BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
In the Estate of Mary Barbara Wadge deceased (Probate)
2 Park Street, Cardiff, CF10 1ET |
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B e f o r e :
sitting as a Judge of the High Court
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CAROLYNE MARY PARFITT |
Claimant |
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- and - |
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(1) VICTORIA JANE JONES (2) SVETLANA WILKES (as the personal representative of James David Wilkes deceased) |
Defendants |
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Phillip Morris (instructed by Jacklyn Dawson) for the First Defendant
The Second Defendant in person
Hearing dates: 4, 5 and 6 June 2025
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Crown Copyright ©
Judge Keyser KC :
Introduction
1) A factual narrative
2) Discussion of testamentary capacity
3) Discussion of undue influence
4) Discussion of want of knowledge and approval
5) Conclusion.
Facts
Matters before the Will
"I had hoped that you could at least stay neutral when it came to the crunch. No chance! You have on several occasions tried to tell me that I have possibly made a mistake - how dare you! Only two people know what really happened in Roger's parents shed, me and Roger. NOT Carolyne, because she wasn't there. She only believes what Roger has told her. We all know first hand what a liar Roger is yet you, my own mother are 'not sure'. You obviously think that I am capable of deceiving people just like Roger is. All my adult life, I have never hurt anyone in that way but, you favour Carolyne over me to such an extent that you cannot accept that she is wrong and I am right. You should have been steadfastly behind me. …
[Y]ou are totally incapable of telling Carolyne that she was in the wrong about anything[;] for over a year now you have sat on the fence. I suspected you were telling Carolyne one thing and me another for a long time but hoped I was wrong, until we talked at your garden gate the other evening when you confirmed the worst. I have tried very hard to ignore what you have said, so that we may just get on together I have found this impossible. You have made me no longer trust you – it's hardly surprising. …
It is bad enough trying to cope with the loss of my sister and now through your disloyalty I have lost the feelings a daughter should have for her mother. I expect you will think this letter is me being dramatic, as has always been your attitude towards me. To tell the truth, it has gone so far, I no longer care what you think anymore. Though the main reasons I have put all this in a letter is so that you cannot let it go in one ear and out the other ear. You can take your time reading it and even re-reading it. Neither can you disfigure or mistake what I have said to you. The outcome of this, is that I can no longer be sociable in your company and would be grateful if you can remember that, when you come to visit it's for the children not me. This letter is not a ploy to try and force any maternal instincts out of you towards me. What's done is done and I really don't think that there is anything you could say or do that you ever change my feelings.
from Vicky"
"… To tell you all my worries would have reams of paper and I have not wish to slump my problems on you. Briefly my problem is Vicki. It all stems from jealousy over Carolyne. [She sets out Carolyne's marital problems and Vicky's allegation and continues:] It hurt Carolyne that Vicki could even bring it up at such a time. Anyway, thro' all the lies Roger has told on this occasion Carolyne believes Roger so for more than a year Carolyne and Vicki have had nothing to do with each other. Because I continued to visit Carolyne, Vicki wants nothing to do with me. As I can't honestly say I believe the accusation she made, after all only she and Roger know for sure. Vicki has moved even closer to me but I don't see the children or her, twice I have met Matthew in the road and once Ian [Vicky's husband] brought them. It's breaking my heart, I think of the pain and anger Vicki is suffering and I can do nothing about it. She wrote me a letter the contents have devastated me. I just feel like nothing a worthless, helpless creature. I am here to be used and abused by Vicki, no love or maternal feelings come into it. Thank God I have Ron & Carolyne. James is lovely but I rarely hear from him. … This with Vicki is tearing me apart."
"Went to see V 11am. Shouted at me from the time she opened the door. Why didn't I ring. All my fault. Walked away absolutely stunned. Terrible day we should have rang her and gone to see her the day she came out of hospital. Even tho' we weren't informed."
On the other hand, Ian's evidence is rather different. He says that he rang to tell Mary and Ron of Rosita's birth on the late evening of the same day, and that when Mary said she would visit at the hospital on the following day he told her not to do so but to visit at the house instead, as Vicky and Rosita would be coming home around lunchtime; and that Mary did not visit for two weeks and then said, wrongly, that Ian had told her not to come. He says (statement, paragraph 8): "Once we got passed this misunderstanding Vicky would regularly visit her Mum and Dad." This is all eleven years before the making of the Will and I am not concerned with the details of what happened. I think it most likely that there was some genuine misunderstanding. However, I also think that the problem was not so easily resolved as Ian suggests and that the incident further harmed the already damaged relationship between Mary and Vicky.
"Almost a year since the current crisis with Vicky and Ian. Cleverly manipulated, there isn't going to be any change, the baby is beautiful and I have never held her. How cruel of Vicky and him, how cruel to the boys."
Entries in September 1998 write of how the situation was "tearing at my heart not seeing the children", and of Mary's "useless feeling of being hated by my own daughter". I need not refer here to the other entries. A letter to Mary's GP from the Practice Counsellor on 1 July 1998 records that Mary had been referred in September 1997, having already been seen two years previously, and continues: "Her problem remains much the same with regard to her relationship with one of her daughters and the effects of this on the extended family." In a statement made in Court of Protection proceedings in 2015, Carolyne stated that Mary "had not had any contact with Vicky's youngest child". That is certainly not literally true. However, I do find that Mary did not see Rosita for several months after her birth and that contact with Vicky's children in the following years was quite limited, particularly when one bears in mind that Mary and Vicky lived within about 200 yards of each other. I also find that in the years after Rosita's birth there was no real relationship between Mary and Vicky, the latter's contact with her mother being restricted to providing some minimal contact with the grandchildren. Vicky claims that she had a generally close and normal relationship with her mother, though she kept this from Carolyne, who would get angry with Mary for seeing Vicky. I do not accept that evidence.
- On 7 February 2001 Mary's GP referred her to the Practice Counsellor "for one or two sessions regarding her relationship breakdown with her daughter."
- On 2 April 2001 the Practice Counsellor recorded: "The situation was as before, with much painful rumination about not being able to see her grandchildren."
- In a diary entry on 13 January 2003, Mary wrote: "Very unhappy day. Can't take in the hatred Vicky must feel for me. How can anyone dislike a mother as much."
- A GP note on 14 January 2003 records: "Depressed, estranged from daughter and granddaughter, generally very negative about everything and everyone today."
- A GP note on 13 February 2004 records: "H/O [History of] depression … estranged from daughter."
- In a diary entry on 15 January 2005—a fortnight after she had undergone a mastectomy—Mary wrote: "Rose [Mary's sister] told me not to bother myself with Vicky anymore. I told Carolyne when she rang. I also asked Car if she was still seeing Vicky and she said it was more on V side than hers and that V never mentions me at all. V does know what she is doing and poor Carolyne can't see it. V is a very happy satisfied girl having hurt me yet again. And why my darling Carolyne can't see it is beyond me."
- In a diary entry on 31 January 2005 Mary wrote: "Lazy day, feeling very down. Thought a lot of the children and Vicky, so very sad. Seeing the children would help me so much now. She's not a good mother depriving her children of our love. Joan came, I broke my heart to her." When cross-examined regarding this entry, Vicky said that she had not been taking the children to see Mary because she herself was ill with breast cancer. She said that she supposed she could have asked her husband to take them to see Mary, but that he was busy looking after her.
- A diary entry on 14 May 2005 records a fleeting encounter with one of Vicky's children, which she seems to have perceived (whether rightly or wrongly) as a brush-off. The entry concludes: "[I]t was as tho' I had been hit by a hammer, so hurtful what she has told her children."
"I would be grateful if you could see this 73 year old lady with atrial fibrillation. She has been complaining over the last year or so with memory deficit, mainly affecting her short term memory. In consultation she got the wrong month and the date wrong but got the right year. She was correct on World War I & II. She was also able to recall three words a couple of minutes later but forgot them 4 minutes later. During her serial 7s she made one mistake but realised she had made a mistake at the end of the test.
I am going to arrange for her to have the usual blood tests but would be grateful if you could see her with regards any potential memory deficit."
However, the GP record for that date records:
"Memory assessment
MMSE [Mini Mental State Examination] 26/30, lost 4 on calculation.
No objective evidence of memory loss."
I have not been referred to any record consequent on the referral to the Memory Clinic. Carolyne's evidence was that the referral "went nowhere".
"Took V nearly ten years to come and see Ron. Made sure she brought lots of photos - Italy skiing and America. Lovely to see the children, she left the photos to make sure I saw them. They are lovely children. I shall never forgive her for her cruelty to me. She didn't say goodbye when she left making it quite clear she didn't come to see me. I have made Ron promise she is not to come anywhere near me when anything happens to me."
I see no reason to doubt that the entry represents Mary's perception and what she said to Ron. At the same time, it is right to record that there was a degree of contact between Mary and Vicky later in the year, albeit solely (as I find) in the context of contact with the grandchildren. Thus Rosita gives evidence that when she was performing in a school Christmas play in December 2007 Mary and Vicky were sitting together in the audience.
The Will
"Mrs Wadge has a daughter Victoria Jones that she wishes not to be included in the Will."
The form recorded that Mary did not want the Will to be sent to her home address but rather to Elen Davies at the branch of the bank. Carolyne's evidence is that Mary told Elen Davies that she did not want any correspondence about the Will to be sent to her home address, as Ron was struggling with dementia and she did not want to upset him. I accept that evidence, and I observe that there is evidence that from 2008 Ron's behaviour was becoming erratic and, on occasions, aggressive, leading him to make allegations about various family members. The allegation on behalf of Vicky that Elen Davies was instructed to send the Will to Carolyne's address is incorrect.
- Clause 4.1 gives to Carolyne the deceased's share and interest in 44 Pentre-Poeth Road, Newport.
- Clause 4.3 gives to Carolyne "my diamond and ruby ring and my gold watch."
- Clause 4.4 gives to Caroline Wadge, a daughter-in-law, "my fancy gold chain."
- Clause 4.5 gives to Jane Griffiths "my heavy link gold chain."
- Clause 4.6 gives to Svetlana (there named "Svetlona") "my amethyst ring".
- Clause 4.7 gives to Suzanne Wadge, a daughter-in-law, "my gold cameo ring."
- As to 25% for James;
- As to 25% for Richard Wadge;
- As to 25% for Jane Griffiths;
- As to 25% for such of her four named grandchildren (Vicky's children) as should survive her and attain the age of 21 years, and if more than one in equal shares.
"I DECLARE that I have NOT made any provision in my Will for my daughter Victoria Jones and I do not wish for her to benefit in anyway (sic) from my estate."
"You have within your Will made a gift of real property. If this asset is jointly owned by you with your husband RONALD WADGE or with somebody else, it is very important to establish if you do so as joint tenants or as tenants in common. If the asset is held by you as joint tenants this bequest will not be effective as this asset will pass to the surviving joint owner or owners irrespective of what your Will says. If you are in doubt or want help please contact Irwin Mitchell."
Matters after the Will
- A referral by her GP in March 2009 resulted in a diagnosis of cardiac failure.
- A follow-up consultation by telephone on 2 June 2009 appears to have come after Mary suffered confusion on a weekend away. The record reads in part: "Pam O'Brien [community psychiatric nurse]: Forgetful, packing bags and wanting to walk home. She will do MSU [mid-stream urine specimen] later this week." An entry on the following day reads in part: "Suspected UTI [urinary tract infection]. Dort [presumably, Daughter] seeks abs [antibiotics]".
- A GP note for 12 June 2009 reads: "Memory loss symptom. d/w [Discussed with] Pam O'Brien, probs with memory, became more confused – on w/e away? d/t [Due to] uti. Unclear whether this was an acute situation (? uti) or ongoing (? dementia) process – check urine again, extend range of blood tests next week and review – MMSE".
- A Mini Mental Health Examination was carried out on 18 June 2009. Mary scored 26 out of 30, as she had done in June 2006. She scored full marks on each stage except Attention and Calculation (involving an exercise in repeated subtractions or in spelling "world" backwards), in which she scored 1 out of 5. A score in excess of 23 is indicative of "normal cognition; no dementia". A score of 19-23 is indicative of "mild dementia". (I accept, of course, that the indications provided by such a tool are not conclusive.)
- First, when she arrived at the house, Carolyne was present with Ron and Mary, but James was not yet present.
- Second, James arrived in the course of the meeting. He seemed surprised that the meeting was happening then, but not that there was to be a meeting or that he was to be an attorney.
- Third, the defendants' case as put at trial was to the effect that Carolyne had intended to be sole attorney, to the exclusion of James, but was thwarted by James's chance arrival at the meeting. I do not accept that case. Mrs de Vall was very clear that her initial instructions were that there were to be two attorneys: this was not a later change of instruction arising in the course of the meeting as a result of James's arrival. Her manuscript attendance sheet records the two attorneys. She said in cross-examination by Mr Morris that, if a client gave instructions for only a single attorney, she would get "very nervous" and make enquiries about a second possible attorney. Although it is of course possible that the original intention was that Carolyne alone should be attorney and that James's arrival at the house occasioned a late decision to make him also an attorney, there is no evidence that that was the case and Mrs de Vall's evidence, coupled with Carolyne's evidence, is to the contrary.
- Fourth, I think it probable that James knew that he was to be an attorney but that (contrary to Carolyne's evidence) he did not know that the meeting was taking place. I see nothing untoward about this. The meeting was for the purpose of giving and receiving instructions for the LPAs, and the instructions are recorded on the attendance sheet. The presence of the attorneys was required only later, when the documents had been prepared. Thus one of the last entries on the sheet reads: "Date set to sign final docs – both A[ttorneys] available. 15.3.10". The LPAs were duly signed on 15 March 2010. They were registered in June 2010.
- Fifth, Mrs de Vall used her accustomed strategy of asking Carolyne to go and make some hot drinks, in order that she could speak to Ron and Mary alone.
- Sixth, Mrs de Vall had no concerns about the capacity of either Ron or Mary to execute an LPA, and no one—including James—mentioned any such concerns to her. At the foot of her attendance sheet is written "CALIFORNIA", and she explained that this was a mnemonic for a check that she would carry out when taking instructions from an elderly client: Conscious; Alert; Lucid; Intention (to grant an LPA); Focused; Open; Reasonable; Natural; Instructions (i.e. the instructions were those of the client); Aware & Accepting. In her witness statement, Mrs de Vall said that Mary was able to give instructions independently, understand the nature and effect of what she was doing, and retain, understand and process the information being given to her. "There was no indication that any undue pressure was being placed upon her to execute the LPA. It was my professional judgment that in 2010 she was capacitous to execute her Lasting Power of Attorney." Mrs de Vall certified each LPA to that effect.
- Seventh, in 2012 Mrs de Vall met again with Ron and Mary, at the request of Ron's children, to prepare further LPAs for him. However, her professional opinion at the time was that he lacked capacity, so she did not do so. This supports Mrs de Vall's evidence that she was always, and on the occasion in question, alert to the need to be satisfied of her clients' capacity to execute LPAs.
- On 22 April 2010 the GP recorded that Mary's daughter felt she was confused. The diagnosis was of a urinary tract infection, and medication suitable for that condition was prescribed.
- On 9 August 2010 the GP recorded: "Problem: Memory loss symptom. History: forgets things—makes her very upset, forgets the simplest things. Comment: MMSE 28/30." The sheet recording the MMSE shows that Mary lost 1 mark for getting the date wrong and scored 2 out of 3 for the 3-stage command ("Place index finger of right hand on your nose and then on your left ear"). Again, this score tends to indicate normal cognition and absence of dementia. It is actually a better result than was achieved in 2006 and 2009.
- On 17 November 2010 it was recorded that Mary had suffered a number of accidental falls. The GP recorded: "also forgeyful [sic], caring for her ill husband, refuses help etc. refer falls clinic." At this point the GP does not appear to have had particular concerns regarding forgetfulness; at least, he makes no referral to the Memory Clinic.
- A GP note dated 30 December 2010 reads:
"Dr Ashton at Third Party Consultation
Suspected UTI
dort (caroline) seeks trim [i.e. trimethoprim] for susp UTI.
Memory loss symptom
dort says worse. can she be assessed and referred. see at an appt., for 6-cit and caroline linton [Dr Caroline Linton, Consultant Psychiatrist] referral".
The test referred to, 6-CIT, is Six Item Cognitive Impairment Test, a screening test used to assess cognitive impairments, especially dementia.
It is convenient to deal with the more extensive medical records for 2011 later in this judgment. At this point I note only that the 6-CIT was carried out on 7 January 2011 and that Mary scored 8 out of 28. On this test, low scores are desirable. A score of 0-7 indicates, "Normal, referral not necessary at present". A score of 8-9 indicates, "Mild cognitive impairment, probably refer". A score of 10-28 indicates, "Significant cognitive impairment, referral necessary".
"My darling Carolyne, I realize the hurt you must be feeling at this time. I do know that Vicki has been talking about you. Please darling, put it down as ignorance.
The money I have given you is nothing to do with Vicki. I have worked hard for a long time and will use what I have earned in my own way. Please love don't worry any more. Love from Mum xxx"
"SLP talking to Mrs Mary Wadge …
Mr Wadge answered the telephone but asked to speak to Mrs Mary Wadge. Mrs Wadge came onto the phone and SLP introduced herself and asked whether Mrs Wadge remembered attending our office in the summer and our appointment. She said she did.
I explained that her son James had requested I call regarding making Wills. I asked whether she wanted to change her Will and she told me that it was her husband who was to make the Will. She said that things had changed and he wanted to make a Will.
Her husband Mr Wadge was obviously in the background and it was obvious he wanted to know who was calling as at one point Mrs Wadge had to break off and say it was the solicitor. He seemed very anxious to know who it was.
Mrs Wadge told me there had been some changes that was why he wanted to make a Will. I asked if she had her Will in a safe place. She told me that she did not have it and she though[t] we were storing it. I explained that we did not have the Will here in storage but that she had taken it away with her after our appointment in the summer. I suggested she asked her daughter is [scil. as] she had also attended the appointment. Mrs Wadge stated that her daughter didn't live around here. SLP said she should check with her as it was very important that the Will was kept safe.
I explained we would be writing to her husband regarding matters."
A third attendance note of the same day recorded the solicitor's conversation with Ron, in which he showed signs of confusion and gave information that was both inconsistent with information provided by James and factually incorrect. It was agreed that the solicitors would write to Ron. No further will was ever made.
"However, the Public Guardian is concerned that you and your co-Attorney may require some clearer guidance on how to act as Attorneys. Specifically, this is in relation to gifts. Although Mrs Wadge presently has the capacity to give gifts, the Public Guardian is concerned that if her capacity declines further, she will not be able to make informed decisions on giving gifts.
…
Therefore, in future if gifts given to you or anyone else by Mrs Wadge are not a) proportionate, and b) for a customary occasion you will be expected to make an application to the Court of Protection to seek their ratification of the gift first as you will be in a position where you will have a conflict of interest."
"Clinically much improved on discharge. But c/o fluctuating capacity in regards to decision making for future care. Patient discharged to a residential home for respite. To have INCA (independent capacity assessment) in community – to be arranged by social worker."
"3.1 The Applicant was estranged from our mother, Mrs Mary Barbara Wadge, and our stepfather, Ronald Wadge deceased, from 1995 until approximately Christmas 2010.
…
3.3 As our parents became older and more infirm it was myself and Carolyne who were regular visitors to them. Between us we visited them each day. By contrast the Applicant had no contact with them for more than 15 years and even barred her children from contact with our parents even though they lived only 200 metres away and our step siblings rarely visited.
…
3.6 22nd February 2012 our mother consulted solicitors reference the behaviour of the Applicant. The Applicant was rude and abusive to our mother and was, also, agitating our father which caused him to be abusive to our mother. Our mother sought advice in relation to injunction restraining Applicant from molesting her or coming to our parents' home but did not pursue any action feeling that this would affect Mr Wadge and she would have to tolerate the Applicant's behaviour.
…
3.15 Following our father's death, 4th September 2013, we had to obtain grant of representation to his estate since his Will appointed our mother as executrix and she lacked capacity to administer the estate.
…
4.4 Whilst our mother has lived with me the Applicant has called to our house on one occasion to request to see our mother. My wife said she was not welcome in her home, because the Applicant had previously been abusive to my wife, and that she would have to make arrangements to see our mother with myself. The Applicant has not contacted me since other than 5th September 2013 when I agreed to meet her with our mother at a garden centre, at our father's funeral, when was she was publically [sic] abusive to me and Carolyne, and at a funeral of our mother's brother."
The second statement, which must have been written after 7 December 2015 and before 5 January 2016, has been produced only in an unsigned and undated version. Although Carolyne's evidence implies that it was signed, I cannot be satisfied that it was. However, I note that in paragraph 4.4 it states: "Our mother had capacity until 2013 and dealt with her financial matters for herself and Mr Wadge aside from period when she was in hospital from 12th April 2012 we had to assist her." The proceedings were compromised by a consent order dated 5 January 2016, whereby Vicky withdrew her application and Carolyne and James agreed to provide her with regular information concerning Mary's finances.
Testamentary Capacity
"It is essential . . . that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
"64. It is also common ground that the burden of proof in relation to testamentary capacity is on the person propounding the will. Where the will is duly executed and appears rational on its face, the court will presume capacity, in which case, the evidential burden shifts to the objector to raise a real doubt as to capacity. If a real doubt is raised, the burden shifts back to the person propounding the will to establish capacity, nonetheless: Key v Key [2010] EWHC 408 (Ch) per Briggs J (as he then was) at [97]. Further, despite the fact that expert evidence may be of great assistance, the issue as to testamentary capacity is a decision for the court: Key v Key at [98]."
Those propositions are also common ground before me.
"a. To the extent that they are relevant, the First Defendant repeats the matters set out in paragraphs 13 and 15 above.
b. In her later years, the deceased was diagnosed with vascular dementia, and had been exhibiting symptoms in that regard for many years, including prior to the making of the Will.
c. In June 2006 the deceased was referred by her GP to a memory clinic after reporting that she had been having problems with memory deficit for over a year.
d. By around November 2007 the deceased was unable to walk more than 100 yards due to shortness of breath.
e. In around May 2008 James and Svetlana Wilkes moved from Devon on a permanent basis to provide care to both the deceased and Ronald Wadge due to each of them suffering from declining mental and cognitive health issues.
f. By that stage, the First Defendant understands that the deceased was already exhibiting significant symptoms of confusion and progressive dementia, including regularly losing money around the house; forgetting to do (or how to do) simple tasks; experiencing hallucinations; and unusual behaviour, such as giving rotten fruit to family members as Christmas presents.
g. The deceased's deterioration accelerated from 2009 onwards, but for the avoidance of doubt she was significantly symptomatic at and before the time of her purportedly executing the Will.
h. For the deceased to have instructed HSBC that she was unmarried, and for her not to make any reference to her husband within the Will, is only explicable by reference to her declining cognitive ability at the material time.
i. In taking instructions for the preparation of the Will, those instructed failed to apply the 'golden rule' principles set out in Kenward v Adams (1975).
j. The First Defendant intends in due course to obtain a report from a suitably qualified independent expert into the matters set out above with a view to establishing that the deceased lacked capacity at the material time.
k. In all the circumstances, the deceased was at the time of the execution of the Will in such a condition of mind and memory as to be unable to understand the nature of the act and its effects, or the extent of the property of which she was disposing, or to comprehend and appreciate the claims to which she ought to give effect."
- First, Mary's negative view of Vicky long predated any indication in the medical records of concern for her cognitive functioning.
- Second, Mary first expressed her own concerns about (mainly short-term) memory deficit to her GP in June 2006, when she had been experiencing it "over the last year or so". However, such issues with memory—which become increasingly noticeable as one gets older—do not have any necessary implications for powers of reasoning or decision-making. Further, the results of the Mini Mental State Examination in 2006 were normal and there is no evidence that the referral to the Memory Clinic indicated any genuine problem.
- Third, Mary appears to have been capable of giving detailed and rational instructions for her Will in October 2008. The only reason to doubt this is if one supposes that the instructions were coming from, or being actively prompted by, Carolyne.
- Fourth, in December 2008 Mary gave a solicitor instructions for the severance of the joint tenancy. It is right to bear in mind both that Carolyne was present and that the solicitor was not taking instructions for a will and therefore was not concerned with questions of testamentary capacity. However, the solicitor's attendance note gives no indication that the solicitor had any concerns either about Mary's ability to understand the issues and make the decision to sever the joint tenancy or as to whether the instructions were truly coming from Mary rather than Carolyne.
- Fifth, there was an episode of significant confusion and disorientation in June 2009. However, both this and other subsequent episodes appear to have been connected with urinary tract infections, which are a recognised cause of confusion in older people. This is why the GP note for 12 June 2009 noted that the confusion could be due either to a urinary tract infection or to an ongoing process, such as dementia.
- Sixth, the Mini Mental Health Examination on 18 June 2009 indicated normal cognitive function and no dementia.
- Seventh, in March 2010 Mrs de Vall was satisfied that Mary had capacity to execute a lasting power of attorney. The following month she was recorded by the GP as confused, but again there was a urinary tract infection.
- Eighth, in August 2010 Mary was telling her GP that she was very upset because she was forgetting the simplest things. Again, however, the Mini Mental Health Examination indicated normal function and no dementia.
- Ninth, at the end of 2010 Carolyne was concerned that Mary's memory loss was "worse". There was at that point a suspected urinary tract infection, which might have contributed. However, the 6-CIT on 7 January 2011 suggested the existence of mild cognitive impairment. This, of course, is more than two years after the Will was made. And it is necessary to bear in mind that one may have a degree of cognitive impairment and yet have testamentary capacity.
- First, on 14 February 2011 Mary saw Dr Linton, Consultant Psychiatrist. Mary described "intermittently experiencing what she thinks are visual hallucinations", though only at night and in the dark. On the Addenbrooke's Cognitive Examination (a recognised cognitive assessment tool, widely used for diagnosing dementia among other conditions), Mary scored 72 out of 100. Scores below 82 are considered to be indicative of likely dementia. On the Mini Mental State Examination she scored 25 out of 30, which Dr Linton considered to be suggestive of "mild impairment". Dr Linton wrote: "This lady of 73 years presents with a 2-year history of memory decline. … On memory testing there is evidence of mild but global cognitive impairment. Further investigation is warranted at this stage before reaching a diagnosis." I note that as late as this Mary was still driving; Dr Linton advised her to stop.
- Second, a letter dated 24 March 2011 from Dr S Vasishta, Consultant Physician in Adult Medicine at St Woolos Hospital, Newport, recorded that Mary scored 8 out of 10 on an AMT (Abbreviated Mental Test), which is a tool to screen for cognitive impairment in elderly patients, where a score of 6 or less suggests delirium or dementia. Accordingly, Mary's score was good. However, other entries in the GP records later that week show forgetfulness and confusion. Again, there was a possibility of a urinary tract infection. But Mary was clearly in a dysfunctional mental state more often than had previously been the case.
- Third, on 18 July 2011 Mary saw a solicitor, who seems to have had no concerns about her ability to understand what was being discussed (see above). However, on the same day she saw Dr Linton again. Dr Linton recorded: "On memory testing today on the MMSE, she scored 19/30. This is a drop of several points since I carried out this test in February of this year. Although there is a background of stress, both present, recent and past and there is no doubt she is quite exhausted in her role as carer, it is also clear that she has a progressive cognitive decline and it is likely that diagnosis is of a dementia of mixed aetiology." This is the first positive diagnosis of dementia, though there were indicia earlier in the year.
- Fourth, a letter dated 14 December 2011 from Dr J S Kitson, Consultant Physician at St Woolos Hospital, said in part: "It was obvious that from talking to the patient her memory was an issue. She was unable to recall some past events but was also having difficulty recalling recent day to day events ... However l also note the overall gradual deterioration in memory with a history of fatigue and tiredness over the last couple of months. I would be inclined to do a CT headscan to rule out any space occupying lesions … I wouldn't be surprised to find a small vessel disease picture on scanning."
- Fifth, I have noted above Mary's admission to hospital in April 2012 and to the residential home in June 2012, as well as Pam O'Brien's assessment of Mary's capacity to make a decision as to visiting in July 2012. The following month, however, a Community Resources Team Nurse Assessor recorded that the history provided by Mary "was unreliable because of her dementing illness."
- Sixth, on or about 7 November 2012 Pam O'Brien and Dr Linton produced a joint assessment of Mary on the instructions of solicitors acting for James and Carolyne as Mary's attorneys. The concluding paragraphs state as follows:
"The Secondary Mental Health Services team has not been asked at any point over the last two years to undertake any capacity assessment concerning financial affairs. Sometimes when a patient is under the care of Dr Linton and the team, then the family or solicitor may ask Dr Linton to comment on ability and competencies in the area of e.g. managing financial affairs or drawing up a Lasting Power of Attorney. This assessment has not been requested of us as a team at any point and so we are unable to state clearly the date on which it was resolved that Mrs Wadge lacked capacity to manage her property and financial affairs. In our opinion, prior to Mrs Wadge being admitted to hospital in April 2012, she did appear to have the capacity to make her own decisions (in general) and this is stated by Pam O'Brien in the notes – 'has capacity and is able to make her own decisions' - this being with regard to what care Mr & Mrs Wadge were accepting, as Pam was advising a family member that her mother's wishes should be respected at that stage. There has been clear evidence of increased cognitive impairment since the hospital admission however, with specific regard to financial affairs, we cannot say with any certainty at which point this competency was lost.
At present Mrs Wadge would be unable to independently manage her finances. This lack of capacity is secondary to cognitive impairment. This does fluctuate from time to time, and in the main the impairment concerns recall of information, disorientation in time and lack of awareness of which family members are around and alive."
- Seventh, as mentioned above, the OPG's investigation into gifts given by Mary concluded in December 2012 with the conclusion that Mary "presently has the capacity to give gifts". I note that the principal gifts in question appear to have been given prior to 2012, and it is unclear in respect of what time the OPG was considering evidence.
1. Mary's mental state and cognitive abilities at the time of the Will's execution.
2. Whether in his opinion Mary had testamentary capacity to make the Will and understood the extent of her estate and whether she understood or appreciated the extent of any claims against the estate by the parties to these proceedings and the consequences of making the will in the terms which she did.
3. Any factors that might have influenced Mary's decision-making abilities.
4. Whether in his opinion any of the conditions or medications noted in Mary's medical records could have made her more vulnerable to undue influence.
5. Any other comments/issues he felt it necessary to address in the report.
I make two comments at this stage about the questions. First, question no. 4 is not, in my view, within the scope of the permitted expert evidence. The order did not in terms identify any specific issues for the expert, but the identified expertise—"testamentary capacity medical expert"—shows that the issue on which the court was permitting expert evidence was testamentary capacity. Second, as regards testamentary capacity, the proper questions would simply have been (i) whether in his opinion, having regard to the applicable test, Mary had testamentary capacity when she made her Will and (ii) what the reasons were for that opinion. The first and third questions in the letter of instruction were not themselves relevant, other than insofar as they might concern matters going to the reasons for the answer to the one proper question, namely question no. 2.
"4.1. From the documents supplied, I note the following about The Late Mrs Mary Barbara Wadge:
4.2. Mrs Wadge had a history of cancer (colorectal in 1997; breast in 2004) and surgical procedures and recovery periods from about 2004 to 2006 with full recovery.
4.3. Mrs Wadge had a history of atrial fibrillation.
4.4. Mrs Wadge had problems with her memory in 2006 and was diagnosed as having dementia in July 2013. She had various reviews of her dementia condition in 2014 and 2015.
4.5. Mrs Wadge was recorded as having a memory deficit on 16 June 2006 and was reported to have confusion over dates on 2 August 2006.
4.6. Mrs Wadge was seen by Dr C Linton, Consultant Psychiatrist on 18 July 2011 and had a drop of several points on her MMSE score as compared with his [sic] previous testing in the February. Dr Linton comments on Mrs Wadge's exhaustion as a result of her care role and confirms a likely diagnosis of dementia of mixed aetiology."
4.7. Mrs Wadge was struggling to cope with caring for her husband who had dementia during June 2008.
4.8. Mrs Wadge passed away on 7 September 2018.
4.9. The Will of Mrs Wadge appoints HSBC Trust Company Limited and her daughter Carolyne Mary Hiddins as the Executors and the Trustees of her estate."
Dr Thompson's summary of the records and of what he considers to be the salient points is important, because it forms the basis of the opinions he expresses in his report in answer to the five questions that he was asked. I note that paragraph 4.6 was introduced in the updated version of the report in February 2025 (apparently in response to a question put to him by Svetlana), with consequent renumbering of the subsequent paragraphs in section 4.
"5.2. Al. During 2004 and 2006, Mrs Wadge was in recovery from various medical procedures that had addressed her cancer. She had a history of atrial fibrillation, suffered from depression and was recorded as having a memory deficit and confusion over dates.
5.3. Al. In addition, she had been caring for her husband who had dementia during June 2008 and was struggling to cope.
5.4. Al. It is my opinion that on the balance of probabilities, Mrs Wadge did not have the mental ability or capacity to make decisions or to remember important decisions made by her during 2008. My opinion is reinforced by the fact that she was diagnosed as having dementia several years later (about 2011[2]) but, in my opinion, with the high probability that her memory had been unreliable and inconsistent several years previously."
"5.6. A2. It is my opinion that because Mrs Wadge had memory impairment in 2008, I believe that she would not have had sufficient testamentary capacity to make the Will in 2008. Furthermore, it is my opinion that it is unlikely that she would have understood the extent of her estate and understood or appreciated the extent of any claims against the estate by the parties to the proceedings and the consequences of making the Will in the terms which she did."
"Despite recovering from cancer, I believe that these conditions may well have contributed to her low mood which affects memory functioning and that she would not have had the capacity or ability to make informed decisions at the time of making her Will in 2008."
Dr Thompson said that he could not comment directly on the effects of any medication that Mary was taking, but that he said that it was "possible that some medications would have an adverse effect in contributing to poorer clarity and memory recall."
"6.2. A5. In terms of mental capacity assessment, Stage 1 (the 'diagnostic test'), it is my opinion that Mrs Mary Barbara Wadge had impairment of the brain, i.e., cognitive impairment in terms of memory impairment as far back as 2006. It is my opinion that she subsequently deteriorated with a diagnosis of dementia.
6.3. A5. In terms of mental capacity assessment, Stage 2 (the 'functional test'), it is my opinion that Mrs Mary Barbara Wadge would not have been able to understand the consequences of making her Will in 2008 because of her memory impairment. It is my opinion that she would not have been able to make decisions over her property and finances because of her cognitive impairment and cognitive deterioration due to subsequent dementia.
6.4. A5. It is my opinion that Mrs Mary Barbara Wadge has not met the necessary threshold, i.e., lacked the necessary capacity set by Banks v Goodfellow [1870] LR 5 QB 549. That is, I believe that she did not have the understanding of the act of making her Will because of the effects of having memory impairment.
6.5. A5. It is my opinion that Mrs Mary Barbara Wadge has not met the necessary threshold, i.e., lacked the degree or extent of understanding set by Re Heaney [1978] 1 WLR 770 because she had the symptoms associated with the diagnosis of dementia."
80.1 I accept that Dr Thompson had expertise to qualify him to give an opinion in the case. However, I do regard his expertise as limited and consider that this lessens the weight to be placed on it. Dr Thompson has a very impressive array of academic credentials, including (among many others) an MPhil in Clinical Psychology and a PhD in dementia assessment. However, it appears that his experience is entirely academic and that he has no experience as a treating psychologist. He certainly has no medical qualification, as was envisaged by the order giving permission for expert evidence. When the question of his professional, as distinct from academic, credentials was raised by those acting for Carolyne, Vicky's solicitor wrote to him as follows:
"It has been suggested that they can find no record of your medical credentials, in particular that you are registered with the GMC and HCPC or British Psychological Council. I am sure that this is not the case and I would be grateful if you could let us have full details of your medical qualifications showing your status to prepare the report."
In reply, Dr Thompson referred to his extensive list of qualifications in the report and continued:
"4. You will see that I have considerable expertise in the subject area and that I am a Full Member of the British Neuropsychological Society, Principal Fellow of the Higher Education Academy and registrant of the UK Register of Expert Witnesses.
5. I do not belong to the HCPC [the Health and Care Professions Council] which is for practitioners nor am I registered with the GMC [General Medical Council] which is for doctors!"
80.2 Dr Thompson did not have the advantage of examining Mary. This necessarily limits the weight that can be placed on his opinion. Indeed, when Dr Thompson was questioned by Carolyne's representatives about the Mini Mental State Examination results in 2006, he accepted that Mary's score was within the expected range but went on to add that MMSE was "a simple and sometimes unreliable measure" and should always be considered together with questioning by a professional and the impression gained by a professional. (He gave a similar response in respect of the results of the 6-CIT examination in 2011.) Dr Thompson never had an opportunity of forming an impression of Mary.
80.3 Dr Thompson did not have the advantage of familiarity with the witness evidence. Of course, he could not see the witnesses give evidence at trial, as I have done. But as appears from the letter of instruction and from his report, the documentation provided to him comprised only: the medical records; the statements of case; the Will and the LPA and the documents relating to their preparation and execution (though this will not have included Mrs de Vall's notes, which were only produced at trial); and court orders. If one cannot form an impression of a testatrix from a direct encounter, there is much advantage in doing so from considering the evidence of those who knew her. In addition, there are objective facts (such as the accuracy and cogency of testamentary instructions) that are or might be relevant to the question of testamentary capacity, but the existence or significance of which one is unlikely to be able to assess without reference to the wider body of evidence.
80.4 For reasons set out below, I regard Dr Thompson's conclusion as to testamentary capacity as inadequately reasoned and evidenced. I think it was Lord Goff of Chieveley who remarked that an ounce of reasoning is worth a pound of opinion; whoever made the remark, it has much to commend it.
80.5 As mentioned above, section 4 of the report contains Dr Thompson's summary of the "main points" in the documents. The only paragraphs that seem to have any possible bearing on Mary's testamentary capacity in 2008 are paragraphs 4.4, 4.5 and 4.6. (Those, indeed, are the paragraphs that Dr Thompson identified, as being relevant to memory problems in 2008, when he responded to questions put by those acting for Carolyne.) The three points in these paragraphs are: (i) memory problems in 2006; (ii) confusion over dates in August 2006; (iii) a diagnosis of dementia in July 2011. I have commented on points (i) and (iii) above and shall do so again below. As for point (ii), the "confusion over dates on 2 August 2006", the document referred to by Dr Thompson is an entry by a practice nurse in the GP records, which reads:
"Telephone encounter with patient slightly confused over dates for inr [International Normalized Ratio: a blood test to assess how long blood takes to clot], book says to have inr taken on 15th but also has appointment on Friday for inr at St Woolos. Advised Friday because of facial pain and medication dr wants inr to be checked. Appointment given to attend surgery on 15th as per inr clinic instructions."
I do not think it reasonable to treat that entry as a genuine piece of evidence relating to testamentary (or any other) capacity. To refer to it as evidence of "confusion over dates" is to give a misleading impression. Those acting for Carolyne asked Dr Thompson whether he agreed "that the confusion is not a general confusion but specific to the fact that Mrs Wadge was given 2 appointments for inr tests within 2 weeks of each other (because she had reported facial pain and was taking warfarin) and was querying whether this was correct." Dr Thompson replied, "Yes, this may have been in respect of dates." I do not regard the entry as having any evidential value on the issue of testamentary capacity.
80.6 The answer to question no. 1 (paragraphs 5.1 to 5.4) is, in my view, poorly reasoned and inadequately supported by evidence. There is no doubt that Mary was experiencing memory problems in 2008 and that she was diagnosed with dementia in 2011. Neither fact implies that she had any wholescale inability to make or remember decisions at the earlier or even at the later date. Dr Thompson does not identify the nature of the decisions that he thinks Mary could not make or remember in 2008; he just says that she "did not have the mental ability or capacity to make decisions or to remember important decisions made by her during 2008." As it stands, that is obviously wrong: regardless of whether or not she had testamentary capacity, Mary was plainly able to make some decisions in 2008. Not only is this clear from the evidence as a whole; it is positively stated in the joint assessment of Pam O'Brien and Dr Linton (both of whom had actually examined Mary on several occasions) in November 2012. Dr Thompson does not engage with that assessment. In fact, there seems to be no evidence at all that Mary was incapable of making decisions of whatever sort in 2008.
80.7 On the specific issue of testamentary capacity, Dr Thompson correctly referred to the test in Banks v Goodfellow, to which he had been directed in the letter of instruction. However, the reasoning that led to his conclusion is, in my view, unconvincing and indeed opaque. The reason he gives for his opinion is that Mary had memory impairment in 2008. As I have said, and as seems to me to be obvious, memory tends to deteriorate with age; this is especially true of short-term memory, as appears to have been the case with Mary. A degree of memory impairment is capable of being consistent with testamentary capacity. Banks v Goodfellow does not lay down a memory test. Rather it requires (to paraphrase) that the testatrix understand the nature of the act she is performing, the extent of the property of which she is disposing, and the claims to which she ought to give effect. Memory impairment is relevant to testamentary capacity only if it takes away this understanding. The question whether a person had testamentary capacity is one for the court to answer on the basis of all the available evidence. There is, in my view, no evidence that, either when she gave instructions for the Will or when she executed it, Mary was in any way lacking in relevant understanding or had any relevant lapse of memory.
80.8 Perhaps because he did not have the benefit of witness statements, but only of statements of case, Dr Thompson did not actually address the question whether there was evidence that Mary did indeed lack the necessary understanding. As I have said, in my view there is not such evidence. Unless one accepts that Mary did not know what she was doing and that the instructions for the Will were given not by her but by Carolyne—which I find not to have been the case—, Mary appears to have understood the nature and extent of her estate; indeed, the defendants have not suggested the contrary. She also appears as a matter of fact to have understood the nature of what she was doing in making a will; and I so find. As for the claims to which she ought to give effect, she was positively scrupulous in identifying those who might reasonably expect to be provided for in the Will. The only serious questions in that regard concern the small provision made for James and the express decision not to benefit Vicky. I have dealt with those matters above. Dr Thompson does not mention them or, apparently, consider them.
80.9 A diagnosis of dementia a little more than two years after the Will was made can hardly support a conclusion of incapacity at an earlier time. What is required is evidence of capacity or incapacity at that earlier time. It may, perhaps, be that Mary's memory impairment from about 2006 was due to incipient, undiagnosed dementia. But that, if so, is not the point: the question is not whether there was some incipient, undiagnosed dementia at the earlier time but whether Mary had testamentary capacity. Further, it is surely of significance that, unlike Ron, Mary was not diagnosed with dementia in 2008 or until 2011. It was only in answers to questions by those acting for Carolyne that Dr Thompson engaged with the tests of mental capacity that had indicated the likelihood that, notwithstanding her own concerns about memory deficit, Mary's cognitive functioning was within the normal range well after the Will was made. Even then, his answers (to the effect that the test results are fallible and must be taken in conjunction with the assessment of professionals), while no doubt correct, serve only to highlight his disadvantage in having no impression of his own with which to counter the test results or the absence of any diagnosis of dementia at the earlier dates.
80.10 Those acting for Carolyne asked Dr Thompson whether he agreed "that generally most but not all people with mild dementia will retain capacity to make a will". He replied, "No, it is very much on an individual basis. Dementia is complex." This answer only throws the problems with Dr Thompson's evidence into sharper relief.
Undue Influence
"The exercise of undue influence on a testator is also one of the grounds on which the admittance of a will to probate may be challenged. The probate doctrine must, however, be carefully distinguished from the availability of equitable relief: indeed, it has been suggested that the 'only common characteristic with the equitable doctrine is the name'. The probate doctrine applies where such pressure has been placed on the testator as to 'overpower the volition without convincing the judgment' and it does not permit the party challenging the will to take advantage of any evidential presumption when seeking to prove such pressure. The probate doctrine can be invoked by any party with standing to challenge the will, as it identifies 'a species of restraint under which no valid will can be made'. The equitable doctrine, by contrast, does not operate so as to render a transaction invalid: a gift or contract entered into by undue influence is valid and so takes effect unless or until B exercises his or her power to rescind the transaction. The equitable doctrine, it is submitted, is based rather on the idea that, as a result of the undue influence, it would be unconscionable, in a broad sense, for A, as against B, to take advantage of the right acquired by A under the impugned transaction."
"There is no serious dispute about the law. The approach that I should adopt may be summarised 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 talk 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;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is 'fraudulent calumny'. The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
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."
"(a) At all material times, the Claimant exercised a very significant controlling influence over the deceased which had the effect of ostracising other family members in favour of the Claimant. This happened on occasions too numerous to particularise, but by way of example:
i. Upon the birth of the First Defendant's daughter, preventing the deceased from looking after the First Defendant's other children whilst she was in hospital as had been pre-arranged with the deceased;
ii. Preventing the deceased from attending an Immigration tribunal hearing to support the Second Defendant's application for a visa, as had been pre-arranged with the deceased;
iii. Insisting on taking the deceased out on shopping days or other trips alone, refusing to allow the First Defendant or James Wilkes to accompany her, even when the deceased requested this to happen;
iv. Taking the deceased to all medical and other appointments.
b. At the relevant time, the Claimant was entirely responsible for managing the deceased's finances and making financial decisions on her behalf, even becoming a joint account holder with her in around June 2009. The deceased was entirely dependent upon the Claimant for access to her money.
c. In around March 2010, the Claimant became the deceased's financial deputy pursuant to Lasting Power of Attorney. James Wilkes was also appointed, and in the years that followed a significant dispute arose as to the Claimant's management of the deceased's finances, leading to lengthy contested Court of Protection proceedings that ultimately concluded in 2016.
d. In around July 2008, the Claimant arranged for the deceased to open a new savings account and transfer all of her savings and pension funds into it. Further, the Claimant obtained a third-party mandate in respect of the deceased's bank accounts at around that time.
e. The Claimant arranged for the deceased to change her banking provider, and to purportedly give instructions for the Will to HSBC rather than to employ the deceased's usual solicitors' practice to prepare the Will.
f. The Claimant attended all appointments concerned with the making of the Will (including being present when the deceased purportedly gave instructions in relation thereto) and insisted on her address being used for all correspondence relating to it, despite the fact that the deceased was not living with her.
g. When asked by the First Defendant and/or James Wilkes, the Claimant repeatedly and untruthfully denied any knowledge of the deceased having made a will.
h. In all the circumstances, the First Defendant avers that the only rational explanation for the deceased having purportedly executed the Will in its terms is that she was coerced into doing so by the undue influence exerted upon her will by the Claimant."
"9. … I was then told about ongoing proceedings for the Office of the Public Guardian regarding Vicky's allegations as to the misuse of her parents' funds. I was left in no doubt that Vicky was being portrayed to her mother by Carolyne as the 'difficult one'. Notwithstanding all of this I have no doubt that Mary loved Vicky and had not purposely sought the distancing or cessation of communication with her."
I do not doubt that this interpretation was given in good faith, but it rested on knowledge of one side of the matter and an inadequate grasp of the realities of the relationship between Vicky and Mary. Paragraph 10 of the statement takes a similar line on the basis of things James said after Mary's death, when he and Carolyne had fallen out. That Mrs Walliker's view of things represents a later reinterpretation of things that appeared in a very different light at the time appears clearly from paragraph 11 of her statement:
"11. Carolyne had the most influence on Mary, and was able to control who Mary had contact with, positively amongst most of the family but negatively for Vicky. With hindsight her conduct was subtly coercive and controlling over Mary's contacts but always presented as behaving in Mary's best interests. Until I was presented with evidence from Vicky to the contrary, I believed it was okay as the eldest child for Carolyne to be the biggest influence in Mary's life. However I now believe that Mary would be very proud of Vicky for seeking restorative justice on her behalf. I also believe she would be heartbroken that her trust in Carolyne to have control of her finances was abused."
It is no criticism of Mrs Walliker to say that, in my view, this material was not proper to be included in a witness statement for use in these proceedings.
Knowledge and Approval
"What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be 'vigilant and jealous' in examining the evidence in support of the will (Barry v Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.)."
In the same case, Chadwick LJ summed the matter up at [65]: "The question is whether the court is satisfied that the contents do truly represent the testator's testamentary intentions." (Cf. his detailed analysis of this question at [66]-[72].)
"12. As for want of knowledge and approval of the contents of the 2007 Will, the scope of the inquiry indicated by a long line of authorities gives rise to other questions distinct from lack of mental capacity to make the will: Wintle v Nye [1959] 1 WLR 284; Fuller v Strum [2001] 1 WLR 1097; Gill v. Woodall [2011] WTLR 251. The relevant questions to ask in this case are-
i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said 'Yes.'
ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said 'No.'
13. In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed.
14. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death."
"14. Knowing and approving of the contents of one's will is traditional language for saying that the will 'represented [one's] testamentary intentions' – see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. The proposition that Mrs Gill knew and approved of the contents of the Will appears, at first sight, very hard indeed to resist. As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testatrix's intentions at the relevant time, namely the moment she executes the will.
15. In Fulton v Andrew (1875) LR 7 HL 448, 469, Lord Hatherley said that
'When you are once satisfied that a testator of a competent mind has had his will read over to him, and has thereupon executed it, … those circumstances afford very grave and strong presumption that the will has been duly and properly executed by the testator'.
This view was effectively repeated and followed by Hill J in Gregson v Taylor [1917] P 256, 261, whose approach was referred to with approval by Latey J in In re Morris deceased [1971] P 62, 77F-78B Hill J said that 'when it is proved that a will has been read over to or by a capable testator, and he then executes it', the 'grave and strong presumption' of knowledge and approval 'can be rebutted only by the clearest evidence.' This approach was adopted in this court in Fuller [2002] 1 WLR 1097, para 33 and in Perrins v Holland [2010] EWCA Civ 840, para 28.
16. There is also a policy argument, rightly mentioned by Mrs Talbot Rice, which reinforces the proposition that a court should be very cautious about accepting a contention that a will executed in such circumstances is open to challenge. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.
17. Further, such disputes will almost always arise when the desires, personality and state of mind of the central character, namely the testatrix herself, cannot be examined other than in a second-hand way, and where much of the useful potential second hand evidence will often be partisan, and will be unavailable or far less reliable due to the passage of time. As Scarman J put it graphically in In the Estate of Fuld, deceased (No 3) [1968] P 675, 714E; 'when all is dark, it is dangerous for a court to claim that it can see the light.' That observation applies with almost equal force when all is murky and uncertain."
"a. To the extent that they are relevant, the First Defendant adopts and repeats the matters set out in paragraph 13 above. Beyond that, the matters set out below are more than sufficient to excite the suspicion of the court such that the Claimant is required to prove that the deceased knew and approved of the content of the Will.
b. The will is not rational on its face, in that it seeks to entirely exclude the First Defendant as one of the deceased's three children—it is inconceivable and contrary to the deceased's previously expressed wishes that she would have knowingly done so.
c. The deceased appears to have given instructions to HSBC to prepare the Will on the basis that she was not married at the time, when she clearly was. Ronald Wadge is not mentioned within the Will, and these factors also go the irrationality of the Will on its face.
d. The Will was not prepared as the deceased would have been expected to have dealt with such a matter, i.e. via her own solicitor as set out in paragraph 13.
e. All correspondence concerning the preparation of the Will was sent to the Claimant's address, that having been the address given by the Claimant to those instructed for communication purposes. No documents were sent to the deceased directly.
f. The Claimant is the primary beneficiary of the deceased's estate under the terms of the Will and was present and instrumental in the provision of instructions for the Will.
g. For the avoidance of doubt, the First Defendant understands that the Claimant was with the deceased whenever she spoke or gave instructions to HSBC in connection with the preparation of the Will.
h. At the relevant time, the deceased was physically and emotionally vulnerable (as set out below in relation to testamentary capacity); was subject to undue influence by the Claimant as aforesaid; and was heavily reliant upon the Claimant, particularly in relation to her finances.
i. In all the circumstances, the First Defendant avers that the deceased did not know of or approve the content of the Will by reason of the aforesaid matters."
Conclusion
Note 1 There was conflicting evidence at trial as to whether Mary had been expected to attend a tribunal hearing concerning Svetlana’s application for an entry visa and as to why Mary had not attended. I did not find the evidence helpful or relevant. [Back] Note 2 The original version of the report said “(about 2014)”. [Back]