The Solicitor for the Affairs of HM Treasury v Doveton & Anor [2008] EWHC 2812 (Ch)

Claim No HC 06 C 03496[2008] EWHC 2812 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate Thursday 13 November 2008
Before
MR MARK HERBERT QCSITTING AS A DEPUTY JUDGE OF THE CHANCERY DIVISION
Between
BETWEEN : —ClaimantTHE SOLICITOR FOR THE AFFAIRS OF HER MAJESTY’S TreasuryClaimant– and –
Between
NICHOLAS JAMES ALEXANDER DOVETONDefendantTRIXILIS INVESTMENTS CORPORATIONDefendant
Mr Anthony Peto and Miss Kate Selway (instructed by the Treasury Solicitor) for ClaimantThe Defendants in person (the 2nd Defendant by its director the 1st Defendant) for in personHearing Hearing dates : 14–18, 21, 22 July 2008
JudgmentMark Herbert QC : —Introduction
[1]This is an action brought by the Treasury Solicitor for the revocation of a grant of probate. The deceased was Mrs Denise Jeanne Octavie Janovtchik (whom I shall call ‘Mrs Janovtchik’), who was born on 25 February 1916 and who died on 28 November 2005. The first defendant Nicholas James Alexander Doveton (‘Mr Doveton’) claims to be a distant cousin of Mrs Janovtchik, and he has obtained probate of a will dated 19 May 1977. The Treasury Solicitor claims to have that grant revoked on the ground that that will is a forgery, and I shall call it the disputed will. The Treasury Solicitor believes that Mrs Janovtchik died intestate, with no known relatives qualified to inherit her estate, in which case her estate would pass to the Crown as bona vacantia.[2]The claim form also asks for orders setting aside several dispositions which Mr Doveton has made, principally on the ground that they were made with the intention of defeating the claims of creditors, contrary to section 423 of the Insolvency Act 1986.[3]The bona vacantia office of the Treasury Solicitor became aware of Mrs Janovtchik’s estate, not long after she died, some time before 21 January 2006, and began to take steps towards the administration of her estate. They became aware of bank balances amounting to more than £900,000. On 21 March 2006 they lodged a caveat. Mr Doveton discovered the caveat when he applied for probate of the disputed will during May 2006. He made contact with the Treasury Solicitor to ask them to remove the caveat, and on 6 June 2006 he wrote to them enclosing a copy of the disputed will, giving an account of his connection with Mrs Janovtchik and the circumstances in which the will came to be in his possession.[4]The Treasury Solicitor was suspicious of the disputed will for a number of reasons which I shall need to mention in due course, and refused to remove the caveat. Nevertheless Mr Doveton succeeded in getting the caveat warned off (in circumstances which I shall describe) and on 28 July 2006 he obtained probate of the disputed will. He then began to administer the estate himself. This included closing certain bank and building society accounts during August 2006 and transferring the contents to an account in his own name. The Treasury Solicitor discovered these closures towards the end of August and became concerned that the assets comprised in the estate were seriously at risk. On 19 September 2006 the Treasury Solicitor issued the present claim for revocation of Mr Doveton’s grant and immediately applied, without notice, for a freezing order.[5]Mr Doveton for his part is outraged at what he sees as the interference of the Treasury Solicitor’s office in his affairs. He claims to have properly obtained a grant of probate under a valid order of the court, and to have done nothing wrong in doing so. He has then, misguidedly but (as he says) simply in order to protect his own property interests, entered into a number of transactions in relation to the estate assets and his own assets, transferring them to a company called Trixilis Investments Corp (‘Trixilis’) incorporated in the British Virgin Islands. This has involved Mr Doveton acting in breach of a number of orders of the court which the Treasury Solicitor’s office has obtained against him between September 2006 and December 2007. That in turn has increased and confirmed their suspicions. It has also been expensive. On 10 March 2008 Henderson J ordered Mr Doveton to pay, on the indemnity basis, the costs of the Treasury Solicitor in respect of various applications made against him, including an order to pay £150,000 on account of those costs. It has also resulted in the Treasury Solicitor adding Trixilis as a defendant to the claim.[6]That has been a brief introduction. But the evidence and documents in the case are voluminous. Ultimately the crucial issue is the short one whether a particular single-page document was or was not a forgery. But there are 10 files of documents before me, and the hearing took six-and-a-half days of the court’s time.[7]In what follows I shall first deal with a submission of law which Mr Doveton made as to the correct burden or standard of proof. Second, I shall set out the facts of the case in greater detail. Since there are numerous allegations of forgery and the false dating of documents, it is difficult to provide a single coherent account. What I shall do first is to set out Mr Doveton’s version of the facts, and then the Treasury Solicitor’s case. Third, I shall need to set out material relating to Mr Doveton’s conduct in relation to the numerous interim applications which have been made in the course of the proceedings. Fourth, I shall record my own findings of fact and the reasons for those findings, including an explanation of expert evidence. Finally I shall deal with any consequential claims which may then be relevant.

Witnesses and representation

[8]The factual evidence about the execution of the disputed will is entirely circumstantial. The apparent attesting witnesses are both dead, and no one now living saw it being drafted or executed at the time of its apparent date. Neither does anyone claim to have seen it being forged. I have, however, heard evidence from five witnesses of fact, all of whom had made witness statements : —(a) On the Treasury Solicitor’s side Naomi Gallagher briefly gave unchallenged evidence about the flat at 16 Hedley Court where Mrs Janovtchik and her late husband lived. Mr Tillotson, a retired solicitor, gave evidence principally about the testamentary history of Gwendoline Rogers and Edward Futcher, who were elderly relations of Mr Doveton and who were the apparent attesting witnesses of the disputed will. Mr Tillotson is a mild-mannered man and gave his evidence carefully and thoughtfully. I have no doubt that he was a witness of truth. Mrs Avril Jones was and is the manager of Heathland Court Care Centre, the residential care home in Wimbledon where Mrs Janovtchik spent her final years. Mrs Jones’s background is in nursing. I found her also to be a truthful and careful witness.(b) On the defence side, Mr Doveton gave evidence on his own behalf and was cross-examined over almost three days. His wife Sara was his only other witness. I shall comment on their qualities as witnesses later. Mr Doveton’s mother Julia Clark made an affidavit (in response to a search order for the house where she lives) deposing to her lack of knowledge of any relevant facts and documents, and she was not called as a witness by either side. I was told that her mother Ena Doveton, whose name appears as a witness on some relevant documents and who must now be over 100 years of age, is not capable of giving evidence.(c) I also saw three reports prepared and submitted by Dr Kathryn Barr. She is an expert forensic document examiner, and I shall summarise her evidence in due course. No expert evidence was adduced on Mr Doveton’s side.[9]The Treasury Solicitor was represented before me by Mr Anthony Peto and Ms Kate Selway. Mr Doveton appeared in person. He is a polite, well-spoken man in his early 30s, slim, presentable in appearance, articulate and (unsurprisingly) serious. He has some, but evidently not much, experience of court procedures. He conducted his case quietly and without ostentation, and with only occasional expressions of heightened emotion in the form of anger and frustration.

Standard of proof

[10]Mr Doveton submitted that, not only does the burden of proof lie with the Treasury Solicitor as claimant in the proceedings, which is certainly correct, but also the standard of proof is not the normal standard on the balance of probabilities. He rightly pointed out that the allegations made against him in the case are very serious, and that the case of fraud being put forward is intrinsically improbable. I agree that the allegations are serious and that fraud is relatively unusual and therefore, in general terms, improbable.[11]He referred me to a number of small passages in earlier authorities The first two were from the decision of the Court of Appeal in Hornal v Neuberger Products Limited [1957] 1 QB 247. Mr Doveton drew my attention to the following from Morris LJ at pages 266–267 : — ‘In English law the citizen is regarded as being a free man of good repute. Issues may be raised in a civil action which affect character and reputation, and these will not be forgotten by judges and juries when considering the probabilities in regard to whatever misconduct is alleged. There will be reluctance to rob any man of his good name : there will also be reluctance to make any man pay what is not due or to make any man liable who is not . . .’ For myself I accept that this is a valuable reminder. But the actual decision of the Court of Appeal, correctly reflected in the headnote, was that the civil standard of proof applied to the allegations of fraud in that case, not the criminal standard.[12]Mr Doveton referred me next to R (N) v Mental Health Review Tribunal [2006] QB 468, a decision of the Court of Appeal which again does not itself support Mr Doveton’s submission. But he referred me to several passages from other authorities quoted in that case : —(a) The most helpful to him was a passage from Bater v Bater [1951] P 35, in which the Court of Appeal held that, in a petition for divorce on grounds of cruelty, it is no misdirection for the trial judge to state that the petitioner must prove her case beyond reasonable doubt. Denning LJ said at pages 36–37 : — ‘As Best CJ and many other great judges have said, “in proportion as the crime is enormous, so ought the proof to be clear”. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established.’(b) Along similar lines is the following, taken from the speech of Lord Bridge of Harwich in R v Secretary of State for the Home Department ex p Khujawa [1984] AC 74 (a case about illegal immigration) at page 124E : — ‘. . . a civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree.’(c) Mr Doveton said his strongest point from these judgments was the following from B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340, a case about making sex offender orders under section 2 of the Crime and Disorder Act 1998, at paragraph 31 per Lord Bingham of Cornhill CJ : — ‘In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section 2(1)(a) is fulfilled, a magistrates’ court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard.’ On the other hand Mr Doveton did not go on to draw my attention to Lord Bingham’s next sentence :
‘In deciding whether the condition in section 2(1)(b) is fulfilled the magistrates’ court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.’ (d) Similar is the following from R (McCann) v Crown Court at Manchester [2003] 1 AC 787, a decision of the House of Lords about the imposition of anti-social behaviour orders under section 1 of the same 1998 Act, at paragraph 82 per Lord Hope of Craighead : — ‘But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.’
[13]These dicta comprise reminders that the court must take account of the seriousness of the particular allegations made, and the consequences of finding that those allegations are upheld. But it remains the law that civil cases are determined in accordance with the civil standard of proof on the balance of probabilities. Besides, Mr Doveton’s submissions have largely been superseded by more recent judicial statements of the relevant principles. I have in mind the speech of Lord Nicholls of Birkenhead in In re H (Minors) (Sexual Abuse : Standard of Proof) [1996] AC 563, the speeches of Lord Hoffmann in Secretary of State for the Home Department v Rehman [2003] 1 AC 153 and In re B (Children) (Care Proceedings : Standard of Proof) (CAFCASS intervening) [2008] 3 WLR 1 and the judgment of Richards LJ in R (N) v Mental Health Review Tribunal [2006] QB 468 during which he said at paragraph 62 : — ‘Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.’[14]These and other such statements were all reviewed at the highest level recently in In re D (Secretary of State for Northern Ireland intervening) [2008] 1 WLR 1499. This was a decision of the House of Lords on appeal from the Court of Appeal in Northern Ireland. It was reported formally during the hearing of the present case, and I drew the attention of the parties to it. It contained some criticism of the dicta on which Mr Doveton has relied in the present case, and others in a similar vein, to the extent that those dicta have promoted, or been taken to promote, a higher burden of proof in civil cases than the balance of probabilities. One of the two principal speeches was given by Lord Carswell. After mentioning with approval the statements which I have just mentioned, he said this at paragraph 28 : — ‘It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann’s example of the animal seen in Regent’s Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration : a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition : if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.’ The other members of the House of Lords agreed with the speeches of both Lord Carswell and Lord Brown of Eaton-under-Heywood (whose speech supported him), and indeed Lord Brown also agreed with the speech of Lord Carswell.[15]My conclusion on these authorities is that the civil burden of proof applies to this case, and the seriousness of the allegations made against Mr Doveton and the consequences of a possible finding against him do not alter that. They affect my task in a different way, namely that they are extremely important factors which I must take fully into account in deciding, on the balance of probabilities, whether the Treasury Solicitor has made out its case. Mr Doveton’s account of the facts The Futchers and the Janovtchiks

Mr Doveton’s account of the facts

[16]According to Mr Doveton the relevant facts began with three siblings having the surname Futcher. The eldest Ena was born in 1907, her younger sister Gwendoline in 1911 and their younger brother Edward in 1915. Ena married a Mr Doveton in 1944 and is Mr Doveton’s grandmother. She is still living, aged over 100, and I am told that she is not capable of giving evidence. Gwendoline became Mrs Rogers, but she had no children. She died on 18 June 2001. Edward never married and died on 11 December 2004. For some years Mrs Rogers and Mr Futcher shared a home together in Hampshire. Ena Doveton had one daughter, now Julia Clark. Mr Doveton is her only son, born on 26 May 1976 (and is therefore now aged 32). He generally uses his mother’s maiden name as his surname. His father was Raymond Wylie-Harris, who was not married to Julia at the time of Nicholas’s birth, but they subsequently married on 27 August 1977 (that date being important). Mr Wylie-Harris died on 18 July 1983. His widow married again in 1992 to a Mr Clark, but they were divorced in 1999.[17]As for Mr Doveton’s own background, he has described in letters to the Treasury Solicitor and in witness statements in these proceedings that he has worked as a trainee legal executive with two firms of solicitors in Southampton and Bournemouth, though (he says) not working in the probate field, and later for the Financial Services Authority between October 2004 and July 2005. Since then he has spent time managing a small portfolio of three properties, namely a flat in Woolwich where he lives, a residential property in the Isle of Wight and shop premises in Romsey. His mother Julia Clark lives in the Isle of Wight property as Mr Doveton’s tenant (with the rent collected as housing benefit), and that property is close to a residential home where her mother Ena Doveton is living.[18]In 2005 Mr Doveton met Sara Wadsworth, and they were married in February 2007. Between those dates the relationship between them, according to her, was not always the best, but in early 2006 they were living together as a couple at Mr Doveton’s flat in Woolwich and were planning to marry. Later Mr Doveton broke off the engagement, but they remained a couple, despite ups and downs in the relationship, and Miss Wadsworth then divided her time between the Woolwich flat and her father’s house. Later the relationship evidently improved again, leading to their marriage in February 2007.[19]There is no reason to doubt the truth of those basic facts. But what follows is controversial. According to Mr Doveton, in the early 1960s Mrs Rogers and Mr Futcher formed a friendship with Mrs Janovtchik and her husband Viatcheslav Janovtchik, who lived together in a flat at 16 Hedley Court in Putney. He says that Mr Wylie-Harris discovered a family connection between the Futchers and Mrs Janovtchik’s father, a Belgian called Lambrecht. He says that Mr Janovtchik and Mr Wylie-Harris played chess with each other and developed a close friendship, and that the relationship between Mrs Rogers, Mr Futcher and the Janovtchiks continued after Mr Wylie-Harris’s death in 1983. He says that Ena Doveton also knew the Janovtchiks, but that his mother Julia Clark had little or nothing to do with them.[20]Mr Doveton goes on to say that he himself recalls occasions when his father would take him as a small boy under 7 years of age to see the Janovtchiks, sometimes also with Mrs Rogers and Mr Futcher, and that this would involve Mr Wylie-Harris driving from London (where he lived and worked) to Hampshire to collect Mrs Rogers and Mr Futcher, and take them up to Putney, and then back again. After Mr Wylie-Harris’s death in 1983 Nicholas Doveton was taken by his mother to live in Hampshire, nearer to her mother Ena Doveton, and he does not claim to have met the Janovtchiks after that. He does claim, however, that Mrs Rogers and Mr Futcher maintained some limited contact with them from a distance, mainly by telephone calls and the exchange of birthday and Christmas cards.

The disputed will

[21]It was in the context of this friendship, according to Mr Doveton, that Mr and Mrs Janovtchik each made wills on 19 May 1977. Mr Doveton says that his father Mr Wylie-Harris may have drafted them. The disputed will is a single A4 page typed on an old-fashioned typewriter and begins as follows (and this text follows the typing as it actually appears, except that the original was not typed with proportional spacing) : — ‘This is the last will and test ament of me Denise Janovtechnik otherwise Denise Jansen otherwise Oct avie Janovtch ik of I6 Hedley Court, Putney Hill, London, SWI5 3NS I hereby revoke all former Wills and testamentary dispositions made by me I appoint as my Executors and Trustees my cousin Ena Oriska Lewis Doveton, Raymond Wylie Harris and Nicholas James Alexander Doveton of 48 Hertford Street, Westminster, London, WI. I give devise and bequeath all my real and the residue of my personal estate whatsoever and wheresoever unto the said Nich olas James Alexander Doveton absolutely’ The numeral 1 is always represented by an upper-case I, not a lower-case L. Also there are one-space gaps between the letters ‘test-’ and ‘-ament’ in the first line, between ‘Oct’- and ‘-avie’ and between ‘Janovtch-’ and ‘-ik’ in the next line, and between ‘Nich-’ and ‘-olas’ lower down. In addition to those extra spaces (suggesting that the typewriter carriage tended to slip), several of the letters are faint, and a significant portion of the will (about six lines a little more than half way down the page) has several letters barely legible, suggesting that the typewriter ribbon was wearing out.[22]The will then makes provision for a trust for Nicholas (who was about 14 months old at the date of the will) until his 21st birthday, and leaves the funeral arrangements to the discretion of the executors. There follows a testimonium in these terms (all typed, including the date) : — ‘In witness whereof I have hereunto set my hand this nineteenth day of May One Thousand Nine Hundred and Seventy Seven’[23]There is then a standard-form attestation clause, repeating the testatrix’s name as Denise Janovtechnik (but not either of the other aliases). Against that on the right there is a signature, with the D and J legible, but the rest an illegible squiggle. Under that again, but on the left, appear the signatures of the two named witnesses. The first reads G. M. L. Rogers over the typed name Gwendoline M L Rogers, and the other reads E H Lewis Futcher over the typed name Edward E L Futcher, both of an address in Bassett, Southampton.[24]Mr Viatcheslav Janovtchik’s 1977 will had many similarities. It bore the same date. It was also typed on a single page of A4 paper, with similar features of typography, including the use of an upper case I for the number 1. Two alternative spellings of the surname are given in the first two lines, namely Ianovtchik and Janovtchik. Jansen and Janovtechnik do not appear. The date is again typed in, not hand-written. There is a reasonably legible signature V. J. Ianovtchik, and there are signatures of the same two witnesses (Mrs Rogers and Mr Futcher) over their typed names and a note of their address. The sole executrix is Mrs Janovtchik, called Denise Octavie Ianovtchik otherwise Denise Janovtchik, and the sole beneficiary is also ‘the said’ Denise Octavie Janovtchik. There are some extra spaces between letters (but fewer than in the disputed will).[25]There are, however, differences. Importantly, none of the letters is faint, suggesting a less well-worn typewriter ribbon (or a re-inked one). Also the surname Janovtchik (or Ianovtchik with a capital I) was used to the exclusion of Janovtechnik. Also Mr Doveton is neither a beneficiary nor an executor; Mrs Janovtchik being the sole executrix and sole beneficiary.[26]It is in fact clear that this was not Mr Janovtchik’s last will. He made a will on 15 August 1994, appointing his wife his executrix and sole beneficiary. He died on 15 January 1997, and Mrs Janovtchik obtained probate of that 1994 will on 2 March 2000. But it is also clear that these facts about Mr Janovtchik and his 1994 will were not known to Mr Doveton until September 2006. Mr Janovtchik’s 1977 will was found amongst Mr Doveton’s papers when the Treasury Solicitor carried out a search of his Woolwich flat in November 2006.[27]The Treasury Solicitor has asked Mr Doveton to account for the circumstances in which he came to be in possession of these wills, and his account is as follows. He says that Mrs Rogers and Mr Futcher told him about Mrs Janovtchik’s will when he was about 15 years of age, which would have been in 1991 or 1992. Then on 26 September 2000 Ena Doveton granted an enduring power of attorney to Mr Doveton and his mother Julia Clark. In December 2000 Ena Doveton moved to a care home in the Isle of Wight (where she still lives), and on 8 December 2000 her attorneys sold her flat in Hampshire. It was in the course of clearing the flat, according to Mr Doveton, that he discovered the Janovtchiks’ two wills. He did not do anything about the wills at that time, however, or seek to make contact with the Janovtchiks. He says, however, that he did discuss the wills at this time with Mrs Rogers and Mr Futcher. Apparently they told him that Mr Wylie-Harris had kept the wills at first, then after his death they had passed to Mrs Rogers, and she handed them to Ena Doveton in 1999, about a year before Mr Doveton had found them. He gave conflicting evidence about whether he knew in December 2000 that Mr Janovtchik was already dead. In his witness statement of 14 December 2006 he wrote that Mrs Rogers and Mr Futcher told him that Mrs Janovtchik had taken the death of her husband badly and had moved into a care home near Wimbledon soon afterwards, where she had died in November 2005. This cannot all have been literally true, because Mrs Rogers died in 2001 and Mr Futcher in 2004. In any case in oral evidence Mr Doveton said that in 2005 he was not sure that Mr Janovtchik had died.

Wills of Mrs Rogers and Mr Futcher

[28]At this stage, partly in order to maintain the chronology of the events, I should leave the disputed will of Mrs Janovtchik on one side, and insert an account of Mr Doveton’s interest in the wills and estates of Mrs Rogers and Mr Futcher. There is indeed other litigation relating to those estates, and I have no intention of making findings of fact in regard to them. What follows in the next few paragraphs is deliberately limited to the bare facts. It is largely taken from the evidence of Mr Tillotson (who acted for Mr Futcher as his solicitor and was also a friend of his and his attorney under an enduring power) and from documents exhibited to his witness statement.[29]On 17 January 1967 Mrs Rogers had made a will in favour of her brother Edward Futcher. She died on 18 June 2001, and probate was granted on 25 September 2001. Mr Futcher, as the sole beneficiary of residue, then executed a deed of variation effectively adding legacies of £5,000 each to several individuals, including relevantly Ena Doveton, Julia Clark and Nicholas Doveton. Nicholas accepted that gift. Mr Tillotson says that Mr Futcher told him at this time that he had not previously made a will, and on 14 September 2002 he made one leaving his residue to Mr Doveton and a cousin called Stephen Futcher equally.[30]Then early in 2003 Ena Doveton, with assistance from Mr Doveton as her advocate (as he describes the situation), issued proceedings against Mr Futcher in relation to Mrs Rogers’s will, claiming that he held her estate on a secret trust and alternatively claiming relief under the Inheritance (Provision for Family and Dependants) Act 1975. Mr Tillotson as his litigation friend instructed other solicitors to defend the claim. On 19 June 2003 that action was struck out, and a costs order was made against Ena Doveton. At the end of July and the beginning of August Mr Futcher offered an agreement that if all claims against Mrs Rogers’s estate, Mr Futcher and his estate were dropped, Mr Futcher would not enforce the costs order. Julia Clark and Mr Doveton (the latter as Ena Doveton’s attorney) signed separate letters dated 1 August 2003 confirming acceptance of those terms.[31]During that litigation Mr Futcher decided to make a new will, and on 1 September 2003 he made one in favour of Stephen Futcher alone, and also a codicil explaining his reasons for excluding Nicholas Doveton, citing amongst other things the litigation brought against him by Mr Doveton in relation to Mrs Rogers’s estate. He died in December 2004. Then in 2005, and despite the agreement mentioned above, Julia Clark and Mr Doveton issued proceedings challenging Mr Futcher’s 2003 will on the grounds of testamentary incapacity. There is evidence before me that Mr Doveton has more recently put forward another rival will, but this is of no assistance in deciding the issues in the present case, and I shall disregard everything else in relation to those other proceedings.[32]Even so the facts summarised here show that Mr Doveton was familiar with at least some aspects of probate procedure by 2005, and importantly that he had in his possession copies of the signatures of Mrs Rogers (on her own 1967 will) and of Mr Futcher (on numerous documents signed by him). I add that the signatures of Mrs Rogers as a witness of the disputed will and on Mr Janovtchik’s 1977 will are visually the same as the signature on her 1967 will. Similarly Mr Futcher’s signatures as a witness to the 1977 wills are visually the same as those on his 2002 and 2003 wills and his 2003 codicil. (His signature on the deed of variation was somewhat different, spelling out the forenames Edward and Harcourt as well as Lewis and Futcher.)

Production of the disputed will

[33]I have already mentioned that, when, as Mr Doveton states, he found the Janovtchiks’ wills at the end of 2000 he did not at that time approach Mrs Janovtchik. Instead, some five years later in May 2005, after Mr Futcher had died, he says that he researched care homes in the Putney area via the internet and, with exploratory telephone calls to some such homes, established that Mrs Janovtchik was living at Heathland Court. He also says that he visited 16 Hedley Court and spoke to a neighbour of hers. He made no attempt, however, to visit or speak to Mrs Janovtchik herself. He says that he telephoned asking after her at Heathland Court under the name Janovtechnik.[34]In February 2006 Mr Doveton brought his grandmother Ena Doveton to stay at his flat in Woolwich. Mr Doveton had the idea of entering into a tenancy agreement with her, enabling him to claim rent by way of housing benefit, as was already done with his property in the Isle of Wight occupied by his mother Julia Clark. A tenancy agreement was entered into for this purpose on 18 February 2006, and the signatures of both parties were witnessed by Miss Wadsworth, who was also living at the flat. She confirmed in her evidence that she had witnessed the signatures on a deed on that date but said that she did not know what the document was. Her evidence is that Mr Doveton did not tell her about his plan for Ena Doveton to live at the flat, and she thought that he was looking for somewhere else for her to live nearby. In the event Ena Doveton did not continue at the Woolwich flat, and neither was a place found for her nearby. I understand that she is still living at a home in the Isle of Wight.[35]At all events it was during the period when Ena Doveton was staying at the Woolwich flat that Mr Doveton says that he again telephoned Heathland Court, asking whether Mrs Janovtechnik was still there. According to him, it was on this occasion that he was told that she had died. Mr Doveton and his wife both gave evidence that Mr Doveton mentioned the death to his grandmother, and that his grandmother appeared to recall knowing her in the past. Their evidence was, however, confused and contradictory about how often such conversations took place, and they did not agree about whether they mentioned any will of Mrs Janovtchik. Mrs Doveton’s evidence was that they did not.[36]Mr Doveton states that he first visited Heathland Court in ‘March/April’ 2006 and spoke to Mrs Avril Jones. Mrs Jones agreed that a visit did take place, but her account of its details is different. Mr Doveton claims that he wanted to know about the family of Mrs Janovtechnik, as he says he called her. He made no mention of her will, or that he was her executor, though he did say that he had worked in the law. Mrs Jones told him little except that family members of Mrs Jansen (as she knew her) had not been in contact with her, and that she Mrs Jones had passed the papers to the Treasury Solicitor, suggesting that Mr Doveton should contact them. He gave contradictory evidence about whether she did or did not mention to him that the death had been announced on the Treasury Solicitor’s bona vacantia website.[37]In the following few weeks Mr Doveton conducted some research with a view to obtaining probate : —(a) Papers in his flat have been found to include two receipts dated 7 April 2006 from Government Certificates showing that he had applied for two certificates, apparently a death certificate and a marriage certificate. Mr Peto suggested that these were Mr Janovtchik’s death certificate and the Janovtchiks’ marriage certificate. However Mr Doveton’s evidence here, which I accept as true, was that he obtained Mrs Janovtchik’s death certificate from the Registry at Merton, not via the internet, and that he has never obtained a copy of the Janovtchiks’ marriage certificate. He admitted obtaining Mr Janovtchik’s death certificate, but not until he was applying for probate of his will, almost six months later.(b) There is also a letter of 24 April 2006 from ancestry.co.uk showing that Mr Doveton had tried out their service.(c) On 27 April 2006 he received a letter from the French Consulat Général, evidently in response to an enquiry from Mr Doveton, stating that they do not carry out investigations with regard to tracing family ancestry.(d) At some stage he obtained copies of the electoral roll entries in respect of Putney Hill for 10 October 1995. These show Mr and Mrs Janovtchik registered at Hedley Court, Putney Hill.(e) He also obtained Land Registry entries for 16 Hedley Court. A covering note from the Land Registry dated 9 May 2006 and addressed to Mr Doveton refers to the enclosed entries, showing the title number of the Hedley Court property. From this Mr Doveton discovered that the property was registered in the name of Mr Janovtchik.[38]Armed with this information Mr Doveton proceeded to make an application for probate of the disputed will. On 15 May 2006 he completed the PA1 form applying for probate, showing an estate consisting of cash in bank accounts and a total value of £274,000. It was at this time, during a weekend break at the time of Mr Doveton’s birthday on 26 May 2006, that Mr Doveton told Miss Wadsworth about his application for probate.[39]Soon after this Mr Doveton first discovered the adverse claim of the Treasury Solicitor, when the Probate Registry informed him of the caveat and explained the procedure for warning it off. On 5 June 2006 the Registry also informed the Treasury Solicitor of Mr Doveton’s application. On the same day Mr Doveton telephoned the Treasury Solicitor’s office and asked if the caveat could be removed. They in turn asked for a letter explaining the circumstances how the will came to be made and Mr Doveton’s knowledge of the testatrix. He did that in a letter of 6 June 2006.[40]He also took steps to warn off the caveat, and on 29 June 2006 received a sealed warning from the Probate Registry together with three copies. His evidence is that on the same day he duly posted the original sealed warning to the Treasury Solicitor. The Treasury Solicitor claims that it did not arrive, and I accept that as true. As soon as the time-limit for entering an appearance to his warning had expired, on 10 July 2006, he provided an affidavit of service to the Probate Registry, exhibiting a copy of the warning. In fact the affidavit is dated 4 July 2006, before expiry of that period. Faced with the affidavit of service, and in the absence of any response from the Treasury Solicitor, the Probate Registry issued Mr Doveton with his grant on 28 July 2006.[41]The grant arrived in the post on Monday 31 July 2006. Mr Doveton acted quickly. With the services of a locksmith he took possession of 16 Hedley Court and no doubt found there references to Mrs Janovtchik’s bank accounts, and on 8 August 2006 began to transfer the balances on her accounts to his own Cahoot account. Between 13 and 15 August 2006, and again between 20 and 22 August, he was in Zurich, and there he transferred substantially all the cash in the estate to a fiduciary time-deposit with Credit Suisse. By the end of August he had transferred at least £925,000 to Switzerland. He claims that he had several meetings with Credit Suisse on these occasions, discussing the acquisition of a tax-haven company. He claims that he identified one company on a list he had been shown, namely Trixilis.[42]On 20 August 2006 Chelsea Building Society, who held one of Mrs Janovtchik’s accounts, alerted the Treasury Solicitor’s office to the existence of a new executor administering the estate, and the Treasury Solicitor reacted quickly too, informing all the relevant banks and building societies that they did not accept the validity of the 1977 will. Within about four weeks they had prepared papers for the present action. The claim was issued on 19 September 2006, and on the same day Mr Bart Linton of the Treasury Solicitor’s office swore the first of a number of affidavits in the action. They applied for and obtained a freezing injunction from Briggs J on a without notice application.[43]Meanwhile, as I have mentioned, Mr Doveton had discovered from the Land Registry entries that the Hedley Court property was registered in the name of Mr Janovtchik alone, and he turned his attention to applying for probate of his 1977 will, which he did on 6 September 2006. As a result he discovered from the Probate Registry that Mrs Janovtchik had obtained probate in 2000 of her husband’s 1994 will. This would have shown him that he could deal with 16 Hedley Court without a separate grant in the husband’s estate.

The Treasury Solicitor’s case

[44]The Treasury Solicitor’s version of events is entirely different from Mr Doveton’s. To begin with, they say, there was no friendship or acquaintance between Mr and Mrs Janovtchik and Mrs Rogers and Mr Futcher, or with Mr Wylie-Harris or Mr Doveton himself as a child. They point out that there is no independent evidence of any kind revealing such a friendship or acquaintance. It is indeed admitted that no independent document has been found showing a connection between the Janovtchiks and the Futcher family. They go on to deny that Mr Doveton visited the Hedley Court property in 2005, or made telephone calls to Heathland Court in 2005 or February 2006. They point out that Mr Doveton has failed to produce telephone records to back up his evidence that he telephoned Heathland Court in May 2005 and February 2006, despite the normal obligation to disclose documents on which he relies and despite specific requests made during the hearing. They deny that Mr Doveton spoke to Ena Doveton about Mrs Janovtchik.[45]Instead the Treasury Solicitor claims that Mr Doveton first became aware of Mrs Janovtchik’s death when he saw the bona vacantia website entry in the name of Janovtechnik, which was first posted at the end of March 2006. He obtained a death certificate from Merton shortly afterwards. He then visited Heathland Court in about April, met Mrs Jones, and established that Mrs Janovtchik had received no visits from friends or relatives. Because her place of birth is recorded on the death certificate as France, they say that Mr Doveton approached the consulat général but failed to obtain any information there. He approached ancestry.co.uk. He discovered the address at 16 Hedley Court and obtained copies of the Land Registry entries. These showed that the property was registered in the name of Mr Janovtchik alone.[46]Then, they allege, Mr Doveton forged the disputed will. He took the witnesses’ names and signatures from their own wills, with which he was familiar, but the signature of the testatrix was purely a guess. He completed the application form PA1 and the tax form IHT 200, not mentioning the Hedley Court property and, instead of revealing £900,000 in cash as shown on the bona vacantia website, disclosed only £274,000 in cash at banks (deliberately just below the threshold for paying inheritance tax). Then, when he learned of the Treasury Solicitor’s caveat, he obtained the sealed warning from the Registry (an original and three copies). Then, they say, instead of serving the warning on the Treasury Solicitor, Mr Doveton merely completed a false affidavit of service, exhibiting a copy of the warning and destroying the original, retaining the three copies originally received from the Registry, all of which were later recovered from the Woolwich flat. That enabled him to obtain probate and take control of Mrs Janovtchik’s bank balances.[47]According to the Treasury Solicitor, Mr Doveton next proceeded to forge Mr Janovtchik’s 1977 will. By this time he had discovered that the name Janovtechnik was a mistake, and that is why it does not appear on this will. He had also discovered examples of Mr Janovtchik’s signature, and this is how his signature on this will bears a superficial resemblance to other signatures which are assumed to be genuine. The signatures of the witnesses are virtually identical to those on the disputed will. Significantly a new type-writer ribbon appears to have been acquired, so that Mr Janovtchik’s will, though typed on the same typewriter, lacks the faint and almost invisible lettering of parts of the disputed will.

Conduct of the litigation

[48]At this stage I need to summarise some of the interim applications which have been made in the proceedings. Partly this is because the Treasury Solicitor relies on Mr Doveton’s conduct in reaction to these applications as showing a propensity for dishonesty which I should take into account when assessing his credibility as a witness. Partly it is because Mr Doveton’s dealings with estate funds are relevant to the Treasury Solicitor’s claim to set aside dispositions intended to defeat creditors. Anticipating the details somewhat, this is a story on Mr Doveton’s side of a campaign to pursue his own agenda in disregard of the court’s authority, and on the other side an object-lesson in professional determination to thwart him so as to preserve the estate pending determination of the main claim. In this section dates are in the year 2006 unless otherwise stated.[49]In resisting some of these applications Mr Doveton has relied on a large number of documents all bearing the date 3 September 2006. Essentially they all purport to give interests in assets to Trixilis, but there are important differences between them. They fall into the following four categories : —(a) A declaration of trust affecting the funds comprised in Mrs Janovtchik’s estate by which Mr Doveton declared himself a trustee of those funds in favour of Trixilis. This deed was signed by Mr Doveton on his own account and also, with a different signature, a small indecipherable squiggle, as an officer of Trixilis. A large rectangular stamp of the company’s name, surrounded by a solid rectangular border, was used. Both of Mr Doveton’s signatures were witnessed by Ena Doveton, and Mr Doveton’s evidence was that this declaration was executed in the Isle of Wight, either on 3 September 2006 (a Sunday) or the day before. He says that he went to visit her about the previous Thursday and returned to Woolwich at the weekend, after which Miss Wadsworth and he went out together for the day on motorcycles.(b) Two confidentiality agreements made between Trixilis and Mr Doveton, by which Mr Doveton agreed to keep secret and confidential all details about Trixilis and its directors, shareholders, officers and beneficial owners, and also all details concerning the trust of the estate funds. These too were each signed twice by Mr Doveton, once on his own account with his normal signature and once with the same indecipherable squiggle as before over the rectangular stamp with the company’s name. In contrast to the declaration of trust there is no witness to any of these signatures.(c) Three further declarations and deeds of trust. These related to the three properties which belonged to Mr Doveton before 2006, namely the Woolwich flat where he lives, the Isle of Wight property where his mother lives, and the shop premises in Romsey. In each case he declared that he held the property in trust for Trixilis. These declarations of trust are also each signed twice by Mr Doveton, once on his own account with his normal signature and once with a small squiggle (a different one from those in the documents mentioned above) on behalf of the company. Unlike the three documents mentioned above, there is no stamp showing the company’s name. And unlike the others, all the signatures on these three documents are witnessed by Miss Wadsworth, giving an address in Weybridge which is, she told me, her family home.(d) Finally a declaration and deed of trust relating to the Hedley Court property, with Mr Doveton again declaring that he holds the property in trust for Trixilis. The recitals are different in this document, referring to Mr Janovtchik’s ownership of the property and to the 2000 grant of probate made in favour of Mrs Janovtchik. In this case there is a company stamp on the document, but not the same rectangular one used on the documents in the first category. The impression made by this stamp does not have a border, and reads ‘Trixilis Investments Corp. Office Of The Chief Executive’. As with all the others, Mr Doveton has signed twice, once with his normal signature on his own account, and once over the stamp with a squiggle (slightly more angular than some of the others). Both signatures are witnessed by Miss Wadsworth, again giving the Weybridge address.[50]The claim form was issued on 19 September 2006, and on the following day Briggs J made a freezing injunction on an application without notice. The order also required delivery-up of certain estate assets. The order was duly served.[51]Mr Doveton had already been in contact with Credit Suisse, and had made at least two visits to Zurich, in August. He claims that he made preliminary arrangements to establish Trixilis during those meetings, but e-mails from Credit Suisse during that period relate only to the opening of accounts, arranging for online banking, the rental of safety-deposit boxes, and obtaining a loan. A loan was indeed given, on 21 August, to buy a Porsche motor car. Then, after the freezing order was served on him, Mr Doveton got in touch with Credit Suisse again and discussed, or discussed further, the establishment of a BVI company. An e-mail of 24 September from Credit Suisse, which reveals that Mr Doveton had told them about the issue of these legal proceedings against him, includes the line, ‘Also, please do send me a formal order to go ahead with forming a BVI company and that I can debit the costs from your account with us.’[52]Mr Doveton was keen to emphasise before me that this implied that there had already been discussions about a BVI company before, namely during his visits to Zurich in August, and that it supported his account that he had already identified Trixilis as the company in which he had a beneficial interest, even before the end of August. I accept that Mr Doveton may have discussed the possibility of establishing a BVI company during one or both of his visits in August, and even (as he also claimed) that he was shown a list of available companies which included Trixilis. But there is no other evidence to support his assertion that he had a beneficial interest in Trixilis at that time, or at any time during September, or even that enough had happened to allow him to think that he had. The e-mail of 24 September suggests that Mr Doveton decided during a telephone conversation, between 22 and 24 September, to establish a BVI company, at that stage unnamed, and that Credit Suisse asked for formal instructions to that effect. There is even an e-mail dated 29 September in evidence in which, at Mr Doveton’s request, Credit Suisse confirmed that Mr Doveton was the beneficial owner of the account which he had opened with them.[53]On 27 September Mr Doveton responded to the freezing order with a brief witness statement exhibiting two letters of the same date from his solicitors Collyer Bristow. In these letters Collyer Bristow gave information about Mr Doveton’s transfer of the estate funds to a deposit account at Credit Suisse maturing on 17 October, and his removal of certain estate assets from Hedley Court. They also gave details of Mr Doveton’s other assets and bank accounts. There was no mention of the Porsche or of any plans to transfer assets to any BVI company, still less any claim that any declaration of trust in favour of Trixilis had been executed. On 28 September Lewison J continued the freezing order and stood over the interim application to 5 October.[54]On the same day Mr Doveton sold the Porsche. And on 1 October (a Sunday) he and Miss Wadsworth both flew to Zurich. For him this was a business trip, and he visited Credit Suisse presumably on the Monday. While there he instructed the Heritage Trust Group in Singapore, who had been introduced to him by Credit Suisse, to acquire a BVI company for him, and Trixilis was indeed acquired for his benefit. In point of fact Mr Doveton’s name does not appear as a director or shareholder. The sole shareholder was a company called Tanaldi Limited and the sole director another company called Greenland Limited. On the other hand there was a formal document by which Greenland, on behalf of Trixilis, gave Mr Doveton full authority to operate the account at Credit Suisse, and in this document Mr Doveton is described as the beneficial owner. The paperwork for all this was completed by 5 October, and Heritage’s invoice for these services, also dated 5 October, shows 1 October to be the starting-date for their retainer. Miss Wadsworth did not accompany Mr Doveton to the bank, went shopping instead, and according to her did not know what his business in Zurich was or where in the city he went. She flew back to London on 3 October.[55]Mr Doveton did not return until just in time for the return date on 5 October. In a hastily prepared skeleton argument, his counsel Mr Nicholas Peacock announced that Mr Doveton wished to apply to set aside the freezing order entirely, suggesting a timetable for evidence. He did not oppose the continuation of the freezing order pending his application, but Mr Peacock’s skeleton included this sentence :
‘Indeed, Mr Doveton has made clear that even if (and he would say when) those freezing orders are set aside he is perfectly content to give an undertaking not to deal with or dissipate any of the assets within the estate prior to the trial of the Claimant’s claim (assuming that the claim is in fact pursued in light of Mr Doveton’s evidence).’
The Treasury Solicitor was pressing for the order to deliver up estate funds to be enforced on 17 October 2006 when the fiduciary time deposit at Credit Suisse would be available. In seeking to resist this pressure Mr Peacock wrote (among other things) : — ‘Bearing in mind the following factors, such a course of action is neither necessary nor appropriate : (a) First, there is no credible evidence to the effect that were the monies to be left in Mr Doveton’s account with Credit Suisse, subject to the freezing order, that they would in fact be at any measurable risk of being dissipated or otherwise dealt with by Mr Doveton : (i) Mr Doveton has acted perfectly properly in compliance with the without notice order made on 20 September 2006. There are no grounds for suggesting that he has, or is likely to, ignore an order of this Court. (ii) Credit Suisse (who have notice of the order) is a respectable and responsible bank. There are no grounds for suggesting that they would be likely to permit any transaction in breach of an order of this Court. (iii) Mr Doveton could immediately on 17 October 2006 place the monies on a further fiduciary time deposit which would prevent any dealings by him whatsoever.’[56]This resistance was successful, at least in part. Pumfrey J extended the time for delivering up the estate assets until after Mr Doveton’s application to set aside the order had been heard.[57]In evidence Mr Doveton admitted that the skeleton argument was based on his own instructions, and that he had not told Collyer Bristow or Mr Peacock about Trixilis. The statement, not by any fault of Mr Peacock, was misleading in many respects. Mr Doveton had already dealt with estate assets in breach of the order, and evidently Credit Suisse were already prepared to introduce Mr Doveton to Heritage in order to enable him to transfer the funds to a BVI company. For good measure the purchase and sale of the Porsche were not mentioned. It was especially misleading if the declaration of trust of the estate funds in favour of Trixilis, dated 3 September 2006, had already been executed as Mr Doveton now claims.[58]When the Credit Suisse funds became available on 17 October, Mr Doveton did not repatriate the funds to England, nor did he keep them at Credit Suisse in a further fiduciary time deposit (as had been suggested as a proper course in his counsel’s skeleton argument), but had them transferred to Liechtenstein instead. He then had a meeting with Collyer Bristow on 24 October, after which they wrote to the Treasury Solicitor on 25 October. This letter did not reveal the transfer of funds to Liechtenstein, because (as he admitted) Mr Doveton had not told Collyer Bristow about it. Instead it referred for the first time to a trust in favour of Trixilis, said to have been established on 3 September, and also to confidentiality agreements between Mr Doveton and that company. This letter, also written on Mr Doveton’s instructions, clearly suggested that Trixilis was independent of Mr Doveton. That was misleading. In cross-examination Mr Doveton conceded that he needed no-one else’s approval or consent in order to direct Trixilis to take any given action.[59]On 30 October Mr Doveton terminated Collyer Bristow’s retainer, and they came off the record. The following day Mr Doveton went in person to the offices of the Treasury Solicitor and handed to their Mr Piers Doggart copies of the declaration of trust in favour of Trixilis in respect of the estate funds. He told Mr Doggart that he was subject to obligations of confidentiality owed to Trixilis, but did not then provide copies of the two confidentiality agreements. According to a witness statement provided by Mr Doggart shortly afterwards (which was not challenged) Mr Doveton emphasised on more than one occasion that he no longer had control over the funds. That was untrue.[60]This new information led the Treasury Solicitor to issue a further application. They did not believe that Mr Doveton had no control over Trixilis, partly because its given address was the same as the Isle of Wight property where his mother lives, and they applied for the immediate repatriation of estate funds, together with the surrender of Mr Doveton’s passport and other relief also. On 3 November, on a without notice application, Lawrence Collins J made an order requiring the surrender of Mr Doveton’s passport and his immediate compliance with the disclosure parts of the order made in September by Briggs J.[61]On 6 November that order was served on Mr Doveton. He immediately applied to set it aside, supporting his application with two witness statements setting out an account of his own background and exhibiting copies of the declaration of trust relating to the estate funds and (for the first time) the confidentiality agreements. In regard to the estate funds he wrote : — ‘I can confirm that I granted a power of attorney to TIC [Trixilis] on 3 September 2006 in respect of the Credit Suisse account where the estate monies were held. The monies were held with Credit Suisse under the terms of a fiduciary time deposit (FTD). Following maturity of the FTD on 17 October 2006, TIC instructed Credit Suisse (pursuant to the power of attorney) to transfer £925,000 to another bank. The said funds left Credit Suisse on 18 October 2006. Again, I submit that it is unreasonable and unduly onerous on me to be forced to disclose where the money is currently. If I were to, I would be in breach of my contractual and fiduciary obligations to TIC. The bank account where the £925,000 is currently deposited is an account controlled by TIC. The monies are again held on a FTD which matures on 27 December 2006. I no longer have the power or control to unilaterally transfer the said monies from the said bank account.’ This passage was as misleading as the earlier skeleton argument and letters, suggesting that Mr Doveton had no influence over Trixilis, and incidentally concealing (by not disclosing) the removal of the funds from Switzerland to Liechtenstein.[62]Lawrence Collins J nevertheless made the order on 7 November, requiring the surrender of Mr Doveton’s passport and the immediate delivery-up of estate assets. He warned Mr Doveton in the clearest terms of the possible consequences of any breach. After court the Treasury Solicitor asked Mr Doveton to surrender his passport straight away. He went home and, according to him, decided on the way that he would not surrender his passport but would leave the country instead. That evening he flew to Zurich, and the following day to Johannesburg and Durban in the Republic of South Africa. He did not tell Miss Wadsworth that he was leaving, or where he was, but he was able to communicate with her by cell-phone and by e-mail from internet cafés. Apparently he had a long-term plan to take up residence in South Africa, where a cousin of his was living. He evidently asked his mother to arrange for some documents in relation to his residence application to be sent to his attorney in Pretoria. His mother sent those documents to Miss Wadsworth, and on 10 November she in turn sent them on to Pretoria.[63]On 8 November 2006 Lawrence Collins J issued a bench warrant for Mr Doveton’s arrest. Soon afterwards committal proceedings began. Orders were made to search the premises owned by Mr Doveton. The searches took place on 20 November 2006. The estate funds were thereby traced to Liechtenstein, and a court order was obtained in that jurisdiction to freeze the account.[64]When the search order was executed in respect of the Woolwich flat, Miss Wadsworth was living there alone. This intrusion was traumatic for her, as I accept. The search began at 6.30 or 7.00 in the morning and took a long time. I shall however mention just two things which transpired : —(a) First, she was asked what she knew about Trixilis, and she replied by saying that she knew nothing except that she showed them a rubber stamp and a seal-punch for the company in the flat. These two items were taken away.(b) Second, Miss Wadsworth was asked if she knew where Mr Doveton was and said that he was ‘away’ but she did not know where. It was put to her in cross-examination that she had been asked to give ‘his likely whereabouts’, and she could have indicated South Africa as a possible destination. Her evidence before me continued to be that she genuinely did not know where he was. I accept that evidence, partly because much of the other evidence also suggests that Mr Doveton kept her in ignorance of many details of his affairs. I also accept her evidence that the relationship was in one of its less committed phases at the time. Mr Doveton had cancelled arrangements for their marriage, and the couple were not always together. They remained a couple, but Miss Wadsworth was staying at her father’s house more often than before. On the other hand the fact that his mother and she had had to be involved in getting documents sent to Pretoria ought to have suggested that he was at least abroad.[65]Miss Wadsworth was also asked to make an affidavit pursuant to the terms of the search order, and on 24 November she made a witness statement, not an affidavit, stating among other things that Mr Doveton and she had ended their relationship, that she thought that Mr Doveton was currently ‘abroad’ but she did not know where, and that she did not know any facts or details concerning Trixilis.[66]In cross-examination it was put to Mrs Doveton (as she now is) that on Mr Doveton’s version of events it was untrue that she knew nothing about Trixilis. She had witnessed Mr Doveton’s signatures on the three declarations of trust affecting his own three properties, and also on the declaration affecting the Hedley Court property. She had confirmed that these deeds had been executed on 3 and 13 September respectively, in which case she would have known that Mr Doveton was (or had been) acting as an authorised signatory for Trixilis.[67]She was in a dilemma here. If these four deeds had not in fact been executed before the time of the search, then her answers during the search and in her witness statement were true and correct. But that would destroy the credibility of Mr Doveton’s case and would demonstrate far more easily that he had been in breach of court orders. By contrast, if she maintained the position that the deeds were in being before the proceedings began, then her protestations that she knew nothing about Trixilis would be unpersuasive (to say the least). In the event her evidence was that, during the trauma of the search, the documents which she had witnessed had slipped her mind, and when it came to her witness statement a few days later she did not think the deeds relevant. She said that she did not intend to mislead anyone. This contrasted strongly with her very definite evidence that the true date of the Hedley Court deed was 13 September, and that she was able to distinguish that deed from all the other deeds which she had seen because she knew that it related to the Hedley Court flat and that it was executed just after one of Mr Doveton’s meetings with Collyer Bristow.[68]The freezing of the Liechtenstein account meant that Mr Doveton no longer had access to liquid funds, and he was thereby brought to the negotiating table. On 24 November he telephoned the Treasury Solicitor and reached an agreement that, if he came back to England and co-operated in the repatriation of the estate funds, they would not press for his imprisonment for contempt of court. On 7 December he flew back, was met at the airport and taken directly to court before Lightman J. This time he did have to surrender his passport, and he was again reminded in clear terms of the consequences of any further breach of court orders.[69]Despite that, on 10 December, Mr Doveton applied to the Land Registry to enter restrictions against the titles to his own three properties, prohibiting any disposition to be registered without the written consent of Trixilis. On 3 January 2007 he made a similar application in respect of the Hedley Court property, this time on behalf of Trixilis. This one was signed over the ‘office of the chief executive’ stamp with the same or a similar squiggle signature used by Mr Doveton on the declaration of trust itself.[70]For some months in 2007 the action reverted to a more normal course of preparation for trial, but I shall describe one further skirmish in the battle. In the context of disclosure Lindsay J made an order on 11 December 2007 ordering (amongst much other relief) that Mr Doveton must sign and send letters to several banks requiring them to disclose all relevant documents to the Treasury Solicitor, and also to persons other than banks holding documents relating to assets. The Treasury Solicitor asked Mr Doveton to sign one such letter addressed to Heritage Trust Group. He resisted that on the ground that Heritage held some privileged documents, but agreed to sign a letter asking Heritage to send documents to the supervising solicitors Bates Wells & Braithwaite instead. He did indeed sign such a letter, and it was received by Heritage on 21 January 2008. They initially queried the solicitors’ status, and in the interim Mr Doveton telephoned Heritage to countermand the instructions in the letter, claiming to Heritage that he had signed it under duress. When Heritage asked for written confirmation, he e-mailed on the same day, ‘. . . Please do not reply to Bates Wells & Braithwaite. Please do not reply to the Treasury Solicitor.’ Despite this, when Bates Wells & Braithwaite explained their status, Heritage complied with the letter on 11 February 2008.[71]In the meantime, on 11 January 2008, Mr Doveton had arranged for Greenland Limited to resign as director of Trixilis, to be replaced by Mrs Doveton, and for the share in the company registered with Tanaldi Limited to be transferred to Trixilis Investments Corporation Limited, an English company which he had established during the previous year. Later, on 12 May 2008, Mrs Doveton resigned her directorship in favour of Mr Doveton himself. In evidence Mr Doveton told me that the English company is a wholly-owned subsidiary of Trixilis (the BVI company), so that they each hold all the shares in the other.

Findings of fact on the evidence

[72]I turn now to make findings of fact on the basis of this material, beginning with the documents dated 3 September 2006 which purport to give interests in different assets to Trixilis.

The Trixilis documents

[73]At the outset it can be said that it is to me literally incredible that Mr Doveton could have executed any of the declarations of trust during September 2006, whether on the 3rd or 13th of that month. I have already said that I accept that the formation or acquisition of a BVI company may have been discussed in August, but it is clear from documents received from Heritage that Trixilis was not made available to Mr Doveton in any sense which I recognise until 5 October 2006. Before then, any declaration in favour of Trixilis would have put the property outside his control and into the control of the original company-formation agents in the BVI. If he really had made declarations of trust at that time in favour of this offshore company, it would have been directly contrary to his own personal interest as well as being a serious dereliction of his duties as executor.[74]In any case even the evidence on which he relies as to the dates of the documents has been marked by alterations and inconsistency. He has been consistent only in maintaining that the deeds were all executed after the commencement of the present proceedings. Thus the deed dealing with the estate funds was variously dated to 2 and 3 September 2006 (a Saturday and Sunday), and the confidentiality agreements variously timed in the morning and the evening of 3 September. Mr Doveton finally put them in the evening. Mrs Doveton’s evidence is that the deeds were executed in a rush, before going out biking on the Sunday, but it could not be explained why the documents had to be rushed. She also exhibited credit card statements of both herself and Mr Doveton to confirm the date. But the relevant entries show (or suggest) only that Mr Doveton was in Zurich on 31 August and the Isle of Wight on 1 and 2 September, that they were both in Gravesend on 2 and 3 September (both buying petrol there), and that Mrs Doveton apparently bought petrol in Gravesend on 4 September. This is certainly consistent with them going out biking on 3 September, but it goes no further than that in demonstrating the date of the deeds.[75]The visible evidence of the different rubber stamps used on some but not all of these documents is also significant. Mr and Mrs Doveton could not explain why no company stamp was used on the documents relating to Mr Doveton’s own three properties, as would naturally have been expected if they had been executed at the same time as the deed dealing with the estate funds and the confidentiality agreements. The alternative explanation, favoured by the Treasury Solicitor, is that these documents were executed after the Treasury Solicitor had taken possession of the rectangular rubber stamp, and indeed after Mr Doveton had returned from South Africa.[76]Equally Mr Doveton could not explain why a different stamp was used on the deed relating to the Hedley Court property. Mrs Doveton’s evidence that the Hedley Court deed was executed on 13 September was equally unpersuasive, and in my judgement it was untrue. Again it needs to be borne in mind that Trixilis had not come under Mr Doveton’s control at that date. Her evidence about this date was far more specific than almost any other part of her evidence, and she pinpointed the timing of the deed by reference to a meeting which Mr Doveton had had with Collyer Bristow earlier in the day. It is possible that there was a meeting with Collyer Bristow on 13 September, but the only written evidence of it is an entry in Mr Doveton’s diary, which he admitted was not always contemporary. If there was a meeting on that day, it appears to have been the first of such meetings, and yet Mrs Doveton did not describe it as such. Conceivably the deed really was signed after a meeting with Collyer Bristow, but if so it must have been after a meeting held following Mr Doveton’s return from South Africa, for instance the meeting on 24 October. Mrs Doveton’s evidence in cross-examination in regard to this date was not satisfactory. She repeatedly tried to refer back to her written witness statement to check what it said, even persisting in that attempt despite specific and increasingly urgent requests by Mr Peto to answer questions on this matter from her own memory.[77]I have already commented on the forensic dilemma which Mrs Doveton faced in regard to the dating of these deeds, and the same comments apply with even greater force in regard to Mr Doveton’s evidence. He was anxious not to admit that he had executed deeds in relation to the estate assets, and indeed his own assets, in breach of the freezing order. This involved maintaining that the deeds were executed on 3 September or, in the case of the Hedley Court deed (although only after the Treasury Solicitor had demonstrated the falseness of the date actually appearing on the deed), on 13 September. And yet that also involved claiming that he was (or believed he was) in control of Trixilis before 5 October 2006, which I regard as inconceivable.[78]It is also significant that Mr Doveton did not produce or reveal these documents all at once. He first produced the deed relating to the estate funds on 31 October 2006. On the same occasion he mentioned, but did not then produce, the confidentiality agreements. These were instead exhibited to a witness statement on 6 November 2006. None of these documents had been mentioned to the court when Collyer Bristow wrote their first letters to the Treasury Solicitor on 27 September 2006, Mr Doveton’s only explanation being that he did not choose to tell them about Trixilis at that time, which was no doubt true so far as it went. But it did nothing to explain why he did not reveal the first deeds to them then, if they existed at that time, given that he was happy to reveal them (and rely on them) later. During the search of the Woolwich flat in November 2006 Mrs Doveton told the Treasury Solicitor that she knew nothing about Trixilis, apart from the stamp and the seal-punch, and in my judgement that was true, as was her witness statement to similar effect given shortly afterwards. The execution of the search order was a traumatic one. But having seen Mrs Doveton in the witness box, she does not strike me as a person who would readily or deliberately lie or obfuscate during an event of that kind. She is indeed an inexpert liar, and to her credit she is in my view not an habitual one[79]Similarly, Mr Doveton did not reveal the deeds relating to his own properties until 10 December 2006, soon after his return from South Africa, and after he had surrendered his passport, and after the rectangular stamp had been removed from the flat. These three deeds were witnessed by Miss Wadsworth and did not bear a company stamp at all. Mr Doveton had not mentioned these deeds when applying to set aside the freezing order in early November 2006, but they could have been executed before then.[80]The deed relating to the Hedley Court property did use a rubber stamp, but not the original rectangular one. This deed was not revealed until 3 January 2007, but it could have been executed before then. If Mrs Doveton’s evidence is true in part, namely that it was executed after a meeting with Collyer Bristow, then it must have been executed before Mr Doveton dispensed with their services on 30 October, perhaps after the meeting which he did have on 24 October.[81]My conclusion is that these deeds were all dated after 3 September and indeed after 13 September 2006. They were probably executed in each case not long before the dates I have mentioned : 31 October 2006 for the deed relating to the estate funds and the confidentiality agreements; 10 December 2006 for the deeds relating to Mr Doveton’s own three properties; 3 January 2007 for the Hedley Court deed. It is however possible that all or most of them were executed before the end of October 2006, with some of them revealed later after a period for reflection. Either way, it follows that I have not accepted the evidence of Mr and Mrs Doveton as to the dating of these documents. They have collectively maintained a consistent position, and Mrs Doveton has evidently persuaded herself to maintain the same position, inevitably leading her into the forensic dilemma which I have mentioned.[82]The whole history of Mr Doveton’s reaction to these proceedings shows a staggering disregard for the authority of the court. It also shows a strong propensity to lie or tell half-truths whenever he feels it desirable to do so. The phrase ‘economical with the truth’ might even have been invented with Mr Doveton in mind, always remembering that it is a euphemism for lying or (at best) showing a lack of candour. There were occasions when his evidence had a distinct ring of truth, as when he denied having obtained Mr Janovtchik’s death certificate and the Janovtchiks’ marriage certificate from the internet in April 2006. But such moments created a contrast with much of his other evidence, which lacked the same conviction despite the witness’s brave face being preserved intact almost throughout the hearing. His strategy has also involved him persisting in an untrue account of the events surrounding the making of these important documents.[83]It follows from this that I have treated the evidence of Mr Doveton and of his wife with extreme caution. Mr Doveton was in the witness box for over two days, and the character of his evidence was exposed to rigorous examination. In general he maintained his position, but there were numerous points at which he had no convincing answer to a specific question, or no convincing explanation for a significant point of doubt. Mrs Doveton by contrast is, as I have said, not a natural liar or a practised one. Much of her evidence I found to be true, but in my judgment she allowed herself to be persuaded to maintain her husband’s case in regard to the dating of the declarations of trust, leading to the forensic dilemma which I have mentioned and ultimately some untruths.

The disputed will

[84]Turning more specifically to the disputed will itself, the Treasury Solicitor has drawn attention to several features which not only cast doubt on the validity of Mr Doveton’s account of the facts but, the Treasury Solicitor submits, amount to convincing evidence that the disputed will is not genuine. The following three are important :—(a) The contents of the disputed will are one cause for the Treasury Solicitor’s suspicion. The most obviously surprising feature is the appointment of Mr Doveton when a 14-month-old child as one of the co-executors, on whom she (being 61 years of age in 1977) imposed the duties of executorship and trusteeship and gave a discretion about her own funeral arrangements. Another is the omission of all reference to her husband Viatcheslav.(b) One of the most unusual features of the disputed will is that the principal surname on Mrs Janovtchik’s will is given as Janovtechnik, whereas the Treasury Solicitor has found no other document using that name amongst her papers recovered from Heathland Court.(c) The third point of suspicion on the part of the Treasury Solicitor was the unusual nature of the signature on the disputed will.[85]In my judgment these factors do indeed amount to significant grounds for suspecting that the disputed will is not genuine. I shall deal with them in the same order.

The contents of the disputed will

[86]It is obviously unusual to appoint a 14-month-old child as an executor, even if he is only one of many.[87]It is also strange for Mrs Janovtchik to have made Mr Doveton her sole beneficiary, in preference to her own husband. Mr Doveton was little or nothing more than the young son of a close chess-playing friend of her husband. The choice becomes stranger still in the light of Mr Doveton’s own evidence about the custody of the will in later years, namely that it was not retained by Mrs Janovtchik herself. I have also seen documentary evidence in the form of correspondence between Mrs Janovtchik and her husband’s solicitors after his death in 1997, which suggests that the solicitors understood from her that she had not at that time made a will.[88]The contents of the disputed will become even more surprising when Mr Janovtchik’s 1977 will is considered. I have already mentioned the similarities and also the differences between the two wills, and it is the differences which are important here : no use of the surname Janovtechnik; the new or re-inked typewriter ribbon. The contrasts with the disputed will are clear. If the two wills were made together, as Mr Doveton claims, it is even more surprising that the couple did not leave their estates to each other in the first instance.[89]The appearance of a new or re-inked typewriter ribbon becomes more significant with the discovery of documentary evidence in the form of an e-mail showing that on 20 August 2006 Mr Doveton ordered a typewriter ribbon (or perhaps a package of typewriter ribbons) on the internet from the website mytypewriter.com in the United States for $45. He chased this up with an e-mail to the supplier on 29 August. The reply from the supplier claimed that the package had been delivered to Great Britain on 25 August.[90]I may say that the purchase of a typewriter ribbon proves nothing, but Mr Doveton’s evidence in regard to this purchase is more telling. He says that he ordered the typewriter ribbon because he was thinking of buying his mother a re-conditioned typewriter and wanted to check the bona fides of the supplier. He claims that the typewriter ribbon was delivered only in the last few days of September, after the present proceedings had been served on him. By that time he no longer needed a typewriter ribbon because he had decided to buy his mother a word processor instead. He explained that parcels sent to the Woolwich estate where he lives are generally delivered to a porter’s office or concierge. He says that the concierge actually showed him this parcel when it arrived, that he did not take it away with him then but said that he would pick it up later. In the event he says that he did not pick it up at all, and now understands that after a time the policy of the concierge is to throw away uncollected parcels or to have them returned to the sender.[91]This account has all the hallmarks of a fabrication. And the fabrication became clearer when Mr Doveton explained, during his cross-examination by Mr Peto, that one reason for not collecting the parcel was that by the end of September the present proceedings had been served on him, making an allegation of forgery in respect of a typed will, and ‘I didn’t think it was a terribly clever thing to . . .’, presumably intending initially to finish the sentence by saying ‘. . . to be caught with a typewriter ribbon’ or something of that kind. But it had evidently not occurred to him that, if his account of the facts were true, it would have been positively helpful to his case to have been able to produce an unopened package containing the purchased typewriter ribbon unused.[92]As I have said, the purchase of a typewriter ribbon itself proves nothing. But the fabrication of an implausible story to explain the purchase is more revealing, as is his inability to support it in oral evidence. I do not believe Mr Doveton’s evidence in regard to the typewriter ribbon. I have mentioned that the supplier claimed that the package had arrived in this country by 25 August. That statement is likely to have been true. The probability is that Mr Doveton collected the package from the concierge in the last few days of August (not the last few days in September as claimed), opened the package, used the typewriter ribbon, and later discarded it as being potentially incriminating.

The name Janovtechnik

[93]I have said that the Treasury Solicitor has found no documents at Heathland Court using the name Janovtechnik earlier in time than the doctor’s certificate given after her death. Mr Doveton also has found no other document using that name from documents which he recovered from 16 Hedley Court. He was offered the opportunity of searching the Heathland Court papers himself, in case the Treasury Solicitor had missed or suppressed relevant documents, but he did not take up the offer. That creates at least a supposition that he knew or strongly suspected that a further search would be fruitless. He rightly points out that none of this proves that Mrs Janovtchik did not use the name Janovtechnik in 1977, but the absence of any positive evidence of the name is still something which I need to take into account. Mr Doveton’s case is, essentially, that Mrs Janovtchik must have used the name Janovtechnik in 1977, and then it was used again at her death in 2005, and it is merely unfortunate that no evidence of its use in the interim period has survived.[94]The Treasury Solicitor’s explanation for use of the name is quite different, and I shall now set that out. This passage is largely derived from the evidence of Mrs Jones, and I bear in mind that it is not an explanation accepted by Mr Doveton.[95]Mrs Jones became the manager of Heathland Court some time after Mrs Janovtchik came to live there. After that she got to know her well. Mrs Janovtchik was never visited by any relations or friends. But she was an interesting conversationalist, speaking of her Belgian parentage, her war work in the French Resistance, her marriage to Mr Janovtchik, his infidelities, and his death before she moved into Heathland Court. At Heathland Court, and indeed elsewhere as well, Mrs Janovtchik was accustomed to use the surname Jansen, principally because she found that English people tended to mispronounce her true name. Nevertheless she was proud of the name Janovtchik and she would often pronounce the last syllable ‘tchik’ with emphasis, sometimes with an audible pause before that final syllable. Mrs Janovtchik was also a considerable writer of letters, notes, diaries, memoranda and so forth, and these contained many examples of her handwriting. Some of these had signatures, sometimes using the surname Jansen, at other times Janovtchik with a capital J, sometimes (especially when writing in French) Ianovtchik with a capital I, also adding her maiden name Lambrecht. By contrast Mrs Jones says that she is not aware of Mrs Jansen ever using the name Janovtechnik, whether pronounced with a soft sound to render the letters ‘chn’ (as in the proper noun Chechnya) or a hard sound (as in the English word technical).[96]After Mrs Janovtchik’s death during the night of 27 and 28 November 2005 a doctor was called to the care home the next morning. This Dr Grippaudi was not her regular doctor, but was a member of the partnership practice regularly used by the home. He came to the home, examined the body in the presence of one of the staff (not Mrs Jones herself), and was given a surname for her. He was presumably told that Jansen was not her true surname. He then filled in a standard form certifying the cause of death. At the top of the form he filled in the name Janovtechnik in capitals. That spelling was no doubt derived from what he was told by the member of staff accompanying him, but whether it was identical to what he was told by the member of the staff or whether the doctor himself misheard or misspelled the correct name given by the staff member, is not known. The doctor left the form at Heathland Court to be processed by the staff there, as was the usual practice.[97]Mrs Jones then had the death registered. She did not do so immediately, because she wanted Mrs Janovtchik’s bank manager to confirm that he did not know of any friend or relative with special requests or instructions for the funeral arrangements, perhaps in a will, which might have had an effect on the registration process. After some days the bank manager did so confirm. This was consistent with what Mrs Jones understood from Mrs Janovtchik herself. In fact, Mrs Jones had in the past even asked her whether she had made a will and whether she wanted to make one, and Mrs Janovtchik had disclaimed any interest in making a will. Mrs Jones took the certificate to the registrar accordingly. She was not familiar with the spelling of Mrs Janovtchik’s true surname, but by the time she saw the registrar she knew that the name Janovtechnik at the top of the certificate was wrong, but she decided that it was simpler not to ask the doctor to change it. So far as she knew, there were no relations, and there was no will, so the exact surname was relatively unimportant. Even so, she drew the registrar’s attention to the mistake, as she saw it, but the registrar too declined to correct it. The death was therefore registered under the names Janovtechnik and Jansen. Mrs Jones now blames herself for this mistake on her part, and that she should have taken further steps to have the error corrected.[98]In January 2006 Mrs Jones made contact with the Treasury Solicitor’s office and handed over the papers which Mrs Janovtchik had had at Heathland Court, plus the death certificate. The bona vacantia office were not aware of any will, or of any living relatives qualified to inherit the estate on intestacy, so they made preparations to administer the estate. They became aware of bank accounts amounting to some £900,000, they lodged a caveat, and they advertised the estate on the bona vacantia website. This advertisement contained little detailed information, but it disclosed the two surnames Janovtechnik and Jansen, a locality (Wimbledon) and an estate worth £900,000.[99]Mrs Jones gave evidence that Mr Doveton visited Heathland Court some months after Mrs Janovtchik’s death. Her evidence, which I believe, is that she was unaware of any telephone call asking after Mrs Janovtchik (under any name) in May 2005 or February 2006. She says that Mrs Janovtchik had no visitors at Heathland Court during the whole period she also was there, and no telephone calls either. She explained that the home keeps a record of contacts of that kind, and she would have been pleased if anyone had telephoned Mrs Janovtchik or called for her in person. Her evidence was also that Mr Doveton introduced himself as a lawyer, did not mention that he was in possession of a will for Mrs Janovtchik (or Janovtechnik) or that he was a beneficiary of the estate. She has consistently said that he told her he had read of the death on the internet. Mr Doveton’s evidence, by contrast, was that he had told her that he had found Heathland Court on the internet, and that Mrs Jones told him that she had handed the relevant papers to the Treasury Solicitor and (though with contradictions in his evidence) that they had advertised the death on their website.[100]In my view the lack of any use of the name Janovtechnik amongst Mrs Janovtchik’s papers, either at Heathland Court or the Hedley Court property, coupled with Mrs Jones’s evidence of the circumstances in which the doctor’s certificate came to use that name, and the undoubted evidence that the same name appeared on the bona vacantia website in March 2006, are strong indicators that the name Janovtechnik on the death certificate and the website was simply a bad mistake, and that Mrs Janovtchik had never used the name herself. This itself makes it extremely improbable that she would have executed her will bearing that name, especially with the name right next to her own signature at the foot of the will.[101]Mr Doveton tried hard to persuade me that the name Janovtechnik may have been a version used by Mrs Janovtchik in 1977. He even suggested that the name may have been used by Mrs Rogers and Mr Futcher. But when asked how it would have been pronounced in such circumstances he was more doubtful. He himself tended to pronounce the ‘ch’ as a hard guttural sound as in the English word technical, but that seems inconsistent with Mrs Janovtchik’s own emphasis on the ‘tchik’ syllable which Mrs Jones reported.[102]I therefore believe Mrs Jones’s evidence that Mr Doveton told her that he had learned of the death on the internet, and disbelieve his own evidence that it was Mrs Jones who told him about the bona vacantia website.

The style of the signature

[103]I have already described the signature on the disputed will briefly. The capital D is formed by a simple downstroke with a distinct clockwise loop making almost a complete circle, with the downstroke appearing almost central to that open near-circle. There are no added curls or loops. The capital J is a simple downstroke veering to the left at the lower end, without a cross-bar at the top, and with no sharp corner and again no added curls or loops. The remainder is an unreadable squiggle, with a tall ascender towards the end crossed by a loose horizontal stroke (suggesting the cross to a lower-case T).[104]Mr Doveton has produced several documents from the Hedley Court property bearing a similar signature, and I shall discuss those in the next section of this judgment. But what can be said now is that no similar capital D or capital J appears in any of the written material taken by the Treasury Solicitor from Heathland Court after her death. Generally her signature on such documents, where a signature was called for at all, took the form of her name, in one form or another, written virtually in what can only be her normal handwriting. That handwriting appears to me to be a fluent, mature and relaxed style marked by a number of loops and curls for serifs : —(a) A capital D, for example, was usually written without lifting the pen from the paper, with an initial down-stroke followed by a small loop at the foot leading to an anti-clockwise semi-circle and a final flourish. There are exceptions, however, where she wrote it more plainly with a down-stroke and then a separate clockwise semi-circle. She tended to use this latter form especially when spelling out her name in block capitals and also in the phrase Dear Sir. But in these cases the upper and lower ends of the D always pointed away from each other, and never looped round towards each other as in the signature on the disputed will. The more cursive version is generally how she wrote the D in Denise or in a signature D J Janovtchik or a short-form signature like ‘D Jansen’.(b) Similarly with the capital J, sometimes she used a straight down-stroke (with no cross-bar) followed by a sharp corner to the left. But generally it appears with small rounded flourishes at the upper and lower ends. Her capital Is and capital Js were, to me, indistinguishable. By contrast the capital J in the signature on the disputed will adopts neither of the forms found in her other papers, and the only similarity is that it has no cross-bar.[105]At this stage of the analysis, however, all that can safely said about the signature alone is that it is suspicious, especially when considered alongside the other features mentioned above. I shall therefore turn next to the evidence of Dr Barr.[106]Before doing that I should mention some other facts which have intensified the Treasury Solicitor’s suspicions : —(a) First, one of the most curious documents in evidence is what was described as a ‘compliments slip’. On closer examination it is the upper part of an A4 page, bearing a printed letterhead, with the lower two-thirds cut off and absent. On the back is the type-written text of the first few lines of the disputed will. I shall explain the significance of this in a moment.(b) Second, they point to the fact that Mr Doveton did not produce the disputed will, or get in touch with Mrs Janovtchik during her lifetime, despite being in possession of the will since December 2000 according to him. He also omitted to search her out in order to give her her husband’s 1977 will, which (for all he would have known) might have been important to her.(c) Third, they point to Mr Doveton not telling Mrs Jones that there was a will or that he was an executor.(d) Fourth, they complain that the document warning off their caveat was not served on them.(e) Fifth, they point to form PA1 in which Mr Doveton describes the estate as comprising cash worth £274,000, suspiciously just below the threshold of an excepted estate for inheritance tax purposes.(f) Finally they point to the rapid removal of cash from the estate and from the United Kingdom, shortly after probate was granted.[107]Most of those further points speak for themselves. As to the so-called compliments slip, this was a document found at Mr Doveton’s flat during execution of the search order there. Part of its significance is that the letterhead on one side of it is in the name of Mrs Raymond Wylie-Harris, and her addresses are given as 5 Montpelier Square in Knightsbridge and 4 Stephens Court in Romsey. It is clear that Mr and Mrs Wylie-Harris were not married until 27 August 1977, more than three months after the date borne by the disputed will. Also the two addresses are not the same as the Hertford Street address appearing in the disputed will. On the other side are the first nine lines of what seems to be an attempt to type up the disputed will. These lines contain the identical text to the equivalent lines of the disputed will, down to the words ‘and the residue of my . . .’, except that(i) the typing skills are even less good,(ii) there is even a deletion with capital Xs at the beginning of the second line, and(iii) the number 16 in the Hedley Court address is written out as sixteen. ‘W1’ in the Hertford Street address appears as WI with a capital I as in the disputed will.[108]The addresses on the back of this typescript seem to demonstrate that it could not have been typed at the date of the disputed will. Conceivably it was a draft for a later will which was never executed. Mr Doveton himself, in submissions made to Henderson J on 5 March 2008, said that it appeared to be ‘almost a first draft’ of the disputed will. He said that he would shortly be making a statement explaining that the document was found at the Hedley Court property, which would explain how it came to be found in Mr Doveton’s flat. He was relying on the document to refute the Treasury Solicitor’s submission that no document other than the disputed will had been found to use the surname Janovtechnik. In evidence before me he gave different evidence, first saying quite clearly that he had found the document amongst his grandmother’s papers along with the 1977 wills. When faced with the contradiction, he did not want to admit that he had lied, and said that it had either been in the Hedley Court flat or amongst his grandmother’s papers.[109]Of the two explanations, it seems extremely improbable that a draft for the disputed will would have been handed over to Ena Doveton along with the wills themselves, recalling that on Mr Doveton’s version of events they had been transferred from the Janovtchiks to Mr Wylie-Harris, from him to Mrs Rogers and from her to Ena Doveton only in 1999. It seems equally improbable that, if it had been found at Mrs Janovtchik’s flat, Mr Doveton would have said in evidence that it had been found with his grandmother’s papers. Both explanations are improbable. At all events the compliments slip appears, on examination, not to be persuasive evidence of the independent use of the name Janovtechnik at the supposed time of the disputed will. It is equally explicable as an early attempt to create the appearance of a draft will, but if it was a draft for a will which was ultimately made on 19 May 1977 (for which there is no evidence at all apart from Mr Doveton’s own suggestion), it carried the error that the date of the Wylie-Harrises’ marriage was later than the date on the will. In the end the so-called compliments slip carries no evidential value either way.[110]As to the non-service of the warning, Mr Doveton gave meticulous evidence in his affidavit of service, and in his oral evidence, about placing the original warning (not a copy in accordance with the official instructions) into an envelope, buying a stamp for it, and bicycling with it to a post-box. In cross-examination he mentioned a number of telephone calls he made at this time to a Mr Pollard at the Probate Registry. The purpose of some of these calls was to check whether documents had arrived, including the affidavit of service. In contrast he admitted having made no attempt to telephone the Treasury Solicitor to check whether they had received the warning itself.[111]His explanation for that contrast was that he regarded the affidavit of service as more important. That is revealing, especially when considered alongside the date of the affidavit of service, 4 July 2006, some days before the deadline for the Treasury Solicitor to enter an appearance. The implication is that he knew already that the Treasury Solicitor would not (and could not) be entering an appearance, so that the affidavit of service could be prepared immediately. He then sent what seemed to him the more important document, the affidavit of service, to the Probate Registry as soon as the time for an appearance had expired. I therefore believe the Treasury Solicitor’s case, not only that they did not receive the warning, and disbelieve Mr Doveton’s evidence as to his attempt to effect its service.

Dr Barr’s expert evidence

[112]Dr Barr provided three reports in December 2006 and January 2007. I am satisfied that she was a witness with appropriate expertise as a forensic document examiner to advise on the issues with which she was presented. The third report merely stated that Dr Barr found no evidence of indentations on the face of the documents which she was asked to examine, and the first two reports are the important ones.[113]For the first she was provided with the disputed will and also numerous examples of Mrs Janovtchik’s handwriting, some with signatures. As to the disputed will she could not say how old or new the paper was or when it was typed or signed. She was able to conclude that the typewriter used for the will was different from the one used for all the other typed documents emanating from Mrs Janovtchik. She noticed another difference between the disputed will and Mrs Janovtchik’s other typed documents, namely that it used a capital I, instead of a lower-case L, to substitute for a the numeral 1, which may suggest that the disputed will was typed by a person unfamiliar with old-style typewriters in use before the days of word processors.[114]Dr Barr was also provided with two sets of documents in Mrs Janovtchik’s handwriting, distinguished by their provenance, which I have already mentioned : —(a) One set consisted of documents found at Heathland Court which had been in the possession of the Treasury Solicitor from the time when they began to administer Mrs Janovtchik’s estate.(b) The second set consisted of documents which Mr Doveton had found at Hedley Court and which he had exhibited to a witness statement of 14 December 2006. The point of this exhibit was that the Treasury Solicitor had drawn attention to the obvious differences in appearance between the signature on the disputed will and what they regarded as Mrs Janovtchik’s normal signatures, numerous examples of which they had seen in documents from Heathland Court. As I have said, these latter signatures are legible and written in virtually the normal handwriting of Mrs Janovtchik. Mr Doveton responded by exhibiting a large selection of documents found at Hedley Court with signatures in the same style as the one on the disputed will.[115]Dr Barr found that the form of the signature seen in this second set of documents, which she describes as a ‘pictorial’ signature, does not occur on any documents other than those in that second set.[116]My own evaluation of this evidence is that few of the documents in the second set are documents which one would expect to see signed at all. One is a two-page memorandum summarising Mrs Janovtchik’s war work in the French Resistance. Another is a three-page typed chronology of correspondence and other documents relating to the proceedings of an organisation with which she appears to have been associated. Some appear to be pages from a notebook or a diary. Most are simply carbon-copies of letters. All of these bear the pictorial signature which is also found on the disputed will, and Dr Barr’s conclusion that the same signature has not been found anywhere else (apart from the disputed will itself) is borne out by the totality of the evidence which I have seen.[117]The evidential value to Mr Doveton of his exhibit comprising these documents is therefore non-existent. If the disputed will was forged, then the signatures on this second set of documents in Mr Doveton’s possession could equally have been forged. By contrast, if the disputed will is genuine, then the coincidence that documents bearing a similar style of signature have been found only at Hedley Court and not at Heathland Court is striking. In fact, as Dr Barr also noted, there are two documents in the second set on which the signatures were written in Mrs Janovtchik’s more familiar handwriting style. One of these reads like a draft or copy of a letter, with Denise Jansen written as a signature at the bottom of one page (in her normal handwriting) and on the next page, for no apparent reason, a pictorial signature similar to that on the disputed will. The other is a short note dated December 1980 on a message pad, ending, ‘With Christmas greetings and all good wishes for the new year from Viatcheslav & Denise Ianovtchik-Lambrecht.’ This signature too is written in Mrs Janovtchik’s normal handwriting.[118]Dr Barr can and does draw no conclusion from these different signatures. She points out that the D and J in the pictorial will-signature were formed differently from the D and J in Mrs Janovtchik’s other signatures and in most documents in her normal handwriting. That coincides with my own observations. But she also recognizes that some people use more than one form for their signature, one pictorial version for some occasions and another more legible one used in other circumstances. She cannot rule out the possibility that Mrs Janovtchik had two versions, one the pictorial version used on the disputed will and also on the second set of documents produced by Mr Doveton, and the legible version written in her own normal handwriting and found everywhere else.[119]Her evidence is that there are two alternative conclusions : either that Mrs Janovtchik used a pictorial signature on the disputed will and on the second set of documents, but (I add) not on any other document which has come to light, or that the second set of documents contains a version of her signature produced by some other person making no attempt to copy her legible signature. She adds that there is strong evidence that the signature on the disputed will and those in the second set of documents were produced by the same person. She also advises that there is conclusive evidence that the disputed will was typed on a different typewriter from the one used for all the other typed documents traced to Mrs Janovtchik.[120]There is one further signature of Mrs Janovtchik which Dr Barr did not see but which is now in evidence. It is her signature added to her husband’s 1994 will as his executrix when she applied for probate in 2000. This signature is preserved on the probate copy of his will, and it is not in the style of the disputed will. It is instead in the same style as other signatures written in her ordinary hand-writing. It is true that this signature was written in 2000, whereas the disputed will is dated 1977. Even so, this is to my mind some indication, though by no means decisive, that Mrs Janovtchik used her normal-hand-writing signature on relatively formal documents as well as on letters and such like. This makes the first of Dr Barr’s alternative conclusions less likely, and the forgery alternative more likely.[121]In her first report Dr Barr had not been asked to examine the signatures of the two witnesses. In her second report she was asked also to consider Mr Janovtchik’s 1977 will, his 1994 will and codicil, Mrs Rogers’s 1967 will and Mr Futcher’s affidavit of 10 September 1991. She examined these documents to determine whether or not there is any evidence that the signature Mr Janovtchik on his 1977 will and the witness signatures on the wills of both Mr and Mrs Janovtchik are genuine signatures.[122]In this second report Dr Barr states that there is conclusive evidence that the two 1977 wills were typed on the same machine. She concludes from the darker type on Mr Janovtchik’s will that the ribbon was either re-inked or changed between the typing of the two wills or that a substantial number of documents were typed between the two (with Mr Janovtchik’s will typed first). In regard to that I may say that the second alternative is not advocated by either side in this action.[123]As to Mr Janovtchik’s signature Dr Barr’s advice is restricted by not having many specimen signatures available, and by having only copies of the 1994 will and codicil. She does however point to some features of the 1977 will : — ‘The pen line is very even, some of the curves are not smooth and there are blunt ends to a number of the strokes. Furthermore, the ending of the signature appears to show some overwriting and there are pen lifts that do not appear to be present in the specimens.’[124]Dr Barr concludes that she cannot express a strong opinion regarding the signature on the 1977 will. However, in her opinion, the features mentioned above provide some limited evidence that the signature of Mr Janovtchik is not his genuine signature. The possibility that it is genuine cannot be ruled out, however.[125]Turning to the signatures of the two witnesses on the two 1977 wills, Dr Barr was able to express a stronger opinion. In both cases she found that the questioned signatures bear a pictorial resemblance to the specimen signatures, such that they must either be genuine signatures or deliberate attempts to copy genuine signatures. Importantly to my mind, she drew attention to the almost precise size, shape and spacing between the questioned signatures and the specimens and as between the two sets of questioned signatures themselves. For each name, she found, the signatures on the two wills can be almost exactly superimposed, and concluded that such a very close similarity could not have occurred by chance. Close analysis through a magnifying glass revealed a number of pen lifts in the surnames of Mrs Rogers’s witness signature, particularly in the ‘og’ construction, which appears to have been constructed differently in the two witness signatures. These features, according to Dr Barr, together with the poor fluency and their superimposability, are what she would expect to find if the signatures had each been traced from genuine signatures. Her conclusion was that there is strong evidence that the witness signatures on the two 1977 wills are not genuine.[126]Mr Doveton tried to soften the impact of the evidence of superimposability by asking whether, if the signatures were written on the same day at a single sitting, it would be natural for them to be more similar to each other than if they had been written on different days. Dr Barr’s answer was :
‘In general, yes, signatures produced closer together in time are more similar one to another than ones produced on widely different times, but not this similar.’
And in answer to a similar question she said :
‘Not this similar . . . I wouldn’t expect them, even done on the same day, to be this similar.’
[127]I accept Dr Barr’s evidence, including its limitations and qualifications. Her evidence does not itself enable a conclusion to be drawn that the disputed will was a forgery, a point not lost on Mr Doveton. I do, however, take from her first report the possibility that Mrs Janovtchik’s signature on the disputed will is not genuine. And I take from her second report that there is strong evidence that the signatures of the witnesses are not genuine. I add to that that Mr Doveton’s knowledge of the signatures of Mrs Rogers and Mr Futcher and his association with litigation against Mr Futcher in relation to Mrs Rogers’s will have given him ample access and opportunity to trace their signatures if he were so inclined. I also bear in mind Dr Barr’s opinion that there is some limited evidence that Mr Janovtchik’s signature on his 1977 will was not genuine. With all that in mind, and having examined the signatures of the two witnesses myself with the aid of Dr Barr’s magnifying glass while she was giving evidence, I find that those signatures were not the authentic signatures of the two witnesses and were forged.

Conclusions

[128]Mr Doveton opened his case before me, and his closing submissions, by reminding me that he stood before me as an innocent man, and that he has the benefit of an existing grant of probate under an order of the court. I therefore repeat that I am aware of the seriousness of the allegations against him, and the possible consequences of a finding against him. At the same time there are obvious doubts about the two 1977 wills when considered collectively. In his submissions Mr Doveton admitted that the expert evidence about the two wills must in practice be taken together. For example, as he pointed out himself, it is inconceivable that the witness signatures could be forged and yet the other signatures genuine. But this does not assist Mr Doveton to any degree. In fact the strength of Dr Barr’s evidence about the signatures of the two witnesses to the disputed will, ignoring Mr Janovtchik’s will altogether, is almost enough in itself to find that the disputed will was not authentic. In fact forged signatures of the attesting witnesses are enough by themselves to make the will a forgery.[129]In the end I go further, because in considering the totality of the evidence before the court in this action, there are several factors which I cannot avoid taking into account, and I list them here in brief, in no particular order of significance : —(a) The obvious falseness of the witnesses’ signatures, coupled with Mr Doveton’s access to those signatures.(b) The use of the surname Janovtechnik in the disputed will, and the non-use of it in Mr Janovtchik’s 1977 will.(c) The appointment of Mr Doveton as a 14-month-old child as an executor.(d) The omission of Mr Janovtchik as a beneficiary of the disputed will.(e) Mrs Jones’s evidence that the name Janovtechnik on the death certificate, and therefore the bona vacantia website, was a mistake.(f) Her evidence that Mr Doveton had told her that he found the death on that website.(g) The lack of any independent evidence of any relationship at all between the Futchers or Dovetons and the Janovtchiks.(h) The disputed will being apparently typed by a person unfamiliar with old-style typewriters.(i) The pictorial signature on the disputed will having no equivalent in any document traced to Mrs Janovtchik, other than those in Mr Doveton’s possession and produced by him.(j) Mr Doveton’s failure to serve the warning on the Treasury Solicitor.(k) The use of the sum £274,000 in the form PA1.(l) The rapid extraction of cash from the estate accounts, followed by the only marginally less rapid transfer of funds to Switzerland and then Liechtenstein.(m) The similarities and differences in Mr Janovtchik’s 1977 will, in particular the appearance of a new typewriter ribbon, coupled with Mr Doveton’s purchase of such a ribbon (or such ribbons) and his implausible evidence in relation to that purchase.(n) His implausible evidence about the custody of the disputed will between 1977 and 2000, coupled with his failure to contact Mrs Janovtchik when, if his version of events is true, he found the wills.[130]Taking account of all these points, I return to the essential choice identified by Dr Barr, namely that the signature on the disputed will was either a pictorial signature (and a rare one unless Mr Doveton’s second set of pictorial signatures was genuine), or a forgery by someone making no attempt to copy a genuine one. The totality of the evidence, including also the evidence of Mrs Janovtchik’s signature on the probate copy of her husband’s 1994 will, leads me to the firm conclusion that the disputed will is a forgery. Despite the seriousness of that finding, and the seriousness of the possible consequences to Mr Doveton, I am satisfied of that conclusion not only on the balance of probabilities, and in the end I have no real doubt at all. Mr Peto described the case against Mr Doveton as overwhelming, and having considered it with the thoroughness which it deserves I have reached the conclusion that he was right.[131]I shall therefore make an order revoking the grant of probate made in favour of Mr Doveton on 28 July 2006, and I shall pronounce formally against the validity of the disputed will. I shall also order that a grant of letters of administration be granted to the Treasury Solicitor if so entitled. These last three words are added because, to date, there is no evidence of which I am aware to show that there are no relatives of Mrs Janovtchik capable of sharing her estate on intestacy. It was assumed throughout the hearing that there are no such relatives, but as far as I can see that is no more than an assumption at this point.

Insolvency Act 1986 section 423

[132]The Treasury Solicitor, by amendments authorised on 19 May 2008, asks for consequential declarations in relation to the dispositions made by Mr Doveton, both in relation to the assets comprised in Mrs Janovtchik’s estate and the assets formerly belonging to Mr Doveton personally. In relation to the estate assets the claim is for a declaration either that Mr Doveton’s dispositions of those assets were shams, or that they passed no beneficial interest to Trixilis, or that Trixilis received the assets as a volunteer in full knowledge that the assets were subject to the prior equitable interest of the Treasury Solicitor, or that they were made at an undervalue with the purpose of prejudicing creditors and that they therefore infringed section 423 of the Insolvency Act 1986. In relation to Mr Doveton’s own assets, the claim is for a declaration either that the dispositions bearing the date 3 September 2006 were shams, or that they failed to pass the beneficial interest to Trixilis, or that section 423 applies to them. Finally the Treasury Solicitor asks for the restrictions to be removed from the registered titles of Mr Doveton’s three properties and the Hedley Court property.[133]I would reject the claims based on sham and constructive trust. To the extent that these depend on the knowledge and intentions of Trixilis, the only director of Trixilis at the time of the dispositions was Greenland Limited, and I have heard no evidence as to the knowledge and intention of that company. Mr Doveton is apparently a director of Trixilis now, but he was not so in late 2006. I have seen and heard no evidence directed to whether he was a shadow director. Equally a claim for a constructive trust would depend on Trixilis being subjectively dishonest in assisting Mr Doveton’s breach of fiduciary duty, and I have heard no evidence of Greenland Limited being governed by a dishonest mind.[134]It would be possible to base my decision on the claim for a resulting trust. Despite the directorship of Greenland Limited and the paper title of Tanaldi Limited, Mr Doveton has acknowledged in evidence that he requires the consent of no one else in order to direct Trixilis to deal with assets vested in it. Indeed I understand that he has in fact co-operated, unilaterally, with the Treasury Solicitor already to the extent of repatriating estate funds held by Trixilis. This could well be the basis of a finding that Mr Doveton did not intend to confer any beneficial ownership on Trixilis, either in respect of the estate assets or of his own assets, so that Trixilis now holds them on a resulting trust for his benefit. That would perhaps be consistent with the otherwise mysterious clause 3 of the declarations of trust (clause 2 of the estate funds deed), to the effect that Trixilis acknowledged its dual role as a trustee and beneficiary of the trust fund.[135]But I prefer to base my decision on section 423 of the Insolvency Act 1986. Section 423(1) provides : —(1) This section relates to transactions entered into at an undervalue; and a person enters into such a transaction with another person if — (a) he makes a gift to the other person or he otherwise enters into a transaction with the other on terms that provide for him to receive no consideration; (b) he enters into a transaction with the other in consideration of marriage or the formation of a civil partnership; or (c) he enters into a transaction with the other for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by himself. And subsection (3) provides : —(2) In the case of a person entering into such a transaction, an ortder shall only be made if the court is satisfied that it was entered into by him for the purpose — (a) of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or (b) of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make.[136]The effect of all the dispositions relating to the estate assets is that without Mr Doveton’s co-operation those assets are beyond the reach of creditors, including the Treasury Solicitor when the grant made in favour of Mr Doveton is revoked. Having considered all the evidence in relation to Mr Doveton’s false dating of these dispositions and his subsequent reliance on them in order to defeat the operation of orders made against him in the proceedings, I am satisfied that this was his purpose in making them. In short I am satisfied that his purpose was to defeat or prejudice the interest of creditors within the meaning of the section. This does not depend on the actual date on which the several deeds were executed.[137]Equally in relation to the dispositions of Mr Doveton’s own assets, control of which the Treasury Solicitor was anxious to secure pursuant to the freezing order, the evidence which I have mentioned sufficiently demonstrates that the effect and purpose of the dispositions in question were to impede the operation of the freezing order and the Treasury Solicitor’s interests pursuant to it. Again I am therefore satisfied that Mr Doveton’s purpose was to defeat or prejudice the interests of creditors within the meaning of the section.[138]I am therefore prepared to make an order accordingly, setting aside the various dispositions. I shall also order the vacation of the restrictions affecting the registered titles to the several properties.

Cited in 1 later judgment