England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
CARDIFF DISTRICT REGISTRY

		Cardiff and Civil and Family Justice Centre 2 Park Street, Cardiff CF10 1ET
		21/10/2016

HHJ JARMAN QC;

1. Around midday on 6 June 2014 Philip Hopkins executed his last will (the 2014 will) in the presence of a solicitor Christine Preece who had drawn it up. Miss Preece is and was a partner in the firm of Milwyn Jenkins Solicitors, the other partner being Nicholas Jones. She attended the home of Mr Hopkins with two members of the firm's staff who witnessed his signature. 10 days earlier he had discharged himself from hospital against medical advice after a two week stay suffering from unspecified alcoholic liver damage. During the execution of the will, Miss Preece observed that Mr Hopkins was physically unwell and a doctor was called. Later that day he was readmitted into hospital and diagnosed as having decompensated alcoholic liver damage. He was discharged 10 days later and advised not to drink alcohol. He continued to do so and his health further deteriorated. He was taken to hospital again by ambulance on 19 August, where he remained until he passed away on 8 September, four weeks before his 60^th birthday.
2. By the 2014 will he appointed the claimant, Gary Edkins and Nicholas Jones to be his executors and trustees. By clause 5 he gave to Mr Edkins, described as his friend, all his shares in Hopkins Steel Limited (the company) and any sums due from the company. By clause 6, he gave his wife Dorothy Hopkins all his interest in his flat at 18 Plas Maldwyn Ty Gwyn Raod Caersws Powys (the flat). By clause 9 he provided that his trustees should hold his residuary estate as to 75% for Mr Edkins, and as to 25% between the defendants in these proceedings, his wife and his three sons from a previous marriage, Richard, Alistair and Colin. I shall with respect but for ease of reference refer to them by their forenames. Richard and Colin filed witness statements and gave oral evidence, but Alistair did neither.
3. The estate has substantial assets, and has recently been valued for the purpose of these proceedings with a net worth of over £1 million. The most substantial asset is Mr Hopkins' 79% shareholding in the company, the value of which is put at £822,000 in that valuation. One share is owned by his son Richard. Mr Hopkins transferred 20 shares to his wife in 2013. The next significant asset is a villa (the villa) which Mr Hopkins had built in St Kitts in the Caribbean, valued at just under £700,000 according to the exchange rate at the date of death. The flat has been valued at £85,000 and there is a motor vehicle valued at £37,000. The biggest liability is a director's loan from the company in the sum of just over £423,000.
4. Mr Edkins seeks to prove the will in solemn form, Nicholas Jones having renounced his executorship. The defendants entered a caveat against such a step and now say that when he executed the 2014 will, Mr Hopkins did not have testamentary capacity, or that he did not know or approve of the contents of it, or that whilst he was in a vulnerable state Mr Edkins exercised undue influence upon him to make sure he inherited the bulk of the estate. The parties during these proceedings instructed consultant psychiatrists to give opinions on the issues of capacity and vulnerability. They did not examine Mr Hopkins of course, but they have read the GP and hospital records, the pleadings and witness statements made in these proceedings. They are agreed that on the balance of probabilities at the time of signing the 2014 will, Mr Hopkins understood the nature and effect of making the will, the nature of his property, and the competing claims on the estate. They also agree that in the weeks and months prior to the signing Mr Hopkins was vulnerable to pressure from others because he was physically impaired and dependent on others to buy alcohol.
5. It is common ground that whilst such expert evidence is important, so too is the evidence of lay witnesses who knew Mr Hopkins and observed him closely during the period leading up to the signing of the 2014 will, and the circumstances surrounding it. I shall set out in summary the background against which the 2014 will was signed.
6. Mr Hopkins had a business manufacturing cattle grids which was located in Newtown, Powys. Mr Edkins began working for him in 1990 and the two men became friends. They socialised with each other and with each other's families. By 1995 Mr Hopkin's first marriage had broken down. By then his oldest son Richard had left school and was living independently. His second son Alistair went to live with his mother whilst his younger son Colin remained living with his father.
7. In about 1998 Mr Hopkins started seeing the lady who was to become his second wife, then known as Dorothy Ralph, and shortly after she and her younger daughter from her previous marriage moved in with him and Colin in Newtown. She recalls the years which followed as happy and the couple often took holidays abroad with their respective youngest children.
8. By this time or shortly after, Richard had developed a habit of using heroin and other drugs and spent time in prison for possession. He and his younger brothers spent spells working in their father's business, which by then had been taken over by the company. Mr Hopkins owned 99 of the 100 issued shares and Richard owned the other one. The latter stopped working in the business in 2005 because of his drug problem, but continued to see his father regularly, who continued to support him emotionally and, on occasion, financially.
9. By this time Mr Hopkins had bought a building plot on St Kitts and was in the process of building the villa there, which was completed the following year. In order to fund this the house in Newtown was sold and the couple, who were both working, lived in rented accommodation for a time.
10. In the summer of 2006 Mr Hopkins gave instructions to a firm of solicitors in Welshpool to draw up a will. His instructions referred to use of drugs. Alistair too had drink and drug problems. He also told the solicitor that Richard and Alistair had not taken up an opportunity to work with him in the business and that he had reported Richard to the police in respect of theft of company funds.
11. The will which he executed on 29 June 2006 (the 2006 will) gave his principal residence and his interest in any pension provision to Dorothy Ralph. He further directed his son Richard to transfer to his executors his one share in the company and that he should take no benefit in any asset of the estate if he did not do so. The 2006 will included a request that Mr Edkins who had "worked well" with him for many years and Colin should take over the running of the company. Subject thereto he gave 7.5% of the profits of the company during their respective lifetimes to Richard and Alistair. He divided his shares in the company equally between Colin (subject in the case of Richard's share to the transfer) and Mr Edkins. The residuary estate was divided equally, subject to survival for 30 days, between his partner and sons.
12. In 2007 Mr Hopkins bought the flat, but the couple began to spend more time in the villa. In that year Colin started to work again in the business, but it was Mr Edkins who managed the business during the absence of Mr Hopkins. It was during these times in St Kitts when the latter started to drink and gamble more and eat less. In 2009 his son Colin moved to Glasgow to work but returned periodically to work for the company, until 2012 when there was some difficulty between him and other employees which caused problems in his relationship with his father. He ceased working, and his father supported him financially for a while, as he had done from time to time in the past. By this time, he had become addicted to heroin and was taking methadone as a substitute. He then moved to Glasgow where he continues to live.
13. In 2010 Mr Hopkins and his partner separated for a short while but reconciled and in 2012 decided to get married. In July 2012 Miss Preece drew up a prenuptial agreement which was signed by both. It provided that in the event of divorce the former would transfer the flat to the latter and pay off the mortgage, would pay her a lump sum of £15,000 and payments of £25,000 each year until her death or remarriage, but that all other assets should be retained by each. They were married shortly afterwards.
14. The relationship remained happy until December 2012 when the couple, as they had become accustomed to doing, went to the villa for Christmas. Mr Hopkins began to indulge in bouts of very heavy drinking and it was clear that this was impacting on his health. This led to arguments and Mrs Hopkins returned in January 2013 to live with her mother. Mr Hopkins was accompanied on his return later that month by Carl Moses, who was his gardener at the villa but had also became his good friend and who drank with him on occasion.
15. Mr Hopkins was not a domesticated person and Mr Moses cooked for him and washed his clothes. The two men returned to the villa the following month and Mr Hopkins came back to the UK alone in March 2013. It is Mrs Hopkins' case that from March 2013 she started spending more time at the flat and cooked cleaned and did the shopping. She says that they committed themselves to the marriage. In her oral evidence she modified this somewhat and accepted that after January 2013 she did not cook and clean or live with her husband "all the time." The latter was telling friends around this time that they had split up and there was no going back.
16. In September 2013 Mr Hopkins transferred 20 shares in the company to his wife after a meeting with Andrew Jones, the company accountant, of which there is an attendance note. That records that Mr Hopkins told Mr Jones that he proposed leaving 51% of the shares in the company to Mr Edkins to give him a controlling interest, adding that he did not want his sons to have control and he could not trust them to run it. He also said that he had given considerable thought as to the amount of shares to transfer to his wife and had decided that 20% was the appropriate amount as he did not want her to have a minority interest of 25% or more,
17. Mr Edkins said that Mr Hopkins told him later, in about April 2014, that he had transferred those shares with the agreement of his wife so that she would not divorce him. He was afraid that divorce would lead to the break of the company. However, Mr Jones in his oral evidence said that his recollection was that the reasons the shares were transferred was that such a transfer was tax efficient. I prefer this latter recollection.
18. Both Mr Moses in his oral evidence, and Phillip Ralph, the brother of Mrs Hopkins in his oral evidence, said that Mr Hopkins continued to love his wife and wanted her back. These two men were in my judgment impressive witnesses. The latter said that his sister did not go back to live with her husband but frequently visited. He recalled a conversation he had with Mr Hopkins, he thought in about November 2013. He said that his brother in law asked him to beg his sister to return to St Kitts with him, but this was something which he, Mr Ralph, did not want to do. His brother in law also said at this time that he wanted his wife to go back to live with him, and that he wanted to make a new will, and that Mr Edkins had suggested making a new will because of the separation.
19. This evidence that Mr Hopkins was living alone at this time chimes with that of Mr and Mrs Edkins, who said that at about this time they visited him and found the flat to be in a mess, with unopened letters and clothes all over the place. They cleaned up, and from then on, Mr Edkins took charge of the mail and the payment of bills.
20. In my judgment it is Mr Ralph's evidence in particular that is likely to be the most accurate recollection of the relationship between his sister and her husband throughout 2013. I accept his evidence in this regard and of the conversation he recalls with his brother in law, which is of some significance. It is likely that there remained an emotional bond between the couple, and that Mrs Hopkins visited her husband frequently and may have helped with some domestic chores such as shopping, but not that she moved back in with him.
21. In December 2013 Mr Hopkins went out to the villa alone and was looked after by Mr Moses. The latter said in his evidence that by this time Mr Hopkins' health was not too good and that he was not eating too well, but denied when put to him in cross examination that he was repeating himself or saying that the police were bugging the villa. By this time Mrs Hopkins had been diagnosed with cancer and Mr Moses said that her husband was worried about this and wanted to return to the UK to look after her and get the best doctors. The two men returned in January 2014 and Mr Moses cooked and cleaned for him. They went back to the villa for a few weeks between March and April 2014 and then both came back to the UK. Mr Hopkins fell at the airport in St Kitts and paramedics questioned his fitness to fly, but allowed him to do so. He was well enough to drive from the UK airport back to the flat, although he had forgotten where he had left his vehicle at the airport.
22. However, Mr Moses said that his health then further deteriorated and he relied upon Mr Moses to do everything in the flat. Mrs Hopkins would visit about three times a week during this period. She was undergoing chemotherapy and then radiotherapy about this time. He needed assistance to get to the toilet and a couple of times a week he would not make it and Mr Moses would clean up afterwards. I accept Mr Moses' evidence in this regard.
23. On 30 April 2014 Mr Hopkins fell in the flat and Mr Moses could not lift him so phoned his wife and Mr Edkins who came to assist. Mrs Hopkins phoned the surgery and spoke to Dr Singh. She reported that her husband's legs were swollen and he was struggling to stand or walk. He was unable to get to the surgery.
24. On 9 May 2014 Mr Hopkins had another fall and, Dr Singh made a home visit. Mr Edkins says that while Mrs Hopkins went to let the doctor on, her husband told him that he wanted to make a new will as the 2006 will had been revoked upon his marriage. However, Mr Moses who was present heard no such conversation and says he would have heard it had it taken place. On 12 May Mr Edkins telephoned Milwyn Jenkins Solicitors to cancel an appointment he had made for the next day, saying that Mr Hopkins was in hospital. It is unlikely he would have made the appointment after he knew that Mr Hopkins had fallen, and more likely that he did this before the fall on 9 May. In my judgment it is the recollection of Mr Moses which is more likely to be accurate on this point.
25. Mr Hopkins was admitted to hospital that day where he was found to be extremely vague and confused and incontinent. He stated that he was living with his wife. Over the next few days there were frequent references in the notes to his being confused, the last such references during this stay being on the 20 May when he was assessed as "slightly confused" and on 23 May when there is an entry saying that he presented as depressed and confused "at times."
26. On 21 May he declined input from the alcohol liaison service, saying that he knew what he needed to do and that he could handle it by himself. Both his wife and Mr Edkins visited him in hospital, and when the former visited on 23 May, he asked for self-discharge. He had been complaining that noise in the ward was keeping him awake and he wanted a better night's sleep. A capacity checklist was undertaken and he was assessed as having the capacity to make this decision. The clinical note continued "Family aware but would rather he stayed. No care at home but nurses have left message with social worker….Despite his background alcoholic liver disease when I asked direct questions he was able to respond appropriately and I have respected his decision to self-discharge." This he did two days later, against medical advice.
27. His wife drove him to the flat. Mr Moses was still there then, but left two days later to return to St Kitts. Mr Edkins was on holiday with his family but returned on the last weekend in May. He went to work on Monday 2 June and says that Mr Hopkins phoned him and asked him to arrange for Miss Preece to visit his flat, which he did. Miss Preece's attendance note of Mr Edkins' subsequent phone call is dated Tuesday 3 June 2014. As well as directions and contact details of Mr Edkins and his wife, the note contains the words "When he married his will was probably revoked- he is separated now- so this is urgent." The latter word was underlined twice. The appointment was made for 12.15 on 5 June.
28. About an hour before the appointed time, Mr Edkins sent an email to an estate agent in St Kitts asking for advice as to how to proceed to put the villa on the market. The reply suggest that he also had a telephone conversation with the agent that day. In his witness statement, he said that Mr Hopkins had asked him in June 2014 to make enquiries about selling the villa and obtaining a valuation. In his oral evidence he said he could not remember the phone call, and until he was taken to the emails, said that the exchange took place after the 2014 was signed.
29. Miss Preece attended alone and was let in the flat by Mr Edkins, who then left. He did not tell her about Mr Hopkin's illness or drinking, saying in his oral evidence that it was for her to decide whether he was too unwell. In her oral evidence she said that she found Mr Hopkins sitting in a chair. He looked unwell and a little jaundiced. She chatted to him for about one hour. She did not ask him questions specifically to test his capacity, but he gave cogent replies to her questions about the will and she had the impression that he had a very clear understanding of what he was doing. There was no indication that he had been drinking that day.
30. She made a handwritten attendance note from which she compiled a typewritten note when she returned to the office. Miss Preece accepted that in recounting the events of this time she relies heavily upon her notes, and I quote at some length from the former:

"Mr Edkins left flat-Mr Hopkins up in living room-said not been well had been in hospital-problem with liver-chatted-seems fine-very alert.

Client want to sort out his will-also think he needs a power of attorney for Gary to deal with financial matters.

WILL-Executors-friend Gary Raymond Edkins, and Nick Jones MJ as second exec.

Wife-Dorothy Jane Hopkins (Ralph)-has left him-separated-does visit but relationship not good.

3 children-Richard Philip Hopkins

Treowen

Newtown Mark Stephen Hopkins

No address Colin Stephen Hopkins

First wife-finances settled- no maintenance

Wife-Director of company? Has had gift of shares-pension.

Want to provide for friend Gary Edkins must have business assets (Hopkins Steel)

-mainly wants to leave everything to Gary

Sons-had provided for them in the past but not now-small gift-tried hard over the years especially with eldest boy to get him interested in the company but no use-relationship broken down-don't see them-washed hands of them.

-advised re possible claims-must make adequate provision for wife-says she can have 18 Plas Maldwyn-in his sole name + large mortgage-but client says there is a policy to pay this off if he dies-advised put it in will mortgage free-Mr Hopkins will not do so-says Gary must have all business assets and not much else left.

Most money in property in St Kitts-has made separate provision for this-wont discuss what-advised it could well fall in this will and made substantial difference to reside.

Agreed a residue clause of 75% to Gary Edkins and 25% between wife and sons equally-Mr Hopkins thinks wont be that much. I asked what if it includes St Kitts property-He said in that case provision was fine."

31. The note then indicates that Mr Hopkins wanted to provide for Mr Edkins and to let him sort it out with the family. Miss Preece told him that was not possible. So the percentage split was agreed and Miss Preece was given permission to contact his accountant Mr Jones. The note then records a discussion about a lasting power of attorney, with Mr Hopkins saying that he was often not well enough to deal with matters and that Mr Edkins was his friend who does everything for him. The effect of such a power was explained and Mr Hopkins said he had no problem with that in that he trusted him completely.
32. In the typed up note, Miss Preece added that Mr Hopkins had said that he thought the villa was worth about £3million. In her oral evidence she said that she thought the figure mentioned was £2-3million, but that she hand rounded it up. In the typewritten note she added that he did say that he would probably look at his will again in the future, but wanted something in place to make sure that Mr Edkins was provided for in case anything happened to him because of his ill health.
33. In relation to the error in relation to Alistair's name, Miss Preece said she thought Mr Hopkins might have said Martin (Alistair's middle name) and that she had misread her handwriting and put Mark in the will as drafted, but that he did say Stephen. When she left, Mr Edkins was sitting in his vehicle in the car park. Miss Preece sent an email to Mr Jones that afternoon, and there are notes of telephone conversations between the two that day and the next, during which Mr Jones indicated that Mr Hopkins had an overdrawn loan account with the company to the tune of £300,000. The shareholdings of the company were explained and Mr Jones indicated it would be better if Mr Edkins were made a director of the company. He thought the villa may be worth £2million and that inheritance tax would have to be paid.
34. On the next day Mr Edkins said he arrived at the flat just before noon to find Mr Hopkins in bed and not looking well. There was a bottle of gin by his bedside, and according to Mr Edkins, Mr Hopkins told him that he had driven to the village shop on 4 June to buy this. He agreed it was a foolish thing to do and said he would not do it again. In cross examination Mr Edkins agreed that he had started buying gin for Mr Hopkins but not until July, and that was on condition that Mr Hopkins would cut down his consumption. Mr Edkins added that on his return from holiday in early June he found strong lager in the fridge which had been bought by Mrs Hopkins. That evidence was consistent with his written statement. However, the statement of Mrs Edkins gives the impression that her husband bought gin on return from holiday when he found the strong lager. In cross examination she accepted that such was the clear impression in her statement and said that was wrong and that it was later on that her husband bought gin.
35. Mrs Hopkins admits that she bought gin for her husband prior to this time, but said that Mr Edkins also bought him gin as she saw bottles in the second bedroom at the flat which she had not bought.
36. Miss Preece and her colleagues were let into the flat by Mr Edkins, and was shown into the bedroom. Again, she made an attendance note. She does not recall seeing any gin. She asked Mr Edkins to leave the flat which he did. She found Mr Hopkins in bed not looking well and she asked if he was well enough to sign the will and he said that he did not feel particularly well but was anxious to get things done and thanked her for coming out so soon. He sat up on the side of the bed and Miss Preece read through the draft will and then passed it to him to read. He said it was fine, and she called her two colleagues in to witness his signature, which they did. Afterwards he said he would like the doctor called. Miss Preece phoned Mr Edkins and asked him to come back, and relayed this information to him before leaving. He phoned Mrs Hopkins who came to the flat and phoned the surgery. Neither Mr Edkins nor Mr Hopkins told her or any of his sons about the will at that time or indeed at any time before he passed away.
37. Dr Thompson arrived shortly after 3pm. He knew that Mr Hopkins had an alcohol problem and noticed the gin bottle. Mr Hopkins told him he had had three gins that day. He looked obviously unwell, pale and jaundiced, and it was his physical condition that was the focus of Dr Thompson, who remained with him for about 20 minutes. Dr Thompson found that he was capable of answering basic questions and had no recollection of his being heavily intoxicated. He was admitted to hospital and on the nursing assessment proforma the usual state of "confusion" was ticked, as was the description of living with spouse or partner. Some four days later he was diagnosed with decompensated alcoholic liver disease and acute alcoholic hepatitis. The next day the same hospital doctor assessed him as appearing to have capacity to refuse medication but requested a formal assessment as to capacity. By 14 June he did not appear to be confused and was assessed as ready for discharge. On 16 June he was discharged and advised not to drink alcohol. His wife came to pick him up.
38. However, by 14 July he was drinking again and had another fall. His wife called paramedics. A home visit on 9 August revealed that he was confused. On 19 August he fell again and was taken to hospital by ambulance. The hospital notes for the following days contain many references to confusion. By 26 August he was assessed as not having mental capacity to consent to an urgent procedure. His son Richard visited him on 3 September, having been told by Mrs Hopkins that he was ill. On 6 September he deteriorated significantly and passed away two days later in the presence of his wife, his son Richard and Mr and Mrs Edkins. The certified cause of death was pneumonia and decompensated alcoholic liver disease. Colin only found out on 4 September that his father was in hospital but was told by Mr Edkins not to contact him until he was better. When he took a turn for the worse, Colin made plans to travel from Glasgow to visit him, but his father died before he could do so.
39. There was no dispute before me as to principles of law to be applied. I was referred by counsel to a number of authorities. I shall deal firstly with capacity. The classic test has remained that set out in Banks v Goodfellow (1870) LR 11 EQ 472. It must be shown that Mr Hopkins at the time when he signed the 2014 will understood the nature of his act and its effects, understood and recollected the extent of his property, and understood the nature and the extent of the claims upon him both of those whom he included in his will and of those whom he excluded.
40. The principles as to the burden of proof as to such understanding were summarised by Briggs J, as he then was, in Key v Key [2010] WTLR 623 at [97], and cited by Morgan J in Cowderoy v Cranfield [2011] EWHC 1616 (Ch). While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity and in such a case the evidential burden shifts to the objector to raise a real doubt about capacity. If such a doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.
41. I must be cautious about putting too much weight on experts who did not see Mr Hopkins as opposed to the witnesses who did (see Blackman v Man [2008] WTLR 389 Burgess v Hawes [2013] WTLR 453). However even where those who cared for a testator and those who prepared and attended the execution of his will firmly believe that he had such capacity, where the will is in part irrational, a court may conclude on the facts that he had not. Such a finding was not disturbed on appeal in Sharp and Bryson v Adam [2006] EWCA Civ 449. Those witnesses who observed Mr Hopkins most closely at the time when he gave instructions for the 2014 will and signed it were Mr Edkins, Mrs Hopkins, Miss Preece and Dr Thompson.
42. In my judgment Mr Edkins displayed a tendency to play down the effects of alcohol and confusion which are so evident in the hospital records and which must, to an extent at least, have been apparent to a friend as close as he was. He said that he visited Mr Hopkins most weekdays. In respect of alcohol, Mr Edkins said in cross examination that he didn't think drink was a problem although he accepted that Mr Hopkins "liked a drink." As to confusion, he maintained even after being cross examined on the hospital records that Mr Hopkins was "mentally strong" until the day before he died and was not confused when he visited him in hospital. It is clear from the records that confusion was episodic. This is in keeping with the medical evidence, including that of Dr Lloyd-Jones on behalf of Mr Edkins that alcoholic liver disease can at times affect mental capacity although such capacity can wax and wane. In my judgment it is unlikely that Mr Edkins missed all episodes of confusion, and accordingly his evidence as to the mental state of Mr Hopkins at the time of signing the 2014 will should not be taken at face value.
43. Conversely, in her written evidence, Mrs Hopkins said then when she arrived at the flat on 6 June 2014 just after midday, she found her husband crawling on his hands on knees, talking nonsense and repeating himself. In solicitors' correspondence it was asserted on her behalf that her husband was sectioned in hospital after his initial admission, but that is not correct. She says that on that day she called either Dr Singh or Dr McVey and cannot recall whether it was one of those doctors who attended or Dr Thompson. The GP's notes for that day show telephone triage where mention is made of not eating, incontinence, jaundice, and then the words "mind ok, can hardly walk." In cross examination she confirmed it was she who spoke to the surgery that day, and that she may have handed the phone to her husband to report his symptoms, but she didn't know. If she did, that is inconsistent with her recollection of his mental state. If she did not, it is likely that it was she who said the words "mind ok" and she accepted, to her credit, that she might have done but added that she had no idea. In my view it is likely that she did, and her account of crawling and speaking nonsense, which did come across in a vivid way, related to his later hospital admission in August when it was Dr Singh who attended.
44. That triage note is more consistent with the evidence of Miss Preece, who has many years' experience of drafting wills and seeing to their execution. She was cross examined robustly but maintained that she was satisfied that Mr Hopkins had capacity. She accepted that in cases of doubt the golden rule is that such capacity should be assessed by a doctor prior to execution but said she did not feel that it that was necessary in this case. She accepted that she relied heavily upon her attendance notes, but those notes are very full. They show in my judgment that Mr Hopkins understood the nature of the act and its effects. He had made a will before, and understood that his marriage would have revoked his earlier will. He told Miss Preece of his illness and that he wanted to sort out his will, and distinguished this from a power of attorney which he said was needed for Mr Edkins to run his affairs when he was not well enough to do so.
45. They also show that Mr Hopkins understood the property which he was disposing. The main assets, namely his shares in the company, the villa and the flat are all referred to by him. Mr Jones on behalf of Mrs Hopkins, and Mr Evans on behalf of Mr Hopkins's sons, point to a number of factors which they submit show that he did not understand his property. First, his wish to leave everything to Mr Edkins and for the latter to sort it out with the family; second, the inflated valuation he gave of the villa and his wish to keep this out of his will; third, the belief that the mortgage on the flat had protection, and finally, the fact that there was no mention of the director's loan.
46. Morgan J in Cowderoy cited passages in Banks which in turns drew upon US authorities which make clear that the test is not one of degree of memory, which may be impaired by disease, and a testator who forgets family names may nevertheless have a disposing memory. Most of the points relied upon on behalf of the defendants relate to degree of memory. Miss Preece gave advice on the proposal that Mr Edkins should sort out matters with the family and upon the issue of whether the villa came within the estate, and Mr Hopkins responded appropriately. He referred to the transfers of shares to his wife, and a pension provision which he had made separately and which has been paid directly to her. Although he was mistaken as to mortgage protection in respect of the flat, the provision he ultimately agreed was to leave the flat to his wife free of mortgage.
47. He gave permission for Miss Preece to contact Mr Jones, who gave a similar assessment of the value of the villa, as well as details of the loan account. He clarified in evidence that Mr Hopkins had not taken a salary that year, and that an annual dividend was usually voted in September each year which was credited to the loan account. In 2013 the dividend had been £120,000 and as at June no dividend had then been voted for 2014.
48. None of these points are sufficient in my judgment to outweigh the overall impression which is gained from Miss Preece's notes that there was a sufficient understanding by Mr Hopkins of his property.
49. I am also satisfied that Mr Hopkins had a sufficient understanding of the nature and extent of the claims upon his estate. Unlike the facts in Sharp, it is not suggested that anyone who had such a claim was left out, or that someone who did not was included. His ex-wife was left out but a rational explanation was given for that. As Mr Willetts for Mr Edkins points out, there is a pattern of consistency between the 2006 will, the prenuptial agreement and the provisions of the 2014 will. What changes there are can be explained by change of circumstance. In the 2006 will Mr Edkins was to share the bulk of the shares in the company with Colin, but since then the latter had stopped working in the business and moved to Glasgow. On the other hand, Mr Edkins had played an increasing part in running the business from 2012 during his boss's absence and subsequent illness which resulted in substantial dividends in six figures each year, whereas Mr Edkins remained on an annual salary of between £32,000 to £36,000 without a significant increase in his salary of £30,000 odd. The provision for him in the 2014 will was consistent with what Mr Hopkins was telling friends who gave evidence such as Hayden Harris and Gareth Griffiths in the year or two beforehand, albeit causally, that he wanted to leave the business to Mr Edkins.
50. The 2014 will provided the flat for Mrs Hopkins, in circumstances where a shareholding which now appears to be worth over £200,000 had been transferred to her in 2013 and a substantial pension provision was nominated for her. Over £250,000 has been paid to her as a result of that nomination. The indication of Mr Hopkins to Miss Preece that his wife visited but the relationship was not good, was a rational perception of the relationship and provides a rational explanation as why greater provision was not made. So too was his perception of his relationships with his sons, and the reasons which he gave for limiting their share of his estate was also rational. Again, this is consistent with what he was telling others when he was still attending the business in 2013, such as an employee Paul Gee. Although a mistake in the name of one of his sons is a marked lapse of memory, mistakes as to where they lived at that time are not so marked in view of the increasing distance in his relationships with his sons. These are not such in my judgment as to justify a finding of lack of capacity when otherwise the will is rational.
51. In my judgment despite his physical very poor health and episodes of confusion and memory lapse, Mr Hopkins had sufficient testamentary capacity when he gave instructions to Miss Preece on 5 June and when he executed the 2014 will on 6 June. Accordingly, the alternative submission of Mr Willetts, that providing there was capacity on the former occasion, that is sufficient if the will as executed follows those instructions, as in Perrins v Holland [2011] 2 WLR 1086, does not arise.
52. In Cowderoy, Morgan J dealt with the concept of knowledge and approval at paragraph 139 as follows:

"Traditionally, the courts have adopted a two stage approach to the evidence where knowledge and approval is in issue. The first stage was to ask whether the circumstances were such as to 'excite suspicion' on the part of the court. If so, the burden was on the propounder of the will to establish that the testator knew and approved the contents of the will. If the circumstances did not 'excite suspicion', then the court presumed knowledge and approval in the case of a will which had been duly executed by a testator who had testamentary capacity. It was pointed out in Gill v RSPCA [2010] EWCA Civ 1430, that it may sometimes not be necessary, or even helpful, to adopt this two stage approach. In a case, like the present, where the court has heard detailed evidence as to the character and state of mind and the wishes of the testator, it might be more appropriate to answer the ultimate question, which is whether the testator knew and approved of the contents of the will, that is whether the testator understood what he was doing and its effects: see at [21]-[22],[64]."

53. I accept the evidence of Miss Preece that on 6 June she read out the contents of the draft will and handed it to Mr Hopkins to have a look at, and he said that it was fine. In my judgment, this is a case where I have heard detailed evidence as to his character and his state of mind and his wishes and have made the findings which I have. In those circumstances I am also satisfied that he understood what he was doing and its effects. If the traditional approach is the more apt, then I would consider that all the circumstances, such as Mr Hopkins' very poor physical health, the episodes of confusion and lapse of memory, the dependence on alcohol and those buying it for him, and the fact that it was Mr Edkins who inherits the bulk of the estate who made all the arrangements for its execution, do excite suspicion. However, I would also hold that I am satisfied that Mr Hopkins knew and approved the contents of the 2014 will.
54. It does not follow from that finding that he executed it without undue influence on the part of Mr Edkins. There is rarely direct evidence of such influence and more usually it is established by inference from all the circumstances, which was the conclusion of Mann J in Schrader v Schrader [2013] EWHC 466 (Ch). He in turn referred to a summary of the law on undue influence by Lewison J, as he then was, in Edwards v Edwards [2007] WTLR 1387 as follows:

"i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii) Whether undue influence has procured the execution of a will is therefore a question of fact;

iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps, no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud;

v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A 'drip drip' approach may be highly effective in sapping the will;

…

ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent."

55. The most striking factor in my judgment in the present case is that in the weeks leading up to the execution of the 2014 will, Mr Hopkins was very vulnerable both physically and mentally. It is not in dispute that he was by nature a determined person who knew his own mind, and that there were occasional flashes of such determination even when in hospital. The records show many instances of his refusing bed baths and assessments and advice, and of course he self-discharged against advice just days before signing the 2014 will. Even as late as August when the business of the company came up during a hospital visit he said that he was still the boss. Nevertheless, he was very ill and at times very confused.
56. The second striking feature is that he after he self-discharged, he was reliant for his physical needs upon his wife and Mr Edkins. It is not in dispute that by this time he was eating very little, and that also is apparent from the hospital records. He was also reliant upon them to bring alcohol. The latter to her credit accepted that she did so after her husband self-discharged in May. Her evidence about seeing other bottles in the flat rang true. That, coupled with the clear impression in Mrs Edkins' statement that her husband bought gin for Mr Hopkins the day after they returned from holiday, leads me to conclude that it is likely that Mr Edkins did so on that day. It is important to bear in mind, however, that it was not just Mr Edkins upon whom Mr Hopkins was reliant in such ways at this time, but also his wife, albeit that he perceived his relationship with the latter as not good.
57. The third striking feature is the level of control which Mr Edkins had over Mr Hopkins at this time. He was running the business but also taking care of personal mail and payment of bills and making appointments with the solicitors. Mrs Hopkins remained next of kin so far as the medics were concerned, as indeed she was. However, she gave oral evidence that Mr Edkins was keen to accompany her on her visits to her husband at this time and did not like her going on her own. She added that she was sure he was not a bad person other than what was "happening here." This in my judgment gives credence to her evidence in this regard. Her brother gave evidence in support. Moreover, her evidence has support from Richard and Colin who both say they felt that Mr Edkins was controlling information regarding their father's health. Mr Edkins ultimately accepted in cross examination, albeit reluctantly, that his buying alcohol for Mr Hopkins after he came out of hospital but attempting to monitor the amount he was consuming amounted to an element of control.
58. There is objective evidence too of the extent to which he was exercising control at this time. He was reticent in giving his evidence about his efforts to sell the villa. Mrs Hopkins said that he had asked her should the villa be sold as it was costing so much to run. She inquired had he asked her husband and he replied that he had not. She said that her husband would not have agreed to sell and that he wanted to be buried there. That has some support from Mr Moses who said that after he returned to St Kitts in May 2014 he telephoned Mr Hopkins on a number of occasions and he was always in good spirits and was longing to get better so he could return to St Kitts. It is likely in my judgment that it was Mr Edkins who took the initiative in the email exchange and phone call about the villa on 5 June. I accept that Mr Hopkins may have become aware of it, because Mrs Edkins, who is an affiliated accountant, says that on one visit to the hospital shortly before he died he asked her about the tax implications of selling the villa, and she said he would have to ask his own accountant. By this time, it is likely that his hopes of returning to the villa were fast fading.
59. Another matter upon which Mr Edkins was reticent in giving evidence related to the fact that he set up a company called Hopkins Cattle Grids Limited with himself as sole director and shareholder whilst Mr Hopkins was in hospital. He did so, he said, on his boss's instruction to protect the name in case competitors used it, and there was concern about loss of work to competitors. This was not done through Mr Jones, who was unaware of such concerns, as were employees of the company called as witnesses. Indeed, Mrs Hopkins gave evidence that Mr Edkins had on occasion threatened to leave the company and Colin said that he had seen him selling cattle grids behind his father's back on a number of occasions, and had told his father about it. The setting up of this company, which has remained dormant, was done instead through a firm of accountants at which Mrs Edkins worked, they say to save costs. No documents have been disclosed in relation to it and it was not mentioned in the statement of Mr or Mrs Edkins, other than by reference to the pleadings in the former.
60. Mrs Edkins gave evidence that a company was often set up in this way to protect a name, and it was the manufacture of cattle grids which was the main business. Some support for this practice was given by Mr Jones who said that he had advised clients to form another company with a similar name, to stop others using that name, and to leave it dormant. However, Mr Jones was not made aware of this second company until after Mr Hopkins' death. Moreover, the sole director was Mr Edkins, whose evidence was that Mr Hopkins was aware of this and said it would be sorted out when he was better. Mr Jones said he was slightly concerned when he found out about it. In my judgment the reason given by Mr Edkins why he was the sole director did not have the ring of truth about it. In my judgment it is more likely that he wanted to protect his position in the event that his boss died without making provision which protected him in the business.
61. His evidence as to his knowledge of the 2006 will was also unsatisfactory. In his statement he said he had no knowledge of the existence or contents of that will at the time. He said he only found out about the contents of the 2006 will at the end of July 2014 when Mr Hopkins told him that he was going to leave all of the business to him and wanted the name Hopkins to live on in the business. When he was cross examined he initially said that he found out about the 2006 will after Mr Hopkins died and that he did not know about it before hand. Later on in his evidence he said that Mr Hopkins had told him in April 2014, just before he went into hospital the first time, about a will which had been revoked by his marriage, and that his earlier evidence about finding out related to the contents and not the existence of the 2006 will.
62. However, such control should be assessed in the context that it is clear that Mr Hopkins placed a great deal of trust in Mr Hopkins and had done so for some years leading up to June 2014. He acknowledged such trust to Miss Preece and to others, and to her credit Mrs Hopkins accepted in her oral evidence that her husband did have such trust. In my judgment a significant level of this control was given by Mr Hopkins, and not taken by Mr Edkins.
63. Drawing all these strands together, in my judgment it is a safe and proper inference that at the time of signing the 2014 will, Mr Hopkins was more vulnerable, physically and mentally, and Mr Edkins was more in control over him, than he was prepared to admit. It is likely that Mr Edkins knew before that time that Mr Hopkins wanted to leave him his business, although he may not have known anything more than that, and was concerned to take steps to ensure that a will would be drawn up to the effect. I have found that Mr Edkins had suggested to Mr Hopkins as far back as late 2013 that he should make a new will. It is likely that he knew then that Mr Hopkins wanted to leave him the business and that is why when the latter's health deteriorated in April 2014 he made the first appointment with Miss Preece. It is also likely in my judgment that the emphasis on the urgency of the situation in her attendance note of 3 June came from him. It is clear from the later notes that Mr Hopkins wanted to sort his will out, and he had told Mr Ralph in 2013 that he wanted to make a new will, but in my judgment Mr Edkins realised the urgency in his own interest and was keen to emphasise it.
64. It is not a far jump from those findings to an inference that such was the control by Mr Edkins over Mr Hopkins in his very vulnerable state that his free volition was overpowered, by a "drip drip" approach or otherwise. I have come to the conclusion however, that such a jump on the facts of this case is a step too far. Again, in this regard, the evidence of Mr Ralph and Miss Preece is highly relevant. His instructions are at least as consistent with a continuing desire to leave the bulk of his estate to a friend and business colleague whom he trusted and who had kept the business going in his absence for some time. It is clear on all of the evidence that for some years he had wanted that business to continue in that name after his death, and that although his sons had been given opportunities in the business Mr Edkins looked the best prospect of fulfilling that wish.
65. The provisions made for his wife and sons were considered and reasoned in the circumstances of the strained relationship which he justifiably felt that he had with them at the time, even though that meant that the bulk of the residuary estate, which he was advised may include the villa, went not to them but to Mr Edkins. The issue of whether he was happy with that was expressly dealt with and he indicated that was fine. The way in which the claims of his wife and sons was dealt with is inconsistent with the allegation that his free volition had been overpowered by Mr Edkins. Notwithstanding my findings as to the unsatisfactory nature of the evidence of Mr Edkins in several important respects, I am satisfied that in making the provisions he did in the 2014 will Mr Hopkins acted as a free agent. It is likely that he did so with the encouragement or even persuasion of Mr Edkins, but I am satisfied that that did not cross the line so as to rob him of his judgment.
66. I have not referred here to all the evidence, either written or oral, which I heard or read, nor to every submission that was made, but only to those which in my judgment assist in the determination of the issues before me. Other witnesses spoke of conversations and incidents which were more remote in time, both before and after the making of the 2014 will, or at best peripheral to it, although no doubt of importance to the parties. There was little cross examination of some of these witness and it was difficult to see in some cases why the witness needed to be called. I have focused upon that evidence which in my judgment impacted in a probative way upon Mr Hopkins' state of mind on the 5 and 6 June 2014. In doing so I am satisfied that the 2014 is a valid will.
67. Accordingly, the claim succeeds and the counterclaim fails. Counsel helpfully indicated that after judgment, they would attempt to agree a minute of order and file written submissions on any consequential matter which could not be agree, which I would then determine on the basis of written submissions. These should be filed within 7 days of handing down.