McClintock & Anor v Calderwood [2005] EWHC 836 (Ch)

Case No HC04C00699

[2005] EWHC 836 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26 April 2005

Before

GEORGE BOMPAS QC

sitting as a Deputy Judge of the High Court

Between

In the Estate of Joseph McClintock deceasedClaimant

ERIC McCLINTOCKClaimant

VIVIEN SANDRA CALDERWOODDefendant

Mr. Eric McClintock, the Claimant, in person for in person

Miss Emily Campbell (instructed by Grove Tompkins Bosworth) for Defendant

Hearing Hearing dates : 14, 15, 16 & 17 March 2005

Judgment

The Deputy Judge:

Introduction

[1]The late Dr Joseph McClintock signed two documents in January 1999, one (which I shall call “the First Will”) on 19 January and the other (which I shall call “the Second Will”) on 22 January. At the time Dr McClintock signed these two documents he was, as he had been since the very end of 1997, a resident at the St Ives Lodge, a care home in Chingford, London E4. He remained there until his death on 9 April 2001.

[2]On 8 November 2001 the First Will was admitted to probate, the grant being issued in favour of the Defendant, Dr Sandra Calderwood. She is the wife of one of Dr McClintock’s nephews, a Dr O’Donel Calderwood. The First Will had not in fact appointed any executor. In this respect, and in this respect only, the First Will differed from the Second Will: the Second Will was expressed to appoint Dr Sandra Calderwood to be executor, and also others should she have predeceased Dr McClintock.

[3]Each of the two Wills contained a bequest of the whole of Dr McClintock’s estate to Dr Sandra Calderwood. In the event of her having predeceased Dr McClintock the two Wills left the whole of Dr McClintock’s estate(a) to Dr Sandra Calderwood’s husband (described as being of the same address as Dr Sandra Calderwood), or failing him

(b) to a Mrs Patricia Jayne Hughes, one of Dr Sandra Calderwood’s two sisters-in-law, or failing her

[4]Dr Sandra Calderwood’s husband was and is Dr O’Donel Calderwood, Dr McClintock’s nephew: he and Mrs Hughes were children of one of Dr McClintock’s sisters, Elizabeth. Dr McClintock had never married. He was born in 1916 in Northern Ireland, and was the seventh of ten brothers and sisters. One these one died in infancy. Elizabeth had predeceased Dr McClintock. There are two surviving brothers, one of whom is the Claimant: he was nine years younger than Dr McClintock. Similarly there are two surviving sisters.

[5]In this action Mr McClintock seeks to have the grant of probate of the First Will revoked. His contention is that Dr McClintock lacked testamentary capacity when the First Will was made, or alternatively that the First Will was made without Dr McClintock’s knowledge and approval. He makes the same contention in respect of the Second Will.

[6]Dr Sandra Calderwood, on the other hand, seeks to have a grant of probate in solemn form in respect of the Second Will, that being on her case Dr McClintock’s last will. However, if it should be found that the Second Will was not in fact Dr McClintock’s last will by reason of the matters argued by Mr McClintock, Dr Sandra Calderwood seeks to have the First Will proved in solemn form. It has been explained to me on instructions that it was through an oversight on the part of Grove Tompkins Bosworth, Dr Sandra Calderwood’s solicitors, that probate was first sought and obtained in respect of the First Will, not the Second. I was provided with a witness statement confirming what I had been told explaining how the mistake had happened.

[7]It seems clear that Dr McClintock never executed any other testamentary instruments. Mr McClintock’s contention is that Dr McClintock died intestate.

[8]Mr McClintock has presented his case in person, making his submissions with charm and no little skill. His case has force and deserves careful consideration.

[9]Although the two Wills appear regular on their face, and appear to have been duly executed, there are two main points which Mr McClintock makes. First, he contends that the dispositions purportedly made by the two Wills are surprising for his brother to have wished to make, and therefore cast doubt on the validity of the Wills. Related to this is the second point, namely the circumstances in which the Wills were made and signed: these circumstances, Mr McClintock submits, call into question the soundness of Dr McClintock’s mind at the time of the making of the Wills, while also indicating that Dr McClintock did not have knowledge of or approve the Wills as the final disposition of his estate.

[10]As to the first point Mr McClintock’s case is that Dr Sandra Calderwood is not related by blood to Dr McClintock, and that it is surprising that his brother should have wished to leave the whole of his estate to her in preference to all of his siblings and blood relations, including her own husband and two sisters-in-law. In this connection Mr McClintock says that he was himself close to Dr McClintock, and that so also were others of his surviving siblings. Mr McClintock is critical also of the fact that the Second Will uses the expression “executor” in relation to Dr Sandra Calderwood, instead of the word “executrix”; and he points out that the language of the Wills is not that of Dr McClintock.

[11]As to the second point the facts can be summarised as follows. Dr McClintock entered St Ives in a very poor state of health. He had seriously impaired hearing, and was slow in communication. There may be doubt about his mental acuity after about mid-1997. In early 1998 he told Mr James Deary, one of the joint proprietors of St Ives, that he had not made any Will and that seeing a solicitor with a view to making one was “too shuddering to think about”. In January 1999 he had clearly become disturbed in some way. The detail of this I will discuss later; but the daily log kept by St Ives contains entries between 12 January and 1.30pm on 19 January reporting that Dr McClintock was variously a “bit confused”, or “confused”, or “very confused”. On about 15 January Dr McClintock started to be treated with a once-daily dose of a major tranquilizer, Droperidol; and on about 21 January the dosage was increased to twice-daily. The two Wills were each prepared by a member of the St Ives’ staff, Mrs Sheila Holliday, the instructions for the first being taken, she said, by her from Dr McClintock on or shortly before 19 January. She and Mrs Catherine Deary, the other of the joint proprietors of St Ives, witnessed Dr McClintock’s signature on the Wills. No solicitor was present when Dr McClintock gave instructions for the Wills or when he signed the Wills. There was no examination of Dr McClintock by a doctor at either of those times to make sure that Dr McClintock had the necessary mental capacity to be able to make a valid will.

[12]In view of the facts outlined in the previous paragraph Miss Emily Campbell, Counsel for Dr Sandra Calderwood, quite rightly accepts that the burden is on her client to show that Dr McClintock had testamentary capacity. She submits that this burden has been discharged. She also submits that the apparently due execution of the Wills in the presence of witnesses sufficiently evidences Dr McClintock’s knowledge and approval of the Wills, despite the circumstances outlined above; but argues that if more is required, her client has in fact established that Mr McClintock knew and approved the Wills and their contents.

[13]I should add at this juncture that Mr McClintock, in his evidence and his submissions, criticised both the care which Dr McClintock had received at St Ives and the involvement of Dr Sandra Calderwood in relation to Dr McClintock. By way of example, he(a) referred to a complaint concerning St Ives which he had made to the local social services in 2000 and

(b) suggested that Dr Sandra Calderwood and her husband were at fault in failing to ensure that Dr McClintock’s wealth was applied in seeing “that he was provided with the best medical and personal care his wealth could provide”, that they should have “taken the appropriate action” and that had that action been taken Dr McClintock “would still be alive today”.

[14]These criticisms are of peripheral relevance to the questions I have to decide. However, such evidence as has been given in relation to these criticisms goes nowhere to provide any foundation for the criticisms, whether in relation to St Ives or in relation to Dr Sandra Calderwood and her husband. i) So far as St Ives is concerned, the 2000 complaint was investigated at the time and was found to be unjustified. I was not persuaded by Mr McClintock’s own direct evidence, which amounted to little more than an allegation of rudeness towards him personally by Dr Nandi, or by the witness statement made by his daughter: this, so far as material, suggested only that Dr McClintock might have missed his lunch when she was visiting (not that he had in fact missed his lunch) and that he might not have been adequately provided with drink. Against this Dr Savla, who was called by Mr Clintock to give expert evidence, made a report in mid-2000 in relation to Dr McClintock in which he commented that “patient is receiving good care at St Ives Lodge. He should continue to stay there.” ii) So far as concerned Dr Sandra Calderwood and her husband, I am sure that they were the members of Dr McClintock’s family who did the most for him. I think it unreasonable to suggest that they failed to look after Dr McClintock once he had agreed to move to St Ives, or that they have any responsibility for his death. In particular I cannot see what more the Calderwoods could reasonably have been expected to do when Dr McClintock was being looked after at St Ives.

[15]The real difficulty to which this case gives rise is one which arises from the fact that those in charge at St Ives, in particular Mr Deary and Mrs Holliday, clearly wanted to do their best for Dr McClintock, including helping him look after his affairs sensibly. As a consequence the question is whether the Wills truly set out Dr McClintock’s own will, or whether they set out what those caring for Dr McClintock thought he would will if he could.

The applicable law

[16]The parties have drawn to my attention a number of cases and text books, including notably Banks v Goodfellow (1870) LR 5 QB 549, Ewing v Bennett

[2001] WTLR 249

, Richards v Allan

[2001] WTLR 1031

, Fuller v Strum

[2002] WTLR 199

, Hoff v Atherton

[2004] EWCA Civ 1554

and Tristram and Coote’s Probate Practice 29th edition. From these I draw the following general propositions.

[17]For Dr McClintock to have had the capacity to make a will at the time when the Wills were executed he must be shown to have had the capacity to understand the nature of the act of making a will and its effects, the capacity to understand the extent of the property of which he was disposing, and the capacity to comprehend and appreciate the claims to which he might appropriately give effect. The terms of a will may themselves be relevant to the question whether or not the testator could have had appropriate capacity.

[18]In the absence of suspicious circumstances, and assuming Dr McClintock to have been of testamentary capacity,(a) the fact that Dr McClintock knew and approved of the Wills’ contents could be established by his having executed the Wills; and

(b) the issue of knowledge and approval would ordinarily be conclusively proved if it is shown that the Wills had been read over to him or by him or the contents otherwise brought to his knowledge.

[19]The position is different where there are suspicious circumstances. These will be, by way of example, circumstances where a beneficiary under a will has been involved in its preparation. In such a case positive evidence of knowledge and approval will be required. But for this to be the case the circumstances found to be suspicious must be relevant to the preparation and execution of the will itself. So also, where a person can only be of testatmentary capacity if assisted with explanations, for example because the person’s intellect is impaired but nevertheless not so impaired as to render the person wholly incapable of being of testatmentary capacity, the person’s knowledge and approval of a will would require evidence which went further than showing only that the contents of the will had been brought to the person’s attention.

[20]The issues surrounding testamentary capacity and knowledge and approval are therefore related. In a case such as the present, where a person has, or may have, impaired understanding and is dependent on others for his or her care and, indeed, is physically under the control of others, facts which suggest absence of testamentary capacity on the part of that person may also suggest that that person did not know and approve of a will apparently made by him or her. This is clearly the case where it is those others who have been instrumental in the making of the will and who benefit under the will.

[21]In the present case, having regard to the facts(a) that Dr McClintock was frail and with slowing mental faculties, and

(b) that there was no wholly independent person (independent, that is, in not being involved in the care of Dr McClintock) who saw or advised Dr McClintock in relation to the making of the Wills or with whom he discussed the contents, the case in my judgment is one in which Dr McClintock’s knowledge and approval of the Wills cannot be inferred simply from his having signed the Wills in the presence of Mrs Holliday and Mrs Deary: I must be satisfied on the evidence that Dr McClintock was indeed aware of and approved the Wills and their contents.

[22]On the other hand in assessing this evidence I am entitled to take into account the fact (as I find) that the present case is not one in which those who were instrumental in obtaining or preparing the Wills received any benefit under the Wills. In particular Dr Sandra Calderwood did not instigate the making of a will by Dr McClintock, and did not have a hand in its preparation beyond sending Dr McClintock a list of the members of his family.

[23]Ultimately, however, on the two issues which I have to decide in relation to the Wills the question is one of fact to be decided on the balance of probability, the standard of proof being the civil standard. The circumstances surrounding the making of the Wills, the contents of the Wills and so forth will be relevant in deciding whether Dr Sandra Calderwood has satisfied the burden that lies on her.

The Background

[24]Dr McClintock was born in Northern Ireland, where his family lived. He left home to go to college, being educated at Queen’s University, Belfast. He had qualified as a doctor shortly before the Second World War. He served in the Royal Navy throughout the War. He survived the sinking of HMS Fiji during the Battle of Crete.

[25]His sister Elizabeth had married a doctor in general practice in the Birmingham area. After the War Dr McClintock worked for a time with his brother-in-law in the latter’s practice, before moving to London and starting his own practice in Walthamstow, probably by about 1950. From then until death he lived first in Walthamstow and then in Chingford, where he had a house at The Ridgeway.

[26]Elizabeth and her husband had three children, two girls and a boy. I heard evidence from her son, Dr O’Donel Calderwood, and one of the two daughters: this was Mrs Hughes, a retired barrister. The other daughter, Dr Jennifer Rosemary Anderson, made a witness statement but, living in Hong Kong, did not give oral evidence. She is a GP, as her father had been, and is married to a physician. She last saw Dr McClintock in 1997.

[27]Dr O’Donel Calderwood, is now retired. Like his father and sister, he had been a GP. He married a GP, namely the Defendant Dr Sandra Calderwood. The three Drs Calderwood were for many years in the same medical practice in Birmingham.

[28]Elizabeth died in early 1991. Her husband died in June 1997, having been in a nursing home, the Robert Harvey House Nursing Home, in Birmingham for about four years. While Elizabeth was alive Dr McClintock would visit her and her husband at their home, and later at the home of Drs O’Donel and Sandra Calderwood in Birmingham, a couple of times each year, in particular most Christmases. He last drove himself to Birmingham for Christmas in 1992. While there he became acutely ill, requiring a prostatectomy, and spent a couple of months convalescing at the Calderwood’s home.

[29]Subsequently on two occasions Dr O’Donel Calderwood drove to Chingford to bring Dr McClintock back to stay: from 1993 until 1996 Dr McClintock continued to drive his car locally, but not on long journeys.

[30]In early 1997 the Calderwoods again brought Dr McClintock to Birmingham to stay. This was after they had been contacted by Dr McClintock’s GP, a Dr Nandi, who told them that Dr McClintock was unwell with a chest infection. He stayed with the Calderwoods while recovering from this infection: he was placed under the care of Dr Sandra Calderwood, only returning to Dr Nandi’s list as a patient later in the late Spring of 1997.

[31]After the infection was cured, Dr McClintock spent a period at the Robert Harvey Nursing Home while convalescing. When he had recovered, by about May 1997, he insisted on returning to his own house. The Calderwoods wanted him to stay in the Robert Harvey Nursing Home, as they were concerned about his ability to care for himself while living alone in a large house. They had no success in persuading him to stay.

[32]In a letter dated 10 May 1997 Dr Sandra Calderwood explained to Dr Nandi what had taken place while Dr McClintock was in Birmingham; and she sought to make sure that Dr Nandi would do what he could to help Dr McClintock; no doubt this was because Dr Nandi was, as he said when giving evidence, not only Dr McClintock’s GP but also a neighbour living in The Ridgeway. The letter included the following description of Dr McClintock:

“He is mobile without aid but somewhat unsteady. He is alert but has some difficulty with his memory and he gets rather confused with organising his financial affairs though he has refused to have an accountant here and is adamant that he will be able to sort out things with his bank and accountant in Chingford. I have grave doubts about his present ability to self-care and everyone has tried to persuade him that he should stay in the nursing home but he is very determined to return to Chingford. We have no powers to alter this decision and must agree to his request to be returned home….”

[33]The reference to Dr McClintock’s financial affairs requires further comment. At any rate until 1997 Dr McClintock had been an astute and keen investor, dealing actively on the stock market. The detail of his share portfolio, whether of its composition or value at any time, has not been put in evidence; but it is clear that the value must have been at least several hundred thousand pounds and was more likely well in excess of £1 million. By 1997, however, Dr McClintock seems to have found it difficult to manage effectively his financial affairs. While he had been staying in Birmingham Dr O’Donel Calderwood had attempted to assist Dr McClintock with back taxes and penalties; this process had not been easy, as Dr McClintock was independent-minded and also suspicious of anything he saw as interference with his affairs.

[34]However, both the Calderwoods say that while Dr McClintock was staying at the Robert Harvey Nursing Home he was of sound intellect. Support for this evidence was given by certain witnesses who gave written, but not oral evidence. First was Dr Jennifer Anderson: she says that she and her husband visited Dr McClintock and would have picked up any inconsistencies if he was confused at that time. It is also supported by a Mr David Gill, an accountant who was engaged to help Dr McClintock with his tax affairs: Mr Gill made a witness statement in which he said that he had discussed tax matters with Dr McClintock who in Mr Gill’s view had understood the situation perfectly.

[35]The concerns expressed in Dr Sandra Calderwood’s letter were clearly justified. In May 1997 Dr McClintock refused to have a homecare assessment. In June 1997 Dr Nandi referred Dr McClintock to specialists. In the case of one referral, to an ENT surgeon to assist with Dr McClintock’s hearing, Dr Nandi reported that Dr McClintock lived alone, “has poor memory and mobility”. In the case of the other referral, to a specialist for psychiatric assessment, Dr Nandi reported that Dr McClintock had been refusing help, that he “has dementia and has been wandering about”, that his house was untidy, and that he would not allow anyone in to help, whether for cleaning or meals on wheels, and that he had lost weight. Later in 1997 Dr McClintock received a substantial cheque from his stockbroker which he failed to cash, and was again in difficulties with his tax affairs. As I mention later, it seems clear that during the second half of 1997 at the latest Dr McClintock’s active share dealing must have come to an end.

[36]The request for a psychiatric assessment resulted in a Locum Senior Registrar visiting Dr McClintock at home on about 3 July 1997. Dr McClintock refused to be examined; but other than that, and the fact that Dr McClintock appeared extremely thin, the report in due course made by the Locum Senior Registrar did not convey that Dr McClintock was physically or mentally incapable.

[37]The Locum Senior Registrar commented in his report that Dr McClintock “claimed to have spent all the previous day at Whipps Cross Hospital but I am not sure if this was true or not.” In fact Dr McClintock had been at the Hospital the previous day, where he had been seen by Dr Kafetz. Dr Kafetz’ report to Dr Nandi dated 11 July 1997 remarked that “Other than his poor hearing and a mental test score of 7 out of 10 and a large smooth prostate we found very little on clinical examination”. The report also remarked that “there is a good chance that his function and insight will improve once his hearing is sorted out”, and suggested that he might have memory loss which if attributable to Alzheimer’s disease could be susceptible to improvement with medication. The report contained no reference to any dementia.

[38]In about July 1997 Mr McClintock and his wife came to see Dr McClintock. In his written and oral evidence Mr McClintock described this visit. He said that when he arrived the house was open and in disarray, and that for several minutes Dr McClintock did not recognise his two visitors. In the event, as Mr McClintock said, he reported to Dr Sandra Calderwood what he had found as she was the person looking after Dr McClintock.

[39]Before 1997 the last time Mr McClintock had seen his brother had been in 1978. From after the Second World War until about 1998 Mr McClintock had lived in South Africa, with a period of about a year in 1978 when Mr McClintock had lived in Newcastle. He had stayed with Dr McClintock for about two weeks when on leave in the early 1950’s, and then again on a couple of subsequent leaves.

[40]After 1997 the next time Mr McClintock saw Dr McClintock was in early February 1998, just after Mr McClintock’s return from South Africa and approximately a month after Dr McClintock had arrived at St Ives Lodge. The purpose of this visit was for Mr McClintock, who was moving back from South Africa, to ask Dr McClintock to allow Mr McClintock to stay in the now empty house in Chingford. This request Dr McClintock refused.

[41]Mr McClintock says, and I accept, that he visited Dr McClintock on one further occasion, in about 2000. Mr McClintock’s daughter, Jane, visited Dr McClintock once, in January 2000. With the exception of the Calderwoods, no other relative of Dr McClintock ever visited him while he was staying at St Ives.

[42]The Calderwoods gave evidence that Mrs Elizabeth Calderwood had been Dr McClintock’s favourite sister. Mr McClintock had made a witness statement identifying Mrs Maud McMordie as Dr McClintock’s favourite, but under cross-examination agreed that Elizabeth was a favourite, acknowledging that Dr McClintock had indeed lived at one time with Elizabeth and her husband, and commented that she had also been his own favourite sister. She was the only one of the various brothers and sisters who lived in England: broadly speaking the remainder all lived in Ireland.

[43]Dr McClintock was firmly settled in England. His connection with Ireland had become quite limited. While he remained fit he would travel there for his brothers’ and sisters’ important occasions, such as funerals. He would also visit for a week or two each summer. But in the later years of his life Dr McClintock was not at all intimate with his surviving siblings in Ireland or their families.

[44]I should add at this juncture that in my judgment Mr McClintock had a tendency to exaggerate when giving his evidence. He said, by way of example, that he knew Dr McClintock better than had Dr Sandra Calderwood. This I cannot accept, at any rate without qualification. By the mid-1990’s he had not seen Dr McClintock for many years. On the other hand Dr McClintock had been a regular visitor at the Calderwood’s home; he had been nursed by the Calderwoods; and he had been under Dr Sandra Calderwood’s care as a patient. At the time when Dr McClintock left the nursing home in Birmingham the Calderwoods were, as I find, the relatives with whom he had the closest connection. And it is significant that it was to Dr Sandra Calderwood that Mr McClintock reported his concerns about Dr McClintock’s condition at the time of his visit to Dr McClintock in 1997.

[45]In relation to Mr McClintock’s evidence there is another matter which I should record. In a letter dated 15 November 2001 to Dr Sandra Calderwood Mr McClintock asked for a copy of Dr McClintock’s Will, and asked whether there would be a distribution. He said:

“I feel that Joe indicated, insofar as he was capable of indicating, that I should be considered. He also had signed a letter, obviously written by the Secretary of St Ives, stating that he had made a will indicating that I could expect a consideration.”

When asked about the signed letter, at the outset of the trial, Mr McClintock said that he would try to find it. Later, however, he said that he had been unable to find it: under cross-examination he said that there never had been any signed letter, at any rate not one which he had seen, and that in his letter to Dr Sandra Calderwood he was reporting what he had been told by Dr McClintock before the latter’s death. But in cross-examination he also said that it was only after Dr McClintock’s death that he learnt that Dr McClintock had made a will.

[46]Following the trial I prepared and circulated to the parties a draft of the judment which I intended to hand down. In this I expressed doubt as to whether there had been any such letter signed by Dr McClintock. I commented that had there been any such letter it could have been relevant as support for the case that Dr McClintock had made one or both of the Wills with knowledge and approval; but I concluded that in the event I did not feel it appropriate to place any weight on what Mr McClintock had said about the letter, and added that nevertheless his evidence in relation to the letter supported my impression that his evidence was not always reliable.

[47]After I had circulated the draft judgment Mr McClintock forwarded to me by fax what appears to be a copy of a typed letter dated 16 March 1999 from Dr McClintock to Mr McClintock. Mr McClintock’s covering fax explained that he had only just found the letter. The letter, which bears a manuscript signature “Joseph”, reads as follows:

“Dear Eric It was very nice to hear from you, and I am pleased to hear that you are all keeping well. I am sorry to have to tell you that I am unable to rent out my house to Jane as I am in the process of selling. I have made my will and have decided that as I do not intend to return to the The Ridgeway it would save me a lot of worry if I sold the property. Regards Joseph”

Regards Joseph”

Regards

[48]Having seen this letter I do not think it materially affects my conclusions. i) Accepting, as I do, that the letter is that referred to in Mr McClintock’s letter to Dr Sandra Calderwood of 15 November 2001, it would follow that Mr McClintock’s oral evidence was mistaken, both when he denied ever having had or seen the letter and when he said he had not known until after Dr McClintock’s death that he had made a will. To this extent the episode of the letter does not change my impression that Mr McClintock’s evidence was not always reliable. ii) The letter appears to me to be consistent with, if not to support, the conclusion which I had reached concerning the Wills. Certainly, the letter does nothing to undermine that conclusion.

The evidence and witnesses

[49]At this point it is convenient to identify the other witnesses and the evidence.

[50]The non-medical witnesses whose oral evidence I heard consisted of Mr McClintock, Mr Len Cunningham, Dr Sandra Calderwood, Dr O’Donel Calderwood, Mrs Hughes, Mr Deary, and Mrs Holliday. In addition witness statements were made by several witnesses who were not able to attend to give oral evidence, namely Jane McClintock, Mrs McMordie, Dr Jennifer Anderson and Mr David Gill. Most of these witnesses have been referred to earlier in this judgment.

[51]Mr Cunningham had been Dr McClintock’s stockbroker. He and Dr McClintock would meet from time to time for lunch. During 1997 he had become concerned about the condition of Dr McClintock because, as I understand it, he had had difficulty in contacting Dr McClintock and also because a substantial cheque sent by Mr Cunningham’s firm to Dr McClintock had not been banked. In late 1997 Mr Cunningham had written to Dr McClintock’s bank giving voice to his concern that Dr McClintock needed help. From the content of the letter, and from what Mr Cunningham said in his oral evidence, it is difficult to think that during the second half of 1997 Dr McClintock can have transacted much, if any, share dealing activity.

[52]The evidence of Mrs Holliday and Mr Deary is important, as is the evidence of Mrs Deary. They were all engaged at St Ives and in one way or another looked after Dr McClintock in the final years of his life. Each played some more or less direct part in the making of the Wills. i) Mrs Holliday is and has been for over 10 years the administration manager at St Ives. She prepared the Wills and witnessed Dr McClintock’s signing of the Wills. She explained that working at St Ives she would get to know the residents. She also explained that she had come to take on, in relation to Dr McClintock, what was in effect the role of secretary, assisting him with his correspondence and finances, and had seen him every day. She said that he had a considerable amount of mail and that she would open it for him, and receive from him his instructions. ii) Mr Deary is the business manager for St Ives. He has various academic and vocational qualifications relevant to his duties: he has a BSC, an MSC, a qualification in care assurance and a diploma in food hygiene. He does not involve himself directly in the care of residents. He did, however, come to know Dr McClintock. His perception was that Dr McClintock arrived at St Ives in a poor state physically, being undernourished, dishevelled and disoriented; that he quickly recovered, and was mentally able; and that it was after about 18 months later that he became frail. iii) Mrs Deary is a registered general nurse, with psychiatry as part of her training, a trained district nurse and experience in community nursing. She has ultimate responsibility for the care side of St Ives: I understand that the senior carer reporting to Mrs Deary is a Mrs Judith Spinks, to whom I make reference later.

[53]The witnesses with medical experience and qualifications were Mrs Deary, Dr Nandi and Dr Savla. I have already referred to Mrs Deary. I say more of the evidence of Dr Nandi and Dr Savla later in this judgment.

[54]In addition to these three witnesses there were two letters written by a Dr Whale, who examined Dr McClintock on 12 February 1999; there were various contemporaneous records which had been maintained by the care staff at St Ives, namely a daily log for Dr McClintock kept by St Ives’ staff, together with a “Doctor’s Record” and a medication chart; there were medical records from Whipps Cross Hospital; there were Dr Nandi’s records, which included his notes as well as correspondence; and finally there was miscellaneous material flowing from Mr McClintock’s complaint made in early 2000 about the care Dr McClintock was receiving.

Dr McClintock’s stay at St Ives

[55]Returning to the narrative of the events, I have referred to the condition of Dr McClintock at the end of 1997. He was of advanced years and suffering a decline in his physical and mental condition. He was seriously arthritic in his hands. It is probable that there was something of a vicious circle. In elderly or infirm people a variety of physical conditions can cause or exacerbate confusion or disorientation while the conditions persist. These conditions will include illness, hunger, thirst, lack of sleep and even constipation. For Dr McClintock the task of looking after the needs of his body in his large house had really got beyond him when he returned home in about May 1997; this will have tended to cause his physical condition to deteriorate, in particular as he became undernourished, and will have impaired his mental capacity; and as his mental processes became impaired, no doubt he became less able to administer to his physical needs. Mrs Deary commented, in relation to his condition at the end of 1997, that he had in effect been starving himself.

[56]Dr Nandi’s notes for the period show, however, that Dr McClintock continued to refuse help until, at last, at the end of 1997 he agreed to go into St Ives.

[57]Dr McClintock’s physical condition then, when he first came to St Ives, was terrible. I have referred to Mr Deary’s evidence, that Dr McClintock appeared emaciated, unwashed and unkempt. He was, in addition, unwell with an infection for which he was prescribed antibiotics.

[58]However, his health recovered shortly after he had come to St Ives, once his physical needs had been taken care of. From early 1998 until January 1999 he needed no medication, apart from a flu injection and treatment for inflamed ears in October 1998. In a letter dated 6 March 1998 Mr Deary wrote to Dr Sandra Calderwood reporting that Dr McClintock “is extremely well both mentally and physically and is quite capable of communicating his wishes despite his hearing.” I accept that this was a fair description, subject always to the qualification that it was in reference to an 82 year old man who was deaf and unable to manage for himself at his own home.

[59]Mr McClintock, who had visited Dr McClintock in early February 1998, submitted that this appraisal was wrong. His own evidence was that Dr McClintock could not hear without his hearing aid, that the hearing aid kept falling out and that he, Mr McClintock, had to put it back, and that he had to communicate by means of written notes. He also said that Dr McClintock was slow of recall, and points out that Dr McClintock had not immediately recognised him. But he added that they lunched together, sharing a bottle of wine, and that Dr McClintock seemed normal and was well-dressed and clean.

[60]In contrast with Mr McClintock’s evidence about Dr McClintock’s condition in 1998 is the evidence of other witnesses, which I accept, that Dr McClintock was mentally alert and capable. In relation to this I have mentioned Mr Deary’s evidence. Others gave the following evidence: i) Mr Cunningham said that Dr McClintock had been an active, astute and successful investor. As I have remarked, Mr Cunningham had become concerned about Dr McClintock by the second half of 1997, and his view was that Dr McClintock’s capacity then was much different from what it had been. However, Mr Cunningham had visited Dr McClintock twice at St Ives, the second time in about 2000, a few months before Dr McClintock’s death. But in relation to the first visit, which must have been during 1998, Mr Cunningham’s evidence was that Dr McClintock seemed alright. ii) Mrs Holliday explained that once Dr McClintock was established at St Ives he was mobile and very clear about his wishes; she said that with the passage of time things changed. I have referred earlier to the evidence she gave about acting, in effect, as Dr McClintock’s secretary, going through his mail with him each day and taking his instructions (albeit that for the most part these instructions were little more than instructions in relation to the banking of dividend vouchers). She also said, in relation to Mr McClintock’s struggle with Dr McClintock’s hearing aid on the occasion of his February 1998 visit, that she had known Dr McClintock use that as a means of putting off someone he did not wish to deal with. This evidence was, I think, borne out by Mrs Deary who described Dr McClintock as being selectively deaf. iii) Dr Sandra Calderwood visited Dr McClintock two or three times during 1998. Her observation was that once he had come to stay at St Ives his physical and mental condition revived.

[61]A further indication of Dr McClintock’s condition appears from a letter dated 5 November 1998. In this a solicitor, a Mr Offord, who had visited Dr McClintock on 2 July, wrote to Dr Sandra Calderwood of Dr McClintock as follows:

“… he is deaf and I at first had great difficulty in making myself understood, writing everything down for him. Later, the administrators managed to find his special hearing apparatus and we were able to converse normally. It became very clear that Dr McClintock thought that his financial affairs were not in such bad order as everyone else thought and that he really did not want anyone interfering…”

[62]The circumstances in which Mr Offord came to write his letter are as follows. It is clear from the 6 March 1998 letter, referred to above, that Mr Deary was hoping that Dr McClintock could be persuaded to appoint a solicitor to be his attorney to help him manage his affairs. However, as appears from the letter of 6 March, Dr McClintock at this time had refused to accept any visit from a solicitor to discuss that question. It appears that it was in that context that Mr Deary had asked Dr McClintock about whether or not he had a will and whether he should make one, and that Dr McClintock was reported as commenting that “its too shuddering to think about”.

[63]Nevertheless, in early July 1998, Mr Offord, a solicitor from Cartwright Cunningham Haselgrove & Co, did visit Dr McClintock and subsequently wrote him a letter advising that it would be desirable for him to have an attorney. It appears that during the visit Dr McClintock told Mr Offord that he did not wish to appoint any attorney. The visit from Mr Offord had been arranged by Mr Deary in conjunction with Dr Sandra Calderwood: the latter agreed with Mr Offord to be responsible for his fees, if Dr McClintock declined to pay.

[64]There is a coda to this particular episode. In early November 1998 Mr Offord submitted his bill to Dr Sandra Calderwood, explaining that he had not heard anything from Mr McClintock in response to his letter. The bill was forwarded by Dr Sandra Calderwood to St Ives. In a letter dated 23 November 1998 to Dr Sandra Calderwood Mr Deary reported “We have received the account from the solicitor which you forwarded and Joe has signed a cheque which we have sent off today.”

[65]On 11 September 1998 Mr Deary wrote again to Dr Sandra Calderwood, this time as follows:

“[Dr McClintock] has made it reasonably clear that he wants to make a will and we have introduced him to a local solicitor whom he likes (a Mr J Hughes of Russells Solicitors, Chingford). He is prepared to come and prepare a will but it will be a long process. We are hoping that he will appoint this solicitor “power of attorney” but he seems to shy away from this step. Are you content for us to instruct the solicitor please?”

[66]There is no copy of any reply from Dr Sandra Calderwood to this letter. However she gave evidence that she sent Dr McClintock a list of his family members prior to his appointment with a solicitor. There is no copy of the list, and there is no evidence as to what became of the list. Dr Sandra Calderwood explained that the list identified Dr McClintock’s siblings and, where they had any, their spouse and children.

[67]It is likely that Mr Hughes was instructed, a point confirmed by Mr Deary, who said he remembered the discussion about the making of a will which led to the introduction of a local solicitor, Mr Hughes: his oral evidence was that after Mr Hughes had been introduced to Dr McClintock to assist with a will, the latter “just shied away from it”; and Mr Deary added that his perception was that Dr McClintock was intensely private and liked to think about things long and hard. Mrs Holliday also described Dr McClintock as being very private. It appears that one of Dr McClintock’s characteristics was a dislike of solicitors and reluctance to trust or deal with solicitors.

[68]Mr Deary also explained that in his recollection there was a third solicitor, a Mrs Peatling, from Coldham Shield & Mace, who had been instructed before the making of the two Wills: this appears to have been the solicitor who was consulted after the First Will was executed and before the Second Will was made. But, as Mr Deary said, the purpose of her initial instruction was to find someone whom Dr McClintock would be willing to appoint as his attorney.

[69]At all events Mr Deary wrote in a letter dated 23 November 1998 that, “… The solicitor finds it very hard work communicating with [Dr McClintock]. I am afraid there is no progress on this front”. This remark was made by Mr Deary in his letter after a discussion about the sorting out of Dr McClintock’s tax affairs and about Dr McClintock’s wish to have his house painted on the outside. It is not clear whether the remark was made in connection with a proposed will, a proposed power of attorney, or both.

[70]Mr Deary and Mrs Holliday both gave evidence that during 1998 Dr McClintock took an interest in the stock market, following the financial news and, with the assistance of Mrs Holliday, dealing with his investments. However, Dr McClintock’s active trading of shares was at an end; and I think evidence given by Mr Deary and Mrs Holliday, and to an extent repeated by Dr Sandra Calderwood, about Dr McClintock managing his own finances conveyed an impression of a greater activity and independence than was in fact the case, even in relation to the first year of Dr McClintock’s stay at St Ives. i) So far as Dr McClintock’s tax liabilities went, this seems to have been resolved with the assistance of accountants enlisted by Mr Deary: he arranged for a new firm of accountants to “take charge of” Dr McClintock’s tax affairs, as he recorded in his letter of 11 September 1998; and by November he recorded in a letter to Dr Sandra Calderwood that the tax affairs had been finalised, with a total of £21,000 falling to be paid to the Revenue ii) As to share dealing, Mr Cunningham said that when Dr McClintock was at St Ives he never dealt further through him; although he did give advice from time to time to Mrs Holliday or St Ives about Dr McClintock’s investments. The only disposals appear to have been as a consequence of take-overs. Any acquisitions appear to have been as a consequence of rights issues: one such occasion was described to Dr Sandra Calderwood by Mr Deary in his letter of 6 March 1998 as follows:

“Joe received a ‘rights’ notice for some of his share holdings and he was adamant that a cheque be sent off for £5,300 to purchase the shares. We checked with his stockbroker and he advised that it was a good deal and we told the bank manager to expect the debit from his account. I must say he is very enthusiastic about share dealing.”

[71]Mr Deary’s September 1998 letter also recorded that Dr McClintock now wanted to sell his house and was interested in receiving valuations, provided that it did not cost him anything. The house had been empty since the beginning of the year, and had been broken into more than once. A little before this Dr McClintock had offered to give the house to Dr Sandra Calderwood, an offer she refused. Mrs Holliday, who had been present during the conversation, said that after the Calderwoods had left Dr McClintock asked her to let him phone Mr McClintock from her office, and that on the phone Dr McClintock offered, not to give him the house, but to sell it to him.

[72]Mr Deary’s September 1998 letter recorded one other matter, in the following terms:

“[Dr McClintock] was adamant that his car should be scrapped. But we had it looked at by a qualified mechanic who confirmed that it was in sound physical condition. We invited tenders to purchase the car as seen and we received £1050.00 (Net) for him from the sale. However, he believes the car has been scrapped and we haven’t told him otherwise.”

[73]The final episode of 1998 is that Dr McClintock gave to the Calderwoods his cellar of wine, consisting of about 120 bottles. This gift was referred to by Mr Deary in his letters of 11 September and 23 November 1998.

[74]It should be noted that there is no claim that the Wills were procured by undue influence. This notwithstanding, Mr McClintock relies on various of the episodes of 1998 as evidence that Dr McClintock would do or sign anything asked of him or put before him by the staff of St Ives.

[75]I reject this submission. In my judgment Dr McClintock was capable of communicating what he wanted and was no puppet. In this I accept the evidence of Mr Deary and Mrs Holliday. I find support for what they say in the comments made by Mr Offord: his letter of 5 November 1998 shows that so far as he was concerned normal communication with Dr McClintock was possible, once Dr McClintock’s hearing apparatus was in place, and Dr McClintock was someone who could understand what he was being told and to whom correspondence could sensibly be sent. In short Dr McClintock did not want to have an attorney to manage his affairs for him, regarding that as an unnecessary intrusion.

[76]The problem, however, was that Dr McClintock was no longer up to the task of managing his affairs without assistance. What is more, Mr Deary clearly was concerned that not all Dr McClintock’s decisions might be wise. The matter of the disposal of the car is a case in point. For this reason he sought to keep Dr Sandra Calderwood informed and where appropriate to consult with her. Usually, no doubt, the residents at St Ives would have given some relative or professional a power of attorney; and the staff at St Ives would expect the attorney to be involved in decisions relating to the affairs of the resident. In Dr McClintock’s case there was no attorney. Dr Sandra Calderwood, however, had been notified to them by Dr Nandi on Dr McClintock’s arrival as his next of kin, and it was from her that they sought confirmation of their instructions.

The making of the Wills

[77]In relation to the making of the Wills the earliest description was given by Mr Deary in a letter written on 10 February 1999. This letter, sent to Dr Sandra Calderwood, explained that Dr McClintock had made a will and also had agreed to sell his house. It began as follows:

“There are some developments with [Dr McClintock] that you need to be appraised about. Perhaps the most important is that he has come to terms with his own mortality and decided to put some of his affairs in order!”

[78]The letter continued by explaining that Dr McClintock awoke one morning just after Christmas “in a terrible state, decided he was dying and insisted on seeing the doctor without delay.” In short the letter described how Dr McClintock had become unwell with symptoms of a cold or flu, later diagnosed with a chest infection which had been cleared up following treatment, and had recovered to his “normal self” although with “a noticeable unsteadiness in his walking”. The letter continued:

“The upshot was that he asked for Sheila [Holliday] to record his last will and testimony (sic) immediately, which she duly did, and for his house to be sold. To regularise the will, we asked the solicitor to visit but when the solicitor arrived for the appointment, [Dr McClintock] refused to see her saying that his affairs were in order. Nevertheless, the solicitor took the time to look over what he had signed as his last will and suggested some amendments that were essential if the will is to hold good. These amendments were made by Sheila and [Dr McClintock] signed the new version which is on file here. I can let you have a copy if you wish.”

[79]As appears, this letter contained inaccuracies in relation to the sequence of events and condition of Dr McClintock.

[80]Before making a witness statement for the purposes of this action Mrs Holliday had sworn two affidavits and made one witness statement in relation to the making of Dr McClintock’s Wills. In each she gave it as her belief that Dr McClintock was of testamentary capacity; and in the witness statement she had elaborated by saying that he knew exactly what he was doing when he made the Wills and “was mentally able and fully understood and gave clear instructions in relation to these Wills.”

[81]Mrs Holliday’s first affidavit, sworn on 24 October 2001, was prepared for her by the Defendant’s Solicitors at a time when they were confused, apparently thinking that the First Will was the Second Will. This affidavit, after confirming the due execution of the exhibited will (which was, of course, the First Will and not the Second, but which was described in the affidavit as Dr McClintock’s “last will and testament”) contained the following paragraph:

“I further make oath and say that I am the Administration Manager at St Ives … The testator told me he wanted to make a Will in very specific terms and requested I prepare the Will for him. The testator would not instruct a Solicitor himself so I spoke to a Solicitor who gave me some advice on the preparation of the Will. I prepared the Will according to those instructions and the testator confirmed the terms of the Will as draft fully accorded with his wishes before he executed it.”

[82]It will be noted that this description makes no reference to two separate wills. Given this omission, what is said about the solicitor’s involvement reads most naturally as setting that involvement before the making of any will by Mrs Holliday, so that the language of the will referred to in this description would have been that of, and only of, the solicitor and Dr McClintock. In common with the second affidavit and the witness statements referred to below, Mrs Holliday’s description of events made no reference whatsoever to Mr Deary having played any part in relation to the Wills.

[83]On 13 May 2002 Mrs Holliday made a witness statement, this time once it had become apparent to the Defendant’s Solicitors that they had sought probate of the First Will and not the Second Will. The description which Mrs Holliday confirmed was follows:

“… In early January 1999 [Dr McClintock] told me he wanted to make a Will in very specific terms and requested that I prepare the Will for him. [Dr McClintock] would not instruct a solicitor to do this. I prepared the Will according to [Dr McClintock’s] instructions and [Dr McClintock] confirmed to me that the terms of the Will as drafted fully accorded with his wishes before he executed it. [Dr McClintock] duly executed the Will on 19th January 1999. I asked a solicitor to check [Dr McClintock’s] last Will and testament and the solicitor suggested amending the Will the appoint an executor… I spoke to [Dr McClintock] to ask whom he wished to appoint as executor. I confirm that I amended the Will as instructed by [Dr McClintock] to provide that the beneficiary was to be the sole executor. [Dr McClintock] instructed me to amend the Will to make these amendments. I amended the Will in accordance with [Dr McClintock’s] instructions, following the guidance from the solicitor, and [Dr McClintock] confirmed that the terms of the amended Will as drafted fully accorded with his wishes before he executed the Will on 22nd January 1999…”

[84]Mrs Holliday’s second affidavit, made on 15 March 2004, at a time when the Defendant’s Solicitors were seeking to have the Second Will admitted to probate, was in all respects identical to the first except that the exhibited document was the Second Will and there was accordingly a change of date in the first paragraph of the affidavit to refer to that Will.

[85]Mrs Holliday’s written evidence made for the purposes of this action and confirmed by her in her oral evidence, namely a witness statement dated 20 September 2004, followed her 2002 witness statement. As mentioned, this made no reference to Mr Deary having any input into either of the two Wills.

[86]In her oral evidence Mrs Holliday amplified the process by which the Wills came into being. As she explained it what took place was broadly as described in her witness statements, but with the following further stages. i) Shortly before the signing of the First Will, probably on about 18 January 1999 but possibly on 19 January, she had been told by Judith Spinks that Dr McClintock wished to make a will, and that he wished to leave everything to Dr Sandra Calderwood and that for that purpose he wished to see Mrs Holliday. ii) As requested, Mrs Holliday went to see Dr McClintock. She suggested that he should see a solicitor, but he refused and gave her his instructions, which were as reported by Judith Spinks. This conversation took place in a lounge, which Dr McClintock used to take over and usually have to himself, and probably would have taken place before lunch. iii) Mrs Holliday had never before prepared a will herself. She told Mr Deary what had happened, and he pointed out that there was only one beneficiary, with no provision being made should that person predecease Dr McClintock; and he suggested that there should be other beneficiaries. It was he who gave Mrs Holliday the formal language used in the Wills. iv) Mrs Holliday then went back to Dr McClintock and discussed with him what he would want if Dr Sandra Calderwood should have predeceased him. He then explained to her the successive bequests he wanted to make. These instructions were given slowly, with Dr McClintock stopping to think; and Mrs Holliday had noted down what he wanted. v) Next, Mrs Holliday went away to her office and typed up the First Will. This does not use verbatim the words used by Dr McClintock in giving his instructions. Thus, for example, the document gives addresses for the intended beneficiaries. Mrs Holliday thought it was she who had obtained those. vi) After Mrs Holliday had done this, she took the First Will back to Dr McClintock. This might have been on the day following that on which Dr McClintock had given his instructions. He then read the document over to himself in her presence. As she said, he read everything to himself and it would take a long time. vii) Once Dr McClintock had read over the First Will, she accompanied him to the office, where Mrs Deary was. There he signed the will, and Mrs Deary and Mrs Holliday signed as witnesses. viii) After this she telephoned a solicitor, a woman, and consulted her about the First Will. The solicitor was Mrs Peatling. Mrs Holliday had read the contents of the First Will over the phone. Mrs Peatling had pointed out that there was no appointment of any executor and had advised that the person benefiting could be executor. ix) The contact with the solicitor had come about because Mr Deary had suggested that a solicitor should see the Will. Dr McClintock had agreed that she could consult the solicitor. x) After speaking with Mrs Peatling, Mrs Holliday had reported to Dr McClintock what she had said, and he had agreed that the First Will should be revised to make the principal beneficiary the sole executor. xi) Mrs Holliday had therefore embodied Dr McClintock’s instructions in a document which she typed, this document being the Second Will; and the process of showing the document to Dr McClintock, of his reading the document, and of his going with Mrs Holliday to the office to execute the Second Will in the presence of Mrs Holliday and Mrs Deary had been repeated.

[87]As to Dr McClintock’s state of mind during these discussions and transactions, Mrs Holliday said that she didn’t perceive that Dr McClintock was confused: so far as she was concerned, he was fine. It will be noted that according to her, the selection of beneficiaries had come from Dr McClintock and Dr McClintock had not needed any explanation of the reason for appointing an executor.

[88]It is clear that Mrs Holliday’s evidence was not in all respects satisfactory. I have already referred to the distorted evidence given in her first affidavit; and the omission from her written evidence of any mention of the involvement of Mr Deary may be noted. Further, I think that her evidence as to the extent to which Mr McClintock continued his share dealing after he came to St Ives and the extent to which she took instructions from him in relation to correspondence concerning the administration of his affairs gave an impression of greater activity than was in fact the case.

[89]Nevertheless, I am not willing to reject her evidence as wholly unreliable. She impressed me as sincere. Unquestionably she prepared the Wills and witnessed Dr McClintock’s signature. It was not suggested, and I could not accept, that she did this otherwise than in the genuine belief that Dr McClintock wished to make the dispositions contained in the Wills and that she was carrying out his instructions communicated by him to her. Given this, I think that the preparation and signing of the Wills took place much as Mrs Holliday described it. The alternative would be that Mrs Holliday put into the Wills things which originated with her and which Dr McClintock did not understand. I think Mrs Holliday would have been perceptive enough to see if she was, or might be, confusing her will for Dr McClintock’s.

[90]Mr Deary’s oral evidence about the actual making of the Wills broadly speaking was consistent with that given by Mrs Holliday in her oral evidence: he had, he said, some recollection of having suggested that Dr McClintock should think whom he should leave his estate to in the event of the sole beneficiary predeceasing him; and he also thought that it was he who, having seen the First Will, suggested to Mrs Holliday that she should get a legal opinion. The principal difference between his description of events and Mrs Holliday’s was his evidence that in his understanding the solicitor, Mrs Peatling, had visited in connection with the making of the Wills, not that Mrs Peatling had advised on the phone. But he said that his understanding was based on what he had been told by Mrs Holliday.

[91]A measure of caution is required in relation to Mr Deary’s evidence, in my judgment. The difficulty is illustrated by his letter of 10 February 1999. That letter, written not long after the making of the Wills, was certainly wrong about the sequence of events, with Dr McClintock’s illness and recovery being followed by the making of the Wills, and with a positive report about Dr McClintock’s condition at the time of writing. But it has not been suggested, and I do not believe, that Mr Deary was seeking to mislead Dr Sandra Calderwood when he wrote the letter or was writing something which was self-serving. The problem, I think, is that Mr Deary frequently based himself on what he was told by others, and was not at all careful in making sure that what he was told was accurate, that he correctly reported what he was told, and that when his knowledge was only second-hand this fact was acknowledged.

[92]Mrs Deary’s evidence may conveniently be mentioned at this stage. Her recollection was that she had been told that Dr McClintock wished to make a will and then that he had dictated a will to Mrs Holliday. Later, as she said, he came to her office for her to witness the Wills, that he was able to walk (a fact she referred to as assisting her to the view that he was not ill at the time) and that on each occasion the only persons present were herself, Dr McClintock and Mrs Holliday. In her oral evidence in chief she said that Dr McClintock read the Will to her before signing, although it was not clear which she was referring to. She believed that Dr McClintock was cognitively aware on each occasion: she said that had she not been of that belief she would have refused to witness his signing of the Wills. She added that on the days when the Wills were executed she would have had the opportunity to assess Dr McClintock’s capacity to make the Wills, that she could not recall having done so, but that she did not have any concerns about his capacity otherwise she would not have signed the Wills. In this context it was her practice to receive each morning a report from the care manager, who would have come on duty at 8am and would have been told by the night staff of anything significant; and she said that her practice was to have a daily round of the residents each morning and to talk with them for a few minutes.

[93]Mrs Deary’s written evidence, like that of Mrs Holliday, made no mention of Dr McClintock suffering from any form of illness or mental disturbance around the time when the Wills were signed. She said in her oral evidence that she was unaware of the entries in the daily log, referred to earlier in this judgment, which suggested that at times during the material period Dr McClintock had been confused. On the other hand she said that she had been aware of Dr McClintock refusing to go to bed, but commented that his refusal was not because he was confused but because he was obstinate.

[94]It is now appropriate for me to consider in greater detail the evidence in relation to Dr McClintock’s condition at the time of the making of the Wills. Before doing so I should say that I accept Mrs Deary’s evidence as truthful. She impressed me as efficient and practical and someone who would have been likely to observe if Dr McClintock’s behaviour in her presence was out of the normal or suggested that he was incapable of understanding what he was about.

Dr McClintock’s condition of mind after 1998

[95]Mr Deary’s letter of 10 February 1999 had referred to Dr McClintock’s health and state of mind. But, as it is now clear, that letter was mistaken in placing the making of the Wills to the time after Dr McClintock had been diagnosed with a chest infection, and the chest infection had been cured. As appears, the chest infection was diagnosed only on 26 January 1999; but before that he had clearly been unsettled.

[96]Down to 7 January 1999 the usual entries in the daily log kept by St Ives’ staff in relation to Dr McClintock were generally unremarkable, indicating that Dr McClintock was “fine”, had “slept well” or that there was “nothing to report”. But on 7 January 1999, according to the daily log, Dr McClintock was convinced that he had had a major heart attack and was seen by Dr Nandi. In this respect the log accords with Mr Deary’s letter of 10 February 1999, as well as with Dr Nandi’s own notes made when he examined Dr McClintock. These record that although Dr McClintock had thought he was having a stroke, all was now well and that Dr McClintock was having “no problem walking”. The examination revealed “no paralysis” and “no chest pain”.

[97]The log for the period down to the morning of 11 January 1999 conveyed that all was well with Dr McClintock, or at any rate there was nothing untoward. Then an entry in the log for the early afternoon of 11 January 1999 reported that Dr McClintock again asked to see the doctor as he felt he was dying; but that night he had slept well. Then and again on 12 January 1999, according to the log, Dr McClintock had kept asking for the doctor to visit him. The log also noted that “he is OK. He is a bit confused”; and that night he refused to go to bed and slept in the lounge. Again, on the night of 14 January 1999 Dr McClintock apparently did not go to bed, his condition seemingly having been satisfactory for the previous 48 hours or so.

[98]Dr Nandi’s own notes contain no reference to his having examined or treated Dr McClintock between 7 and 26 January 1999, although an entry for 19 January refers to Dr McClintock having a skin cream. However the St Ives log contains an entry for 15 January 1999 recording that on that day Dr McClintock “has been seen by Dr Nandi and the diagnosis is senile agitation.” But that night Dr McClintock is recorded as having slept well despite refusing to go to bed. The St Ives “doctors record” also records for 15 January 1999 as follows:

“Nandi – said Joe has senile agitation”; and adds “see medication chart”

. The medication chart itself records that Dr McClintock had been started on a once-daily dose of 1 ml of Droperidol taken at bed time.

[99]Droperidol is a major tranquilizer. Its effect would not have been transient only, as it would tend to build up within Dr McClintock’s body; and he would not have developed a tolerance for the drug. The intention of prescribing Droperidol would have been to calm Dr McClintock. According to Dr Nandi the dosage prescribed should not have made any impact on Dr McClintock’s state of mind, beyond calming him. Had the medication caused any further effect on his state of mind, this should have been manifest in that the effect would have been to make Dr McClintock drowsy.

[100]An entry in the St Ives Log, seemingly for 5am in the morning of 16 January 1999, recorded that Dr McClintock had refused to go to bed, had slept in his chair in the lounge, and that “he keeps asking of Judy that it is important”. The reference to Judy must be to Judy Spinks: that was confirmed by Mrs Deary. What Dr McClintock wanted is not revealed; but Mrs Deary said that she had learnt from Mrs Spinks that Dr McClintock wanted to make a will.

[101]From this time until 21 January Dr McClintock’s condition seems to have become yet more unsettled. The St Ives daily log records that he was from time to time incontinent; that on some nights he refused to go to bed, and that he was “confused” (the night of 17-18 January), “very confused” (on 18 January), a “bit confused” before going to bed that night, “very confused” the next day, and that on 20 January his “condition has deteriorated in that he seems to have no confidence … very unsteady on his feet … very ‘panicy’” (sic). The entry on 19 January, that being the day on which the First Will was executed, was timed at 1.30pm.

[102]From 21 to 24 January the log records an apparent improvement, with references to his seeming a bit better, seeming a bit less stressed, sleeping well and having a good day. On the night of 24-25 January however he is recorded as having refused to go to bed, and shortly thereafter there are further references to his being “confused” or “a bit confused”. On 26 January Dr Nandi was asked to visit, according to the log, as Dr McClintock was “still not going to bed, unsteady on feet and pains when walking”.

[103]Before dealing with the visit on 26 January I should refer to an earlier event. According to the St Ives “doctors record”, on 21 January 1999 someone “spoke to Dr Nandi re [Dr McClintock].” The entry continues:

“Still very ajated (sic). Suggested extra 1 ml droperidol at 9 am – see chart”

. And the St Ives medication chart appears to record that from that day Dr McClintock began to receive a dose of Droperidol in the morning as well as in the evening. This increase in the Droperidol was also referred to in a note in the daily log from 9 February 1999 recording a telephone conversation on that day: in this conversation it appears that Dr Nandi had suggested an increase in the Droperidol to “an extra 1 ml at night”, in response to which the latter was told “he was having this already as he increased it on the 21.1.99 to 1 ml in the morning as well as 1 ml evening.”. However, Dr Nandi’s own notes contain, as I have indicated, no reference to any visit to Dr McClintock on about 21 January, or to his having increased the frequency of Droperidol dose.

[104]Dr Nandi was asked whether he could have seen Dr McClintock on 15 or 21 January, or spoken over the phone about Dr McClintock, and recommended the Droperidol treatment on either occasion. His view was that had he been consulted and seen or been told anything of any consequence, or had he recommended any treatment, he would have had made a note; and the absence of any note led him to think that either he had not been consulted or that there had been nothing to report. Dr Nandi must be mistaken, perhaps because some note has been lost or because he had failed to make one: the St Ives records lead me to think that Dr Nandi’s own records are incomplete. I do not believe that the positive entries in the St Ives records could have been made in error. After all, Dr Nandi accepted that it was he who had prescribed Droperidol; and his own notes appear to contain, alongside entries for 26 January referred to below, a reference to Droperidol at bedtime. The probability is, as I conclude, that Dr Nandi was consulted on about 15 January, when the Droperiol was started; that that medication was started in order to relieve Dr McClintock’s agitation; that Dr Nandi was again consulted on about 21 January, when it seemed that Dr McClintock continued to be upset; and that at that time Dr Nandi increased the Droperidol treatment to meet Dr McClintock’s condition.

[105]Dr Nandi’s note of his examination of Dr McClintock on 26 January reports that Dr McClintock then had Parkinsonian shakes and slow mobility, that he was chesty and agitated, having an “angry mood”, that he had cogwheel rigidity and that he could walk with help. The St Ives’ doctors record summarised the conclusion of Dr Nandi’s examination as revealing a chest infection and Parkinson’s, a conclusion also described in the daily log which commented that new medication was to be given. The result of the visit was a prescription of antibiotics (Cephradine) for a suspected chest infection, and a course of medication (Sinemet) for the symptoms of Parkinson’s disease. This was the first time that Dr McClintock had been treated for any symptoms of Parkinson’s disease or, indeed, that there is any report of his displaying such symptoms.

[106]Dr Nandi said that in the course of his examinations of Dr McClintock on 7 and 26 January he had given Dr McClintock a brief test for mental acuity and had concluded that Dr McClintock had no cognitive impairment, that his memory was unimpaired and that he was quite fit mentally. But the test could not have taken more than five or ten minutes. This test could not therefore have been a full mental examination, but only an abbreviated form of test for GPs to use to gain an overall impression of a patient’s condition.

[107]The daily log suggests that following Dr Nandi’s visit on 26 January Dr McClintock’s condition improved somewhat; but on the night of 1-2 February there is a report of his being very confused and refusing to sleep in his room, and the log indicates that he refused to go to bed on more than one occasion and that from time to time he was nervous or reluctant to walk unaccompanied

[108]Dr McClintock’s refusal to go to bed from time to time from 7 January on is explained, I believe, by an entry in the daily log for 9 February. This records that Dr Nandi was phoned for advice about Dr McClintock “having dreams and thinking they are real” and in consequence refusing to bed. Dr Sandra Calderwood had given evidence that from time to time Dr McClintock was troubled by nightmares from his experiences during the Second World War. By January 1999 Dr McClintock had senile agitation, as it was summarised by Dr Nandi; an aspect of this would be that he had anxiety, fear or panic and would be obstinate about going to bed.

[109]The next visit made by Dr Nandi to see Dr McClintock was on 11 February. The daily log records that Dr Nandi was told about Dr McClintock’s “fear at night”, and with the medication chart shows that Dr Nandi stopped the Droperidol and prescribed a different major tranquilizer (Thioridazine, a drug also known as Melleril), and also prescribed an additional drug for treating the symptoms of Parkinson’s disease (Sinemet Plus). In the doctors notes this is summarised as “new medication for sleeping”. Dr Nandi’s own notes are a little more detailed, describing Dr McClintock’s symptoms as involving his getting frightened at night and having poor mobility due to Parkinsonian shakes. And the notes record that the Droperidol was to stop, with the new sedative being prescribed as well as the additional Parkinson’s drug. The comment was also made in Dr Nandi’s notes “still has cough”.

[110]The fact that on 11 February 1999 Dr McClintock’s cough appears to have remained is consistent with the fact that, according to the St Ives medication chart the administration of Cephradine had not continued after the end of January 1999. In fact between then and the end of February 1999 Dr McClintock appears to have had no antibiotic until on about 26 February 1999 he resumed taking Cephradine, suggesting that at that time he had some infection.

[111]26 February 1999 was the day after Dr McClintock had been seen by a Dr Whale MRCP, a consultant geriatrician. This had been on the referral of Dr Nandi following his examination of Dr McClintock on 11 February. Dr Nandi’s letter of 12 February 1999 to Dr Whale recorded that Dr McClintock was suffering from Parkinsonian shakes, that he had had poor mobility for over 3 months, had periodic agitation, and was getting very uncooperative; also that the staff at St Ives felt him to get very suspicious and unable to sleep. Among other matters the letter indicated that Dr McClintock’s memory was becoming impaired. Dr Nandi concluded by saying that he would be grateful for an early assessment and advice.

[112]Dr Whale reported to Dr Nandi by letter dated 28 February 1999, having visited Dr McClintock at St Ives on 25 February 1999 to conduct an examination. The letter summarised what, so far as one can judge by the letter, Dr Whale had learnt either from Dr Nandi’s letter or had been told by the staff at St Ives. This included that over the previous four to five months Dr McClintock’s mobility had become a problem, with his legs frequently becoming stiff, and with him having lost the ability to walk unaided; that “at times he has become quite agitated and has required sedative medication.” The letter also recorded what Dr Whale had been told by “the care home manager.” He reported that “she told me that despite these problems [Dr McClintock] maintained an interest in current events and was very capable of managing his share portfolio”. As to Dr Whale’s own observation, he reported so far as material as follows:

“On examining him, I found it difficulty to gauge his cognitive state because of the deafness. However, I did form the impression that there was a degree of cognitive impairment although not amounting to dementia. He came across as a very pleasant man who was very thin and somewhat kyphotic. … His arms were really very rigid with cogwheel rigidity strongly suggestive of Parkinson’s disease. Getting him to stand up was very difficult and he certainly could not manage this unaided. … Once upright, matters were not helped by his severe kyphosis and his tendency to lean backwards. Walking was very difficult and the shuffling gait was characteristic of Parkinson’s disease. The combination of cognitive impairment and Parkinsonism suggests the possibility of Lewy body disease. In this situation the use of conditional sedatives such as Melleril can worsen the Parkinsonism. For this reason I suggest that sedation be avoided as much as possible … I think in the long-term he is likely to deteriorate as the Parkinsonism seems to be at a very advanced stage….”

[113]Later, in mid-2002, Dr Whale was asked to expand upon what he had found when examining Dr McClintock. In a letter dated 23 July 2002 Dr Whale responded to this request by saying that he was asked to comment on Parkinson’s disease and not the mental condition of Dr McClintock, and that he did not undertake any formal mental evaluation beyond talking to him and asking him about his symptoms.

[114]After February 1999 Dr McClintock’s condition seems to have worsened progressively with time. The St Ives notes indicate periods when, apparently, all was well. On the other hand on about 18 April 1999 he is reported to have been taken to hospital after suffering from a panic attack and stopping breathing, only to be returned from the hospital the same day with a report that he was suffering from Parkinson’s and panic attacks. In a letter dated 2 July 1999, following Dr McClintock’s return to St Ives following the period in hospital referred to below, Mr Deary wrote to Dr Sandra McClintcock to say, among other matters, that Mrs Holliday “has not been too happy with his condition until now which is why we have not asked him to sign any cheques or other papers etc.” Then, in a letter dated 4 November 1999, signed by Mrs Holliday on Mr Deary’s behalf, Mr Deary had written to Dr Sandra Calderwood pointing this out. He also wrote that Dr McClintock “has good days and bad days” and that “on his good days he is very alert, but on his bad days he is very disinterested in most things. Mentally he still quite capable of dealing with his own affairs although he no longer shows any interest in his share dealing."

[115]There was a second occasion in 1999 when Dr McClintock went to hospital. In the middle of 1999 Dr McClintock was sent to Whipps Cross Hospital with a urinary tract infection. This was not surprising in a patient who had had a prostatectomy. However Mr McClintock gave evidence that a Sister Anne Minogue from that hospital had on some unspecified occasion told him that on admission Dr McClintock was unable to speak. The hospital notes contain an entry “unable to communicate”. So far as I can see, this entry is consistent with the hospital having had difficulty in communicating with Dr McClintock who was, after all, extremely deaf. None of the other information which, according to Mr McClintock, had been provided by Sister Minogue (who cannot now be traced) had any relevance to an assessment of Dr McClintock’s mental acuity at the time he made the Wills. In any case, I attach no weight to that information: in my judgment the hospital notes are likely to be a much better guide than anything that Mr McClintock can have remembered from an unrecorded conversation. By 2000, as a result of Parkinsonian shakes, Dr McClintock could not walk. By mid-2000 it is probable that Dr McClintock had become incapable of managing his own affairs.

[116]By 2000, as a result of Parkinsonian shakes, Dr McClintock could not walk. By mid-2000 it is probable that Dr McClintock had become incapable of managing his own affairs.

[117]Reverting to the position at the beginning of 1999, Dr Nandi’s evidence was that Dr McClintock’s mental state deteriorated sharply from 26 January to 11 February 1999, and it was this which led him to refer Dr McClintock to Dr Whale. In this respect his evidence is supported by the documents, which show that on 11 February 1999 Dr Nandi clearly thought that a change in medication was called for, including the fresh medication for treating the Parkinsonian symptoms. These must have become much worse than those present on 26 January.

[118]He said that on the other hand on the occasion of the 26 January visit, as on the 7 January visit, he had not detected cognitive impairment. Plainly on the later occasion, but not the earlier, he had observed both symptoms of a chest infection and Parkinsonian symptoms; but he said that Dr McClintock was able to talk normally and to walk. And he had checked Dr McClintock’s mental acuity on 26 January. He gave it as his view that on that occasion Dr McClintock was of testamentary capacity: he said that he did not have cognitive incapacity, and had not suffered loss of insight or memory, and that there was nothing wrong with him mentally. This was despite the fact that at that time Dr McClintock was receiving a twice daily dose of Droperidol. As to this Dr Nandi was sure that the dose was not sufficient to make Dr McClintock drowsy and incapable, but only sufficient to calm him down. He was also sure that Dr McClintock was not confused when he saw him on 26 January.

[119]Dr Nandi, when giving evidence, was modest about his expertise in geriatric psychiatry. As he commented, he is an experienced general practitioner, not a specialist geriatrician. As to his experience, approximately one-third of his list of 3,000 patients will at any time typically be over 65 years. He had qualified in India in 1972. He had had further training in the UK, with training as a GP in 1979 and qualifying as a GP in 1980. As part of his training he had studied care of the elderly and of psychiatric patients. He had been Dr McClintock’s GP since about 1994.

[120]So far as Dr McClintock’s medical condition was concerned, Dr Nandi gave it as his view that during January 1999 Dr McClintock was suffering from early stages of Parkinson’s disease. He explained that dementia is commonly associated with Parkinson’s disease in its later stages. Lewy body syndrome, referred to in Dr Whale’s letter, is a thinning of the blood vessels to the brain, and can lead to dementia. It is a condition which is commonly found in patients with Parkinson’s disease. But he said that in a patient with Parkinson’s disease the Parkinsonian shakes may develop gradually, while dementia may develop rapidly.

[121]Expert medical evidence was called by Mr McClintock. This evidence was given by Dr Navin Savla, MBBS, DPM, FRCPsych. He had been a consultant psychiatrist in old aged psychiatry from 1976 to 2003, and the Clinical Director for old aged psychiatry and general adult psychiatry at Whipps Cross Hospital and for Waltham Forest Health Authority. He had examined Dr McClintock in late May 2000 in connection with a proposed application to the Court of Protection for the appointment of a receiver.

[122]Following the 2000 examination Dr Savla prepared a report stating that Dr McClintock’s “present mental disorder has lasted … for last 2-3 years”. This was described as follows:

“[Dr McClintock] has a history of confusion dating from 1997. He was seen by my Senior Registrar and following that his condition became worse … There has been a gradual deterioration, both in his mental and physical condition. He needs constant attention for his daily needs. He has become frail and his mobility has been poor. On psychiatric assessment he has clinical signs of Alzheimers dementia. He has no insight about his illness and he is incapable of managing his financial affairs.”

[123]Dr Savla also wrote to Dr Nandi a letter dated 6 July 2000 in which he said of Dr McClintock that “the main concern areas have been his poor memory and requiring constant nursing care. There are no psychiatric problems like agitation or restlessness. He his getting very frail but he is well settled at St Ives Lodge and he is getting good care.”

[124]Dr Savla made a report for the purposes of these proceedings. This report was in terms concerned only with the First Will. It made reference to the examination of mid-2000, which Dr Savla said had been taken into account in reaching his conclusions; but in error Dr Savla seems to have placed the making of the First Will to merely 6 months (rather than 16 months) before the examination. Broadly Dr Savla had in order to make his report examined the documentary evidence referred to earlier in this judgment, and had had a discussion with Mrs Deary. So far as material his conclusion was as follows:

“3. Mrs Deary gave oral evidence to me that her recollection of 19th January 2001 (sic) was that Dr McClintock was not confused when he signed the will and as I have stated that Dr McClintock’s symptoms were fluctuating and in all probability when the will was witnessed he was less confused. 4. The evidence available to me, I am of the opinion in all probability Dr McClintock was suffering from mild to moderate form of dementia both of Alzheimer’s and of Lewy body type and evidence to this has been recorded from 1997. The superimposed chest infection along with other factors of medication made him very confused with the diagnosis of acute confusional state. The evidence available to me, I am of the opinion that when Dr McClintock signed the will he did not fulfil the criteria for testamentary capacity. 5. I have not found any evidence of functional disorder like depression to account for his symptoms from 1997 onwards.”

[125]In relation to the question of testamentary capacity Dr Savla had directed himself that Mr McClintock(a) would have needed to understand the nature of the act and its effects, and the extent of the property of which he was disposing;

(b) would have needed to be able to comprehend and appreciate the claims to which he ought to give effect; and “with a view to the latter object”

(c) should have been free from disorder which might poison his affections or pervert his sense of right or the exercise of his natural faculties, and

(d) should not have been influenced by any insane delusion.

[126]The test which Dr Savla had applied in relation to the question of testamentary capacity was in my judgment inapposite in a couple of respects. In its first limb he had confused testamentary capacity with knowledge and approval. So far as the third and fourth limbs of his test were concerned, there was no question of Dr McClintock suffering insane delusions or suffering from some disorder to pervert his sense of right; Dr Savla agreed that he was not. In relation to testamentary capacity the issue is simply whether Dr McClintock had the necessary capacity to understand the nature of his act and its effect and to bring to mind what his property was and the appropriate objects of his bounty.

[127]Dr Savla’s chain of reasoning was as follows: i) During 1997 Dr McClintock had become unable to care for himself. ii) On a couple of occasions when examined there had been suggestions of Dr McClintock having dementia: Dr Kafetz, who reported in July 1997, “suspected diagnosis of dementia” and Dr Whale, who reported at the end of February 1999, indicated “that there is a probable diagnosis of Lewy Body Dementia”. iii) Symptoms manifested in Dr McClintock, as described by the various records, pointed to his having “very early signs of dementia probably of the Alzheimer’s type and Lewy body type”. iv) This dementia had been suffered probably for 12 to 18 months before mid-January 1999. v) The severity of the dementia cannot now be easily determined with precision, but could have been from mild to moderate intensity. vi) Dr McClintock’s mental functions were further impaired by an acute confusional state secondary to a chest infection. vii) Yet further, the sedative drugs might have contributed to the confusional state, as they have an adverse affect if an individual is suffering from an infection. viii) The combination of the above would have led to clouding of consciousness taking a fluctuating course.

[128]In relation to this chain of reasoning Dr Savla appears to have overstated what was in fact said by Dr Kafetz and Dr Whale. i) Dr Kafetz had not used the term “dementia”; his report did not in truth do more than indicate that Dr McClintock was suffering from some degree of cognitive impairment, that he had memory loss, and that Alzheimer’s disease was a possibility. The person who had used the term “dementia” had been Dr Nandi. This had been at a time when Dr McClintock was failing in his efforts at self-care. ii) What Dr Whale had said in his letter of 28 February 1999 was (emphasis added) that his impression was that there was “a degree of cognitive impairment although not amounting to dementia”, and that the cognitive impairment and Parkinsonism “suggests the possibility of Lewy body disease”. He did not say that there was a “probable” diagnosis of Lewy body disease.

[129]A patient with dementia will not necessarily lack testamentary capacity: the severity of the dementia would be relevant. Dr Savla defined dementia as a gradual progressive deterioration of the mind with symptoms of confusion and memory loss. He agreed that someone with mild dementia could have testamentary capacity, as could someone with moderate dementia.

Dr McClintock’s testamentary capacity

[130]It is possible that by January 1999 Dr McClintock may have had some form of dementia as defined by Dr Savla. Making allowance for the fact that his condition in 1997, when he was living on his own was no doubt adversely affected by his inability to meet the challenge of caring for himself properly, it seems likely that his intellect was by then impaired to some degree. Dr Sandra Calderwood’s letter of 10 May 1997, written at a time when Dr McClintock was being properly cared for, conveyed that his memory was beginning to fail and he was no longer so intellectually capable as previously. It is likely that during 1998 Dr McClintock’s mental capacity continued to deteriorate gradually. Unquestionably by January 1999 Dr McClintock was suffering from a degree of cognitive impairment, even if not amounting to dementia.

[131]My conclusion, however, is that by the end of January 1999 Dr McClintock’s dementia, if such it was, was only showing very early signs. It was not so severe as, of itself, to deprive Dr McClintock of testamentary capacity. Two points satisfy me about this. i) Dr Whale’s letter of February 1999 indicates that such dementia as Dr McClintock was then suffering from could not have progressed far: Dr Whale’s impression was that the cognitive impairment he noticed did not amount to dementia. Although Dr Whale subsequently said that he had not been asked to comment on Dr McClintock’s mental condition, only on Parkinson’s disease, it is difficult to see that Dr Nandi’s request to him was so limited; and in any case Dr Whale had felt able to make some comment about Dr McClintock’s cognitive capacity. ii) Dr Nandi’s evidence of the condition of Dr McClintock on 7 and 26 January 1999, evidence which I accept, is inconsistent with any dementia having progressed beyond mild. iii) Mrs Deary, who routinely dealt with Dr McClintock, considered him to be intellectually capable.

[132]There remains, however, the question of the extent to which Dr McClintock’s impaired cognitive capacity was so much further affected by confusion flowing from an infection or medication at the material times during the second half of January 1999 as to preclude his having had testamentary capacity when he made the Wills.

[133]My conclusion on this is that both at the times when Dr McClintock discussed the Wills with Mrs Holliday and at the times when he signed the Wills he did have testamentary capacity. My reasons for this conclusion are as follows. i) Dr Savla reasoned that Dr McClintock became confused from about 17 January 1999, this confusion being caused by a chest infection which was only diagnosed on 26 January 1999. He did not think that the chest infection had been present before about 17 January. However, with the exception of the reference to Dr McClintock being a “bit confused” on 12 January, there is no report of his experiencing any confusion until after 15 January. It was on that date that Dr Nandi had diagnosed “senile agitation” – which I take to be equivalent to anxiety or a form of paranoia - and had prescribed Droperidol. The diagnosis had followed several occasions when Dr McClintock had refused to go to bed or had demanded to see the doctor. This refusal was not regarded by Dr Savla as indicative of a chest infection or confusion: I conclude that this refusal was led by fear or anxiety, part of what Dr Nandi had referred to as senile agitation. The likelihood, in my judgment, is that it was the Droperidol, prescribed as a remedy for the senile agitation which led, or at any rate contributed, to what was reported in the daily log as confusion. It is also likely that the Droperidol enhanced the Parkinsonian symptoms which Dr McClintock was displaying by 26 January 1999. ii) Dr Savla also took it that Dr McClintock’s mental acuity improved between the 26 January 1999 and the time of Dr Whale’s examination, this being attributable to the elimination of the chest infection diagnosed on 26 January; and he accepted that by the time of that examination Dr McClintock had testamentary capacity. But Dr Nandi’s evidence was that there was a rapid and marked deterioration in Dr McClintock’s condition between 26 January and 11 February. It would appear likely that Dr McClintock was still suffering an infection on 25 February 1999 when examined by Dr Whale. In the event I am not persuaded that Dr McClintock’s mental condition at 25 February 1999 was likely to to be better than his mental condition on 26 January 1999 when he was seen by Dr Nandi. On the contrary, I think that the description given by Dr Whale of what he found on 25 February 1999 supports the evidence of Dr Nandi as to Dr McClintock’s condition on 26 January 1999. Dr Savla accepted, as I understand it, that at the time of Dr Whale’s examination Dr McClintock would have had testamentary capacity. iii) Mrs Deary and Mrs Holliday said in evidence that they were not aware, in mid-January 1999, of Dr McClintock experiencing periods of confusion. The notes in the daily log, which refer to Dr McClintock being in a confused condition, do not further describe the symptoms: neither Mrs Deary nor Mrs Holliday could elaborate on the way in which the confusion might have manifested itself or its effect. Only the makers of the notes could now say what they intended to convey by the notes. But if Dr Savla’s conclusion about the confusional state experienced by Dr McClintock in mid-January is correct, and the confusion took a fluctuating course, there would have been periods when he was less confused. And Dr Savla accepted, I think, that during the less confused periods Dr McClintock could have had testamentary capacity. As to this, he agreed that Dr Nandi had seen Dr McClintock during January 1999, when he himself had not, and that weight could be placed on what Dr Nandi had observed. He also accepted that weight could be placed on Mrs Deary’s observations. iv) Ultimately, therefore, the question turns on the evidence of Mrs Holliday and Mrs Deary. a) I have already given my view about the evidence of the latter. Her evidence, which I accept, goes to the condition of Dr McClintock at the time he signed the Wills. At that time the effects of the Droperidol had not been sufficient to cause Mrs Deary to think he lacked cognitive capacity. b) Mrs Holliday’s evidence I have accepted as regards the manner in which the Wills came to be made. I think that weight can be ascribed to her belief that she was receiving from Dr McClintock instructions as to the contents of his Wills which she could act upon. She had experience of dealing with him; and did not perceive anything in his manner to suggest that he was confused or not in a fit state to give instructions. This leads me to conclude that when giving his instructions he was not confused. v) Accordingly if, as Dr Savla infers, over the period after 15 January, Dr McClintock was going through states of fluctuating confusion, he was at the time of his dealings with Mrs Holliday and Mrs Deary in a state of less confusion comparable with his condition before 15 January 1999.

[134]It will be apparent from what I have said that, although I found Dr Savla’s evidence helpful in assisting me to understand the issues, I do not accept the conclusion in his report which I quoted above. I should add one further matter. I am not persuaded that the evidence supports the view that in all probability Dr McClintock started a chest infection on about 17 January. Dr Nandi saw Dr McClintock once, if not twice, between that date and 26 January without prescribing any antibiotic and therefore without detecting any symptom of a chest infection. Moreover the foundation for the conclusion that there was probably an infection present is the references in the daily log to Dr McClintock being confused. But it is known that over the relevant period Dr McClintock was being treated with Droperidol, and side effects of that medication appear to have been to bring on Parkinsonian symptoms. To my mind the likelihood is that it is that medication which led to the symptoms identified in the St Ives daily log as confusion.

[135]On the issue of testamentary capacity, as on the issue of knowledge and approval, I reject the argument made by Mr McClintock that the content of the Wills was surprising and calculated to undermine a claim that Dr McClintock was of testamentary capacity when they were made. It is understandable, in my judgment, that Dr McClintock should have wished to benefit Dr Sandra Calderwood in preference to anyone else: in the closing years of his life Dr McClintock’s closest connection was with the Calderwoods; and it appears to have been his niece-in-law who had taken the greatest responsibility for him and for whom he might feel the greatest affection or obligation. I do not accept that it was surprising or unreasonable for Dr McClintock to leave his estate to his brother on only a remote contingency, or to make no provision for any of his other relatives beyond those mentioned in the Wills.

[136]As a further point in relation to the issues which I have to decide, I bear in mind that Dr McClintock’s estate was comparatively simple, consisting in substance of his house, cash and shares; and the dispositions contained in the Will likewise were simple. It would not have been difficult for Dr McClintock to understand these matters. True, Dr McClintock had a large number of relatives besides those named as beneficiaries in the Wills; but none of these other relatives had any particular claims on his bounty and so far as I can see no one had any claim approaching that of the Calderwoods. So far as the testamentary capacity issue is concerned, I am satisfied that Dr McClintock was capable of understanding the relevant transaction and its effects without explanation.

Knowledge and approval

[137]My conclusion on the question whether Dr McClintock has been shown to have had knowledge of and to have approved the Wills and their contents follows from my conclusion on the previous issue. It can be stated shortly. Mrs Holliday’s evidence, which I accept, is that it was Dr McClintock who instructed her that his estate should be left to Dr Sandra Calderwood; and it was he who later instructed her as to the beneficiaries of the successive bequests in the event of her predeceasing him. She also said that, in relation to the Second Will, he understood and agreed to the suggestion that the principal beneficiary should be his executor. And she confirmed that Dr McClintock read over each of the Wills before going with her to Mrs Deary’s office to sign the Will. Mrs Deary’s evidence, which I accept, is that Dr McClintock read one of the Wills over to her.

[138]Under the circumstances I am satisfied that when he executed each of the Wills Dr McClintock knew and approved the contents of the Wills.

Conclusion

[139]Being satisfied, as I am, that Dr McClintock had testamentary capacity when making each of the Wills and knew and approved the contents of both, I shall order that the Second Will, being Dr McClintock’s last Will, is to be admitted to probate in solemn form, the probate in respect of the First Will being revoked.