Cowderoy v Cranfield [2011] EWHC 1616 (Ch)

[2011] EWHC 1616 (Ch)

Case No HC10C01440

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

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

Date 24/06/2011

Before

MR JUSTICE MORGAN

Between

Leigh Helen CowderoyClaimant

Lionel Steve CranfieldDefendant

Mr Alex Troup (instructed by Stones) for Claimant

Mr Michael Waterworth (instructed by Sparling Benham & Brough) for Defendant

Hearing Hearing dates: 16 th, 17 th, 18 th, 19 th, 20 th, 23 rd and 24 th May 2011

Judgment

Introduction

[1]This case concerns a disputed will made on 13th November 2006 by a Mrs Helen Imrie Blofield. Mrs Blofield died on the 19th October 2008. By the disputed will, if valid, and in the events which have happened, Mrs Blofield appointed Mr Lionel Cranfield as her sole executor and left her entire estate to Mr Cranfield. Probate of the disputed will was granted to Mr Cranfield on 7th May 2009. These proceedings are brought by Mrs Leigh Cowderoy, the granddaughter of Mrs Blofield. Mrs Cowderoy seeks revocation of the grant of probate and asks the court to pronounce against the force and validity of the disputed will. If the disputed will is held to be invalid, the result will be that Mrs Blofield will have died intestate and, in those circumstances, Mrs Cowderoy seeks a grant of letters of administration of the estate of Mrs Blofield. On an intestacy, Mrs Cowderoy would inherit all of Mrs Blofield’s estate.

[2]Mrs Cowderoy puts her case on three grounds. First, she contends that Mrs Blofield did not have testamentary capacity to make the disputed will on the 13th November 2006. Secondly, it is said that Mrs Blofield did not know and approve the contents of the disputed will. Thirdly, it is contended that the disputed will was procured by the undue influence of Mr Cranfield.

[3]Mr Troup appeared on behalf of Mrs Cowderoy and Mr Waterworth appeared on behalf of Mr Cranfield.

My assessment of the witnesses

[4]This case requires me to apply established principles to the particular facts. To a significant extent, the evidence of fact consists of oral evidence. I therefore have to assess the reliability of the oral evidence which I have heard before I can make the necessary findings of fact.

[5]Mrs Cowderoy gave evidence and called as witnesses of fact Mrs Lawrence, Mrs Paleschi, Mrs Rainford, Mrs Garnham, Mrs Buckland, Mr Miller, Mrs Harper and Miss Beefnah. I also received certain statements which were admitted under the Civil Evidence Act 1995. Mrs Cowderoy also called a psychiatrist, a Dr Cooling, as an expert witness.

[6]Mr Cranfield gave evidence and called as witnesses of fact Mr Jones, Mrs Pearce, Mrs Cranfield, Ms Harris, Ms Hallpike and Dr Cheung. Mr Cranfield also called a psychiatrist, a Dr Campbell, as an expert witness.

[7]As it happened, the direct evidence of fact called by Mrs Cowderoy did not deal in much detail with Mrs Blofield’s condition around the time of execution of the disputed will. Instead, that evidence dealt with some incidents which were relied upon as throwing light on Mrs Blofield’s condition. Conversely, Mr Cranfield himself gave evidence as to Mrs Blofield’s condition before, at and after the time of execution of the disputed will. He was also able to call direct evidence on the same subject.

[8]I will begin by recording my assessment of the evidence given by Mrs Cowderoy. In due course, I will refer to specific parts of her evidence and indicate the extent to which I accept that evidence. My overall assessment is that her hostility to Mr Cranfield, her readiness to think the worst of him at all times and her obvious interest in the outcome of the case led her to be over ready to misdescribe matters. I am therefore cautious about those parts of her evidence which are controversial.

[9]Mrs Cowderoy’s half sister, Sara Paleschi, wholeheartedly took sides with Mrs Cowderoy in this dispute. That badly affected her ability to form a judgment on certain matters. There are a number of respects, to which I will later refer, in which I am simply unable to accept her evidence.

[10]Mrs Cowderoy’s mother, Sherra Lawrence, gave evidence not all of which was consistent. I think that she was genuinely trying to recall what had happened but I do not accept that she had always managed to recall matters accurately.

[11]Mrs Amanda Rainford was the legal executive who acted for Mrs Cowderoy in relation to her father’s estate in late 2006. Her witness statement was drafted in a somewhat partisan way although her oral evidence was more balanced. There were certain perceptions or assessments which Mrs Rainford formed which I am cautious about in the light of all of the evidence.

[12]Mrs Harper, a legal executive from Birkett Long, who saw Mrs Blofield on 20th October 2006, was a straightforward and reliable witness. I also received a witness statement from Mrs Bruce (nee Carpenter), who was then a trainee solicitor who accompanied Mrs Harper; she was not required to attend for cross-examination.

[13]Mrs Garnham lived next door to Mrs Blofield from May 2006 but never met her personally. Insofar as Mrs Garnham’s evidence related to matters of fact, it was reliable.

[14]Mrs Victoria Buckland and Mr Nick Miller were two social workers who had seen Mrs Blofield in 2008. Mrs Buckland’s evidence was straightforward and reliable. Mr Miller’s witness statement showed considerable suspicion of Mr Cranfield but when he gave his oral evidence, he was not able to identify any matters himself which formed a proper basis for suspecting Mr Cranfield’s motives.

[15]Miss Beefnah was the manager of the care home to which Mrs Blofield was admitted in 2008. Much of what Miss Beefnah said was not controversial. There were matters, such as the frequency of Mr Cranfield’s visits to Mrs Blofield in the care home, on which Miss Beefnah could not really comment. However, she wanted to give an impression on that matter which was unfavourable to Mr Cranfield. I find that Miss Beefnah has taken sides in this dispute in a way which means I have to be cautious about her perception of events.

[16]In view of the allegations in this case, it is very important to consider Mr Cranfield’s evidence with particular care. Mrs Blofield’s position and state of health could have provided Mr Cranfield with an opportunity to persuade her to make a will in his favour. Further, it could be said that Mr Cranfield had a motive to persuade her in that way. However, the fact that Mr Cranfield had the opportunity and the motive to attempt to persuade Mrs Blofield to favour him does not necessarily mean that he made any such attempt or did anything for which he could be criticised. Although Mr Cranfield was able to give me a great deal of detailed evidence about Mrs Blofield’s condition at various times, I have to remember, when considering that evidence, that Mr Cranfield is a very interested party in this case. Having taken particular care to assess his evidence fairly, I found that I could have confidence in the evidence he gave. The temptation for him would have been to emphasise and overstate what he had done for Mrs Blofield. In fact, there was no sign that he yielded to that temptation. If anything, he did not try to emphasise that matter but yet examples of the help he had given to Mrs Blofield tended to emerge from other matters which were explored in the evidence. Generally speaking, his evidence appeared to fit well with the objective evidence and was strongly supported by other witnesses whom I consider to be reliable witnesses. I find that I can accept the substance of Mr Cranfield’s evidence.

[17]I also accept Mr Jones’ evidence. The greater part of his evidence took the form of speaking to the attendance notes he had made of the visits to Mrs Blofield. Mr Jones added one or two matters of detail which did not appear in the attendance notes. I fully recognise, as submitted by counsel for Mrs Cowderoy, that Mr Jones may have felt tempted to add some colour in relation to matters of detail but I feel that he did not yield to that temptation. Mrs Pearce, the legal secretary who accompanied Mr Jones when the will was executed gave reliable evidence, although limited in its nature.

[18]I also regard the evidence of Mrs Cranfield, Ms Harris and Ms Hallpike as reliable. All three of these witnesses did see Mrs Blofield at around the relevant time and Ms Harris in particular saw Mrs Blofield frequently. I do not think that Mrs Cranfield or Ms Harris have any interest in giving untruthful evidence and although Ms Hallpike is the current partner of Mr Cranfield, I do not think that she altered her evidence for the purpose of assisting him.

[19]Dr Cheung, Mrs Blofield’s GP, gave reliable evidence.

[20]I will refer later and separately to the evidence given by the two consultant psychiatrists.

The facts

[21]I will now set out my findings of fact in detail and in date order. At the end of the chronological sequence, I will make further findings on other relevant matters of fact.

[22]There is some uncertainty as to the date of birth of Mrs Blofield. Some of the documents give her date of birth as 26th January 1923 whilst others give the date as 26th January 1924. Accordingly, when Mrs Blofield made the disputed will on the 13th of November 2006 she was well on in her 83rd or 84th year and when she died on the 19th October 2008 she was well on in her 85th or 86th year. Mrs Blofield was herself an only child. There is reference in the documents to Mrs Blofield serving in the Royal Air Force and subsequently she worked for many years as a doctor’s receptionist. She married Douglas Blofield, who appears to have been in the merchant navy. Mrs Blofield appears to have lived and worked in Colchester for many years and at all times relevant to this case she lived in a house at 88 Butt Road Colchester. That house had been acquired in the joint names of Mr and Mrs Blofield. Mr Blofield died on 10th May 1998 and thereafter the house was owned by Mrs Blofield alone. At the times relevant to this case, there was no mortgage in relation to that property.

[23]Mr and Mrs Blofield had one son, Richard Blofield (“Richard”). Richard married in around 1968 but separated from his wife after a few years and he was divorced in around 1974. His wife, Sherra (now known as Sherra Lawrence) had a child by an earlier marriage. That child has since married and is now known as Sara Paleschi. Richard and Sherra had one child, Leigh. Leigh has since married and is now known as Mrs Leigh Cowderoy and is the Claimant in these proceedings. She was born on 15th March 1970.

[24]After separating from Sherra and before his divorce in 1974, it seems that Richard moved back to live in Colchester. For many years, he lived in his own home but in November 2002, having sold his house, he moved in to live with his mother, Mrs Blofield, at 88 Butt Road. Richard was an alcoholic and for all of the time he lived with his mother at 88 Butt Road he was seriously ill as a result. For much of the time he simply lay on the sofa in the lounge. At some point along the history, Richard had fathered a number of children. The evidence in this respect is not particularly clear. It seems that there was more than one such child who was taken into care by the local social services and it also seems that one child was adopted. Putting Mrs Cowderoy on one side for the moment, it is clear that these other children of Richard played no part in the life of Mrs Blofield.

[25]Richard died on 5th August 2006. He died intestate with the result that his estate was inherited by his daughter, Mrs Cowderoy. His mother, Mrs Blofield, inherited nothing from Richard. Richard’s estate appeared to consist of money in the bank amounting to nearly £49,000. Mrs Cowderoy appointed solicitors, Stones, to act for her in the administration of Richard’s estate. The person acting at Stones was a legal executive, Mrs Amanda Rainford. After payment of fees and charges, the sum distributed to Mrs Cowderoy in around January 2007 was approximately £47,000.

[26]Mrs Blofield was in the habit of keeping a detailed diary. Only a few of her diaries are now available. The complete diaries for 2001 and 2002 are available as are diaries for part of 1999 and part of 2004. There is no explanation as to what happened any other diaries of Mrs Blofield which may at one time have been at 88 Butt Road. Each side in this dispute tended to blame the other for the removal or disappearance of relevant diaries but I am not able to make any finding as to how it came about that not all the diaries are available. The diaries which have survived tell something of the relationship between Mrs Blofield and her son Richard. Richard was a chronic alcoholic who behaved badly in a number of respects. It cannot have been ideal for Mrs Blofield to have her seriously ill alcoholic son spending his days lying on the sofa in Mrs Blofield’s lounge. However it is clear from the diaries that before Richard became seriously ill, Mrs Blofield enjoyed Richard’s company and indeed the company of Richard’s drinking friends. I have no doubt that notwithstanding the many problems which Richard created for Mrs Blofield, she loved him dearly and was very sad at his unfortunate death.

[27]As a child, Mrs Cowderoy lived with her mother in Exeter. In about 1987, at the age of 17, she left Exeter and went to live in London where she worked as a live-in nanny. In 1989 she joined British Airways and worked for them for some fourteen years. During that time she lived in London. In 1997, she married Mr Cowderoy. The marriage was in Kenya, attended by friends but not by family. In September 2004, Mrs Cowderoy took employment in Dubai where she went to live. In the spring of 2007, she made a brief visit to Exeter to go through a further marriage ceremony with Mr Cowderoy. It may be that there were difficulties about establishing the effect of the marriage in Kenya or it may be that the ceremony in Exeter was for the purpose of a renewal of marriage vows. Mrs Cowderoy then returned to Dubai where she remained until February 2009. She unfortunately suffers from Crohn’s disease and has been hospitalised for surgery on a number of occasions. At the time of the trial, she was evidently affected by this debilitating illness. She left Dubai in February 2009 and returned to Exeter where she has since remained. I heard evidence as to the frequency, or infrequency, with which Mrs Cowderoy met her grandmother Mrs Blofield over the years and the extent of other communications between the two of them. I will refer to that matter again later in this judgment. Mrs Cowderoy also described her perception of her relationship with her grandmother and I will in due course make appropriate findings in that respect. Similarly, I will make findings as to Mrs Blofield’s attitude to Mrs Cowderoy over the years and, perhaps more significantly, around the time that Mrs Blofield made her will and thereafter.

[28]Later in this judgment, I will make further findings as to Mrs Cowderoy’s relationship with her father, Richard. Similarly, I will later describe the relationship between Sherra Lawrence and Mrs Blofield.

[29]Mr Cranfield was at one time a near neighbour of Mrs Blofield in Butt Road. In around November or December 2001, Mr Cranfield bought 73 Butt Road which is opposite Mrs Blofield’s house at 88 Butt Road. Mr Cranfield lived at 73 Butt Road full time until June 2002. From June 2002 to May 2004, Mr Cranfield stayed at 73 Butt Road one or two nights a week but the rest of the time he spent at his girlfriend’s property. In May 2004, Mr Cranfield sold 73 Butt Road and moved to 2 Whitebarn Cottage, Clacton Road, Elmstead Market, Colchester.

[30]Mr Cranfield was a friend of Philip Nicholas. Philip Nicholas lodged with Mr Cranfield at various addresses over the years, including 73 Butt Road. Accordingly, Philip Nicholas was also living at 73 Butt Road, opposite Mrs Blofield’s house for a time in the period 2001 to 2004. As it happened, Philip Nicholas already knew Richard. Philip Nicholas was also an alcoholic and he and Richard drank together. Indeed, Philip Nicholas was more often to be found drinking with Richard in 88 Butt Road than he was in 73 Butt Road.

[31]In the period from 2001 to May 2004, Mr Cranfield saw Mrs Blofield about once or twice a week. The typical position was that Mr Cranfield would wish to contact Philip Nicholas and in order to find him he would go to 88 Butt Road expecting Philip Nicholas to be there with Richard. When Mr Cranfield visited 88 Butt Road for this reason, he saw Mrs Blofield. In the period from May 2004 to May 2006, Mr Cranfield said that he would see Mrs Blofield less frequently, probably about once a fortnight. The visits by Mr Cranfield to 88 Butt Road became much more frequent from May 2006. By that date, it was obvious that Richard was dying. Mr Cranfield drove Philip Nicholas (who had lost his driving licence) to 88 Butt Road three to four times a week at this time. In June 2006, for medical reasons, Mr Cranfield was off work for four months and had considerable spare time. In the period August to November 2006, Mr Cranfield said that he saw Mrs Blofield every day. Later in this judgment, I will return to the evidence as to what Mr Cranfield did for Mrs Blofield in the period up to November 2006 when she made the disputed will and what he did for her after that date until her death on 19th October 2008.

[32]In August 2003, Mrs Cowderoy asked social services to pay a visit to Mrs Blofield. What seems to have triggered this request is that Mrs Cowderoy had difficulty in contacting Mrs Blofield on the telephone. Mrs Cowderoy was aware that her father, Richard Blofield was living at 88 Butt Road and she associated the difficulty in telephoning Mrs Blofield with her father’s presence in the house. Accordingly, she telephoned social services asking them to visit. The social worker who dealt with the matter was a Mr Nick Miller. He went to 88 Butt Road on 5th August 2003 and spoke to Mrs Blofield. As his visit was unannounced, he found Mrs Blofield dressed only in a towel and he agreed to return a day or so later. His note at the time recorded that Mrs Blofield appeared well. On 7th August 2003, Mr Miller returned to 88 Butt Road and had a conversation with Mrs Blofield. His note of that visit described her as being observably fit, active, mentally alert and well, despite having had an earlier operation for cancer. The note shows that Mrs Blofield was at pains to reassure Mr Miller that all was generally well. She explained that she had changed her telephone number to a new number which was ex-directory and that she would post her new number to “some relatives”. On 14th August 2003, Mr Miller noted in his file that no further action was required from social services and there was no particular risk to Mrs Blofield who was “alert and capable”.

[33]In July 2004, social services were again contacted in relation to Mrs Blofield. The person contacting social services was a Mr Roger Ennew. It is not wholly clear what Mr Ennew’s connection with Mrs Blofield and her son Richard was. When Roger Ennew contacted social services he described himself as “a private carer” who visited Mrs Blofield four times a day. The problem in July 2004 seems to have been with Richard rather than with Mrs Blofield. Richard was creating difficulties due to his drinking which resulted in him becoming aggressive and abusive to Mrs Blofield. Roger Ennew reported that Mrs Blofield felt that she could no longer cope with her son’s behaviour. However, the day after Roger Ennew’s first contact with social services, he contacted them again saying that he had had a long chat with Mrs Blofield and her son who had sorted out their differences and no longer wished Social services to get involved. On 17th August 2004, it was noted in the social services file that no further involvement was required at that time.

[34]On 5th November 2004, Dr Cheung, who had recently joined the general practice where Mrs Blofield was a patient, saw Mrs Blofield at the surgery. The appointment appears to have been a routine one initiated by the practice to review Mrs Blofield’s condition. Dr Cheung was unable to remember much detail of this appointment save to the extent that he was reminded by the notes he made at the time. Dr Cheung asked Mrs Blofield certain standard questions and did certain standard tests. He ascertained that she drank some 21 units of alcohol a week. That equated to an average of three units a day and the resulting computer record which was generated referred to Mrs Blofield being a “moderate drinker” drinking “three-six” units a day. The reference to the range three-six was because the daily average of twenty one units a week was three units a day.

[35]As I have explained, Richard died on 5th August 2006. It seems that Mrs Blofield appreciated that Richard had, or might have had, some money at the bank and she caused Mr Cranfield or Mr Nicholas to make enquiries of the bank as to the position. It seems that Mrs Blofield assumed that she would inherit Richard’s money. The bank asked to be informed of any relatives which Richard had and on it emerging that Richard had a daughter, Mrs Cowderoy, the bank indicated its understanding that the money would go to Mrs Cowderoy on the intestacy of her father. Shortly thereafter Mrs Cowderoy became aware of the fact that she was entitled to inherit her father’s estate. She had a conversation with Mrs Blofield around this time to which I will now refer.

[36]Mrs Cowderoy told me that she found out about her father’s death in September 2006 and she telephoned Mrs Blofield. She says that Mrs Blofield told her that Richard had left money and Mrs Cowderoy would inherit it. Mrs Cowderoy told me that Mrs Blofield said to her:

“Darling, there is money. I want you to have it”

. Although Mrs Cowderoy was eager throughout her evidence to suggest that when she telephoned her grandmother, her grandmother slurred her words or fell asleep mid-conversation, she did not suggest that her grandmother was slurring her words or was confused on this occasion; quite the reverse. Mrs Cowderoy’s evidence about this conversation in September 2006 is very difficult to square with the unchallenged evidence that, not long afterwards, Mrs Blofield told two firms of solicitors that she did not want Mrs Cowderoy to inherit any part of her estate and she seemed to be annoyed because Mrs Cowderoy had inherited her father’s estate. Further, I have a considerable body of evidence from other witnesses which I am minded to accept to the effect that Mrs Blofield was considerably put out by the fact that Mrs Cowderoy was inheriting Richard’s money. I find that Mrs Cowderoy has wholly mis-described what was said to her in any conversation she had with her grandmother in September 2006. It may be that Mrs Blofield did not protest to Mrs Cowderoy about the fact that Mrs Cowderoy was inheriting her father’s money but that was more likely to be out of politeness. I reject Mrs Cowderoy’s suggestion that Mrs Blofield encouraged her to take the money or that she protested that she had no money needs of her own.

[37]Mrs Cowderoy instructed solicitors in Exeter, Stones, to act for her in relation to Richard’s estate. The person at Stones who acted was a legal executive, Mrs Amanda Rainford. In September 2006, there was correspondence between Amanda Rainford and the Royal Bank of Scotland about bank accounts in Richard’s name.

[38]On 19th October 2006, Mrs Rainford wrote to Mrs Blofield. She explained that she was acting for Mrs Cowderoy in relation to Richard Blofield’s estate. She asked Mrs Blofield a number of questions including a question about Richard’s death certificate and the payment of his funeral expenses. Subsequently, Mrs Rainford had a conversation with someone at the Royal Bank of Scotland. The bank told Mrs Rainford that it had been notified of Richard’s death by “Lionel Dransfield”. This was obviously a miss-reference to Mr Cranfield. The bank gave Mr Cranfield’s address as 2 Whitebarn Cottages. Mrs Rainford noted this information on a copy of a letter she had received from the bank. She also wrote on this letter the name of “Philip Nicholas” and a mobile telephone number. It seems that on the balance of probabilities, the mobile telephone number belonged to Mr Nicholas and not to Mr Cranfield.

[39]In the period from Richard’s death in early August 2006 to mid October 2006, Mr Cranfield and Mrs Blofield had a number of conversations which referred to the fact that Richard had died intestate and his money had been inherited by Mrs Cowderoy. Mr Cranfield said that Mrs Blofield was particularly annoyed by this fact. She thought that Richard would not have wanted Mrs Cowderoy to have inherited his estate. Mrs Blofield also thought that there ought to have been money paid to her from Richard’s estate. About six to eight weeks after Richard died, Mrs Blofield first mentioned to Mr Cranfield that she wanted to make a will. She told Mr Cranfield that she did not want Mrs Cowderoy to inherit anything from her estate. Instead, Mrs Blofield wanted Mr Cranfield and Mr Nicholas to inherit her estate and she seemed to want Mr Cranfield and Mr Nicholas to live in 88 Butt Road after she died. Mr Cranfield felt awkward and embarrassed about these conversations. He spoke to his then girlfriend, Terena Harris, about what Mrs Blofield had said. Ms Harris’ view was that if Mrs Blofield wanted to leave her estate to Mr Cranfield and Mr Nicholas then they should allow her to do so. In later conversations, Mrs Blofield expressed concern about Mr Nicholas inheriting part of the estate because he was an alcoholic and would spend any money he had on drink.

[40]Mr Cranfield says that on 19th October 2006 when he went to visit Mrs Blofield, she passed him a piece of paper on which she had written the name Birkett Long, a firm of solicitors in Colchester, and their telephone number. She asked Mr Cranfield to book an appointment for her to have her will prepared by those solicitors. Mr Cranfield says that he rang Birkett Long and booked an appointment for the solicitors to visit Mrs Blofield at her home on 20th October 2006.

[41]The person who dealt with the matter at Birkett Long was a Mrs Harper, a legal executive. She stated that, having read the file, she thought that she initially spoke with Mr Cranfield on 12th September 2006. I was not shown anything in any file which supported this evidence. I think it is likely that Mr Cranfield contacted Birkett Long on 19th October 2006 and an arrangement was made for a representative of the firm to attend on Mrs Blofield at her home on 20th October 2006.

[42]In any event, what is clear is that Birkett Long did attend on Mrs Blofield at her home on 20th October 2006. The representatives of Birkett Long in attendance were Mrs Harper and a trainee solicitor then called Jenny Carpenter but who is now known by her married name, Jenny Bruce. Mrs Blofield had asked Mr Cranfield to be present and he thinks he arrived at the house at the same time as the solicitors did.

[43]Mrs Bruce prepared a detailed attendance note of what transpired on this occasion. Mrs Harper and Mrs Bruce were at the house for some 30 minutes. As the contents of the attendance note are accepted as reliable and as they are of importance, I will set out the full text of the note which refers to the attendance upon Mrs Blofield; EH is Mrs Harper and JC is Miss Carpenter, later Mrs Bruce. “EH and JC attending Mr Cranfield (an old neighbour and friend) and Mrs Blofield at her home. Client’s full name: Mrs Helen Imrie Blofield. She is a widow and is retired. Her date of birth is 26/01/1923. She has no pension and no state benefits. Mrs Blofield had one son who died recently. She has one Grandchild and another who was adopted. She is not close to her Granddaughter. When asked, she seemed unsure as to how many Grandchildren she had and looked to Mr Cranfield for confirmation. EH asking whether she owns her property. Mrs Blofield saying yes but unsure how much it was worth. Mr Cranfield was standing behind us and Mrs Blofield kept looking over to him. Mr Cranfield suggesting that the house was worth approximately £140,000, it is 2 bed. EH asking whether she has any other savings. Mrs Blofield saying no. Then EH asking about whether she may be worth more than £200,000 and Mrs Blofield nodding. EH asking how much in savings then she has and Mrs Blofield declined to respond, she seemed unsure. EH explaining NRB figure of £285,000 and Mrs Blofield confirming she did not have that much. Mrs Blofield confirming that she has no Will at present. EH enquiring about Mrs Blofield’s state of health. Mrs Blofield confirming that she hears OK and can see sufficiently to sign. EH asking whether she is on any medication. Mrs Blofield advising that she has bowel cancer but, when asked, confirming by shaking her head that the pills do not make her drowsy or tired and do not affect her judgement or memory. EH asking who she wants as executors. Mrs Blofield pointing at Mr Cranfield and saying “him”. Mr Cranfield’s name and address: Lionel Steve Cranfield 2 Whitebarn Cottage Clacton Road Elmstead Market EH asking about funeral wishes and Mrs Blofield shaking her head and saying none. Mrs Blofield also indicating that she wanted no specific legacies. EH asking about her Granddaughter or any other close family, Mrs Blofield adamant that nothing to go to her Granddaughter. EH checking that she did not want to specifically gift personal items or jewellery. Mrs Blofield shaking her head. EH asking who, then, would she like her money to go to. Mrs Blofield pointing to Mr Cranfield and saying “him”. EH asking why she didn’t want to leave anything to her Granddaughter. Mrs Blofield indicating that her son had provided for her when he died, leaving her about £60,000, and she is not close to her. EH asking what she would like to happen to her money if Mr Cranfield should predecease her. Mrs Blofield seemed very unsure. EH explaining that if she doesn’t name anyone and Mr Cranfield does predecease her then the estate would go to her Granddaughter. She kept looking to Mr Cranfield. Mr Cranfield said that he can’t really advise, but suggested Phil (another friend who helps sometimes). Mrs Blofield nodding and saying yes, Phil. Mr Cranfield can give us his address details by phone. EH explaining that Mrs Blofield should be aware that it may be possible for her Granddaughter to make a claim against her estate if she is completely left out, by virtue of the Inheritance Act 1975. However, EH confirming that she thought this was unlikely to succeed as they are not close and the Granddaughter is not dependant on her. EH explaining that a draft would be prepared and if satisfactory she would come back and see Mrs Blofield on her own, without Mr Cranfield being there. EH explaining that this is to ensure that these are her wishes and that she is not being influenced in any way by anyone. EH explaining EPAs and Mrs Blofield saying that she didn’t want one. EH asking about Mrs Blofield’s son. Her Granddaughter is dealing with the estate. EH asking whether Mrs Blofield was thinking about making a claim against the estate for her expenses in connection with looking after her son, who was an alcoholic. Mrs Blofield seemed confused but indicated that she did not want to. EH asking her to think about it and get in touch. Mrs Blofield then asking about her jewellery. EH again asking where she would want her jewellery to go and Mrs Blofield pointing at Mr Cranfield and saying “him”. Mrs Blofield then asked what would happen if Mr Cranfield had already died when she passes away. EH saying that we had already discussed this and that she had decided on somebody. EH asking whether Mrs Blofield could remember who she had chosen. Mrs Blofield seemed confused and looked to Mr Cranfield for the answer. Mr Cranfield saying “wasn’t it Phil” and Mrs Blofield agreeing. EH and JC concerned that Mrs Blofield did not seem sure of what she wanted, or in fact what she had got. We did not feel that clear instructions had been given nor that she fully understood the extent of her estate. In addition, Mrs Blofield never specifically referred to Mr Cranfield by name, only pointing and saying “him” – except once when she called him Ken (which is not his name). Also, she was constantly looking to him for answers and reassurance throughout the whole meeting and was led by his suggestions, particularly concerning who would be the substitute residuary beneficiary. Finally, she seemed to forget what we had discussed earlier in the conversation and asked some of the same questions again.” Mr Cranfield’s name and address: Lionel Steve Cranfield Clacton Road

Elmstead Market

[44]I make the following comments on this attendance note. Mrs Blofield gave her date of birth as 26th January 1923. Her passport gives her date of birth as 26th January 1924. It was not suggested that the date of birth given by her on this occasion was itself evidence of confusion on her part. The note records that Mrs Blofield stated that she had no pension and no state benefits. This statement was not the subject of any comment at the trial. However, I note from Mrs Blofield’s post office records that she was indeed in receipt of a retirement pension and an income supplement. Indeed, these were her principal sources of income. However, as no point was made about this matter by either party at the trial, I do not think that I ought to give particular weight to that part of the attendance note. Mrs Blofield said that she was not close to her granddaughter. This was obviously a reference to Mrs Cowderoy. At an early point in the trial, the reference to Mrs Blofield having a grandchild who was adopted and as to her being unsure as to how many grandchildren she had appeared curious. However it subsequently emerged that the social services’ file shows that Richard Blofield had a number of children who were taken into care and it does seem that one was adopted. Accordingly, Mrs Blofield was right when she said that she had a grandchild who was adopted and she also seems to have had grounds to be unsure as to how many grandchildren, that is the children of Richard, she had. The note records that she looked to Mr Cranfield for confirmation which might be said to be odd as Mr Cranfield explained that he did not know about these matters.

[45]The attendance note records Mr Cranfield standing behind Mrs Harper and Mrs Bruce. It was obviously unsatisfactory for Mr Cranfield to be present at this interview in view of the fact that Mrs Blofield was proposing to instruct the solicitors to draw up a will naming Mr Cranfield as executor and sole beneficiary. It was submitted that the position was more than unsatisfactory because Mr Cranfield was standing behind the solicitors so that they could not see everything that was going on and Mr Cranfield was standing directly facing Mrs Blofield. It was then suggested that Mr Cranfield was effectively controlling what Mrs Blofield said to the solicitors. Mr Cranfield told me that he was present because Mrs Blofield had asked him to be present and he felt embarrassed by having to be there. The room in which the interview took place was a small room and there was nowhere for Mr Cranfield to sit and so he stood behind the couch on which the solicitors sat. I accept Mr Cranfield’s evidence on this point. However, I can also see that the solicitors would have perceived the situation as one which had the potential for Mr Cranfield to influence Mrs Blofield.

[46]Mrs Blofield did not know how much her house was worth. That in itself is not surprising. Mr Cranfield had recently sold his house in Butt Road and was able to give a value for 88 Butt Road of £140,000. The attendance note shows Mrs Blofield to be somewhat confused about the extent of her savings. There are occasions recorded in the attendance note when Mrs Blofield shook her head to indicate her response to the questions put to her. The note clearly records that Mrs Blofield was “adamant” that nothing was to go to Mrs Cowderoy. This extended even to personal items such as jewellery. The note records that Mrs Blofield referred to Mr Cranfield as “him” without using his name. Mrs Blofield was asked about what should happen if Mr Cranfield were to predecease Mrs Blofield. It seems likely that Mrs Blofield had given no thought to that possibility as Mr Cranfield was much younger than herself. Mr Cranfield suggested that in those circumstances the estate should be left to “Phil”, that is Mr Nicholas. The note records that Mr Cranfield said that he could not really advise on that point. There is a reference to Mrs Blofield being confused about the possibility of her being making a claim against the estate of her son Richard. Further, the note records that Mrs Blofield was confused about the gift to Mr Nicholas if Mr Cranfield were to predecease Mrs Blofield.

[47]After Mrs Harper and Mrs Bruce left, they discussed what they had observed. The attendance note which I have quoted in full contains their comments on what they had observed. They felt that Mrs Blofield did not seem to be sure of what she wanted. They did not feel that clear instructions had been given nor that Mrs Blofield fully understood the extent of her estate. They were concerned that Mrs Blofield did not refer to Mr Cranfield by name only pointing and saying “him”, except when she called him “Ken”. They were concerned that she was looking to Mr Cranfield for answers and reassurance and they thought she was led by his suggestions. They were also concerned about the times during the attendance when Mrs Blofield appeared confused.

[48]Mr Cranfield’s evidence about the solicitor’s attendance on Mrs Blofield on 20th October 2006 was that he felt uncomfortable about being present during the interview. He pointed out that he was not asked by Mrs Harper to leave. He thought there was “something wrong” with Mrs Blofield on that day. He was quite embarrassed by being present during the interview. After the solicitors left Mrs Blofield, Mr Cranfield stayed for a few minutes. He asked Mrs Blofield if she had taken too much medication and she simply replied “no” and he then left.

[49]A few days later, on 24th October 2006, Mrs Harper and Mrs Bruce spoke to Ms Read, who was the supervising partner for Mrs Bruce. The three of them discussed the test for testamentary capacity. Mrs Harper and Mrs Bruce stated they had doubts about Mrs Blofield’s testamentary capacity. They referred to the fact she was not sure about the extent of her property or the moral claims she ought to consider. They had doubts whether she had the required “soundness of mind, memory and understanding”. They recognised the potential for undue influence on the part of Mr Cranfield. Ms Read agreed with the others that a doctor should ideally be present on the next occasion with a view to witnessing the will should Mrs Blofield be determined to have sufficient mental capacity. They seem to have contemplated an alternative of having a doctor certify Mrs Blofield’s capacity. It was also pointed out that Mr Cranfield should not be present when the will was signed.

[50]On 25th October 2006, Mrs Harper made six telephone calls in connection with this instruction. She made an attendance note of each call. The sequence in which she made the telephone calls is reasonably clear save for one or two of the calls. I will describe these calls in the sequence which appears to me to be the most logical and which also appears to be the sequence described by Mrs Harper in her witness statement, although not the sequence in which the attendance notes appear in the bundle of documents.

[51]The first call on 25th October 2006 was from Mrs Harper to Mr Cranfield. The note says she explained the situation and Mr Cranfield agreed he would let her have the details of Mrs Blofield’s doctor. Mr Cranfield said that Mrs Blofield had good days and bad days and that 20th October 2006 was a bad day. He said he understood why the solicitors needed to involve a doctor as it was “as much for his protection as hers”. Mr Cranfield did not raise any difficulty about the suggestion that Mrs Blofield’s doctor should be involved.

[52]Mr Cranfield then spoke to Mrs Blofield who told him that she did not want to give the solicitors the doctor’s details. She was worried that the doctor might send her to hospital. I comment at this point that it is quite clear from everything I have seen that Mrs Blofield was determined to stay in her own home and did not wish to be moved out of it to a hospital or a residential care home. The fact that Mrs Blofield was concerned that she might be moved to a hospital suggests that Mrs Blofield must herself have considered that she was failing either physically or mentally at this stage. Mr Cranfield then telephoned Mrs Harper with this information and he asked Mrs Harper to call Mrs Blofield and gave Mrs Harper the telephone number. There was no suggestion that Mr Cranfield was attempting to make it more difficult for the solicitor to involve Mrs Blofield’s doctor.

[53]There was then a telephone conversation between Mrs Harper and Mrs Blofield. Mrs Harper thought it was possible that Mrs Blofield had telephoned Mrs Harper but I think this is unlikely. It is much more likely that Mrs Harper telephoned Mrs Blofield, as requested by Mr Cranfield. In this conversation, Mrs Harper explained to Mrs Blofield her concerns as to the instructions which had been given on the 20th October 2006. Mrs Blofield then said that she now understood why Mrs Harper wanted a doctor involved and Mrs Blofield gave her doctor’s details. There was then some further conversation between Mrs Harper and Mrs Blofield. At that time, Mrs Harper was visibly pregnant. Mrs Blofield had plainly seen that was so on 20th October 2006. In this conversation on 25th October 2006, Mrs Blofield asked Mrs Harper “about the baby” and about whether Mrs Harper would be going back to work after the birth. Mrs Harper’s attendance note also records that Mrs Blofield was able to provide Mr Cranfield’s first name but it seems she was not able to give Phil’s surname.

[54]There was then a further conversation between Mr Cranfield and Mrs Harper. Mrs Harper asked Mr Cranfield to check the doctor’s details which Mrs Blofield had provided. Precisely what happened in this respect was not explored in the evidence but it appears from the crossing out on the attendance note that Mrs Blofield may have given the wrong telephone number for her doctor. It was not specifically suggested that this showed confusion on her part as it is possible that the phone number was out of date. Mrs Blofield also gave the name of her doctor as Dr Gilbert. This gentleman had been her doctor for many years but had recently retired from the practice. Mrs Harper’s note of the doctor’s address was given as “Bell Road” whereas it was in fact Mill Road. Again, it was not really suggested that this was confusion on Mrs Blofield’s part as the wrong address could have been the result of a mishearing in the telephone conversation. The result of all of this was that at this stage on 25th October 2006, Mrs Blofield had agreed to be seen by her doctor and Mr Cranfield was co-operating with that process.

[55]The fifth telephone conversation which Mrs Harper had on 25th October 2006 was with Mrs Blofield again. It seems that Mrs Blofield rang Mrs Harper. Mrs Blofield told Mrs Harper that she did not wish Mrs Harper to proceed with the will because of the requirement that she was having to see a doctor. I am satisfied that this was Mrs Blofield’s own opinion and was due to the fact that she was very concerned about having to leave her home on medical grounds. I am also satisfied that Mr Cranfield did not cause or contribute to this opinion on the part of Mrs Blofield; on the contrary, I am satisfied that he was perfectly happy to go along with the solicitor’s request that Mrs Blofield be seen by her doctor. Mrs Harper’s note of this conversation was that Mrs Blofield had great difficulty in getting her words out. Mrs Blofield’s television was playing in the background. Mrs Harper noted that she thought she could hear Mr Cranfield speaking in the background. Mr Cranfield gave evidence that he was not present during this telephone conversation. I accept Mr Cranfield’s evidence on that point. Mrs Harper’s reference to this possibility of Mr Cranfield being present shows that Mrs Harper for understandable reasons was concerned about the relationship between Mrs Blofield and Mr Cranfield. Mrs Harper agreed that she would send Mrs Blofield a bill for her fees.

[56]The sixth and last telephone call involving Mrs Harper on 25th October 2006 was when Mr Cranfield telephoned her. He said that he had just arrived at 88 Butt Road and Mrs Blofield had told him that she did not wish to proceed with the instruction to make her will. He asked Mrs Harper to send him the bill.

[57]On 26th October 2006, Mrs Harper followed up the telephone conversations of the previous day by telephoning Mrs Blofield again. Mrs Harper established that Mrs Blofield remembered the telephone conversations of the previous day. Mrs Harper wanted to confirm why Mrs Blofield had decided not to go ahead. Mrs Blofield said it was because Mrs Harper “was not her solicitor”. Mrs Blofield said that she had her own solicitors and she had asked them to do a new will, although she later stated she had not asked anyone else to do a will. It is possible that Mrs Blofield was a little confused during this conversation but there is also a strong likelihood that Mrs Blofield was making excuses for why she had dis-instructed Mrs Harper. Mrs Blofield did confirm that she was worried about seeing a doctor which led Mrs Harper to suggest that she would be prepared to come out to see her again and “have another go” at getting instructions for the will. Mrs Blofield said “very emphatically” that she did not want that and that she had changed her mind. There was some further general conversation between Mrs Harper and Mrs Blofield. Mrs Blofield thanked her for her involvement and there was again a question about how much longer Mrs Harper would remain at work.

[58]On 27th October 2006, Mrs Harper wrote to Mrs Blofield referring to what had happened. In her letter, Mrs Harper advised that if Mrs Blofield died intestate with no surviving spouse or children then her grandchildren would take her estate equally between them but this would not apply to her grandchild who had been legally adopted.

[59]Also on 27th October 2006, Mrs Harper sent Mr Cranfield, as he had requested it, a bill for £100 plus VAT and this bill was subsequently paid out of Mrs Blofield’s account.

[60]On 27th October 2006, the day after Mrs Blofield had told Mrs Harper that she did not want Mrs Harper to prepare a will for her, Mrs Blofield raised the subject of her will with Mr Cranfield a further time. She asked Mr Cranfield to look in Yellow Pages for another firm of solicitors to prepare a will for her. He found a reference to Sparling, Benham & Brough, solicitors, of Colchester and he telephoned that firm to instruct them to prepare a will for Mrs Blofield. Mr Cranfield spoke to Mr Jones who accepted the instructions and later prepared the disputed will. Mr Jones is not a solicitor or a legal executive and he describes himself as a probate and trust practitioner. Mr Cranfield gave Mr Jones certain information about the position. He said he was a friend of Mrs Blofield. He said that her speech was not good and that she required a home visit. A home visit was arranged for 4.15 on Tuesday 31st October 2006. Mr Jones quoted a fee of £140 plus VAT. He was given Mrs Blofield’s telephone number.

[61]On 31st October 2006, Mr Jones telephoned Mrs Blofield before going to see her later in the day. He asked her to have available a passport and a utility bill. She confirmed that she had what was required and she would have the documents ready for him when he arrived. They also discussed where he might park. In preparation for his visit to Mrs Blofield, Mr Jones filled in a standard document headed “WILL INSTRUCTIONS/QUESTIONNAIRE”. He completed part of this document before he saw Mrs Blofield and he filled in other parts of the document during his attendance on her. The document records her date of birth as 26th January 1924 although he may have got that from her passport which she produced when they met. In the part of the form which referred to grandchildren, Mr Jones wrote “you have one granddaughter who lives in Dubai (not to benefit). You never see her.” Another part of the form was intended to identify the principal assets owned by Mrs Blofield. She told him (when he went to her home) that she owned her own home with a value of perhaps £150,000. No other details were given as to other assets such as bank accounts. However, the estimated value of the estate was stated to be “below £275,000 threshold”. The nil rate band for IHT purposes at the time was £285,000 but Mr Jones was using an out of date figure. Mr Jones explained why there were no further details of Mrs Blofield’s assets. He said that he ascertained that the value of those assets taken together with the value of her house was below the nil rate band. When he heard that he went on with other parts of the questionnaire. When he was instructed that Mrs Blofield wished to leave all of her estate to Mr Cranfield or if he predeceased her to Mr Nicholas, and she did not wish to make any specific gifts, he concluded that it was not necessary to investigate further the details of her asset position. Mrs Blofield told Mr Jones that she wanted Mr Cranfield to be the sole executor and the sole beneficiary. He was described as a friend of Richard’s. He was also described as her “good friend”. If Mr Cranfield predeceased Mrs Blofield, she wished Mr Nicholas to inherit her estate. Mr Nicholas was also described as her “good friend”. Mr Jones recorded:

“you are adamant that you do not wish to leave anything to your granddaughter”

. Mr Jones said that that is what Mrs Blofield told him during his interview of her. He later added the words:

“and she inherited under your son’s estate. Unfair?”

As earlier requested, Mrs Blofield had ready her passport and a utility bill. She did not wish Mr Jones to take her passport away but she permitted him to take the utility bill. The interview with Mrs Blofield took some 36 minutes.

[62]The next day, Mr Jones dictated an attendance note. Because it is accepted that the attendance note is accurate as to what occurred and because of its importance, I will set it out in full, as follows:

“Prior to my arranged visit to Helen Blofield at her home, 88 Butt Road, Colchester for the purposes of taking Will instructions, I telephoned her to ask if there was any room for me to park a car at her home. She confirmed that there was room enough to park a car on the small frontage to her home and I was welcome to use it. She also told me that she did not use her front door and asked me to go through the gate to the side door which she would leave unlocked for me to enter. I also asked Mrs Blofield in advance if she could produce identification when I came. She said she would have her passport ready together with a utility bill. Mrs Blofield was alone in the house when I visited her at 4.15pm later in the day to take her Will instructions. Mrs Blofield did not have a Will at present and she said the reason for her making a Will at the present time was that her son and only child, Richard, had recently died. Mrs Blofield now wished to leave the whole of her estate to her very good friend Lionel Cranfield whom she had closely known for very many years and who had also been a very good friend of her late son Richard. He was also to be sole Executor of the Will but if he did not survive Mrs Blofield then everything was to pass instead to Philip Nicholas, who was also a longstanding friend of the family, and he would be the sole Executor instead. He lived at the same address as Lionel Cranfield. Mrs Blofield mentioned that she herself had been an only child with no brothers and sisters and her only blood relative was her granddaughter, the daughter and only child [of] her late son Richard. Mrs Blofield was adamant that she did not wish her granddaughter to benefit from her Will as the granddaughter had already inherited the whole of Richard’s estate and she never visited or made contact with Mrs Blofield. For some reason Mrs Blofield seemed to feel it was unjust that her granddaughter had inherited the whole estate but after consideration, Mrs Blofield had decided to refrain from pursuing any claim for herself against Richard’s estate. I told Mrs Blofield that I would prepare a draft Will for her which I would send out to her for approval and once I knew she was happy with it, we could make arrangements for me to call on her again for the purposes of signing the final version of the Will. I also suggested to Mrs Blofield that she perhaps consider an Enduring Power of Attorney for herself at this time so that she would have someone to act on her behalf if she were ever to lose mental capacity in the future. I explained the full implications of an Enduring Power of Attorney in considerable detail, but she decided that she did not wish to proceed with this aspect at the present time. Mrs Blofield gave me her passport and telephone bill for identification purposes but said she did not wish me to take the passport away and I therefore noted the passport number on my file. (LJ)”

[63]In this attendance note, Mr Jones recorded Mrs Blofield saying that Mr Cranfield was “her very good friend” and that he had also been “a very good friend” of Richard. She said “that she had closely known” Mr Cranfield “for very many years”. As earlier explained, this was a considerable overstatement of the position. She also referred to Mr Nicholas as “also a longstanding friend of the family”. That was perhaps more accurate although it too involves some element of overstatement.

[64]On 2nd November 2006, Mr Jones telephoned Mr Cranfield for further information as to the spelling of his name and as to Mr Nicholas’ full name. Mr Cranfield said that he and Mr Nicholas went back a long way together and they were both friends of Richard. Mr Cranfield told Mr Jones that Richard had “left a will” leaving all to his daughter whom Richard and Mrs Blofield had not seen for many years. He said that Mrs Blofield had considered making a claim against Richard’s estate and Mr Jones indicated that he would be happy to follow that up if Mrs Blofield wanted it.

[65]On 2nd November 2006, Mr Jones wrote to Mrs Blofield enclosing a draft of a will. The draft will was in the same terms as the will which was later executed and is now the disputed will. Clause 1 of the draft will revoked all former wills and testamentary dispositions. Clause 2 of the draft will stated that Mrs Blofield wished to be cremated. Clauses 3 and 4 of the draft will are in these terms: “3. IF my friend LIONEL STEVE CRANFIELD (“Lionel”) of 2 White Barn Cottage Clacton Road Elmstead Market Colchester Essex C07 7DB shall be living at my death then subject to the payment of my debts and funeral and testamentary expenses and taxes payable on or by reason of my death I GIVE DEVISE AND BEQUEATH all my property real and personal whatsoever and wheresoever (“my Property”) to Lionel absolutely and I APPOINT him to be the sole Executor of this my Will 4. IF Lionel shall not be living at my death then subject as above I GIVE DEVISE AND BEQUEATH all my property to my friend PHILIP MARK NICHOLAS of 2 White Barn Cottage above I APPOINT him to be the sole Executor of this my Will ”.

[66]In the covering letter of 2nd November 2006, Mr Jones specifically pointed out to Mrs Blofield that by clause 3 of the will she had appointed Lionel Cranfield to be sole executor and beneficiary of her will. The letter asked Mrs Blofield carefully to check the draft will to ensure that it reflected her wishes. If everything was in order, Mrs Blofield was asked to telephone to arrange a convenient time for her to execute the will. Mr Jones also informed Mrs Blofield that his fee would be £140 plus VAT of £24.50 totalling £164.50.

[67]On 6th November 2006, Mr Cranfield telephoned Mr Jones to say that Mrs Blofield had asked Mr Cranfield to confirm that the draft will was satisfactory. An appointment was made for Mr Jones to attend on Mrs Blofield for the execution of her will on Monday 13th November 2006 at 2.30pm.

[68]On 13th November 2006, Mr Jones went to see Mrs Blofield to arrange execution of her will. He was accompanied by a legal secretary from his firm, a Mrs Sharon Pearce. When Mr Jones arrived at 88 Butt Road, he met Mrs Blofield and read the draft will to her. He said that she listened and nodded her agreement to the will. This process did not take particularly long as the draft will was short. He then summarised the main provisions of the will to the effect that she was leaving her entire estate to Mr Cranfield who was also to be the sole executor and if he were to predecease her, she was leaving her entire estate to Mr Nicholas. He asked her once again if she was happy with the will and she indicated that the draft will was what she wanted and she was ready to execute it. He then gave her the original of the draft will, she looked over it briefly and then nodded and signed. Mr Jones and Mrs Pearce then signed as witnesses.

[69]Mrs Blofield then told Mr Jones that she had got a sum in cash to pay his bill and she handed him an envelope containing cash in the exact amount of £164.50. It seems likely that she had asked Mr Nicholas to draw that sum from her bank or Post Office account and that she had taken care to get the exact sum ready for Mr Jones’ visit. Mr Jones’ attendance note of this meeting identified the chargeable time as two units, that is, some 12 minutes. Mr Jones said that the meeting was a short one and it could have been a little more or a little less than twelve minutes.

[70]On 14th November 2006, Mr Jones sent to Mrs Blofield a copy of the executed will and stated that the original had been placed in his firm’s strong room for safe keeping.

[71]Mr Cranfield was not present at either of the visits by Mr Jones. He said that Mrs Blofield had asked him to be present at the first meeting with Mr Jones but he had refused as he did not think it would be right. He did say to Mrs Blofield that she should be careful with her medication on that day but he does not think he saw her on 31st October 2006. Mr Nicholas was not with Mrs Blofield on either occasion. Mr Cranfield thinks that Mrs Blofield might have shown him the draft will before she executed it. Mrs Blofield told Mr Cranfield she did not want Mr Nicholas to know that she was not leaving her estate to him until after she had made her will.

[72]Mr Jones gave detailed evidence about his dealings with Mrs Blofield and Mr Cranfield. His evidence, as one might expect, accorded with his detailed notes which he had made at the time. He added one or two further details when cross-examined. It was suggested that it was unlikely that Mr Jones could remember those matters of detail and that I should be on my guard lest Mr Jones was adding in further matters of detail which he could not genuinely remember but to help support the case that Mrs Blofield had testamentary capacity at the relevant time. It is entirely right that I should be on my guard against a possibility of that kind but, on the whole, I do accept Mr Jones’ evidence in relation to these matters of detail.

[73]Mr Jones stated that when he met Mrs Blofield on 31st October 2006 he was quite satisfied that she had testamentary capacity. He felt there was absolutely no need for him to obtain a medical report on her capacity. He found Mrs Blofield to be absolutely clear and precise in giving instructions as to what she wanted. She was absolutely adamant that she did not want Mrs Cowderoy to benefit from her estate in any way. She expressed irritation that Mrs Cowderoy had inherited the entirety of Richard’s estate. It struck Mr Jones as unusual that Mrs Blofield was leaving her estate to Mr Cranfield but Mrs Blofield gave an explanation for why her granddaughter was not to inherit and that she had no other relatives. Mr Jones also indicated that he had no reason to be concerned about Mrs Blofield’s testamentary capacity when she executed the will on 13th November 2006.

[74]Mrs Pearce, the legal secretary who accompanied Mr Jones on 13th November 2006 gave evidence about that occasion. She was not able to remember much detail about the meeting with Mrs Blofield. She thought there was nothing unusual about that meeting. She indicated what Mr Jones would have done in terms of reading and explaining the will but she was not able to remember what specifically he had done. Her evidence as to what Mr Jones would have done accorded with what Mr Jones said he had in fact done on that occasion.

[75]As it happened, on 13th November 2006, the same day as Mrs Blofield executed the disputed will, Mrs Cowderoy sent an email to Mrs Rainford about Richard’s estate. Mrs Blofield had not replied to Mrs Rainford’s letter of 19th October 2006 asking for certain information. Mrs Cowderoy stated in this email to Mrs Rainford that she was aware that Mrs Blofield was “in a confused state and taking various [medications].” Mrs Cowderoy suggested that Mrs Rainford should telephone Mrs Blofield direct. The statement about Mrs Blofield being confused may have affected Mrs Rainford’s assessment of the telephone conversation which she later had with Mrs Blofield.

[76]On 16th November 2006, Mrs Rainford telephoned Mrs Blofield. She seems to have referred to her earlier letter of 19th October 2006. Mrs Rainford made a note of this conversation around the time that it took place. The note contains the phrase:

“Mrs Blofield did sound slightly confused”

. The remainder of the short note then recounted other parts of the conversation which Mrs Rainford had with Mrs Blofield. The note does not in other respects disclose any particular confusion on Mrs Blofield’s part. After the conversation of 16th November 2006, Mrs Rainford telephoned the mobile phone number which she had written on the letter from the bank, as I have earlier described. That was Mr Nicholas’ phone number. Mrs Rainford did not make an attendance note of the conversation which she had as a result of ringing this telephone number.

[77]On 23rd November 2006 Mrs Rainford wrote to Mrs Cowderoy. She referred to the conversation she had with Mrs Blofield on 16th November 2006 and she also referred to a conversation she had with a “Mr Dransfield”. When describing the conversation she had had with Mrs Blofield, she said that Mrs Blofield “did appear to be extremely confused”. She then added that she “eventually” got certain information from one of Richard’s friends, “Mr Lionel Dransfield”. The reference to “eventually” suggests that the conversation in question was after the conversation with Mrs Blofield on 16th November 2006 but, plainly, prior to 23rd November 2006. Mrs Rainford’s letter of 23rd November 2006 is written on the basis that she spoke to Mr Cranfield rather than Mr Nicholas. Mr Cranfield at all stages denied that he had had any such conversation with Mrs Rainford. I find that Mrs Rainford did indeed have a conversation with either Mr Cranfield or Mr Nicholas around this time. I reject the suggestion that Mrs Rainford’s letter of 23rd November 2006 was not actually written and sent to Mrs Cowderoy. It was suggested that the letter of 23rd November 2006 might have been dictated on or shortly after 16th November 2006 but, in my assessment, on the balance of probabilities, the letter was dictated shortly before 23rd November 2006. I find that the letter does record what Mrs Rainford understood she was told in the relevant conversation with either Mr Cranfield or Mr Nicholas. The person who spoke to Mrs Rainford appears to have been open and forthcoming to Mrs Rainford. He referred to Mrs Blofield not wanting social services to become involved despite the fact that she was becoming “more and more confused”. Based on the conversation, Mrs Rainford wrote the following:

“My main area of concern, however, was that Mr Dransfield has advised me that your Grandmother has told him she is giving him the house. However, Mr Dransfield has advised that he does not think she has done it yet, and is trying to find out how he can go about it. Obviously, if your grandmother is as confused as she sounds, she would not be mentally able to make a decision that the property should be given away. I am therefore concerned that she may be taken advantage of in her confused state.”

[78]Mrs Cowderoy points to the fact that the person to whom Amanda Rainford spoke referred to Mrs Blofield becoming more and more confused. The reference to Mrs Blofield giving someone the house does not make much sense if Mrs Rainford was speaking to Mr Cranfield. Mr Cranfield was aware that Mrs Blofield had executed a will in his favour on 13th November 2006. On the other hand, as at 23rd November 2006, Mr Nicholas was not aware that Mrs Blofield had made this will. That fact alone suggests that it is more likely that Mrs Rainford was speaking to Mr Nicholas rather than to Mr Cranfield. Coupled with the fact that Mrs Rainford appears to have telephoned Mr Nicholas’ mobile telephone and that the other content of the conversation is somewhat more typical of Mr Nicholas than of Mr Cranfield, I decide on the balance of probabilities that Mrs Rainford spoke to Mr Nicholas and did not speak to Mr Cranfield.

[79]Before leaving the conversations which Mrs Rainford had with Mrs Blofield and Mr Nicholas in the period 16th to 23rd November 2006, I ought to refer to a telephone attendance note which is dated 16th November 2006 which purports to be a record of these two conversations. Mrs Rainford prepared this attendance note in June 2009 when Stones, acting for Mrs Cowderoy, were preparing to write to Mr Cranfield putting forward the contention that the will was invalid and/or had been brought about by the exercise of undue influence by Mr Cranfield on Mrs Blofield. Mrs Rainford told me that in June 2009 she was not initially aware that she had made a short attendance note of the conversation with Mrs Blofield on 16th November 2006. Apparently, an electronic copy of the note was available on her firm’s computer system but she was not at the time aware of that. She could see from her letter of 23rd November 2006 that she had had a conversation with Mrs Blofield and later, as she thought, with Mr Dransfield. She therefore set about drafting an attendance note which referred to these two conversations and although she was carrying out this exercise in June 2009 she thought it appropriate to put the date of 16th November 2006 on the attendance note. In the June 2009 version of the attendance note, when referring to the conversation with Mrs Blofield, she referred to Mrs Blofield as being “extremely confused” whereas her contemporaneous attendance note used the words “Mrs Blofield did sound slightly confused”. She also referred to some other features of this conversation with Mrs Blofield in a way which suggested confusion even though those features had not appeared in her contemporaneous attendance note.

[80]The attendance note prepared in June 2009 then went on to refer to a conversation with “Lionel Cranfield”. The note recorded that Mr Cranfield said that Mrs Blofield wanted to give him her house and he wanted to know the best way of going about it.

[81]On 25th November 2006, Mrs Cowderoy replied to Amanda Rainford’s letter of 23rd November 2006. In her reply, Mrs Cowderoy referred to her mother, Sherra Lawrence, contacting Mrs Blofield every two weeks as they had always been “very close”. She said that her mother wished to visit Mrs Blofield in Colchester but Mrs Blofield resisted that suggestion. Mrs Cowderoy suggested that Mrs Blofield was being given medication and alcohol so that after 11.00am she was generally inebriated or “spaced out”. She referred to her uncle, Mr Graham Thornton having a good relationship with Mrs Blofield and that he intended to call Mrs Blofield that day. Mrs Cowderoy added: “Any “friends” of my fathers are not to be trusted as he was a ruthless, spiteful and devious man and I would rather Granny Helen’s house go to a charity rather [than] have her tricked or [coerced] into giving the place away”.

[82]On 27th November 2006, Mrs Cowderoy sent a further e-mail to Mrs Rainford. She reported that her uncle had telephoned Mrs Blofield and that Mrs Blofield had said she was being taken to the pub by two “chaps”. Mrs Cowderoy’s uncle telephoned Mrs Blofield a day or so later. Mrs Cowderoy also told Mrs Rainford that Mrs Lawrence had called Mrs Blofield a few days earlier and Mrs Blofield had said she had plenty of money. I did not hear any evidence from Mr Thornton.

[83]In late November 2006, Mrs Lawrence, became concerned about Mrs Blofield because she had not heard from her for some time. She telephoned Essex police and asked them to make discreet enquiries about Mrs Blofield. Mrs Lawrence said that she did not want the police to knock on the door and disturb Mrs Blofield. A police officer called on Mrs Blofield on 27th November 2006. Mrs Blofield and Mr Nicholas were at the property. The police officer made a note of the attendance and commented on various aspects of Mr Nicholas’ behaviour. The police officer’s note recorded that Mrs Blofield “seemed fine”. He also referred to “piles of cash that seemed dotted about the room”. There was no investigation at the trial of whether these piles of cash had any significance for the issues in this case.

[84]A little later, Mrs Lawrence telephoned Mrs Blofield and asked her if anyone had called to see her. Mrs Blofield said “yes” and slammed the phone down. She was angry that the police had called on her. Mrs Lawrence and Mrs Blofield did not speak to each other again after this incident.

[85]Thereafter, Amanda Rainford proceeded with the administration of Richard’s estate and on 11th January 2007, Richard’s bank transferred the sums in his accounts to Stone’s solicitors.

[86]On 24th January 2007, Amanda Rainford wrote to Mrs Cowderoy saying that Stones had been unable to place “a caution” against the registered title of 88 Butt Road and said that if Mrs Cowderoy was still concerned at the possibility of Mrs Blofield being “financially abused” then certain other steps could be taken. Mrs Cowderoy did not take those steps at that time.

[87]Mrs Blofield’s general practitioner, Dr Cheung, paid a home visit to Mrs Blofield on 6th February 2007. His practice routinely wrote to housebound patients on an annual basis. His records show that his practice wrote to Mrs Blofield on 16th September 2005 and again on 26th September 2006 but she did not respond to these requests for a visit from a doctor. The surgery then took the initiative and telephoned Mrs Blofield arranging an appointment for Dr Cheung to pay a home visit.

[88]On 6th February 2007, Dr Cheung was with Mrs Blofield for some 20 to 30 minutes. He took her blood pressure, reviewed her medication and took her medical history. He made a note of what she told him. There was no one else present. Mrs Blofield told Dr Cheung that her son had died in August 2006 and that he had been a heavy drinker. She said she lived alone and had a granddaughter in Dubai. She had carers daily and lived with her cat. Dr Cheung recorded that her memory was “OK”. He also recorded that she found it difficult to fix on certain words. He explained when he gave evidence that she did not have difficulty with the conversation as a whole or with a particular sentence but she found difficulty in saying some words. He gave evidence that if he had had concerns about her capacity then he would have carried out a different plan of action. He would have checked with her carers or neighbours or taken a third party history to see what concerns they had. On 6th February 2007 he did not have those concerns and he felt there was no need for him to take that action.

[89]Dr Cheung’s note of the visit on 6th February 2007 contains the statement:

“denies drinking heavily”

. He asked Mrs Blofield about her drinking partly because he was carrying out a general health check but also more particularly because he saw an unopened bottle of brandy in the room.

[90]Dr Cheung was concerned that Mrs Blofield had a cancerous skin growth on her forehead and that he expected he would need to refer her for a consultation with regard to the growth. She confirmed to him that she understood what he was telling her.

[91]Dr Cheung made a second home visit to Mrs Blofield on 20th February 2007. On that occasion he was with her for some 10 to 20 minutes. His recollection of this visit is less good that his recollection of the visit on 6th February 2007. The note he prepared of the visit of 20th February 2007 recorded that Mrs Blofield was generally well “though seems to get a bit confused”. When he gave evidence, he did not remember more detail as to the nature of her confusion. He said that if he had been concerned about her mental capacity he would have looked into the confusion in more detail and taken other steps which he did not take. Following that visit Dr Cheung referred Mrs Blofield for plastic surgery.

[92]Dr Cheung gave evidence that in February 2007, he found Mrs Blofield to be a very chatty, friendly person who was freely able to communicate, spoke freely and did not appear to be under any form of duress. It seemed to him that she was comfortable in her familiar surroundings although the house was messy. She was not particularly concerned about the cancerous growth on her forehead.

[93]Dr Cheung also described the medication which Mrs Blofield was taking, in particular in February 2007. Mrs Blofield had been taking nitrazepam and co-codamol for a considerable period of time. Dr Cheung explained the adverse effects of taking nitrazepam over a long period of years. He stated that if both of these drugs were taken in excess this could cause altered mental function. If Mrs Blofield were to take more than the recommended amount or fail to take the recommended amount of nitrazepam for example, the effect would be that she could become disorientated, confused or have a lack of concentration. In that event she could also appear dozy and vacant. The effect of taking too much co-codamol would be the same. These effects would be enhanced if she drank alcohol.

[94]Mrs Cowderoy told me that she telephoned her grandmother from Dubai in around February 2007. She says that her grandmother slurred her words and then put Mrs Cowderoy onto Mr Cranfield and Mr Nicholas and that she had a conversation with both of them. Mr Cranfield said that he did not have a conversation of this kind with Mrs Cowderoy. Mrs Cowderoy said that Mr Cranfield and Mr Nicholas told her the medication which Mrs Blofield was taking. At a late stage in the trial, Mrs Cowderoy produced two witness statements from friends in Dubai. The witness statements described how the two friends were present at an address in Dubai when Mrs Cowderoy telephoned her grandmother. Those two statements were admitted under the Civil Evidence Act 1995 but the makers of the statements were not called. It is also right in this context to refer to the fact that Mrs Cowderoy sent a birthday present in January 2007 to Mrs Blofield. The present was a gift of flowers sent by Interflora. The present was accompanied by a card wishing Mrs Blofield a happy birthday and stating that Mrs Cowderoy would call her soon as she had some news for her. The news appears to have been that Mrs Cowderoy was coming to England to renew her vows. In the light of the two witness statements to which I have referred and the card which accompanied the flowers, I find on the balance of probabilities that Mrs Cowderoy did telephone her grandmother in around February 2007. The next question is whether I can accept Mrs Cowderoy’s evidence that her grandmother slurred her speech. It is possible that Mrs Blofield did slur her speech. There is evidence that she did drink and, on Mrs Cowderoy’s account, Mr Nicholas at least was with her at the time of the telephone call. The next question is whether Mrs Cowderoy spoke to Mr Cranfield. Mr Cranfield denied that any such conversation took place. The solution to this conflict may be that Mrs Cowderoy did speak to someone other than Mrs Blofield but the someone was Mr Nicholas. Mrs Cowderoy says that she wanted to ask about the medication which Mrs Blofield was taking. Mr Nicholas regularly collected Mrs Blofield’s prescriptions from the chemist Mr Cranfield told that he did not know what medication Mrs Blofield was taking. Further, the two witness statements, on which Mrs Cowderoy relies for corroboration, are not satisfactory as to whether Mrs Cowderoy spoke to one man or two men. The statement from Emma Greenwood refers to two men. It also says they were called Lionel and Philip. Given that the conversation was more than four years before Ms Greenwood’s statement, it is prima facie surprising that Ms Greenwood remembered those names at the time of her statement. That suggests that Ms Greenwood was prompted in a number of respects when making her statement. Further, the second statement, that of Sarah Walker-Kerr seems to refer most of the time to one man although in an ungrammatical sentence there is a reference to “the gentlemen”. On the balance of probabilities I am not able to find that Mrs Cowderoy did have a conversation with Mr Cranfield in February 2007 although I have found that she did speak to Mrs Blofield on that occasion.

[95]Mr Cheung’s notes also record that Mrs Blofield was seen in the plastic surgery clinic on 14th June 2007. I was not given any specific evidence as to this visit nor as to the means by which Mrs Blofield, who seems to have been otherwise housebound, made the journey.

[96]I have a great deal of evidence about Mrs Blofield’s medical condition after 2007. This takes the form of Mrs Blofield’s detailed medical notes when she was hospitalised in 2008 and also notes of her condition when she was in a residential care home in 2008. I have also had detailed evidence from Mr Cranfield as to the changes in Mrs Blofield’s condition from 2006 to 2008. Where there are medical notes which describe Mrs Blofield’s condition, those notes corroborate the evidence of Mr Cranfield although, of course, he gave his evidence as a lay person who knew Mrs Blofield well rather than from a medical perspective.

[97]I will summarise what Mr Cranfield told me about Mrs Blofield’s condition after she had made the disputed will in November 2006. Mr Cranfield saw Mrs Blofield regularly during this period. He said that in March or April 2007, Mrs Blofield started to deteriorate mentally. He noticed that she was beginning to find it harder to get words out. For example, she would start a sentence but would not be able to finish it because she could not remember the word which she wanted to say. Notwithstanding this, he thought that her memory was not too bad and she appeared to know what she was doing and what she wanted. She told him a lot about her personal history. There was a much more marked deterioration both physically and mentally in 2008. She had a fall in January or February 2008. He describes finding Mrs Blofield lying on the floor and her speech was slurred. From that point, things deteriorated quite quickly. In February and March 2008 she became incontinent and it was difficult to care for her. She had a second fall in around March 2008. Dr Cheung saw Mrs Blofield on 18th January 2008 and again on 15th April 2008. On 18th January 2008, he felt that Mrs Blofield had markedly deteriorated. She was unkempt and unwell he was concerned about memory impairment at this stage. She was markedly anaemic.

[98]On 15th April 2008, Dr Cheung found Mrs Blofield in a very poor state. She appeared significantly unwell and mentally incapable. Despite her wishes, Dr Cheung insisted that she be taken to hospital and she was accordingly admitted to hospital.

[99]It is not necessary to recount the details of Mrs Blofield’s medical condition during her time in hospital and her time in the residential care home where she died on 19th October 2008.

[100]Apart from the evidence of Mrs Harper and Mrs Bruce, from Birkett Long, who attended on Mrs Blofield on 20th October 2006, Mrs Cowderoy did not call any witness who had seen Mrs Blofield in 2006 and 2007. Mrs Cowderoy did not herself see Mrs Blofield in that period. Mr Cranfield gave his own evidence about Mrs Blofield’s condition in 2006 and 2007. He called Mr Jones and Mrs Pearce from Sparling Benham & Brough about the preparation and execution of the will in October and November 2006. He also called Dr Cheung whose evidence I have referred to above. Mr Cranfield called three other witnesses who had seen Mrs Blofield at a relevant time. They were Mrs Joan Cranfield (Mr Cranfield’s ex-wife), Ms Terena Harris a former partner of Mr Cranfield and Ms Kim Hallpike, Mr Cranfield’s current partner.

[101]Mrs Cranfield met Mrs Blofield on three occasions. The first was in August 2006. At this stage she was already divorced from Mr Cranfield although she and her partner purchased 73 Butt Road from Mr Cranfield in May 2004. Accordingly, in August 2006, she lived across the road from Mrs Blofield. When Richard died in early August 2006, Mr Cranfield asked Mrs Cranfield, who was a social worker, to help Philip Nicholas break the news of Richard’s death to Mrs Blofield. Mrs Cranfield did so. Mrs Blofield was upset at the news although she had been expecting it for some time. Richard’s end came rather more suddenly than had been expected. Mrs Cranfield considered that Mrs Blofield understood what was being said. Mrs Cranfield thought Mrs Blofield was very frail. Mrs Cranfield met Mrs Blofield for the second time on Christmas Day 2007. She took Mrs Blofield some Christmas dinner. Mrs Cranfield thought on this occasion that Mrs Blofield appeared rather vacant. Mrs Cranfield saw Mrs Blofield on a third occasion in hospital in 2008. By this time she was much worse than she had been at Christmas 2007.

[102]Ms Terena Harris was Mr Cranfield’s partner from June 2002 until March 2006. They remained friends after they split up. Ms Harris was a hairdresser who saw customers in their own homes. After Richard died in early August 2006, Mr Cranfield asked Ms Harris to look after Mrs Blofield’s hair and to cut her nails. Thereafter, Ms Harris saw Mrs Blofield regularly from about August 2006 until Mrs Blofield was admitted to hospital in 2008. Ms Harris went to visit Mrs Blofield in hospital but she did not visit her when she was admitted to the residential care home. When Ms Harris went to cut Mrs Blofield’s hair, she would typically stay for an hour or even two hours. Ms Harris described Mrs Blofield as being “really chatty” with good stories to tell. Mrs Blofield asked Ms Harris about her children and asked a lot of questions about Ms Harris and about Mr Cranfield. She spoke approvingly of Mr Cranfield. In the period described by Ms Harris, Mrs Blofield read two broadsheet newspapers a day; Ms Harris thought they were The Times and The Independent. Ms Harris described Mrs Blofield as being very stubborn and gave the example of her refusal to see a doctor about the cancerous growth on her forehead. Mrs Blofield also mentioned Mrs Cowderoy to Ms Harris on more than one occasion. She explained to Ms Harris about the relationship between Richard and Mrs Cowderoy and that following Richard’s death Mrs Cowderoy “swooped in”, as Mrs Blofield put it, to inherit Richard’s estate because he had died intestate. Mrs Blofield was very annoyed on that subject. She referred to Mrs Cowderoy as “that girl”. Mrs Blofield told Ms Harris in around October 2006 that she wanted to leave her estate to Mr Cranfield. She mentioned this a couple of times. She said that she would like to leave something to Mr Nicholas as well but she was worried that he would spend any money he inherited on drink. Mrs Blofield told Ms Harris that she was determined that Mrs Cowderoy would not get anything from the estate. Ms Harris also confirmed that Mr Cranfield said he was uncomfortable about Mrs Blofield wanting to leave everything to him. Ms Harris advised Mr Cranfield that if Mrs Blofield wanted to do that, Mr Cranfield should let her. Ms Harris described Mrs Blofield as going down hill at the beginning of 2008. Gradually over time Mrs Blofield became less talkative, less informative and less chatty. Ms Harris described the care and attention which Mr Cranfield and Mr Nicholas provided for Mrs Blofield after Richard’s death.

[103]Ms Hallpike began seeing Mr Cranfield in September 2007. Shortly afterwards, Mr Cranfield introduced Ms Hallpike to Mrs Blofield. When Ms Hallpike first met Mrs Blofield, she found that Mrs Blofield had difficultly in getting her words out and it was difficult at times to understand what she was saying. At that stage, she was still reading a newspaper every day. Mrs Blofield asked about Ms Hallpike’s children and then referred to Richard. She told Ms Hallpike that Mrs Cowderoy had had Richard’s money and then said that Mr Cranfield was to have Mrs Blofield’s house. Ms Hallpike felt that at that stage Mrs Blofield had a good understanding of what Ms Hallpike was saying to her. Ms Hallpike described Mrs Blofield as being a strong character and being stubborn. An example of that was her refusal to see a doctor even when Mr Cranfield suggested it to her. Ms Hallpike described Mrs Blofield as beginning to deteriorate throughout 2008. Ms Hallpike gave evidence as to the care and attention provided by Mr Cranfield and Mr Nicholas.

[104]Ms Hallpike also referred to the work which Mr Cranfield did in the house in 2008. The background to this was that in 2008, social services inspected the house and pointed out a number of matters that needed attention before it would be appropriate for Mrs Blofield to return to live there, if she ever could return to live there. Mr Cranfield and Mr Nicholas then did some work to the house. In particular, they threw out a cooker and a fridge both of which were in a bad way. They also removed the ground floor carpet and replaced it with a new carpet. They moved Mrs Blofield’s bed from an upstairs bedroom to the ground floor. Ms Hallpike met a representative of social services at the house after this work had been done. The representative from social services was pleased with the standard of the work although she made further recommendations for adaptation of the property such as the installation of a grab rail in the bathroom. Ms Hallpike’s evidence in this respect is corroborated by a note made by Mr Miller of social services. The note records that he had spoken to an occupational therapist, Ms Clare White, who appears to have been the person who met Kim Hallpike at the property. The occupational therapist confirmed to Mr Miller that the house had now been made ready for Mrs Blofield.

[105]In 2008, a number of social workers employed by Essex Social Services dealt with Mrs Blofield and some of the social workers also were in contact with Mr Cranfield and Mr Nicholas. The social workers maintained detailed files recording various conversations and observations. My attention was drawn to four matters in particular recorded in these files.

[106]In May 2008, a social worker, Mrs Victoria Buckland carried out an assessment of Mrs Blofield. She referred to the fact that Mrs Blofield was supported by two friends of her late son. She said that it was felt that these two gentlemen were not appropriate befrienders “to enter into best interest decisions”. She gave the reason that each had expressed concerns regarding the intentions of the other towards Mrs Blofield. She then added that one of them was an alcoholic making his input into the assessment difficult. She also noted that each believed that Mrs Blofield had left 50% of her property to each of them on her death and this could potentially lead to “a conflict of interest”. Mrs Buckland gave evidence before me and clarified some of the content of this assessment. She told me that Mr Cranfield had told her that Mr Nicholas was an alcoholic but he had not made any other comments about Mr Nicholas’ intentions. She told me that Mr Nicholas on the other hand, had expressed concerns about Mr Cranfield’s intentions. The information that each of them believed that Mrs Blofield had left 50% of her property to each of them must have come from Mr Nicholas. Mr Cranfield knew the real position and I find that he did not describe it to Mrs Buckland in any way similar to that expressed in her note. It is quite possible that Mr Nicholas believed that the house had been left to himself and Mr Cranfield in equal shares rather than understanding the true position under the will. Mrs Buckland explained that her concern at the time which led her to refer to a conflict of interest and her view that Mr Cranfield and Mr Nicholas should not be relied on for best interest decisions was because she considered that if one or both of them were due to inherit Mrs Blofield’s house, they would not wish to see the house sold to pay for Mrs Blofield’s care. They might instead press for her to be returned to her home which would continue to be owned by her. Mrs Buckland’s comments about Mr Cranfield and Mr Nicholas having a conflict of interest and not being appropriate befrienders were carried forward in the social services’ notes in a number of later appraisals of the situation.

[107]On 17th July 2008, Mr Miller, a social worker, sent an e-mail to a colleague concerning Mrs Blofield. He recorded that the social services records implied that her two friends “may be motivated by financial gain”. This caused Mr Miller to be distrustful of Mr Cranfield and Mr Nicholas. Mr Miller accepted when he gave evidence before me that he had not appreciated the point which Mrs Buckland was making in her assessment in May 2008 to the effect that the difficulty arose from a possible conflict of interest as to whether Mr Cranfield would wish to see the house sold to pay for Mrs Blofield’s care or would wish to have the house retained. Mr Miller’s e-mail of 17th July 2008 also records certain remarks made by Mr Nicholas to Mr Miller. He referred to Mr Nicholas launching into a condemnation of Mr Cranfield. Mr Nicholas’ perception was that Mr Cranfield was pushing Mr Nicholas out of the way because Mr Cranfield had designs on Mrs Blofield’s property. He believed that Mr Cranfield was going to move in with Mrs Blofield. I give very little weight to what Mr Nicholas said to Mr Miller. Mr Nicholas was not called as a witness. It was open to either Mr Cranfield or to Mrs Cowderoy to call him. Mr Cranfield gave a reasonable explanation for why he had not called Mr Nicholas. Mrs Cowderoy’s explanation for not calling Mr Nicholas was not so satisfactory. I heard evidence about Mr Nicholas from other witnesses. On the basis of that evidence, which I accept, I feel that it would be inappropriate to give any real weight to Mr Nicholas’ perception of what was happening. It is right that Mr Nicholas had done a great deal for Mrs Blofield. In terms of the frequency of his attentions to Mrs Blofield, it is probably right that he did more than Mr Cranfield did. However, Mr Cranfield was always the more dependable individual and certainly Mrs Blofield thought so. Mrs Blofield had a perfectly valid reason for preferring Mr Cranfield over Mr Nicholas in her will. It seems likely that by 2008, Mr Nicholas had some inkling that Mr Cranfield had been preferred to him and he plainly resented that and began making critical comments about Mr Cranfield to others.

[108]On 11th August 2008, Mr Miller made a note of conversations he had with Mr Nicholas and with Mr Cranfield. It is not material for present purposes to record what he was told by Mr Nicholas. His note states that Mr Miller asked Mr Cranfield (as well as Mr Nicholas) “about a solicitor” and their response is recorded as: “they knew of none”. I do not regard this as being particularly sinister or as a misleading answer by Mr Cranfield.

[109]On 10th October 2008, Mr Miller sent a further e-mail to a colleague concerning Mrs Blofield. At this point, Mrs Cowderoy had made contact with social services and was taking steps to apply to the Court of Protection in relation to Mrs Blofield. Mrs Cowderoy was intensely suspicious of Mr Cranfield’s relationship with Mrs Blofield and she expressed those suspicions to Mr Miller. Mr Miller said in his e-mail that Mrs Cowderoy was probably right not to put any trust in Mr Cranfield. Mr Miller was influenced in this assessment partly by what Mrs Cowderoy had told him and partly by his understanding of what Mrs Buckland had written in her assessment, that there was a conflict of interest between Mr Cranfield and Mrs Blofield.

[110]Mr Cranfield was granted probate of the disputed will on 7th May 2009. Sparling Benham & Brough, the solicitors acting for Mr Cranfield in relation to the estate of Mrs Blofield assessed the value of the estate at some £154,000 gross or some £149,000 net. The property at 88 Butt Road was estimated to be worth a £130,000. Mrs Blofield had approximately £22,000 in bank or post office accounts and some modest other assets.

[111]In addition to the above findings of fact which set out the detailed events in date order, I ought to make further findings which are relevant to my overall assessment of the evidence and of the issues which arise.

[112]Mrs Cowderoy’s relationship with her father, Richard, was non-existent. For a considerable time before his death in August 2006, she had nothing whatever to do with him and she did not want to have anything to do with him. She told me that she was terrified of him. It is not necessary to go into the reasons for this. It is sufficient to say that I accept her evidence that she was terrified of her father and was wholly estranged from him. I also find that he had behaved badly towards her and her mother, Sherra Lawrence, and her attitude was wholly understandable.

[113]Mrs Cowderoy’s attitude towards her father posed very real difficulties in her having a relationship with her grandmother. This was particularly acute after November 2002 when Richard moved in to live with Mrs Blofield. If Mrs Cowderoy had wanted to ring Mrs Blofield after November 2002, there was a risk that Richard would answer the telephone and Mrs Cowderoy did not want to speak to him. Further, there were obvious difficulties in Mrs Cowderoy visiting her grandmother at her home.

[114]I heard evidence about the number of visits which Mrs Cowderoy paid to her grandmother and the frequency of telephone conversations between them. So far as visits by Mrs Cowderoy to her grandmother were concerned, these were infrequent and at intervals of several years. When Mrs Cowderoy was a teenager, she seems to have seen her father in Colchester on three occasions and it may be she saw her grandmother at the same time. She paid a visit to Colchester in the middle of the 1990s and then there was a further visit in the early 2000s. Mrs Cowderoy placed the latter visit in August 2004 before she left for Dubai in September 2004. There is also a sign in Mrs Blofield’s diaries of Mrs Cowderoy having visited in November 2002. I do not think that there were two visits, one in November 2002 and one in August 2004. I think it is much more likely that there was one visit in November 2002 and Mrs Cowderoy is wrong when she has placed it at August 2004. On any view, the times when Mrs Cowderoy saw her grandmother were very few and far between. In September 2004, Mrs Cowderoy moved to Dubai and she never saw her grandmother again. There is clear evidence that Mrs Blofield told others in November 2006 that she never saw her granddaughter. That was an understandable statement.

[115]It is more difficult to make findings as to the frequency with which there were telephone conversations between Mrs Cowderoy and her grandmother. There is no real evidence that Mrs Blofield ever telephoned Mrs Cowderoy so the contact must have been the other way, to the extent that it existed. Mrs Cowderoy was keen to give the impression that she regularly and frequently telephoned her grandmother. I think that she significantly overstated the case. There were long gaps when Mrs Cowderoy did not seem to know things which she would have known if she had been in regular contact. It took her a very long time before anything was done about Mrs Blofield’s change of telephone number in 2003 and it took a very long time before Mrs Cowderoy became aware of Mrs Blofield’s medical condition in 2008. I am prepared to find in Mrs Cowderoy’s favour that she did phone her grandmother from time to time but probably not very often. I have already made my findings about a conversation which Mrs Cowderoy had with her grandmother in September 2006 and another in February 2007.

[116]As regards Mrs Cowderoy’s evidence that during her frequent phone calls to her grandmother, her grandmother slurred her words or fell asleep, I do not feel I am able to rely upon that evidence as being completely reliable. I consider that Mrs Cowderoy’s hostility to Mr Cranfield, her obvious interest in the outcome of the case and her ready ability to overstate matters has caused her to give evidence which it would not be safe for me to accept.

[117]Sara Paleschi is the half sister of Mrs Cowderoy. When she was a child, she saw Mrs Blofield. She did not see her again until she paid a visit to the residential care home on 7th October 2008, shortly before Mrs Blofield’s death. Mrs Paleschi gave forceful evidence which was condemnatory of Mr Cranfield’s involvement with the care of Mrs Blofield. I am not able to place much store by Mrs Paleschi’s evidence. It was put to her that she had gone to Colchester to see Mrs Blofield and, in addition, to change the locks on 88 Butt Road. She did indeed get the locks changed on that visit. She was at pains to say that she had not gone with that intention and had only formed the intention to change the locks when she discovered that the house was insecure (as she alleged). I am not able to accept that evidence. The contemporaneous documents show clearly that she always intended to change the locks and that was for the purpose of keeping Mr Cranfield and Mr Nicholas out of the house. Further, Mrs Paleschi, I find, completely over reacted to the fact that Mr Cranfield’s name, referred to as a friend, was put in the records of the care home as the point of contact for Mrs Blofield. Mrs Paleschi regarded this as an example of Mr Cranfield trying to pass himself off as a relative of Mrs Blofield. I find that Mrs Paleschi wholeheartedly took sides in this dispute trying to support in every way her half sister’s case. That badly affected her ability to form any judgment on matters on which she commented. I do not accept her description of the condition of 88 Butt Road in October 2008 in view of the evidence I was given as to the work which was done to Butt Road and the evidence of Ms Hallpike, which I prefer, which was in turn corroborated by the social services’ records as to the attitude of the occupational therapist.

[118]I heard evidence from Mrs Amanda Rainford a legal executive at Stones, solicitors of Exeter. Mrs Rainford had acted for Mrs Cowderoy in relation to the estate of Richard Blofield. Her witness statement is drafted in a somewhat partisan way although her oral evidence was more balanced. It is unfortunate that she prepared in June 2009 an attendance note which she then dated 16th November 2006. The drafting of the June 2009 version of the attendance note also suggests a tendency to over emphasise certain matters. Taking the original attendance note of 16th November 2006 together with the later version and indeed Mrs Rainford’s letter of 23rd November 2006, I do not feel I could confidently make any finding other than that Mrs Rainford thought Mrs Blofield was slightly confused when Mrs Rainford spoke to her at that time. I also consider it is possible that what Mrs Rainford took to be confusion on the part of Mrs Blofield was in fact a lack of co-operation on Mrs Blofield’s part. There is clear evidence in this case that Mrs Blofield resented the fact that Richard’s money was going to Mrs Cowderoy. It would be understandable if Mrs Blofield declined to be forthcoming in providing information to Mrs Cowderoy’s legal advisor who was administering Richard’s estate in those circumstances. However, that suggestion was not put to Mrs Rainford so I am not able to give it any real weight.

[119]Mrs Lawrence had not seen Mrs Blofield for many years before the disputed will in November 2006 nor did she see her after that time before her death in October 2008. I accept Mrs Lawrence’s evidence that she did try to keep in touch with Mrs Blofield by telephone. It is difficult to form any clear picture as to how often such telephone calls took place. After November 2006, because Mrs Blofield was upset about the visit from the police, there were no more telephone calls between Mrs Lawrence and Mrs Blofield. I can accept Mrs Lawrence’s evidence that Mrs Blofield’s condition deteriorated somewhat over the years and Mrs Lawrence could tell this from her telephone calls. I can also accept her evidence that on occasion Mrs Blofield slurred her words in a way that could suggest that Mrs Blofield had been drinking or that Mrs Blofield was beginning to have word finding difficulties.

The psychiatric evidence

[120]Mrs Cowderoy called a consultant psychiatrist, Dr N J Cooling, and Mr Cranfield called a consultant psychiatrist, Dr L B Campbell. Neither of these psychiatrists ever saw Mrs Blofield. Each was provided with written material including medical records and each prepared a report for the court. Each was then provided with further material including each other’s reports and each provided a second report for the court. The two psychiatrists met on 10th November 2010 and prepared a memorandum of their discussion.

[121]As neither psychiatrist had ever had the opportunity of seeing Mrs Blofield, neither was in a position to give me a direct psychiatric appraisal at any point in time, let alone on the day Mrs Blofield executed the disputed will. In principle, psychiatric evidence could assist a court dealing with an issue as to testamentary capacity. For example the evidence could refer to such medical evidence as is available as to an individual’s physical condition from time to time and could explain the likely impact on the mind of that physical condition. Similarly, the evidence could refer to medication being taken by an individual and comment on the likely effect on the mind of such medication being taken. Both psychiatrists did to some extent offer views on how likely it was that Mrs Blofield had testamentary capacity at different points in time. Of course, the views expressed by the psychiatrists depend very much on what they understood the facts of this case to be. Each psychiatrist was given a version of the facts which was probably not complete. Further, understandably, neither psychiatrist sat through the whole trial and neither psychiatrist knew the findings of fact which I would make in this judgment.

[122]Dr Cooling’s first report was dated 20th April 2010. In his oral evidence he described this as a preliminary report. He stated that he had been asked to give an opinion as to whether there was “a risk” that Mrs Blofield did not have sufficient mental capacity to make a will and whether she might have been susceptible to undue influence and/or coercion on the part of others. He referred to the fact she had been taking nitrazepam for many years and also had been prescribed co-codamol. He said both of these had an addictive potential. He described Mrs Blofield as “a significant drinker”. He stated that Mrs Blofield had significant medical problems which would have served “to impair her capacity”. He said nitrazepam was known to cause confusion in the elderly. He described that Mrs Blofield was considerably underweight rendering her more vulnerable to adverse drug effects. This combination of factors was likely to have affected her mental capacity at the relevant time. He then referred to her colonic cancer, her use of nitrazepam, her alcohol consumption and the fact that a regular consumption of codeine could cause confusion in an elderly patient. He said there were substantial reasons for concluding that Mrs Blofield did not have the necessary mental capacity when she executed the disputed will and it was likely on the balance of probabilities that Mrs Blofield was not able to fully understand the nature of making the will and its effect at that time. He thought that Mrs Blofield was probably confused at that time.

[123]Dr Cooling’s second report is dated 18th September 2010. By this point, he had read Dr Campbell’s first report. Dr Cooling sets out in detail what Dr Campbell had written. At no point during his description of Dr Campbell’s views did he put forward any reasoned disagreement with those views. He then referred to the fact that in November 2006, Mrs Blofield was suffering from a dementing process. He thought that Mrs Blofield’s dementia was complex in terms of aetiology including vascular factors, medication and alcohol abuse. He concluded by saying that it was a matter for the court to make a finding of fact on the evidence.

[124]Dr Campbell’s first report is dated 24th September 2009. Dr Campbell referred to a report prepared by a Dr Rogers on 13th March 2009. Dr Rogers’ report was not put in evidence before me. Dr Campbell described Dr Rogers’ finding to the effect that there was no clinical evidence to suggest that Mrs Blofield was suffering from confusion or dementia in November 2006 but it seems that Dr Rogers thought it was likely she was suffering from an early dementia, depression and intermittent confusion attributable to the effects of her medication. Dr Rogers did not, it seems, offer an opinion on Mrs Blofield’s testamentary capacity in November 2006. Dr Campbell then stated that it seemed likely that Mrs Blofield suffered from vascular disease, presenting initially as hypertension in 2001. That condition was controlled with anti-hypertensive medication. Her word finding difficulties existed no later than February 2007 and this problem became more prominent. Dr Campbell then discussed whether the word finding difficulties indicated a lack of understanding. For reasons which he explained in his report in some detail, he reached the conclusion that although Mrs Blofield had expressive language difficulties on account of vascular disease her understanding of language would probably have remained intact or relatively intact. He stated that in the period before April 2008 Mrs Blofield would probably have experienced some memory difficulties as well as difficulties with the expression of language but relative preservation of her powers of comprehension. In relation to her medication of nitrazepam and co-codamol, he thought this may have produced some cognitive impairment on her part but only to a minimal extent. Her consumption of alcohol would easily have been sufficient to precipitate transient confusional states. He thought it was likely that her mental functioning would have fluctuated from time to time depending upon her level of alcohol consumption. He said this would account for Mrs Blofield having good days and bad days as described by Mr Cranfield in his evidence. Dr Campbell then addressed the test as to capacity in Banks v Goodfellow and applied the conclusions he had earlier expressed and recorded his opinion that on a balance of probability Mrs Blofield would have retained testamentary capacity on 13th November 2006 provided that she was not then under the influence of alcohol.

[125]Dr Campbell prepared a second report on 11th October 2010. He referred to the first report of Dr Cooling. He expressed himself content with his earlier conclusions.

[126]The two psychiatrists met on the 10th November 2010 and prepared a short memorandum of their discussion. They agreed that Mrs Blofield suffered from a progressive vascular dementia. They agreed that Birkett Long’s attendance note suggested that Mrs Blofield lacked capacity on 20th October 2006 but they noted that Sparling, Benham & Brough’s attendance notes of their visits on 30th October 2006 and 13th November 2006 suggested no lack of capacity on those dates. If both statements were accurate this suggested there was considerable variability in the testatrix’s cognitive functioning on a day to day basis. The two experts agreed that Mrs Blofield’s use of alcohol could account substantially for the apparent variability in her cognitive functioning. Dr Campbell considered that Mrs Blofield was not suffering from any mental condition which would render her especially susceptible to adverse influence by others. Dr Cooling considered “that the testator’s (sic) decision making capacity was probably influenced by Mr Cranfield in particular”.

[127]Dr Cooling’s opinion as quoted in the last paragraph is not an opinion on a psychiatric or medical matter. It seems to be Dr Cooling’s assessment on a factual question which is ultimately a question for me to decide as to whether Mrs Blofield made her will as a result of influence from Mr Cranfield.

[128]The final paragraph of the joint memorandum records a disagreement between the two experts as to whether Mrs Blofield had testamentary capacity at the relevant time.

[129]I will obviously bear in mind this psychiatric evidence when I come to my ultimate conclusions. This psychiatric evidence allows me to be better informed as to the possibility of there being an impact on Mrs Blofield’s mental functions of her medical condition and, similarly, the effect on her mind of the medication she was taking with or without the addition of alcohol. There are two matters which I take from the medical evidence and more particularly from the evidence given by Dr Campbell which I should record. I accept Dr Campbell’s assessment that Mrs Blofield’s cognitive impairment could vary significantly from day to day depending upon her consumption of alcohol operating in conjunction with her medication. I mention at this point that there was evidence that Mr Nicholas was buying miniatures of spirits for Mrs Blofield after Richard’s death. I also accept Dr Campbell’s assessment of the difference between an impairment in Mrs Blofield’s ability to express herself as distinct from a lack of impairment in relation to her ability to understand language.

Testamentary capacity: the law

[130]The law as to testamentary capacity is well settled. The principles are stated in Banks v Goodfellow (1870) LR 5 QB 549. After referring to the freedom of testamentary disposition allowed under English law and to the fact that this freedom of disposition is conditional upon the testator having the necessary intellectual and moral faculties, the judgment of the court contains this passage at 565:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

[131]That statement of principle has been described as “a durable formulation” which “has withstood the test of time” (see Sharp v Adam

[2006] WTLR 1059

at [82] and [66]) and is regularly applied: see most recently, Perrins v Holland

[2011] 2 WLR 1086

[132]Banks v Goodfellow also usefully cites, with approval, some statements made in American authorities which make it clear that it is not necessary that the testator should possess the above faculties to the highest degree, nor even to the degree that he might formerly have done, provided that he retains these faculties to a sufficient extent. In particular, it was stated in Stevens v Vancleve 4 Washington at 267:

“The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?”

[133]In Banks v Goodfellow it was also stated, at 564, that freedom of testamentary disposition will sometimes produce the result that a testator makes a valid will which is influenced by caprice or passion or the power of new ties. This possibility was considered in detail in Boughton v Knight (1873) LR 3 P & D 64 at 66 and 69. The same point is made in a more modern authority, Gill v RSPCA

[2010] EWCA Civ 1430

at [26], where it is made clear that it is possible for a testator to make a valid will even where its provisions are unfair or vindictive or perverse. That case concerned an issue as to whether the testatrix knew and approved the contents of the will, and did not involve an issue as to capacity, but the comments are of a general nature. I refer to these comments to emphasise that the ultimate question before the court, when assessing testamentary capacity, is not whether the will is a fair one in all the circumstances of the case. On the other hand, if the provisions of a will are surprising, that may be material to the court’s assessment of whether the testator did have capacity or, indeed, knew and approved the terms of the will: see, for example, Sharp v Adam

[2006] WTLR 1059

[134]Banks v Goodfellow quotes a comment by Chancellor Kent in the earlier case of Van Alst v Hunter (1821) 5 Johnson N. Y. Ch. Rep at 159 which is as relevant to human nature today as when it was first expressed:

“As was truly said by Chancellor Kent in Van Alst v Hunter, “It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities.” ”

[135]On the facts of the present case, it is not necessary to consider the legal principles which apply where there is a difference in the capacity of the testator at the time when he gave instructions for the preparation of the will and the time when he executed the will. That topic is comprehensively considered in Perrins v Holland

[2011] 2 WLR 1086

[136]The rules as to the burden of proof in relation to testamentary capacity are conveniently stated by Briggs J in Key v Key

[2010] WTLR 623

at [97]: i) while the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity; ii) in such a case the evidential burden shifts to the objector to raise a real doubt about capacity; iii) if a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.

[137]The so-called Golden Rule as to the role of a solicitor involved in the preparation and execution of a will is that in the case of an aged testator, or one who has been seriously ill, the solicitor should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings: see Key v Key at [6]. A friend or a non-medical professional adviser may fail to detect defects in mental capacity which would become apparent to a trained and experienced medical examiner who understood the legal test for testamentary capacity. The application of the Golden Rule assists in the avoidance of subsequent disputes as to capacity. However, in the present case, where the Golden Rule was not followed, and a dispute as to capacity has arisen and has to be resolved by the court, non-compliance with the Golden Rule does not demonstrate a lack of capacity. The issue must be decided by the court by applying the correct legal principles to the court’s findings of fact.

Knowledge and approval: the law

[138]In addition to having testamentary capacity, the testator must know and approve the contents of the will. The concept of knowledge and approval was considered in detail in Fuller v Strum

[2002] 1 WLR 1097

. This requirement has been expressed in different terms over the years. Some of the language used, such as a reference to “the righteousness of the transaction”, has sometimes been less than clear. Today, in a typical case, it is sufficient to say that the testator must understand what he was doing and its effect: see Hoff v Atherton

[2004] EWCA Civ 1554

at [64] per Chadwick LJ and Gill v RSPCA

[2010] EWCA Civ 1430

at [71] – [72] per Lloyd LJ.

[139]Traditionally, the courts have adopted a two stage approach to the evidence in a case where knowledge and approval is in issue. The first stage was to ask whether the circumstances were such as to “excite suspicion” on the part of the court. If so, the burden was on the propounder of the will to establish that the testator knew and approved the contents of the will. If the circumstances did not “excite suspicion”, then the court presumed knowledge and approval in the case of a will which had been duly executed by a testator who had testamentary capacity. It was pointed out in Gill v RSPCA, that it may sometimes not be necessary, or even helpful, to adopt this two stage approach. In a case, like the present, where the court has heard detailed evidence as to the character and state of mind and the wishes of the testator, it may be more appropriate to proceed directly to answer the ultimate question, which is whether the testator knew and approved the contents of the will, that is, whether the testator understood what he was doing and its effects: see at [21] – [22], [64].

Undue influence: the law

[140]The law as to undue influence in the case of a will has been helpfully summarised by Lewison J in Edwards v Edwards

[2007] WTLR 1387

at [47] in these terms:

“There is no serious dispute about the law. The approach that I should adopt may be summarised as follows: i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence; ii) Whether undue influence has procured the execution of a will is therefore a question of fact; iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition; iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud. v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense; vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will; vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”

. The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside; viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone; ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent. ”

[141]Lewison J did not refer to the authorities which supported his summary of the legal principles. I was specifically referred to Craig v Lamoureux

[1920] AC 349

and Hall v Hall (1868) LR 1 P & D 481 which plainly provide the source for some parts at least of that summary. In particular, the former of these two cases is the source of the statement that the circumstances must be “inconsistent with a contrary hypothesis”, that is, an hypothesis other than the exercise of undue influence: see

[1920] AC 349

at 357. In the present case, where I have considerable evidence as to the circumstances in which the disputed will was prepared and executed, I think that it is more appropriate for me simply to ask whether the party asserting undue influence has satisfied me to the requisite standard that the will was executed as a result of undue influence. The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation: see how the matter was put by Rimer J in Carapeto v Good

[2002] EWHC 640 (Ch)

at [124] – [125]. This last case also makes clear that a finding of undue influence can be made by a court drawing inferences from all the circumstances, even in the absence of direct evidence of undue influence: see at [126].

My conclusions

[142]It remains to apply the above principles of law to the facts as I have found them.

[143]In my judgment, my detailed findings of fact lead clearly to the conclusion that Mrs Blofield had testamentary capacity when she gave instructions for her will on 31st October 2006 and when she executed her will on 13th November 2006. I find that on those occasions she understood the extent of the property of which she was disposing. That was not a difficult matter in this case. I also find that she was able to comprehend and appreciate the claims to which she felt she ought to give effect. She had a very clear and considered view as to whether she should benefit her granddaughter, Mrs Cowderoy. She was clear and settled in her mind that she did not want to do that. It was not suggested that there was anyone else with a claim which she overlooked. As to her decision to leave her entire estate to Mr Cranfield, I find that she did that not only because of what he had done for her in the past but also because she considered that leaving her estate to him and, importantly, telling him that she had done so, would improve the chances of him continuing to help her in the future. I also find that she decided to leave her entire estate to Mr Cranfield, rather than to Mr Cranfield and Mr Nicholas in equal shares, because she had formed the view that a gift to Mr Nicholas would be wasted by Mr Nicholas. I also find that Mrs Blofield was not suffering from any disorder of the mind when she made her will.

[144]I accept the evidence to the effect that Mrs Blofield had good days and bad days. 31st October and 13th November 2006 were plainly good days and 20th October 2006 was a bad day. The evidence which I heard as to Mrs Blofield’s condition on 20th October 2006 does not cause me to have any real doubt about my findings in relation to 31st October and 13th November 2006. I find that her condition did fluctuate principally as a result of the combined effect of her medication and the consumption of alcohol.

[145]Having regard to all the circumstances of this case, about which I have made detailed findings, I do not think that the terms of the will are so surprising that I should resist reaching the conclusion that Mrs Blofield had testamentary capacity on 31st October and 13th November 2006.

[146]I also find that Mrs Blofield knew and approved the terms of the will which she made on 13th November 2006. My detailed findings of fact lead clearly to the conclusion that she knew what she was doing and she knew the effect of her actions. In these circumstances, it does not seem to me to be necessary, or appropriate, to ask myself whether the terms of the will excite suspicion. I find that I can reach a clear decision based on all the evidence so that this case does not turn upon questions as to the burden of proof.

[147]In relation to the allegation of undue influence by Mr Cranfield, there is no arguable case of such influence. There is no evidence that Mr Cranfield ever tried to persuade, or otherwise influence, Mrs Blofield to make a will in his favour. In view of my detailed findings of fact, I do not think that I could possibly draw an inference that he tried to persuade her, or otherwise influence her, in that way. Much less do I think that any of his conduct could be said to amount to undue influence. I find that Mrs Blofield made a will in the terms of the will of 13th November 2006 because that is what she independently wanted. She wanted to make a will so that Mrs Cowderoy would not inherit her estate on an intestacy. Having decided to make a will, she did not want to leave anything to Mrs Cowderoy. Having decided that much, she then had to consider who should benefit. She freely chose Mr Cranfield. Her choice was influenced by her belief, or at any rate her hope, that if she made a will in favour of Mr Cranfield and told him that she had done so, that would help her because he would be more likely to continue to visit her and care for her.

[148]The result of the above findings is that the will of 13th November 2006 was a valid and effective will and was rightly admitted to probate.

Cited in 12 later judgments

and 3 more of the most senior