Blackman & Ors. v Man [2007] EWHC 3162 (Ch)

[2007] EWHC 3162 (Ch)Case No.HC05C01190
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Friday, 7th December 2007
Before
SIR DONALD RATTEE
B E T W E E N:
Between
SANDRA BLACKMAN & Ors.ClaimantsKIM SING MAN & Ors.Defendants
(Transcript of the Handed Down JudgmentTranscribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737
MR. S. LLOYD (instructed by Cooper Whiteman) appeared for Claimants.MISS P. REED (instructed by Harcus Sinclair) appeared for First and Second Defendants.MR. R. WILSON (of Counsel) appeared for Third Defendant.MR. W. HENDERSON (instructed by the Attorney General) appeared for Fourth Defendant.
J U D G M E N TSIR DONALD RATTEE:
[1]This case concerns the validity of two wills made by Golda Bechal (“Mrs. Bechal”), who was born on 1st February 1915 and died, at the age of 88 years, on 5th January 2004. She had one child only, a son, Peter, who died in 1974. She was a widow at her death.[2]The claimants, who are challenging the validity of two wills she made in 1994, are nephews and nieces of Mrs. Bechal. Together with one other nephew, who lives abroad, and has been notified of, but has taken no part in, these proceedings, the claimants are the next of kin of Mrs. Bechal, who would be entitled to her estate on intestacy.[3]The first two defendants, Mr. and Mrs. Man, are the residuary legatees under the wills in question. They are not members of Mrs. Bechal’s family, but are a Chinese couple, a husband and wife, with whom Mrs. Bechal became very friendly in the latter years of her life.[4]The third defendant is the executor appointed by the wills.[5]The fourth defendant, Her Majesty’s Attorney General, has taken no part in the proceedings before me, but I understand may be interested on behalf of charity if the two wills under challenge are found to be invalid.[6]I have no evidence of the value of Mrs. Bechal’s estate, but am told by agreement that it is believed to be worth in excess of £10 million. Its value was of the order of £8 million in 1994, when the two wills in question were made.[7]Of the two wills in issue, the first in time was made on 19th May 1994. It purported to revoke a will made by Mrs. Bechal in 1988, of which no copy or written evidence survives, but which probably divided Mrs. Bechal’s estate between members of her family and Jewish charities, with the major part being given to the charities.[8]The second will was made on 5th August 1994. That will revoked the May will, but repeated its provisions with minor adjustments to the pecuniary legacies.[9]There is one other earlier will, to which I should refer. That was made by Mrs. Bechal in about 1980. Again, no copy or documentary evidence of it survives, but it appears from evidence given by its draftsman that it divided Mrs. Bechal’s estate between members of her family.[10]The claimants challenge the validity of both wills on the grounds of lack of testamentary capacity and want of knowledge and approval, with the result that the burden of proving validity falls on Mr. and Mrs. Man. This they have sought to discharge in this action.[11]The claimants make no allegation of undue influence against them.

THE FACTS

[12]As I have said, Mrs. Bechal was born on 1st February 1915. She had two sisters and a brother, all of whom predeceased her. Her brother, Philip, died without children in 1986. Her sister, Fay, the mother of the first and second claimants, died on 5th April 1999, and her sister, Maisie, the mother of the third, fourth and fifth claimants, died on 30th March 2003.[13]Mrs. Bechal had one child only, a son, Peter, who died at the age of only 28 on 1st December 1974. Mrs. Bechal married, and her husband built up a successful business of property dealing and investment, and built up a substantial portfolio of properties which was the source of Mrs. Bechal’s substantial estate. He died in 1971.[14]Mr. Man first met Mrs. Bechal and her husband in 1967, when Mr. Man was 13 years old and had recently come from Hong Kong to live in England. His father was a tenant of restaurant premises in Essex owned by one of the property companies run by Mr. Bechal.[15]A friendship grew up between Mr. Man senior and Mr. Bechal – partly because Mr. Bechal could speak Cantonese. Mr. and Mrs. Bechal would visit the restaurant in Essex three or four times a year. Mrs. Bechal continued her visits to the Man’s premises after her husband’s death in 1971 and after her son’s death in 1974.[16]Mr. Man’s evidence, which I accept, was that Mrs. Bechal, who lived in Grosvenor Square in London, asked him to call on her when he visited London to buy provisions for the restaurant. This he did on a regular basis, and used to do odd jobs around her flat for her on his visits. It is clear that Mrs. Bechal was very lonely after the death of her husband and son. Indeed, the evidence shows that she never really recovered emotionally from that double bereavement.[17]In 1977 Mr. Man introduced the second defendant -- whom he married some two years later, in 1979 – to Mrs. Bechal. There is no doubt that Mrs. Bechal and Mrs. Man became close friends, to the point where, eventually, Mrs. Bechal, as she told Mr. and Mrs. Man, regarded Mrs. Man as the daughter she had never had.[18]Mr. and Mrs. Man have three children, the first of whom was born in 1982. The Mans used to visit Mrs. Bechal as a family as their children grew up and, once they started going to a Chinese school, the visits used to take place regularly on a Sunday, and came to include family outings with Mrs. Bechal. The Mans visited Mrs. Bechal every Christmas Day. In addition to the weekly visits to Mrs. Bechal in London, Mrs. Man used to speak to her regularly on the telephone during the week.[19]The Mans from time to time took Mrs. Bechal out into the country on family outings with them. She went abroad on holiday with Mrs. Man in 1983 and on several occasions after that.[20]It is clear that Mr. and Mrs. Man, and Mrs. Man in particular, came to do a great deal to help Mrs. Bechal in her loneliness after she lost her own husband and son; and that Mrs. Bechal did regard them as part of her family.[21]It is also clear that, until the last years of her life, Mrs. Bechal was on good terms with her sisters, brothers in law, nephews and nieces, and used to take part in family occasions and Jewish celebrations with them. She regularly went on holiday with her sister, Maisie, and her (Maisie’s) husband, Gerald Lebor, for many years until 1991 when, for some reason, her relationship with her brother in law, Mr. Gerald Lebor, seems to have cooled over a disagreement she had with him concerning the administration of her late brother, Philip’s, estate.[22]I find that, certainly by the time she made her will in May 1994, Mrs. Bechal’s relationship with the Man family had become closer than that with her own family. She saw far more of the Mans.[23]Unfortunately, in the last years of her life, by which I mean from 1996 onwards, Mrs. Bechal became very antagonistic to members of her family, but it seems clear that this was largely the result of her increasing dementia, about which I shall have to say more later in this judgment.[24]It is also clear that from the time of the death of her only child Mrs. Bechal was always a very lonely and sad person, who came to find solace in her developing relationship with Mr. and Mrs. Man and their children.[25]I must now say a little about the management of the property portfolio which had been built up by Mrs. Bechal’s husband. All these properties, of which there were about 30, except one, were held by companies, of which all the shares were apparently beneficially owned by Mrs. Bechal. One property was in her own name. All the properties were managed by agents. Mrs. Bechal became disillusioned about the agents who had been managing them, and in early 1993 the management of those properties was taken over by a new managing agent, Mr. Benjamin Tobin.[26]He gave evidence before me, and explained that, when he first took over such management, the properties concerned, apart from that held by Mrs. Bechal herself, were held by several companies, including in particular two called respectively “Judy Properties Limited” and “Spebek Properties Limited”, but that it was decided, for some reason and by some manner not entirely clear to me, to transfer all the properties, other than that held by Mrs. Bechal, into the one company, Judy Properties Limited.[27]Mr. Tobin, whose evidence I accept, said that from the time he took over the management, in about spring 1993, Mrs. Bechal had some difficulty fully comprehending lengthy written reports which he produced on the properties. So he adopted a practice of holding quarterly meetings with her and her accountant, at which he would go through the current position relating to each of the properties with Mrs. Bechal, and take instructions from her as necessary. Mr. Tobin described how, at these meetings, Mrs. Bechal would become confused at times, and he would have to repeat a point he was making to her on several occasions. However, she did ask him appropriate questions at these meetings, but seemed to rely very heavily on her accountant, Mr. Esterson’s, views in making any decision she was asked by Mr. Tobin to make.[28]Mr. Tobin was satisfied she was competent to give him instructions, though she was frequently emotional and crying on occasions. He said she seemed to feel alone and unable to get over the deaths of her husband and son.[29]Mr. Tobin said that such meetings took place on Quarter Days in 1993, but that he had no record of any regular meetings in 1994 or thereafter. His recollection was that he received a telephone call from Mr. Esterson, telling him that Mrs. Bechal was not well enough to continue the meetings.[30]However, although the regular meetings between Mrs. Bechal and Mr. Tobin concerning the property portfolio do not appear to have continued into 1994 because of Mrs. Bechal’s state of health, included in the documentary evidence before the court are letters written by Mrs. Bechal in 1994 and into the first half of 1995, in which Mrs. Bechal was clearly still taking an interest in the tenancies of her properties and what Mr. Tobin’s firm were charging for their management, and giving instructions relating to their management.[31]At the same time, it is clear that Mrs. Bechal’s state of health, and in particular, her mental state, was giving cause for concern by 1993. Her GP from January 1989 was Dr. Geoffrey Dymond. In July 1991 Mrs. Bechal consulted Dr. Dymond, complaining of dizziness and back pain. Dr. Dymond referred her to a consultant orthopaedic surgeon, Mr. Ransford. On 22nd August 1991, Mr. Ransford reported to Dr. Dymond that Mrs. Bechal’s symptoms had abated since Dr. Dymond had seen her, but also reported that Mrs. Bechal showed signs of high blood pressure, and that she was, “a bit forgetful”.[32]On 1st December 1992, Mrs. Bechal saw Dr. Dymond again, when she complained that (and I quote Dr. Dymond): “She did not know if she was going the right way or not, and she felt like a sleepyhead”.[33]At a further consultation on 9th December 1992, Mrs. Bechal said she still “felt dazed, depressed”. Dr. Dymond prescribed an antidepressant for her. At a consultation on 31st August 1993, Dr. Dymond recorded a comment that Mrs. Bechal “gets very confused and nervous”, and on 13th September 1993 he made an appointment for her to see Dr. Monica Greenwood, a consultant psychiatrist.[34]Mrs. Bechal failed to keep this and other appointments with Dr. Greenwood before eventually seeing her on 5th November 1993. Dr. Greenwood gave her various cognitive tests and reported to Dr. Dymond that:
“My impression of this lady is that she is very anxious, may possibly be depressed, but probably has a mild dementing illness”
. Dr. Greenwood also told Dr. Dymond that she had made an appointment to see Mrs. Bechal again.[35]On 18th November 1993 Dr. Dymond wrote to Dr. Greenwood a letter including the following: “To summarise, she [that is Mrs. Bechal] is a somewhat agitated depressive since the deaths, very close together, of her husband and her son about sixteen years ago from which her niece feels she has never properly recovered. Added to this is an increasing confusion over dates, times and tablets -- in fact anything which could be confused! She telephones me about three times a week about her various tablets, and telephoned me last night about 10 pm thinking that it was 10 am the following day; as you know we have made various appointments for her to attend you, most of which have been cancelled because she has either forgotten or lost the appointment card. She herself feels that she is somewhat depressed but not really confused for her age, but I feel that her confusion is much more than is suitable for her age and she cannot manage without help in the home and out of it”.[36]Mrs. Bechal attended the further appointment with Dr. Greenwood on 19th November, accompanied this time by her niece, the first claimant. By the time of this appointment Dr. Greenwood had received the results of an MRI scan which Mrs. Bechal had undergone. In her subsequent report to Dr. Dymond, on 24th November 1993, Dr. Greenwood said this: “The brain scan showed some minor ischaemic changes predominantly in the frontal region, but nil else of significance. Mrs. Bechal did not recognise me when I greeted her and did not recognise which room to go to for our interview. She was unaware of the date and said she was shaky because she had not slept. She repeatedly said how competent she was and how she manages her business with the help of her agent and accountant. She did however add that at times she feels muddled and tries to write everything down. She also admitted that she would like to have someone with her in the evening. She had put an advert in the paper for a carer, and was interviewing someone. Mrs. Blackman [that is the first claimant] told me that her aunt had been overwhelmed by the deaths of her son and husband some 16 years ago and had never managed to work through her grief. Nevertheless she had been functioning. She has a business manager who has been running her affairs for a long time and apparently also pays the bills and runs her own personal financial affairs. She appears to have very little social life but was always very secretive. The niece thought there had been no support at home other than that provided by au pairs in the past. She also reported that her aunt had been worried that she might be leaving the gas on. Mrs. Bechal was reported to have been the jolliest person in the family and that her more negative approach recently was not the way she used to be. On examination, Mrs. Bechal obviously had some nominal difficulty and was very repetitive”.[37]Dr. Greenwood prescribed an antidepressant drug for Mrs. Bechal, and advised that Mrs. Bechal should have a live-in carer.[38]Dr. Greenwood saw Mrs. Bechal again on 16th December 1993, when she was again accompanied by Mrs. Blackman, the first claimant. Dr. Greenwood in her further report to Dr. Dymond said that she was told that attempts to recruit a live-in carer had not yet been successful, but that an au pair would shortly be going to live in Mrs. Bechal’s flat.[39]Dr. Greenwood further records Mrs. Blackman as saying that her aunt seemed to have slowed up a great deal, and was increasingly repetitive, but that Mrs. Blackman thought she was less depressed. Dr. Greenwood went on to report that:
“On examination Mrs. Bechal seemed rather vague and disorientated. She has absolutely no insight into her difficulties”
. Dr. Greenwood advised that Mrs. Bechal should continue taking the antidepressant drug.[40]Dr. Dymond did not record any further significant change in Mrs. Bechal’s health during 1994 and 1995, but on 5th December 1994 his note commented that she was still very tired and depressed; and he said in his evidence that he recalled that throughout 1995 she remained depressed. His only other relevant comments in his evidence were that in 1997 Mrs. Bechal deteriorated seriously, and that in 1999 he made a note that she became abusive and difficult.[41]At this point, it is convenient to refer to evidence given by other non-medical witnesses called by the claimants as to forgetfulness or confusion on the part of Mrs. Bechal before or about the time she made her will in 1994.[42]The fifth claimant, Mervin Lebor gave evidence which I accept, of an occasion in December 1992 or January 1993 when Mrs. Bechal confused him with his brother, Laurence, despite the fact that Mr. Mervyn Lebor considered he was particularly close to her. He also said that on another occasion, slightly later, Mrs. Bechal did not appear to recognise his daughters.[43]Dr. Simon Barnard, the husband of the fourth claimant, is an optometrist who looked after Mrs. Bechal’s sight between 1990 and 1994. He gave undisputed evidence of Mrs. Bechal missing appointments with him, for no reason other than that she forgot them, and of what he regarded as irrational behaviour on Mrs. Bechal’s part in refusing to have reading glasses prescribed for her, although it was Dr. Barnard’s view that she would have considerable difficulty reading normal as opposed to headline-size print.[44]The fourth claimant herself gave evidence which, again, I accept, of occasions on which Mrs. Bechal just apparently forgot to attend family gatherings to which she was invited and which she had said she would attend.[45]The third claimant, Mr. Laurence Lebor, made a witness statement which was admitted in evidence but he was unable to attend for cross-examination because of his health. In the statement he described an occasion in about May 1994 when he and his wife and daughters called unannounced on Mrs. Bechal to say goodbye to her, as they were about to emigrate to Israel. She recognised and talked to him, but did not seem to recognise his wife or daughters, despite having seen them frequently, and she did not seem able to comprehend the concept of their emigrating to Israel. She seemed disorientated.[46]Although Mr. Lebor was not cross-examined, his wife, who had confirmed her husband’s evidence about this occasion, was cross-examined by video-link. She gave a graphic and wholly convincing picture of the occasion. She said in the course of her cross-examination that Mrs. Bechal appeared disorientated. She recognised Mr. Laurence Lebor but: “Did not seem to engage with me in any particular way at all. It was just as if the lights were out”.[47]Her behaviour was really out of character, according to Mrs. Lebor. Mrs. Bechal’s rabbi, Rabbi Vogel, and her former accountant, Mr. Esterson, gave evidence of confusion on her part. But, understandably, their recollection of the relevant dates was not very reliable.[48]Meanwhile Mrs. Bechal’s relationship with the Man family, and particularly Mrs. Man, grew closer. In fact, in September 1992 both Mr. and Mrs. Man had been made bankrupt and their restaurant company wound up on the petition of Her Majesty’s Customs & Excise.[49]There is no doubt that Mr. Man did a great deal to help Mrs. Bechal. Mrs. Man recalled one occasion of such help for which Mrs. Bechal seemed especially grateful, being when Mrs. Man accompanied her on her visit to hospital for the MRI scan which I have already mentioned, and comforted Mrs. Bechal in her understandable fear.[50]I am also satisfied that, by 1994, Mrs. Bechal did regard Mrs. Man with all the affection she would have felt for her own daughter, had she had one. Mrs. Man gave evidence, which I accept, of an occasion in April 1994 when she was in Jerusalem with Mrs. Bechal, and I should read that evidence: “In April 1994 when we were visiting the Wailing Wall in Jerusalem she [that is Mrs. Bechal] held my hand on the wall and said, ‘I wish you will have everything you ever want’. The same evening in the hotel she said she wanted to sort out her will when she returned home. She said Kim and I [that is Mr. Man and Mrs. Man] had been so good to her and cared for her. She mentioned the day she had her scan, and she said she was grateful to us for our help. She said I was a daughter she never had”.[51]This brings me to the circumstances surrounding the actual making of the May 1994 will. Mrs. Bechal banked at the Park Lane branch of Barclays. That bank offered its customers a will writing service. A customer could obtain a will instruction form from a branch of the bank. On completion of the form, the customer would send the form to the bank’s will writing department. If the will writing team at Barclays considered the instructions in the form, with or without clarification by telephone, were appropriate to allow the will to be drafted, a will draftsman employed by the bank would draft a will and send it to the proposed testator, usually at his or her branch of the bank, for execution.[52]Mrs. Bechal obtained one of these instruction forms. There is no evidence as to whether she went herself to the Park Lane branch of Barclays, or whether someone else obtained the form for her. Mr. and Mrs. Man deny they played any part in the obtaining or indeed completion of the form, and I believe them.[53]However she obtained the form, Mrs. Bechal completed it and sent if off to the Barclays will writing department. I must refer to the terms of the form and how she completed it in some detail.[54]Section 1 of the form required Mrs. Bechal’s personal details, which she completed accurately.[55]Section 2 required details of any spouse or partner, which she correctly simply deleted.[56]Section 3 required details of possible dependants, and in that section Mrs. Bechal correctly answered each question in the appropriate box on the form.[57]Section 4 required details of Mrs. Bechal’s assets and liabilities. In the sub-section for “Assets”, Mrs. Bechal indicated that she had the following:
“Your home £300,00 Personal possessions, jewellery etcetera £90,000 Furniture £100,000 Building society accounts £100,000 Cars £2,000”
[58]It is not possible from the available evidence to determine the degree of accuracy or otherwise of these estimates of assets at the time the will form was completed; but it seems unlikely that they are entirely accurate, though the specificity of the answers indicates that Mrs. Bechal was giving the questions some thought.[59]Another sub-section of section 4 of the form required details of business assets. Mrs. Bechal wrote simply “SPEBEK” and “JUDY” in capital letters. They were certainly by that date the names of her two principle property holding companies.[60]Section 5 of the form required a choice of executor. Mrs. Bechal ticked the box marked “I wish Barclays to act as my sole executor”.[61]Section 6 is headed “Funeral instructions”. Mrs. Bechal crossed the box marked “Cremation” and ticked the box marked “Burial”. Under “Special instructions”, she put the name and address of her Rabbi, Rabbi Vogel, though she wrongly spelt Rabbi R-A-B-I, and Vogel and also misspelt part of his address.[62]Section 8 of the form required the testatrix to fill in the names of up to four pecuniary or specific legatees and the subject matter of the legacy in each case, and indicated that further legacies could be set out on a separate sheet of paper. In the four numbered boxes Mrs. Bechal included the following pecuniary legacies:
“1 To Rab Vocal R-A-B V-O-C-A-L, £5,000 2 To Alana Cohen, of an address in Israel £500 3 To Maisie Lebor [Mrs. Bechal’ sister] £3,000 4 To Laurence Lebor [Laurence spelt L-A-U-R-A-N-C-E, Lebor, the third claimant] £500”
[63]Mrs. Bechal underlined the words “A separate sheet of paper” and put a tick against them – no doubt intended to indicate, as was the fact, that she did include a separate sheet when she sent the form off to the bank.[64]Section 8 of the form required details of residuary bequests. Under “Beneficiary 1”, Mrs. Bechal wrote what was clearly intended to be the name and address of Mrs. Man, although she gave her forenames as “B. Leanne”, and her surname as Man. In fact this is understandable in that Mrs. Man does not use her first name “Bee”. Mrs. Bechal described Mrs. Man as “best friend”, and stated that she was to receive a half share.[65]Under “Beneficiary 2”, Mrs. Bechal correctly wrote the name of Mr. Man, described him as her “best friend”, and indicated that the share he was to receive was also half.[66]Below the names of the intended residuary legatees the form asked the testatrix to tick one of three boxes to indicate what should happen to the share of a legatee who predeceased her; and Mrs. Bechal ticked the box marked “Please pay to the beneficiary’s children, if any, as survive me”.[67]In section 9 of the form headed “Declaration”, Mrs. Bechal indicated that she enclosed her cheque for £47 for Barclays’ fee, stated that she banked at the Mayfair branch of Barclays, and indicated that she wished the will to be sent to the Park Lane branch of Barclays for signature. I was told that in fact the Mayfair and Park Lane branches are one and the same branch.[68]Mrs. Bechal signed the form and dated it 1st May 1994. Accompanying the completed form which Mrs. Bechal sent to the Barclays will writing department was a separate sheet of paper containing seven further pecuniary legacies which there was no space to include on the form itself. These additional legacies were: 1 £1,000 to “Louise Lebor”, by which Mrs. Bechal appears to have met the fourth claimant, Louise Barnard, née Lebor 2 £300 to one Chazan Lionel 3 £1,000 to the first claimant, referred to on this sheet of paper as, “Sandra Benjy Black”. 4 £2,000 to Mrs. Bechal’s accountant for many years, Maurice Esterson 5 £1,000 to the Jewish Home and Hospital 6 £1,000 to Great Ormond, mis-spelled O-R-M-A-N-D Street Hospital 7 £5,000 to the NSPCC[69]On the same sheet of paper, under the legacies to individuals, Mrs. Bechal wrote: “My brother Philip Harbour had provided for my sisters’ families, so I only give certain cash to nephews and nieces”.[70]The claimants sought to draw support for their case that Mrs. Bechal lacked testamentary capacity from the fact that she used this impersonal means of making her new will, rather than instructing her solicitors who had made her previous will.[71]I accept the explanation suggested on behalf of Mr. and Mrs. Man, namely, that the reason, good or bad, she did not go back to her previous or other solicitors was that, particularly in the light of her intention to give the vast majority of her estate away from her family, she was anxious that her family should not know of her testamentary intentions, and thought the use of the Barclays service the best hope of achieving that.[72]There is no doubt Mrs. Bechal was a very private person, who did not like disclosing her affairs unnecessarily. This was no doubt a misguided reason on her part, particularly having regard to the size of her estate, but I accept that it probably was her reason.[73]I am satisfied, despite Dr. Barnard’s evidence of Mrs. Bechal’s poor sight, that she completed the will instruction form herself and that she must, by some means, have been able to read it herself in order to complete it as she did. I accept evidence given by Mrs. Man to the effect that Mrs. Bechal was able to and did read newspapers, despite her impaired sight.[74]On 9th May 1994, a Mr. Couling of Barclays will writing service telephoned Mrs. Bechal, and clarified some of the spellings and names in the will instruction form. Barclays then drew a will complying with Mrs. Bechal instructions on the form and the attached sheet of paper, and sent it to the Park Lane branch of the bank for Mrs. Bechal’s signature.[75]On being notified that the will was at her bank ready for her signature, Mrs. Bechal asked Mrs. Man if she would go with her to the bank. She said she was going to sign her will. She did not at that stage tell Mrs. Man what was in the will. Mrs. Man walked with her to the bank. Mrs. Bechal went with staff of the bank to sign the will while Mrs. Man sat and waited some way away from Mrs. Bechal, from where she was unable to see or hear what Mrs. Bechal was doing, or what anyone was saying.[76]Mrs. Bechal signed the will in the presence of two bank employees as witnesses. She then went downstairs to her safe deposit box and deposited the will there. Unfortunately the third defendant, the banks’ trustee company appointed executor of the will, has apparently been unable to provide any evidence from either witness to Mrs. Bechal’s signature of her will.[77]After the visit to the bank Mrs. Bechal had lunch with Mrs. Man and over lunch said to Mrs. Man, “I am very grateful to Kim and you. You are both very lucky”.[78]About a week later she told Mrs. Man that she had left money and property to Mr. and Mrs. Man in her will. She told Mrs. Man she wanted Mr. and Mrs. Man’s son to have her flat, and that she would leave it to Mrs. Man to make sure that happened. She also told Mrs. Man that her nephew and nieces would give her, Mrs. Man, trouble over the will, and that Mrs. Man would have to be strong.[79]In July 1994, Mrs. Bechal told Mr. Man she wanted to buy a new car, and that she wanted him to order a Mercedes “E” class car for her in place of a Rover car she had which she no longer liked. Mr. Man had arranged test drives in a Jaguar and the Mercedes “E” class for her. She liked the Mercedes. It cost something in excess of £30,000. She used to allow Mr. Man to take it home for his own use sometimes. Later, in 1996, she also gave Mrs. Man a car costing about £30,000 for her own use, and in 1995 wanted Mrs. Man to accept substantial gifts, including jewellery, from her.[80]I accept that such expenditure and largesse represented a change of attitude on the part of Mrs. Bechal, who had been unusually careful in her expenditure of money during her life; but I really do not find this point of any materiality on the question of her testamentary capacity in 1994.[81]In June 1994 Mrs. Bechal indicated to Mrs. Man that she had lost confidence in her accountant, Mr. Esterson, because she was concerned about certain investments he had suggested to her – one of which involved another client of Mr. Esterson. I am satisfied, from the evidence I have heard and seen that, had she fully understood it, Mr. Esterson’s advice should not have given Mrs. Bechal cause for concern. But concerned she was, to the point that she dismissed Mr. Esterson in a very abrupt and antagonistic manner. He had acted for her and her husband since 1962.[82]She then asked Mrs. Man to telephone the accountancy firm of Stoy-Hayward because she wanted to instruct them in place of Mr. Esterson. A Mr. Templeman of Stoy-Hayward accepted instructions to act for Mrs. Bechal. As a result of her parting company with Mr. Esterson, she wanted to make a codicil to her will to remove the pecuniary legacy she had given to him in her May 1994 will. She asked Mrs. Man to type a letter to Barclays which she, Mrs. Bechal, dictated to her. Mrs. Man habitually typed letters for Mrs. Bechal at her dictation. The letter was dated 29th July 1994 and was in these terms. It was addressed to Barclays will writing service, and it said this: “I will like to make a codicil to add to my Will I made with you and signed at Barclays Bank in Park Lane in May 1994. I want to cancell my gift of £3,000 to Maurice Esterson, Sarah and Sachal Estersion, of 9 Ridgeway Place, Wimbledon, SW19. I will like to make a gift of £10,000 to British, Federation of Women Zionist of Great Britain & Ireland, 107 Gloucester Place, London [and the post code is given]. I will sign the codicil at Park Lane, Barclays Bank, Yours faithfully”, and then Mrs. Bechal signed it.[83]There was, of course, no gift to Sarah or Sachal Esterson in the May 1994 will. This clearly shows a lapse of memory on Mrs. Bechal’s part.[84]On 3rd August 1994, Mr. Couling, of the Barclays will writing service, wrote to Mrs. Bechal enclosing a copy of a draft new will rather than a codicil, incorporating Mrs. Bechal’s proposed amendments and telling her that the original had been sent to her branch of the bank for her signature. The draft was in the same form as the May 1994 will, save that the pecuniary legacy to Mr. Esterson was omitted and the legacy of £10,000 to the Society of Federation of Women Zionists of Great Britain and Ireland was added.[85]Mrs. Bechal asked Mrs. Man to go with her to the bank on 5th August 1994. Mrs. Man and her son did so. Mrs. Man and her son, as did Mrs. Man on the occasion of the visit to the bank in May, sat and waited for Mrs. Bechal while she went with bank staff to sign her will. The Mans could not see or hear what Mrs. Bechal was doing or saying. Mrs. Bechal signed the will on that day, 5th August 1994, in the presence of two members of the bank staff. Again, no evidence has been adduced from either witness.[86]In November 1994, Mr. Templeman of Stoy Hayward, Mrs. Bechal’s new accountants, introduced her to a Mrs. McVittie, a solicitor, with a view to her acting for Mrs. Bechal. Mrs. McVittie gave evidence, which I accept, to the effect that her recollection is that when she first acted for Mrs. Bechal and discussed her affairs with her, “She had a very good recollection of the property she owned”.[87]Mrs. McVittie felt no doubt about Mrs. Bechal’s capacity to give instructions to her at that time, that is the end of 1994, or that she had testamentary capacity. She considered the latter because she felt it would be wise for Mrs. Bechal to execute another will in the light of medical advice as to her capacity, to avoid the risk of the August 1994 will being attacked on the grounds of the various spelling errors in it and the fact that it had been made without legal or medical advice.[88]Also Mrs. Bechal indicated to Mrs. McVittie that she wanted to make a few additional pecuniary legacies to family members, and a gift to the West Marble Arch synagogue for the erection of a memorial window to honour her late husband.[89]When Mrs. McVittie advised Mrs. Bechal that the new will should be signed in the presence of a medical practitioner who could confirm her capacity to make a will, Mrs. Bechal told Mrs. McVittie that she did not wish the doctor to be Dr. Dymond, her GP, because she believed members of her family had been in touch with Dr. Dymond and she did not want her family to learn about her plans.[90]So Mrs. McVittie arranged for Mrs. Bechal to see a Dr. Vanessa Moonie, a GP, at the Cromwell Hospital. This she did on 27th March 1995, when Dr. Moonie reported as follows: “This lady was brought to me in the company of a Solicitor and a Banker to see if she was fit to sign a new will. I found her to be in a confused state. She was unaware of the day, time or month and was unaware of the name of the Prime Minister of this country. She had a standard screening test done initially. She also did not seem to know why she was here. My feeling was that this woman was not in a fit state to be changing plans of her will at present. My recommendations are that, if there are any further problems, she should be fully assessed by Mr. Alan Braverman at the Lister Hospital, who is a Consultant Geriatrician with an interest in memory loss”.[91]Mrs. McVittie was surprised at how distressed Mrs. Bechal seemed to be on this visit to the Cromwell Hospital. However, clearly, in the light of Dr. Moonie’s opinion, plans for the new will had to be dropped.[92]In the first half of the following year, 1996, consideration was given to Mrs. Bechal’s executing an Enduring Power of Attorney but, on 26th June 1996, a Dr. Bergman advised that she did not have sufficient understanding of the effect and implications of such a power to have capacity to grant it.[93]On 10th December 1996, at the request of Dr. Dymond, Dr. Greenwood saw Mrs. Bechal at her home for the purpose of assessing her ability to grant an Enduring Power of Attorney. In her resultant report dated 11th December 1996, Dr. Greenwood said this: “I attempted to assess her testamentary capacity: she understood what was meant by Will but was unable to give any indication of the extent of her property or who might have a claim upon it. She did not express any frank delusional ideas. She does, however, show signs of marked cognitive impairment which might affect her judgment. Comparison of her current mental … [I think the word ‘state’ must have been omitted] with that described in my letter to you of 8th November 1993, shows there has been quite a marked deterioration. We discussed the matter with the lawyer present and were all agreed that Mrs. Bechal is not able to give a meaningful power of attorney. In my view, she is not of testamentary capacity either”.[94]Dr. Greenwood concluded her report by advising that Mrs. Bechal should become a patient of the Court of Protection.[95]An application was made to the Court of Protection on 20th December 1996 by the first claimant, Mrs. Blackman, for her own appointment as Mrs. Bechal’s Receiver. On 6th May 1997 the Court of Protection appointed Mrs. Bechal’s accountant, Mr. Templeman, as her Receiver.[96]There is no doubt that during 1996 there was very marked deterioration in Mrs. Bechal’s mental state. Complaints have been made in evidence by members of her family who, I accept, were genuinely concerned about her welfare, that they were prevented from getting in touch with her. They were not allowed into her flat when they called, and every time they tried to speak to her on the telephone all they got was an answerphone message.[97]I accept that this was a real problem for them from 1996 onwards, for at that time Mrs. Bechal had a very domineering housekeeper and an answerphone was indeed installed in the flat some time in 1996. It is also clear that, for no apparently good reason, Mrs. Bechal had, by this time, developed an increasingly intense suspicion of her family’s motives. She was, with no justification, convinced that they were anxious to interfere in her affairs. This developed into a serious antagonism to her family in the later post 1996 stages of her dementia.

TESTAMENTARY CAPACITY – THE TEST

[98]It is common ground that the test of testamentary capacity is still that formulated in Banks v Goodfellow (1869-70) LR 5 QB at 549. This was helpfully expressed by Miss Reed, counsel for Mr. and Mrs. Man, in her closing submission as follows: “The testator 1 needs to understand that he is making a will and that it will have the effect of carrying out his wishes on death. 2 He must understand the extent of the property he is disposing of 3 He must recall those who have claims on him and understand the nature of those claims so that he can both include and exclude beneficiaries from the will 4 No disorder of the mind should poison his affections, pervert his sense of right or prevent the exercise of his natural faculties, and no insane delusion should influence his will or poison his mind”.[99]However, Miss Reed also rightly reminded me that it is clear from the decision of the Court of Appeal in Hoff v Atherton [2005] Wills & Trusts Law Report 999, and in particular per Lord Justice Peter Gibson at para.33, that the court has to be satisfied that a would-be testator had the capacity to understand and recognise the matters referred to under the Banks v Goodfellow test, not that he actually did understand or recognise them.

THE EXPERT MEDICAL EVIDENCE

[100]A large volume of medical evidence was adduced by both sides on the question of Mrs. Bechal’s testamentary capacity when she made her two wills made in 1994. Unfortunately no medical expert saw her with a view to assessing her capacity at or near the dates of those wills. The only expert witness who had seen Mrs. Bechal at all was Dr. Greenwood, who saw her at the end of 1993, though not for the purpose of assessing her testamentary capacity, when Dr. Greenwood diagnosed a mild form of dementia and again, in December 1996, when Dr. Greenwood found Mrs. Bechal to have suffered quite a marked deterioration and to lack testamentary capacity.[101]In her evidence in these proceedings, Dr. Greenwood expressed the view, which I accept, that on the balance of probability Mrs. Bechal’s mental state when Dr. Greenwood saw her in December 1993: “… was not such that Mrs. Bechal did not have testamentary capacity in December 1993”.[102]In her report to this court, Dr. Greenwood, having considered her own reports in 1993 and 1996, and Dr. Moonie’s report in March 1995, went on to consider the question of Mrs. Bechal’s testamentary capacity in 1994. She said this, and I quote from her report: “The problem is to extrapolate Mrs. Bechal’s mental state between December 1993 and March 1995, with special reference to 1994. Mrs. Bechal was mildly demented in 1993. She was significantly disabled by March 1995, two years later. I consider that on the balance of probabilities, by August 1994 Mrs. Bechal was not of testamentary capacity. It is more difficult to be certain about her state in May 1994. The likelihood is that her condition deteriorated in the five months from December 1993 and continued to deteriorate. This would not necessarily have been a smooth decline. My best guess, on the balance of probabilities having reviewed all the evidence available to me, is that Mrs. Bechal was not of testamentary capacity in May 1994”.[103]In the course of cross-examination, Dr. Greenwood accepted that, although she felt she had no clear reason for saying that Mrs. Bechal lacked testamentary capacity in 1993, she clearly did not know whether she did. She may have had such capacity then: she may not. She was not asked, of course, in 1993 to consider the question. Again, Dr. Greenwood realistically accepted that in the passage of her report I have quoted, she was “only making a clinical guess” about Mrs. Bechal’s testamentary capacity in May 1994. She accepted that she did not really know whether she had capacity then.[104]Included in the documentary evidence before the court is a report made to Mr. and Mrs. Man’s former solicitors by a Professor Howard, of the Institute of Psychiatry at King’s College, London. He was not called to give evidence. His opinion expressed in his report was that the fact that in 1994 Mrs. Bechal was -- as he considered from reading other earlier medical reports, and in particular those of Dr. Greenwood and Dr. Dymond in 1993 and 1996 -- suffering from dementia caused by Alzheimer’s disease did not mean that she lacked testamentary capacity.[105]He realistically, and commendably frankly, said that he could not offer a firm opinion as to whether or not Mrs. Bechal had testamentary capacity in August 1994. However, he also said that whether Mrs. Bechal was able to complete the will instruction form herself and attend unaccompanied and unprompted at the bank for execution of the will would be two definite pointers to her having had testamentary capacity.[106]The claimants also adduced a report by Professor Robin Jacobi, Professor Emeritus at the University of Oxford in old age psychiatry, who never saw Mrs. Bechal. He agreed with Professor Howard’s diagnosis of dementia due to Alzheimer’s disease. His summary conclusion was expressed thus in his report: “In my opinion, by reason of dementia due to Alzheimer’s disease Golda Bechal lacked the necessary capacity to make a will when she executed the two Wills in 1994, because: first, she would have failed to appreciate the extent and financial complexities of her large estate; and secondly, that her judgment and opinion of her relatives could have been significantly distorted. Furthermore, also due to dementia, she would not have been able fully to understand the consequences, eg inheritance tax liabilities, of making the wills that she did execute”.[107]Earlier in his report, Professor Jacobi, who had had the advantage of reading the witness statements of the claimants and other family members, expressed the view that there is no evidence that Mrs. Bechal suffered from insane delusions within the meaning of the Banks v Goodfellow test at the time she made the disputed wills in 1994.[108]On the other hand, Professor Jacobi placed importance on the fact that, despite having an estate as large as some £8 million, Mrs. Bechal chose not to consult solicitors about her new will and instead, without any advice on inheritance tax or anything else, used a bank will writing service not designed for estates of the nature of hers. He thought the lack of judgement thus shown by her was an indicator of how little she was capable of understanding the extent of her estate and its implications.[109]I have already mentioned a possible explanation for Mrs. Bechal having made this choice, which I was given on behalf of Mr. and Mrs. Man and I accept.[110]In the course of his oral evidence Professor Jacobi confirmed that there was no evidence that in 1994 Mrs. Bechal was developing delusions about her family, and that his view that she lacked testamentary capacity in 1994 was based mainly on what he thought was her inability to appreciate the extent of her estate. He did not draw any distinction between the respective dates of the two 1994 wills.[111]Mr. and Mrs. Man adduced expert evidence from Dr. Claire Royston, a consultant in old age psychiatry, who also never saw Mrs. Bechal. She had read the earlier medical reports and letters of Dr. Dymond and Dr. Greenwood. She applied the published results of various studies of the rate of deterioration of Alzheimer’s disease and concluded that: “Mrs. Bechal was at the early stages of her experience of Alzheimer's disease in May and August 1994. Based on this information I consider it more probable than not that Mrs. Bechal did have testamentary capacity at this time”.[112]Dr. Royston considered the Barclays will instruction form as completed by Mrs. Bechal and the separate sheet containing the additional pecuniary legacies. Of those documents she said this:
“The information that is to be recorded on this form is relevant to three components of the test of an individual’s testamentary capacity: Understanding the nature of the act and its effects Understanding the extent of property Appreciation of those who might be expected to benefit from the estate. As I have already commented I am not clear regarding the circumstances in which Mrs. Bechal completed this form – in particular whether she was alone or had any assistance in terms of understanding the questions. She has indicated her choice of burial and referred to her Rabi. This suggests that Mrs. Bechal understood that the Will would come into action following her death. Mrs. Bechal has completed the section regarding her assets but it is not clear whether this is a reasonable assessment of her assets or not. There is no indication whether or not she appreciated the extent of her wealth. Mrs. Bechal made a number of specific legacies to individuals and specified the amount of these. In this document Mrs. Bechal was able to give relevant addresses and the amount of each bequest was varied between £300 and £5,000. She divided the residue of her estate between two further individuals who she names as ‘best friends’. Furthermore, Mrs. Bechal indicates some of the reasoning behind her determination of who to leave a bequest to as indicated on the handwritten document by the statement, ‘My Brother Philip Harbour had provided for my sisters families so I only give certain cash to my nephew and nieces’. Clearly a competent individual has the right to dispose of their assets to whoever the individual chooses and the information on the form does address Mrs. Bechal’s reasoning behind her choice. It is my opinion that this documentation indicates that Mrs. Bechal did have an understanding of the extent of her property and an appreciation of those who might be expected to benefit from her estate. Moreover, she indicated her reasoning behind some of the decisions she made in regard to the distribution of her estate. Taking this information into account I am of the opinion that it is very probable that Mrs. Bechal did have testamentary capacity on the key dates of May and August 1994”
. Understanding the nature of the act and its effects

Understanding the extent of property

[113]Not surprisingly in the light of this conclusion, in her oral evidence Dr. Royston expressed agreement with Professor Howard’s view of the significance of the obtaining and completion by Mrs. Bechal of the will instruction form.[114]In my judgment, the court must be wary of placing much reliance on the theoretical conclusions of medical witnesses, however eminent, who have not seen the testatrix but base their views on inferences from other evidence – inferences as to which ultimately it is for the court and not an expert witness to decide whether they should be drawn. It is greatly to be regretted that there is no direct evidence of Mrs. Bechal’s mental state in 1994.[115]However, I respectfully agree with the views expressed by Professor Howard and Dr. Royston as to the significance of:(a) the fact, as I find it to be, that Mrs. Bechal in May 1994 obtained the Barclays will instruction form and filled it in without any assistance;(b) the manner in which she completed the form; and(c) the contents of the separate sheet she submitted with the form.[116]Of course there were spelling errors and minor inaccuracies in both, which are consistent with the mild degree of dementia found in her by Dr. Greenwood in December 1993. But, in my judgment, of the various heads in the Banks v Goodfellow test, the contents of the form and the separate sheet of further legacies show that Mrs. Bechal: 1 understood that she was intending to make a will and that it would have the effect of carrying out her wishes on death; and 2 recalled those who had claims on her and understood the nature of those claims so that she could both include and exclude beneficiaries from her will.[117]As to the latter, her reference in the addendum sheet to not providing further for her nephews and nieces because her brother, Philip, had provided for her sisters’ families, as in fact had happened by his intestacy, is clear evidence that she had the claims of her family in mind.[118]As for charity, she made certain charitable gifts, and I am persuaded that it was not in any sense irrational for her to give the great bulk of her estate to Mrs. Man, who she clearly regarded as the daughter whom she would dearly have liked to have, and her husband.[119]As for understanding the extent of the property she was disposing of, she did on the form refer to the two companies which held the vast bulk of “her” property portfolio. There is, it is true, no evidence what value she thought that portfolio had, but actual knowledge of value is not necessary for testamentary capacity.[120]I am satisfied by the evidence in particular of Mr. Tobin and Mrs. McVittie, that Mrs. Bechal understood that she had, through the companies, a substantial property portfolio to dispose of. In my judgment that is sufficient in the circumstances of this case, to satisfy this head of the Banks v Goodfellow test.[121]As for the last head, that no disorder of the mind should poison the testatrix’s affections, pervert her sense of right or prevent the exercise of her natural faculties, and no insane delusion should influence her will or poison her mind -- bearing in mind Professor Jacobi’s evidence, I am satisfied that, as at May or August 1994, Mrs. Bechal passed this test. The position may well have been very different in 1996 and later.[122]It is, of course, true that the will instruction form is evidence of Mrs. Bechal’s state of mind in May 1994, and not of her state of mind in August 1994. However, none of the medical witnesses found any basis on which to reach a conclusion as to testamentary capacity in May 1994 different from that which they reached in relation to August 1994, although Dr. Greenwood felt more doubt about the position in May than she did about August. I do not consider that the available evidence justifies any such distinction. Accordingly, in my judgment, on the balance of probabilities, Mrs. Bechal had testamentary capacity when she made the August will, as well as when she made the May will.

WANT OF KNOWLEDGE AND APPROVAL

[123]Again, it is agreed that the burden is on Mr. and Mrs. Man to establish that Mrs. Bechal knew and approved the contents of the 1994 wills, or one of them. It is common ground that prima facie all the propounder of a will has to prove to establish knowledge and approval is testamentary capacity and due execution of the will. In this case Mr. and Mrs. Man have proved both. However, the claimants rely on the principle that where the circumstances surrounding the execution of a will are such as to arouse suspicion, then the propounder of the will must prove actual knowledge and approval in the sense that the will does represent the wishes of the deceased. See, for example, Fuller v Strom [2002] 1 WLR 1097.[124]Mr. Lloyd, on behalf of the claimants, strove hard to persuade me that this is a case within the latter principle. He failed. I am not satisfied that the facts as I have found them surrounding the execution of either of the 1994 wills are such as to arouse suspicion. However, were I wrong on that, it seems to me that the fact that the will signed by Mrs. Bechal in May 1994 accurately effected the instructions given by her in the will instruction form and its attached addendum sheet is clear evidence that Mrs. Bechal knew and approved of the contents of the May 1994 will.[125]So far as the August 1994 will is concerned, that again accurately gave effect to the instructions which Mrs. Bechal had given to Barclays, namely that her May will should continue in effect, save to the extent of the one legacy she said she wanted omitted, and with the addition of the new charitable legacy she said she wanted included. That seems to me quite sufficient to prove knowledge and approval of the contents of the August 1994 will.

CONCLUSION

[126]Accordingly, in my judgment, the will executed by Mrs. Bechal in August 1994 is her valid last will, and I will make the appropriate orders to give effect to that conclusion. SIR DONALD RATTEE: Yes. What are those orders? MISS REED: My Lord, in those circumstances if you will pronounce for the validity of the will in August 1994. SIR DONALD RATTEE: Yes. MISS REED: And there remains the question of costs, and my very straightforward submission to your Lordship will be that costs should follow the event, that that is the primary position, and even in a probate case ---- SIR DONALD RATTEE: Any objection to that?127. This is a case where there were serious issues surrounding the issues of capacity and knowledge and approval. My Lord has heard the evidence; my Lord has reached a decision. But there were still serious issues.128. The family, in my submission, acted with restraint and responsibility, and were right to have this matter brought before the court to be tested. Dr. Greenwood’s evidence in particular, and Dr. Moonie’s findings in 1995 cast a very very serious doubt over Mrs. Bechal’s capacity. Professor Howard’s report was consistent with the views of Dr. Greenwood, and Dr. Royston’s report is dated in June 2007, so that … very late in the day. The inappropriate use of the will writing service by Mrs. Bechal in that context, also raised very serious issues about her knowledge and approval.129. Had the claimants succeeded, then, in fact, my Lord does not know this yet, but, had the claimants succeeded, then the residual issues with the Attorney General had in fact been resolved and a good part of this estate, the seven-ninths, would have gone off to charity. Those issues had been resolved.130. MR. LLOYD: No, my Lord. The family -- I in fact agreed with my learned friend that those matters including the cy-près issues were going short and we were not going to oppose a reconstruction of the 1988 will.131. MR. LLOYD: Or a cy-près application of the past. The claimants, of course, must take responsibility for their own decisions about the bringing of these proceedings, but those concerns were shared by the Attorney, who opposed the wills on the same grounds. The fact that we were left to fight the battle and the Attorney to save costs, did not cover the same ground, does not detract from that. In the premises, my Lord, we would submit that this is a case where the costs should, notwithstanding my Lord’s finding, still be raised and paid out of the estate in due course of administration. My Lord, perhaps I should take you to the case of Carapeto v Good.132. SIR DONALD RATTEE: Yes.133. MR. LLOYD: My Lord, in fact in Carapeto v Good, there was also the issue of undue influence, which obviously does not arise in this particular case.134. SIR DONALD RATTEE: No.135. MR. LLOYD: And the outcome of the costs hearing was that the unsuccessful defendant, who had contested the validity of the will, found liable to pay the claimant’s costs in relation to the undue influence point because, of course, the claimant could not be expected to bear the costs of clearing their own name; but it was held that there were proper grounds for an investigation into the issues of want of knowledge and approval, and ultimately, the order made was that the defendant had to pay a proportion of the claimant’s costs. Now, the principles, if my Lord sees at the start of the judgment.136. SIR DONALD RATTEE: Yes.137. MR. LLOYD: The relevant passage from Spiers & English is there cited:
“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be led to be borne by those who have incurred them. If it were not for the application of those principles which, if not exhaustive, are the two great principles upon which the Court acts, costs would now, according to the rule, follow the event as a matter of course. Those principles allow good cause to be shown why costs should not follow the event. Therefore, in each case where an application is made, the Court has to consider whether the acts warrant either of those principles being brought into operation”
. Then, if my Lord turns over to p.1308, towards the end of the judgment, I have marked on the left hand side, my Lord. 138. SIR DONALD RATTEE: Yes. 139. MR. LLOYD:
“Mr. Chapman accepts, in my judgment rightly, that I can have regard to the sort of principles which the President referred to in Spiers v English as part of the circumstances of the case which I am required to have regard to under Part 44.3(4), and that does appear to me to enable my discretion to be exercised fairly widely”
. At 44.3(4) my Lord, 44.3 deals with the court’s discretion and circumstances to take into account ---- 140. SIR DONALD RATTEE: Hold on, I have not got it yet. Page ----? 141. MR. LLOYD: Page 1145, my Lord. 142. SIR DONALD RATTEE: Yes. 143. MR. LLOYD: At 44.3-(1):
“The court has a discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid”
. And then 44.3(2) sets out the general rule that the unsuccessful party will be ordered to pay the costs of the successful party. And then 44.3(4) provides that:
“In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including ----- (a) the conduct of the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into a court or admissible to offer to settle made by a party which is drawn to the court’s attention and which is not an offer to which costs consequences under part.36 apply”
. So, my Lord, those are the relevant rules relating to costs, and Spiers v English still applies and can come in under 44.3(4). Now, my Lord ---- 144. SIR DONALD RATTEE: Well where? Under “the conduct of the parties”? 145. MR. LLOYD: Under “the conduct of the parties”. 146. SIR DONALD RATTEE: I mean, just generally, on all the circumstances. It does not come within (b) or (c), does it? It is either ---- 147. MR. LLOYD: No, my Lord., but ---- 148. SIR DONALD RATTEE:
“All the circumstances including (a) the conduct of the parties”. 149. MR. LLOYD: It says, well, I think it really, rather than – those are, of course, just the items which are included. 150. SIR DONALD RATTEE: Yes. 151. MR. LLOYD: I think it really comes up under the general statement. 152. SIR DONALD RATTEE: All the circumstances. 153. MR. LLOYD: “In deciding what order if any to make about costs, the court must have regard to all the circumstances”. “To all the circumstances”
. And then, “including”. 154. SIR DONALD RATTEE: What is it you are asking me to do? 155. MR. LLOYD: Well, my Lord, we say that this was a case which warranted being brought before the court and having the matter tested. We say that the circumstances ---- Well, first of all, there are two situations, my Lord. One where either the person who made the will, or persons who are interested in residue had been the cause of the litigation, so the testatrix ---- 156. SIR DONALD RATTEE: That is not this case, is it? 157. MR. LLOYD: My Lord, only in that the testatrix chose this very unusual way of making a will. Had she gone to a solicitor and chosen the more conventional course ---- 158. SIR DONALD RATTEE: Yes. 159. MR. LLOYD: -- there would have been more evidence, satisfactory evidence, on the two issues which my Lord has had to decide. So, we do say this is a situation where the testatrix by her conduct has caused the litigation. 160. SIR DONALD RATTEE: If that is the case, then you say the costs come out of the estate. 161. MR. LLOYD: Then we say the costs ---- 162. SIR DONALD RATTEE: But if you fall within the second principle, the Barnes judgment, then you simply bear your own costs. 163. MR. LLOYD: It is no order as to costs, my Lord. 164. SIR DONALD RATTEE: Yes. Well, why ---- 165. MR. LLOYD: So, those are the two situations that my Lord, where in probate proceedings costs not unusually differ from the usual rule of following an event. We say we fall within the first. If we do not fall within the first, we certainly fall within the second. 166. SIR DONALD RATTEE: But I do not know, I mean, the statement simply says in relation to the second:
“… if the circumstances lead reasonably to an investigation of the matter, then the costs may be“---- Presumably “led” means left, does it? Must be a mis-quotation somewhere. 167. MR. LLOYD: Yes. 168. SIR DONALD RATTEE: Must be “left to be borne”
. MR. LLOYD: Unquestionably, my Lord. SIR DONALD RATTEE: It does not help as to the circumstances in which the court may not, does it? MR. LLOYD: No. Unquestionably, my Lord has a discretion. SIR DONALD RATTEE: Yes. MR. LLOYD: There is no question about that. SIR DONALD RATTEE: Yes. MR. LLOYD: My Lord, the only other point which I, I mean, it is proper that I should refer to, because under 44.3 it refers to “admissible offers to settle”, in this case it is true there was an offer made by Mr. and Mrs. Man that the Attorney and the family should take £1 million to cover their claims and any costs, and that offer was made once in the early stages, and once in the later stages. There were equally -- there was a mediation and there was an offer – not a part 36 offer because it does not really work in these cases, but there was an offer without prejudice save as to costs whereby the family offered a proposal whereby 25 per cent would go to Mr. and Mrs. Man, 25 per cent to the family and 50 per cent to the charities, with certain other detailed matters. Shortly before the hearing my learned friend for the Attorney made a more generous offer of 40 per cent to Mr. and Mrs. Man, 60 per cent to be divided between the family and the Attorney as they might agree or it be determined. So, there are those offers, it is right my Lord should know about those offers. SIR DONALD RATTEE: Yes. MR. LLOYD: So, my Lord, those are my submissions. SIR DONALD RATTEE: Thank you. Yes. Does anybody else want to say anything about – just before I hear you again, Miss Reed? MR. WILSON (Who was not near a microphone): My Lord, yes. SIR DONALD RATTEE: Are you asking for your costs from somebody? 169. In principle, though, my Lord, on the claimants’ costs, I suppose as executor I am duty bound to preserve the estate and endorse the submissions of my learned friend Miss Reed that they should not come out of the estate, they should be borne by the claimants. SIR DONALD RATTEE: Well, why? You are not in any different interest than Mr. and Mrs. Man, are you, on that? MR. WILSON: We are going to be, well, we are going to be executor … SIR DONALD RATTEE: I mean, they are the only people who are going – yes. MR. WILSON: And so, as my Lord … as I said, the appropriate order for our costs is, as I say, … indemnity basis … position of my learned friend ---- SIR DONALD RATTEE: The only thing that troubles me a bit, you know, why was it necessary for your client to be represented here all through the trial? MR. WILSON: Well, my Lord, we say firstly we are the named executor and ---- SIR DONALD RATTEE: I know you are, but I mean, why ---- MR. WILSON: We had an interest in the proceeding and we were named as a defendant. At no time did any other party suggest through their solicitors that we should not be present at the trial. We have incurred significant amounts of costs in doing things necessary for the litigation generally, and in my submission it is ---- SIR DONALD RATTEE: What? 170. MR. WILSON: Well, my Lord, certainly getting together all the Lark Nugus evidence. SIR DONALD RATTEE: Yes. MR. WILSON: There was ---- SIR DONALD RATTEE: No, no. I am more concerned about why you needed to be represented through seven days of trial. MR. WILSON: My Lord, we say that of course the substance of the trial may 171. have – particularly on your Lordship’s findings in relation to various allegations that seemed to be made that your Lordship did not make any findings on in the end, it may have been that there was a difficulty in terms of us taking a grant, we have been criticised substantially in relation to the preparation of the will. It may have been that there would be the conflict that arose and it was appropriate we were here to deal with that potential situation. In my submission, we are the executor and it is wholly appropriate for us to be at the trial in those circumstances. SIR DONALD RATTEE: Yes. I see. Thank you. (To Mr. Henderson) Yes? MR. HENDERSON: My Lord, I represent the Attorney General in this matter. SIR DONALD RATTEE: Well, I assumed that, yes. And I would ask, why are you here? You have carved it up, I gather, anyway. MR HENDERSON: Well, we very recently carved up what would happen in the event that ---- SIR DONALD RATTEE: Yes. MR. HENDERSON: -- your Lordship had been against the validity of the 1994 wills. That is a very recent development. But I am here because the Attorney General was a party to the proceedings. The Attorney General has put in pleadings. SIR DONALD RATTEE: Yes. MR. HENDERSON: Effectively supporting ---- SIR DONALD RATTEE: At least you did not come and sit throughout the trial, no. MR. HENDERSON: Well, no. SIR DONALD RATTEE: Yes. What do you want me to do, then? MR. HENDERSON: Well, my Lord, the Attorney has incurred costs in this matter, and like my learned friend, Mr. Lloyd, I would submit that this is a case which comes within the exceptions referred to in the authority he referred to, which exception precisely it comes under may be a more difficult question, whether it comes within the exception which requires or provides that the costs should ---- SIR DONALD RATTEE: I have to say at the moment I do not find that a difficult question at all. I cannot for the life of me see how the first exception applies. I mean, the only suggestion is that this poor lady brought all this on her estate by going to Barclays will writing service rather than going to a solicitor. Is that really a good reason? MR. HENDERSON: Well ---- SIR DONALD RATTEE: You say it is? Or you accept that that is not. MR. HENDERSON: I say that is one factor which brings it within the first head. The other factor is her unfortunate suffering from, certainly, mild Alzheimer’s back in 1993 round through 1994 and on into 1995 and 1996. Now, that was not her fault. SIR DONALD RATTEE: No. MR. HENDERSON: Of course. But the reference to fault there Spiers v English in English and I submit does not mean fault in terms of being blameworthy, it just means caused by, and that is a view which Mr. Justice Henderson reached, in fact, in a judgment handed down this morning, where he grappled with the distinction between the two heads in Spiers v English. And I would like to hand up, if I may, a copy of that judgment on costs. If your Lordship is concerned ---- SIR DONALD RATTEE: Here we go again, yet other unreported decisions of first instance judges. Yes? MR. HENDERSON: My Lord, it does contain ---- SIR DONALD RATTEE: Very well, let us have a look at it. (Handed to Judge) Thank you. Yes? MR. HENDERSON: Which paragraph? MR. HENDERSON: Start para.5. SIR DONALD RATTEE: Paragraph 5, yes. 172. SIR DONALD RATTEE: I have just seen. Yes. 173. MR. HENDERSON: Then para.7:
“What is meant, for the purposes of the first exception, by saying that the testator has been ‘really the cause of the litigation’? And what is meant for the purposes of the second exception, by saying that ‘the circumstances lead reasonably to an investigation of the matter’? There are at least four earlier cases … “. I will not take your Lordship through those cases. SIR DONALD RATTEE: Good. MR. HENDERSON: Paragraph 9. SIR DONALD RATTEE: Yes. 174. MR. HENDERSON: The judge comments on the first of the cases: “Although Sir James Wilde framed his first rule in terms of blame and fault, it is in my view reasonably clear that he did not necessarily mean moral fault or culpability, but rather that the touchstone should be whether it was the testator’s own conduct which had led to his will ‘being surrounded with confusion or uncertainty in law or fact’. If that causal test is satisfied, it should not in my judgment matter for the purposes of the first rule whether the problem is one relating to the state in which the deceased has left his testamentary papers (for example where a will cannot be found, or where there is a question whether a will has been revoked), or whether the problem relates to the capacity of the deceased to make a will”
. SIR DONALD RATTEE: Yes. MR. HENDERSON: And then, para.10. SIR DONALD RATTEE: Sorry, just a moment. Where does this reference to Sir James Wild come from? That is what I am not understanding at the moment? This is in another case, I see. MR. HENDERSON: In fact it is … SIR DONALD RATTEE: I see. Well, where is the first rule he ----? 175. SIR DONALD RATTEE: No, Sir James Wilde apparently framed his first rule. Before I can make sense of para.9 I need to know what the first rule is that the judge is talking about. (After a pause) I see, it is immediately above 9, the last paragraph of the citation:
“From these considerations, the court deduces the two following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question … ” ----- Yes, I see, right. So then (After a pause) Yes. That is 9, I now understand 9. Where do you want me to go next? 176. MR. HENDERSON: To 10, my Lord. Briefly. The judge said that: “… the difficulty of extracting any general rule from the earlier cases law, and said that his two rules were designed to strike a balance between two principles of high public importance, the first being that ‘parties should not be tempted into [imprudent] litigation by the knowledge that their costs will be defrayed by others’, and the other being that ‘doubtful wills should not pass easily into proof by reason of the cost of opposing them”. 177. SIR DONALD RATTEE: But, I mean, what possible public interest is there in this, in the circumstances of this case? What public interest is there in the litigation? Leave charity on one side for the moment, I mean, because charity did not enter into it in the context between the claimants on ---- 178. MR. HENDERSON: It is because ---- 179. SIR DONALD RATTEE: Why is that a matter of public interest? MR. HENDERSON: It is because of the particularly, or strangely, inquisitorial nature of probate actions I think, as compared with almost any other form of action, that the court itself has an interest in ensuring that the correct will is admitted to proof. That is why it was not until the administration ---- SIR DONALD RATTEE: Bit unreal in this day and age, is it not? I mean, the only people interested are the next of kin on the one hand, and the residuary legatees on the other, are they not? MR. HENDERSON: It is, my Lord, and that is recognised by the legislation, in fact, since, I mean 1985, there has been legislation to the effect that if all the parties potentially interested on either side of the dispute agree, then effectively you can get an order by consent in the probate action, which previously you could not. SIR DONALD RATTEE: Yes. MR. HENDERSON: But, nevertheless, that explains the rule, and it explains why the court may be more tender to the losing party in a probate action, than it would be in a normal case. SIR DONALD RATTEE: Yes. I see. 180. MR. HENDERSON: And, flipping fairly swiftly on in this paragraph 15, the judge refers to Twist v Tye as being an example on the other side of the line where, really, it was effectively hostile litigation all the way through and he ordered costs to follow the event. He said that three gentlemen who were the executors and residuary beneficiaries under the will in question: “… had not acted improperly, but they had taken a view about the testatrix which turned out to be mistaken … Nor was it a case where there should be no order as to costs, because the truth of the matter was that the executors had taken a view and acted upon it, in circumstances where they stood to benefit if the will was upheld. There was accordingly nothing to warrant a departure from the general rule that costs should follow the event”
. SIR DONALD RATTEE: Yes. MR. HENDERSON: So, the long and short of it is that it is entirely fact-dependent as to whether your Lordship thinks it was reasonable to effectively put Mr. and Mrs. Man to proof of the validity of these wills in the circumstances as they existed. SIR DONALD RATTEE: Yes, I see. MR. HENDERSON: And what Mr. Justice Kenton did at the end in this case, the costlier case, was to divide the period of time during which the litigation was carried on into three periods: an early period when it was reasonable and proper for the losing party to investigate, because it was to some extent, he thought, the fault of the testator that the problem arose -- for that period he gave the losing party their costs out of the estate; a middle period when he thought neither party should have their costs; and an end period which covered the trial, during which, in effect of which, he ordered the losing party to pay the claimant’s costs. SIR DONALD RATTEE: And we end up the same as no order for costs, do we? MR. HENDERSON: Well, not in that case, because, typically the costs of the trial will be much ---- SIR DONALD RATTEE: The trial will be much greater. Yes. MR. HENDERSON: But that is the position. I say, certainly as far as the Attorney General is concerned, he was, or she was brought into this litigation by the claimants. She was a proper party. It was appropriate for her to have spent at least some money in investigating the position and forming a view. And therefore she should not be out of pocket as a consequence of that, and therefore her costs should come out of the estate. As a fall-back ---- SIR DONALD RATTEE: I am very puzzled as to really what interest charity had. I mean it would have been extremely difficult if not impossible ever to have decided that the – what the 1988 will did, would it not? The evidence certainly would not have enabled me to make a finding as to what the terms of the 1988 will were. MR. HENDERSON: My submission would have been that you could have found sufficient to make a case for charity. SIR DONALD RATTEE: Yes, well we will not go into that. MR. HENDERSON: But, be that as it may, we were joined. SIR DONALD RATTEE: I know, yes. I follow that, yes. Quite right. MR. HENDERSON: And here we are. SIR DONALD RATTEE: All right. Well, what order do you want me to make, precisely? MR. HENDERSON: My first submission is to ask you to order the Attorney General’s costs or a proportion of them to be paid out of the estate. And, as a fall-back, simply to make no order as to the Attorney General’s costs and to make no hostile order against the Attorney General. SIR DONALD RATTEE: And you are not asking for your costs against the claimants. MR. HENDERSON: No ---- SIR DONALD RATTEE: Why not? MR. HENDERSON: -- although if I ask you for my costs out of the estate, effectively, that would be the result. SIR DONALD RATTEE: No. MR. HENDERSON: Sorry, against the claimants. SIR DONALD RATTEE: The claimants. MR. HENDERSON: No. I am not asking for my costs against the claimants. SIR DONALD RATTEE: Why not? They brought you here for wrong reasons in the event. Why should – who is going to pay the costs then, the public purse? MR. HENDERSON: My Lord, the Attorney General’s approach on the pleadings has been to support the claimants on the issue of capacity. SIR DONALD RATTEE: I see. All right. I did not know that because you have never told me, you see. MR. HENDERSON: Probably … the privilege of making it my final pleading! That is my pleading ---- SIR DONALD RATTEE: Yes, very well. I see. Righto, well, thank you very much. (To Miss Reed) Now, Miss Reed? 181. What it does make clear in para.6 which I do not think your Lordship was ---- SIR DONALD RATTEE: Paragraph 6, yes. 182. MISS REED: Is that the statement of principle that is referred to in Spiers v English in the previous para.5 that your Lordship was taken to, makes it clear:
“… that a positive case has to be made out before departing from the general rule that costs should follow the event, and also that ‘the two great principles upon which the court acts’ are neither exhaustive nor rigidly prescriptive. They are guidelines, not straightjackets, and their applications will depend on the facts of the particular case”
. And, my Lord, it is for the claimant and the Attorney General, if they are arguing for their costs to come out of the estate, to make a positive case to that effect. And, my Lord, if I could take your Lordship as well to para.21 of Mr. Justice Henderson’s decision. SIR DONALD RATTEE: Yes. 183. Mr. Justice Henderson does not agree with that, and he refers to Boughton v Knight, but then he says, just over halfway down the paragraph:
“However, it is I think fair to say that the trend of the more recent authorities has been to encourage a very careful scrutiny of any case in which the first exception is said to apply, and to narrow rather than extend the circumstances in which it will be held to be engaged. There are at least two factors which have in my judgment contributed to this change of emphasis. First, less importance is attached today than it was in Victorian times to the independent duty of the court to investigate the circumstances in which a will was executed and to satisfy itself as to its validity. Secondly, the courts are increasingly alert to the dangers of encouraging litigation, and discouraging settlement of doubtful claims at an early stage, if costs are allowed out of the estate to the unsuccessful party”
. SIR DONALD RATTEE: Yes. 184. On the first point as to whether or not this was a dispute that was caused by the testatrix, it really does boil down to the use of the will writing service, and in my submission your Lordship has found that she had ---- SIR DONALD RATTEE: You need not trouble with that point. I do not think there is anything in it. MISS REED: My Lord, I am grateful. As far as the question of investigation is concerned. SIR DONALD RATTEE: Yes. MISS REED: My Lord, the fact of the matter is that this was always hostile litigation. SIR DONALD RATTEE: Yes. MISS REED: The facts and the documents were disclosed, the witness statements have been before the other parties, and in my submission this is not one of those cases where the exception to the general rule applies, and that, and therefore my submission would be that it is clearly a case where the claimant ought to pay the first and second defendants’ costs of the claimants. SIR DONALD RATTEE: I agree. MISS REED: My Lord, as far as the Attorney General is concerned, we do oppose her costs coming out of the estate because ---- SIR DONALD RATTEE: Oh yes. MISS REED: -- my Lord, we did not join her in, and ---- SIR DONALD RATTEE: No, well, you need not trouble. MISS REED: I am grateful. SIR DONALD RATTEE: I mean, I am not satisfied that it is appropriate in this case to depart from the usual rule that costs should follow the event. I shall order that the claimants pay your costs. MISS REED: I am grateful. 185. And, now, what about the bank? Do you want to say anything about their costs, I mean, coming out of the estate? MISS REED: My Lord, we understand your Lordship’s comments on that, but I am instructed that we do not oppose those costs coming out of the estate, so ---- 186. Anything else? MR. LLOYD: My Lord, I am conscious that my Lord does not now sit regularly and therefore -- obviously the family will need to get a transcript of my Lord’s judgment and consider it at leisure. But it may well be that it may be that ---- SIR DONALD RATTEE: You may want permission to appeal. MR. LLOYD: Indeed, my Lord. SIR DONALD RATTEE: You will not get it from me, Mr. Lloyd, I am afraid, I do not think there is any real prospect of success for an appeal in this case. MR. LLOYD: My Lord, I made the application, my Lord ---- SIR DONALD RATTEE: Quite right. MR. LLOYD: My Lord has heard and determined it, so ---- SIR DONALD RATTEE: You are quite right. MR. LLOYD: -- the way is now clear. SIR DONALD RATTEE: You are absolutely right. It can go to the Court of Appeal. MR. LLOYD: I am sorry. 187. Thank you all very much for your help. __________

Cited in 4 later judgments