Walters & Anor v Smee & Anor [2008] EWHC 2029 (Ch)

[2008] EWHC 2029 (Ch)

Case No HC07C01774

IN THE HIGH COURT OF JUSTICE

(Chancery Division)

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

Date 25 July 2008

Before

HIS HONOUR JUDGE PURLE QC

Between

ALAN WALTERS (1)Claimants

KAREN WALTERS (2)Claimant

GEOFFREY SMEEDefendants

ENID SMEEDefendant

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Mr. C. Darton (instructed by Messrs. Warner Goodman) appeared for 1 st Claimant.

The 2 nd Claimant appeared in Person. for in person

Mr. A Child (instructed by Messrs. Stevens & Bolton) appeared for Defendants.

JUDGMENT

His Honour Judge Purle QC:

[1]This case concerns Annie Latimer, who died on the 23rd November 2004, a widow, at the age of 89. She had no close relatives. Her last will was dated 21st October 2004, just a month before she died. By that will she left everything to the Defendants, Mr. and Mrs. Smee, who were old friends.

[2]There had been an earlier will, which was revoked by her last will (at least purportedly), dated the 17th July 1998. By that will, after leaving a small legacy of £250 to a distant relative, she left everything else to the Claimants, Mr. and Mrs. Walters, who had been caring for her and looking after her for several years.

[3]Mr. and Mrs. Walters challenge the validity of the 2004 will on two grounds. The first is they challenge the mental capacity of Mrs. Latimer to have made a will in the terms in which she did in October 2004. Secondly, they allege that the will was executed without Annie Latimer’s knowledge and approval of its terms.

[4]Annie Latimer’s estate consisted principally of a bungalow, situated at 21 Ivy Bank, Tilehurst, Reading.

[5]There is an alternative claim brought by Mr. and Mrs. Walters based on proprietary estoppel in the event that their claim to challenge the 2004 will fails. The proprietary estoppel claim is aimed at the entirety of the residuary estate of the deceased, not just the property at 21 Ivy Bank. The Walters are not challenging the £250 legacy under the earlier will; so the proprietary estoppel claim only arises if the challenge to the later will fails.

[6]The 2004 will is professionally drawn and is on its face perfectly rational. It is, therefore, initially presumed to be valid. Once, however, some case is raised as to the possibility of mental incapacity, the burden shifts back to the propounder. Nothing in this case turns ultimately on the incidence of the burden of proof. The conclusions I am about to express do not depend upon that incidence. I have to decide, on a balance of probabilities, whether Mrs. Latimer did or did not have the necessary mental capacity at the time of the 2004 will. My decision is the same whether the burden is on the Walters or whether the burden is on the Smees.

[7]The law of mental capacity is not contentious. It dates back to the well-known case of Banks v Goodfellow [1870] LR 5 QB 549. The following four propositions may safely be advanced:• For the will to be valid Mrs. Latimer needed to have understood that she was making a will and that it would have the effect of carrying out her wishes on death. I have no doubt that that condition was satisfied in this case.

• Next, Mrs. Latimer must have understood the extent of the property she was disposing of. Again, I have no doubt that Mrs. Latimer did so understand in this case.

• Thirdly, she must have recalled those who had claims on her, and understood the nature of those claims so that she could both include and exclude beneficiaries from the will. She certainly recalled those who had claims on her, and I think she probably understood the nature of those claims, though it is said (and this is a situation that I will have to address) that her views of Mr. and Mrs. Walters were distorted by her mental state at the time.

• That leads me into the next point, which is the crucial one. No disorder of the mind should have poisoned her affections, perverted her sense of right or prevented the exercise of her natural faculties; and no insane delusion should have influenced her will or poisoned her mind. It is that limb of the test which primarily arises for decision in the present case.

[8]Mr. and Mrs. Walters contend that at the material time, that is to say in October 2004, Mrs. Latimer was suffering from the onset of dementia. That is the opinion also of a distinguished expert, Professor Howard, who describes the degree of dementia at that time as “moderate”. The Claimants contend that this dementia had the potential to, and did, cause Mrs. Latimer to misunderstand and mis-appreciate the actions of Mr. and Mrs. Walters to such an extent that Mrs. Latimer was unable properly to consider their claims upon her bounty. In short, her mind was poisoned against them as a result of her cognitive disabilities.

[9]The evidence of dementia, which was not diagnosed during Mrs. Latimer’s life, is set out in the body of Professor Howard’s report and consists partly of an analysis of the witness statements and of statements from doctors who had attended upon her, and the like.

[10]I find that Professor Howard is correct and that at the material time Mrs. Latimer was suffering from dementia, which can fairly be described as “moderate”. I have also had the advantage, which Professor Howard did not have, of hearing oral evidence on those issues. There is ample evidence that, in the last few months of her life, Mrs. Latimer was forgetful and confused and was often in a highly agitated state. This was sometimes made worse by her failure, itself induced by forgetfulness, to take medication which she had been prescribed. The instances of this forgetfulness and confusion are set out in the passages from Mr. and Mrs. Walters’ evidence to which Professor Howard refers. I am not going to set those out in detail again.

[11]There is independent corroboration as well. I was particularly impressed by the evidence of Mr. Rex Lewis, who saw Mrs. Latimer weekly over a period of some thirty-five years, right through to near the end of her life. He used to bring her groceries, eggs and other such provisions. He confirms that in 2004 she became muddled when placing orders, and forgetful, and that her mental state was deteriorating. There is also independent evidence of nursing staff that she became (as I have mentioned) muddled over her medication. There were also occasions when she forgot what food she had. Food would either go stale, in the case of bread, or be put into the freezer to freeze, where it remained. Milk, likewise, would either go off or be consigned to the freezer. On one occasion, not long before her final illness, Mrs. Latimer had some food in the oven, which she completely forgot about. It was found there later, infested with maggots. This was an unhappy state of affairs occasioned by her mental failings.

[12]In November 2004 a chiropodist called to see her – Coleen Mantell. She was shocked by what she found. She had seen her in the past, but her physical and mental condition had clearly deteriorated. On that occasion Mrs. Latimer became very distressed because she could not find sufficient money with which to pay the chiropodist. This was as a result of steps that had been taken by Mr. Smee, pursuant to an enduring power of attorney that he then had, to control, quite properly, the amount of money that Mrs. Latimer was able to spend. She found it difficult to understand or fully appreciate the impact of those steps upon her finances and was very upset that she did not have the money she wished to have to pay the chiropodist. In the event the chiropodist was paid by Mr. Walters, who was there at the time. In due course he recouped himself from Mr. Smee, who had control of the funds.

[13]There is also evidence that when Mrs. Latimer was in hospital in November 2004 she told the hospital staff that she regarded Mr. and Mrs. Walters as her next-of-kin. This was a strange statement given the fact that she had by then changed her will in favour of the Smees.

[14]Not long before she died, when she must have known that she was dying, she told the Walters that she had left everything to them. Plainly she had not.

[15]The evidence shows that Mrs. Latimer was a deeply religious woman. She was not the sort of woman who would wish to meet her maker on the back of a lie. She was, therefore, either confused or had simply forgotten at that stage what dispositions she had made in her October will, or both. I believe she was both confused and forgetful.

[16]There is plenty of evidence that she was tearful in her last months. She was particularly concerned over the diminution in her assets, which she did not understand, even though, I find, Alan Walters, at the time when he was controlling her finances, explained to her on more than one occasion that her assets were indeed diminishing because there was only so much money around to care for her.

[17]There was an occasion when, despite having been told that, she was visited by friends who took out from her safe (Mrs. Latimer had the key) her building society passbook and noted her complete shock on what that passbook revealed. This was in around August 2004. To my mind this indicates the difficulty that Mrs. Latimer then had in grasping the realities of life and, in particular, the realities of her financial position. She had in fact been kept informed by Mr. Walters of what her finances were, but she simply could not comprehend the reality of her situation. This may have caused her to entertain suspicions about Mr. Walters’ behaviour in relation to her financial affairs.

[18]There are other examples of confusion and irrationality. Towards the end there is evidence that she was wandering around, on at least one occasion, in the bungalow in which she lived wearing merely her underwear, in front of Mr. Walters. This was untypical behaviour for someone who had throughout her life been a very proper (albeit lively) person not given to parading in that state in front of men.

[19]Important evidence was given by a nurse, Nurse Cotter, who attended upon Mrs. Latimer in November 2004 and was shocked by her physical and mental condition, both of which had markedly deteriorated.

[20]There is also evidence that, for wholly unexplained reasons, Mrs. Latimer cut off one of her most longstanding friends. I was told this by Mrs. Webb, a cousin, who herself clearly could not understand what had motivated Mrs. Latimer in that connection. Mrs. Latimer also claimed to Mrs. Webb that she had lost her telephone number, though she had been ringing her for years. Mrs. Webb insinuated that Mr Walters must have torn out her number from the telephone book, but there was no reliable evidence to that effect. I find that this was another example of forgetfulness and confusion on Mrs. Latimer’s part.

[21]Not all of Mrs. Latimer’s acquaintances noticed this deterioration. Mr. and Mrs. Smee, on their evidence, acknowledging that she had occasional signs of forgetfulness, asserted that she had full competence. There were other witnesses who did not notice.

[22]Nonetheless, there is an important attendance note, which is corroborative of the deceased’s state, of the 23rd August 2004. That relates to an attendance upon the deceased’s solicitors, where she was seen by a probate manager, Crystal Walker, in the presence of Reverend Samantha Caton, who had befriended her, being the minister at the church which Mrs. Latimer habitually attended. That attendance note records in terms that it seemed to Crystal Walker that Annie Latimer’s mental condition was deteriorating. Indeed, when I come to the contents of that attendance note later, that will be self-evident.

[23]Professor Howard explains in his evidence that people with Mrs Latimer’s condition are vulnerable to the development of delusions which result largely from their difficulties in understanding and remembering the actions of others. They also have difficulty, he adds in a later letter, in distinguishing fact from gossip.

[24]Professor Howard considered what the position would be if I found (as he recognised was my function and not his) that the facts that motivated Mrs. Latimer to exclude the Walters from her will were untrue facts. On that basis he expressed the view that her decision would have been motivated by an abnormality of mind; that is to say, as he put it, an “insane delusion”. I regret the old-fashioned language, but the position is clear. In terms closer to the authority I have cited, the dementia might have had the effect of poisoning Mrs. Latimer’s mind and making it impossible for her to properly give effect to the true claims on her bounty.

[25]Before expressing any view on what the position ultimately was in this case, I shall consider the background to the 1998 will. This, it will be recalled, is the will under which Mrs. Latimer left everything to Mr. and Mrs. Walters, apart from a small legacy of £250.

[26]By 1998, Mr. and Mrs. Walters had known Mrs. Latimer for many years. They had met in 1989, when Mr. Latimer was still alive. He died in 1992. Mr. and Mrs. Walters effectively became part of the Latimer family, and vice-versa. They regarded each other as members of an extended family. Mr. Walters initially busied himself with doing some gardening, decorating and maintenance work. He was not paid for these services though, from time to time, Mrs. Latimer, who on all the evidence was an extremely generous person, made gifts out of gratitude in cash and in kind. It might simply be some groceries, or it might be something more substantial. But there was no relationship between the work being done and any reward. I find that any reward was unsolicited on the Walters’ part.

[27]It would, however, be wrong to give the impression that the Walters were simply doing a few jobs. As I have said, each of the Walters and Mrs. Latimer became part of an extended family. That is how Mrs. Latimer herself described it to some of the witnesses. Mr. Walters was like a son to her. They all went on family outings together. Mrs. Latimer had photographs of the Walters, and their children, around her bungalow. She was, as is not disputed, extremely fond of the Walters’ children. She had none of her own. The Walters (or one of them) would also take her on shopping and other trips.

[28]There is an attendance note of the instructions that were given to the solicitors at the time of the 1998 will. It is an attendance note of Crystal Walker, the lady who ultimately took instructions in relation to the 2004 will as well. I am not going to read it all, but the following appears: "We said that in her previous will she had given a bequest to her relatives. She was adamant that she did not wish any of her relatives to benefit, as they had not been to see her for years, and she said that Mr. and Mrs. Walters had been very kind to her and helpful".

[29]On that basis, the Walters became the residuary beneficiaries. It is noteworthy that Mrs. Walker asked why relatives who had previously been beneficiaries were being excluded. That is the mark of a conscientious probate practitioner satisfying herself that the person who is making the will really knows what she is doing and is properly considering the claims upon her bounty.

[30]Between 1998 and 2004, when the next will was made, a proposal arose under which the property in which Mrs. Latimer lived should be transferred to Mr. Walters. It seems to have arisen at Mrs. Latimer’s suggestion in December 2002. An attendance note of the 16th December is attributed to ‘PA’. This was as I understand it one of the assistants or secretaries for Crystal Walker at her firm. It reads as follows:

‘PA attending Mrs. Annie Latimer, of 21 Ivy Bank, Tilehurst. She said she had made a Will a while back with CW in which she gives everything to Alan Walters. She wants to speak to CW as she does not want to wait until she dies she wants to give him everything now. PA thought she had better speak to CW and she said she would ask her to call her tomorrow. . .’

. A telephone number is then given. The initials “CW” are Crystal Walker’s initials.

[31]There are two significant points there. First, the attendance note recites that everything had been given under the will to Mr. Walters. In fact, it had been given to both Mr. and Mrs. Walters. The explanation for that, in my judgment, is that Mrs. Latimer often referred to Mr. Walters when she meant, on proper reflection, the two of them. She did not see any reason to distinguish between the two. The second point is that the attendance note confirms that what Mrs. Latimer wanted to do was give everything to Alan Walters now, not just the property.

[32]That this was her intention is rather borne out by some of the evidence, which was to the effect that Mrs. Latimer used to tell people that she was just a tenant and everything in the bungalow belonged to Alan.

[33]The proposed gift did not happen. On the 18th December 2002, Crystal Walker spoke to Mrs. Latimer over the telephone. By that time the proposal was narrowed down, so it would appear from the attendance note, to a proposal to transfer the bungalow to Mr. Walters. The following is recorded:

‘We explained that if it was transferred to Alan, he would be able to evict her from the property if he wished, but Mrs. Latimer said that he had been helping her for many years now and that she had told him that she would be transferring the property to him, and she had told him about the gift’

. The attendance note continues:

‘Mrs. Latimer has, to CW’s knowledge, been assisted by Mr. & Mrs. Walters since before 1998 when she did her will’

. That, of course, reflected and confirmed the instructions she had given back in 1998.

[34]Had the gift gone through, it is most unlikely that we would be here today. But it did not go through. Curiously enough, the reason it did not go through was because Mr. Walters was rather troubled about it going through there and then because it might have an effect upon his tax position, or possibly upon his benefits. That was raised on the 12th March 2003, in a meeting at Mrs. Latimer’s home at which were present Sheyi Lawale, another member of the same firm of solicitors, Mrs. Latimer and Mr. Walters.

[35]The following, amongst other things is recorded in the attendance note of that meeting:

‘Mrs. Latimer and Alan Walters both confirmed it was not Mrs. Latimer’s intention to go into a care home and this is why she would like the property transferred to Alan Walters because it was an agreement that for as long as she lives she is kept in the property and only when she dies should she be carried out of the property. In the meantime Alan Walters and his wife will look after her and as reward for this they will be given the house’

. The next paragraph continues: ‘I confirmed to Alan and Mrs. Latimer that her will does set this out and it does give the whole of the Estate to Alan and Karen Walters and therefore we should leave it as it is if Mr. Walters does not want to pay tax on the transfer of the property. I think she has not made any further Will to change the status and I confirm that I will summarise details of our meeting and confirm that she has not given any further instructions to transfer the property to Alan’.

[36]One of the ironies of this case is that the tax advice that Mr. Walters was given appears to have been deficient. There was no basis for supposing that he would pay tax upon the occasion of the transfer to himself, though he might pay tax on any later gain if the property could not be treated as his principal residence. The advice he received (rightly or wrongly) was enough to put him off. I accept his evidence that the principal reason for the transfer not proceeding at that time was tax reasons.

[37]It does not appear that it was contemplated that Mrs. Latimer might change her will, though it is equally the case, as Mr. Walters confirmed in evidence, that at no time did she promise in as many words that she would not. However, it does seem from that attendance note that that was the underlying assumption.

[38]There is nothing more about wills until August 2004, which is when Reverend Samantha Caton came on the scene and contacted Mrs. Crystal Walker at Mrs. Latimer’s request. By this stage (August 2004) Mrs. Latimer was already in a state where she had moderate dementia.

[39]The attendance note of what the Reverend Samantha Caton said to Crystal Walker is dated 17th August 2004. The material part is as follows:

‘We were informed that Alan Walters apparently had been taking prostitutes to Mrs. Latimer’s house, and he had been abusing the lady. Annie Latimer is approximately 90 years of age. Ivybank is a bungalow.’

[40]Other parts of the attendance note recorded that Reverend Caton was going to speak to Mrs. Latimer’s doctor, and that “everyone” was frightened of Mr. Walters, including Mrs. Latimer. Reverend Caton wanted Mrs. Walker to come and see Mrs. Latimer. Mrs. Walker pointed out she could not go to the bungalow unless Mrs. Latimer invited her. Later on the same day there was a further telephone attendance. Mrs. Latimer confirmed that she would like to make an appointment for Crystal Walker to go out and see her.

[41]There are two points that seem to have triggered this appointment. There was the supposed taking of prostitutes to the house and the possibility of abuse. They were raised with Mrs. Latimer when Crystal Walker attended on the 23rd August. There is a very full attendance note of that meeting. I also heard oral evidence from Crystal Walker and from Reverend Caton. I did not get the impression that Crystal Walker had much of an independent recollection, apart from what is in the note. She remembered the incident, but not the detail. So far as Reverend Caton is concerned, her recollection of the detail was very poor. I regard the note as a much more reliable indication of what happened.

[42]The note starts by Mrs. Latimer saying how pleased she was to see Crystal Walker. ‘It was kind of her to call but she did not want us to hurt Alan [Mr. Walters] … We asked why we should wish to hurt Alan. She said that she relied on him to deal with everything for her and that he had been so helpful over the years and also he had been so kind when her husband had died. We asked why Mrs. Latimer had sent for us. She broke down in tears. Again she reiterated it was kind of us to come. We asked if Alan Walters of 22 Five Acres, Tilehurst, Reading had been unkind to Mrs. Latimer or had been violent towards her, and Annie Latimer insisted that he had not. Mrs. Latimer did not have any bruises that showed that indeed Mr. Walters had been cruel to her. She said that she relied on Mr. Walters completely but she did say that she had been a little bit upset because he had brought a prostitute into the house and the prostitute sat there looking at all her items and had taken things. We asked what things she had taken and she said she did not know but she had been told by Mr. Walters that apparently his lady friend whom he referred to according to Mrs. Latimer as a prostitute had taken large coffee canisters from a local supermarket. CW thought that perhaps this had been exaggerated as apparently Mrs. Latimer indicated that she would take from the supermarket ten canisters which Crystal Walker felt someone may have noticed’.

[43]I interpose that Mr Walters’ evidence (which I accept) was that the alleged prostitute was a disabled friend of his, who had become homeless and who he had allowed unwisely to sleep in the garage with her boyfriend. The disability she suffered from was only having one (or one useful) arm. It is a little difficult, unless she was in cahoots with her boyfriend, to imagine her, whatever her profession, walking out with ten large coffee canisters perched upon one arm.

[44]I also note that all that Mrs. Latimer was saying at that stage was that she was a little bit upset.

[45]The attendance note continues:

‘Mrs. Latimer appeared to be lucid and she said that she remembered me and that I had called at the bungalow back in 1998’

. Omitting unimportant points, the attendance note continues:

‘It was apparent Annie Latimer was very distressed and she had passed her 90th birthday’

. She actually had not. She was 89. ‘We also gathered from her that there was no one who could help her except Alan. It was therefore apparently obvious that only Alan would do anything for her and she was reliant on this man. CW suggested that perhaps things were getting too much for her and she might like to sell her property and move into a nursing home. At this Mrs. Latimer broke down in tears again and said she wished to stay at her home. She then mentioned that Mr. Walters’ wife had taken some of her jewellery. Later on Mrs. Latimer informed CW that she had a safe and CW together with Reverend Samantha Caton went to her bedroom and eventually located the safe. Annie Latimer was adamant that the safe should be taken out so that we could look into it carefully. We did so although this involved taking out other items that were on top of the safe which all took time. Opening the safe when we handed Mrs. Latimer her purse and in this there was all her jewellery. There was also a valuation which apparently Mrs. Walters had had done with Jacobs the jewellers. We asked why the valuation was with the jewellery and Annie Latimer informed us that she had requested Mr. Walters to value the jewellery. The jewellery appeared to be intact, and the jewellery was put back into the safe and back into the wardrobe. Annie then said there were items of jewellery missing. When we asked her what items she did not know’.

[46]It is that which prompted the comment, which I mentioned earlier, that it seemed to Crystal Walker that Annie Latimer’s mental condition was deteriorating. The note adds: ‘… but at the present time she was aware of her faculties’.

[47]The note continues:

‘The only evidence of prostitution at the garage was we understood a neighbour had seen the situation and had informed the police and the police had been called but whether anybody had been arrested or whether in fact this was true was another matter. Also with regard to any possibility of jewellery going missing it would appear that the jewellery was still in the safe. In the safe was also a copy of her latest Will. After one hour of Mrs. Latimer crying and insistent that she did not wish Alan Walters to be upset, we asked Mrs Latimer to confirm that:- 1. Alan Walters had not abused her but he had been a little bit cross about something which we could not make out what it was. 2. She said she did not wish Alan upset in any way. 3. She said although she had asked the Reverend Caton to request CW to call she did not wish to alter her Will. She did at one point say she did want to amend her Will and we asked her what she wanted to do and she said she did not know. It was therefore left that the will should remain as it was. CW suggested that if perhaps Mrs. Latimer wished to move from the property or her mental state deteriorated that CW should be contacted’

. The note also records:

‘It would appear that Mr. Walters collects her pension, does her shopping, but does not have an EPA [enduring power of attorney]’

. The time recorded, including travelling, was two hours. It was a full meeting.

[48]It is apparent from the attendance note, which I have thought important to read almost in full, that Mrs. Latimer was all over the place. Nevertheless, there are a number of allegations which ought to be addressed, because they may be taken to have influenced her thinking when she came to change her will.

[49]It is noteworthy that although the attendance note records that Mr. Walters had been a little bit cross about something, which was unidentified, Mrs Latimer specifically denied that he had abused her. There is other contemporaneous evidence of friends and acquaintances to the effect that at this period Mrs. Latimer had developed a fear of Mr. Walters. She was also frightened that he might move her into a nursing home. It was very important to Mrs. Latimer that she should not go to a nursing home. This was her greatest fear. Her wish was to die in her own home – 21 Ivy Bank. Sadly, she did not manage that. In the end she died in hospital. She never did move to a nursing home, however.

[50]Although she expressed these concerns to others, including Mr. and Mrs. Smee, whom she told that Mr. Walters lashed out at her, I find that her concerns were unjustified, and that the allegations of physical and mental abuse were not true. Mr. Walters denied them. Mrs. Latimer, when she met Crystal Walker in August 2004, would not confirm them, though she was certainly (it might be said) somewhat confused. I accept Mr. Walters’ denial.

[51]Mr. Smee (and in this respect he was supported by another witness, Karen Franklin) says he had seen bruises on Mrs. Latimer in January 2004. Mrs. Latimer was by this stage prone to falls. Mrs. Franklin also spoke of seeing bruises. Indeed, she gave evidence as to an occasion when Mrs. Latimer had fallen in her presence. Clearly, any bruising could have been referable to a fall. Both Mr. Smee and Mrs. Franklin nevertheless thought that the marks on Mrs. Latimer’s arms were grab marks. There was also a bruise on her hairline which was consistent with a fall.

[52]I find that Mr. Walters did not abuse Mrs Latimer physically. He was not responsible for the bruises in question. I am not prepared to accept the non-expert analysis of the nature of the bruising and note that this incident or these incidents (if separate) did not trigger any action at the time, whether by the social services (who were in regular attendance) or the police (with whom Mr. Smee, himself a former policeman, discussed Mrs Latimer’s position informally). It is fair to say that Mrs. Latimer would not say what had caused the bruising at the time, though it is said by Mrs. Franklin that Mrs. Latimer, when asked if Alan had hit her, simply put her head down and nodded. It is also said by Mr. Smee that, when he was discussing matters with Mrs Latimer later (in September 2004), she confirmed that the bruising which he had seen earlier was indeed caused by Alan.

[53]If, as I am inclined to think is the case, Mrs. Latimer did nod in the way suggested and say those things, she was mistaken and confused. Moreover, I doubt very much whether in September 2004 she had any clear recollection of whatever the incident was that had occurred in January 2004. In my judgment, her references to being abused by Mr. Walters are referable to her own state of moderate dementia which caused her to misinterpret and, indeed, invent acts of violence on the part of Mr. Walters, with which he cannot fairly be charged.

[54]In reaching that conclusion, I do not overlook the evidence that Mr. Walters had two fairly recent convictions for harassment, including one in August 2004. He had a dispute with a neighbour, or neighbours, over car parking. He must have overreacted because he was taken off to court twice. All I can say is that the circumstances of those incidents were very different, so far as the evidence has come out, from anything that is alleged in relation to Mrs. Latimer.

[55]I am satisfied that Mr. Walters genuinely cared for Mrs. Latimer over a number of years. I do not believe that he would have contemplated physically abusing her. I do consider that in the last few months of her life he may, as this attendance note of 23rd August suggests, have got a little cross about some thing or things. Looking after an 89 year old lady in the early stages of dementia, or indeed even without any onset of dementia, is not easy. She was, in addition to being confused and forgetful, becoming increasingly immobile and frail. She could not get her stockings on without help and was finding it increasingly difficult to walk, or, latterly, even stand. Towards the end she was suffering from diarrhoea and she was unable to attend to her own cleanliness. The place was deteriorating because of that. If Mr Walters did on occasions show some irritation and frustration at Mrs Latimer’s deteriorating position, that would not be surprising. All of that is a long way from establishing physical or verbal abuse.

[56]Mr. Walters told me, and I accept, that he was receiving treatment for depression. It takes no great stretch of the imagination to accept that this was at least in part (as he says it was) referable to the strains of looking after Mrs. Latimer.

[57]I refer now to Mrs. Latimer’s fear that Mr. Walters would put her into a home. There is evidence (including the attendance note of 21st October to which I refer below) that she thought Mr Walters was threatening this. I find that Mr Walters never made that threat. Mr. Walters gave evidence that he did suggest that Mrs. Latimer could attend a day centre. She would have none of it. She equated a day centre with a nursing home. Again, I regret to say that Mrs. Latimer, not through malice but through misunderstanding and miscomprehension, made the idea of a threatened move to a nursing home up.

[58]The attendance note of the 23rd August 2004, as I have noted, records that Mrs. Latimer broke down in tears when it was suggested to her that things were getting too much for her and she might like to sell her property and move into a nursing home. This was, as I have said, her greatest fear though I am bound to say, from what I know of her condition in her last few months, the suggestion was a humanely sensible one and one which any genuinely caring person would have considered.

[59]I mention at this point that on 21st October 2004, the day on which the will in favour of the Smees was executed, Crystal Walker’s attendance note of that date records:

‘Annie Latimer was insistent that she did not wish any post to go to her as she was petrified of Alan Walters who apparently had been threatening to put her into a home and had been causing her a lot of distress’

. Although I have no doubt that the fear of being put into a home was a strong motivating factor behind her decision to change her will, the idea that Mr Walters was threatening this was wholly without foundation. It was the product of the moderate dementia to which I have referred, as was the distress to which the attendance note alludes.

[60]I return now to consider other aspects of the earlier attendance note of 23rd August 2004.

[61]So far as the reference to prostitutes in that note is concerned, the episode with Mr. Walters’ friend, whom he allowed to stay in the garage, was a strange one. He did not ask Mrs. Latimer in advance for permission to do that. Nevertheless, he himself had had exclusive use of the garage since some time in the 1990s. Mrs. Latimer had not used it at all. It was for all practical purposes dedicated to his own exclusive use, where he kept his car, tools and other things such as a tent. Mr. Walters apparently enjoyed camping out in the garden on occasions. There is some evidence that Mrs. Latimer may have thought that prostitutes were visiting the tent. There was no truth in that.

[62]As regards the lady who was in the garage with her boyfriend, there had on one evening apparently been an altercation, it would appear between her and her boyfriend. She had screamed, “Leave me alone”, and a Mr. Giles had called the police. Shortly thereafter Alan Walters was approached by various neighbours and urged to remove the lady in question, and her boyfriend, which he did.

[63]The lady in question, I find as a fact, was not a prostitute. She was someone who had become homeless and who Mr. Walters was seeking to do a favour for.

[64]It is said that Mr. Walters bragged to people like Mr. McDonald, a neighbour, and Mrs. Franklin, a hairdresser who attended Mrs Latimer at her home, about his own use of prostitutes, though he denied that in the witness box. I believe he did from time to time say things of that kind to shock. It may be that he did mix with prostitutes, but he did not bring them home, whether to the garage, the tent, or the bungalow itself. Mrs. Latimer had no reason to suppose that he did.

[65]Following the police incident, the whole of the neighbourhood appears to have been up in arms the next day. The lady and her boyfriend had on one version of the street gossip become two prostitutes and a drug dealer. The police appear however to have taken no further action.

[66]Mr. Walters eventually procured for the lady in question – who was identified in evidence but, given the unpleasant nature of the allegations, I do not propose to name her – a place at the YMCA in Oxford, where it was, as it happens, known that occasionally prostitutes would stay. There had been some recent publicity about it. But that did not make this lady a prostitute. She was not.

[67]It is fair to say, as I have said, that other neighbours – indeed it would appear, on one view of the evidence, the whole Crescent – were convinced that there were prostitutes in the garage, but the rest of the Crescent were not making important decisions regarding the disposition of their respective estates on the basis of rumours and gossip. Insofar as the prostitute allegation had any effect on Mrs. Latimer’s ultimate decision to make a new will, the medical evidence indicates that she may have been unable to distinguish gossip from fact. In my judgment, she was unable to do so in this case, because of her mental condition.

[68]What is more, in her own mind the allegations of prostitutes became embellished. As the attendance note of 23rd August records, she thought the lady in question (said to be a prostitute) was “taking things”, apparently from the bungalow. Assuming this to be a reference to the lady staying in the garage, she was not taking anything, nor was anyone else. Mr. Walters is also said (according to the same note) to have told Mrs. Latimer both that the lady in question was a prostitute and that she had taken large coffee canisters from a local supermarket. None of this was true, and Mr. Walters said nothing of the sort. Mr. Walter’s evidence (which I accept) was that he had bought the coffee as a bulk purchase. Mrs. Latimer’s contrary version was imaginary. It is something which she must have got wrong in her confused state.

[69]There is also evidence, as I have said, that Mrs. Latimer was telling people or hinting that there were prostitutes in the tent, when there were not. She was also saying that prostitutes came in and handled all her porcelain and did their washing. Mr. Walters’ evidence (which I accept) is that the lady in the garage, who he assumed (as I did) was the person to whom Mrs. Latimer was referring, came in to the bungalow on one occasion only. There is no evidence that any other lady acquaintances of his came in.

[70]It seems to me that the degree of concern that Mrs. Latimer may from time to time have felt on this point was the product to at least a significant part of her failing cognitive faculties.

[71]I should make it plain that when Mrs. Latimer came to change her will I doubt very much whether this allegation (which by then was in the past) had any significant bearing upon her decision. Even the attendance note of the 23rd August stated merely that she was a little bit upset. The later attendance notes of the solicitors do not mention prostitutes.

[72]There was other evidence of inappropriate sexual behaviour on Mr. Walters’ part, which did not get a mention in the August attendance note or, indeed, in any of the other attendance notes with the solicitors. This evidence derived primarily from Karen Franklin, Mrs. Latimer’s hairdresser, to the effect that Mr. Walters exposed himself both to her (when she attended Mrs. Latimer to do her hair) and, on at least one occasion, to Mrs. Latimer herself. Mrs. Franklin’s evidence was that Mr. Walters wandered into the kitchen with a towel around him, which fell to the ground, Mrs. Franklin then urging him to put it away. I do not think she was referring to the towel. Mr. Walters appeared to deny Mrs. Franklin’s description of the incident, but not the incident itself. I am inclined to accept Mrs. Franklin’s recollection of this incident, because it is supported by a diary entry of April 2003, which refers to Mr. Walters exposing himself “again”.

[73]Significantly, April 2003 was a time when Mrs. Latimer was consistently talking highly and warmly of the Walters. The totality of the evidence points strongly towards that conclusion. There is one exception in the evidence of Mrs. Webb, a cousin, who seemed to think that Mr. and Mrs. Walters had been making Mrs. Latimer’s life a misery for the last two years of her life. However, she also gave evidence to the effect that she thought the Smees had been acting as Mrs. Latimer’s carers for the last two years of her life, which they themselves confirmed was certainly not the case. I did not find Mrs. Webb a convincing witness on this matter. She also was frail and elderly, and I felt that her evidence, though firmly given, was not entirely reliable on detail.

[74]Accordingly, it is significant that at the time when this exposure is first said to have happened, Mrs. Latimer was apparently untroubled by it. Indeed, Karen Franklin’s evidence was that Mrs. Latimer’s reaction, when the towel dropped in the kitchen, was, “Oh, Alan’s always doing that”. She confirmed that it was not something which troubled her (Mrs. Latimer), though it clearly and understandably troubled Mrs. Franklin.

[75]There was also an occasion when Mrs. Franklin went into the bathroom to find Mr. Walters in the bath. This she found somewhat shocking. Mrs. Franklin went, as a rule, to the property at the same time every week, and Mr. Walters would know that. I find it somewhat surprising that he would choose to take a bath at the time when he knew there was another lady in the house who would need to access the bathroom for hairdressing purposes.

[76]Mr. Walters also gave corroborative evidence of an incident when he was found in the bathroom in a state of undress by a nursing visitor. There was another such incident concerning Karen Franklin, to which I refer later.

[77]However, despite the weirdness (as I think it can fairly be called) of this conduct, it is not something which seems to have troubled Mrs. Latimer. She was a devout Christian and had high moral standards, but she was also a Christian lady who adopted the Christian virtues of love, charity and forgiveness. Mr. Walters also told me (which I accept) that, though religious, she was broad-minded. I am sure she would have recognised that Mr. Walters was far from perfect in his personal life but he had nonetheless, as she continually said, over many years been very good to her, as had Mrs. Walters. She was genuinely grateful. Mr. Walters did not turn into a different person in the last year of her life, She became frightened of her situation in the last year of her life (especially of ending up in a nursing home) because she did not fully understand the situation which she was in, both physically and financially, and she was misunderstanding events around her.

[78]I turn to the other allegation in the attendance note of 23rd August of missing jewellery. There is no doubt that, as of that date, this was a point which was apparently troubling Mrs. Latimer. As that note records, Mrs. Latimer was not able to say what items of jewellery were missing. She said she did not know, even though she examined her jewellery herself in the presence of 2 witnesses. I am inclined to the view that there was no missing jewellery.

[79]Mr. Smee (supported by Mrs. Smee) gave evidence of a five-piece diamond ring and a solitaire ring which he says he had seen some years before, which is no longer among her jewellery. I am a little doubtful that the Smees should have such a precise recollection of the details of rings that had only been seen some years before. Whatever the position was some years previously, the Walters were adamant that no jewellery that they knew of was missing. I accept their evidence. Whether or not the Smees were wrong about the earlier rings, or whether or not Mrs. Latimer disposed of them on some other occasion, or lent them to someone, I do not know. I do not doubt that the Smees were truthful when they referred to remembering two rings. They may have been mistaken. They may not. Whatever the position, it would be wrong to leap to the conclusion that Mrs. Walters had therefore been stealing. She had not and Mrs. Latimer had no basis that I can see for making the allegation.

[80]There was an occasion when Mrs. Walters took a brooch of Mrs. Latimer’s away for valuation. Mrs. Walters had also been given, as is not disputed, a very valuable ring by Mrs. Latimer as recently as Christmas 2003, which I consider to be a reflection of the high regard that Mrs. Latimer at least then had for Mrs. Walters. There is a possibility that Mrs. Latimer forgot that the brooch had gone for a valuation, or that she had given a ring to Mrs. Walters, but that does not explain the conundrum of the two rings to which the Smees refer. It is not suggested by anyone that the ring that was given to Mrs. Walters was one of the rings the Smees remembered.

[81]In September 2004, the Smees started to make more regular visits to Mrs. Latimer. They were concerned at Mrs. Latimer’s deteriorating condition, by which I mean (so far as they were concerned) her deteriorating physical condition. They were also concerned at the state of the property. It was becoming more difficult to look after Mrs. Latimer. The practice was that Mrs. Walters would attend once a week for two hours. It was not particularly convenient for her because she was also working and had to fit that round her work commitments. She would also do some cooking for Mrs. Latimer.

[82]Mr. Walters was at the bungalow on a daily basis. He had in fact been staying there three to five nights a week from, at the latest, January 2003. There is evidence that he had also been staying there in 2002, because there is a rent book in which Mrs. Latimer acknowledged receipt of rent. Mr. Walters was subjected to searching cross-examination at this point of his evidence, but he insisted that he had indeed paid Mrs. Latimer rent over that six-month period in the amounts indicated in the rent book. I am inclined to believe him largely because Mrs. Latimer acknowledged receipt, and she was regarded by everyone as a lady who was essentially truthful. If she had not received that rent I would be driven to the conclusion that she was indulging in some sort of fraud. The purpose of the rental arrangement was to try to obtain housing benefit from the Local Authority. This resulted in snooping enquiries from the local authority wondering if she was having some sort of physical relationship with Mr. Walters; whether there was something more to it than just being a carer or lodger. This, naturally enough, upset her. The application for housing benefit was in the end not pursued.

[83]I do not consider that Mrs. Latimer would have acknowledged receipt of rent that she had not received. She was much too moral and high-minded a lady for that.

[84]I return to the involvement of the Smees from and after September 2004.

[85]Despite the daily care that Mr. Walters was giving Mrs. Latimer, and the fact that he was there often overnight, Mrs. Latimer was not becoming any easier to look after, as I have already noted. The Smees, for perfectly sound and charitable reasons, decided to help. Mrs. Smee would cook and clean as, to an extent, Mrs. Walters had been doing hitherto. The result, however, was that there was an unpleasant relationship between the Smees and the Walters because the Walters felt unwanted by the Smees, as indeed they were. I do not consider there is any secret to the fact that Mr. and Mrs. Smee were not impressed with Mr. and Mrs. Walters.

[86]In September 2004, Mr. and Mrs. Smee had several conversations with Mrs. Latimer. At that stage Mrs. Latimer told them that she was very unhappy with the Walters and wished she had never been involved with them. The things she told them included that Alan had a vicious temper and had lashed out at her and pushed her about on several occasions. I have already rejected that allegation. She said that Alan had a sex problem and the prostitute he had brought into the bungalow had handled her Royal Dalton figures and other ornaments. I have rejected the suggestion that Mr. Walters brought any prostitute into the property. Whether the lady he did bring in on one occasion (who was not a prostitute) handled her Royal Doulton figures is not a matter of great moment. There is no suggestion that she damaged them. I have also rejected the allegation that she “took things” but this allegation does not appear to have been repeated to Mr. and Mrs. Smee.

[87]With regards to whether or not Mr. Walters had a sex problem, there was, in addition to the exposure allegations, some evidence that he would occasionally make inappropriate comments in front of Mrs. Latimer, but that (to the extent that it occurred) had also had gone on for some time and was not something which earlier, before the onset of dementia, appears to have troubled Mrs. Latimer.

[88]Mr. and Mrs. Smee also ascertained that Mrs. Latimer was worried about her finances and missing jewellery, though at that stage she did not elaborate further. It is recorded that Mrs. Latimer said that Alan often called her a “dirty old woman”, and had told her that he would get her out of the bungalow any time he wished. The latter part, of course, would have been very upsetting, if true.

[89]I am prepared to accept that when some of the accidents that Mrs. Latimer suffered from latterly occurred, when her standards of cleanliness and food care fell, this might have excited some comment from Mr. Walters who, as I have said, might have got cross with her on occasions. I do not accept, however (as I have already found) that he ever threatened, even inferentially, to get her out of the bungalow.

[90]On this occasion, in September, Mrs. Latimer also mentioned to the Smees that she had been seeing little of Karen Walters and described her as “loathsome and grabbing”. I find that surprising for someone to whom Mrs. Latimer had voluntarily, without any solicitation whatsoever, given a valuable ring the previous Christmas. I consider that this is a reflection of Mrs. Latimer’s confusion as the dementia set in.

[91]It is true that Mrs. Latimer was seeing less of Karen Walters then. Apart from the fact that Karen Walters was busy at home and at work, she did not feel welcome around the Smees.

[92]From the 14th October 2004, Mr. Smee, who is a former police constable, started taking notes. It was put to him that his notebook was the equivalent of a constable’s notebook, which, as it was not in proper form, must have been doctored. I do not consider that this suggestion bears serious muster. The notes were made for his own purposes, and took no particular form.

[93]The 14th October may have been significant because, on the 19th October by the latest, Mr. Smee had made an appointment with Crystal Walker about Mrs. Latimer’s will. He had made that appointment for Mrs. Latimer. He had done that at her request which, it is clear from his witness statement, had been made to him over several days. I infer that the request had been made by the time that he started taking his notes on the 14th October. By that time Mrs. Latimer had told Mr. Smee that she no longer wanted the Walters to have her bungalow. This (as the Smees knew) meant that she would have to change her will. Mrs. Latimer also highlighted that Alan took a cash card, saying that she needed money, but he never returned with any money for her. He charged her £10 to collect her pension and was frequently taking cash from her handbag. The exposure allegation to herself and her hairdresser was also mentioned, as was Mr. Walters’ alleged responsibility for the bruising.

[94]I find that, with the exception of the exposure incidents to which I have referred, Mrs. Latimer had in relation to all these complaints got hold of the wrong end of the stick.

[95]Mr. Smee started to monitor the cash. He was not satisfied with the results. Mrs. Latimer was receiving £87 per week pension, but it was rarely getting into her bag in full. Sometimes the amount seemed alarmingly low. What is more, there were withdrawals which were made by Mr. Walters by the use of Mrs. Latimer’s cash card. He subsequently ascertained that they came to a substantial amount, namely £3,960 between February 2004 and October 2004, there being 36 separate transactions.

[96]Mr. Walters’ evidence is that he was responsible for much of the bill paying. In 2004 very little was paid by way of cheque, standing order or direct debit. Therefore, it is not surprising that cash amounts were disbursed on one thing or another. The allegations were made quite late in the day, and were not explored in any detail.

[97]Mr. Walters’ solicitor has, by reference to the evidence that has been disclosed from the Bristol & West Building Society, consisting of Mrs. Latimer’s passbook and statements, analysed the expenditure that occurred. It has demonstrated to my satisfaction that the average monthly expenditure in 2004 was significantly less than the average monthly expenditure in 2003.

[98]It is, of course, possible that Mr. Walters had been ripping off Mrs. Latimer for years, but I find that that was not the case. Mrs. Latimer declined mentally in 2004. She would undoubtedly have noticed any disappearances earlier than that. The fact that she was living on less in 2004 than she was in 2003, taking the pension and the withdrawals together, rebuts the allegation that Mr. Walters was stealing her money. Of course Mr. Walters had access to her cash card, but he used to bring it back. He used to bring it back with such cash as was left after he had disbursed necessary expenses. He denied that he charged £10 for collecting her pension. He denied that he frequently took cash from her handbag. He denied regularly reading her mail (another allegation made by Mrs. Latimer to Mr. Smee) though he did check on the bills. His own mail was also delivered to the bungalow, and he opened and read that. I accept all these denials and explanations.

[99]As regards the allegations of exposure, I have dealt with most of them, but there was one further incident alleged to have occurred at around this time. According to the notes Mr. Smee made, there was an exposure on the 21st October, the very day on which the October will was executed. Mrs. Franklin gave evidence (whether she was referring to this occasion or some earlier occasion is not entirely clear, but the impression was that she was talking about this later occasion) that she walked by the bathroom and saw Mr. Walters in a state of undress with an erection, looking pleased with himself. Mr. Walters denied this. I am inclined to the view that Mrs. Franklin did see the incident in question, but whether Mr. Walters actually had an erection is not entirely clear because Mrs. Franklin explained that she did not hang around to absorb the details. She moved on quickly.

[100]However that may be, I do not consider that this incident (or the previous similar incidents) had any significant impact on the decision that Mrs. Latimer made to change her will. These incidents did not even merit a mention when she went to see her solicitor. The latest incident was noted by Mr. Smee as something Mrs. Latimer mentioned afterwards.

[101]Mr. Smee did make an appointment, as I have said, with Mrs. Latimer’s solicitors in October 2004, and he took Mrs. Latimer to see Crystal Walker. It was asserted, in relation to the attendance note that exists of that meeting (which took place on 20th October 2004) that there had first been a telephone attendance at which Mr. Smee had set the ground, as it were. It is said that Mr. Smee must have known what was going on. It was certainly evident from Crystal Walker’s evidence that she understood that the meeting that was being proposed by Mr. Smee was to change the will, as she told him that the previous meeting in August (which was also about changing the will) had come to nothing. Mr. and Mrs. Smee merely said this meeting was “about” the will. However, they must have realised, as Mr. Smee did not really dispute when I suggested it to him, that the likelihood was that the will would be changed. It may be that they entertained some hope that they would to a greater or lesser extent be the object of Mrs. Latimer’s bounty. However, I do not think they discussed this in any detail with Mrs. Latimer in advance, though I am inclined to believe that she would certainly have said that she was changing her will because she had after all told them that she no longer wished Mr. Walters to have the property. She may have hinted that there might be something in it for them.

[102]So far as the attendance note of the 20th October 2004 is concerned, I accept it as a broadly accurate note, though some of the information – that is to say, the actual address and postcode of Mr. and Mrs. Smee – were given after the meeting by Mr. Smee, which Crystal Walker has perfectly sensibly embodied as part of the note of the meeting. Crystal Walker initially saw Mrs. Latimer alone.

[103]I do not regard there being anything sinister about the fact that there is no attendance note of the call to make the appointment. Nor do I regard it as likely that Crystal Walker spoke to Mrs. Latimer about it, as suggested by Mr. Darton (who appeared for Mr. Waters). He contrasted the position with what had happened in August 2004, when Crystal Walker sought express confirmation from Mrs. Latimer herself before making the appointment. She needed to get that confirmation in August because she was being asked to go to Mrs. Latimer’s home. Here, however, Mr. Smee was bringing Mrs. Latimer in to the office.

[104]The 20th October note records (as the reason for changing her earlier will) merely that there had been problems with Alan Walters and that Mrs. Latimer did not wish him (or his wife) to be her executor and did not wish her residuary estate to pass to him. The note then deals with a proposed enduring power of attorney, which Crystal Walker says was something she raised of her own motion. The note also records that there appeared to be problems with a certain friend of Mrs. Latimer, as there were vast amounts being withdrawn from her bank account and this did not correspond with the outgoings that she incurred for the property.

[105]It is not clear whether the reference to a certain friend of Mrs. Latimer came from Mrs. Latimer or Mr. Smee. Crystal Walker gave the impression in her evidence that this was all an attendance of her discussion with Mrs. Latimer, who she saw separately. I do not think, at the end of the day, it matters. The fact of the matter is that, for the reasons I have given, I consider Mrs. Latimer was wrong to suspect Mr. Walters of withdrawing vast amounts from her bank account. Whether this was passed on by Mr. Smee as information which he had received from Mrs. Latimer, and which his own early investigations appeared to him to confirm, or whether this came from Mrs. Latimer direct does not seem to me to matter.

[106]The will was duly prepared and executed. Crystal Walker said in her evidence that Mrs. Latimer was lucid, describing her as literally perfect. She said that she was the same person she met in 1998 and completely different from the person she had met in August, some six weeks earlier. I did consider Mrs. Walker’s evidence to be defensive though, and understandably so. She had herself recorded in her attendance note some six weeks earlier that Mrs. Latimer’s mental condition was deteriorating. Though she may have appeared to be lucid in October, that did not mean that the dispositions she was making were necessarily rational. I am surprised that Mrs. Walker did not enquire further as to why the previous will was being changed. That, after all, was the self-same enquiry she had made in 1998, when other beneficiaries were being cut out, and when Mrs. Latimer was perfectly lucid. I was under the impression that she was all too happy to assume that what she had originally been told six weeks before by Reverend Caton was the truth, and that Mrs. Latimer had previously been remaining quiet in order to protect Mr. Walters. In my judgment, Mrs. Latimer was ill-served on this occasion by Mrs. Walker, who should have looked into the matter, as an experienced probate clerk, rather more cautiously in the light of the principles of law and practice with which she was well acquainted. I do not consider that the fact that Mrs. Latimer appeared to be lucid on the day absolved her from that duty.

[107]The will was witnessed both by Crystal Walker, and a colleague of hers, Mr. Ironside. Mr. Ironside’s evidence added nothing of moment to Crystal Walker’s evidence. He must have assumed (as he was entitled to do) that Crystal Walker had done her job properly. He did not himself take any steps to find out why Mrs. Latimer was making the dispositions that she was making, and why she was cutting out other beneficiaries. I do not say that he should have made those enquiries. Those were the enquiries I would have expected Crystal Walker to make.

[108]I am also surprised, given the record that Crystal Walker made in her previous attendance note of the deteriorating mental condition, that she did not enlist the services of a doctor to assess Mrs. Latimer’s medical condition formally. Had she done so, who knows where we might be today?

[109]However that may be, the will was duly executed. There was, as I have noted, the comment in the attendance note of 21st October 2004 that Mrs. Latimer was petrified of Alan Walters, who had been threatening to put her into a home. There is also another very odd comment towards the end of the same note, which is as follows:

‘We were also asked if we would ring the Reverend Samantha Caton … as Annie Latimer thought that she may have given the jewellery to Samantha for safe-keeping. We were asked if we could tactfully ask the Reverend if Annie had actually given her the jewellery and also to inform her that Geoffrey Smee was now dealing with her affairs. Geoffrey Smee also confirmed that he would like us to inform Samantha of the situation as she had been so concerned about Mrs. Latimer back in August due to Mr. Walters’ behaviour’

. Mrs. Walker said she would, though nothing seems to have come of the jewellery inquiry.

[110]It will be remembered that on the 23rd August the matter of the jewellery was looked into with some care by Mrs. Walker. It appeared to be intact. One might have thought that that would be the end of the matter. Nonetheless, Mrs. Latimer was still confused in the sense that she did not know what she has done with it and wanted Mrs. Walker to ask if she had given it to the very person who, only six weeks previously, had investigated the jewellery situation with Mrs. Walker in her presence. That, to my mind, indicates that, despite the evidence that she was entirely lucid, she was not quite all there in that she was still forgetful and confused.

[111]What this attendance note also indicates is that Mrs. Latimer was not, at least on the day when she executed her will, still making any allegations against Mrs. Walters about stealing her jewellery. Likewise, the previous attendance note of 20th October records that there had been problems with Mr. Walters, but made no direct complaint about Mrs. Walters.

[112]At the end of the day, I doubt very much whether the jewellery allegation had any effect upon Mrs. Latimer’s behaviour in making the October 2004 will, save to the extent that her earlier suspicions may have served as drip-feed for the poisoning of her mind which built up over time.

[113]Certain matters happened after the execution of the will. On the 2nd November, an enduring power of attorney having also been executed, the news that Mr. Walters was no longer in charge of Mrs. Latimer’s financial affairs was brought to his and Mrs. Walters’ attention. He was deeply upset about this and he became angry. There was an altercation with Mr. Smee, and some pushing and shoving (at least) which caused some discomfort to Mr. Smee. I am satisfied that, in his anger, Mr. Walters made contact with Mr. Smee, but I do not think there was a serious assault. I accept Mr. and Mrs. Smee’s evidence on this incident, rather than Mr. and Mrs. Walters’ evidence. However, I do not consider it relevant to the issues I have to decide. Mr. Walters had just received the body-blow information about the enduring power of attorney. He must have felt sorely insulted as the person who had, until then, apparently been the closest person in the world to Mrs. Latimer. He later apologised to Mr. Smee.

[114]There are also a number of notes which Mr. Smee continued to make thereafter. Mr. Smee approached this matter with a great deal of suspicion towards Mr. Walters. On the basis of what he had been told by Mrs. Latimer, I can understand that. After the 21st October, he knew that he and his wife were the beneficiaries under the will. He tells me that he was told this for the first time, and this is confirmed by Mrs. Smee, by Mrs. Latimer in the car back, after the will had been executed. As I have said, I consider that they may have had an inkling of that beforehand, but nothing more than an inkling or hope. That was certainly the first time they knew it. I accept their evidence. They did not put Mrs. Latimer up to it in any way.

[115]Nevertheless, the diary entries after the 21st October had, in my judgment, as part of their object building a case against Mr. and Mrs. Walters in case there should be some challenge to the new will. I cannot think of any other reason for continuing to make those notes. I regret to say that some of those notes go a lot further than the witness statements that have been made by the witnesses from whom those notes were taken. I refer in particular to the notes of conversations with Karen Franklin and Anthony John McDonnell. They both gave witness statements supportive of the Smees’ case, but neither of them went as far as they appear to have gone when Mr. Smee was taking notes. For that reason I approach those notes with some caution. In any event, what happened after the 21st October is not really relevant to anything I have to decide, save insofar as it confirms or otherwise sheds light on any facts which may or may not have existed on or prior to the 21st October.

[116]I stand back and summarise the position as at the 21st October.

[117]It seems to me that the following factors may to a greater or lesser extent have troubled Mrs. Latimer and caused her to change her will:• First, that Mr. Walters was abusing her physically. I have rejected that. I can see no basis upon which she can have thought that.

• Second, that he was abusing her verbally and, in particular, threatening to turn her out of her property into a nursing home. I have rejected that, though there is plenty of evidence that that is what Mrs. Latimer actually thought, but she had no basis for thinking that.

• Third, that he was stealing her money. He was not. The evidence is that Mrs. Latimer was a very generous person. It was important, as Mr. Smee did, to control her expenditure. It does not follow from that that Mr. Walters was stealing her money. He was not.

• Fourth, that Mrs. Walters had been stealing her jewellery. As I have said, this does not seem to have been something present in her mind when she came to change the will because polite enquiries were being made or sought from Reverend Caton through Crystal Walker. However, she had no basis, in my judgment, for considering that Karen Walters had stolen her jewellery, and she had not.

• Fifth, that Mr. Walters was bringing prostitutes to the house. I have found that the lady who stayed in the garage was not a prostitute, and that the incident with her boyfriend was blown up out of all proportion. Mrs. Latimer had no basis for believing the street gossip about prostitutes, but was incapable because of her dementia of readily separating fact from gossip. She also embellished the allegations in her own mind, wrongly claiming that Mr. Walter’s friend had been “taking things” and wrongly attributing to Mr. Walters the statements that his friend was a prostitute, and that she had taken coffee canisters from the supermarket. The supposed goings-on in the tent were an additional embellishment, being the product of her dementia, having no basis in fact.

• Sixth, inappropriate sexual behaviour by words and conduct. I have found that over many years there were such occasions, but this was something which did not trouble Mrs. Latimer before the onset of dementia and had an insignificant effect upon her decision as to how to dispose of her estate.

• There is one further matter which I should consider. As I have said, Mrs. Webb’s evidence was that she was told by Mrs. Latimer that the Smees had been caring for her for two years, when they had not. If Mrs. Latimer really thought that, which no-one suggests was true, that might suggest that she had an exaggerated sense of the Smees’ claims on her bounty, and a correspondingly diminished sense of the Walters’ claims. However, I do not think Mrs. Latimer said that. I believe, as previously mentioned, that Mrs. Webb got hold of the wrong end of the stick.

[118]The first 3 factors summarised above, (physical and mental abuse, including the threat of a nursing home, and stealing her money) had, either individually or cumulatively, an important impact on Mrs. Latimer’s disillusionment with the Walters and her decision to make a new will. The fourth factor (concerning the jewellery) had a lesser impact, and had ceased to have an immediate impact in October 2004. The fifth factor (prostitutes) is unlikely to have had a significant impact and the sixth factor (inappropriate sexual behaviour and comments) had little, if any, impact on her decision

[119]It will thus be seen that in acting as she did, Mrs. Latimer was motivated by factors which were the product largely (if not wholly) of misapprehensions. These misapprehensions were the result of her dementia and the effect of it upon her cognitive faculties. In short, she reached false conclusions concerning the Walters’ behaviour, which led to her disillusionment with them at the time of the will. These false conclusions were ones which I find she would not have reached but for her impaired mental state.

[120]In those circumstances, it seems to me that she lacked testamentary capacity to make the will which she made in October 2004. It follows that I should pronounce against that will and pronounce in favour of the earlier will; that is to say, the 1998 will. I do so.

[121]There are two other points that I should mention.

[122]The first is that I was referred to Boughton & Marston v Knight & Others [1873] LR 3P & D 63, in support of the proposition that, before I can find on the basis of a delusion, I must be satisfied that no man in possession of his senses could have believed what it was that Mrs. Latimer believed. The answer that has to be given, when one asks the question could such a man have believed that, has to be: I cannot understand it; that is to say, cannot understand how anyone could have reached that view.

[123]I doubt very much whether that is the test that applies when there is medical evidence explaining the effect of a condition such as dementia when ultimately the question that has to be asked is: was the mental impairment such as significantly to undermine the deceased’s proper appreciation of the calls upon his or her bounty? It is possible to conceive of cases where the impact upon the deceased’s cognitive powers may be highly significant without the deceased crossing the boundary of reaching conclusions which no reasonable person could have reached. The test in Boughton & Marston is applicable when there is no supportive medical evidence of the kind that there is in this case explaining how it is that the cognitive faculties of a testator can be impaired in consequence of a recognised medical condition.

[124]However, even if the Boughton & Marston test does apply, I find, in relation to whether Mrs. Latimer was being physically and mentally abused, and whether Mr. Walters wanted to get her out of the house, that, on the facts known to the deceased, no rational person of full capacity could possibly have believed any of those things. These were, as I have found, the most important factors (together with the stealing allegation) in the decision she reached. She must have known what it was that Mr. Walters said and did. No person of full capacity, knowing what she knew, could have thought that Mr. Walters was abusing her physically or mentally. In particular, no-one who knew the facts could have thought that Mr. Walters was causing bruising to Mrs. Latimer when he was not. No-one of full capacity who heard what Mr. Walters actually said could have thought that he was threatening to move her out of the bungalow when he was not.

[125]I am also of the view that, given what the deceased actually knew about what she had done in the past with her money and how she was in the habit of having it spent, no-one with that knowledge could have concluded that her money had been stolen. But for her cognitive impairment, she could not have reached that conclusion. Similar reasoning applies in relation to her jewellery. As I have found that the jewellery was not stolen, or (on balance) not even missing, no-one who knew that (as Mrs. Latimer must have done) could have concluded, if of full capacity, that it had been stolen.

[126]So far as prostitutes in the house were concerned, Mr. Child for the Smees made the fair point that the whole street initially adopted the gossip, and many of them still do – if not all of them – that the police came to evict two prostitutes and a drug dealer. An examination of the facts shows that that simply does not stand up. The deceased’s own embellishment of those incidents, in relation to the taking of “things”, the coffee canisters and the tent, to my mind indicates that she reached conclusions that no person of full capacity could have reached. I bear in mind also that she is supposed to have got the idea of the lady’s taking of the coffee canisters and her identity as a prostitute from Mr. Walters. He did not say those things. No person in possession of his or her senses could have thought that he had.

[127]I was also referred to Scammell v Farmer, a decision of Mr. Stephen Smith QC

[2008] EWHC 1100

Ch; [2008] W.T.L.R. 1261, in support of the proposition that some persuasive evidence is needed to contradict the inference of capacity where an experienced solicitor witnesses the will having first satisfied himself of the deceased’s mental capacity.

[128]I have already made criticism of Crystal Walker’s level of service in this case, which to my mind means that the premise upon which the proposition which commended itself to Mr. Smith QC is based is not established. In addition, I am persuaded by the evidence that Mrs. Latimer lacked testamentary capacity in October 2004. Accordingly, there is, by definition, persuasive evidence contradicting any inference of capacity,

[129]Given my conclusions on lack of capacity, the question of want of knowledge and approval does not arise. It is somewhat artificial to deal with it on the assumption that the deceased had capacity when I have held that she did not. However, were it necessary for me to make a finding, I would say (on the assumption that she had capacity) that she did know and approve of the contents of the will, though what produced that knowledge and approval were her misapprehensions or, in old-fashioned terms, delusions as to what was going on around her.

[130]I was pressed by Mr. Darton with the proposition that, where there are circumstances arousing suspicion, an onus is thrown on the propounders of the will not only to prove that the deceased knew of the contents of the will, but also to prove that the deceased was free of undue influence. It seems to me that this backdoor approach to undue influence is not justified on the authorities and that, even had I thought that there was something suspicious about the will, the onus would simply be thrown on the propounders to demonstrate knowledge and approval. On the evidence that I have heard from Crystal Walker, which to this extent I accept, the deceased did (assuming she had capacity) know and approve of the contents of the will. I need not consider, therefore, where the onus would have been.

[131]Also, because of the finding I have made as to the deceased’s lack of capacity, the question of estoppel does not arise. I will, however, make some brief findings in case this is not the last of the matter.

[132]I find that the promise upon which the Claimants rely was made and is accurately recorded in the attendance note of the 12th March 2003, which I have read. It is at page 311 of the bundle. It is quite clear that the deceased was to let the Walters have at least the bungalow in return for their caring for her sufficiently for her not to end up in a nursing home.

[133]The evidence of Rex Lucas goes further. He confirms that he was told by Mrs. Latimer that the Walters would get all her estate in return for looking after her. I accept that that was what she intended, as the earlier attendance note of December 2002 confirms. It was not, however, practicable for Mrs. Latimer to transfer everything she owned to Mr. Walters, even had that proposal gone through, during her lifetime. I also do not consider there to be any significant distinction between Mr. Walters and Mr. and Mrs. Walters. It is correct that the deceased often spoke of Mr. Walters alone. It is clear from other evidence that she included Mrs. Walters, as the attendance note of the 12th March and the 1998 will confirm.

[134]The question of reliance is more difficult. I thought at one stage that there was a strong case of reliance based upon the attendance note of the 12th March 2003 alone. With some prompting from me at the close of the trial, an amendment was put forward to plead an item of reliance:

“. . . agreeing on the 12th March 2003, at a meeting at the deceased’s solicitors, to the abandonment of a transfer of the property to the First Claimant when the same was proposed by the deceased at and prior to that meeting”

. That plea does indeed seem to be supported by the attendance note, but the matter was not explored in that focused way in evidence. The maker of the attendance note was not called or even approached. Mr. Child objected to the amendment. He very properly did not assert that the evidence would necessarily have been different, but said it might have been, and that was enough to preclude the amendment.

[135]In those circumstances, it is wrong for me to divine what the course of the trial would have been. It is enough that it might have been different. Had the point been a live one I would, therefore, have refused the amendment.

[136]Other items of alleged reliance consist essentially of the care and attention that the Walters gave year-in/year-out. It is said correctly on Mr. Child’s side that Mrs. Latimer was very generous, but I have found that the Walters were not doing what they did in return for her lifetime generosity. They continued to do it after 1998 (when they were told of the 1998 will) at least in part because of the promise that had been made that the estate would be left to them. In Mrs. Walters’ case, it did not involve that much, but involved something. It involved a regular two hours cleaning per week, for which she was unpaid, which became increasingly inconvenient for her and her family life as her own work and other commitments needed attending to. She also did some cooking, and took Mrs. Latimer on shopping and other trips, and to hospital appointments. It is never easy to know what would have been done, even had no promise been made. Nevertheless, looking at the matter overall, I am satisfied that the degree of continued care and commitment which the Walters (including Mrs. Walters) showed after 1998 were at least in part referable to the promise they had been made, though minor things such as shopping trips would I think have occurred anyway.

[137]So far as Mr. Walters was concerned, I have already found that he moved in to the bungalow and stayed there 3-5 nights per week from at the latest 2003, and was probably there in 2002. He was also there (even when not sleeping there) virtually every day. He initially paid rent but this stopped in 2003. From that date he had free accommodation (when he was staying there) but he was effectively Mrs. Latimer’s shadow and was giving her his all. He did that partly out of love, but he also did it in the expectation (encouraged by Mrs. Latimer) that he would be left everything on her death. When I say “he would be left everything”, Mrs. Latimer was not, as I have said, distinguishing between Mr. Walters and Mrs. Walters. They all between themselves understood that for Mr. Walters read Mrs. Walters as well.

[138]Moreover, Mr. Walters stopped working. The reason he stopped working was because the employer he had at the time bounced pay-cheques on him. Because of this, I do not believe he would have carried on working for that employer anyway. But he did not try very earnestly to seek other work. His evidence to me was that Mrs. Latimer was continually asking him to stay at home with her. Her asking was one of the factors that persuaded him to do so. I accept that evidence. I do not think that the continual care that Mr. and Mrs. Walters gave over the years (which was, at least as far as Mr. Walters was concerned, virtually on a daily basis) would have been given save in the context of the promise that was made in 1998. I should add that there is no evidence of any relevant promises that were made before the Walters were told about the 1998 will. They were told about it when it was made, more or less immediately.

[139]In those circumstances, I am inclined to the view that there was sufficient detriment to support a plea of estoppel, notwithstanding that Mr. Child has demonstrated, on a balance sheet basis, that really Mr. and Mrs. Walters were treated generously by Mrs. Latimer during her lifetime. This case is not primarily about the financial value of what the Walters were doing, but the care and commitment that they gave to Mrs. Latimer and the result they achieved which, broadly speaking, they did of keeping her in the property in which she wanted to remain. There are, as I have said, complaints as to the standards of care towards the end, when looking after an elderly lady was not getting any easier, and the place was not getting any cleaner. But I do consider that the Walters amply carried out their side of the bargain. I could not in those circumstances see for myself any way of satisfying the equity, had I needed to consider that question, other than by an award of the residuary estate. The relief would in those circumstances be proportionate to the promise and expectation created.

[140]As it happens, the point does not arise. I make the findings in case anyone else comes to consider them.

Walters & Anor v Smee & Anor [2008] EWHC 2029 (Ch)

Cited in 4 later judgments