Franks v Sinclair & Ors [2006] EWHC 3365 (Ch)

[2006] EWHC 3365 (Ch)Case No HC05C00821
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2006
Before
MR JUSTICE DAVID RICHARDS
Between
Morley Lionel Bowman FranksClaimantJonathan SinclairDefendantsDavid SinclairDefendantAnn SinclairDefendant
Andrew Francis (instructed by Farrer & Co) for ClaimantLeon Sartin (instructed by Mishcon de Reya) for 1st and 2nd DefendantsAnn Sinclair (acting in person) 3 rd Defendant for in personHearing Hearing dates: 27, 28, 29 and 30 November and 1 and 4 December 2006
Judgment
[1]In this action Morley Franks seeks to prove in solemn form a will made on 26 May 1994 by his late mother Mrs Jennie Franks (Mrs Franks). Under the terms of the will (the 1994 will) the residuary estate was left in equal shares to Mr Franks and his sister Ann Sinclair. Two of Mrs Sinclair’s children, Jonathan Sinclair and David Sinclair, were appointed executors. Mrs Sinclair, Jonathan and David are the defendants in the action and they oppose the making of a decree pronouncing for the validity of the 1994 will. Jonathan and David seek a decree pronouncing for the validity of a will made by Mrs Franks on 21 May 1992 (the 1992 will), of which they are also the executors and under which Jonathan is the sole residuary beneficiary. In the event that the court does not pronounce for the validity of the 1994 will, a decree pronouncing for the validity of the 1992 is not opposed by Mr Franks.[2]It is not alleged that Mrs Franks lacked the capacity necessary to make the 1994 will or that it was not duly executed. It is alleged that she did not know or approve of its contents. Mr Franks accepts, notwithstanding Mrs Franks’ testamentary capacity and the due execution of the 1994 will, that the circumstances surrounding the making of the will are such as to impose on him the burden of establishing that Mrs Franks made it with knowledge and approval of its contents.[3]While Mr Franks, Jonathan and David have been represented by solicitors and counsel throughout the proceedings, Mrs Sinclair appeared in person at the trial. She is clearly upset at the divisions within the family and this public airing of them. She conducted herself with dignity and restraint throughout the trial.[4]Before coming to the issues of fact on which this case turns, I shall set out the background history and circumstances so far as relevant.[5]Mrs Franks was born in 1904 and died on 23 September 2004. She married and had three children, one of whom died in infancy in 1941. Her remaining children, Mrs Sinclair and Mr Franks, were born in 1935 and 1943 respectively. Both are married. Mrs Sinclair has four children, including Jonathan, David and a daughter Judith, who were born respectively in 1962, 1964 and 1973. Jonathan is a chartered accountant and the sole principal of a firm established by him. David is a practising solicitor and a partner in a large City firm. All the children themselves have children, most of them born while Mrs Franks was alive. Mrs Franks’ husband died in 1968.[6]Mr Franks is a solicitor in private practice, having been admitted as a solicitor in 1971. His practice is primarily conveyancing but he has extensive experience in wills and probate. In 1978 he set up his own practice in Borehamwood and remained senior partner of the firm, known as Measures Franks & Co, until August 2004. It then merged with another local firm and Mr Franks is a partner of the merged firm. Mr Franks married in 1967 and has two sons and seven grandchildren.[7]All the witnesses are agreed that Mrs Franks was a strong-willed woman who spoke her mind and if she felt strongly, which I suspect she often did, she did not mind if she gave offence. She had disputes with various members of the family, involving in one instance a claim against her brother-in-law to recover an alleged loan. In a letter written in 2003 David stated that:
“Before the decline in her health she was a formidable and at times highly abrasive character; her relationship with most other members of the family could be characterised as “stormy” from time to time.”
She has been described as feisty and I have no doubt that, balancing the characteristics described above, she was lively and interesting with a strong sense of loyalty and love for her family. With her brother and sisters she was a talented musician, who trained at the Guildhall School of Music.[8]Mr Franks did not have an easy relationship with his mother. She did not like his wife and there were incidents to which I will refer which contributed to a distrust of him on her part. She mellowed in her final years and there was an improvement in their relationship, described by Mr Franks as a “slow ascendancy” over the last 10-12 years of her life. It was not a relationship of permanent antagonism; a tape recording of a telephone conversation on the eve of her 90th birthday in October 1994 shows natural affection between them.[9]The one member of the family who came to have her complete confidence was Jonathan. He was very attentive and a rapport developed between them, each enjoying the other’s company. In the letter from David from which I have quoted, he contrasts her relationship with Jonathan with her relations with other family members. He was her confidant and she trusted him; he assisted her in many ways in circumstances where other members of the family would find her too difficult and antagonistic. I refer later to some of the evidence on this.[10]As to Mrs Franks’ health, she was by 1994 physically frail and confined to living in the hall and sitting room on the ground floor of her house. A short-term memory loss was apparent by the time of her 90th birthday but she signed an enduring power of attorney in favour of Jonathan on 4 October 1994 and Simon Winston, a neighbour and solicitor who prepared it and advised her on it, later wrote that she fully understood it, was entirely clear and lucid and not in any way confused. Her physical condition continued to deteriorate so that in mid-1995 she moved permanently into residential care and, as time went on, there was deterioration in her mental condition.[11]I turn now to financial matters and the successive wills made by Mrs Franks. Mrs Franks and her husband, a tax inspector, purchased over a number of years six residential properties for investment purposes, as well as owning their own home at 140 Hendon Lane, Finchley, London, N3. Mrs Franks and her husband transferred ownership of three of the investment properties to Mrs Sinclair. One property, 6 Crooked Usage, London, N3 was purchased in Mr Franks’ name and the other two properties were transferred to him. The terms on which they were to be held were not recorded but it is common ground that they would be beneficially as well as legally owned by Mrs Sinclair and Mr Franks, but that Mrs Franks and her husband would control the letting of the properties, pay the outgoings and retain the rental income.[12]The first will in evidence made by Mrs Franks is dated 4 July 1977. It was prepared by Barker Gooch & Swailes, a firm of solicitors which acted for Mrs Franks over a number of years. It appointed Mr Franks and Mrs Sinclair as executors. It made substantial provision for Mrs Sinclair, leaving her the property at 140 Hendon Lane, and holdings of Treasury, premium and property bonds as well as all her personal jewellery, clothing and personal chattels. Legacies of £1,000 were left to each of Mrs Franks’ grandchildren apart from Judith who was to receive £3,000. There were small charitable gifts totalling £600 and the residuary estate was to be divided equally between Mr Franks and Mrs Sinclair. Clause 7 provided that there was no provision “for my dear son Morley in this my Will beyond the share of residue hereinafter mentioned because of the provision I have been able to make on his behalf during my lifetime.” Barker Gooch & Swailes’ file contains attendance notes which show that Mrs Franks considered that she had made greater lifetime provision for Mr Franks than for Mrs Sinclair.[13]This will was revoked by a will made on 28 August 1980, prepared by Barker Gooch & Swailes. Its terms were identical to the earlier will, except that the legacies to Mrs Sinclair were increased by the addition of SAYE certificates, any stocks and shares and other investments save for investments in building societies, and one half of any credit balance on her accounts at the Kings Cross branch of Barclays Bank. The charitable gifts were increased to £1,000.[14]In November 1981, Mr Franks sold the property at 6 Crooked Usage without the prior knowledge or approval of Mrs Franks. He warned her over an 18 month period that he would sell it unless steps were taken to make it habitable and to let it. Mr Franks retained the proceeds of sale. Whether or not Mrs Franks was entitled to expect that her approval for the sale would be sought, the sale undoubtedly angered her and it remained a major source of distrust and recrimination on her part for many years.[15]On 8 March 1982 Mrs Franks made a new will, clearly, as I find, in response to Mr Franks’ action in selling 6 Crooked Usage. This is apparent not only from the timing but also from a note of a telephone conversation with Mrs Franks on 24 February 1982 on the file of Barker Gooch & Swailes, who again prepared the will. Although it appointed Mr Franks and Mrs Sinclair as executors, Mr Franks was later removed by a codicil dated 13 May 1986, a step which Mrs Franks had considered as early as December 1983. The principal terms of the will were significantly different from the earlier wills. Mr Franks’ only interest under it was a legacy of £20,000. The legacies to the grandchildren and the charitable gifts remained the same. The entire residuary estate was left to Mrs Sinclair and the specific legacies to her were removed. Clause 5 of the will stated that no provision was made “for my dear son Morley” beyond the legacy because of the provision made for him by Mrs Franks in her lifetime. There is no copy of this will but there is no dispute as to its terms. By a second codicil dated 8 November 1988, Mrs Sinclair was replaced as executor by Barker Gooch & Swailes and Arnold Bookatz, who was then Mrs Franks’ accountant.[16]Over a number of years Mrs Franks arranged for the sale of the remaining five investment properties and later arranged for the proceeds of sale of the three properties held by Mrs Sinclair to be paid to Mrs Sinclair. The proceeds of sale of the two remaining properties held by Mr Franks were paid, on Mrs Franks’ instructions, into accounts with five building societies in Mr Franks’ name. Mrs Franks retained the passbooks for the accounts and refused Mr Franks’ requests to give them to him. Mrs Franks’ address was the registered address for the accounts.[17]In the late 1980’s, Jonathan’s close relationship with Mrs Franks developed and it endured for the rest of her life. I accept Jonathan’s evidence, as stated in his witness statement:
“20. From the late 1980’s, I became closer to my grandmother and started seeing her regularly. We got on well and we were very close. I was aware that as she was living on her own, things needed to be done and was very happy in dealing with the practical necessities of living. We enjoyed each other’s company. 22. I enjoyed a close and warm relationship with my grandmother. In the early 1990s I lived and worked near my grandmother who was then living at Hendon Lane. I saw or spoke to my grandmother on an almost daily basis. I helped her with shopping, gardening, home repairs, collecting her pension, taking her to medical appointments and other practical matters.”
Mrs Sinclair and others gave evidence of the warm relationship between Mrs Franks and Jonathan. In Mr Franks’ evidence, while not accepting from his own direct knowledge that this was their relationship, he readily accepted that he had no reason to doubt it.[18]In 1990, following it would appear advice from Mr Bookatz, Mrs Franks made payments to her grandchildren: £250 each to Mr Franks’ two children, £30,000 to Judith, £10,000 to Jonathan, £5,000 to David and £5,000 to their brother Anthony. These payments were gifts with the possible exception of some or all of the payments to Judith. It is not relevant to decide whether the payments to Judith were gifts, but Mrs Franks certainly later believed that they were loans and that Judith had failed to repay them.[19]On 16 September 1991, Mrs Franks made a new will, prepared by Barker Gooch & Swailes. The executors named in the will were Mr Bookatz and David, who had qualified as a solicitor in the same year. It made significant changes to the disposition of the bulk of the estate. Instead of being the residuary legatee, Mrs Sinclair was given a legacy of £20,000. The legacy of £20,000 to Mr Franks remained. Jonathan, described as “my very caring grandson”, was to receive 140 Hendon Lane and its contents, all shares, the monies in all building society accounts in Mrs Franks’ name and, by a codicil dated 16 September 1991, one half of the credit balances on two accounts with Barclays Bank. The residuary estate was to be divided equally among her surviving grandchildren. The legacies to the grandchildren other than Jonathan were increased (£10,000 to David, £5,000 to Judith, £2,000 each to Anthony and Mr Franks’ two children).[20]The gift of the house to Jonathan was consistent with what Mrs Franks was telling Mrs Sinclair at this time. It seems clear, and I find, that the greatly enhanced legacies in favour of Jonathan were in recognition of the close relationship which by then existed between him and Mrs Franks.[21]In 1992, Mrs Franks made two new wills, both of which were prepared by Simon Winston, a solicitor in private practice and Mrs Franks’ next-door neighbour. Mr Winston provided a witness statement for these proceeding and gave oral evidence. I accept his evidence.[22]Mr Winston and his wife Madeleine moved to Hendon Lane in 1987. They got to know Mrs Franks very well and she would “often pop in for a chat, usually unannounced”. As to what Mrs Franks told them about her relations with Jonathan and Mr Franks, Mr Winston says in his statement:
“In the years that I knew her Mrs Franks often talked about her grandson Jonathan with great affection as well as her feelings towards her son Morley. Mrs Franks told me that the poor relationship with her son arose out of an incident when he sold a property in a street called Crooked Usage (which is very close to where we live) which had been registered in his name for tax purposes. Mrs Franks told me that when she found out about the sale, she had asked him for the proceeds. Her son had refused to give them to her and Mrs Franks felt that he had stolen money from her. Essentially she did not trust her son. I cannot remember precisely when she told me about this, but she certainly mentioned it on more than one occasion.”
There was no challenge to the accuracy of this as a summary of what Mrs Franks told Mr Winston. Mrs Winston gives a similar account in her statement, on which she was not cross-examined. She states:
“7. In all my discussions with Mrs Franks she left me in no doubt about her son Morley. She would often talk to me about how he had “robbed” her. She felt very strongly about it. 8. I can recall Mrs Franks met with my husband to have her will drawn up. I was not privy to those meetings, but Mrs Franks told me on numerous occasions that Morley had already received everything he was going to get from her. 10. ...In all my conversations with her during the period that we were neighbours (1987 until June 1995), she never said to me that she had changed her view of him. She never stopped complaining about him and was adamant that he would not receive anything more from her. 11. She was very fond of Jonathan and was very much aware of all he did for her. She often talked about him with great affection. She told me on more than one occasion that Jonathan would be the beneficiary of her estate.”
[23]Mrs Franks knew that Mr Winston was a solicitor and she asked him to prepare a new will for her. No member of Mrs Franks’ family was present either when he took instructions and discussed the proposed provisions with her or when either of the wills made in 1992 were executed. Although he cannot now specifically remember, he believes, and there is no reason to doubt, that in the case of each will he would have followed his usual practice of taking notes of Mrs Franks’ instructions, leaving a draft of the will with her, going through the draft and discussing it with her, explaining each clause as necessary and, once she was happy with it, preparing an engrossed version for execution. At the meeting for her to execute the will, he would have again gone through the contents with her to ensure that she was happy with it. Given that Mrs Franks was elderly, he would have satisfied himself that it was her wish to leave the residue to Jonathan to the exclusion of her other grandchildren and her children. He left at least one copy of the will with Mrs Franks.[24]The first will prepared by Mr Winston was made on 5 February 1992. The major change from the will dated 16 September 1991, was that instead of the specific substantial legacies to Jonathan with the residuary estate to be divided among the grandchildren, the entire residuary estate was to go to Jonathan with a substitutionary gift of half to Judith and half to be divided among the other surviving grandchildren. The legacies to the other grandchildren and to the charities remained largely the same, except that those to David and Judith were reduced to £6,000 and £4,000 respectively. The other significant changes were the deletion of any legacy to Mr Franks and, in place of the legacy of £20,000 to Mrs Sinclair, a bequest of jewellery and trinkets. Clause 7 of the will stated that Mrs Franks had not provided for Mr Franks or, beyond the legacy of jewellery and trinkets, for Mrs Sinclair because of her lifetime provision to them. The executors were named as Jonathan and David.[25]The second will prepared by Mr Winston was made on 21 May 1992 (the 1992 will). It is largely the same as the will dated 5 February 1992, except for the removal of two small legacies, one being a legacy of £1,000 to Mrs Franks’ sister Miriam, and the substitutionary gift of residue going entirely to Mrs Sinclair.[26]It again seems clear, and I find, that these wills continued to reflect Mrs Franks’ close relationship with Jonathan and her longstanding determination to provide little or nothing for Mr Franks.[27]In late 1992 and early 1993, Mr Franks took steps to close the five building society accounts in his name and to transfer the funds to his own account. He did so without the passbooks and without consultation with Mrs Franks. Whether or not she was entitled to be consulted, she was annoyed that Mr Franks had taken these steps, as she would see it, behind her back.[28]There is no evidence of any further significant event until the disputed will was made in May 1994. The evidence of Mr Franks as to the events leading up to 26 May 1994, which is strongly disputed by the defendants, is as follows. At some time in mid-May, Mrs Franks rang him at work and asked him to come and see her about making a will. About a week later he went to see her, during the working day. He stayed with her for about 30 to 40 minutes. She gave him a copy of the 1992 will on which he wrote her instructions. The principal change was that the residuary estate should be left to Mr Franks and Mrs Sinclair in equal shares, in place of Jonathan, who should receive a legacy of £2,000. There were other changes to the legacies. Judith was to receive nothing, because, as Mrs Franks believed, she had been lent £30,000 which she refused to repay. The legacy to David was reduced to £2,000 and a legacy of £2,000 was included for Mrs Franks’ sister Miriam. Jonathan and David were to remain as executors.[29]Mr Franks did not question or discuss these changes with his mother. They were, he said, instructions given in her characteristically peremptory way and, at least in his dealings with her, one did not question her decisions. In particular he did not discuss her decision to replace Jonathan with Mrs Sinclair and himself as residuary beneficiaries. He suspected there must have some falling out with Jonathan but he did not ask her about it. By this time Mr Franks was not on speaking terms with Jonathan.[30]He returned to his office with his annotated copy of the 1992 will. His secretary prepared the new will, using both the format of the 1992 will with Mr Franks’ notes and one of Measure Franks & Co’s precedents. He did not give or send a copy of the draft will to Mrs Franks or discuss it further with her until 26 May 1994.[31]As to the execution of the will on 26 May 1994, evidence was given not only by Mr Franks but also by the two attesting witnesses, Stephen Chadwick and Shirley Yates. Mr Chadwick is a solicitor, admitted in 1979. In May 1994 he was a partner in Measures Franks & Co with Mr Franks and, perhaps, one other. He had been a partner for about 12 years. He is now, with Mr Franks, a partner in the firm with which it merged. He was a distant relation of Mrs Franks and had been to a number of family events, including Judith’s wedding and a party for David. Mrs Franks had been at his wedding. Although related and professionally close, he and Mr Franks do not meet socially except at family events. He gained some experience of wills and probate at an early stage, but his main area of practice is personal injuries litigation. I found him to be a truthful and reliable witness. He has been careful to keep to a minimum his discussions with Mr Franks as regards this dispute.[32]Mrs Yates was in May 1994 Mr Chadwick’s secretary at Measures Franks & Co, where she worked from 1993 to 2000. I am satisfied that she did her best to assist the court in her recollection of events over 12 years ago, which were of no particular concern to her at the time. Her recollection has changed as regards one matter, to which I shall refer, but in the main I am able to regard her evidence as reliable.[33]Both Mr Chadwick and Mrs Yates were assisted in their recollections by statutory declarations made by them in January 1996 in circumstances to which I shall refer.[34]Mr Franks asked Mr Chadwick to witness Mrs Franks’ will. Requests to witness wills were not unusual for him and he said that he would bring Mrs Yates, who had witnessed wills in the past at his request. It was agreed that they would go to Mrs Franks’ house on 26 May 1994.[35]On 26 May 1994 Mr Franks and Mr Chadwick drove separately to Mrs Franks’ house, with Mrs Yates travelling with Mr Chadwick. Mr Franks arrived a few minutes before the others and let them into the house.[36]Mr Chadwick was struck that Mrs Franks appeared to live entirely in the hall and a large sitting room on the ground floor. Mrs Franks seemed pleased to see him and there was some conversation about the family. He remembers thinking that she was alert and clearly knew who he was.[37]Mr Franks said to Mrs Franks that he had made the changes she had requested to her will and that Mr Chadwick and Mrs Yates were there to witness the new will. Mr Franks then read out the will. Although Mr Chadwick did not have a copy to check it against, I am satisfied that Mr Franks read the will in its entirety. Mr Chadwick states that Mr Franks read it very slowly in a clear and audible voice, and comments that he remembers this very clearly “because, at the time, I thought it was a bit over-the-top and unnecessary”. As Mr Franks read it out, Mr Chadwick noticed, out of curiosity, that the residuary estate was left equally to Mr Franks and Mrs Sinclair.[38]Mr Franks, Mr Chadwick and Mrs Yates all recall that during the reading of the will, Mrs Franks made a few comments, prompted by particular parts of it. Mr Franks and Mrs Yates remember that she asked for confirmation that Jonathan and David were the executors. All three remember that she wanted confirmation that Judith was not included in the will and made disparaging comments about her failure to repay the alleged loans. I find that these comments, but none others of any significance, were made by Mrs Franks. In particular no-one recalls her commenting on the disposition of the residuary estate or making any comment on clause 8 of the will which deals with residue. I find that no comments were made about it.[39]Mr Franks recalls that, after reading the will, he handed both the new will and his annotated copy of the 1992 will to Mrs Franks and that she scanned rather than read the will. This is not recalled by Mr Chadwick or Mrs Yates, but it is of little significance as on any basis she did no more than scan the will.[40]When Mr Franks had finished reading the will, he asked Mrs Franks whether she was happy to sign it and she confirmed that she was. She signed it and her signature was witnessed by Mr Chadwick and Mrs Yates. Mr Chadwick saw the front page of the will and saw that the figures accorded with what Mr Franks had read out.[41]Mr Franks and Mr Chadwick recall that Mr Franks then produced an enduring power of attorney, which appointed Mr Franks as the attorney. Mr Franks says that he read out, as required, the whole of the first page which contained the notes, although this was not recalled by Mr Chadwick or Mrs Yates. Mr Franks states that he read out page 2, being the operative part, and then gave it to Mrs Franks to read. Mr Chadwick’s evidence is that Mr Franks explained what the enduring power of attorney was and that it would be registered (changed in examination-in-chief from “and that it was intended to take effect”) at a later date if she did not have sufficient capacity to make decisions for herself. The notes are lengthy and, if Mr Franks had read them out, Mr Chadwick would, I think, have remembered. I find that Mr Franks gave some explanation as indicated by Mr Chadwick’s evidence but did not read out the notes in full. Mr Franks asked Mrs Franks whether she wanted to sign it and Mrs Franks said yes. She signed it and Mr Chadwick witnessed her signature. In her witness statement, Mrs Yates was clear that she could remember nothing about an enduring power of attorney and she could only assume that it was signed while she was out of the room. In her oral evidence she said that she had remembered, when reading her statement again a couple of months before the trial, that she had stayed in the room while the enduring power of attorney was signed. While I accept that she believes this to be the case, I do not feel able to place any weight on this evidence.[42]Mr Franks and the two witnesses were with Mrs Franks for about 40 minutes. Mr Chadwick and Mrs Yates left first and Mr Franks stayed on for about another 20 minutes. Mr Franks returned to his office with the executed will and enduring power of attorney and arranged for them to be securely filed in accordance with the firm’s usual procedure. He did not provide a copy of either document to Mrs Franks nor did she ask for one. Nor did he provide any copy to any other person, or inform anyone of the will’s existence. He could not recall whether he left his annotated copy of the 1992 will with her or took it back to the office. I consider it very much more likely that he took it back to the office, and I so find. His evidence is that if he did take it back to the office, he would have filed it on his own personal file where he kept a variety of personal documents. His habit was to weed out and destroy documents in this file after about two years unless he decided that they should be kept. He has not found it on his file and he assumes that, if he brought it back to the office, he would have discarded it about two years later. I find that he did put it on his personal file and that he did destroy it about two years later.[43]In August and September 1994 Mr Franks asked Mrs Franks for help with the payment of some tax liabilities, and she made two payments totalling £24,750 to him. The circumstances of these payments and later conversations between them are of some significance, and I will deal with them later in this judgment.[44]On 4 October 1994, Mrs Franks executed an enduring power of attorney in favour of Jonathan. It was prepared by Mr Winston whose evidence is that:
“Mrs Franks asked me to prepare an EPA appointing her grandson, Jonathan, to be her attorney. I recall that I had several long conversations with Mrs Franks regarding this and in particular regarding the reasons why she did not want to appoint her son, essentially because she did not believe he had her best interests at heart and so did not trust him.”
[45]Mrs Franks came to the Winstons’ house to sign the power of attorney in the evening of 4 October. Although Jonathan was also in the house, he was not present while Mr Winston went through the power of attorney and explained it to Mrs Franks. She confirmed that she wanted Jonathan to be her attorney. After she had signed it, Jonathan was called into the room and he signed it. Mr Winston retained the signed power of attorney. Mrs Franks did not mention to Mr Winston, or anyone else, either the will or the enduring power of attorney signed by her on 26 May 1994.[46]Mrs Franks’ deteriorating physical condition and her short-term memory loss, which all witnesses were agreed was clearly noticeable by the time of her 90th birthday in October 1994, led to her move to residential care in the summer of 1995. She did not live again at 140 Hendon Lane, which has since remained empty.[47]In August 1995 Mr Franks wrote to Jonathan saying that he understood from Mrs Sinclair that Jonathan was acting for Mrs Franks under a power of attorney and requesting a copy. He and Jonathan had not been on speaking terms for some time. Jonathan’s parents told him that he was not obliged to disclose it to Mr Franks and, through solicitors, he declined to do so.[48]Prompted by his discovery of Jonathan’s power of attorney, Mr Franks lodged an application dated 11 September 1995 with the Land Registry to register a caution against dealings with Mrs Franks’ house. In the statutory declaration in support of the application, Mr Franks stated:
“I am interested in the land referred to in the foregoing caution as a beneficiary pursuant to a Will of the registered proprietor JENNIE FRANKS The registered proprietor is still alive but has granted a Power of Attorney under Section 10 Powers of Attorney Act 1971 to a third party and I am fearful that that third party will sell the property pursuant to the Power of Attorney notwithstanding that the Power of Attorney is now at an end as the registered proprietor is medically incapable of making her own decisions and therefore the Power has lapsed”
I shall return to the terms of this declaration. Mr Franks confirmed in evidence that the reference to “a third party” was a reference to Jonathan.[49]Notice of a caution is given by the Land Registry to the registered proprietor at her registered address, not (if different) at the address of the property in question. The registered address for Mrs Franks was the house from which she had moved in 1947 and which no longer existed. The Land Registry has confirmed that notice was sent to that address. Notice of the caution, with Mr Franks’ reference to his interest as a beneficiary under a will, was not therefore received by Mrs Franks or anyone else. Mr Franks did not himself notify any member of the family of the caution. Mr Franks’ evidence was that he understood that notice of the caution would be served on the property at 140 Hendon Lane and that therefore Mrs Franks or Jonathan would receive notice of it.[50]There was some confusion in Mr Franks’ evidence as to whether he appreciated in 1995 that Jonathan held an enduring power of attorney. I am satisfied that the correct position, as he originally stated it in his second witness statement, is that in 1995 he did not understand it to be an enduring power of attorney. The terms of his statutory declaration in support of the caution are explicable only on that basis and his correspondence in August 1995 with Jonathan and Jonathan’s solicitors refers only to a power of attorney.[51]In late 1995 Mr Franks attended a training course on wills for elderly clients, as part of his continuing professional development requirements. The course evidently included practical guidance on the subject and Mr Franks learned that it was good practice to prepare statutory declarations for attesting witnesses to the wills of elderly people. In his oral evidence, he explained that the reason was to reduce the scope for future arguments as regards the will.[52]He mentioned this advice to Mr Chadwick and said that he would prepare declarations for Mr Chadwick and Mrs Yates dealing with the execution of the 1994 will. Mr Chadwick made some amendments to the draft prepared for him by Mr Franks and he helped Mr Franks to draft the declaration for Mrs Yates. Mr Chadwick and Mrs Yates swore their declarations on 18 January 1996. Mr Franks filed them with the 1994 will and the enduring power of attorney.[53]Mrs Franks’ physical and mental health deteriorated in the years following her move into residential care and at a meeting in October 2002 following her annual health review, it was suggested that she had lost her mental capabilities. Although she still had some lucid moments, Jonathan took legal advice as regards his enduring power of attorney and an application was made to register it.[54]Notice of the application was, as required, given to Mr Franks. He lodged objections to registration of the enduring power of attorney by letter dated 17 January 2003 to the Public Guardianship Office. His objections were made on a number of grounds, principal among which were that Jonathan was unsuitable to be Mrs Franks’ attorney and that Jonathan should have registered the power of attorney earlier. Mr Franks stated that Mrs Franks’ mental incapacity was not new, but had existed for at least three years. Evidence, including a number of testimonials as to Jonathan’s character, was submitted on behalf of Jonathan to the Public Guardianship Office. By letter dated 20 March 2003 Mr Franks withdrew his objection, on the express basis that he did not wish to run the risk of an order for costs but maintaining his view that Jonathan was unsuitable to act as attorney. The enduring power of attorney was duly registered.[55]Mrs Franks died on 23 September 2004 and was buried the following day. A week or so later, Mr Franks telephoned Mrs Sinclair and asked her the whereabouts of “mother’s Will.” Mrs Sinclair told him of a conversation which her husband had with Mr Winston some years earlier in which Mr Winston said that Mrs Franks had made a will prepared by him.[56]Mrs Sinclair also gave evidence of a further call from Mr Franks about three weeks later in which he told her that he had made a will for their mother, under which they were the equal beneficiaries. Mrs Franks had more than once told Mrs Sinclair that she was not going to leave her much in her will and that Jonathan would receive 140 Hendon Lane. She therefore told Mr Franks that it was not what their mother would have wanted, to which he replied simply that it was the “fair thing to do.”[57]Mr Franks called David on 4 November 2004 and informed him of the 1994 will and its main provisions. He called again a few days later and during the conversation David asked him who had prepared the will. Mr Franks told him that Mr Chadwick had prepared it. David remarked that this surprised him because he understood Mr Chadwick to be a litigation lawyer, to which Mr Franks replied that he was a litigation and wills specialist. David informed the solicitors acting for Jonathan and himself of this conversation, and they wrote to Mr Chadwick. In his reply, Mr Chadwick explained that he had not prepared the will, but only witnessed its execution.[58]There is no dispute about the legal principles applicable to the facts of this case. If a will is duly executed and the testator has testamentary capacity, both of which are accepted in relation to the 1994 will, the court will presume in the absence of other evidence that the testator knew and approved the contents of the will, unless the circumstances are such as to excite the suspicion of the court. If such circumstances exist, the burden lies on those seeking to prove the will to establish affirmatively, on the balance of probabilities, that the testator knew and approved the contents of the will: Fuller v Strum [2002] 1 WLR 1097 at paras 32-34 (Peter Gibson LJ), 64-72 (Chadwick LJ), 77-78 (Longmore LJ). In these circumstances, the task of the court is to assess the evidence and reach its conclusion, on the balance of probabilities.[59]It is accepted for Mr Franks that because he was instrumental in taking the instructions for and preparing the 1994 will under which he is a substantial beneficiary and because Mrs Franks did not receive any independent advice, the circumstances are such as to put on him a burden to establish affirmatively that Mrs Franks knew and approved the contents of the will. It is fairly pointed out on his behalf that, although he is a solicitor, the facts that he was Mrs Franks’ son and that the 1994 will provides for an equal division of the residuary estate between his sister and himself mean that the circumstances of the case are not comparable to those in Wintle v Nye [1959] 1 WLR 284.[60]Nonetheless, the particular circumstances of this case are not the same as the run of the mill case where a testatrix wishes to leave the bulk of her estate equally among her children and does not give serious consideration to alternative provisions. The main change to the will favoured Mr Franks, who had been excluded from the 1992 will, to the detriment of Jonathan with whom he was not on speaking terms. Mr Franks failed to take elementary precautions, such as keeping a note of his mother’s instructions, leaving her with a copy of the draft or the executed will to consider at her leisure, taking her through the will and explaining its provisions in everyday language and ensuring that she received independent and impartial advice. The particular circumstances of this case raise a significant degree of suspicion and the court must carefully scrutinise the evidence.[61]A point arose on the statements of case on which Mr Francis asked me to rule. Although the burden lies on Mr Franks to establish Mrs Franks’ knowledge and approval of the contents of the will, the defendants pleaded a positive case that she did not know or approve them. They pleaded a substantial number of facts and matters as giving rise to unanswered suspicion. CPR 57.7 (3) requires a party who contends that the testator did not know or approve of a will’s contents to give particulars of the facts and matters relied on. At trial it was clear that the principal issue was whether Mrs Franks gave Mr Franks instructions that the residuary estate should go to him and Mrs Sinclair in place of Jonathan. Mr Francis submitted that the defendant should have pleaded as part of their case that she did not give the instructions. He accepted that the point was technical, in the sense that his side had been under no misapprehension as to the case they were meeting and there would be no reason not to allow an amendment even at this stage. No amendment is in my view required, for two reasons, First, it appears to me sufficiently pleaded in the defence and counterclaim that Mr Franks did not receive the instructions alleged by him: see paragraphs 5.4, 5.5, 5.7, 5.9 and 5.10. Secondly, these alleged instructions were an essential part of Mr Franks’ own case to establish, as he had to, the knowledge and approval of his mother. The defendants were therefore in any event entitled to challenge his case and “to subject him to the severest cross-examination, and at every point to challenge his veracity”: see Wintle v Nye at p 294 per Viscount Simonds.[62]The only occasions on which there is any evidence that Mrs Franks ever considered the 1994 will are Mr Franks’ visit to her in mid-May 1994 when he alone took instructions from her and the execution of the will on 26 May 1994.[63]Mr Franks placed reliance on his reading out of the will, word for word, on 26 May 1994 as giving his mother the opportunity to hear the terms of the will and raise objections or give her assent to it. In his witness statement he explained his reasons for reading it out: first, he wanted her to hear every word and, secondly, he wanted both witnesses to hear it. In my judgment, this reading over of the will was something of a performance, designed to establish the validity of the will in a formal sense, rather than to make sure that Mrs Franks clearly understood what she was signing. If that had been Mr Franks’ intention, it would have more easily and more obviously accomplished by an explanation of the provisions in terms which Mrs Franks could clearly understand.[64]In considering the effect of reading out the will, the terms in which it is drafted are of central importance. The provisions of a will may be very straightforward, such that an elderly lay client will have no difficulty in understanding them. This was the case in Fuller v Strum (paras 41 and 62) and in Hart v Dobbs [2001] WTLR 527 to which Peter Gibson LJ refers at para 34. It was true of some of the provisions of the 1994 will, such as the specific legacies, the exclusion of Judith and the appointment of Jonathan and David as executors.[65]In my judgment, it is not however true of clause 8 which deals with the residuary estate. Clause 8 is in the following terms:
“I give devise and bequeath all the remainder of my property whatsoever and wheresoever both real and personal not hereby or otherwise disposed of by me unto my Trustees upon trust to sell call in and convert into money all such parts of the same as shall not consist of money but so that my Trustees shall have full power to postpone such sale calling in and conversion for so long as they shall in their absolute discretion think fit without being liable for loss and after payment thereout of my debts funeral and testamentary expenses to stand possessed of the same (hereinafter called “my residuary estate”) UPON TRUST for such of them my child or children as shall be living at my death and if more than one in equal shares absolutely PROVIDED THAT if any such child or children of mine shall predecease me leaving issue living at my death and who attain the age of eighteen years such issue shall take and if more than one equally the share of my residuary estate which such child or children of mine would have taken had he she or they survived me ”
I think it very unlikely that Mrs Franks understood the effect of clause 8 just as a result of it being read out loud to her. It is expressed in the customary technical language of wills, which most lay people will find impenetrable and many may consider to be gobbledegook. There is the long preamble of the administration trusts before one reaches the principal gift, which itself refers only to “children” without any names, and is then followed by the dense language of the per stirpes substitution gift. It requires explanation. In my judgment, the reading of the will cannot be relied on as establishing Mrs Franks’ knowledge and approval of its terms.[66]There is no evidence that Mrs Franks in fact understood the effect of clause 8 when it was read out to her. She made no comment on it or referred at all to the disposal of her residuary estate. It is surprising, if she understood it, that she made no comment on it, in view of the very significant change from the 1992 will and the fact that she did comment on Jonathan’s position as executor. Mr Chadwick was satisfied that she was content with the will and I have no doubt that he would have intervened if he had suspected otherwise. But he would naturally and reasonably assume that clause 8 gave effect to her instructions.[67]Mr Francis on behalf of Mr Franks accepted that he could not rely alone on the reading out of the will and that he needed to establish that at the earlier meeting Mrs Franks had given instructions in terms reflected in the will.[68]The key issue is therefore whether Mrs Franks gave those instructions to Mr Franks. Apart from his preparation of the 1994 will and its execution by Mrs Franks on 26 May 1994, the only evidence is Mr Franks’ oral evidence. His evidence has been strongly challenged by the defendants and they submit that his evidence is untrue.[69]Mr Francis fairly submitted that in approaching this issue I should keep in mind that Mr Franks is a practising solicitor of long standing. Not only will the court be predisposed to accept the integrity of a solicitor, but the question must be asked whether it is likely that he would have run the risk to his practice and standing involved in preparing a will which was not based on Mrs Franks’ instructions and wishes. I have kept these considerations very much in mind.[70]In cross-examination, Mr Franks firmly maintained his evidence as to his mother’s instructions. Differences between details included in different parts of his written and oral evidence were explored, but in the main I do not regard these as significant in determining the central issue of fact.[71]There are, in my view, two key considerations in assessing Mr Franks’ evidence as to his mother’s instructions: probability and credibility. Probability means here the likelihood, assessed against the background facts, that Mrs Franks would have given the contested instructions. Mr Franks’ credibility as a witness is to be assessed by reference to the totality of his evidence. The importance of his credibility increases to the extent that the contested instructions are found to be unlikely.[72]Divorced from all background circumstances, an elderly parent’s wish to leave the bulk of her estate equally between her children would seem natural and would raise no suspicion at all.[73]In this case, however, the background circumstances need careful consideration. First, in none of the earlier wills going back to 1977 had Mrs Franks left the bulk of her estate between Mr Franks and Mrs Sinclair equally. Although they were equal residuary beneficiaries in the wills dated 4 July 1977 (the 1997 will) and 28 August 1980, Mrs Franks made substantial bequests to Mrs Sinclair which represented a very significant part of her estate.[74]Secondly, in each will starting with the 1977 will, Mrs Franks recorded that she was not making greater provision (or, in later wills, any provision) for Mr Franks because of the provision made for him during her lifetime. This refers, at least principally, to the investment properties given to Mr Franks. When, in later wills, she referred also to provision made in her lifetime for Mrs Sinclair, that too referred to the investment properties.[75]Thirdly, Mr Franks’ sale of Crooked Usage was a major source of grievance for Mrs Franks, not only when it occurred but for many years afterwards. It is clear that she mistrusted Mr Franks (whether fairly or not is irrelevant) and a key element in her mistrust was the sale of Crooked Usage. She was still talking about it after Mr and Mrs Winston became neighbours and friends. Her immediate reaction to the sale was to give her solicitors instructions for a new will which she executed on 8 March 1982. In that will, Mr Franks’ interest was reduced to a legacy of £20,000.[76]Fourthly, Mrs Franks’ intentions as regards Mr Franks as expressed in later wills, made in 1991 and 1992, did not become more generous. The legacy of £20,000 remained in the will executed on 16 September 1991 (the 1991 will) but even that was excluded in the two wills made in 1992. Mr Winston’s evidence covered the 1992 wills and I accept that he discussed with Mrs Franks her decision to exclude Mr Franks and, apart from a bequest of jewellery, Mrs Sinclair from her will.[77]Fifthly, Mr Franks’ action in closing the building society accounts in late 1992 and early 1993 angered Mrs Franks and is likely to have reinforced her attitude towards him (whether fairly or unfairly is again irrelevant).[78]Sixthly, and crucially, there can be no doubt that a very close bond had developed by 1991 between Mrs Franks and Jonathan. It was on account of this relationship that Mrs Franks provided a very substantial legacy for Jonathan in the 1991 will and left her residuary estate to him alone in both the 1992 wills. There is no evidence of any subsequent deterioration in the relationship. All the evidence is very much to the effect that the bond remained as strong for the rest of Mrs Franks’ life. This is attested to by Mrs Sinclair, Mr and Mrs Winston and Josephine Mindel-Woolf who was employed by the organisation which ran the residential care home to which Mrs Franks moved in 1995. Mr Franks’ evidence is that when his mother told him that she wanted Mrs Sinclair and him to replace Jonathan in the will, he suspected that there must have been some falling out between them. He accepted that he knew of no falling out and he had no knowledge or other reason to believe that relations had cooled between them. I am satisfied that there was no deterioration, temporary or permanent, in the relationship between Mrs Franks and Jonathan, whether in May 1994 or at any other time.[79]Mr Franks said in evidence that Mrs Franks had a capricious nature. Asked by me whether he was surprised when she gave him the 1992 will that only one grandchild, Jonathan, was entitled to the residue, he answered that he was not surprised because she was a capricious person who could have decided on anyone at any time. I do not accept that she was capricious. The changes made in her successive wills show no signs of being capricious, but result only from significant changes in her relationships with or attitudes to members of the family. She did not chop and change, but would alter her will only for reasons which to her seemed well-founded. In each case until the change to residue in the 1994 will, the reasons are known. There is, as Mr Francis accepted, no evidence of any event or change in relationships which would explain the new provision in 1994.[80]Against all these background facts, and leaving aside Mr Franks’ evidence of his mother’s instructions, the probability that Mrs Franks would have changed her mind in May 1994 and replaced Jonathan with Mr Franks and Mrs Sinclair as the residuary beneficiaries is, in my view, very low.[81]This makes all the more important the issue of the credibility of Mr Franks’ evidence. If I concluded from his evidence and conduct that he was a witness on whom the court could rely to tell the truth as he recalled it, his evidence would overcome the improbability that Mrs Franks gave the contested instructions. Mr Franks rejected the suggestion that in fact Mrs Franks was seeking to confirm Jonathan not only as an executor but also as the residuary beneficiary, and the issue is not one which leaves room for an honest mistake or faulty recollection.[82]Mr Sartin, on behalf of Jonathan and David, put forward a number of matters in support of his submission that Mr Franks cannot be regarded as a credible witness. I will deal with those matters which I consider to be significant in chronological order.[83]There are, first, the circumstances in which Mr Franks took his mother’s instructions for a new will in May 1994. It is of course entirely natural for the parent of a solicitor to ask him or her to prepare a will, although it may be noted that Mrs Franks had not previously asked Mr Franks. It may, however, raise problems if the solicitor is to be a substantial beneficiary, particularly if, as in this case, it involves a substantial change from the previous will and the effective substitution of the solicitor for another beneficiary.[84]The relevant principle, as stated in para 15.08 of the Guide to the Professional Conduct of Solicitors (1993), in force in May 1994, was:
“Where a client intends to make a gift inter vivos or by will to his or her solicitor, or to the solicitor's partner, or a member of staff or to the families of any of them and the gift is of a significant amount, either in itself or having regard to the size of the client's estate and the reasonable expectations of prospective beneficiaries, the solicitor must advise the client to be independently advised as to that gift and if the client declines, must refuse to act.”
The application of this general principle was subject to a number of qualifications in the commentary, paragraph 5 of which provided:
“Where the donor or testator is a relative of the solicitor and wishes to make a gift or leave a legacy to the solicitor, the solicitor must consider whether in these circumstances independent advice is essential. The same principle will apply if the intended recipient is a partner of the solicitor, or a member of staff and the donor or testator is a relative of the intended recipient.”
[85]While Mrs Franks’ instructions, according to Mr Franks’ evidence, accorded an equal share in the residue to Mrs Sinclair and himself as Mrs Franks’ only surviving children, the particular circumstances clearly, in my view, called for Mr Franks to consider whether Mrs Franks should receive independent advice. A proper consideration of that question should, in my judgment, have led Mr Franks to conclude that independent advice was needed. One of the duties of a solicitor in these circumstances, even if he is the son of the testator, is to discuss and, if appropriate, question the proposed terms of the will, in order that the testator reaches a fully informed decision. Mr Franks was incapable of impartial discussion of his mother’s instructions. Not only was the proposal, he says, that he and Mrs Sinclair should replace Jonathan as the principal beneficiary, but he was not on speaking terms with Jonathan.[86]It was submitted that if Mrs Franks had given the contested instructions, Mr Franks would have ensured that she received independent advice and, therefore, the fact that he did not do so shows that Mrs Franks did not give those instructions. I am not persuaded that Mr Franks is impaled on this variation of Morton’s fork. If Mrs Franks gave the contested instructions, I think it likely that Mr Franks would be so pleased that he would not do anything which might change them. I do not therefore consider that failure by Mr Franks to secure independent advice for Mrs Franks shows that she did not give the instructions.[87]There are other aspects of his evidence as to the giving of the instructions which concern me. First, his failure to keep any note of the instructions, other than the annotations to the copy of the 1992 will, would be readily understandable if he only made a note when he opened a file and if he only opened a file if he was going to charge a fee. However, his evidence was that when he prepared wills for other members of his family and for his parents-in-law, he made a note and he opened a file, although he was not charging. He gave no convincing explanation for adopting a unique course for his mother.[88]Secondly, he accepted that a reason for keeping a note and for ensuring independent advice is to avoid future disputes, but he claimed that it did not occur to him that the 1994 will could or would cause disputes. I find this evidence entirely unconvincing. Given the fact that he and Mrs Sinclair replaced Jonathan as principal beneficiaries in circumstances where, as he knew, Jonathan was on very close terms with Mrs Franks and he and Jonathan were not on speaking terms, he must have realised that this will would be very controversial.[89]Thirdly, Mr Franks was asked his reaction when his mother gave him a copy of the 1992 will and he saw that he was not a beneficiary. He was not, he said, shocked or surprised and was neutral on what his mother might provide in her will. He did not care one way or another whether he was a beneficiary. I simply do not believe this evidence. Not only would it be perfectly natural for him to wish to be a beneficiary, but his whole conduct in relation to the 1994 will both in 1994 and afterwards shows, in my view, that he cared very much that he should be a beneficiary.[90]Fourthly, questions arise out of Mr Franks’ preparation of the new will. He told his secretary to type the 1992 will with his handwritten amendments on to the firm’s system, incorporating the terms into “our firm’s standard precedent” (first witness statement). In an affidavit made on 3 March 2005, he stated:
“All I can add further is that, as regards the wording of Clause 8 of the new Will (dealing with the residuary estate), the wording I used followed my firm’s standard precedent (that I had used on hundreds of occasions). Our standard precedent in such circumstances always stated that everything was left to the children of the testator in equal shares with the usual per stirpes provision. The only time that I named children was when another child was being left out for some particular reason.”
[91]Very shortly before the start of the trial, the solicitors for Jonathan and David prepared a file of documents for use at the trial which included three wills prepared by Mr Franks, for his parents-in-law and his aunt. In each case the residue clause named the beneficiaries. At the start of his oral evidence, Mr Franks qualified his written evidence by deleting the last two sentences of the passage quoted above and by substituting “precedents” for “precedent” in the first sentence.[92]In the course of the trial, while he was under cross-examination, Mr Franks extracted twelve wills from his files and produced them. None of them names the residuary beneficiaries but in each case they are stated to be such of the testator’s children as reach the age of 18. There is no similar reference to the age of 18 in Mrs Franks’ will and he explained that he included such language only if the testator had children under the age of 18. In those circumstances, the testator may well have further children which would readily explain why no children are named.[93]The wills produced by Mr Franks do not establish the firm’s practice in the case of an elderly testator, who will not have further children. At the very least, Mr Franks’ confident assertion that the only time that he named children was when a child was being left out was shown to be incorrect and means that caution is required when considering his evidence.[94]The payments totalling £24,750 which I briefly mentioned earlier in this judgment need to be considered. In the summer of 1994 Mr Franks was facing some financial difficulty as a result of his firm’s tax liabilities which he was not in a position to pay. In August and September 1994 he approached his mother for assistance and on 18 August and 30 September 1994 she gave him cheques for £9,750 and £15,000 respectively. In his affidavit made on 3 March 2005 he said that he received a gift from his mother of £10,000 or £20,000 to pay tax, possibly in 1995. Subsequently, Jonathan and David listed as an asset of the estate a loan of £24,750 to Mr Franks. His solicitors responded by saying that the inclusion of this “asset” came as a complete shock to him and that, so far as he was aware, it did not exist.[95]Jonathan’s evidence is that at the end of September 1994 Mrs Franks’ bank manager called him with concerns about the two cheques. He spoke to Mrs Franks about the cheques and she told him that Mr Franks had asked to borrow money to pay tax. Jonathan says that he was concerned to protect Mrs Franks’ interests as regards these payments and to obtain Mr Franks’ acknowledgment that they were loans and a statement as to when they would be repaid. He suggested that Mrs Franks should ring Mr Franks and put these points to him and that the call should be recorded without Mr Franks’ knowledge. He bought a cassette recorder for use with the telephone and the call was made and recorded, inappropriately enough on her 90th birthday. Jonathan accepts that his conduct in secretly recording the call was disreputable.[96]The recording of the call survives and disclosure was given late in the proceedings. There is no question but that it is an authentic recording of the call. It emerges from the call that Mr Franks and his mother had discussed the payments earlier in the day and that Mrs Franks had said that he was not to worry about them. In the call Mrs Franks sought confirmation that they were loans, which Mr Franks provided several times, and he assured her that while he could not repay the loans immediately he would do so in a few months, although he could not say how he would repay them. After this conversation, there was no further communication about the payments with Mrs Franks or Jonathan as her attorney. No request for payment was made and payment was not volunteered.[97]This conversation is obviously inconsistent with the suggestion that the payments were gifts. When asked in cross-examination to explain why he had confirmed the payments as loans if in truth they were gifts, Mr Franks stated that he strongly suspected that Jonathan had put Mrs Franks up to making the call and also suspected that he was there with her as she made the call, prompting her as necessary. He told them what they wanted to hear, although it was untrue and the payments were in fact gifts. I find this evidence incredible. Whatever he might want to say to placate his elderly mother, the fact that (as he correctly believed) Jonathan was listening makes it extraordinary that he should agree that they were loans and discuss their repayment if they were in truth gifts. I am satisfied that Mr Franks was not telling the truth in this evidence.[98]In his statutory declaration dated 2 October 1995 in support of his application for the registration of a caution against 140 Hendon Lane, Mr Franks stated that he was fearful that a third party (Jonathan) would sell it under his power of attorney “notwithstanding that the Power of Attorney is now at an end as the registered proprietor is medically incapable of making her own decisions and therefore the Power has lapsed.” This statement inevitably prompted the question as to why Mr Franks had not taken steps in October 1995 to register the enduring power of attorney dated 26 May 1994 which he held.[99]His explanation in cross-examination was that when he stated that Mrs Franks was “medically incapable of making her own decisions”, he was not stating that she was mentally incapable of doing so but that her physical health made her medically incapable. There was, he said, a possibility that she would soon become mentally incapable. I found this explanation entirely unconvincing. Anyone, but in particular a solicitor like Mr Franks with experience in this area, would read his statutory declaration as referring to mental incapacity. Moreover, his explanation is opposed to that given by him in his affidavit dated 3 March 2005 in which at para 28 he stated as regards his statutory declaration:
“The person I was referring to was Jonathan who held a Section 10 Power of Attorney and not to my knowledge an Enduring Power of Attorney. Accordingly, the Section 10 Power would lapse if my mother was mentally incapable of making her own decisions and the view that I held at that time was that during the latter half of 1995 she became incapable.”
[100]I am in no doubt that in his statutory declaration Mr Franks was referring, and intending to refer, to Mrs Franks’ mental health and that his oral evidence was an untrue attempt to escape the logic of his own declaration.[101]There are a number of subsequent matters which cast substantial doubt on the reliance which should be placed on Mr Franks’ evidence. He accepted in evidence that the statutory declarations for Mr Chadwick and Mrs Yates were prepared, at least partly in consequence of his view of Jonathan’s conduct in relation to Jonathan’s power of attorney. He was therefore aware that there could be disputes and problems as regards the 1994 will. Yet he threw away the only record of Mrs Franks’ instructions, his annotated copy of the 1992 will. He must have realised that it could be significant evidence.[102]Mr Franks’ question to Mrs Sinclair, shortly after Mrs Franks’ death, as to whether she knew the whereabouts of their mother’s will was an odd question to ask. He held the 1994 will under which they were the residuary beneficiaries and he knew of no later wills. He told me that he could not give an explanation as to why he asked the question rather than simply disclosing the 1994 will. The true explanation, I suspect, is that he wanted to find out whether there was a later will before revealing the 1994 will. Whatever the reason, it was not a straightforward way of dealing with matters. On 25 October 2004, Mr Franks wrote to the solicitors instructed by Jonathan and David as executors and requested a copy of the will, without mentioning the existence of the 1994 will. This too was odd, particularly as Jonathan and David were the executors named in the 1994 will. In evidence, Mr Franks said that it did not occur to him to mention it or send a copy. I do not believe that evidence. I am sure that he thought about it and decided not to do so.[103]In a conversation with David in November 2004, Mr Franks said that the 1994 will had been prepared by Mr Chadwick. Mr Franks must have known this was untrue. As his evidence in this case shows, he has a clear recollection of the events which he says led to the execution of the 1994 will. At no time can he have thought that Mr Chadwick had prepared the will. It was, I believe, an attempt to strengthen the claim to the will’s validity and to deflect any challenge.[104]In January 2005 Mr Franks called and wrote to Mrs Yates, who had left his firm’s employment some years earlier, and who had received calls from the executors’ solicitors. In his call and in his letter Mr Franks stated that “my nephew prepared a will” under which his nephew would receive a majority of the estate, contrasting it with the 1994 will. Mr Franks knew that Mr Winston, not Jonathan, had prepared the 1992 will. Mr Franks said in evidence that this was a mistake but I do not accept his evidence. There was no reason for him to make this mistake, in both the call and the letter. It was, I consider, an attempt to paint Jonathan in a bad light.[105]These matters going to Mr Franks’ credibility vary in their weight and significance, but overall they have brought me to the reluctant conclusion that he is not a witness on whose evidence I can rely.[106]Before reaching a final conclusion on whether Mrs Franks gave the contested instructions, there are a number of matters to consider. First, it is apparent that Mrs Franks knew on 26 May 1994 that she was signing a will, and that she must have asked Mr Franks to prepare it. Why did she do that and what was she intending to change? There can be no certain answer to this, but in my view it is likely that her main concern was to exclude Judith. Whether fairly or unfairly, she had turned against Judith and it was characteristic of her to exclude her from her will. Secondly, the will was read over in the presence of witnesses. There was a possibility that Mrs Franks would understand the effect of clause 8 as to residue and protest that it was wrong. I have already expressed my views on the intelligibility of clause 8 to someone in Mrs Franks’ position. If she did not expect a change in the provision as to residue, the chance that she would pick up the meaning of clause 8 for herself was, in my view, very small. Thirdly, by registering the caution with its reference to a will under which Mr Franks was a beneficiary, there was a chance that Jonathan would be alerted to it and raise it with Mrs Franks. However, Mr Franks is a conveyancer and I find it likely that he knew that notice would be sent to Mrs Franks at her registered address.[107]This is a case in which serious suspicion is aroused as to whether Mrs Franks knew and approved the contents of the 1994 will. In my judgment, Mr Franks has failed to dispel the suspicion. Having regard in particular to the improbability of instructions in 1994 that the residue should be divided between Mr Franks and Mrs Sinclair, and to Mr Franks’ lack of credibility as a witness, I am satisfied that Mrs Franks did not give those instructions to Mr Franks. I conclude that she did not know or approve of the contents of the 1994 will.[108]Accordingly, I refuse the relief sought by Mr Franks and shall pronounce for the force and validity of the 1992 will.