes it. That is of course not the case here. With no presumption that can be relied upon, Mr Everall must establish his case by positive evidence.
117. Furthermore, the nature and quality of the evidence that the court will require in order to be satisfied depends upon the circumstances of the case. There are many authorities to the effect that the court will be particularly cautious, and accordingly require particularly convincing evidence, in circumstances in which a will has been prepared by, or on the instructions of, a person who stands to benefit under it. Mr Burton referred me to a number of such authorities, starting with the classic statement of the law by Viscount Simonds in the decision of the House of Lords in Wintle v Nye [1959] 1 WLR 284. In that case, a will had been prepared by a solicitor on behalf of an elderly woman, under which the solicitor was appointed the sole executor and the majority of the estate was left to him. Viscount Simonds said (p 291):

"It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed. In the present case the circumstances were such as to impose on the respondent as heavy a burden as can well be imagined."

118. In that case, the evidence that the testatrix did understand and approve the terms of the will came, essentially, from the solicitor himself. It was held that the trial judge had not sufficiently directed the jury as to the cautious and sceptical approach they should take to such evidence, with the result that the jury verdict was set aside.
119. A similar issue had arisen in Fulton v Andrew (1875) LR 7 House of Lords 448. In that case, Lord Cairns LC said (p 461), approving the words of Baron Parke in the Privy Council case of Barry v Butlin:

"The rules of law according to which cases of this nature are to be decided do not admit of any dispute so far as they are necessary to the determination of the present appeal, and they have been acquiesced in on both sides. These rules are two: the first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."

120. In the same case Lord Hatherley emphasised that the jury had been perfectly entitled to reject evidence that the testator had known and approved the contents of the will, where that evidence came only from the persons who had prepared it in their own favour. He said (page 471):

" There is one rule which has always been laid down by the Courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, as these two persons undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator and that he was of sound mind and memory, and capable of comprehending it. But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction.

Now, how did these persons discharge this onus in the present case? They only discharged it by themselves giving evidence before the jury of the reading over of the will, and they were the only persons who did give that evidence. It would not have been difficult for them to have had other persons present when the reading over of the will took place; but that does not appear to have been done.

With all these circumstances attached to the will, it does appear to me, my Lords, that it was perfectly competent for the jurors, regard being had to all the circumstances of this case, to say, we are satisfied that the testator was in a condition to make such a disposition as he has made with reference to his friends and relatives, but we are not satisfied, having only the evidence of the persons interested, that the effect of the clause with regard to the gift of the residue was made clear to him…"

121. One has only to quote these words for it to become immediately obvious, in my judgment, that Mr Everall cannot satisfy the burden placed upon him. The vigilance of the court is plainly engaged by the circumstances in which a vulnerable and suggestible person such as David, whose capacity was impaired in significant respects, makes a will in which the great bulk of his estate is given to a person upon whom he has been dependent for his care in many aspects of his day-to-day life, when the terms of the will have been drafted by that same person and not apparently discussed with anyone else except the carer's partner. The concerns that would have to be assuaged are magnified when the terms of the will are such that previous gifts to members of his family and charities whose interests he had previously wished, over a long period, to advance are removed altogether and a gift in favour of the person he regarded as his own partner is reduced by half.
122. The evidence that David fully understood the terms of the will and that they genuinely represented his testamentary intentions comes only from Mr Everall himself. It is to be approached with caution because of its self-serving nature. Even taken at face value, it is slight. Mr Everall did not read over the terms of the will to David; on his own account he left David to read the document himself, perhaps with the assistance of a supplemental document summarising the main gifts, though that is not apparent from the transcript he produced. The extent of his explanation to David of the terms of that will was "so there's just me and Sue then and everything else is just basic". This did not draw David's attention to the extent of the actual gift in Mr Everall's favour. Further, given David's vulnerability to suggestion and his difficulties in recalling those whom he intended to benefit without being reminded of what he had previously said, I should not have been satisfied that he truly understood and intended terms of the will unless I was satisfied that it had been drawn to his attention that the will removed the gifts he had formerly specified to family and charities and reduced the gift to Susan White from 10% to 5%. The transcript gives some indication that he was aware that there was no gift to his brothers, but does not show that the removal of the gift to the nieces, or to charities was drawn to David's attention, or that he considered whether he really wished to reduce his gift to Susan from 10% to 5%.
123. As to all those matters, we have only Mr Everall's unsupported word that they had previously been discussed in conversations between Mr Everall, David and perhaps Mr Theron, who must also be treated as an interested party.
124. There are additional reasons to doubt the reliability of Mr Everall's evidence in his own favour. It is apparent from the facts that I have recorded above that Mr Everall was in the habit of stating to others, both orally and in documents prepared by him, what he said were David's words, wishes or intentions. It is right to say that to some extent David supported these assertions on occasions when Mr Everall was present. Even then he did not do so entirely, and on other occasions when his views and wishes were explored by persons independent of Mr Everall David's own words showed rather less correlation with Mr Everall's. There is in my judgment a substantial risk, to put it no higher, that Mr Everall sought to pursue his own interests, exploiting his relationship with and influence over David to make assertions on his behalf and persuade David to support them.
125. I am satisfied that Mr Everall used his relationship with David to isolate David from others, and that his motive in doing so appears to have been to prevent David from being exposed to the influence of those who were, or were perceived by him to be, opposed to or questioning of Mr Everall's actions. Mr Everall's response to what he perceived as criticising or calling into question what he had done seems to have been, on a number of occasions, to make accusations or complaints against those he regarded as opposed to him. He complained to the county council about social workers opposing David's discharge from hospital, when that discharge was against medical advice. He complained about the same social workers expressing doubts about David's testamentary capacity, when such doubts were plainly reasonable and when his motivation appeared to be to remove obstacles to making a will in his favour.
126. In particular Mr Everall reacted very badly to what he saw as Mr Lloyd's questioning of the amount he charged for services to David and the extent of his influence over David, and to Mr Lloyd's advising David against making large gifts in his will to Mr Everall. He was plainly not happy with Mr Lloyd's original engagement of a social worker to evaluate the services he provided. When Ms Cooper was appointed, in part to make a similar evaluation, he was obstructive about meeting her and antipathetic throughout to her involvement. It is true that David himself expressed the view that Ms Cooper was not an easy person to deal with, but that does not account for Mr Everall's degree of hostility and in any event may very well have been partly or wholly the product of Mr Everall's influence.
127. Mr Everall's campaign against Mr Lloyd was stepped up greatly when he discovered that David had made a will omitting any gift to himself. The allegations of financial irregularity against Mr Lloyd are all, in my judgment, very likely to have originated from Mr Everall. It is true that David appears to have asked for full copies of the accounts in relation to his affairs for some time, and that Mr Lloyd was reluctant to provide these accounts until instructed to do so by the Visitor. I have no doubt however that the reason the accounts were withheld was because Mr Lloyd was concerned that Mr Everall, and not David, would seek to raise issues about them when he had no proper standing to do so. Mr. Lloyd could not have been seeking to avoid proper scrutiny of his accounts, since they were provided regularly to the Court of Protection whose responsibility it was to carry out that review.
128. It was Mr Everall who persuaded the council to appoint an advocate, for the express purpose of pursuing what he said was David's agenda in relation to his finances, but which in my judgment is likely to have been mainly that of Mr Everall. Insofar as any specific allegations were made about those finances, they seem to have been made by the advocate based on her own analysis of the accounts (and not David's). These points were then taken up by Mr Everall. Extraordinarily, the advocate appears to have regarded it as her role to make these accusations, and to demand police involvement, without first making any request for comment or explanation from Mr Lloyd. I think it likely that she was either persuaded to do so by Mr Everall, or uncritically accepted what David said to her without considering the possibility that David may himself have been induced to make complaint by what Mr Everall said to him.
129. None of those allegations has been substantiated. Mr Everall misrepresented the weight of them by saying that they had been investigated by the council who had involved the police, when the only reason for such investigation was the fact of his own complaint and not any opinion that either the council or the police had formed as to the merit of the accusations he made. Insofar as any assumption can be made it must be that none of the authorities Mr Everall caused these accusations to be made to, the council the police and the Court of Protection have found any substance in the allegations.
130. The only allegation that was addressed to Mr. Lloyd in evidence was that he had failed to pursue a backdated payment from the council to cover Mr. Everall's own fees under s 117 Mental Health Act, resulting in a loss of many thousands of pounds to David's funds. Mr. Everall had no evidence in support of that and I find it is untrue. Mr. Lloyd did pursue and recover a full backdated payment for all the money the council could be liable for. The fact that there was a shortfall was because Mr. Everall's fees had substantially increased from the level the council itself had previously agreed to pay. That allegation by Mr. Everall was in my view likely to have been made so as wrongly to blame Mr. Lloyd for the fact that David was paying the additional amount to Mr. Everall from his own funds.
131. Further, I am satisfied that Mr Everall concocted a story that David had immediately expressed his dissatisfaction with the February will as soon as it had been made, and had taken steps to revoke it as soon as he could. In his witness statement (1.174) he said that David had "instantly revoked" the will in the car on the way home from the appointment at which he had signed it. In a separate note he made setting out his version of events (3.373) he said that David had complained in the car that the new will was not his work and did not reflect his wishes and that when the will arrived at the bungalow "he ripped it up and verbally revoked it with a string of expletives" and had later arrived at his house by taxi "clutching the ripped up will". However, his correspondence at the time, as set out above, is not consistent with David having stated that he wished to revoke the will or his having ripped it up, but at most indicates that David was considering, but had not decided upon, making changes to that will for several months afterwards. Mr. Everall had previously said (2.262) that David had come to his house by taxi with the will but, rather than it being ripped up, asking Mr. Everall to look after it. In his oral evidence, Mr Everall said that David had not in fact ripped up the will but had crumpled it up, thrown it in the bin and later retrieved it. There is no mention of that in the contemporary correspondence either.
132. The revocation argument emerged only much later after proceedings commenced. I am satisfied that it was a false account. It shows that Mr Everall was not above fabricating what David had said or done on occasions when no one independent was present, and did so for the purpose of promoting his own interests. I cannot be satisfied that he has not done the same in his account of the degree of David's consideration and understanding of the terms of the will he signed.
133. Further, after Mr Everall began to express, on David's behalf, dissatisfaction with the terms of the February will, there were opportunities for David to discuss directly with Mr Lloyd what his wishes were. When he did so, he certainly expressed a wish to leave something to Mr Everall and less to his brothers. He did not however give any indication that he wished to cut out all gifts to any members of his family and to charity, or to reduce the gift he wished to make to Sue White. In a telephone call, which may have been made while Mr. Everall was present, he said he wanted to leave 50% to him, but the figures he discussed when unaccompanied were much lower. Mr Lloyd followed his previous practice of carefully exploring with David what his wishes were and what his thoughts were in relation to all those he had previously wished to benefit. I am not satisfied that Mr Everall did the same and therefore cannot be satisfied that he ascertained David's true wishes.
134. Finally, at all times prior to the execution of the December will Mr Everall pursued matters on the footing that David would consult an alternative solicitor, and would involve his advocate in the appointment of such a solicitor and in giving instructions to him. There is no explanation of the failure to take either of the steps other than Mr Everall's own evidence of David's sudden wish to finalise everything over Christmas. It is concerning that this is said to have happened shortly after (a) social workers decided (and presumably told Mr. Everall) that they should not be concerned about a will with bequests to Mr. Everall and (b) Mr. Everall arranged for a change in the medical professionals with whom David had contact. Thereafter, Mr Everall at the very least took no steps to draw the attention of anyone else to the fact that a will had been made or its terms. The possible inference that he did not wish there to be any possibility of independent advice to David before he made his will, or enquiry afterwards into the circumstances that might lead to the will being reconsidered is a further reason to doubt the degree to which it represented David's true and settled intention.
135. For all these reasons, Mr Everall has failed to discharge the burden of showing that David knew and approved of the terms of the will, and there must be an order pronouncing against its validity.

Undue influence

136. I mention briefly the alternative arguments Mr Burton put in relation to undue influence and fraudulent calumny. Undue influence, he accepted, means in this context that execution of the will was produced by coercion. In contrast to the issue of knowledge and approval, the burden of establishing undue influence is on those opposing the will, i.e. the claimants, and not on Mr Everall as the propounder. Furthermore, although undue influence can be inferred from surrounding circumstances since there is rarely any direct evidence of it in the context in which a will comes to be executed, the circumstances must be such that the only inference from them is that the testator was coerced into making it. It is not sufficient that coercion is a possibility, or even the most likely explanation.
137. Such a finding presupposes that David did in fact know of and understand the terms of the will that he was making, but that his agreement to those terms was produced by coercion. I cannot be so satisfied in this case. It may well be that, if he understood what the words of the will meant, David was prepared to sign it because of the way those terms had been presented to him by Mr Everall, and possibly by his omission of reference to, or glossing over, other considerations such as the gifts he had previously wished to make so that David failed consider fully what his testamentary dispositions should be. That seems to me a more likely inference from the circumstances of this case than that he was coerced.
138. Lastly, fraudulent calumny (which was not pleaded) involves a finding that the testator has been given information about a beneficiary in circumstances in which that information is known to be false and is given with a view to poisoning the testator's mind against that beneficiary. Again, the onus of establishing that this was the case would fall on claimants. The submission was that Mr Everall had poisoned David's mind against his brothers by false statements about their conduct that had led to the initiation of the injunction proceedings. However, as I indicated above I do not accept that Mr Everall was responsible for an entirely false account leading to unjustified injunction proceedings. In any event, those proceedings were only against Sean, and they did not in fact poison David's mind against either brother since in the will he made at the same time as pursuing those proceedings he still included gifts to both of them.

Proof in solemn form of the February 2012 will

139. The claimants seek proof in solemn form of the February 2012 will. There is no challenge to the formalities of execution of that will, and I am satisfied by the evidence of Mr Lloyd of the careful steps he took to take instructions for it and to confirm that the terms of it represented David's wishes that he knew and approved of its contents. Mr Everall has suggested at a number of points that the omission of a gift to him was secured by undue influence on the part of Mr Lloyd, but I am satisfied this is not the case. Mr Lloyd advised David to consider carefully whether he ought to make any such gift, as a result of which David's instructions ultimately were that he was content to leave it out for the present on the basis that if he wished to do so later he could make an amendment. That was in my view proper advice for Mr Lloyd to give and the result of it was that David made his own decision and was not coerced into doing so. The fact that he later indicated that he wished to change his mind does not mean that his original decision was procured by coercion. Nor am I persuaded that there was coercion by the fact that Mr Everall later made such allegations either himself or by drawing up documents on David's behalf. To the extent that Mr Everall maintains any argument that David revoked the will by destroying it with the intention that it should be revoked, I reject it for the reasons given above.

Conclusion

140. There will be a declaration for the February will and against the December will. I will list a hearing at which this judgment will be handed down. Any matters arising may be dealt with on that occasion if they will require no more than 30 minutes. If there are such matters and longer than 30 minutes is required, the parties should contact my clerk with a proposed time estimate, agreed if possible, and dates of availability, and a hearing will be arranged.