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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Parfitt v Jones & Anor [2025] EWHC 1552 (Ch) (24 June 2025)
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Cite as: [2025] EWHC 1552 (Ch)

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Neutral Citation Number: [2025] EWHC 1552 (Ch)
Case No: PT-2024-CDF-000058

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)

In the Estate of Mary Barbara Wadge deceased (Probate)

Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
24 June 2025

B e f o r e :

HIS HONOUR JUDGE KEYSER KC
sitting as a Judge of the High Court

____________________

Between:
CAROLYNE MARY PARFITT
Claimant
- and -

(1) VICTORIA JANE JONES
(2) SVETLANA WILKES
(as the personal representative of
James David Wilkes deceased)



Defendants

____________________

Angharad Davies (instructed by Everett Tomlin Lloyd and Pratt) for the Claimant
Phillip Morris (instructed by Jacklyn Dawson) for the First Defendant
The Second Defendant in person

Hearing dates: 4, 5 and 6 June 2025

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10am on 24 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    Judge Keyser KC :

    Introduction

  1. Mary Barbara Wadge ("Mary"), a widow, died on 8 September 2018 aged 85 years. She was survived by her three children: the claimant ("Carolyne"), the first defendant ("Vicky"), and a son ("James"). James has since died, and his estate is represented in these proceedings by his widow ("Svetlana").
  2. In these proceedings, Carolyne seeks to propound a purported will dated 19 November 2008 ("the Will"), which names her as an executor along with HSBC Trust Company (UK) Limited, which has renounced its executorship.
  3. Vicky and Svetlana deny the validity of the Will on three grounds: first, that Mary lacked testamentary capacity; second, that Carolyne procured the execution of the Will by the exercise of undue influence upon Mary; third, that Mary lacked knowledge and approval of the Will. Vicky counterclaims for a pronouncement against the validity of the Will and for an intestacy and for the grant of letters of administration.
  4. At the trial, Carolyne was represented by Miss Angharad Davies of counsel and Vicky by Mr Phillip Morris of counsel. Svetlana represented James's estate in person. I am grateful to them all. I am especially grateful to Miss Davies for preparing an invaluable chronological and cross-referenced guide to the main documents, including in particular the medical records.
  5. The remainder of this judgment will be structured as follows:
  6. 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

  7. A great deal of evidence was given at trial concerning the details of relationships and disputes within the family. I do not think it necessary to refer to all of that evidence or even to mention the evidence of each and every witness, though I have taken all of the evidence into account. The point of these proceedings is to determine the specific issues that will be discussed below, not to adjudicate more widely on the family history. Even so, I shall set out a substantial amount of the evidence in the following narrative.
  8. Carolyne was born in 1960, Vicky in 1963 and James in 1965. The marriage between their father and Mary broke down and ended in divorce. In 1974 Mary married Ronald Wadge ("Ron") and the family moved to Bridgend. Ron had four children from his previous marriages: Jane Griffiths, Richard Wadge, Paul Wadge and Russell Wadge. Carolyne, Vicky and James had a close relationship with Ron and used to call him "Dad".
  9. In 1980 Carolyne married her first husband, Roger, and Mary and Ron moved to Basseleg in Newport; James went with them. Vicky did not move with them but moved into a flat by herself. This was for her own convenience, as she was working in Bridgend and wanted to avoid lengthy travel to and from work each day. Although Vicky was probably a bit of a handful in her teenage years, relations within the family were good at this time.
  10. In 1985 James moved to Devon. There was no falling out within the family, but the distance from Newport meant that from then onwards he had relatively little contact with other members of the family. Until he moved away, he had gone by the surname Wadge, but from that point on he resumed his father's surname, Wilkes. I think it likely that, although Mary was aware of this, she naturally tended to think of him still as James Wadge.
  11. The relationship between Carolyne and Vicky broke down in 1994. Carolyne and Roger had experienced marital difficulties and had separated briefly. They attempted a reconciliation and Roger moved back into the matrimonial home, but shortly afterwards Vicky told Carolyne that Roger had "made a pass" at her before the marriage, when Vicky was 15 years old, and that she ought not to have taken him back. The allegation caused Carolyne great upset; she confronted Roger, who denied the allegation, and she accused Vicky of lying. The relationship between the sisters broke down. Initially, Mary tried to avoid overtly taking sides, assuring Carolyne that if there were any truth in the allegation Vicky would have raised the matter before the marriage in 1980, while at the same time being non-committal to Vicky. However, in the summer of 1995 Mary told Vicky that she believed Carolyne that the allegation was untrue. This resulted in a serious rupture between Mary and Vicky, as is shown by a letter that Vicky wrote to her mother on 12 July 1995. Some extracts give the flavour.
  12. "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"
  13. Mary's feelings appear from a letter that she wrote some six weeks later, on 1 September 1995, to her own sister.
  14. "… 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."
  15. Vicky's evidence is that her relationship with Mary was soon mended and there was regular contact between them and between Mary and Vicky's children. She says, however, that from time to time contact would suddenly stop: "I have since realised that this was due to pressure from Carolyne each time she found out. For years it continued like this" (witness statement, paragraph 17). Carolyne denies that she sought to prevent the repair of relations, and I accept her evidence. Some contact between Vicky and Mary clearly resumed in 1996, or maybe in late 1995, though I find that this was limited to fairly infrequent contact with the grandchildren and that, contrary to Vicky's claim, the relationship between mother and daughter did not recover to any level of mutual warmth and affection.
  16. In July 1997 Vicky had her fourth child, a daughter called Rosita. This was the occasion for a further major disagreement between Vicky and Mary. Vicky's evidence, supported by Ian, is that Mary had agreed to look after her three sons while she went into hospital to have the baby, but that on that very morning Mary called by telephone to say that she could not look after them after all, as she was going shopping with Carolyne. Carolyne says that this is not true: Mary called to offer help but was told that arrangements had been made for friends to have the boys; Mary was not going shopping with Carolyne, as Carolyne had had an accident that rendered her unable to go shopping. I simply cannot know where the truth lies, but I think it probable that either there was a misunderstanding or Mary called to say that she needed to attend to something (possibly shopping for Carolyne) before taking the boys, and that Vicky overreacted. I do not find that Carolyne sought to sabotage prior arrangements for childcare, which is the inference invited on behalf of Vicky.
  17. What is clear, however, is that there was a falling out. This was compounded by what I think was probably a case of crossed wires after Rosita's birth. Carolyne states (statement, paragraph 17): "Sadly, Mum was not informed that Vicky had given birth. When Mum did go to visit Vicky and her new granddaughter, Vicky just shouted at Mum." Two contemporaneous documents lend some support to that evidence. A medical note dated 26 August 1997 records of Mary: "Tearful — daughter has new baby + is denied access. Feels guilty as not enjoying life." Mary's diary entry for 8 September 1997 reads:
  18. "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.

  19. Several diary entries by Mary in 1998 show that the rupture with Vicky was continuing. In July 1998 Mary wrote:
  20. "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.

  21. In 2003 Mary had a hip replacement. Carolyne now undertook more with domestic chores and with driving Mary to and from the shops, although this involved significant round trips between Bridgend and Newport. I accept Carolyne's evidence that Vicky and Ian did not help; though it must be noted that Vicky was diagnosed with breast cancer in 2003.
  22. In 2004 Mary was herself diagnosed with breast cancer. In November of that year Carolyne and Vicky met by chance at a rugby game. Carolyne states: "She told me that she wanted to have a relationship with me but did not want a relationship with Mum. I thought I would be able to persuade her to change her mind, but Vicky insisted she did not want to have anything to do with Mum" (statement, paragraph 25). Vicky states: "I believed Carolyne wanted a reconciliation as Mum had just been diagnosed with her breast cancer. Carolyne and her family continued to make an effort with us for about 10 months. We were seeing each other regularly but not at Mum and Dad's" (statement, paragraph 27). She said in cross-examination that she did not need to have a reconciliation with Mary at that time, as they had an ongoing relationship. Carolyne agreed in cross-examination that their meetings did not take place at Mary and Ron's home. She denied (as was put to her) that this was because she was trying to keep Vicky and Mary apart; she said it was because Vicky refused to go there.
  23. I accept the substance of Carolyne's evidence on those matters. There is good reason to believe that there was no genuine relationship between Vicky and Mary, and no contact beyond some communication when Mary—infrequently—saw the grandchildren, and that Vicky did not want to rebuild relations with her mother. It is also clear that Mary remained deeply wounded by Vicky's words and conduct. The following entries in the documents are relevant.
    • 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."
  24. Carolyne's evidence, which I accept, was that in the light of Mary's ill-health she (Carolyne) asked Vicky to give some help, but she refused, saying that Mary had not helped her when she had been similarly ill in 2003. Carolyne's evidence was that Ian had come to the telephone and, in an attempt to explain Vicky's stance, had said, "You have to understand, Carolyne. Vicky has put Mum in a box and locked it. There won't be a relationship." Vicky's evidence was that she herself was unwell at the time and that, far from resenting Mary's lack of help when she herself had been ill, it was she who had chosen to distance herself from the family at that time. I consider Carolyne's evidence on the matter to be more plausible than Vicky's and, where they conflict, I accept it. I do not think that Ian was asked about the alleged telephone conversation with Carolyne and it is not necessary for me to make a finding concerning it. (It was not, anyway, being suggested that he was attempting to be unhelpful or unreasonable in what he is alleged to have said.)
  25. The amicable relationship between Carolyne and Vicky ended abruptly in July 2005. Roger, Carolyne's former husband, died in circumstances that were particularly traumatic for Carolyne. Speaking to her in the aftermath, Vicky asked whether in their final conversation Roger had confessed the truth about the former allegation. Carolyne states (statement, paragraph 30): "For me, this was the final straw. I could not continue my relationship with Vicky when she refused to acknowledge or help Mum and would not stop bringing up the past. She was simply fixated on the past and could not move forward. Thereafter, our relationship broke down again and I did not speak to Vicky." That evidence was neither contradicted nor challenged.
  26. In 2005 Mary developed atrial fibrillation. From around that time, the medical notes begin to record that she suffered from breathlessness on walking more than short distances; this, however, seems likely to have been due to a past history of smoking and, possibly, to incipient heart failure.
  27. In June 2006 her GP wrote a referral letter to the Memory Clinic at St Cadoc's Hospital, Caerleon:
  28. "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".

  29. The continuing rift between Mary and Vicky is evident from Mary's diary entry for 19 February 2007:
  30. "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.

  31. In 2008 James and Svetlana, whom he had married in Russia in 2006 and with whom he had lived in Devon since 2007, moved to live in Newport.[1] They maintained a good relationship with Mary and provided support and assistance to her. This was doubtless particularly valuable, because in 2008 Ron was diagnosed with dementia and Mary because his principal carer. (Carolyne observes, with some merit, that Mary would have been unlikely to become Ron's principal carer if the referral in 2006 had resulted in any diagnosis of significant mental deterioration on her part.)
  32. On 31 July 2008 Mary wrote, on behalf of herself and Ron, to their GP, authorising the GP to give to Carolyne any information she requested regarding their health: "Carolyne is very concerned regarding the health of each of us." In cross-examination of Carolyne, Mr Morris suggested that this letter was an example of the way in which Carolyne had taken "full control" of Mary's life, though it seems to me to show no such thing.
  33. The Will

  34. Mary gave instructions for the Will to HSBC Bank (HSBC) on 4 October 2008, though the Will was drawn up by solicitors on the basis of those instructions. The instructions were given in person at a branch of HSBC in Newport. Carolyne was with Mary when the instructions were given. As part of their case, Vicky and Svetlana contend that Carolyne controlled both Mary's relationship with HSBC and the process by which the Will was made. I do not accept that.
  35. Mary became a customer of HSBC in July 2008. She had previously been a customer of First Direct, which is a division of HSBC without a High Street presence. (When High Street services are required, customers are directed to HSBC.) It appears probable that the initial contact for the transfer to HSBC itself came from Carolyne. Vicky and Svetlana portray this as part of a controlling pattern of behaviour, whereby Carolyne overrode her mother's will and controlled both her finances and the making of the Will. It is unnecessary, however, to place on events any such sinister construction; indeed, that the defendants do so is in part the result of their misunderstanding (wilful or otherwise) of the evidence. Vicky complains (statement, paragraph 33) that Carolyne caused Mary to move her account to a bank where she was unknown to the bank staff, but this rather ignores the fact that First Direct did not have staff whom one could get to know. Carolyne's evidence was that her mother was happier with a "customer-facing" bank, by which I understood her to mean a bank with which one could communicate face-to-face rather than over the telephone or on-line. The defendants have alleged that Carolyne controlled Mary's finances by having the bank statements sent to her own address, so that Mary did not see them. That allegation is false: the contemporaneous bank statements are addressed to Mary's home address. I think that the allegation rests on a mistaken inference from the fact that bank statements produced after Mary's death were sent to Carolyne. (This is not the only instance in which a false allegation has been made on the basis of a careless analysis of the documents.)
  36. Again, Vicky and Svetlana have alleged that Carolyne was responsible for the making of the appointment for giving instructions for the Will—both for the actual making of the appointment and for the initiative to make a will at all. This is possible. However, there is no evidence to support it. Carolyne's evidence is that Mary told her she wanted to make a will and asked her to come with her to her bank, with whom she had already made an appointment for that purpose, just as she accompanied her to other appointments. On the balance of probabilities, I accept that evidence.
  37. The instructions for the Will were taken by an HSBC employee, Elen Davies, who completed the bank's "Will writing service instruction form", which was then signed by Mary. Carolyne says that she was invited into the room with Mary and did not know that Mary ought to have been seen by herself. (If the instructions had been taken directly by a solicitor, instead of by a bank employee, no doubt a different procedure would have been followed.) The form records the approximate value of Mary's estate and the identities of the executors (Carolyne and HSBC Trust Company (UK) Limited). In these proceedings Vicky and Svetlana have alleged that Mary informed Elen Davies that she was not married; this allegation has been used to support an inference that she lacked testamentary capacity. In fact, the instructions form recorded that Mary was married. (There is an affirmative response to the question, "Have you divorced … or are you intending to do so in the near future?" There is no evidence that Mary was considering divorcing Ron. I wonder whether confusion arose because she had been divorced from her first husband.) The question, "Is there anyone who might have a claim on your estate who will not be included in your Will?" was answered affirmatively, and the answer was supplemented by the following text:
  38. "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.

  39. The specific instructions given for the testamentary dispositions to be made in the Will correspond to the eventual provisions of the Will. Clause 1 of the Will provides: "I revoke all earlier Wills and testamentary dispositions." The parties have not identified any such earlier document. Clause 2 appoints the executors.
  40. Clause 4 makes specific bequests:
    • 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."
  41. Clause 7 provides that the trustees shall hold the residuary estate as follows:
    • 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.
  42. Clause 8 read:
  43. "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."
  44. The Will itself was prepared by Irwin Mitchell, solicitors, on the basis of the instructions form. There was no direct communication between Mary and Irwin Mitchell. Mary executed the Will at the branch of the bank, where it was witnessed by two employees of the bank.
  45. When Mary was given a copy of the Will, she was also given a four-page "Commentary" written by Irwin Mitchell. The second paragraph said:
  46. "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."
  47. Carolyne's evidence is that she had not spoken to Mary about the intended contents of the Will and that the first she learned of the intention to benefit her in the manner described was when Mary gave the instructions to Elen Davies. Again, I see no reason not to accept that evidence. On behalf of Vicky it was put to Carolyne that she had deliberately arranged matters so that no one else would know what was in the Will. This is inherently implausible, because Mary was on good terms with James and Svetlana; it is not clear how Carolyne could have hoped to maintain this secrecy. (This point is all the stronger if, as Vicky purports to believe, Mary's mental faculties were seriously impaired by this point and she had significant problems remembering things.) I specifically asked Mr Morris whether he was putting it to Carolyne that she told Mary not to tell anyone about the Will. Very properly, he did not do so, but after taking instructions he put Vicky's "suspicion" that this is what had happened. I find that Carolyne did no such thing. Carolyne's evidence was that she did not mention the Will to others but that Mary told James about it. This is inherently plausible evidence and I accept it. I do not, however, think that Vicky learned of the existence of the Will until 2016.
  48. Matters after the Will

  49. On 17 December 2008 Carolyne and Mary attended a solicitor, pursuant to an appointment made by Carolyne, to discuss the question whether clause 4.1 of the Will was sufficient to achieve its intended purpose in the light of the beneficial joint tenancy on which Ron and Mary held their home and the chance that Mary might predecease Ron. It was agreed that a notice to sever the joint tenancy would be served but that, as Ron tended "these days" to be "very emotional" and to "fly off the handle", it would be unwise to present him with a stark notice that he would not understand and, accordingly, that the notice should be accompanied by a brief explanation and be handed to Ron when he was "in a good mood". This was duly done and the severance was effected without incident. It is likely that the need for severance of the joint tenancy, if the Will were to be assured of achieving its intended purpose regarding the gift of Mary's share and interest in her home, was made apparent by the commentary provided by Irwin Mitchell. It is also likely, though speculative, that it was Carolyne who appreciated the significance of the issue and brought it to her mother's attention. That does not, however, mean that Mary did not understand the point and did not want it addressed. I am mindful that the appointment for the attendance was made by Carolyne, but I do not find anything sinister in this. Carolyne's evidence, which is plausible and supported by other indications and which I accept, was that she tended to make telephone appointments for her mother, because Ron would become agitated or upset if he overheard telephone conversations.
  50. Svetlana's evidence (statement, paragraph 15) was that in early 2009 Mary told her and James that she felt she had made mistakes in her Will and wanted to change it, but she said "she could not explain because she did not want to upset [Carolyne]." Svetlana says that James concluded that Mary "was likely confused due to her declining mental health." I do not accept this evidence or the rest of the evidence in the relevant paragraph, though it is possible that it has some distant connection to a conversation that took place (perhaps regarding the issue in respect of clause 4.1 of the Will). First, there is no genuine evidence of confusion on Mary's part before mid-2009, and then (as noted by Svetlana at paragraph 18 of her statement) it appears to have been related to a urinary tract infection. Second, Mary was at the time living independently (albeit with practical assistance, particularly from Carolyne) and was caring for Ron. Third, there is no independent evidence that James was expressing concerns at the time regarding either that state of affairs or Mary's mental health. Fourth, James appears to have been satisfied as to Mary's mental capacity the following year, as (a) he felt able to receive a gift of £10,000 from Mary and (b) he agreed to be named as an attorney in her LPA. Fifth, the evidence that Mary felt she could not explain because she did not want to upset Carolyne is not suggestive of confusion but rather of either a choice not to change the Will (in order to avoid upsetting Carolyne) or a wish to effect changes in private and without telling James and Svetlana what they were. Both of these would be rational, and the latter would more naturally have led James to assist Mary to make an appointment with a solicitor, not to ignore her concerns. However, if the evidence is in fact correct, it tends to show that Mary understood the nature and effect of the Will, though she now regretted it but did not do anything to change it. That does not seem to me to advance the defendants' case.
  51. Mary's medical records in 2009 contain some potentially relevant entries.
    • 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.)
  52. In 2010, Ron and Mary each made a Lasting Power of Attorney - property and financial affairs (LPA), appointing Carolyne and James as the attorneys. The LPAs were prepared by Mrs Kim de Vall, a member of the Institute of Professional Will Writers. Mrs de Vall gave evidence at the trial. I found her an impressive and straightforward witness. She could not remember how the initial contact with her was made. She claimed a good recollection of the meeting with Ron and Mary at their home, and she produced a small bundle of documents that she had recently found, which included a manuscript record of instructions. I note in particular the following points in, and arising from, her evidence.
    • 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.
  53. Some entries in the medical records in 2010 may be noted.
    • 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".

  54. Carolyne's evidence is that from around late 2010 Vicky would call more frequently to see Ron but continued to ignore Mary. I accept that evidence. An entry in Mary's diary on 28 January 2011 reads: "V came again to sit with Ron. Didn't ask if she could, didn't speak a word to me. Went without a word as usual." In a witness statement that she made in December 2015 in proceedings in the Court of Protection (see further below), Vicky stated: "There was a falling out between myself and my mother, but I never ceased to care about her or to be anxious about her and my step-father's welfare, and, when we began seeing each other again in 2010, it was as if nothing had happened." In cross-examination Vicky said that she ought to have said, "seeing each other openly", as she had been seeing Mary without Carolyne's knowledge. However, that is plainly not what the statement meant. James's statement in the same proceedings, in July 2014 (and thus well before Vicky's statement, which could have answered it) stated that Vicky "was estranged from [Mary and Ron] from 1995 until approximately Christmas 2010", which is entirely consistent with Vicky's statement in those proceedings. When asked about Mary's diary entry, Vicky suggested that Mary had written it "to cover her back", which is implausible. I reject Vicky's oral evidence on these matters and accept that the true picture is shown by Carolyne's evidence, Mary's diary entry and James's statement. Svetlana said in cross-examination that she did not think that the estrangement between Mary and Vicky had lasted until as late as 2010, and she implied that James had made his statement on the basis of suggestions by others. The implication is unpersuasive and I find that Svetlana is wrong to dispute the statement's accuracy on this point.
  55. On 18 July 2011 Mary attended a solicitor at the firm that now acts for Carolyne in order to discuss her Will and the notice to sever the joint tenancy, which had been served on Ron but not sent to HM Land Registry. It was agreed that the severance should be registered, but the solicitor recorded that Mary was happy that the Will reflected her wishes and did not need to make any material changes to it. Carolyne was present at the meeting, and the solicitor's letter afterwards was sent to Mary at Carolyne's address.
  56. In fact, earlier on the same day, Mary and Carolyne had attended on Dr Linton, who had informed them that she diagnosed Mary to be suffering from dementia. (I shall deal with this more fully later.) The diagnosis was not mentioned to the solicitor. The solicitor was not, of course, taking instructions for a will.
  57. In 2010 Mary had given Carolyne £20,000 and James £10,000. Vicky learned of this in 2011 and was displeased. She has alleged—and, I accept, very probably believes—that Carolyne and James were abusing their position to take money from Mary and Ron. (I make clear that I am not purporting to adjudicate on such matters, which were raised in the Court of Protection proceedings.) In November 2011, Mary wrote to Carolyne:
  58. "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"
  59. On 28 November 2011 James made a telephone call to the solicitor whom Mary had seen previously. The solicitor's attendance note records: "James stated they [that is, Ron and Mary] wanted to make new Wills (this indicated that he believed they already have Wills). … He asked that I call them … to arrange to visit them …" The solicitor made a further attendance note that day:
  60. "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.

  61. In 2012 Vicky made a complaint to the Office of the Public Guardian (OPG) regarding Carolyne and James's management of Mary's financial affairs. (She had previously made a complaint to the police.) On 7 December 2012 the OPG wrote to Carolyne to say that, after considering the evidence, the Public Guardian would be taking no further action at that time and the investigation was now closed. The letter said in part:
  62. "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."
  63. Mary's health had been declining in 2011 and 2012. On 11 April 2012 she was admitted to the Royal Gwent Hospital, Newport, on account of "fall and worsening confusion". The hospital records show that the initial diagnosis was "mechanical fall and UTI" and that Mary was treated with antibiotics, but that she suffered a stroke during admission and thereafter developed hospital-acquired pneumonia and C.diff diarrhoea, which delayed her discharge. The record of discharge on 27 June 2012 records:
  64. "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."
  65. The capacity assessment was carried out at the residential home on 16 July 2012 by Pam O'Brien, the Community Psychiatric Nurse. She recorded that the question for consideration was whether Mary had the capacity to make decisions as to who would be permitted to visit her at the residential home. Pam O'Brien answered the question in the affirmative. She recorded that Mary was clear and insistent in her instruction that she did not want to be visited by Vicky, because she found her visits to be too distressing, and that "Mary was able to inform us about her difficult relationship with Vicky. She stated that Vicky has always tried to divide family members and believes Vicky is influencing Ron (husband) behaviour. Mary clearly understood her decision. She sign a letter stating that she no longer wished to see Vicky."
  66. Vicky gave evidence that she believes that Carolyne had coached Mary to make this decision and that, when she subsequently visited and the Sister asked Mary if she would see Vicky, Mary was pleased to see her. There is simply no evidence that Carolyne had coached Mary as alleged, and the totality of the evidence does not point to any inference that she had done. Indeed, it is very clear that Mary did find Vicky to be a cause of upset over many years. I accept, however, that Vicky did subsequently see Mary at the residential home. By this time, Ron had become estranged from Carolyne, because he had come to believe—principally, I think, on account of what he had been told by Vicky—that Carolyne had been stealing money from his account. Accordingly, it was Vicky who brought Ron to see Mary at the residential home. I also accept that on those occasions Mary received both Ron and Vicky warmly.
  67. In February 2013 Ron went into hospital, and on his discharge he was moved to a nursing home. In March 2013 Mary moved to live with James and Svetlana at their home; her own home was let to tenants to provide an income. Her care was provided by the local authority and by Svetlana, with James also assisting.
  68. Ron died in September 2013. His will, made several years previously, left his entire estate to Mary and named her as executrix. In January 2014 James and Carolyne obtained a grant of letters of administration for the use and benefit of Mary, who lacked capacity to administer the estate.
  69. In 2014 Vicky brought proceedings in the Court of Protection for the purpose of revoking the LPA for Carolyne and James and obtaining her own appointment as Mary's Deputy. The proceedings arose out of Vicky's complaints that both attorneys, James as well as Carolyne, had been misusing Mary's money—and, before his death, Ron's too—for their own purposes. James made two statements in those proceedings. The first, dated 24 July 2014, contained the following passages.
  70. "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.

  71. By late 2015, however, the relationship between Carolyne and James was beginning to break down. It is unnecessary to explore the reasons for this. One factor, however, was that James and Svetlana believed that they were being inadequately remunerated for the care they were providing to Mary. In 2016 James made an application to the Court of Protection for the sale of Mary's house, in order that the proceeds of sale might be applied to the cost of professional carers. Carolyne opposed the application. By an order dated 14 October 2016, the Court dismissed the application for an order for sale but directed that the joint attorneys cause the sum of £2,050 to be paid to James each month for as long as he was caring for Mary. In her witness statement Carolyne stated: "I strongly believe James only initiated this claim because he did not want me to inherit the Property." In cross-examination, she said—perhaps more fairly—that he made the application for sale because he was "on his haunches", by which I think she meant he was in financial difficulties. Svetlana, on the other hand, says that Carolyne's resistance to the sale of the house was simply due to her desire to protect her inheritance. It is unnecessary for me to delve into the motives of either party. This case is not a re-litigation of the issues in the proceedings in the Court of Protection.
  72. The rest of the narrative can be taken shortly. Mary died on 8 September 2018 at the age of 85 years, having been in a state of decline for several years. On 18 September 2018 James entered a caveat. On 31 October 2018 Svetlana wrote to Carolyne, seeking payment to herself from Mary's estate of some £37,000 as payment for care she had provided to Mary. On 10 September 2019 Vicky entered a caveat. James died in September 2023. These proceedings were commenced on 4 July 2024.
  73. Testamentary Capacity

  74. The test for whether a testator has sufficient testamentary capacity to execute a will was set out by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, at 565:
  75. "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."
  76. Accordingly, there are three relevant questions: (i) Was the deceased able to understand the nature of the act of making the Will and its effect? (ii) Was the deceased able to understand the extent of the property of which she was disposing? (iii) Was the deceased able to comprehend and appreciate the claims to which she ought to give effect?
  77. In Hughes v Pritchard [2022] EWCA Civ 386, [2022] Ch 339, Asplin LJ (with whose judgment Moylan LJ and Elisabeth Laing LJ agreed) said:
  78. "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.

  79. The defendants' pleaded case as to the deceased's lack of testamentary capacity is set out most fully in paragraph 16 of Vicky's Defence and Counterclaim:
  80. "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."
  81. The first particular, which refers to paragraph 13 (dealing with undue influence) and paragraph 15 (dealing with knowledge and approval) of the Defence and Counterclaim is the first of two instances—the other being in paragraph 15—of relying on matters set out elsewhere "[t]o the extent that they are relevant". As the extent of any supposed relevance is not stated, this is unhelpful. In fact, no matters that are mentioned in paragraphs 13 and 15 but not in paragraph 16 are relevant to the issue of testamentary capacity.
  82. The particulars in (d), (h) and (i) can quickly be dealt with. Shortness of breath has of itself nothing to do with testamentary capacity (in Mary's case is appears to have been due to a combination of a history of smoking and incipient heart failure): particular (d) is irrelevant. (Whether certain physical conditions may themselves have contributed to cognitive problems is a different question. It is the cognitive problems, not the causes, that are relevant to capacity.) Particular (h) rests on a misreading of the documents. Mary did not tell HSBC that she was unmarried; nor did she fail to mention that she was married. The documents show that she told the bank that she was married but was making no provision for her husband in the will. As for particular (i), a failure on the part of those taking instructions for a will cannot be indicative of lack of testamentary capacity, though it might mean that a piece of strong evidence of the existence of testamentary capacity is lacking. The remaining particulars do go to the question of Mary's cognitive functioning, though particular (e) begs the question rather than answering it.
  83. Svetlana's Defence raises a number of additional matters, of which these are the most (possibly) relevant: Mary hallucinated owing to urinary infections; having withdrawn her pension, she would hide it (up to £700 at a time) in the house and then forget where she had put it; she "served deserts with parsley sauce and would not notice"; she would offer a cup of tea and then repeat the offer after a short time; she "wrapped a half-eaten box of chocolate as a Christmas present"; in early 2009 "she drove into a staggered crossing on an empty road". Svetlana also adopts Vicky's complaints about the contents of the Will and makes some of her own. She says that the Will named a non-existent beneficiary. This is because her own name is shown as "Svetlona Wadge" instead of "Svetlana Wilkes". I see no significance in this. The misspelling of the forename is just that. The incorrect surname appears to be no more than a slip; James's surname is given correctly as Wilkes, though Mary was probably accustomed to think of him by the surname he had used before he moved away. (I note, incidentally, that suggestions that these supposedly significant mistakes in the Will indicate cognitive dysfunction on Mary's part rather cut across the further complaint that Carolyne was controlling the instructions.) Svetlana also complains that in the contents of the Will Mary "did not make any provision for her future care". A will, however, is not the place to make such provision.
  84. In the end, the question whether the requirements for testamentary capacity are satisfied is a question of fact that must be answered on the basis of evidence: witness evidence, documentary evidence, and expert evidence. I shall address the issue of expert evidence after addressing the other matters.
  85. In my view, the Will (which is accepted to have been duly executed) is not itself irrational, so as to give rise to concerns about Mary's capacity. Subject only to the issues regarding Ron and the joint tenancy, there has been no suggestion that Mary failed to understand the nature and extent of her estate or failed to mention anyone whom she would have been expected to mention. As to Ron, it is clear that Mary did not intend to leave him anything in her Will. The gift to Carolyne in clause 4.1 was of Mary's "share and interest" in the home she owned together with Ron, not of the entirety of the house. If the instructions for the Will had been taken by a solicitor rather than an employee of the bank, it is likely that the issues regarding beneficial joint tenancies and the right of survivorship would have been brought to Mary's attention at the outset. As it is, those issues were raised in the document that accompanied the Will, and Mary subsequently addressed them.
  86. The unequal provision among the three children has to be considered. The starting point, however, is that a testatrix is free to leave her estate as she wishes. Vicky says that, if Mary had had full capacity and had understood the contents of the Will (and if her will had not been overborne by Carolyne), she would not have excluded Vicky from all benefit. I consider that the weight of the evidence is very strongly to the contrary. For many years Mary had felt deeply wounded by Vicky's conduct towards her and the two had been estranged. Mary's persistent attitude towards Vicky makes the latter's exclusion from the Will quite unsurprising. It is then necessary to consider whether a disorder of the mind (that is, some issue of mental illness, rather than some malign third-party intervention) had poisoned her affections. This will involve a consideration of capacity generally. However, only if one begins by supposing that Mary had no good reason for her attitude towards Vicky can one assume that Vicky's exclusion from all benefit was irrational. I do not make that supposition.
  87. It is also worth bearing in mind that, although Mary expressly provided that Vicky was to receive no benefit under the Will, she also made express provision for Vicky's children. They were given 25% of the residuary estate, which was the same provision that was made for James. It seems reasonable to suppose, therefore, that Mary was, in effect, giving to Vicky's children the gift that would otherwise have gone to Vicky.
  88. As to the disparity between the provisions made respectively for Carolyne and for James, this is stark but not irrational. Carolyne had been a constant support for Mary, while James had for many years a more distant relationship with her and had returned to live in South Wales only very shortly before the instructions for the Will were given. The relationship between Mary and Carolyne was particularly close. The gift of 25% of the residuary estate to James (like that to Vicky's children) did not appear at the time to be negligible, though it was certainly very modest—Mary estimated the value of her assets other than her share in the house as being £75,000, and no one has suggested that this was materially inaccurate, though I am told that the residuary estate now has no real value. It may well be that, if Mary had retained capacity after James and Svetlana assumed responsibility for her care, she would have altered her testamentary provision. But she did not.
  89. I turn to the documentary record, which is in my view the most reliable way of assessing Mary's mental capacity at any given time. In respect of the period until the very beginning of 2011, the main points, as I see them, have been set out above. Here I make the following observations.
    • 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.
  90. In my judgment, none of these pieces of evidence tend to cast doubt on Mary's capacity to make a will in October/November 2008. Indeed, in the absence of any evidence that she was suffering from an episode of confusion when she gave instructions for the Will or when she executed it, they tend to show that she had the necessary testamentary capacity.
  91. The period after January 2011 is even further removed from the date of the Will. I note, fairly briefly, the following selected points appearing from the documents.
    • 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.
  92. I do not think it worthwhile to continue the analysis of the records after the end of 2012, as that is already more than four years after the Will was made. All of this evidence, from both before and after the execution of the Will, would suggest that any memory problems from which Mary was suffering in 2008 were not such as to deprive her of testamentary capacity. Of course, what matters is her capacity at the time of making the Will (or, perhaps, the time of giving instructions for the Will). The manner in which instructions for the Will were taken means that there is, regrettably, no evidence of any assessment of capacity being undertaken at that point. However, as the terms of the instructions and the contents of the Will are rational, and in the absence of any evidence that Mary was suffering from a transitory deficit of capacity at the material time, there is no reason in the records to suppose that she lacked capacity to execute the Will.
  93. The evidence of witnesses of fact does not affect my conclusion. Although Mary was having a great deal of practical assistance from Carolyne until and after the making of the Will, it is clear and I find that she was managing her own financial affairs, as well as caring for her husband and maintaining a reasonably active social life, including regular attendance at church. She obviously had awareness of failings in her short-term memory. As I have said, I do not consider such failings to be of great significance in themselves. Such things as forgetting that one has asked a guest if he or she would like a cup of tea (or, for other people, forgetting where one has put one's keys or spectacles) are commonplace and by themselves have nothing to do with the test for testamentary capacity. Generally, matters raised by Vicky and Svetlana seem to me to be trivial. The allegation that Mary gave rotting fruit as a Christmas present turned out, on questioning, to relate to an alleged incident where, instead of putting satsumas in a stocking, she had wrapped them in Christmas paper and placed them under the Christmas tree. Although Svetlana raises such matters as giving a partially eaten box of chocolates as a present and putting parsley sauce on a pudding as evidence of lack of capacity, they seem to me (even if true, which I am disposed to doubt) to have no genuine relevance in the context of the evidence as a whole. Svetlana's complaints have little force, as (i) she moved to South Wales only shortly before the Will was executed—nearly all her contact with Mary was after 2008 and most of it was after Mary's condition had significantly deteriorated in 2012—, (ii) James was apparently satisfied of his mother's cognitive abilities well after the Will was executed, (iii) James and Svetlana fell out with Carolyne in late 2015 and had at best an impaired relationship with her thereafter, and (iv) Svetlana has—as she accepted in cross-examination—a financial reason for contesting Mary's capacity, although that in itself does not mean that her evidence is to be discounted. As to Vicky, her evidence as to Mary's mental condition tends to be undermined by what I consider to be the untruthfulness of her evidence regarding her relationship with Mary and by the lack of meaningful contact that they had for many years before the Will was executed. Vicky was insistent that her desire to contest the Will was not borne of financial greed, as she and her husband are financially secure. I am inclined to believe that evidence. I think that she is motivated rather by hostility to Carolyne and also, in fairness to her, by a genuine belief that Carolyne has abused her close relationship with Mary.
  94. I turn to consider the expert evidence. By an order dated 18 November 2024 District Judge Jackson gave the parties "permission to rely on the jointly instructed written evidence of an [sic] testamentary capacity medical expert." The parties jointly instructed Dr Simon B N Thompson, an Associate Professor of Clinical Psychology and Neuropsychology, who wrote a report dated 22 January 2025, which he updated on 5 February 2025, and gave several written responses to questions put to him by the parties. I was not much assisted by Dr Thompson's evidence, for reasons that I shall explain.
  95. Dr Thompson wrote his report by reference to five questions or matters that were set out in the letter of instruction:
  96. 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.

  97. Section 2 of the report lists the documents that Dr Thompson reviewed. (The full list of the documents provided to him is in the letter of instruction.) I shall come back to this later. In section 3 of his report, Dr Thompson identified and quoted from what he regarded as salient documents from 1997 (when Mary had colonic cancer) until October 2014. In section 4 of his report, Dr Thompson set out a "Summary of Main Points in Documents". I set it out in full, save that here and elsewhere I omit the references to document numbers.
  98. "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.

  99. Dr Thompson's answer to the first question was as follows:
  100. "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."
  101. Dr Thompson answered the second question—the relevant one, concerning testamentary capacity—as follows:
  102. "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."
  103. Questions no. 3 and no. 4 may be taken together, in that they both relate to causes, rather than existence and extent, of cognitive dysfunction. Dr Thompson opined that Mary's cancer episodes, atrial fibrillation and struggles to care for her husband would all have aggravated her memory impairment. He continued:
  104. "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."

  105. Dr Thompson answered question no. 5 as follows:
  106. "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."
  107. For the following reasons, I do not accept Dr Thompson's opinion that Mary lacked testamentary capacity.
  108. 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.

  109. In conclusion, I have had no difficulty in finding that Mary had testamentary capacity when she made the Will. It is, I fear, rather unsavoury and disrespectful to the dead to advance what I regard as a groundless case that a clearly capable testatrix lacked testamentary capacity.
  110. Undue Influence

  111. The present case concerns not the well-known equitable doctrine of undue influence that applies to inter vivos transactions but the importantly different doctrine of undue influence as it affects wills. Snell's Equity (35th edition, 2025) states at para 8-010 (citations omitted):
  112. "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."
  113. In Edwards v Edwards [2007] EWHC 1119 (Ch), Lewison J directed himself as follows regarding the doctrine of undue influence as it applies to wills:
  114. "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."
  115. The allegations of undue influence are set out in paragraph 13 of Vicky's Defence and Counterclaim:
  116. "(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."
  117. The issue of undue influence is one of fact, to be decided by the court on the basis of the entirety of the evidence. The question, in the end, is whether Mary acted as a "free agent". There is no presumption of undue influence. There is also, in the present case, no direct evidence of undue influence: there is no evidence that Carolyne forced Mary to make the Will, or that she pressured or nagged her to do so and thereby wore down any resistance. This means that the case can be advanced only on the basis that an inference is required from a range of other facts. Most of the particulars in Vicky's Defence seem to have nothing to do with an allegation that Mary made the Will because her own will had been overborne by coercion by Carolyne. The real thrust of the case is that the exercise of undue influence is necessarily to be inferred from the facts of (i) the terms of the Will and the instructions for it, (ii) Mary's vulnerability to coercion on account of her ill health, both physical and mental, (iii) Carolyne's exclusion of others from contact with Mary or involvement in her affairs, (iv) Carolyne's disparagement of Vicky to her mother, and (v) Carolyne's control over Mary's affairs. Both Vicky and Svetlana have said that they consider that the terms of the Will are only explicable as a result either of Mary's lack of capacity or of Carolyne's undue influence over Mary.
  118. In the light of the lengthy narration of the facts in the earlier part of this judgment, I am able to take the issue of undue influence briefly.
  119. The Will itself is rational, and its provisions are readily explicable as an exercise of Mary's free will and without recourse of hypotheses of improper pressure on Carolyne's part.
  120. I accept that in 2008 Mary was having some short-term memory problems and was also physically and mentally worn by a combination of her own ill-health, the pressures of caring for Ron, and her own misery at the breakdown of her relationship with Vicky and the lack of contact with her grandchildren. This would probably have made her more vulnerable to the exercise of pressure by Carolyne. However, that is not evidence that such pressure was exercised.
  121. The allegation that Carolyne was excluding others from contact or influence with Mary is, in my view, unimpressive and unpersuasive. This allegation chiefly concerns Vicky; James had only very recently moved back to South Wales when the instructions for the Will were given. But Carolyne was not responsible for excluding Vicky from a relationship with Mary. The breakdown of Vicky's relationship with Mary in 1995 was due to a choice made by Vicky, even if the background involved the rupture between Vicky and Carolyne. Thereafter Vicky chose not to seek rapprochement with her mother. There is no plea of fraudulent calumny in this case, though Vicky's evidence contains a number of allegations to the effect that Carolyne told lies about her to Mary and thus poisoned Mary against her (see in particular paragraph 24 of Vicky's witness statement). I do not regard those allegations as forming part of the pleaded case. Anyway, I would not have found any plea of fraud to be proved on the evidence. The evidence as to the supposed lies rests on hearsay and vaguely reported conversations and is rebutted by Carolyne. Just as importantly, the documents—including both the records of medical consultations and Mary's own letters and diary entries—show clearly that Mary's feelings about Vicky were due not to any malicious reports supposedly given to her by Carolyne but rather to her perception that Vicky was displaying a settled hostility to her and was restricting contact with the grandchildren.
  122. As regards Carolyne's supposed control of Mary's affairs, much of the defendants' case relies on the period after the execution of the Will, when Carolyne was one of Mary's attorneys. Vicky, in particular, presents her sister as having exploited her position to her own advantage. These complaints, which go back to at least 2012, have been subject of previous investigations and proceedings in the Court of Protection. They do not relate to the making of the Will and they are not actually in issue in these proceedings. They have, however, been fed back into the earlier period in the interests of putting a malign construction on Carolyne's actions. An example of how this works is found in the witness statement of Mrs Cathy Walliker, a cousin of Carolyne and Vicky. Mrs Walliker, whose oral evidence was given via a remote link and was measured and generally impressive, said in her witness statement that her previously favourable perception of Carolyne's involvement in Mary's affairs had changed:
  123. "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.

  124. In general, the defendants invite the inferences that Carolyne's involvement in Mary's affairs was manipulative and controlling and, in that light, that Mary must have made the Will as a result of Carolyne's control over her. I do not make those inferences. The assistance that Carolyne gave her mother can properly be seen as filial service, whether that assistance related to matters of a legal or financial nature (such as banking, solicitors' appointments or even shopping) or matters relating to Mary's health (compare the invitation to put a malign construction on the letter of 31 July 2005—paragraph 25 above). Once it is accepted that Mary had testamentary capacity, that she was of an independent nature (as mentioned a number of times in the documents) albeit that age was increasingly a limiting factor, that she had her own reasons for adverse feelings towards Vicky, that the terms both of her instructions and of her Will were rational, and that things supposed to evidence Carolyne's control of Mary's dealings with HSBC (such as requiring bank statements and the Will to be sent to her address) are illusory and rest on misreading of the documents, one is left with no other basis on which to infer undue influence than the choice to place the worst possible construction on Carolyne's actions and to infer malign conduct in respect of the Will in the absence of any evidence of such conduct.
  125. I reject the defendants' case on undue influence. I find that Mary made the Will as a free agent.
  126. Knowledge and Approval

  127. A party who is propounding a will must prove that the testator knew and approved its contents at the time he signed it. In the ordinary case, knowledge and approval will be inferred from the facts that the testator had testamentary capacity and that the will was duly executed. In other cases, however, something in the circumstances will raise a suspicion in the mind of the court and more will be required before the burden is held to be discharged. In Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097, Peter Gibson LJ referred to circumstances in which the court's suspicions might be aroused by the nature of the testamentary provisions and continued at [33]:
  128. "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].)

  129. In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, commented as follows in the circumstances of the case before the court:
  130. "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."
  131. I need only refer further to remarks in the judgment of Lord Neuberger MR (with which Jackson LJ agreed and Lloyd LJ concurred) in Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380:
  132. "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."
  133. The matters relied on in support of the contention that the deceased lacked knowledge and approval of the contents of the Will are set out in paragraph 15 of Vicky's Defence and Counterclaim:
  134. "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."
  135. In the light of the very lengthy discussion above, I can state briefly that I am fully satisfied that the provisions of the Will represented the testamentary intentions of Mary and that the Will in those terms was made with her knowledge and approval. Mary had testamentary capacity when she gave the instructions for the Will and when she executed the Will. The Will accords with the instructions given to HSBC. Those instructions were rational on their face, even if they have caused disappointment and resentment to Vicky, James and Svetlana, and they seem to me to be entirely explicable. Twice subsequently Mary spoke to a solicitor about the operation of the Will; those meetings tend, if anything, to reinforce the conclusion that she was well aware of the provisions of the Will and was content with them. One point not already mentioned arises out of particular (d), which invites the court's suspicion on the grounds that the Will was made through the bank rather than through Mary's "own solicitor". In fact, the evidence shows that Mary had no one who could be called her "own" or "normal" or "regular" solicitor. Indeed, no one has identified any solicitor whom she used before the Will was made. One of her neighbours was a solicitor but not one who practised in wills, estates or probate, and there is no evidence that Mary ever had any professional relationship with her. Assuming, as I shall, that the burden of proof in respect of knowledge and approval lies with Carolyne, on the basis that she was the principal beneficiary of the Will and was present when Mary gave the instructions for it, I find that Carolyne has discharged the burden.
  136. Conclusion

  137. I reject the challenges to the Will and, as the Will is accepted to have been duly executed and witnessed, I shall pronounce in favour of the Will and dismiss Vicky's counterclaim.
  138. I shall be grateful if counsel will provide me with a draft order for my consideration.

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]

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