Hinton & Anor v Leigh & Anor [2009] EWHC 2658 (Ch)

[2009] EWHC 2658 (Ch)Case No HC07C03311
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/10/2009
Before
MR KEVIN PROSSER QC(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
Between
BERNARD HINTONClaimantsPATRICIA HAYESClaimant(1)SUSANNA LEIGHDefendants(2)SIMON REEVEDefendant
Peter John (instructed by LE Law) for ClaimantsTony Oakley (instructed by Barlow Robbins) for DefendantsHearing Hearing dates: 23rd, 24th, 25th February, 18th, 19th, 20th, 21st May
JudgmentMr Kevin Prosser QC:Introduction
[1]Victor Stanley Reeve (“Victor”) died on 17th June 2007, aged 85. He was survived by his adopted children, Susanna Leigh (“Susanna”) and Simon Reeve (“Simon”). He was also survived by relatives on his brother’s side, namely his brother’s widow Elsie Reeve (“Elsie”), Elsie’s children Patricia Hayes (“Patricia”) and Christopher Reeve (“Christopher”), and Patricia’s daughter Carry Clare Murphy (“Carry”).[2]Victor’s estate was worth about £750,000. It included his home, Willow Cottage in Weybridge, Surrey, valued at about £650,000, and an apartment in Spain.[3]About seven months before his death, on 11th November 2006, Victor executed what proved to be his last will (“the Will”). It is common ground that the Will was duly executed and that Victor had testamentary capacity on 11th November 2006.[4]The Will appointed an old friend of Victor, Bernie Hinton (“Bernie”), together with his solicitors, Messrs Guillaume Gosling and Wilkinson, to be the executors and trustees.[5]The Will gave nothing at all to Susanna, and just £5,000 to Simon. In a letter to Mr Fuller of his solicitors, giving instructions for the drafting of the Will, Victor said that it was his late wife who had adopted Simon and Susanna; that Simon had not been in contact for 10 years and never answered Victor’s letters or accepted his phone calls; and that Susanna had always been a worry, and had behaved badly towards Victor in a number of ways, the final blow being an abusive and untruthful letter which she sent in August 2006, accusing him amongst other things of having always been a very bad father.[6]Instead, the Will gave the bulk of Victor’s estate to Patricia and Carry. In addition to pecuniary legacies, he gave them Willow Cottage, and he gave Carry his residuary estate, including the apartment in Spain. As the letter to Mr Fuller explained, Patricia and Carry were “blood relatives and not just adopted”.[7]In addition, the Will gave a number of pecuniary legacies to Victor’s friends and relatives, including £3,500 between Bernie and Bernie’s wife Vivien (“Vivien”), and £4,000 between Christopher and Elsie.[8]Soon after executing the Will, on 28th November 2006, Victor was admitted to hospital with severe abdominal pains. Terminal cancer of the stomach was diagnosed. On 18th February 2007 he was transferred from hospital to a nursing home where he was cared for until his death.[9]In April 2007, Patrina Spencer (“Ms Spencer”), a non-practising barrister employed by Messrs Brett Holt, solicitors, visited Victor at the nursing home at Susanna’s request. Victor told Ms Spencer that Bernie and Patricia and the other beneficiaries of the Will were terrible people who were after his money. He wanted to revoke the Will so that they would not get anything; he wanted to die intestate so that everything would go to Susanna and Simon.[10]In accordance with Victor’s instructions, Ms Spencer drafted a document, which Victor executed on 24th April 2007, whereby he purported to revoke the Will and declared that he intended to die intestate (“the Revocation”).[11]Ms Spencer did not take the precaution required by the so-called “golden rule”, enunciated by Templeman J in Kenwood v Adams [1975] CLY 3591, of procuring that the Revocation was witnessed or approved by a medical practitioner who had satisfied himself of Victor’s capacity and understanding.[12]Bernie and Patricia are the Claimants in these proceedings, and Susanna and Simon are the Defendants. Bernie and Patricia claim that the Revocation is invalid on one or other of three grounds. First, Victor lacked testamentary capacity. Secondly, he did not know and approve of its contents. Thirdly, in executing it Victor was acting under the undue influence or fraud of Susanna.

Law

[13]There is no dispute about the relevant law.[14]First, it is for the Defendants to prove that Victor had testamentary capacity and also that he knew and approved of the contents of the Revocation.[15]Victor had testamentary capacity if, when he made the Revocation:(a) he understood its nature and effect;(b) he also understood the extent of the property affected by it;(c) he was also able to comprehend and appreciate the claims to which he ought to give effect; and(d) no disorder of the mind poisoned his affections, or perverted his sense of right, or prevented the exercise of his natural faculties; and no insane delusion influenced his will in making the Revocation and brought about a disposal of his property which would not have been made if his mind had been sound.[16]In the absence of anything to arouse suspicion, knowledge and approval may be inferred from a finding of testamentary capacity. But if the Court’s suspicion is aroused, then unless and until that suspicion is dispelled, actual proof of knowledge and approval of the contents of the Revocation is required.[17]Next, it is for the Claimants to prove that the Revocation was procured by the undue influence or fraud of Susanna.[18]There was undue influence by Susanna if she coerced Victor into revoking the Will. For this purpose, coercion involves Victor’s free will being overborne. In the absence of coercion, strong persuasion and heavy family pressures do not of themselves constitute undue influence.[19]There was fraud by Susanna if she caused Victor to revoke the Will by making accusations against Bernie and Patricia and the other beneficiaries of the Will which she knew to be false.

Evidence

[20]I heard oral evidence given by nine witnesses for the Claimants in addition to Bernie and Patricia themselves: Carry, Christopher, Elsie, Vivien, three old friends of Victor, namely Alice Bowles, Carol Hooper, and Arthur Bone, Mr Fuller of Guillaume Gosling and Wilkinson, and Dr Dan Lee who gave expert evidence as to Victor’s testamentary capacity by way of a written report and oral evidence.[21]These witnesses were not cross-examined by or on behalf of the Defendants, because the Defendants did not attend, and were not represented, when (on the first three days of the trial) the Claimants’ witnesses gave evidence.[22]In addition, an unsworn statement by Joan Fuller, an old friend of Victor who died in 2008 (no relation of Victor’s solicitor), and sworn statements by Sandra Gibby and Margaret Hyde, also old friends of Victor, were admitted in evidence.[23]I heard oral evidence given by four witnesses for the Defendants in addition to Susanna and Simon themselves: Susanna’s husband Bob Leigh (“Bob”), Mr Jim Trimble the manager of the nursing home (“Mr Trimble”), Ms Sheila Thomas, a nurse at the nursing home (“Ms Thomas”), and Ms Spencer.[24]The Defendants did not adduce any expert medical evidence.[25]The witnesses of fact for the Claimants gave clear and honest evidence, and I accept their versions of events.[26]In reaching this conclusion I have borne in mind not only that none of the witnesses was cross-examined but also that Patricia and Carry are the primary beneficiaries under the Will and therefore have a clear interest in the outcome of the proceedings, and that Elsie and Christopher are close relatives of Patricia and Carry, and so in that respect are also not independent witnesses. Nevertheless, I found Patricia, Carry, Elsie and Christopher all to be reliable witnesses, having regard in particular to the fact that their evidence was in all material respects consistent with that of the other, independent, witnesses for the Claimants.[27]By contrast, I did not find Susanna, Bob or Simon to be reliable witnesses. They were frequently vague and evasive and failed to give clear and direct answers to some of the questions put to them in cross-examination. On a number of occasions Susanna gave answers in cross-examination which I am satisfied were untruthful. For example she denied telephoning Mr Fuller on 13th December 2006 to ask whether Victor had signed the power of attorney, whereas Mr Fuller’s attendance notes showed clearly that she had. The reports which Susanna and Simon gave to the Protection of Vulnerable Adults meeting on 14th March 2007 about visits to Victor were also untruthful. Simon claimed that when Ms Calthrop visited Victor on 2nd May she remarked upon the tremendous positive difference compared to her visit in March, implying that the difference was in his mental health, whereas in fact Ms Calthrop noticed no improvement in Victor’s mental health. I also found Bob’s claim, in his supplemental witness statement, to be able to remember Victor’s state of mind on the particular day on which he executed the Revocation, not to be credible; particularly given that in oral evidence he said that he was confused about dates. In general I viewed the evidence of Susanna, Simon and Bob with some caution. In particular, where their evidence conflicted with that of the Claimants’ witnesses, I generally preferred the latter.[28]I also did not find Mr Trimble to be a reliable witness. In describing Victor as the most lucid patient he had ever known at the nursing home, and in claiming to remember his conversation with Victor on the day before Victor executed the Revocation, I found that Mr Trimble gave exaggerated and untruthful evidence. The report about visits to Victor which he gave to the meeting held on 14th March 2007 was also untruthful. I therefore also viewed his evidence with some caution.[29]The Claimants suggested that Ms Thomas, as an employee of the nursing home, was in a position of some difficulty and could not be described as truly independent. On the other hand, the Claimants acknowledged that she did her best to assist the Court. In my view, she gave honest evidence which I accepted.[30]I also accepted the evidence of Ms Spencer as to what Victor told her and how he appeared to her.[31]I comment below on the expert medical evidence of Dr Lee. Facts (a).

(i) Victor’s relationships with Susanna, Bob and Simon

[32]I have already referred to a letter from Victor to Mr Fuller giving instructions in October 2006 for the drafting of the Will. The letter contained what Victor called a “most important addendum” which I should set out in full:
“my late wife (Rosalie) soon after we were married said that she wished to adopt a boy and did so named Simon. He has lived at Chaudfontaine, Belgium having married a local girl named Pascale. Following an active life he is now not well in health. He has been left £5,000 in this will. He has not been in contact with me for 10 years and he never answers any letters I send him nor answer or accept any phone calls. Reason: he is ill. Now here is the very troublesome area, my wife adopted Susanna (who is now in her forties) who married Robert Leigh a Metropolitan policeman (a detective). [Then he made certain complaints about Susanna which I do not need to recite, and continued:] When I was in hospital [Susanna] broke into my house and stole and took away six items of furniture and other items. She and her husband go on holiday to my Spanish apartment but refuse to pay the rent due or for gas, water and electricity etc. She is an everlasting worry. Then in August this year (2006) came the final last blow. She sent me six foolscap pages written in her handwriting. In content it was a totally disgraceful letter to send. The letter was totally vicious, abusive, raging, vengeful, vindictive, vinegary, unwholesome, rancorous, pitiless, unjust, immoral, disrespectful, malevolent, and full of malice and spite and totally untrue. In my 85 years of life I have never been so shocked by any letter, note, phone call I have ever received. …My adopted daughter Susanna to whom my wife and myself had been so kind and helpful, even when she was so badly behaved and totally uncontrollable had these things to say about me: 1. I had always been a very bad father unlike her father-in-law who was so kind. 2. I had always disliked her- wrong. 3. I had never liked her- wrong. 4. I had never made any effort to see her children-wrong. 5. I had made life hard for her- wrong. This coming from a totally dysfunctional spiteful woman is really too much. She has been left a few thousand pounds in my will [I interject that Victor later changed his mind about this, so that the Will gave Susanna nothing at all] but this house, these cars, antiques and everything in Willow Cottage goes to my blood relatives Patricia Hayes and her daughter Carry Clare Murphy who are blood relatives and not just adopted. So: Mr and Mrs Robert Leigh must not get Willow Cottage, neither house, plot and contents indoors under any circumstances.”
[33]I have mentioned that the Will gave Simon only £5,000 and nothing at all to Susanna. This contrasts with an earlier will which Victor had executed in 2000, by which he gave Willow Cottage to Susanna, and the apartment in Spain together with his residuary estate to Simon.[34]However, Victor’s decision not to give Willow Cottage or the apartment in Spain to Susanna or Simon was not a new one.[35]Instead, the Will was part of a gradual process of disinheriting Susanna and Simon. This began in 2002 when Victor revoked the 2000 will and only gave Susanna and Simon the Spanish apartment, giving his residuary estate including Willow Cottage to Susanna’s daughter. It continued in 2005 when Victor revoked the 2002 will and only gave Susanna and Simon pecuniary legacies of £8,000 each, giving his residuary estate including Willow Cottage and the apartment in Spain to Carry.[36]The complaints made in the letter to Mr Fuller were also not new. Victor had for a number of years openly complained to friends and relatives about both of his adopted children, but in particular about Susanna. He told them that it was his late wife, Rosalie, who had wanted to adopt children, and that he had never wanted to do so.[37]It is not an exaggeration to say that in the last years of his life Victor was obsessed about who was going to inherit his property on his death. He frequently brought the subject up at meetings and telephone conversations with, and in letters to, friends or relatives. He often told them that Simon and Susanna would not get Willow Cottage; later he said that they would not get the apartment in Spain either.[38]Victor was not hostile towards Simon, but he was disappointed with him. He complained to friends and relatives that Simon, who lived abroad, had broken off contact, refusing to reply to letters or answer phone calls, so that Victor did not even know where Simon lived; and he also complained that Simon had failed to repay a loan which Victor had made to him.[39]By contrast, Susanna lived near to Victor and they did keep in contact, although there were periods when Victor refused to see Susanna or vice versa. He had a hostile and acrimonious relationship with Susanna for many years, in particular after Victor spent 10 weeks or so in hospital following a fall in 2001. Victor also loathed Bob, and in many letters and conversations to his friends and relatives in the years before his death he criticised Susanna and Bob, calling them a “ghastly couple” and “the Byfleet mafia”, and calling Susanna a “bad un”.[40]Victor often complained to friends and relatives about Susanna and Bob’s behaviour towards him. Examples of complaints are: while he was in hospital for 10 weeks she did not visit him, and she removed some furniture from his house and put it into a skip, and also had his dog put down without his permission, in the expectation, Victor later told his friends, that he would die in hospital and that she and Bob would move into Willow Cottage; when he left hospital Susanna and Bob simply left him at the front gate with his Zimmer frame; although he was still in pain he had to shop for his own food because Susanna would not shop for him. In some years she did not visit him at Christmas; there were periods when she did not permit him to see his grandchildren, so that for example one Christmas he had had to leave their presents outside the house because Susanna did not allow him inside. There were also complaints about money, for example that Susanna and Bob had spent holidays in Victor’s apartment in Spain but did not pay him rent or for use of electricity, gas etc.; and that she had failed to repay a loan which he had made to her. Victor often let friends and relatives read, or himself read to them extracts from, unpleasant and upsetting letters from Susanna or Bob criticising him and accusing him of being a bad father, including the one received in August 2006 to which he referred in his letter to Mr Fuller. (ii). Victor’s relationships with Bernie, Patricia and the other beneficiaries of the Will

Bernie

[41]Bernie and Vivien lived in Sutton, Surrey. They met in 1991 and married in 1993. Victor had known Vivien since 1963, originally as a work colleague, and Bernie since 1991. He spent Christmas with them on at least two occasions when he was not welcome at Susanna’s. He let them take holidays at his apartment in Spain, charging them a modest rent. Bernie sometimes helped Victor by repairing electrical appliances at his home such as the TV and the telephone answering machine. In a letter to Patricia written in 2005 Victor described Bernie as “such a lovely fella”.[42]Before he went into hospital in November 2006, Victor trusted Bernie and certainly did not think that Bernie was after his property. For example, in July 2006, when Victor decided to sell the apartment in Spain, but could not find the deeds, he asked Bernie to accompany him to Spain to obtain a copy of the deeds; in November 2006, Victor appointed Bernie as one of his executors; also in November 2006, when his solicitor Mr Fuller advised Victor that it would be sensible to execute an enduring power of attorney and appoint someone to administer his affairs in the event he became incapable of doing so himself, Victor replied on 18th November:
“I have a very worthy friend who is ideal for the position of attorney. I have spoken to him and he is in full agreement.”
He then gave Bernie’s name and address.

Patricia and Carry

[43]Patricia lived in Bath (she moved to North Shields in December 2006) and regularly visited Victor at Willow Cottage. Both Patricia and Carry kept in regular contact with Victor through letters and telephone calls. They had a good relationship with him.[44]The reason why Victor decided to give the bulk of his estate to Patricia and Carry was primarily because, as he explained in the letter to Mr Fuller, they were blood relatives. He was closer to Patricia and Carry than to any of his other blood relatives. In addition, Victor admired and respected Carry, whom he called “a good un”.[45]Victor frequently told friends and family that he intended to favour Patricia and Carry over Susanna and Simon. For example, on a number of occasions over the years Victor told Bernie and Vivien that he wanted to favour Patricia and her family in his will. In 2003 Victor separately told Patricia and Carry that he was considering leaving Willow Cottage to Carry because he wanted to keep the house in the family but did not want it to go to Simon or Susanna. In 2004 or 2005 he also told Christopher that he wanted Carry to have his property on his death so as to carry on the Reeve “bloodline”.

Christopher and Elsie

[46]Christopher and Elsie both lived in Wallsend, near Newcastle. Christopher used to visit Victor two or three times per year, staying at Willow Cottage for a few days on each occasion. He and Elsie also kept in regular contact by letter and telephone. They both had a good, but not a close, relationship with Victor.

(b) After Victor’s admission to hospital

[47]I have already mentioned that Victor was admitted to hospital on 28th November 2006; Susanna accompanied him to the hospital.[48]Victor underwent surgery, and terminal cancer of the stomach was diagnosed. Susanna was told of this, and was informed that Victor had only months to live.

(i) events relating to the Will while Victor was in hospital

[49]Shortly after Victor was admitted to hospital, Susanna went to Willow Cottage. She discovered letters to Victor from Bernie, which were critical of her, an unsigned power of attorney in Bernie’s favour (which Mr Fuller had sent to Victor on 24th November 2006 to sign), and the Will. She was upset and angry to discover that she was not a beneficiary of the Will, and that Victor had left Willow Cottage and the apartment in Spain to Patricia and Carry.[50]On 13th December 2006 Susanna telephoned Mr Fuller to enquire whether Victor had signed the power of attorney. Mr Fuller replied that so far as he was aware he had not. In her evidence Susanna denied have made such a call, but I find that this denial was untruthful. Mr Fuller had made a detailed attendance note of the call and I can think of no reason to doubt the accuracy of the note.[51]In January 2007, Susanna went to see a solicitor, John Reed at Messrs Michael Friend & Co, about the Will. In her oral evidence Susanna gave evasive answers as to the purpose of this visit. In his witness statement Bob said vaguely that having discovered the Will and some of the circumstances surrounding it Susanna decided to seek legal advice as to the situation should anything happen to her father. In my view Susanna wanted to find out whether there were grounds to challenge the Will. However, the solicitor’s advice was not encouraging.[52]I believe that, following her discoveries and this advice in January, Susanna sought to persuade Victor to alter the Will, and by early February she had succeeded in persuading him to do so.[53]That is, on 7th February Susanna telephoned Mr Fuller to say that Victor had requested that someone go to see him to discuss his financial affairs. I believe that she wanted Mr Fuller to attend in order to take instructions from Victor for the alteration of the Will. However, Mr Fuller said that he could not visit that week, but would see what could be organised for the following week. Susanna interpreted this as a refusal to visit the hospital.[54]On 12th February, Susanna delivered by hand to Mr Fuller a letter (typed by Bob ) dated 9th February and apparently signed by Victor, as follows: 60. I am presently at St Peters Hospital Chertsey where I am recovering from a serious illness. I still find writing at length difficult and have asked that this be written on my behalf. I wish to make some alterations to my will dated 11th November 2006. In particular to paragraph 7(i) with reference to Willow Cottage. I wish to change the beneficiaries from Mrs Patricia Hayes and Carry Clare Murphy to my daughter Mrs Susanna Leigh…Also paragraph 8, which refer to my residual (sic) estate. The Beneficiary is to be changed from Carry Clare Murphy to my daughter Susanna Leigh and to my son Simon Reeve. I also require that the executors and trustees be changed to Susanna Leigh and Simon Reeve and the company of Gosling and Wilkinson. I appreciate your assistance in this matter and ask that all related correspondence be sent to [Willow Cottage].” At the bottom of the letter is what appears to be Victor’s signature, and below that are the signatures of two of Victor’s neighbours, Mrs Fuller and Mrs Hyde, each dated 10th February 2007.[55]In order to obtain the neighbours’ signatures, Susanna visited them at their homes. She first went on 10th February, and obtained only Mrs Hyde’s signature; Mrs Fuller was out. She returned on 12th February and obtained Mrs Fuller’s signature. She then took the letter to the solicitor’s office on the same day.[56]Susanna and Bob gave evidence that the 9th February letter was written at Victor’s own initiative, and that Susanna was reluctant to speak to Victor about the Will or about his estate. However, I do not accept this: I find that the letter was written at Susanna’s initiative, and that she put pressure on Victor to sign it.[57]This finding is based in part not only upon the fact that the wishes expressed in the letter were totally at odds with those which Victor had expressed to Mr Fuller only a few months before, but also, and primarily, upon the fact that when Mr Fuller visited Victor at the hospital on 14th February because he was suspicious about the letter, the ward sister told him that Susanna had been in regular attendance on Victor and in her opinion had put him under a considerable amount of pressure; and when Mr Fuller asked Victor whether he wanted to alter the Will, Victor replied that he had been under pressure from Susanna. Mr Fuller did not pursue the matter because he formed the view that although Victor recognised him and could hold a normal conversation, he was easily confused and not of full testamentary capacity.[58]The Claimants contend that Susanna thought that the 9th February letter would have testamentary effect as a codicil to the Will, which was why she arranged for Victor’s signature to be witnessed, and why, when she later telephoned Mr Fuller about the letter, she called it a codicil.[59]That is, on 13th March Susanna telephoned Mr Fuller to say that she had delivered to his office what she thought was a codicil to the Will some time ago and was surprised not to have heard from him. Mr Fuller confirmed that he had received the 9th February letter, but said that in his opinion Victor was not of testamentary capacity (at this time Mr Fuller did not know that Victor’s signature had not been witnessed in accordance with the Wills Act).[60]However, I think that Susanna probably intended the letter merely to be an instruction to Mr Fuller to draft alterations to the Will.[61]The Claimants also contend that Victor did not even sign the letter, and that the signature at the bottom was a forgery. However, I think that he did sign the letter, albeit under pressure from Susanna.[62]In any event, it is common ground that the 9th February letter did not satisfy the formal requirements of the Wills Act: Victor did not sign it in the presence of two witnesses present at the same time. Therefore it had no testamentary effect.[63]Although it is not clear in what way Susanna pressurised Victor to alter the Will, I do not think that Victor signed the 9th February letter because he had, at this stage, changed his attitude towards Patricia or the other beneficiaries of the Will. Throughout the period while he was in hospital Victor showed no hostility towards, and made no criticisms of, any of them. On the contrary, when Patricia visited Victor on 11th December 2006 he told her that Susanna saw her as the enemy; and when she visited him on 2nd February Victor said as she left “You are a good un”. (ii). Victor’s mental condition while he was in hospital[64]Victor was visited in hospital on a number of occasions by friends and relatives. He had no difficulty in recognising them, and enjoyed reminiscing with them about the past. However, in contrast with his manner shortly before he went into hospital, he was often not “with it”, appearing to be vague and confused, sometimes not knowing what day it was and repeatedly asking how he had got there. His short-term memory became progressively poorer.[65]I have already mentioned that when Mr Fuller visited Victor on February 14th, he formed the view that Victor was easily confused and not of full testamentary capacity, in contrast with his manner when Mr Fuller had last seen Victor before he went into hospital.[66]However, it is likely that the confusion which Mr Fuller noticed on 14th February was attributable to a urinary tract infection, rather than to any permanent mental decline. On 14th February and before Mr Fuller’s visit, of which I believe Susanna was then unaware, she sent a text to Simon to say that Victor was very confused. She sent another text to him shortly after Mr Fuller’s visit to say that Victor was going to be tested to see if he had a “urine infection”. On February 16th Victor was indeed diagnosed as suffering from a urinary tract infection. Victor was particularly confused, sometimes experiencing hallucinations, whenever he had that infection.[67]On 15th February, Mr Fuller wrote to Mr Scott, Victor’s consultant at the hospital, asking for his opinion about Victor’s capacity. Andrew Ramwell, the Colorectal Specialist Registrar to Mr Scott, replied in March, and expressed the view that, having treated Victor over several weeks, he did have the mental capacity in which to make decisions: although he was not involved in any discussions with Victor about the terms of his will, Victor was able to use and weigh up information regarding his progress and treatment.[68]Victor’s mental capacity was tested on a number of occasions while he was in hospital.[69]The first test was an Abbreviated Mental Test performed by a medical student on December 14th: Victor was very confused, getting only 4 of the 10 simple memory questions right.[70]The next test was a Middlesex Elderly Assessment of Mental State (MEAMS) cognition test performed on 17th January 2007: Victor scored 7 out of 12, but the hospital notes say that he was suffering from a urinary tract infection at the time and that this should be taken into account in analysing the results of the test.[71]The next test was a Mini Mental State Examination (MMSE) performed on February 2nd: Victor scored 22 out of 30, which indicated mild dementia (a score of 26 down to 20 is mild dementia, and a score of 19 downwards is moderate dementia). (iii). visits and access to the nursing home[72]Victor was transferred from the hospital to the Kimberley nursing home in Surbiton on 18th February. This was arranged by Susanna: her husband Bob was the brother-in-law of Mr Trimble the manager of the nursing home.[73]On 20th February Mr Fuller wrote to Bernie, enclosing a further power of attorney. He suggested that Bernie should take it with him when he visited Victor, discuss with him whether he still wanted to appoint Bernie as his attorney, and if so, and if he was satisfied that Victor had sufficient mental capacity to understand what he was doing, have him sign it.[74]On 22nd February Bernie visited Victor at the nursing home. He took the power of attorney with him. However, he did not raise the subject because he thought that Victor was very vague and not in a fit state to discuss it.[75]On 27th February Carol Hooper and Alice Bowles visited Victor. They were surprised to see Bob feeding Victor with a spoon, when Victor appeared well enough to feed himself. Victor looked embarrassed and they left until he had finished his meal. When they returned, Victor at first seemed unhappy but he eventually started to reminisce with them. Bob remained in the room throughout the visit.[76]On 7th March Carol and Alice tried to visit again, this time with Vivien. There were now signs up saying that visitors to Victor should report to the matron, which they did. The matron told them that the family’s wishes were that Victor should not have any visitors. She refused to ask Victor whether he wanted to see them and turned them away.[77]Vivien and Alice returned later that day but again they were turned away.[78]On 9th March Bernie visited Victor. Instead of reporting to the matron he persuaded a cleaner to let him in. Victor was watching TV and seemed very vacant. He asked how Bernie had got there.[79]I accept Bernie’s evidence that he decided not to raise the subject of the power of attorney, and that he met Mr Trimble as he was leaving. But I think it is likely that while he was in Victor’s room Bernie had removed the power of attorney from his briefcase, and he was putting it back when Mr Trimble came into the room. That is, I also accept Mr Trimble’s evidence that on entering Victor’s room he saw Bernie putting some papers into his briefcase and then leave.[80]Mr Trimble telephoned Susanna to tell her what he had seen and that he suspected that Bernie was trying to get Victor to sign some papers, and this is the incident to which they and Simon later referred at the Protection of Vulnerable Adults meeting on 14th March, mentioned below.[81]Mr Trimble also gave evidence that after Bernie left Victor told him that Bernie had asked him to sign some papers but Victor had bluntly refused, and that Victor also suggested to Mr Trimble that Bernie had wanted Victor to transfer to him his apartment in Spain.[82]I accept that Victor said something along these lines to Mr Trimble. This is the first indication that Victor was becoming suspicious about Bernie’s motives for wanting to visit him.[83]In my view, Victor’s suspicions about Bernie were groundless and irrational. The fact that his old and trusted friend had produced some documents from his briefcase could not possibly justify a suspicion that he wanted Victor’s property.[84]On 13th March, Christopher came down by coach from Wallsend to visit Victor, but he was told that Victor was not well enough to see him. He was told that the police would be called if he did not go away. He returned later that day and again was refused entry.[85]On 14th March a meeting, called a Protection of Vulnerable Adults Strategy/Planning meeting, was held at the nursing home, chaired by Ms Penny Calthrop of Social Services (“Ms Calthrop”), and attended by amongst others Susanna, Simon, Mr Trimble, and Dr Fish (Victor’s new GP following his move to the nursing home). Notes were made of the meeting, and the following is a summary.[86]The meeting was held under the Protection of Vulnerable Adults procedure. Susanna had brought attention to the situation at the nursing home whereby a number of undesirable people had, on a number of occasions, gained access to Victor to request his signature on documents and there was concern that Victor did not have the capacity to cope with this. Mr Trimble expressed concern that there had been a number of visitors to see Victor, on different days/times, who arrived without prior notification and who did not introduce themselves on arrival. Some of these visitors seemed to want Victor to sign some kind of documents. There were times when Victor had seemed upset and disorientated after receiving those visitors. Simon said that Patricia, Bernie and several others were trying to gain access to Victor at the nursing home with the intention of gaining his signature on legal documents. He stated that the situation was unpleasant. Susanna reported that Victor was always delighted to see her and Simon but seemed unhappy and disturbed after some other family members had been to see him. She informed the meeting that whilst in hospital some weeks ago, there had been calls made to the ward from her cousin posing as herself, in order to elicit information about Victor’s condition. Her cousin/s had also told Victor previously not to eat food prepared by Susanna, as it would poison him. Victor had some short-term memory loss and she was concerned about the current situation and his ability to make his own decisions. She was happy for Victor to have visitors to socialise with him, but described previous instances where due to his mental health any stressful situations caused him to “take to his bed” and stop eating. The previous day Victor had enjoyed a visit from an old neighbour and this was the type of social visit they were happy with. Dr Fish said that he was not in a position to make a capacity judgment at that point in time. He was aware of the concerns regarding Victor’s mental capacity, was aware that he was vulnerable, and he would arrange a capacity judgment for early next week. It was decided that for Victor’s protection and well-being supervised visits should be put in place. Visiting times would be set at Tuesdays and Thursdays from 10am to midday. The visiting hours would be supervised with a member of staff and Susanna in attendance. Victor would need to be in agreement with this. Susanna would write to all those involved and inform them of the visiting arrangements. A copy of the letter would be typed up in large letters for Victor to read and sign.[87]The reports that “a number of people” (Susanna), “some of [Victor’s visitors]” (Mr Trimble), “Patricia, Bernie and several others” (Simon) were trying to obtain Victor’s signature on documents are untrue. Susanna, Simon and Mr Trimble cannot have believed that anyone other than Bernie had been trying to obtain Victor’s signature: at this time Patricia and her family had not even been able to visit Victor at the nursing home. Moreover, the references to “undesirable people” trying to obtain Victor’s signature on “legal documents” gave the false impression, which must have been deliberate, that people were trying to take advantage of Victor. Susanna must have known that Bernie wanted to get Victor to sign the power of attorney, but not so as to get any of Victor’s property for himself.[88]On Tuesday 27th March, Bernie and Vivien tried to visit Victor between 10am and 12 noon but were again turned away.[89]On 31st March, Susanna sent a letter to Victor’s relatives and friends, saying that due to recent conduct during visits which caused Victor some distress he had been interviewed by the Vulnerable Persons Unit at Kingston Social Services and was now the subject of a vulnerable persons protection plan. He would now receive visits on Tuesdays and Thursdays between 10am and 12 noon and all visits would be observed. Victor had expressed the wish that he should only receive visits from his close family. Whether or not he wished to receive visitors or any particular visitors was subject to frequent review and could change on a daily basis.[90]I do not accept that Victor had expressed the wish that he should only receive visits from his “close family”, that is from Susanna and Simon. As the notes of the 14th March meeting record, Victor had enjoyed a visit by an old neighbour the previous day; and as mentioned below Sandra Gibby had been allowed to visit Victor without any difficulty on 27th February.[91]In my view, Susanna and Simon did seek to restrict visits by Bernie, Patricia and her family. They did so because they did not want Bernie to get Victor to sign the power of attorney, and because they knew that Bernie, Patricia and her family disapproved of Susanna and Simon and were suspicious of their intentions and behaviour towards Victor, and would be likely to communicate their disapproval and suspicions to Victor.[92]In her oral evidence Susanna denied that she was in a position to regulate who got to visit Victor. However, this was untrue. For example, as mentioned below Susanna overruled the staff of the nursing home and allowed Sandra Gibby, who was not a member of the family, to visit on 27th February.[93]Bernie, Patricia and Christopher made a number of complaints to Social Services about not being permitted to visit Victor in the nursing home against, as they thought, Victor’s wishes. They believed that Susanna was doing this in order to be able to exert influence over Victor and persuade him to alter the Will in her favour.[94]Although they were right to think that Susanna was blocking their visits, they were probably mistaken to think that Victor actually wanted to see them. Since his move to the nursing home Victor had became more reluctant to see any visitors, including old friends such as Sandra Gibby, probably because he did not want to be seen looking so unwell. In addition, from March onwards Victor was particularly reluctant to see Bernie, Patricia and members of the family, probably because he was becoming suspicious of them.[95]Eventually Social Services agreed that a supervised visit could be arranged for 10th April, subject to Victor’s agreement.[96]Ms Brenda Sands of Social Services decided to visit Victor beforehand, which she did on 6th April. She asked him whether he knew that Christopher had tried to visit but had been turned away. He said he did not know, but he would not have seen him anyway. She told him that Patricia, Christopher and Elsie wished to see him. He indicated that he did not want to see them. She said she would ask again on 10th, but he said it would be a waste of time[97]On 10th April, Patricia, Christopher and their mother Elsie visited the nursing home together with Ms Sands. Susanna, Simon and Mr Trimble were there. Victor agreed to see Elsie, but not Patricia or Christopher.[98]Elsie visited Victor for about 30 minutes. She thought he looked lost, not his usual smiling face, not as confident as usual. At one point in the conversation, Patricia’s name was mentioned. Victor seemed hostile towards her, and said he did not want to see her. Elsie was astonished because Victor had had such a good relationship with Patricia for many years. Victor said that he knew that Patricia was after Willow Cottage. Elsie denied this, and said to Victor that he knew she was not a liar, and he agreed. Elsie mentioned Susanna and made a “thumbs down” sign to indicate her disapproval of Susanna. Victor responded by saying that Susanna and Bob were his best friends. Again Elsie was astonished given Victor’s consistently hostile views of Susanna over the years.[99]Elsie told Victor that Christopher and Patricia had brought presents, at which point Victor said that he would see Christopher, who was fetched. Christopher asked if he could give Victor some correspondence. Ms Sands said that she would like to see the contents first. They included a letter from Bernie and Vivien, referring to “the Susanna/Kimberley mafia” turning the home into Colditz Castle and turning them away at bayonet point. Ms Sands thought it was inappropriate for Victor to read this letter, and returned it to Christopher.[100]He went back downstairs, and told Patricia what had happened. She was upset that Victor had not been allowed to read the letter, rushed into Victor’s room followed by Mr Trimble, and told Ms Sands that she had no right to prevent Victor reading the letter. She handed it to Victor, who read it with the comment “Rubbish”. Mr Trimble told Patricia that she should leave or he would call the police. There was a scuffle but Patricia eventually left, and the police were not called.[101]Victor was very confused and upset after this visit. I accept Susanna’s evidence that Victor was very worried that Christopher might get onto the flat roof of the nursing home and break into his room. I also accept Simon’s evidence that Victor talked about the incident non-stop for the next three days, saying that he could not understand why they had treated him that way when he had done so much for them.[102]Sandra Gibby visited Victor on four occasions while he was in the nursing home: on 27th February, 14th April, and 1st and 8th May. She often found him to be very confused, unlike before he went into hospital. He could not understand where he was and how he had got there. Whenever she visited he asked her how she had got there, how long it had taken and where she had come from. On one occasion he could not remember whether his late wife, Rosalie, had lived with him in Willow Cottage (she had done for many years).[103]On the 27th February visit, Sandra Gibby was at first told by the staff that Victor could not have visitors. Then Susanna appeared and explained that it was very difficult, and that they had asked that Victor only be allowed certain visitors, not just anyone, but that Sandra Gibby could visit him. From then on she had no difficulty visiting him.[104]On Sandra Gibby’s 14th April visit, Victor seemed very upset about the incident on the 10th. He asked her why members of his family had visited him, and seemed suspicious of their motives.[105]Carol Hooper received a letter from Victor, in his handwriting, post-marked 23rd April. She was very taken aback by the letter. The following are extracts:
“Did you hear from anyone that I had been invaded by members of my own family!!! A couple of weeks ago I was sitting here reading the morning papers when I heard several people rushing up the stairs and bursting through my door. No-one had made arrangements with me to call on me... that day. First to bang on the door and force their way in... was Chris- my nephew who has been my close friend for many years… Following him was “Trish” my long-standing relative and friend. Known her for years and both of them never gave me any sort of greeting and Chris started to throw “things” around the room. Then my sister-in-law – a bit younger than me – was brought in in a wheel-chair. Both Chris and Trish completely ignored me. …..So here was this lot with Elsie keeping up a sort of chant saying other relatives wish to steal all my money. Very spooky. I have now decided to call them “the Tyneside mafia”
. Apparently I have heard for some time that there are plenty of people just waiting to spend all my money- if I have any!…. Another bloke you may remember is Bernie Hinton. For some years [he] seems to have been making attempts to “nick” my apartment [in Spain]….My son-in-law is Bob Leigh…He is a good bloke…”[106]This letter was written under two weeks after the incident on 10th April but Victor appears to be somewhat confused about what happened. In fact it was Elsie who visited first, then Christopher, in each case with Victor’s permission. They did not bang on the door and force their way in. And no other witness said that Christopher was throwing things around the room.[107]Carol Hooper made a number of further attempts to visit Victor but was always told that it was not possible for him to have visitors.[108]Victor wrote to Carol Hooper again on 1st May (it was mis-dated 2006). He referred approvingly to Susanna and Bob, and to the decline in his health, and once again to the events of 10th April. He said:
“Now this about a pretty dreadful (sic) which happened a few weeks ago. I was sitting here having a late breakfast when my door burst open and in rushed Chris from Newcastle who started jumping about the room and also started to take the covering off someone in a wheelchair. Inside this turned out to be Elsie my sister-in law. I had not been told anything about them coming. Also in the party was Trish my niece who has been my niece and friend for very many years. As it happened Susanna had just called in and this caused (sic) to go up to her and shout at her “You dirty bitch!”
The police were then called so the Newcastle mafia gang fled at top speed. I wrote a very strong letter to [Christopher] which he did not reply –but- yesterday I received in the post 2 postcards from Chris and Trish to say “Looking forward to seeing you again soon. I enjoyed my last visit.” So we have alerted the local police and the manager of this place I live in now. The Newcastle mafia will turn up here again soon. They are worried that they up in Newcastle won’t get any dosh in any will I may make out.”[109]On 2nd May Victor Ms Calthrop went to see Victor, to discuss visiting arrangements, and in particular whether he wanted to see Bernie, Patricia, and Christopher. Victor was adamant about not wanting to see any of them. He again referred to Bernie being after the apartment in Spain. He said that if he had a gun to hand and he turned up, he would shoot Christopher. He kept revisiting the 10th April visit and was appalled at the behaviour he had seen. That was why he did not want to see Christopher. (iv). events relating to the Will while Victor was in the nursing home[110]I have already mentioned that on 13th March Susanna telephoned Mr Fuller about the 9th February letter. It was clear to Susanna from his response that Mr Fuller was not going to assist her in the alteration of the Will.[111]In April 2007, Susanna contacted John Reed of Michael Friend & Co again. I believe she wanted to him to assist in the alteration of the Will. On 13th April, however, Mr Reed telephoned Mr Fuller, to say that he had been instructed by Susanna, and to ask Mr Fuller to explain the background to the case. Mr Fuller did so, expressing the view that it would be a difficult matter to deal with when Victor died. Mr Fuller heard no more from Mr Reed thereafter, and it appears that, in the light of Mr Fuller’s remarks, he declined to act for Susanna.[112]Instead, Susanna contacted another firm of solicitors, Messrs Brett Holt. She told Ms Spencer that Victor wished to revoke the Will, and asked her to visit Victor at the nursing home. Ms Spencer visited Victor on 17th, 18th and 24th April. On each occasion she was alone with Victor in his room, and on each occasion Victor appeared to her to be mentally alert and to be able to hold intelligent, reasoned conversation with her.[113]Ms Spencer made detailed notes of her conversations with Victor, and the following is a summary.[114]On the 17th April visit, Victor told Ms Spencer that he wanted to revoke the Will, which he had made with solicitors in Weybridge although he could not remember their name. He said that Susanna would probably have a copy, but he insisted that he wanted to revoke it immediately. He then showed Ms Spencer a hand-written letter of revocation in frail handwriting, confirmed that the signature was his, and asked whether it was sufficient to revoke all previous wills, which is what he wanted to do. He also asked if she could keep the document safe at her office because there were people who had tried to break into his room, and had broken his TV, and they might try to steal it. He said that they were terrible people and he did not want them to get anything. They were the existing beneficiaries in the Will who wanted everything and to stop it going to Susanna and Simon. He wanted Susanna and Simon to inherit everything, and asked whether the letter of revocation would achieve this. Ms Spencer said that a valid letter of revocation would mean that everything would be shared between Susanna and Simon. Victor mentioned that they were adopted and asked whether that made any difference. Ms Spencer replied that it did not. He insisted that it was his decision and that there was no pressure from anyone else. Ms Spencer said that if Victor was sure that he wanted to revoke the Will she would draw up a formal revocation and bring it with her to be signed and witnessed on another occasion. Victor replied that this was a good idea.[115]On the 18th April visit, many of the same matters were again discussed. Victor again insisted that he wanted to revoke the Will. He wanted the people from the North disinherited because of the terrible way in which Patricia and Bernie had behaved. He wanted to make sure they got nothing.[116]Between the 18th and 24th April visits, Victor telephoned Ms Spencer to ask her to see him so that he could sign the revocation. He insisted that he did not want to wait in order to obtain a copy of the Will.[117]On the 24th April visit, Ms Spencer brought the Revocation. Victor read it over and said he was happy to sign it. He insisted that he wanted to revoke the Will now but agreed to consider making a new will once a copy of the Will had been obtained. He mentioned that he had made a lot of small gifts to his friends in the Will and might wish to make a new will so as to keep some of these, for example those to Carol and Alice, but that this was not terribly important. He wanted to be sure to remove the people who had caused a big scene when the police were called to the home, that is Bernie Hinton, Patricia, and their families. They wanted his money. He wanted to be sure that Bernie, Patricia and Elsie did not inherit. He asked Ms Spencer whether she knew what had happened. It was terrible. They had to be removed. They would not leave even though he had wanted them to. They only left when the police were called. Victor then mentioned that he had a house in Spain and he wanted it to go to Susanna and Simon along with everything else. He agreed that it would be a good idea for a doctor to certify that he had the necessary mental capacity to revoke the Will, but insisted that he wanted to revoke the Will now. He said that those people were only interested in getting his money when he was dead, and asked why they had broken into the room when he had told the staff not to let them in. Those people from the North broke in and caused a terrible commotion, dreadful for everyone else in the home to witness, so that they could get him to sign over his house in Spain, but he did not want them to have it. After Victor insisted that he was not being pressurised to revoke the Will, and did not want more time to think about it, witnesses were called into the room and he duly executed the Revocation.[118]It is clear that Victor was not only obsessed, but also somewhat confused, about the events of 10th April. I have already mentioned the confusion apparent from the letter to Carol Hooper. His conversations with Ms Spencer show that he thought, incorrectly, that people had tried to break into his room and that his television had been broken; that Bernie had been one of the people involved, and that Bernie as well as Patricia were going to inherit under the Will; that they had been trying on 10th April to get him to sign over his apartment in Spain to them; that no-one had made arrangements to call on him that day; that the staff had been told not to let them in (whereas it was only Patricia who entered his room without his prior agreement); that the police had been called; and that it had been dreadful for everyone else in the nursing home to witness.[119]Indeed, I think that Victor muddled up the events of 10th April, in which Bernie was not at all involved, with his suspicions about Bernie trying to get Victor to sign over his apartment in Spain.[120]It is also clear from Victor’s conversations with Ms Spencer that he wished to revoke the Will because he wanted to disinherit Bernie, Patricia and others, as well as because he wanted Susanna and Simon to inherit everything. And one of the reasons why he wished to disinherit Bernie, Patricia and others was because, as he believed, they were only interested in getting his money when he was dead: that (mistaken) belief did influence his decision to revoke the Will. He also wanted to disinherit them because of the terrible way in which, as he saw it, they (including Bernie) had behaved on 10th April: that also influenced his decision to revoke the Will.[121]Ms Spencer subsequently contacted Susanna to arrange for a medical report into Victor’s mental capacity. Susanna told her that Dr Fish was due to visit in the next few days and that this could be the best opportunity to get the process underway. However, so far as I can tell Dr Fish did not visit and no medical report was obtained.[122](v) Victor’s mental condition while in the nursing home[123]When Victor was transferred to the nursing home a Statement of Admission Details was completed by his then GP: it was noted that Victor was anxious and depressed, was well-orientated but had a poor short-term memory. His long-term memory was good.[124]I have already mentioned that when Bernie visited Victor in February and March, he found him to be very vague and vacant; and that when Sandra Gibby visited Victor on 27th February, on 14th April and on 1st and 8th May, she found him to be often very confused. The Defendants contend that she cannot have found Victor to be confused on 14th April because of the discussion about the events of 10th April. I do not agree: the fact that he asked her why Patricia and the others had visited him suggests to me that he was confused. I have also already mentioned that Victor was somewhat confused about the events of 10th April in his letter to Carol Hooper and in his conversations with Ms Spencer[125]Susanna, Bob, Simon and Mr Trimble all gave evidence about Victor’s mental condition while he was in the nursing home, to the effect that there was an improvement during this period until shortly before his death. However, for the reasons given at the beginning of this judgment I do not rely upon their evidence in reaching my decision about Victor’s mental condition.[126]Ms Thomas was the senior nurse at the nursing home when Victor was there. In March she signed a long-term care plan which described Victor as alert and able to communicate well. She gave evidence that his long-term memory was very good and he talked to her about his past in a lot of detail. She witnessed his signature on the Revocation, and she thought it was clear from the way he spoke that he completely understood what he was doing and seemed happy to be signing it. She only noticed a deterioration in his health in late May.[127]Dr Fish had agreed at the Protection of Vulnerable Adults meeting on 14th March to carry out a capacity assessment of Victor. He did so on 22nd March. Victor was awake and alert and there was no evidence of any untreated, ongoing infection. Dr Fish conducted a MMSE and Victor scored 19 out of 30, which indicated moderate dementia. When discussing current events he became easily confused and muddled. When they discussed his financial affairs and any worries therein, Victor said he could not comment as he was leaving it up to others. He was worried about one particular relative taking advantage but would not say who this was, and said that they had not tried to do so so far. Dr Fish concluded that Victor was currently in an extremely vulnerable state and was open to manipulation, and that his capacity for self-determination was markedly reduced.[128]As mentioned above, it was Dr Fish’s view when he assessed Victor on 22nd March that there was no evidence of any ongoing, untreated infection. Early in the morning of 24th March Victor was taken to the accident and emergency department at the local hospital, and was diagnosed as suffering from a urinary tract infection. The Defendants assert that Victor must have been suffering from that infection at the time of Dr Fish’s assessment on 22nd March. However, there is no evidence to support that assertion, and I reject it.[129]On 4th April Susanna telephoned Victor’s GP to report that she had noticed over the last week that he had been more confused. The GP speculated that it could be caused by the progression of the disease, a combination of the tablets, or a further urinary tract infection. The medical notes do not record that Victor was suffering from a urinary tract infection at that time.[130]Susanna and Bob both gave evidence that Dr Fish had seen Victor at the end of April. Susanna said that Dr Fish was amazed at the turnaround in Victor’s condition. Bob said that Dr Fish commented on Victor’s remarkable improvement. However, there is no record in the GP notes or in the nursing home records that Dr Fish saw Victor around this time, and I do not accept this evidence.[131]A meeting was held on 1st May between, amongst others, Ms Calthrop, Mr Trimble and the matron of the nursing home. Mr Trimble and the matron reported that Victor had improved (since the meeting on 14th March) both physically and, in their view, cognitively.[132]I mentioned above that Ms Calthrop visited Victor on 2nd May: she had agreed to do so at the 1st May meeting. She was with him for about an hour. Regarding Mr Trimble and the matron’s report that Victor was physically and cognitively better, she agreed that Victor looked physically better than he was (that is, compared to 14th March) but unlike Mr Trimble and the matron she was not of the opinion that his mental health was greatly altered. She thought that there was obviously some short-term memory loss: Victor repeated himself a lot. He was also somewhat hazy about time. He did not admit having been to Willow Cottage. He denied knowing why he was at the nursing home, and also denied knowing that he was unwell. She did not ask Victor whether he had a power of attorney in place, because she did not think that she would have had a reliable answer from him.

Expert evidence of Dr Dan Lee MD FRCP

[133]At the time of his report dated 22nd October 2008 Dr Lee had worked as a consultant geriatrician for 11 years, and had been head of the Geriatric Medicine Department at the Royal Free Hospital in London for 8 years.[134]His report draws upon Victor’s medical records (GP records, hospital records, and Kimberley Nursing Home records) and assorted legal documents (13 witness statements, the particulars of claim, defence and counter-claim, and Victor’s wills).[135]Dr Lee’s opinion is that Victor lacked testamentary capacity from the date of admission to hospital on 28th November 2006 until his death on 17th June 2007.[136]Regarding the period of Victor’s stay in hospital, Dr Lee based his opinion upon three factors in particular.[137]First, observations of confusion: on 5th December 2006 he was noted as being “subjectively confused”, and on 7th December as “drowsy”; on 14th December he scored 4 out of 10 in the AMTS and also failed the short-term memory test; on 2nd February he scored 22 out of 30 in the MMSE, and again he failed the short-term memory test; on 8th February he did not seem aware that he was having help with everything and was unrealistic about how he would manage at home; a referral form dated 23rd March indicated that his diagnosis had apparently been explained to Victor in hospital “but not noted”.[138]Secondly, the decision not to inform Victor of his diagnosis, or that he could not remember being given the diagnosis.[139]Thirdly, Victor’s non-inclusion in a case conference about his future care held on 31st January.[140]Dr Lee’s opinion was that following Victor’s transfer to the nursing home his physical and mental condition appeared to deteriorate, in keeping with his terminal diagnosis.[141]Dr Lee based that opinion in particular upon two factors.[142]First, Dr Fish’s assessment on 22nd March, clearly setting out Victor’s propensity to become easily muddled and to be vulnerable and open to manipulation. In Dr Lee’s opinion, the assessment clearly indicated that Victor lacked testamentary capacity at that time.[143]Secondly, the GP notes which, in Dr Lee’s opinion, indicated that Victor’s mental and cognitive condition continued to decline in keeping with the expected course of his terminal cancer until his death on 17th June 2007.[144]In relation to the GP notes, Dr Lee’s report makes reference to the notes for 4th April recording an observation from Susanna that Victor was becoming more confused. However, I do not think that Dr Lee was placing particular weight on Susanna’s observation, as opposed to the GP notes as a whole.[145]In his oral evidence Dr Lee said that he had read Ms Spencer’s statement as to how Victor appeared. Dr Lee said that while Victor appeared to be alert, this was only a social veneer: he was not capable of weighing up the pros and cons of revoking the Will. Dr Lee contrasted Ms Spencer’s views with those of Dr Fish. The latter indicated that Victor was in an extremely vulnerable state and was open to manipulation and could very easily change his views. Dr Lee emphasised in particular Dr Fish’s conclusion that Victor’s capacity for self-determination was markedly reduced.[146]Dr Lee was not cross-examined (although I did ask him a number of questions myself) because, as I have already mentioned, neither the Defendants nor their legal representatives were present when the witnesses for the Claimants, and Dr Lee, gave evidence. However, the Defendants invited me to reject Dr Lee’s opinion as to Victor’s capacity.[147]The Defendants warned me about placing too much reliance upon theoretical conclusions of a medical witness who did not himself examine Victor and who relied principally on inferences drawn from other evidence (namely successive scores in MMSEs, and on Dr Fish’s report). I note the warning, and agree with the Defendants that I am entitled to prefer the evidence of witnesses of fact to that of Dr Lee. However, the witnesses of fact whom I consider to be reliable gave evidence of Victor’s mental condition which is supportive of Dr Lee’s opinion.[148]Regarding the MMSEs, the Defendants referred me to expert evidence in another case to the effect that it is possible for a particular individual to have testamentary capacity despite suffering from mild to moderate dementia. I note and accept this. However, Dr Lee clearly did not base his opinion exclusively upon the MMSEs.[149]Regarding Dr Lee’s opinion that the successive MMSEs indicated a progression in Victor’s dementia (from mild on 2nd February to moderate on 22nd March) as was to be expected, the Defendants assert that Victor must have been suffering from a urinary tract infection on 22nd March, and that this should be taken into account when analysing the results. I have already said that I reject this assertion, on the ground that there is no evidence to support it.[150]The Defendants point out that Dr Lee did not note that Dr Fish’s assessment on 22nd March was only the second time Dr Fish had met Victor (the first time being on 1st March) and that he did not meet him again until 25th May. However I do not think this is a material criticism.[151]The Defendant point out that Dr Lee’s report does not refer to all of the medical records of Victor’s mental condition, for example to his “rationality” on 6th February, to the statement on 16th February about his long-term memory being good, and to the care plan which stated that he was able to communicate well and was alert. I accept this point, but Dr Lee stated that he had drawn on the medical records and I have no reason to think that he overlooked or ignored those records which spoke in positive terms of Victor’s mental condition.[152]The Defendants point out that Dr Lee relied upon Susanna’s telephone call to the GP stating that Victor had recently become more confused. They say that it is highly doubtful that an expert should rely on this sort of statement. I do not agree. Susanna spent a lot of time with Victor and it was legitimate for Dr Lee to place some, although not much, weight on Susanna’s observation that Victor was becoming more confused, at a time when there was no evidence of a urinary tract infection. In any event, as I have said above, I do not think that Dr Lee did place much weight on that observation.[153]For these reasons I reject the Defendants’ criticisms of Dr Lee’s opinion.

Conclusion

(a) Testamentary capacity

[154]In my judgment, when Victor executed the Revocation on 24th April 2007, he did not have testamentary capacity.[155]I reach this conclusion having regard not only to the expert medical opinion of Dr Lee, which I accept, but also to all of the other evidence before me.[156]Dr Lee’s opinion is supported, first, by further evidence of Victor’s confusion while he was in the nursing home: there is Bernie’s evidence that when he visited Victor he found him to be very vague and vacant; Sandra Gibby’s evidence that Victor was often very confused; Ms Calthrop’s report that Victor repeated himself a lot and was somewhat hazy about time; Victor’s obsession with the events of 10th April, and his confusion about those events as reported to Ms Spencer and in his letter to Carol Hooper; his irrational fear that Christopher might break into his room via the flat roof of the nursing home; and the fact that he asked Sandra Gibby why his family had visited him.[157]Dr Lee’s opinion is also supported by the fact that in just two months while he was living in the nursing home Victor totally changed his views about those closest to him, and did so for reasons which were either non-existent or based upon insane delusions. In my view, that fact and those reasons indicate that Victor’s mental condition had deteriorated to such an extent that he was suffering from a mental disease which poisoned his affections, and from insane delusions which influenced his will in making the Revocation.[158]Previously Victor had called Susanna a totally dysfunctional, spiteful woman, loathed Bob, called Susanna and Bob a ghastly couple, and insisted that they should not get Willow Cottage under any circumstances. Now he called them his best friends, described Bob as a good bloke, and wanted to revoke the Will so that Susanna (and Simon) would inherit Willow Cottage together with the rest of his estate. It does not appear that Victor was even aware that he had suddenly and fundamentally changed his views of Susanna and Bob. Certainly, he never acknowledged or explained making the change to his visitors, or in his letters, to Ms Spencer, or to anyone else.[159]However, I do not place particular reliance upon Victor’s changed views of Susanna and Bob. Of much greater significance, in my view, is his changed views of Bernie and Patricia.[160]Previously Victor had thought of Bernie as a lovely fella and a very worthy friend whom he trusted to make an executor of the Will and to make the donee of his power of attorney. Now he believed that for some years Bernie had been attempting to “nick” his apartment in Spain.[161]In fact, although Bernie did want Victor to sign the power of attorney, this was not in order to get any of Victor’s property for himself. Bernie was not, and never had been, attempting to “nick” the apartment in Spain. In my view, Victor’s belief to the contrary was unfounded and irrational.[162]Indeed, the Defendants expressly admit, and I agree, that Victor’s belief was an insane delusion within category (d) of the test of testamentary capacity mentioned at paragraph 15 above.[163]The Defendants contend however that Victor’s insane delusion about Bernie did not influence his decision to revoke the Will. I do not agree. It is clear from Victor’s conversations with Ms Spencer on 18th and 24th April that Victor wanted the people from the North disinherited because of the terrible way in which Patricia and Bernie had behaved; he wanted to be sure to remove the people who had caused a big scene when the police were called to the home, that is Bernie Hinton, Patricia and their families; he wanted to be sure that Bernie, Patricia and Elsie did not inherit.[164]Previously Victor had described Patricia as a “good un”, and had wanted her and Carry to inherit Willow Cottage. Now he wanted to disinherit her. She was one of the “terrible people”, “the Tyneside mafia”, “the Northern mafia gang”, who were only interested in getting his money when he was dead, who only wanted to visit him because they were worried that he might give everything to Susanna and Simon instead of to them, and in order to get him to sign over his apartment in Spain, and who had behaved terribly on 10th April.[165]In fact, although Patricia and others were indeed concerned about Susanna and Simon getting Victor’s property on his death, this was not because they wanted it for themselves. Having regard to Victor’s long-standing attitude towards Susanna before he went into hospital, they believed that it continued to be Victor’s wish not to leave any of his property to her, and that if nevertheless he did so it would be because she had pressurised him to do so at a time when he was ill, vulnerable and open to manipulation.[166]In my view, Victor’s belief that Patricia was a terrible person who was only interested in his money was also unfounded and irrational. That belief was just as much an insane delusion as his belief about Bernie, and as I have already found, it influenced Victor’s decision to revoke the Will.[167]I do not think it can be suggested that Victor’s belief about Patricia was not an insane delusion because he was reacting to the “terrible scene” on 10th April. This is so for two reasons.[168]First, because, as mentioned at paragraph 98 above, Victor had expressed hostility towards Patricia, and had told Elsie that he knew Patricia was after Willow Cottage, before Patricia even entered the room and the “scene” began.[169]Secondly, and more importantly, because Victor’s belief that Patricia was only after his money was not a sane reaction to the events of 10th April, even as Victor perceived them. According to his letters to Carol Hooper, and to what he told Ms Spencer, Victor thought that Patricia and her family had “invaded” him, by rushing up the stairs and bursting into his room without having made arrangements to visit him; Patricia and Christopher had failed to greet him; Elsie had told him that Susanna and Simon wished to steal all his money; Patricia called Susanna a “dirty bitch”; they would not leave even though he wanted them to; and they only left when the police were called. In my view it was not rational for Victor to conclude, from this behaviour, that Patricia, whom he had previously called a “good un”, was only after his money.[170]Moreover, Victor was incapable of being disabused of his belief that Patricia was only interested in his money. As mentioned at paragraph 98 above, Elsie told Victor that he was mistaken in believing that Patricia was trying to get Willow Cottage, and although Victor agreed with Elsie that she was not a liar, she could not persuade him that he was mistaken.[171]Finally, previously Victor had also called Carry a “good un”, and had wanted her to inherit the bulk of his estate in order to continue the Reeve blood line, and because he admired her. Now he wanted to disinherit her also, even though Carry had not visited Victor on 10th April, or at all in the nursing home, and he made no accusations against her.[172]In my view, his decision to disinherit Carry was also irrational and is evidence of lack of capacity. The fact that Carry was Patricia’s daughter and related to Christopher and Elsie could not possibly be a reason for Victor to turn against her as well.

Knowledge and approval, undue influence and fraud

[173]Having regard to my conclusion above that Victor did not have testamentary capacity, it is not necessary for me to reach any conclusions about knowledge and approval, undue influence or fraud, but I will do so briefly, on the basis that, contrary to my conclusion above, Victor did have testamentary capacity to revoke the Will.[174]Regarding first knowledge and approval, in my view it is clear from Ms Spencer’s evidence that Victor did know and approve of the contents of the Revocation. He knew that it would revoke all former wills including the Will with the result that Willow Cottage, the apartment in Spain and all his other property would pass to Susanna and Simon, which was what he wanted.[175]Regarding next undue influence, the Claimants rely in particular on the following facts: that the decision to leave everything to Susanna and Simon was totally contrary to the wishes which Victor had expressed shortly before he went into hospital; that when he visited the hospital on 14th February the ward sister told Mr Fuller that Susanna had been in regular attendance on Victor and in her opinion had put him under a considerable amount of pressure, and Victor also told him that he had been under pressure from Susanna; that Susanna controlled all access to Victor in the nursing home, and blocked visits by Bernie, Patricia and other members of the family; that Susanna, Simon and Bob were in regular and close attendance on Victor while he was in the nursing-home, so that he became physically and emotionally dependent on them; that Victor told Dr Fish that he could not comment about his financial affairs and was leaving it up to others; and that Dr Fish concluded, and Dr Lee agreed, that Victor was in an extremely vulnerable state and was open to manipulation, and that his capacity for self-determination was markedly reduced.[176]These facts certainly suggest that Susanna was in a position to, and probably did, exert heavy pressure on Victor.[177]But having regard to the evidence of Ms Spencer, I do not think they suffice to prove that Susanna coerced him into revoking the Will so that his free will was overborne.[178]That is, it is clear from the evidence of Ms Spencer, who met Victor alone on three occasions, that it was his own wish to revoke the Will, and that he was not giving way to pressure from Susanna for quietness’ sake.[179]Regarding finally fraud, there is in my view no evidence that Susanna made false accusations against Bernie, Patricia or the other beneficiaries of the Will. Victor clearly believed that Bernie and Patricia were only interested in getting his money on his death. But there is no evidence that Susanna, or anyone else, told him so. In so believing, Victor deluded himself.

Relief sought

[180]I therefore declare that the Revocation was of no legal effect, and order that probate be granted to Bernie Hinton as executor of the Will.[181]I shall hear any further submissions regarding other relief and costs.