Jeffery & Anor v Jeffery [2013] EWHC 1942 (Ch)

[2013] EWHC 1942 (Ch)Case No HC11C01073
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls BuildingDate 10/07/2013
London EC4A 1NL
Before
MR JUSTICE VOS
Between
(1) NICHOLAS DAVID JEFFERYClaimants(2) CHRISTOPHER JOHN EYREClaimantANDREW PAUL JEFFERYDefendant
Ms Katherine McQuail (instructed by Penman Sedgwick LLP) appeared for ClaimantsThe Defendant appeared in person for in personHearing Hearing dates: 26 th, 27 th and 28 th June, and 1 st July 2013
Judgment

Introduction

[1]This is my judgment on the retrial of the action. The original trial was conducted before me on 5th November 2012 in the absence of the Defendant Mr Andrew Paul Jeffery (“Andrew” or the “Defendant”) in circumstances that I shall deal with in due course. I gave an oral judgment at the original trial, which I shall refer to in this judgment as the “Judgment”. When I directed the re-trial on 25th March 2013, I also ordered that Andrew’s Appellant’s Notice dated 22nd October 2012 from Master Bragge’s order of 19th September 2012 should be dealt with at the same time. Since no argument has been directed to it at the hearing, I intend to make no further order in relation to that Appellant’s Notice.[2]The case concerns the estate of Daphne Edith Jeffery (the “Deceased”), who died on 20th February 2010 at the age of 76, having been divorced from her husband, Mr David Barnett Jeffery (“David”), only ten days earlier. She was survived by her two children: Mr Nicholas David Jeffery, the first claimant (“Nicholas”), and Andrew.[3]The Deceased’s last will was dated 5th July 2007 and appointed the Claimants as executors (the “2007 Will”). The main beneficiaries are Nicholas, and Andrew’s three children, Samantha Jeffery now aged 24 (“Samantha”), Alexander Jeffery now aged 23 (“Alexander”), and William Jeffery now aged 17 (“William”). Nicholas and his wife Mrs Nicola Jeffery (“Nicola”) have two children, Daniel Jeffery now aged 22 (“Daniel”), and Charlotte Jeffery now aged 20 (“Charlotte”). The Claimants seek an order decreeing probate of the 2007 Will in solemn form.[4]The Deceased made three other preceding wills on 21st December 1982 (the “1982 Will”), on 14th May 2002 (the “2002 Will”), and on 9th August 2004 (the “2004 Will”).[5]Andrew has alleged in these proceedings that the Deceased lacked the necessary capacity to make any of these wills, and that the 2002, 2004 and 2007 Wills were all affected by the undue influence of Nicholas. I shall deal with these allegations once I have set out, as briefly as possible, the chronological background to the events that have been relied upon by the parties.

Chronological background

[6]In the Judgment, I set out the chronological background as it then appeared. I have amended the chronology of events as appears in this section to take account of the matters that were argued at the retrial, but did not feature at the original hearing.[7]On 5th March 1955, the Deceased married David.[8]In 1962, the Deceased and David began their own insurance broking business, trading through Jeffery Flanders Limited, from premises at Fairmile House, Ripley, near Guildford (“Fairmile House”).[9]In 1969, Mr William G. Flanders, the Deceased’s father (“William Flanders”), died, and the WG Flanders Will Trust was set up. In 1972, the Deceased became a trustee of this trust with her elder brother, Raymond Flanders (“Raymond Flanders”), and her twin brother Derek Flanders (“Derek Flanders”).[10]On 21st December 1982, the Deceased made the 1982 Will appointing David, Mr John Malcolm Gunn and Mr Peter James Munday as her executors, leaving her entire estate to David. If David did not survive her, she left the matrimonial home at Tanglewood, Green Lane, Cobham (“Tanglewood”) to Nicholas and the shares in Jeffery Flanders Limited to Andrew, and the residue in equal shares to Nicholas and Andrew.[11]In 1995, the EH Flanders 1995 Discretionary Trust was created by Mrs Edith Flanders, the Deceased’s mother (“Mrs Edith Flanders”), who was then in her 90s.[12]On 27th November 1997, the Deceased and David separated, but remained on good terms. The Deceased left the matrimonial home at Tanglewood, Green Lane, Cobham and moved to 25 Ninevah Shipyard, Arundel (“25 Ninevah Shipyard”).[13]In December 1999, the Deceased was admitted to hospital suffering from pneumonia.[14]In early 2000, the Deceased moved from 25 Ninevah Shipyard to look after her mother, Mrs Edith Flanders, at the Orchard, Tyler Hill, Canterbury (“the Orchard”).[15]In May 2000, according to the Claimants, the family’s insurance broking business was “handed over” to Andrew. Andrew started his own insurance broking company called JFL Consulting Limited (“JFLCL”) at that time.[16]In or about January 2001, Andrew and Nicholas were appointed trustees of the EH Flanders 1995 Discretionary Trust.[17]In February 2001, the Deceased moved back from the Orchard to 25 Ninevah Shipyard.[18]On 26th February 2001, the Deceased made a third codicil to the 1982 Will appointing David, Nicholas and Andrew as executors, and declaring that certain red marks on the original were not intended to have any revocative effect.[19]In about May 2001, Andrew and Nicholas were appointed trustees of the WG Flanders Will Trust.[20]On 26th July 2001, the Deceased’s then general practitioner, Dr A. N. Mott wrote to Dr Lynne Harrison, a cognitive behavioural therapist, asking her to see the Deceased “who is experiencing considerable problems with stress at the moment”. He said that “[h]er business, which is now run by her son, is in considerable difficulties and she finds this extremely difficult to cope with and is back in the office trying to sort things out …”, and “[f]or many years she has taken Clonazepam and over the last 18 months I have been trying to wean her off this. Unfortunately my efforts have been thwarted by the present stress and I do feel that she needs some help with stress management now so that we can get her right off the tablets”.[21]In late December 2001, the Deceased and Andrew had an argument at Fairmile House concerning a cheque for £2,500. I will say some more about this row in due course.[22]In January 2002, the Deceased moved back from 25 Ninevah Shipyard to look after her mother, Mrs Edith Flanders, at the Orchard.[23]On 23rd January 2002, Mr Mike Li-Kam-Tin, a community psychiatric nurse, at the Sussex Weald and Downs Community Mental Health Team to whom Dr Harrison referred the Deceased, wrote to Dr Mott saying he had finally managed to see the Deceased on 17th October 2001 for an initial assessment. He reported that her appetite was lacking and her sleep was variable, but she denied feeling depressed and felt she needed time to solve her current problems. On mental examination, there were no experiences of hallucinations or abnormal thought patterns. He continued: “[s]he seemed insightful and there was no problem with her memory function. She informed me that she has been weaned off Clonazepam gradually under your supervision over the past 18 months but this had been somewhat compromised by her current predicament. … At the end of my interview [the Deceased] reluctantly agreed for six counselling sessions … We were to meet up again on 28th November 2001 … Unfortunately, she did not keep the appointment and despite leaving her a message on her answerphone, she never contacted me back … She reported that she was coping reasonably well and did not require further CPN input …”.[24]On 14th May 2002, the Deceased made the 2002 Will under the auspices of a solicitor, Mr Aaron Spencer of Furley Page. The 2002 Will appointed David, Nicholas and Ms Gillian Elizabeth Wallace (“Ms Wallace”) of Furley Page LLP (“Furley Page”) as executors and, broadly, left a nil rate band discretionary trust and a life interest trust of residue for David, and on David’s death, 25 Ninevah Shipyard to Nicholas, and her half of Fairmile House to Andrew, and the residue to Nicholas and Andrew in equal shares.[25]On 14th May 2002 and 9th August 2002, the Deceased signed Memoranda of Wishes addressed to the executors and trustees of her 2002 Will, concerning the disposal of her jewellery.[26]On 26th November 2002, Mrs Edith Flanders, the Deceased’s mother died.[27]In about January 2004, the Deceased moved from the Orchard, Canterbury to 29 Brewery Lane, Bridge (near Canterbury) (“29 Brewery Lane”).[28]Also in January 2004, the Deceased, Andrew and Nicholas issued proceedings in the Chancery Division against Raymond Flanders claiming damages for his alleged wilful default in dealing with the assets of the WG Flanders Will Trust and the EH Flanders 1995 Discretionary Trust.[29]On 10th March 2004, the Deceased signed a note recording that she had handed certain specified jewellery to Nicola.[30]On 8th April 2004, the Deceased signed a note recording that she had handed certain specified jewellery to “Anne Marie Jeffery via [Andrew] 8.4.04”. Anna Marie Jeffery is Andrew’s wife and is known as “Bebe”.[31]On 9th August 2004, the Deceased made the 2004 Will, appointing David, Nicholas, Mr Christopher Eyre, the second Claimant (“Mr Eyre”), and Ms Wallace as executors, leaving 29 Brewery Lane or a cash sum equivalent on trust for Nicholas’s children, Daniel and Charlotte, insurance policies for each of her grandchildren, and a nil rate sum on discretionary trust for David, Nicholas and Andrew, and her remoter issue, and her residuary estate to David for life, and then 25 Ninevah Shipyard to Nicholas, her half share of Fairmile House to Andrew’s children, (instead of, as she had previously under the 2002 Will, to Andrew himself), and 25 Brewery Lane, Bridge (“25 Brewery Lane”) to Andrew’s children, and the remainder as to half to Nicholas, and as to the other half to Andrew’s children. The Deceased made the 2004 Will under the auspices of Ms Wallace. It was witnessed by 2 clerks at Furley Page. Ms Wallace’s file note of the same date records “read approved and signed Will”.[32]On 4th November 2004, the Deceased executed a codicil to her 2004 Will giving the Orchard to Nicholas if it were to be owned by her at the date of her death.[33]In January 2006, Andrew was first arrested on suspicion of fraud. Ultimately, he was charged with 34 counts of fraud arising from an allegation that he had accepted money for insurance that had not been put in place.[34]On 4th May 2006, the Chancery proceedings against Raymond Flanders were settled by a consent order under which Raymond Flanders paid some £140,000.[35]In October 2006, Andrew and his wife Bebe and two of their three children, Alex and William, went to live in France, leaving their daughter, Samantha (aged 18 at that time) living with her maternal grandparents, Mr Denis Gretton (“Mr Gretton”) and Mrs Jenny Gretton (“Mrs Gretton”) in England.[36]In January 2007, the Deceased moved from 29 Brewery Lane to 3 Filmer Road, Bridge (“3 Filmer Road”).[37]In February 2007, the Deceased paid each of Grant Flanders, Julie Bennett and Justin Flanders, the children of her by then deceased twin brother Derek Flanders, £43,132 in respect of their interests in their grandparents’ estates.[38]On 20th March 2007, the Deceased’s “all medical history” notes record “Lloyd George + problem summary Dr Cecily Fahey”.[39]On 19th April 2007, Mr Peter Cox, a solicitor previously at Furley Page (“Mr Cox”) who had by this time moved to Gardner Croft LLP (“Gardner Croft”), met the Deceased and Nicholas for a 2-hour meeting to discuss making a will and other matters. Mr Cox’s file note included the following: “[t]aking family and financial details and instructions for a will to update the will made in 2004 at Furley Page, see letter of advice and draft Will”, and “[i]n business affairs Andrew had proved to be unreliable. Signatures had been forged by Andrew, and [the Deceased] and her husband David had been pursued by HSBC under guarantees where they were blameless but client monies had not been accounted for by Andrew. Further CCJ’s had been brought down on the heads of David and [the Deceased] (which had now been cleared)”.[40]On 21st May 2007, Mr Cox wrote to the Deceased enclosing his file note of the 19th April 2007 meeting for her “approval/amendment and a final copy can be sent to Nicholas by email if you are happy for that to happen”, a draft will and letter of wishes and an explanation of the clauses, saying that:- “The Will does not mention Andrew at all, and therefore he would be excluded from any benefit under your will. I assume this to be correct, given the history of financial difficulties which you explained to me. However, if my notes are incorrect, then please let me know and I will make appropriate amendments if you tell me what you would like Andrew to inherit”. and “Importantly, the Will seeks to take most advantage from the fact that you are separated but on good terms with your husband David”.

and

[41]On 13th June 2007 the Deceased telephoned Mr Cox to confirm that Andrew was not to benefit under her will. Mr Cox’s file note records that Andrew was on bail to attend court on 10th August 2007, and that the “police [were] determined to get him”, and that Mr Cox should go ahead to remove Andrew as a trustee.[42]On 25th June 2007, the Deceased signed a Memorandum of Wishes addressed to the executors and trustees of her will, concerning the disposal of her jewellery.[43]On 5th July 2007, the Deceased executed the 2007 Will. It appointed Nicholas and Mr Eyre as executors. I shall set out the main provisions of the 2007 Will in due course. Mr Cox’s file note of 5th July 2007 reads as follows: “[g]oing through the will and the structure of it, particularly the letter of wishes which were fine and the will was executed”.[44]On 5th July 2007, the Deceased also signed a letter of wishes concerning the discretionary trust established by the 2007 Will, confirming that, on David’s death, half should go outright to Nicholas and the other half to Andrew’s three children when they reached 25 years old.[45]On 29th November 2007, the Deceased’s “all medical history” notes record “Chron obstruct pulmonary dis with acute exacerbation, unspec Dr Cecily Fahey”. The Claimants say that this was the first time that the Deceased was formally diagnosed to be suffering from COPD.[46]In November 2007, the Deceased was admitted to hospital in Tayside, Scotland suffering with pneumonia. She was then moved to the Chaucer Hospital in Canterbury.[47]On 11th January 2008, the Deceased moved from the Chaucer Hospital to Kilfillan Nursing Home in Berkhamsted (“Kilfillan House”), near Nicholas’s home in Tring.[48]On 15th January 2008, the Deceased signed an application form for care home funding to the Royal Masonic Benevolent Institution (“RMBI”) saying she owned 25 and 29 Brewery Lane.[49]On 21st January 2008, 25 and 29 Brewery Lane were transferred by the Deceased to Nicholas.[50]On 19th June 2008, Andrew was acquitted of all charges following a 5-week trial at Guildford Crown Court.[51]On 16th June 2008, David petitioned against the Deceased for judicial separation, their relationship having deteriorated in their later years, partly, as it seems from reading the evidence before me, as a result of the conduct of Andrew. The Deceased cross-petitioned for divorce, which, as I say, resulted in a decree absolute only ten days before her demise.[52]On 15th August 2008, the Deceased moved from Kilfillan House to a rented property at Flat 5, Cobham Gate, Freemans Road, Cobham.[53]On 2nd October 2008, there was a decree of judicial separation between the Deceased and David. On 5th December 2008, the Deceased cross-petitioned against David for divorce. On 22nd April 2009 the Deceased and David were granted a decree nisi.[54]In December 2009, the Deceased moved to Whiteley Village Nursing Home in Walton-on Thames near Cobham.[55]On 4th and 5th February 2010 (which was in the month of her death) the Deceased gave evidence by telephone in her divorce ancillary relief proceedings. On 10th February 2010, the Deceased’s divorce was made absolute.[56]On 20th February 2010, the Deceased died.[57]On 17th May 2010, District Judge White gave judgment in relation to the costs of the ancillary relief proceedings saying that the Deceased’s evidence on 4th February 2010 was “clear and despite her very poor state of health it was obvious to all that she understood and was following the proceedings”.[58]On 2nd June 2010, Andrew entered an appearance to a warning saying: “Inheritance Act claim under section 2 Inheritance Act 1975 for reasonable financial provision as a child of the Deceased by reference to the will dated 5 July 2007 and that I believe it is invalid because at the time of making the Deceased lacked testamentary capacity and/or lacked the required knowledge and approval and effect of the will and/or the terms did not reflect the Deceased’s free and informed wishes but are as a result of undue influence applied to the Deceased by Nicholas and [his wife] Nicola Jeffery”.[59]On 1st October 2010, Dr Sally Eyton of the Cobham Health Centre wrote to Andrew about the Deceased’s medical records. Andrew had been asking her to amend Dr Eyton’s record of 18th September 2008 to the effect that the Deceased had “advised Dr Eyton that ‘her son had been done for embezzlement’”, to record that he had been acquitted of all charges. Dr Eyton told Andrew that she was unable to delete anything but would add a note concerning his acquittal. The letter also said that Dr Eyton was “unable to confirm that [the Deceased] lied to me to obtain prescription drugs on 18th September 2008”. She wrote that diazepam was “regularly used in patients with COPD and is indeed prescribed by our local respiratory consultant as anxiety is common in these patients”. She said that, in 2008-09, the Deceased would have been using on average one 5mg tablet of diazepam on alternate days.[60]On 31st March 2011, Nicholas and Mr Eyre issued the claim form in these proceedings. The particulars of claim filed at the same time asked that the court should decree probate of the 2007 Will in solemn form, and that the claimants should be permitted to take out a grant of probate to the 2007 Will if entitled thereto.[61]On 22nd April 2011, Andrew filed a defence, claiming that all the wills and codicils executed by the Deceased since 1980 were invalid on the grounds of lack of testamentary capacity, and that the Deceased therefore died intestate. In addition, Andrew sought to rely upon the following matters:- i) a claim that the Will was effected by undue influence; ii) a claim that the Deceased had been guilty of fraud in relation to other matters unconnected with the 2007 Will, but relating mainly to the three family trusts; iii) a claim that Nicholas should be removed as an executor of the Will as being unfit to act. iv) a claim that the trustees of the family trusts should be joined into the action, in view of the “theft of the family trust assets”; v) an indication that Andrew thought that there should be other beneficiaries interested in the estate of the Deceased and that they should be advised of the proceedings.[62]On 20th May 2011, Ms Alison Boyce was appointed as administrator pending suit.[63]On 7th July 2011, the Claimants served a Part 18 request for further information as to the allegations of lack of capacity.[64]On 28th July 2011, Andrew responded to the Part 18 request, pleading the drugs that he alleged were known to have detrimental side effects, and were prescribed to treat the Deceased’s mental health conditions from 1986 to her death in February 2010. In addition, Andrew pleaded some comments from the notes of the Deceased’s general practitioners, mainly in the period before the 2007 Will, saying that the Deceased had had psychiatric help and had been at times unable to cope. The drugs in question and the comments made were as follows:- i) Propranolol in March 1986 for anxiety and depression, ii) Lamitazopam in November 1986 for anxiety and depression; iii) Atenolol in August 1987 for depression; iv) Buspar in July 1988 for depression; v) Propranolol in 1989 (“feels like a failure/agitated depression/significantly depressed”); vi) Rivotril/Clonazepam in February 1990 for depression; vii) Lorazepam in February 1990 for depression; viii) Triptizol in February 1990 for depression; ix) Prozac in November 1991 for depression; x) Amitryptoline in March 1991 for major depression; xi) Buspar (buspirone) in July 1992 for depression (“worse”); xii) Sotarol in November 2004 for depression; xiii) Escitalopram in May 2005 for depression. Andrew pleaded that all of the above drugs were repeated thereafter through to February 2010. At the end of the further information, Andrew said: “To identify the date of the ‘Lloyd George and problem summary’ compiled on 20 March 2007 by her GP at the New Dover Road Surgery by Dr Cecil Fahey”.[65]On 5th August 2011, Dr Nicholas Down (“Dr Down”) of the Oxshott Medical Practice wrote to Andrew answering some questions he had posed. The letter includes the following in relation to the 20th March 2007 entry in the Deceased’s “all medical history” recording “Lloyd George + problem summary Dr Cecily Fahey”:- “’Lloyd George + problem summary’ means that her notes would have had significant codes entered into the electronic record and the date confirms that this was done in 2007”.[66]On 11th August 2011, Master Teverson ordered that:- i) Andrew should file his statement of testamentary evidence under CPR 57.5 by 2nd September 2011; ii) The parties should lodge original testamentary documents by 16th September 2011; iii) Notice of the claim should be served on the five children of Nicholas and Andrew, namely Daniel, Charlotte, Samantha, Alexander and William; iv) Disclosure by 7th October 2011; v) Exchange of witness statements by 11th November 2011.[67]On 3rd December 2011, Dr David Eaves (“Dr Eaves”) wrote to Andrew about his long memory of treating the Deceased, saying that the formal Spirometry from Chichester in January 2000 confirmed moderate COPD, and that the Deceased had her emotional “ups and downs” and “presented generally as a rather anxious nervous sort”. His view was that up to November 2007, when she ceased to be Dr Eaves’s patient, she did have mental capacity. He did not think that either her COPD or her depression would have “sufficiently affected her mental judgment to so prejudice her ability to make a Will”.[68]On 14th February 2012, the order of 20th May 2011 was varied so as to appoint Ms Susan Midha in place of Ms Alison Boyce as administrator pending suit.[69]On 30th May 2012 Master Teverson ordered, on this occasion in the presence of Andrew who attended court, that:- i) Andrew’s address for service should be 17 Falcon Wood, Leatherhead, Surrey – not in France, where he had been living; ii) Notice of the claim be served on Alexander and William, again by post to 17 Falcon Wood by 8th June 2012 (who were served but have not acknowledged service); iii) Andrew should file his witness statement of testamentary evidence and original testamentary documents by 13th June 2012; iv) Standard disclosure by 27th June 2012; v) Exchange of statements by 8th August 2012; vi) Exchange of experts’ reports as to the psychiatric health of the Deceased by 7th September 2012.[70]On 4th June 2012, Andrew filed his statement of testamentary documents, saying that he knew of none. On 26th June 2012, Andrew made a disclosure list, which he served on the Claimants.[71]On 15th September 2012, Andrew made submissions to Master Bragge by email concerning the Claimants’ alleged default in giving disclosure. On 19th September 2012, Andrew made further submissions to Master Bragge by letter:- i) Complaining about the court’s refusal to vacate the hearing fixed before Master Bragge for 19th September 2012; ii) Suggesting that Andrew might instruct an expert on benzodiazepines and their depressive effects; iii) Complaining about the Claimants’ conduct of the litigation.[72]On 19th September 2012, Master Bragge ordered (in the absence of Andrew) that:- i) Andrew should provide inspection of the documents he had disclosed within 7 days of the service of his order upon him; ii) time for witness statements should be extended to 5th October 2012; iii) time for the experts’ reports should be extended to 12th October 2012; iv) unless Andrew provided inspection, he should be debarred from defending the claim or pursuing his counterclaim. v) if Andrew was debarred in pursuance of the order, the case should proceed to trial on written evidence under CPR 57.10(5).[73]On 20th September 2012, Andrew was served by post and by email with Master Bragge’s order in strict compliance with that order.[74]On 2nd October 2012, since Andrew had not given inspection of the disclosed documents, Penman Johnson LLP, then solicitors for the Claimants, wrote to the court, confirming that:- i) Andrew had failed to provide inspection under paragraph (1) of Master Bragge’s order; ii) Andrew was debarred from defending and from pursuing his counterclaim; iii) The trial should proceed in accordance with Master Bragge’s order on written evidence under Part 57.10, and that the revised estimate for that trial was one day.[75]On 22nd October 2012, Andrew filed an Appellant’s Notice seeking permission to appeal Master Bragge’s order dated 19th September 2012, and seeking that the trial date be vacated.[76]On 5th November 2012, I heard the trial on paper in the absence of Andrew as directed by Master Bragge on 19th September 2012, and delivered the Judgment pronouncing for the 2007 Will in solemn form.[77]On 22nd November 2012, Andrew wrote a letter to me contending that he had served his Appellant’s notice on the Claimants and the Claimants’ solicitor by post and by fax on Penman Johnson on 25th October 2012.[78]On 23rd November 2012, Mr Douglas Bell, the clerk of the lists, sent an email to Ms Jacqueline Alderton, then of Penman Johnson (“Ms Alderton”) informing her of the Appellant’s notice.[79]On 23rd November 2012, Ms Alderton made a witness statement saying that the Appellant’s notice had not been received at her offices. On 27th November 2012, I directed a hearing of Andrew’s application to set aside the judgment.[80]On 30th November 2012, my clerk sent an email to Ms Alderton attaching a copy of the Appellant’s notice. On 21st March 2013, Penman Johnson sent a copy of the transcript of the first judgment to Andrew by email.[81]On 25th March 2013, I:- i) Ordered that Andrew should be granted relief from the sanctions imposed as a result of his failure to comply with paragraph (1) of Master Bragge’s order dated 19th September 2012; ii) Ordered that the order made at the 5th November 2012 trial should be set aside, and the trial should be re-fixed; iii) Ordered that the Appellant’s notice be listed to be heard at the same time as the re-fixed trial; iv) Gave detailed directions for the evidence to be adduced at the re-fixed trial.[82]On 26th June 2013, the re-trial began before me.[83]On 27th June 2013, Mr Roger Berner, Upper Tribunal Judge, released a 90-page decision in relation to Andrew’s appeal in relation to regulatory matters. At paragraph 425-7, the Upper Tribunal said:- “425. We have found that [Andrew] lacked integrity in the performance of his controlled function. We have no doubt that he is not a fit and proper person. His failure to comprehend the nature and extent of his wrongdoing, his inability to accept the basic tenets of regulation and his evident contempt for the regulatory authorities make it perfectly plain that, left to his own devices, he would carry on in precisely the same fashion. He would in our judgment, pose a serious risk to clients and others dealing with him, and to the integrity, of, and confidence in, the financial system.426. For these reasons, the only appropriate order is to prohibit [Andrew] from performing any function in relation to any regulatory activity carried on by any authorised person …427. Subject only to the question of the level of the financial penalty having regard to [Andrew’s] financial means, the reference is dismissed …”

The 2007 Will

[84]The 2007 Will, dated 5th July 2007, is witnessed, apparently regularly, by Mr Cox and a TJ Steinmetz, Mr Cox’s secretary. The terms of the 2007 Will include the following:- “I appoint:2.1 My son [Nicholas] … and2.2 [Mr Eyre] … to be my executors and Trustees. 3 Gift of Property I give to NICHOLAS free of tax and absolutely all my share and interest in [3 Filmer Road] or such other my principal residence at the date of my death but if at that date contracts shall have been exchanged for the sale of such property I give to NICHOLAS all my share of the net proceeds of sale of such property.4.1 I give to my said son NICHOLAS any car that I own at the date of my date (sic) free of tax and absolutely.4.2 I authorize my trustees but without imposing any binding trust or obligation upon them to carry out any wishes written or signed by me (“my wishes”) relating to any of my articles of personal domestic household garage (including motor car) or garden use or ornament (“the articles”) and I give the articles not disposed of in accordance with my wishes to Nicholas absolutely. 5 Policies I give to each of my grandchildren upon attaining the age of 25 years the policies I have taken out in their individual names with Tunbridge Wells Equitable (which policies are outside my estate) and if I should die before the policies mature I direct my Trustees to continue to pay the premiums from the Residuary Trust Fund and should my husband die before the same mature I ask that the beneficiaries who receive my Residuary Trust Fund absolutely then continue the payments on behalf of my Trustees until each policy matures Provided That should any of my grandchildren predecease me or fail to attain the age of 25 years the proceeds of his or their individual policy shall be divided equally among the remaining grandchildren upon their attaining the age of 25 years. 6 Residuary Estate6.1 My Executors shall:6.1.1 pay my debts, funeral and testamentary expenses and Inheritance Tax on all property which vests in them; and6.1.2 hold the remainder as set out below.6.2 Debts, funeral and testamentary expenses, legacies and inheritance tax shall be payable out of the capital of my estate (subject to the Trustees’ administrative powers relating to capital and income).7.1 “The Nil Rate Sum” means the maximum amount of cash which I can give on the terms of the Nil Rate Fund without incurring any liability to Inheritance Tax on my death, but subject to the following clauses.7.1.1 The Nil Rate Sum shall be nil if:7.1.1.1 Inheritance Tax has been abolished at the time of my death: or7.1.1.2 I am not married at the time of my death; or7.1.1.3 The amount of the Nil Rate Sum would otherwise be less than £5,000.7.1.2 Any other legacy given by my will or any codicil shall be paid in priority to the Nil Rate Sum.7.1.3 My Executors may ascertain and fix the amount of the Nil Rate Sum so as to bind all persons interested under this Will if the Executors have discharged the duty of care set out in section 1(1) Trustee Act 2000.7.2 “The Nil Rate Fund” means:7.2.1 the Nil Rate Sum; and7.2.2 all property from time to time representing the above.7.3 “The Trust Fund” means:7.3.1 the remainder of my estate after deducting the Nil Rate Fund and any other legacies; and7.3.2 all property from time to time representing the above.7.4 “Trust Property” includes any part of the Trust Fund and the Nil Rate Fund.7.5 “The Trustees” means my executors or the trustees for the time being.7.6 “The Perpetuity Period” means the period of 80 years beginning with the date of my death. That period is the perpetuity period applicable to this Settlement under the rule against perpetuities.7.7 “The Accumulation Period” means the period of 21 years beginning with the date of my death.7.8 “The Beneficiaries” means:7.8.1 My son NICHOLAS.7.8.2 My grandchildren and remoter issue.7.8.3 My husband DAVID JEFFERY.7.8.4 Any Person or class of Persons nominated to the Trustees by two Beneficiaries and whose nomination is accepted in writing by the Trustees. 8. Nil Rate Fund I give the Nil Rate Sum to the Trustees. During the lifetime of my husband and subject to the Overriding Powers below:8.1 The Trustees may accumulate the whole or any part of the income of the Nil Rate Fund during the Accumulation Period. That income shall be added to the Nil Rate Fund.8.2 Subject to that, during the Trust Period, the Trustees shall pay or apply the income of the Nil Rate Fund to or for the benefit of any of the Beneficiaries as the Trustees think fit.8.3 Subject to that, the Trustees shall add the Nil Rate Fund to the Trust Fund. 9. The Trust Fund9.1 The Trustees shall pay the income of the Trust Fund to my husband during his life.9.2 Subject to that, the Trustees may accumulate the whole or any part of the income of the Trust Fund during the Accumulation Period. That income shall be added to the Trust Fund.9.3 Subject to that, during the Trust Period, the Trustees shall pay or apply the income of the Trust Fund to or for the benefit of any of the Beneficiaries as the Trustees think fit. 11. Default Clause Subject to that, the Trust Fund shall be held on trust:11.1 As to one half for NICHOLAS but if he has died before me leaving issue who survive me and attain 25 then such issue shall inherit this part of the Trust Fund per stirpes and if more than on (sic) in equal shares.11.2 As to one half for such of SAMANTHA JEFFERY ALEXANDER JEFFERY and WILLIAM JEFFERY as shall survive me and attain 25 and if more than one in equal shares absolutely”.

Subject to that, the Trust Fund shall be held on trust:

[85]The gross value of the assets of the Deceased’s estate is in the region of £450,000. The assets are described by the Claimants as follows:- Asset Estimated value of asset Cash £3,000.00 Property at 3 Filmer Road £240,000.00 One half share of property at Fairmile House £150,000.00 Proceeds of sale of car £8,000.00 Car number plate £1,500.00 Jewellery mentioned in letters of wishes £1,462.00 Other chattels £5,000.00 Money owed by David c. £30,000.00 One half share of monthly rent on Fairmile House withheld by David since death to date: 32 x £1,105 pcm £35,360 Liabilities: Liability The following trust assets are in the Deceased’s name Grandchildren’s policies

Andrew’s defences

[86]As already indicated, the defences raised as to the validity of the 2007 Will are as follows:- i) The Deceased lacked capacity; ii) The 2007 Will is affected by undue influence. iii) The 2007 Will was affected by the fraud of the Deceased in relation to other matters; iv) The Deceased did not know or approve the contents of the Will; v) The executors are unfit to act as such.[87]The Defendant also asserts that the 2004 Will, the 2002 Will and the 1982 Will (and subsequent codicils) are all invalid for the same reasons. The Defendant counterclaims for an intestacy, alternatively an interest under the 1982 Will, alternatively an interest under the 2002 Will.[88]In order to understand why this litigation has reached this advanced stage, it is important to try to understand precisely, and perhaps less technically, what Andrew is really complaining about. Accordingly, I have analysed chronologically his somewhat dense and repetitive skeleton argument and witness statement as best I can as follows:- i) In 1985, the Deceased became chronically addicted to benzodiazepines. ii) Also in 1985, Andrew joined his parents firm of insurance brokers, at which point the business was technically insolvent. iii) In 1996, the Deceased set up an insurance broking firm called TDL, although she had taken her pension and retired at that time. iv) By January 2000, the Deceased had been diagnosed with COPD. v) In May 2000, Andrew started trading his new company of insurance brokers called JFL Consulting Limited (“JFLCL”). The Deceased did book-keeping for that company, but was never employed by it. vi) In March 2001, the Deceased appointed Nicholas and Andrew as trustees of the EH Flanders 1995 Discretionary Trust and the WG Flanders Will Trust. vii) On 21st December 2001, Andrew fell out with the Deceased, because he found that she had attempted to take £2,500 from his business without his consent. viii) On 23rd January 2002, as a result of the 21st December 2001 falling out, the deceased told Mr Simon Wolfe of Furley Page to remove Andrew as a trustee of the EH Flanders 1995 Discretionary Trust and the WG Flanders Will Trust. ix) Between January 2002 and her death, Andrew only met the Deceased on 7 occasions. x) On 14th May 2002, the Deceased made a will including Andrew on the same day as she was again prescribed more clonazepam. xi) Between 2002 and 2010, Nicholas began to influence and coerce the deceased, and took control of her personal assets, her bank accounts, and the EH Flanders 1995 Discretionary Trust, the WG Flanders Will Trust and the Edith Flanders Will Trust, and the trusts’ bank accounts. xii) In April 2003, trust assets worth some £645,000 were transferred to the Deceased by the forgery of Andrew’s signature. xiii) On 27th June 2003, David sent a note to the Deceased saying: “Andrew still thinks he will be owed money by us and I have told him that if he proves it there will be no difficulties from either of us”. xiv) In October 2003, Andrew claimed that the Deceased had stolen some money from his business. xv) In about December 2003, the Deceased started litigation against her brother Raymond Flanders, in relation to the EH Flanders 1995 Discretionary Trust and the WG Flanders Will Trust, claiming that he had misappropriated monies assessed by Nicholas at around £900,000. xvi) In early 2004, Andrew discovered that the Deceased had in fact stolen a total of £83,000 from his business JFLCL. xvii) In July 2004, Nicholas produced a document saying that the Deceased would repay some of the money she had stolen. xviii) In August 2004, Nicholas and the Deceased produced various documents on which Andrew relies as showing that all the problems were created following the schedule showing that the Deceased had stolen £83,000; these documents make a series of untrue allegations against Andrew. xix) On 9th August 2004, the Deceased changed her will for the first time to exclude Andrew. xx) In March 2006, the Deceased compromised the WG Flanders Will Trust litigation for a small sum, after she had been made a Part 20 defendant. xxi) On 12th February 2007, Nicholas conned his 3 cousins into accepting a payment of £43,000 each in respect of their interests in the EH Flanders 1995 Discretionary Trust and the WG Flanders Will Trust. xxii) On the 4th June 2007, the Deceased had moved in with Nicholas and Nicola. xxiii) In the lead-up to the 5th July 2007 will, the Deceased was again prescribed clonazepam, and it must have been obvious to Mr Cox that she was suffering from COPD and was very unwell, yet Mr Cox failed to undertake any tests as to her mental capacity, and allowed Nicholas to attend the 19th April 2007 meeting at which he took instructions. xxiv) Nicholas directly influenced the contents of the 2007 will by telling Mr Cox what should be in it. xxv) On 23rd July 2007, the Deceased handed control of her bank accounts to Nicholas. xxvi) In January 2008, the Deceased was caught out claiming care home fees of some £30,000 from Aviva on insurance on the basis that she had just been diagnosed with COPD in November 2007, when in fact she had been suffering from it for 20 years. xxvii) In January 2008, the Deceased transferred two valuable properties at 25 and 29 Brewery Lane to Nicholas. xxviii) The Deceased undertook numerous other deceptive activities in 2008 and 2009, which is evidence of her mental ill-health.[89]This chronology gives rise to the following substantive complaints that Andrew has pursued at this trial:- i) Since about 1985 the Deceased was addicted to benzodiazepines which gave rise to her behaving deviously and irresponsibly in business, financial and family matters. ii) The Deceased fell out with Andrew on 21st December 2001 when he accused her of stealing from his business. iii) Nicholas influenced and coerced his vulnerable and mentally ill mother into putting him in control of her financial affairs and giving him assets of the EH Flanders 1995 Discretionary Trust, the WG Flanders Will Trust and the Edith Flanders Will Trust, and other properties and monies between 2002 and her death, and excluding Andrew from her wills in 2004 and 2007, and her associated codicils and letters of wishes. iv) The Deceased frequently ignored professional advice between 2002 and her death, both in relation to inheritance tax planning and other matters.

The Claimants’ factual evidence

[90]I will deal with the witnesses broadly in the order in which they were called.[91]Mr Christopher Wagstaffe QC was called first. He was instructed by the trustees of the Edith Flanders Will Trust and the EH Flanders 1995 Discretionary Trust, who had been joined as additional respondents to the ancillary relief proceedings between the Deceased and David. He spoke to the Deceased in a telephone conference in July 2009, at which he advised that she had a conflict of interest and should stand down as a trustee. She accepted Mr Wagstaffe’s advice. Mr Wagstaffe’s view was that he “did not gain any impression whatsoever during the conference that [the Deceased] was not at any time entirelycompos mentis”. Mr Wagstaffe was a clear and straightforward witness. When cross-examined, he made it clear that the Deceased had impressed him by encapsulating the difficulty he had identified in a few sentences after a 1½ hour conference. She had said that she would be minded to follow Mr Wagstaffe’s advice.[92]Dr Jacqueline Pickin was the Deceased’s general practitioner from 1986 to June 1997. She saw her twice a year in that period and then spoke to her once on the telephone on 10th August 2005, and saw her in person for a consultation on 22nd August 2005, whilst the Deceased was back in Cobham staying with David to look after him when he was recovering after a spell in hospital.[93]Dr Pickin prescribed Clonazepam (500 micrograms) and Escitalopram (10 milligrams) on 22nd August 2005, because the Deceased had either run out of these pills, or had left them at home when she came to look after David. Dr Pickin said in her statement that she thought it unlikely that these medications would have had any significant effect on the Deceased’s mental capacity at that time.[94]I found Dr Pickin an extremely impressive and straightforward witness. She knew that the Deceased had had some issues with anxiety. She explained that Escitalopram is an anti-depressant, and that Clonazepam is a tranquiliser of the benzodiazepine group. 500 micrograms is a low dose. She had no idea that the Deceased had been referred to a psychiatrist in 2001, but even had she known, it would not have affected her view.[95]Dr Pickin said that she had the impression that the Deceased was an intelligent and confident woman. She never gave her a concern that she was ‘drugged up’ and she never reported that she was feeling that way. In short, she never had any concern that the medication was affecting her adversely. Dr Pickin rejected the suggestion that the Deceased had been telling her lies. She explained how she gained an impression when people were doing so, and she did not think that the Deceased was lying to her. Dr Pickin accepted that one has to be very careful about prescribing tranquilisers with other medicines, but she felt that the Deceased had taken these over the years, and they did not cause a problem. She would not have prescribed these drugs if she had been worried about the Deceased’s mental state. If she had, she would have phoned her current general practitioner. She did not recall being struck by the Deceased’s low weight in 2005.[96]Mrs Nicola Jeffery was the next to give evidence. She made it quite clear that she thought that the drugs that the Deceased was taking did not affect her thought processes: “[a]t times I know she became depressed but was still able to conduct business and personal affairs in the same efficient way she always had”.[97]In chief, Nicola told me that her mother-in-law had not lived with them, but had stayed for periods up to 4 weeks at the most, and had stayed for that period in June 2007 when she had pulled a muscle in her back. She also explained how, on 7th July 2007 – 2 days after the execution of the 2007 Will – the Deceased had driven her to watch the tennis at Wimbledon. They had parked across the road and the Deceased had managed the day very well, including the 10-15 minute walk from the car park.[98]Nicola denied in cross-examination that anyone had influenced the Deceased to make her wills. She said that the Deceased was quite capable of making her own decisions. She had made Nicholas a signatory on some of her bank accounts, because she could not always get to the bank and because it was convenient for her.[99]The 2 properties gifted to Nicholas on 21st January 2008 were given away to avoid Inheritance Tax. Various points were put to Nicola about how the Deceased had lied on forms as to being retired. I formed the view that none of these points amounted to anything substantial.[100]Nicola explained how Andrew had upset the Deceased in relation to the insurance business. Nicola said that the Deceased had discussed changing her will many times after the meetings with the executors in about 2006. She had wanted a reconciliation with Andrew, and wanted him to apologise for the insurance problems. She was very distressed to have fallen out with Andrew.[101]Nicola did not know the details of the medicines that the deceased was taking, She did not take the Deceased to her own general practitioner. She had not telephoned the New Dover Road surgery in Canterbury on 4th June 2007 saying she was concerned about the Deceased’s inability to breathe. Though the notes are unclear, they do not anyway make clear that Nicola made the telephone call, only that she was involved in the approach.[102]I found Nicola’s evidence entirely credible and straightforward. She was careful to say when her recollection was imperfect. I accept the truth of what she told me.[103]Mr Eyre was the next witness. He is the Chief Constable of the Nottinghamshire Constabulary, but emphasised that he was giving evidence in a purely personal capacity. When the Deceased moved in to the Orchard in Canterbury Hill, to care for her aged mother, Mrs Edith Flanders (which he thought was in about 1998, although he was hazy about exact dates), Mr Eyre became the Deceased’s next-door neighbour. Mr Eyre was then living at 12 Canterbury Hill with his wife and 3 small children. He first spoke to the Deceased over the garden fence and quickly struck up a friendship. He obviously liked her and respected her. He thought her engaging, decent and kind, and repeatedly described her as a “neighbour and a friend”.[104]Mr Eyre attended the Deceased’s 70th birthday party on or about 30th July 2003, at which he met Andrew and his children, David, and Nicholas and his children for the first time. Shortly thereafter, the Deceased asked Mr Eyre to be one of her executors. She told him at that time that she had certain problems and mentioned that Andrew was treating clients badly. Over time, the Deceased told Mr Eyre on 2 or 3 occasions how distressed she was about how things were developing with her former clients. She did not ask him to do anything, and he did not think she was lying. He was not inclined to pry. It was put to Mr Eyre that the Deceased had wanted him involved to frighten Andrew off from claiming £110,000 from her. Mr Eyre said that he did not “think she had it in her to frighten anyone off. She was a lovely lady”.[105]Mr Eyre met with the Deceased, Nicholas and Nicola to discuss a draft will in 2004 or 2005 at a hotel in New Dover Road, Canterbury. He said he was acutely conscious of Nicholas being a beneficiary, and he made certain that he spoke to the Deceased without Nicholas and Nicola present to make sure that her settled wishes were in the will. The Deceased told him that Andrew had received the insurance business and she wanted Nicholas to benefit in the will. Mr Eyre explained how Nicholas had telephoned him over the years, but he had always made sure by talking alone to her that it was the Deceased’s wishes that were reflected in the testamentary documents.[106]Mr Eyre said that the Deceased had grown to rely more on Nicola than Nicholas. He was not aware of her medication or her involvement with psychiatry, but he was aware of her occasional ill health and respiratory problems. He did not know the details. He described her as a slight lady, but did not think her underweight, though she may have been.[107]Mr Eyre does not think he saw the Deceased again after he left Canterbury in July 2006. Nicholas had called him thereafter about issues in relation to the Financial Services Authority, trusts, and the divorce, but he was determined not to make himself more aware of these issues.[108]When Andrew alleged criminal matters against the Deceased in 2008, the Deceased contacted Mr Eyre to tell him she had been contacted by the police. Mr Eyre explained understandably that he could not become involved in another police area, and she did not ask him to get involved. He told her to contact her solicitor and to engage with the police. She was just a “distressed elderly lady”, who was frightened.[109]It was Mr Eyre who had suggested that the Deceased make a new will both before and after the 2007 Will to deal with the changing circumstances.[110]Mr Eyre’s statement said that he was “left in no doubt what so ever that the [2004 will] did represent her wishes and that she continued to be concerned about some of Andrew’s business practices. I was very clear that she was in full possession of her faculties”. He also discussed a letter of wishes with the Deceased before August 2006, and “made sure that the letter of wishes represented [the Deceased’s] wishes”. Mr Eyre said in his statement that “[t]hrough these phone calls I was absolutely satisfied that [the Deceased] was in full possession of her faculties and had come to clear and rational decisions about her estate”. He also formed the impression that the Deceased was “deeply and increasingly distressed by the behaviour of her son Andrew and that she was very concerned about the wellbeing of his children”.[111]I accept the thrust of Mr Eyre’s evidence unreservedly. He readily acknowledged that his recollection of dates was not reliable. When I remarked at the end of his evidence that, bearing in mind all the effort that being the Deceased’s executor had caused him, he might think twice in future about doing such things, Mr Eyre’s somewhat touching response was to say that he would do the same thing again for his lovely friend. Mr Eyre was an impressive, honest and straightforward witness.[112]Mr Peter George Cox, the solicitor who joined Gardner Croft LLP before 2007, produced the complete will file relating to the preparation of the 2007 Will. He was pleased when the Deceased got back in touch with him in March 2007 and wanted to impress her. She had previously instructed him when he was an associate at Furley Page, which he had left in May 2001. He did not recall the Deceased having instructed him in the interim period.[113]He described the meeting that took place on 19th April 2007 in his statement. It was a 2-hour meeting and concerned updating the 2004 Will and the 2004 codicil, the trusteeships and property issues relating to two of the family trusts, and the gifting of two properties by the Deceased as lifetime gifts in favour of Nicholas and/or his children. Mr Cox said this in his statement:- “Relevant to one of the family trusts was the desire of Mrs Jeffery to remove her other son Andrew as a trustee. Mrs Jeffery related to me that she had had an increasingly troubled business and personal relationship with Andrew. This had come to a head when Andrew had been indicted on 34 counts of fraud by Surrey Police. At the time when I met with Mrs Jeffery Andrew was still awaiting trial”. … “Throughout the meeting of 19 April 2007 [the Deceased] spoke knowledgeably and precisely about her own family and financial affairs. Nicholas contributed by making some notes asking questions on the trusts, particularly Andrew’s position as a trustee of one of the family trusts, as well as helping with ideas of values for some of the assets owned by Mrs Jeffery and the trusts. My impression was that Mrs Jeffery wanted Nicholas to be present at this initial meeting for a number of reasons, not least to make the introductions between he and I, and also so that he could hear first hand the advice I was giving regarding her will and her inheritance tax position. Mrs Jeffery wanted Nicholas to be an executor of her will and therefore to have the clearest vision about how that task would be best undertaken on her death. I had no question in my mind about Mrs Jeffery’s mental capacity to make a will”. … “15. Validity of 5 July 2007 Will. I have no concerns, nor did I at the time regarding Mrs Jeffery’s capacity to make her will in 2007, nor that she did not know/approve of its contents in the circumstances described. 16. As to undue influence, it must first be pointed out that the 2004 and 2007 wills are essentially similar, and second that if it is alleged that Nicholas attempted to exert undue influence on Mrs Jeffery, this seems not to have been likely since the 2007 will(a) has his father as the major beneficiary and(b) Nicholas was only present at one meeting with subsequent confirmation of instructions being obtained independently with Mrs Jeffery both by telephone and in person prior to the execution of the will”.[114]In cross-examination, it was suggested that Mr Cox had wrongly sought trust documents from Furley Page in April 2007 without the signatures of all the trustees. He accepted that that might be the case, but thought he had just “got lucky”, and that it was Furley Page’s problem. He did not think that the trust problems and removing Andrew as a trustee was the priority. He rejected the idea that there was some conspiracy to exclude Andrew by removing the papers from Furley Page, and cutting out Ms Wallace of that firm as an executor. She was removed because she was coming up to retirement.[115]Mr Cox was asked about the notes he had made of his 11th June 2007 telephone conversation with the Deceased in which he had recorded that “Andrew not to benefit in will” and “Andrew’s wife wealthy”, but he did not think the two were connected. He said that the central point was that Andrew was in difficulties in terms of the criminal charges brought against him and he still needed to be removed as a trustee. He accepted that it was unusual for him to have noted that he would hear from Nicholas relating to the letter of wishes, but thought that was because it was about small items of jewellery rather than dispositions of value in the estate.[116]Mr Cox said that he had not undertaken any formal capacity tests on 19th April 2007, because the Deceased gave him no cause for concern as to her capacity. He did not think he needed to send Nicholas out of the room as he had further opportunities to check the instructions the Deceased gave, which he had done later on the telephone. On 5th July 2007, Mr Cox had read the 2007 Will to the Deceased summarising each paragraph, the draft will having been sent out to her on 29th May 2007. He had no suspicions regarding her health. There were no signs of distress or physical disability.[117]Mr Cox described the Deceased as a “memorable client”, who had been driving a Golf convertible in 2001, and was driving a Volkswagen Eos in 2007. She had remembered the conversation about cars all that time before. Mr Cox was impressed with her. In 2007, she appeared more frail than he recalled in 2000, but was still very capable. She had updated him on all her affairs, and he recalled her teaching him the differences between Inheritance Tax and Estate Duty. He was reassured that she was capable of getting on with life.[118]Mr Cox said that he did not envisage a challenge to the Will, and that Andrew had already been cut out in 2004. There were cogent reasons why the Deceased wanted his inheritance to go to Andrew’s children. Mr Cox was asked about tax planning. He said that relatively little tax planning advice was needed, as he was reaffirming the structure of the 2004 Will, using the nil rate tax band, and making a lifetime gift to the spouse. He had said that they should look at the Capital Gains Tax implications before transferring properties to Nicholas. The transfer in January 2008 did not take place suddenly. He had obtained the CGT figures in November/December 2007, and, since the CGT was quite minor, Mr Cox sent the transfers in December 2007 for the Deceased to sign. Mr Cox did not know that the Deceased had met David on 13th January 2007.[119]Mr Cox found the start of the judicial separation proceedings in June 2008 a disturbing development, and he made clear that the 2007 Will was based on the Deceased and David being married. His advice was ultimately to leave the 2007 Will alone, as David would be excluded if the divorce happened, and it could be changed later to revoke the life interest. Mr Cox accepted that it was the fact that the Deceased cross-petitioned for divorce that brought about an Inheritance Tax liability. But he did not accept that the tax planning had backfired due to the divorce.[120]It was suggested to Mr Cox that he had acted improperly in a number of respects. I did not accept that any of those allegations were made out. Nicholas’s two short notes, which Mr Cox said were privileged, had nothing to do with the 2007 Will.[121]I accept Mr Cox’s evidence. He had a good recollection, and his demeanour was careful and considered.[122]Mrs Lucy Owens is a barrister specialising in family law, who represented the Deceased in her divorce and ancillary relief proceedings between October 2008 and 2010. She had 4 conferences with the Deceased at her home in Cobham, and attended court with her. One of the conferences she had in her Chambers had been attended by Nicholas. Mrs Owens was present when the Deceased gave evidence by telephone link shortly before she died, and visited her in the nursing home.[123]Mrs Owens had said in her statement that at no point was she concerned about the Deceased’s mental capacity. She described the Deceased as sharp, intelligent and independent minded in the period in question; she “had an excellent grasp of the issues, the law and my advice” and that “[h]er memory of past events, in relation to business and personal matters, was not wanting in any way”. But Mrs Owens was nonetheless cross-examined as to the Deceased’s medical condition. It turned out that Mrs Owens had considerable experience of elderly people and of their mental capacity, having worked for 7 years for Sutton Elderly Mentally Infirm (EMI) unit, and with old people for the London Borough of Kingston right up to 1997. Mrs Owens described the Deceased several times as “sharp as a tack”, and said that she had discussed her health with the Deceased so as to fill out the necessary “Form E”. She recalled a conversation the first time she met the Deceased, when she (Mrs Owens) was asked if she knew what COPD stood for, and the Deceased was surprised that she did.[124]Mrs Owens, like other witnesses, was asked if she knew that the Deceased “was a chronic user of benzodiazepine”and “had refused psychiatric treatment”. She said she did not know that, but it would not have affected her judgment of the Deceased’s capacity if she had. Mrs Owens explained that part of her job is to check that her client’s evidence correlates with the documents: “quite often you can catch your own client out but I never did that with her”.[125]Mrs Owens described the Deceased’s physical decline from being able to walk when she met her to using Oxygen and being very frail later on. But she emphasised that she was never in any doubt about her mental capacity, even late on. The Deceased was completely up to date as to what was happening on the case, and needed no assistance when she gave evidence 10 days before she died, apart from requiring someone to lift the bundles for her.[126]I found Mrs Owens a compelling and reliable witness. I accept what she told me without hesitation.[127]Mr Aaron Spencer (“Mr Spencer”) is a solicitor and now a partner at Furley Page. He said in his statement that he had prepared the 2002 Will, and that he had numerous attendances with the Deceased at that time. He found the Deceased fully engaged in the will making process, asking appropriate questions and discussing tax planning and trusts. He found her to have capacity to understand these concepts and was able to take clear instructions throughout.[128]In cross-examination, Mr Spencer said that he had joined Furley Page in September 2001, and was instructed by the Deceased in February 2002. Before that, she had spoken with Mr Cox, who had drafted a will for her and sent it to her. Mr Spencer was Mr Cox’s successor working under Ms Wallace. The Deceased had seen Mr Harvey Barrett (“Mr Barrett”), when Mr Cox left Furley Page in May 2001. Once the Deceased had obtained tax planning advice, she came back to Mr Spencer.[129]Mr Spencer was another straightforward witness. His first impression of the Deceased was that “he had no alarm bells ringing”. He did not see her as a nervous anxious individual, and she had not mentioned to him that she was having problems with Andrew. The will instructions seemed to him to produce a balanced approach to the family. He made no tests on her, and did not inquire into her medical condition.[130]Andrew asked Mr Spencer about a letter he had written to him addressed to “The Orchard” on 18th March 2003 in which he had suggested a Deed of Variation in relation to the Edith Flanders Will Trust, which would have resulted in Andrew giving up an interest of some £100,000 in the family trust. Mr Spencer did not recall why he had sent the letter to the Deceased’s address at the Orchard, but said in re-examination that it could have been so that the Deceased could discuss the letter with Andrew. Mr Spencer was asked about an enduring power of attorney that he had prepared for the Deceased in 2002, which she had cancelled immediately after it was executed.[131]It was suggested that the Deceased had lied to Mr Spencer about various matters including Andrew’s address, but Mr Spencer could not recall that happening. Whilst it is true that some of the questions raised by Andrew in Mr Spencer’s cross-examination are unanswered, they did not in my judgment justify the conclusions that Andrew sought to reach, namely that his mother had been an inveterate liar, and there had been a huge conspiracy against him. I shall return to this aspect of the case in due course.[132]Ms Gillian Wallace has been a private client solicitor at Furley Page for 25 years. She was an impressive straightforward witness. She prepared the Deceased’s 2004 Will. She said in her statement that, when she dealt with the Deceased, there was “never any question that she lacked mental capacity in any way whatsoever and she was fully in command of her faculties over all the time that [she] knew her”.[133]In cross-examination, Ms Wallace said she had first met the Deceased in 2004. She had had some dealings with her earlier in relation to the enduring power. In relation to the contention that the power had been revoked 4 days later, she said that: “clients often change their minds”.[134]In relation to the 2004 Will, the Deceased had given Ms Wallace clear positive instructions when they had met on 20th May 2004. Ms Wallace was asked about her letter dated 13th October 2009 to Nicholas saying that the Deceased had stated “didactically” that she wished to leave her husband a life interest in the entire estate. She explained that the length of time between May and August 2004 showed that the Deceased was not just dictating her instructions. Mr Barrett had drafted the will earlier, and Ms Wallace wrote to the Deceased on 21st May 2004. When she had used the word “didactically”, she meant that the Deceased had given instructions clearly and precisely knowing exactly what she wanted to do. It was not rushed. Indeed she had first suggested changing the 2002 Will as early as 20th January 2003, when she had met Mr Barrett. The Deceased had given Ms Wallace instructions about the codicil, ultimately dated 4th November 2004, on 4th October 2004. The Codicil left the Orchard, which the Deceased was thinking of acquiring from a trust, to Nicholas if and when she acquired it. Ms Wallace thought she might inherit the Orchard, since it was the family home, which had belonged to Mrs Edith Flanders.[135]Ms Wallace confirmed that the Deceased had no involvement with Furley Page after November 2004. She thought that the Deceased had preferred the younger Mr Cox, which was a “natural conclusion”. Ms Wallace said that the two firms of Furley Page and Gardner Croft, though only 200 yards apart, do not have a regular dialogue:
“but we say good morning in the street”
. Finally, Ms Wallace said that the Deceased had come to her as a much respected client of the firm. She did not test her capacity or ask about her medical condition. The firm had acted for the Deceased’s parents. The Deceased had previously seen Messrs Cox, Barrett and Spencer and none of them had expressed any concern about her mental capacity. The firm’s financial services consultant also saw the Deceased regularly and he had expressed no concerns. The Deceased was precise and clear thinking about what she owned and in her instructions.[136]Mr Simon Wolfe of Furley Page (“Mr Wolfe”) then gave evidence. He was another reliable straightforward witness, whose evidence I accept. He acted for the Deceased and other family members, including Andrew, between 2000 and 2006 in relation to the claim against the Deceased’s brother, Raymond Flanders. He has had experience in dealing with mentally ill clients, but he did not believe that the Deceased was suffering from any form of mental illness that would have affected her capacity in the period immediately prior to the execution of the 2007 Will.[137]In cross-examination, Mr Wolfe accepted that there was a concern in relation to the trusts that the Deceased had been a trustee alongside Raymond Flanders, when he had allegedly misappropriated hundreds of thousands of pounds. The concern was that the Deceased could have had her own liability for those defalcations. Indeed the Deceased was made a Part 20 defendant to the proceedings making just such allegations. That litigation was started in January 2004, and concluded with a settlement in 2006. Mr Wolfe did not agree that Andrew had been kept out of the loop from mid-2004, but accepted that he had not been involved as much as before.[138]Mr Wolfe accepted that the £126,000 odd that was received from the litigation for the trust was sent to the Deceased as trustee. No Beddoe application had been made, and Mr Wolfe was not aware that the Deceased had allegedly “helped herself” to half that money.[139]Mr Wolfe did recollect meeting Andrew on one occasion when he came to inspect the trust files, but did not know if that was on 19th April 2007. He did not recall sending papers to Andrew at the Orchard. Mr Wolfe denied acting so as to alert the other trustees to Andrew’s actions. Mr Wolfe’s recollection was that he did not know why Andrew and his mother had fallen out. He said that Nicholas was initially out of favour, then he came into favour with the Deceased and Andrew, who had previously been in favour, went out of favour. The positions were reversed. That was all he knew. Mr Wolfe understood that the 3 trustees were unanimous about settling the litigation. He did not recall Nicholas saying that we may want to act against Andrew’s wishes.[140]Mr Wolfe did not know why the Deceased severed her connection with Furley Page in 2006. He had no knowledge of her medical affairs or what illnesses she suffered, and made no tests on her mental ability.[141]In answer to some questions from me, Mr Wolfe explained that William Flanders’ estate was to be held for the widow, Mrs Edith Flanders, and then divided between the three children, Daphne, Raymond and Derek Flanders (the Deceased’s twin who died in 1987). The income was to be used for Mrs Edith Flanders. But most of the income had disappeared, and it seemed was appropriated by Raymond Flanders. There was never any evidence that the Deceased had appropriated it. Mrs Edith Flanders had been given a minimal income. The case against the Deceased was that she had not taken as active a part as she should have done. Raymond Flanders said to the Deceased, in essence: “if I have done something wrong, you have too”.[142]Mrs Julia Lesaux was a letting agent who had professional dealings with the Deceased. She had no concern over the Deceased’s capacity, even in the last few years of her life. She had dealt with the Deceased from 1986, but she was only an active client from 1991. Ms Lesaux let a number of properties for the Deceased and spoke to her about once a month. She found her to be an intelligent business woman, and knew nothing about her medical history. I accept Ms Lesaux’s evidence.[143]Mr Denis Gretton, Andrew’s father-in-law, gave evidence concerning the rather sad events surrounding their daughter Bebe (married to Andrew) and Samantha, the only daughter of Andrew and Bebe. When Andrew left for France, he did so without Samantha. Mr Gretton described in his statement how Bebe sued him for breach of trust, as he saw it, through the instrumentation of Andrew. Mr Gretton said in his witness statement:- “I would state that [the Deceased] was of sound mind during all the years that we knew her and at all times was fully aware of what she was doing. I have had experience of dementia and irrational behaviour in older people, especially my mother, who suffered from it for four years before she died. Her elderly husband and I cared for her at home until a week before her death in hospital”.[144]Mr Gretton exhibited an extremely sad letter from Andrew, Bebe, Alexander and William to the Deceased, returning a greetings card and indicating the depth of trauma by which this family was affected.[145]I confess to having obtained very little assistance from the cross-examination of Mr Gretton. The family relationships are still very raw and painful, and Mr and Mrs Gretton and Samantha, on the one side, are still not on normal speaking terms with Andrew and Bebe, Alexander and William on the other side.[146]Andrew asked Mr Gretton about the traumatic history of the relationship between the two families. In short, the Deceased and David did not initially like Mr and Mrs Gretton, but grew towards them in the latter years. Andrew suggested that the Deceased had told Mr and Mrs Gretton of the police investigation against him, and that Mr Gretton had withheld from Bebe the news of his step-father’s (Keith Beken) death in February 2007. I suggested at the end of Mr Gretton’s evidence that an analysis of “who knew what when” would not help me decide the issues in the case. Reason prevailed and the Claimants decided not to call Mrs Gretton. Further hurt and anguish was thereby sensibly avoided.[147]Before that, Andrew had put some of Bebe’s handwritten notes to Mr Gretton, suggesting that he had deliberately intended to withhold money to which she was entitled from Bebe, in order to stop Andrew getting hold of it. Mr Gretton denied these and other allegations. They had nothing to do with the issues I have to decide.[148]Nicholas gave evidence for a spell on each of the first 3 days of the trial, because other witnesses were interposed. His statement set out the history of the family, the trusts and the antagonism between the Deceased and Andrew. He said that the Deceased was a shrewd and conscientious businesswoman, who regularly consulted professionals and considered their advice properly, and never lacked mental capacity. Andrew challenged all these conclusions.[149]Nicholas said in his statement that the Deceased had severed all business ties with Andrew in December 2001, but he made no mention in his statement of the row that Andrew and she allegedly had on 21st December 2001. In addition, Nicholas gave evidence about the investigation by the Financial Services Authority into Andrew’s activities, resulting in August 2009 in the Financial Services Authority issuing a public warning about Andrew and his company, stating that he “may not be passing on premiums”, and in relation to the Financial Services Authority imposing a fine upon him of £150,000 and banning him from working in the insurance industry. Andrew appealed that decision to the Upper Tribunal in December 2012. As I have said, the Upper Tribunal Decision was released on 28th June 2013.[150]Nicholas also said in his statement that the 2004 Will was created so as to replace Andrew as the recipient of Fairmile House with his children: “[the Deceased] decided on this course of action as a consequence of what she had learnt about Andrew’s actions over the past few years which I have referred to earlier in this statement in the way he operated the business he had been given. She was utterly disgusted with his behaviour and no longer wanted him to benefit from her assets”.[151]Nicholas explained in his statement about how the Deceased had dropped the idea of buying the Orchard from the Mrs Edith Flanders’ estate, due to the self-dealing rules.[152]Nicholas confirmed that the 2007 Will was made at the suggestion of Mr Eyre. He then dealt in his statement with the meeting that he attended on 19th April 2007 (referred to above) at which the terms of the new 2007 Will were discussed with Mr Cox.[153]Nicholas said this in his statement about the allegations of undue influence made against him:- “This is simple to allege. I deny it entirely. The terms of my mother’s will were influenced by Andrew’s own misconduct, as is actually shown by the wider facts of the family history. In paragraph 6 there is reference to a bitter family dispute regarding my grandfather’s will trust (the WG Flanders Will Trust). Proceedings were brought in January 2004, concluding in May 2006 by myself, Andrew and my mother as trustees against a retired trustee, my uncle, for stealing trust assets/cash. Those proceedings were compromised. However, Andrew later falsely alleged that he had never consented to that compromise. This deepened a growing rift between our mother and Andrew, since he then blamed her and claimed that she herself had been complicit in taking trust money/assets and/or unilaterally settling the proceedings/claims against my uncle (her own brother). This rift between Andrew and my mother developed from December 2001 until her death. Indeed, even now in paragraph 22 of the Defence Andrew maintains the same allegations of misappropriation of trust property without a shred of evidence and without any legal action having been issued by him against our mother in her lifetime… Whilst I would not attempt to deny that at my mother’s request I increasingly gave a practical hand to the running of our mother’s affairs, to say this assistance was undue influence in the making of her will is unfounded and illogical. Fair provision was made for Andrew’s children instead of Andrew directly. Andrew, by his own increasingly aberrant behaviour effectively wrote himself out of his mother’s life and will. My mother’s will is entirely rational, given the circumstances she found herself in… In the last years of her life our mother had her own laptop computer, a Sony, and a broadband access to the internet. This allowed her direct access to online accounts”.[154]Andrew undertook the cross-examination of the professional witnesses with great skill and precision. The same cannot be said for the cross-examination of Nicholas. I did not find that surprising. The cross-examination was an emotional trauma for both of them.[155]There was plainly a lot of truth in what Mr Wolfe had said about the reversal of the brothers’ fortunes in the eyes of the Deceased. In the early years, Nicholas had worked in the business for 6-9 months when he was 20, but after that it had been Andrew that had been the blue eyed boy. Andrew cross-examined extensively about these events, but little more was established than I have said.[156]It was suggested that the Deceased had forged Andrew’s signature on various documents, one in 1999, but that was not something Nicholas was qualified to speak about. He could simply confirm his mother’s handwriting.[157]There was much questioning about the Deceased’s entitlement to £476 per annum by way of a pension – a matter, as it seemed to me, of no relevance whatever.[158]Nicholas said that he had never said he was administering the Deceased’s affairs. The Deceased had had 3 Barclays current accounts, one of which was labelled “Housekeeping”, one called “Orchard” which was for EH Flanders Will Trusts, and one called “TWO” (or “Number Two” according to Andrew) which was for the EH Flanders 1995 Discretionary Trust. Nicholas was a signatory on the two trust accounts, but not on the housekeeping account.[159]Nicholas helped the Deceased with her divorce papers and with her annual accounts, having suggested it would be quicker and more convenient if he put them in spreadsheets.[160]Andrew again suggested that the Deceased had lied on a proposal form to Aviva on 31st January 1998, saying she had no physical infirmity and was taking no drugs. Nicholas could not add much, save to disagree. It was impossible for me to determine how much she was exaggerating, making mistakes or whether she was lying. I am not sure it much matters, unless perhaps it could be shown that her alleged dishonesty was the effect of the drugs as alleged. I do not think any such thing was established by Nicholas’s cross-examination.[161]Nicholas thought the claim against the Deceased as trustee of the WG Flanders Will Trust was never considered to be a real threat.[162]Andrew then asked a number of questions about the gifts that Nicholas had received:- i) In May 2004, the Deceased transferred her 8-week time share at Calahonda in Spain to Nicholas. The value at the time may have been between £16,000 and £20,000, but the value now is minimal due to the financial crisis in that country. ii) He had received £43,040 from the Deceased on 24th August 2006 to pay for her Volkswagen EOS car, and as a contribution to the car he bought at the same time. It was a recompense for all the time and effort Nicholas had put in to the Ray Flanders case. iii) Nicholas received no gifts from the Deceased in 2006. iv) In September 2007, £90,000 was transferred by the Deceased to Nicholas. £55,000 was treated as an interest-free loan to Nicholas in a document dated 1st March 2007. The documentation was signed quite a long time later on 23rd April 2007. The remaining £35,000 was put into a Sainsbury’s bank account in the Deceased’s name. The idea was to avoid the troubles at Northern Rock, and to take advantage of the Government’s deposit guarantee. v) The other sums paid over in 2007 were used by Nicholas to pay for purchases for the Deceased. vi) Nicholas denied receiving regular sums for himself from the Deceased in her later years.[163]Andrew asked a number of questions designed to show that the transfer of 25 and 29 Brewery Lane to Nicholas in January 2008 was occasioned suddenly because of David’s intimation of judicial separation proceedings against the Deceased. Nicholas denied this. It seemed to me that the evidence of Mr Cox contradicted what Andrew was suggesting. The transfer of the Brewery Lane properties to Nicholas had been in contemplation for some time prior to January 2008.[164]Nicholas said that David had stopped paying the Deceased in April 2008, so she had no income, and he had felt duty bound to assist her by paying her some £1,200 over 3 months to help with her living costs.[165]Andrew asked Nicholas also about the manuscript document of 31st August 2004 in the Deceased’s writing saying “threats to be made”. I did not form the view that the document evidenced any intention by Nicholas or the Deceased to threaten Andrew.[166]Nicholas was asked about the 15th January 2008 application form for care home funding from the RMBI. He did not think it was dishonest of her to say that she owned 25 and 29 Brewery Lane, even though she was to transfer them to Nicholas a few days later. I agree.[167]Nicholas said he had seen the postcard that David sent Andrew on 27th June 2003 saying that there would be no problem if Andrew proved that money was due from him to Andrew. That pre-dated Andrew’s October 2003 fax claiming some £88,000. Nicholas had become involved to help his parents deal with the claim and see whose alleged debts were whose. He had prepared various spread-sheets and attended a meeting at David’s house in April 2004 to go through the figures, but that was all he had done. He may have been involved later in 2006 or 2007, but he could not recall.[168]On 12th February 2007, Nicholas had had a meeting with the Deceased and his cousins at which they had signed a Deed of Release in return for payments of some £43,000 each. He denied misleading the cousins, or misleading Andrew into thinking he had bought out the Orchard. The Deceased investigated buying it but could not do so because of the self-dealing rules.[169]There was no connection between the various documents recording what had happened and the fact that on 21st July 2007, Andrew wrote to the Deceased “calling her to account as a trustee”.[170]Nicholas denied throughout being part of a plan to “block” Andrew from obtaining information or anything else, and he denied making life as difficult as possible for Andrew. He denied also that he wrote on 4th August 2007 notifying others that he was a signatory on the Deceased’s bank accounts, copied to Messrs Eyre and Cox, in order to regularise the 2 accounts as trust accounts, when they were never any such thing. Nicholas also did not know whether or why the Deceased had told Mr Cox on 19th April 2007 that an account at the Birmingham Midshires Building Society was hers rather than a trust account. Nicholas said it was a successor of a Chelsea Building Society account, which had always been a trust account. Nicholas had refused to show Andrew the bank statements for these accounts.[171]Nicholas accused Andrew of making 3 abusive and threatening calls to the Deceased after early 2007. He denied that the Deceased had been annoyed because Andrew was claiming the money back that she owed him, and denied that he had refused to receive letters and emails from Andrew, saying everything had to go through Mr Cox. He did not know if Mr Cox had been told to “sit on his hands”.[172]Nicholas denied poisoning the Deceased’s mind in July 2008 when she was in the nursing home. He had bought the Deceased a laptop on 8th January 2008. Nicholas did not think that the Deceased had said that his cousin, Grant (who had a criminal record) should put holes in the roof of a property to save her paying rates. If she had, it may have been a joke.[173]Nicholas was not the most impressive witness. But I think he was doing his best to tell the truth. It was obviously very stressful for him to be cross-examined on so many sore points by Andrew. Overall, however, I think Andrew wholly failed to show that Nicholas was dishonest or had sought to overbear his mother’s will. Rather, I gained the impression that Nicholas was something of a pawn in his mother’s hands. She was undoubtedly dominant, and Nicholas was, perhaps, not particularly good at standing up to her. But none of that goes anywhere towards supporting the kind of case being advanced by Andrew.[174]The Claimants also rely on the affidavit that the Deceased made in her ancillary relief proceedings on 28th October 2009, only 4 months before she died. The most relevant passages of that affidavit are as follows:- “8. During the marriage, David and I ran our own insurance broking business, Jeffery Flanders Limited, from 1962 until May 2000. At that stage we commenced the winding down of our business and the transfer of our clientele to Andrew’s business, JFL Consulting Limited. … 14. In February 2007, I paid the children of my twin brother Derek (Julie Bennett, Justin Flanders and Grant Flanders) the sum of £43,132 each from my own funds. The reason I did this is that I knew that my mother wanted the children to benefit from her estate. Due to the litigation with Raymond Flanders, I decided to use my own money to pay them as if the estate had been liquidated and distributed. … 22. I did fall out with Andrew in 2001 because I found out that clients did not have insurance cover despite paying their premiums. When I was living with my mother at The Orchard, long-standing clients were phoning me directly as they were so concerned. … 24. Andrew was charged in 2006 and indicted in 2007 for 34 counts of fraud. He was acquitted on all counts at a Crown Court trial that lasted 6 weeks. I understand that it was common ground between prosecution and defence that in relation to each count Andrew had accepted a payment for insurance and had not arranged the necessary insurance policy. What could not be proved beyond reasonable doubt was that Andrew had a fraudulent intention. Whilst I did not give evidence at the trial, I did speak to the police. David and I had built up the business over 40 years and I felt utter disbelief and extremely let down that Andrew would behave in this way. … 29. In May and June 2007 I received two threatening phone calls from Andrew in which he said that he would take all my assets and see me destitute if I attempted to remove him as a trustee of the Discretionary Trust. He also said that he had evidence that I had misused trust monies, an allegation that is wholly unfounded. I told Andrew that I had changed my will and left my half of Fairmile House to his children and not to him. David knew that Andrew had made these calls and told Nick and Nickie that Andrew had gone too far with his threats. … 32. It is obvious that our sons have become partisan within this litigation. However, Nick has been a tremendous support to me at a time when I have been physically unwell and under a great amount of stress. Nick has tried to remain on good terms with David. Andrew has fallen out with me, his brother, his daughter and his parents in law (against whom he is conducting litigation). I do not accept for one moment that his motivation in assisting his father with the litigation is because of a close relationship with David but only because of his greed and a need for revenge against me. It is my firm belief that Andrew has encouraged and driven his father in this litigation for his own ends. 33. In paragraph 11 of his statement, David raises the issue of the court proceedings against my brother Raymond. … In summary, nine properties were left by WG Flanders with two of them being sold in 1979 as they were virtually derelict. Four more were sold between May 1985 and October 1986 leaving the three that I inherited on my mother’s death. Suffice to say, without rehearsing that litigation that a compromise was reached on counsel’s advice. … 58. I have made the following dispositions to Nick:• The transfer of [25 and 29 Brewery Lane], effected on 21 January 2008.• A loan of £55,000 which is shown as an asset of mine and therefore accounted for.• The transfer of 8 shares (weeks) in the company Sandpiper Calahonda (a timeshare company) in 2004 (which I understand David does not want to pursue). 59. Peter Cox, a partner of Gardner Croft Solicitors, was instructed by me in relation to inheritance tax planning on 19 April 2007 over a year before David intimated Judicial Separation proceedings. At the date that I instructed Peter Cox, the relationship between David and I was perfectly amicable. As far as I was concerned, we had long divided our jointly held assets and 25 and 29 Brewery Lane had been inherited by me over five years after separation. Prior to Christmas 2007, I returned the undated transfers to Peter Cox and they were dated 21 January 2008 by him. I was notified on 22 February 2008 that the Land Registry titles had been updated for both properties to show Nick as the sole legal and beneficial owner. By gifting the properties to Nick, time would start running for the transfers to be considered as Potentially Exempt Transfers for inheritance tax purposes. However, it was and remains my wish that one of the properties will be transferred to Nick’s children when they attain the age of 25. I have already disclosed the letter of wishes and I believe that Nick will abide by it. In this way, I have left my share of Fairmile House to Andrew’s children when they are 25 and the Brewery Lane property to my other grandchildren. … 76. In hindsight, perhaps the accounts should have been in the trust names. However, the online Birmingham Midshires and Post Office accounts are clearly labelled as trust accounts. Insurance policies and the utilities are in the trust names. There is now shown to me marked “DEJ1pages 70-71” these documents. 77. I have never considered the trust properties as my own. It was my intervention that prevented further losses to the trusts and achieved a measure of redress for my brother Raymond’s actions. From 1996 I ensured that all the trust properties were used to support my mother as my father intended until her death in November 2002. I have a strong sense of personal responsibility to the beneficiaries. I was extremely close to my late mother and I have been committed to following her wishes. I believe that it is the right thing to remove Andrew as a trustee of the Discretionary Trust and appoint an alternative trustee. … “Physical or mental disability of either party 87. As stated, I have suffered in recent years with emphysema and pneumonia. There is now shown to me marked “DEJ1 pages 72-73” a letter dated 2 October 2009 from my Consultant Physician, Dr Rahman, which confirms my current state of health. 88. I use oxygen at all times in the flat and when I go out. I am able to move around my very small flat and I can cook my own meals. I have a network of friends and helpers and they allow me to maintain a certain level of independence. However, I am unable to leave my flat unaided and I always use my wheelchair. I have recently been discharged from hospital and I am likely to need far more care in order to be able to remain in my own home”.[175]The Deceased’s October 2009 affidavit is a lucid attempt to explain her point of view on a number of matters that have been raised and disputed by Andrew.

The Defendant’s factual evidence

[176]Andrew issued a witness summons against Dr Cecily Fahey (“Dr Fahey”). Dr Fahey applied to set aside the summons, but I refused her application on the basis that there were legitimate questions about the medical records for her to answer.[177]Dr Fahey did not make a witness statement, so most of her evidence was given in chief under examination by Andrew. She said that the Deceased was a temporary resident in 2000, and then a permanent resident from 2003, when she became a patient at the New Dover Road Surgery in Canterbury. The dates were from 2nd June 2000 to 22nd September 2000, and from 24th January 2003 to 25th June 2008.[178]In 2003, some practices were computerised and some not. Dr Fahey’s practice always makes a request for a new patient’s old notes, but they can take some time to arrive. Though the Deceased was nominally registered with Dr Fahey, patients in fact see whoever they want to see, and she only ever saw the Deceased once on 10th June 2004. Although much in the records is put down to Dr Fahey, she never prescribed anything for the Deceased. When she did see her, she recorded her low body mass index and her weight at 45 kilograms. That appears from the manuscript “Lloyd George” notes. Dr Fahey did not recall if the Deceased had a COPD diagnosis in January 2000, or whether she had been recommended for psychiatric treatment, and refused the rest of the appointments. Dr Fahey explained that the practice has 10,000 patients, and she has no recollection of the consultation at all.[179]Dr Fahey was asked about the spirometry results for the Deceased at St Richards Hospital on 3rd February 2000 diagnosing COPD. She said she could not tell whether that was the outcome, because the result could be caused by asthma, but it did show that the lung function was not normal. Smokers get CPOD – it used to be called emphysema. COPD would have been a priority if the practice had known about it. She could not say whether the Deceased was or was not coded as a priority.[180]The 6th August 2004 entry showed Dr Fahey’s name as a quirk on the system because it was a repeat prescription. She was in fact seen in August 2004 by Dr Fahey’s colleague. Only Dr Eaves saw her on 6th August 2004 according to the manuscript Lloyd George note.[181]Dr Fahey was asked about the 20th March 2007 entry in the Deceased’s “all medical history” recording “Lloyd George + problem summary Dr Cecily Fahey”. She said that that was the computerised note indicating just that someone had been through the physical notes in 2007. Nothing was added at all on that occasion. She was sure that that was what the code meant. It happened because her practice was still updating the system in 2007. The whole process started in 2005 with new patients and some others. Somebody got to the Deceased’s notes in 2007. There were about 2,000 patients with known chronic diseases, and their records were updated first as the priority.[182]Dr Fahey did not know if the Deceased was addicted to Clonazepam, but she was cautious about the use of the drug. It was a reasonable approach to try to wean her off it. The notes show that Dr Eaves saw the Deceased most often.[183]It was normal practice to issue repeat prescriptions without seeing the patient. But there was a clear protocol to review medication every 6 months.[184]Dr Fahey was a clear, professional and straightforward witness. I found her evidence about the workings of general practices generally and their medical records of particular assistance. I accept her evidence without reservation.[185]Andrew himself then gave evidence. His witness statement is effectively summarised above. In cross-examination, Andrew accepted that both he and his mother had, on occasions, written each other’s names on documents. He said that they were both quite happy to do this as “an expedience issue if there was some reason behind it”. He said that the Deceased had not had his authority to sign his name in 1999 in relation to a car, but he said that he had written her signature in February 2000 on an HSBC document, because she was ill and she did not object to his doing so. I formed the view that Andrew and his mother regarded it as quite normal to write each other’s names on documents when it suited them.[186]There was some cross-examination about what the Deceased had done in the business both before and after Andrew took over. His case was that his mother had never been an insurance broker, properly so-called, but had done book-keeping and the accounts and some other jobs in the business. Andrew said she had made glaring errors, and that, after May 2000, the Deceased had only made “an occasional visit” to the office to do some ad hoc work – the odd job. I do not accept that evidence. I think that, until their fall out in December 2001, the Deceased continued to attend the office far more regularly than Andrew was prepared to admit. I accept, however, that the fall out was over her signing a cheque to herself, and her asking him to countersign it, which he refused. I accept also that the Deceased pushed things off the table and stormed out in a temper slamming the door. As Andrew said, that row was the beginning of the end of his relationship with his mother. She had said, significantly perhaps, that he enjoyed having control over her. Though they met again about once a year after that, normal cordial relations were never resumed.[187]In relation to the litigation against Raymond Flanders, Andrew thought that the Deceased was wrong to reimburse herself for the costs without a Beddoe order. He did not think his mother would have spent money without “dotting i’s and crossing t’s”.[188]It was Andrew’s book-keeper that identified the problem of the missing monies, which opened up a can of worms. Initially, it was not an allegation of theft, but ultimately that was what he called it after David told Andrew that the Deceased did not care what she had taken, as she could have what she wanted. Andrew thought it was bizarre that she should change her will just because he had asked her to repay money. I am afraid I cannot agree. It seems to me, in the circumstances, quite reasonable for the Deceased to have wanted to change her will, bearing in mind the complete fall out with Andrew and the allegations he was making against her. It is quite impossible for me to decide whether she did or did not owe Andrew money. But I am quite satisfied that the Deceased was upset by the repeated allegation of theft being made against her.[189]Andrew explained, as I accept, how he did not know at the time in 2004 that his mother had changed her will. As he saw his exclusion from her wills, this was another example of the Deceased punishing her children for not doing what she wanted. Andrew accepted he had left his children with her when he went to France in 2006 to look for a place to live; but they were not young children at that time. He said he would not have done so had he known she was “on drugs”. Andrew said that everyone knew the Deceased as “mad Granny” or “mad Auntie Daphne”. But I don’t think these terms were used to signify more than her eccentricity. He described how he rescued her car from a ditch and how she raced the police up the M3. Although I suspect there is an element of exaggeration in these stories, I am sure she did do unusual things for a lady of her age. But that does not mean that she lacked capacity to make a will.[190]In relation to the instructions given for the 2007 Will on 19th April 2007, Andrew accepted frankly that he could not say whether Nicholas influenced the instructions, because he was not there. He says that the Deceased would have seen it as “slapping me around the legs”. He found out about the will having been changed when David had a row with her before the time of the judicial separation.[191]Andrew could not comment on the Deceased’s physical health in July 2007.[192]Andrew was asked about the RMBI form. He explained that David was very high up in the Masonic order, and he had told the Deceased not to say anything untrue on the form as his reputation was on the line. He accepted that what she had written about the Brewery Lane properties was true at the time she wrote it on 14th January 2008.[193]Andrew did think that Nicholas had taken control over his mother’s affairs. He accepted that the police had canned the investigation into the Deceased stealing monies after his complaint, and he had not pursued it ‘yet’ through civil courts.[194]Andrew also accepted that he could not express an opinion on the Deceased’s drugs, and that no doctor had ever thought that the Deceased suffered a lack of capacity from the medical records he had seen. Even Dr Eaves had said in December 2011 that he thought she had capacity until December 2007.[195]Andrew was asked about the Deceased’s refusal of psychiatric treatment in June 2001. He accepted that she had written to Dr Mott at that time asking for permission to use more drugs – though he did not believe that she ever wanted to come off them. But he said that it was “just fiction” for her to say that she had problems at the office.[196]In relation to the Deceased allegedly lying to get drugs, Andrew accepted that Dr Pickin did not think she had been lied to, but said that doctors don’t want to admit prescribing things they should not have done.[197]I do not think that Andrew set out to give false evidence. Indeed, I think he tried hard to answer the questions that were put to him truthfully. That led to him making a number of important concessions during his evidence. I think the problem rather is that Andrew’s feud with the Deceased, and now with his brother Nicholas, has made him completely blind to any points that do not fit in with his grand conspiracy theory. I have no doubt that Andrew genuinely believes that his family have conspired to ‘block’ him, to prevent him obtaining relevant documentation, and to stop him inheriting from the Deceased or benefiting under the family trusts. I have equally no doubt that Andrew genuinely believes that his mother had a chronic addiction to benzodiazepines, and that these drugs caused her to exclude him from her testamentary dispositions. Despite his undoubted intelligence, Andrew is somehow able to ignore or explain away any fact that does not fit in with his case theory. The same applies to his equally genuinely held opinion that his brother actively brought about these events. As will appear in due course, my own view is rather different. For the reasons I have sought to give, it has been hard to accept Andrew’s evidence at face value. But, as I say, insofar as he answered questions orally, I thought he was being broadly truthful. His statement and skeleton argument, on the other hand, are rather more exaggerated and unreliable.

Expert medical evidence

[198]Dr Jan Falkowski, BSc, MBBS, MRCPsych, MBA, TD (“Dr Falkowski”) is a consultant psychiatrist at the Royal London Hospital who was asked by the Claimants to look at the Deceased’s medical records and the witness statements with a view to forming a professional opinion on whether there was any indication from those records that the Deceased would have lacked mental capacity when she executed the 2007 Will.[199]His first report dated 1st November 2012 is thorough and detailed, and I have found it impressive and helpful. It appears that Dr Falkowski made a detailed review of the written evidence and considered the medical records in some detail. He was also able to consider the drugs that the Deceased was taking for stress-related disorders. He concluded at paragraphs 37-40 as follows:- “35. Although [the Deceased] has been prescribed antidepressants, including Escitalopram (cipralex) at times it is not clear whether she has suffered from a depressive illness ever. A PHQ-9 [on 11th December 2008], a measure used in general practice to identify possible cases of depression, records a score of 1. This suggests she clearly was not depressed at the time she completed the questionnaire. …37. On the information available in the medical records it appears [the Deceased] has only suffered from relatively mild mental health symptoms which have been predominantly of anxiety with some impact on her mood. They have generally been related to stressors, particularly around family problems. It is extremely unlikely that these symptoms would have had any impact on her mental capacity. Although she has been prescribed benzodiazepines for a considerable period of time, the dosage of the benzodiazepine she was prescribed would not have had any impact on her mental capacity. Antidepressants in the doses that Mrs Jeffery has been prescribed would not have had any impact on her mental capacity. The various medications she has been prescribed for her physical illness would also not have impacted on her mental capacity.38. Although [the Deceased] had severe physical health problems which resulted in her ultimate death and has had symptoms of anxiety, it is unlikely that either her mental or physical health problems or the treatments she had received for these disorders would have affected her mental function to any significant degree.39. The witness statements available suggest that although she was clearly becoming more severely physically unwell, they all portray a picture of a woman who had mental capacity. This is supported by descriptions of her being able to discuss and deal with issues relating to her estate and decisions she made about how to allocate members of her family items in her Will.40. There is no evidence to suggest that [the Deceased] suffered from any mental disorder, or was receiving any treatment that would have affected her soundness of mind. She would have been aware of her actions, the extent of her estate and the claims people might have on it”.[200]Dr Falkowski’s supplementary report dated 30th May 2013 refers to further correspondence including copies of general practice notes. He says that he has “examined the correspondence and my opinion is still that [the Deceased] had mental capacity”.[201]Dr Falkowski said in chief that he would probably not have tried to take the Deceased off benzodiazepines, because she was stable, elderly, and she obviously did not want to come off them. But he understood Dr Mott’s wish to wean her off them. From the records, Dr Falkowski did not think that the Deceased needed psychiatric treatment.[202]In cross-examination, he said that he was happy with the information that he had been provided to him. He was not concerned that there was no evidence as to the Deceased’s mental health at the precise time that she made the 5th July 2007 Will – it was “Rolls Royce practice” to assess the patient at the date they make the will. He was happy that the available information was sufficient to enable him to reach conclusions. He did not think a psychiatric report was necessary at the time of the 2007 Will.[203]When asked about COPD, Dr Falkowski said that elderly patients could become confused if they cannot get enough oxygen, but that is not generally the case. Whilst it was true that any chronic disease increases the risk of depression, sometimes giving a patient a label for their disorder can help them cope with it. The fact that she carried on smoking after the 2000 diagnosis until 2007 did not imply nonchalance about her future. Whilst thyroid disease can add to depression and mania, it does not necessarily do so.[204]When asked again about benzodiazepines, he accepted that they were a well-known problem, but he still thought it would have been a reasonable decision to leave the Deceased on them. A risk benefit analysis needs to be undertaken, but general practitioners don’t always have the time to make detailed notes. He accepted that the combination of benzodiazepines and Escitalopram may interact in a number of sometimes complex ways. The two amplify the doses because of breaking them down in the liver. Dr Falkowski also agreed that metabolism means that a smaller person needs less. But he thought it was debateable whether Escitalopram had a weight-loss side effect. He did not think that the combination of age and the Deceased being under-weight was a risk sign.[205]Whilst Dr Falkowski had not known that Dr Mott of the Arundel Practice, who had treated the Deceased between 1997 and 2002, had expressed the view on 6th January 2012 that the medical notes were not sufficient to assess her mental capacity, he thought that was a reasonable response from a general practitioner, and did not mean that someone else could not express a valid opinion. Dr Falkowski did not think that he should have spoken to Dr Mott before writing his report.[206]Dr Falkowski was asked about the Deceased’s erratic behaviour including a head-on car crash. He did not think that that would have alerted him to a problem. People on benzodiazepines for a long period get used to them, and, whilst there may be subtle behavioural changes, there is a big difference between practical effects and theoretical effects. Higher doses are generally needed for effects like stealing. The fact that Dr Eaves described the Deceased as a nervous panicky person merely made anxiety part of her personality. Dr Falkowski thought that many successful business people are highly anxious. He had seen that the Deceased had said in September 2008 that she had said she needed benzodiazepines as her “son had been done for embezzlement”. Dr Falkowski would not have thought that that was a mis-statement occasioned by the drugs she was taking.[207]Dr Falkowski thought that even if the medical records were somewhat incomplete, they would have recorded the prescribing. I found Dr Falkowski a balanced, independent and an impressive expert witness, and I accept his evidence without reservation.

The effect of the Deceased’s divorce on the 2007 Will

[208]It is relevant to note, because the Deceased was divorced shortly before her death, that under the Administration of Justice Act 1982 and the Law Reform (Succession) Act 1995, the provisions in a will leaving a demise or bequest to a former spouse will take effect as if the former spouse had died on the date of dissolution of the marriage, save insofar as the will shows a contrary intention.

The law on capacity

[209]In Banks v. Goodfellow (1870) LR 5 QB 549 at page 565 Cockburn CJ said:- “…that a testator shall understand that 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 mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities – 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”.[210]More recent cases have modernised these formulations so as to be clear that a competent testator must be able to understand the effect of his wishes being carried out at his death, the extent of the property of which he is disposing, and the nature of the claims upon him.[211]In Hoff v. Atherton [2004] EWCA Civ 1554, Peter Gibson LJ (with whom Chadwick LJ and Lindsay J agreed) said this at paragraphs 33-4:- “33. It is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as he may have been given) to understand the nature and effect of that particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffman J.). To make a valid Will the law requires what is always referred to as testamentary capacity and, as a separate requirement, knowledge and approval. The latter requires proof of actual knowledge and approval of the contents of the Will. The two requirements should not be conflated. The former requires proof of the capacity to understand certain important matters relating to the Will. What those matters are were stated by Cockburn C.J. in Banks v Goodfellow [supra] … 34. Mrs. Talbot Rice fastens on the words “shall understand” and elevates that to a rule that actual understanding must be proved in every case of doubtful capacity. But in my judgment that is an over-literal approach to a judicial statement and one which ignores the subsequent words “shall be able to comprehend and appreciate”. Further, it ignores other statements in the same judgment, such as the approval given at p. 557 to the words of Lord Kenyon in charging the jury in Greenwood v Greenwood 3 Curt App xxx:
“If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.”
See also the similar statements in Stevens v Vancleve 4 Washington at p. 267 (“was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty?”) and in Harwood v Baker 4 Moo. PC 282 at p. 291 (“a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others”), those statements being cited with approval by Cockburn CJ at pp. 568 and 569 respectively. If there is evidence of actual understanding, then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity. Such evidence may relate to the execution of the Will but it may also relate to prior or subsequent events. It would be absurd for the law to insist in every case on proof of actual understanding at the time of execution”.[212]As to the proof of capacity, HH Judge Norris QC (as he then was) summarised the current law as to the proof of capacity in Ledger v. Wootton [2007] EWHC 2599 (Ch) as follows:- “5. The principles of law which underlie my approach to the question of capacity may be stated as follows:-(a) The burden is on the propounder of the Will to establish capacity;(b) This remains the case even if the propounder has already obtained a grant in common form: see Halsbury’s Laws of England (4th ed) Vol 17(2) paragraph 269 n.6;(c) Where a Will is duly executed and appears rational on its face, then the Court will presume capacity;(d) An evidential burden then lies on the objector to raise a real doubt about capacity;(e) Once a real doubt arises there is a positive burden on the propounder to establish capacity; …”.

The law on knowledge and approval

[213]In Gill v. Woodall [2011] Ch 380, Lord Neuberger MR suggested a new approach to want of knowledge and approval paragraphs 21-22:- “the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in In re Crerar (unreported) but see (1956) 106 LJ 694 , 695, cited and followed by Latey J in In re Morris, decd [1971] P 62 namely that the court should “consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption”.

The law on undue influence

[214]It is well known that it is extremely difficult to establish that a will is invalidated by undue influence. Williams Mortimer and Sunnucks on Executors, Administrators and Probate 2013 says the following at paragraphs 13-52 and 13-56:- “A court will not admit a will to probate if its execution is shown to have been procured by actual undue influence. It is necessary to prove that the propounder of the will so overbore the testator’s will as to induce him to make a will where he would not otherwise have done so. It is not enough to infer that the propounder may have made appeals to the testator to make provision for her; the distinction is between legitimate persuasion and illegitimate coercion. For a discussion of the case law and a restatement of these principles, see Hubbard v Scott. Speaking of undue influence in his charge to the jury in Wingrove v Wingrove Sir James Hannen said:
“To be undue influence in the eye of the law there must be – to sum it up in one word – coercion. It must not be a case in which a person has been induced, by means such as I have suggested to you, to come to a conclusion that he will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he does not desire to do, that it is undue influence.”
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him, may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence” Thus, undue influence is not bad influence but coercion. Persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. Appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution or the like may fairly be pressed on the testator. The testator may be led but not driven and his will must be the offspring of his own volition, not the record of someone else’s. There is no undue influence unless the testator if he could speak his wishes would say, “this is not my wish but I must do it”. Although force and coercion are sometimes pleaded as such, they are really only alternative pleas for that of undue influence. There is no reason why there should not be economic coercion or duress in probate law, as in contract. In some cases it has been held that undue influence may be exercised by fraud, but this view has not received acceptance”. “While the overall burden of proving a will lies on those who propound it, such burden is in general discharged by showing that the will was duly executed and that the testator had testamentary capacity. On these matters being shown, those alleging undue influence must prove it. As already stated, undue influence cannot be presumed. It is not sufficient to show that the circumstances attending the execution are consistent with it having been procured by undue influence. It must be shown that they are inconsistent with any other hypothesis. Nevertheless, in many cases in which the court has not been satisfied that there was undue influence, and even in cases where undue influence has been positively disproved, the court has pronounced against the will propounded. The court in those cases has refused to pronounce for the will, because circumstances have excited its suspicion and vigilance and it has not been satisfied as to knowledge and approval”.

The law on replacing executors

[215]Section 116(1) of the Senior Courts Act 1981 provides that: “[i]f by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it think expedient”.[216]Williams Mortimer and Sunnucks supra expresses the view at paragraph 26-04 that:- i) The court must consider two questions viz:- a) Whether there are special circumstances which might justify passing over that person, and b) Whether it is necessary and expedient by reason of those special circumstances for that person to be passed over. ii) The special circumstances need not be circumstances connected with the estate or its administration but can extend to any relevant circumstances. iii) It is only in the most extreme cases that the court will exercise its power to override the deceased’s choice of executor.

Discussion

[217]Before turning to deal with the 5 specific issues that I have to determine (capacity, undue influence, knowledge and approval, ancillary fraud and unfitness of the executors), it is useful to consider the evidence in the round.[218]I tried hard in closing to understand the precise nature of Andrew’s case insofar as it had been masked by the length of his written documents, which I have tried to summarise above. Andrew’s allegations and complaints are something of a movable feast. But there does seem to be a theme that runs through them that is worth trying to pin down. The theme is perhaps best summarised in the opening paragraphs of Andrew’s skeleton argument as follows:- “[The Deceased] was forced into “directing” in her 2004 and 2007 wills, almost all her assets to [Nicholas] because of the real and continuing risk that [Nicholas] would use and reveal the information and evidence he had of her £900,000 trustee liabilities to the Flanders family as beneficiaries which would “wipe out” all her assets, during her lifetime. … From November 2002 when [Edith Flanders] died, [Nicholas] embarked on taking over [the Deceased’s] affairs and to such an extent he took over administering her bank accounts, becoming a signatory and specifically moving money and paying himself from her accounts and also paying himself monies of the Flanders Family Trusts, as their accounts were also and incorrectly in her sole name. It is from this point that [Nicholas] took steps to build a wall of obstruction to the vulnerability of all of [the Deceased’s] assets to the Flanders Trusts and the way [the Deceased] had incorrectly managed them. It is clear that from January 2003 [the Deceased’s] vulnerable position in [Nicholas’s] eyes was clear. [The Deceased] was totally dependent on him “keeping quiet” about her trustee failings and the disastrous financial implications that she would otherwise be facing during her lifetime”.[219]In my judgment, this whole edifice is built upon the sad fact that Andrew cannot, even today, bring himself to believe that the Deceased disinherited him of her own volition. He has, in his mind, invested Nicholas with gargantuan powers of influence and coercion over his mother, when the truth, I regret to say, is more pedestrian. Nicholas, as Andrew virtually accepted in closing, was, like Andrew himself, just one of the two children that his mother liked to control. They were both “still in short trousers” and worthy of a “slap across the legs” even when well into their 40s.[220]I hope that the parties will forgive my saying so, but it was obvious to me from hearing both brothers give evidence that Andrew was the intellectually sharper. Perhaps he was more like his all too dominant mother than Nicholas. I can only speculate at this stage. But his intelligence was probably the reason he was initially preferred by being taken into the business.[221]It was the Flanders family’s way to divide their assets between those children that received the business and those that received properties instead. All that had happened when Mr William Flanders had passed his successful post-war heating and ventilation business (with 75 staff) over to Raymond Flanders (and perhaps Derek Flanders as well before he died in 1987). The Deceased was to receive properties instead. History was repeating itself when the Deceased passed over the business to Andrew and properties to Nicholas.[222]For whatever reasons, and I have not heard evidence about it, Andrew got into trouble when he was left to run an insurance broking business himself. I do not know, but this may have reflected what happened to his uncle, Raymond Flanders, when he was left to run his father’s heating business. Certainly Raymond Flanders ended up pretty well penniless when his father had been a wealthy man.[223]If I may be permitted one more comment on the characters of the parties, Andrew is obviously not a man who likes to accept the blame for failure. He appears in the Upper Tribunal proceedings to have blamed others for the problems that occurred, just as he has done in these proceedings. Here, he has heaped all the blame on Nicholas. I regret to have to say that I have concluded, after deep consideration, that he has done so quite unfairly.[224]The blame for Andrew’s exclusion from his mother’s bounty, if anyone is to be blamed, can, in my judgment, only be levelled at the Deceased herself. I will deal with the details in a little more depth in due course, but I have no doubt whatever that, at all times up to her death, frail or not, the Deceased knew precisely what she was doing where money was concerned. She did not need Nicholas, save as a scribe or computer operative. There is no evidence that she sought or accepted much of his advice. Rather the position was quite the reverse. Insofar as she needed mechanical assistance to create spreadsheets, type letters, or instruct solicitors, she told Nicholas what she wanted done (after, of course, she fell out with Andrew). I do not suppose for one moment that Nicholas would have dared cross her, nor that he would have taken one decision on his own without her complete agreement. I hope he will not mind my saying so, but Nicholas is no puppet-master and no master plotter, as Andrew would suggest. If there was such a character in this family, it was the Deceased herself.[225]Andrew’s central complaint is that Nicholas somehow manipulated the trust litigation against Raymond Flanders for his own ends, and that this was a clever plan to exclude Andrew from the Deceased’s will and to enhance the value of the Deceased’s estate to his benefit. It was no such thing. Indeed it was not much to do with Nicholas. The litigation was the Deceased’s project, and insofar as Andrew was excluded from it (which it appears he pretty much was) that was at the Deceased’s behest.[226]All these findings are amply supported by the evidence I received from the Deceased’s solicitors and doctors. Not one of them suggested, even under Andrew’s most competent cross-examination, that Nicholas had any influence of any kind over the Deceased, and I do not think that he did. The Deceased was used to getting her own way. The evidence I have heard, as Andrew himself submitted, suggests that the Deceased was a manipulative person.[227]It has been a feature of this case that Andrew picks out of a long story or a series of innocuous events, one fact or issue that he condemns as “lies” “complete fabrication” or just plain rubbish. He then proceeds to contend that the whole of the document or record is falsified by that one inaccuracy. It was instructive that he did this when seeking to demolish the 106-page decision of the Upper Tribunal released only during the retrial. The point he chose from that decision was that the Upper Tribunal had made the “whopping error” of thinking that he (Andrew) had avoided receiving his postal deliveries when he went to France, when in fact his post had at all times been regularly redirected to him in France as one would expect. Andrew did not say that the Upper Tribunal was wrong to find that he lacked integrity, that he was not a fit and proper person or any of the other findings it made, but he tried to imply that the decision was worthless because of the “error” about the post.[228]In this case, Andrew has repeatedly picked out small points from the history of his stormy relationship with the Deceased to accuse her of fraud, forgery, lies or deceit. It was hard to reach any conclusion on many of these minutiae. Insofar as the allegations were levelled at the Deceased, she was not in court to defend herself. Insofar as they were levelled at Nicholas, there was always inadequate notice and a lack of documents making the truth hard to discern. I am quite sure, however, that not one of these small allegations of forged signatures, allegedly threatening conduct or petty dishonesty was relevant in any way to what I have to decide. If there were threats to be made, they were made by Andrew to his mother as she reported in her affidavit to the Principal Registry. I do not accept that Nicholas ever threatened Andrew. The Deceased may have done, but that has nothing much to do with her capacity or the other issues affecting the 2007 Will.[229]These minutiae have much extended the retrial. On examination, each of them turned out to amount to little or nothing. I take as examples, the forms on which the Deceased is said to have lied – in 1999 as to not taking prescription drugs, and in 2008 as to owning 25 and 29 Brewery Lane. As to the latter, what she said on the form was true and anyway to her disadvantage; as to the former, she should have said she was taking drugs, but I have no way of knowing now why she did not – she may very probably have simply been mistaken.[230]It is against this background that I turn to decide the issues relating to the 2007 Will that Andrew has raised.

Issue 1: Capacity

[231]The medical evidence before me was not much in doubt. At the time that she made the 2007 Will, the Deceased had been taking low (or at most low to moderate) doses of benzodiazepines for many years. She had also been taking an anti-depressant called Escitalopram since at least 2004. Some 2 months before the 2007 Will, on 14th May 2007, Dr Eaves’s note records that he had tried halving her dosage of Clonazepam.[232]There was, in my judgment, no evidence to support Andrew’s theory that the Deceased had lied to obtain larger quantities of benzodiazepines, nor to support his contention that she had displayed erratic behaviour caused by taking a “cocktail” of dangerous prescription drugs. I accept Dr Falkowski’s evidence that none of the medications she was taking would have had any impact on her mental capacity (see paragraph 37 of his report set out above).[233]Andrew reserved special attention for the conduct of Mr Cox in taking instructions for the 2007 Will in the presence of Nicholas, and in failing to undertake any mental capacity testing of the Deceased. I find these criticisms to have been unfair and inappropriate. I accept Mr Cox’s evidence that the Deceased gave him no cause for concern as to her capacity. I accept that he had no reason to be suspicious about her health, and that there were no signs of distress or physical disability on either the 19th April 2007 or the 5th July 2007. Mr Cox behaved perfectly properly in taking instructions with Nicholas present and then going through the draft will with the Deceased alone, summarising each of the clauses to her and satisfying himself that she properly understood them.[234]The evidence as to the Deceased’s mental capacity in July 2007 was also supported by the evidence of Mr Eyre, who spoke to the Deceased on the telephone at the relevant time, and by the evidence of Nicholas and Nicola. I also found Dr Eaves’ letter of 3rd December 2011 to be compelling support for the live evidence I heard. He treated the Deceased regularly at the relevant time, and his view was that, although she was “a rather anxious nervous sort”, up to November 2007 her illnesses would not have “sufficiently affected her mental judgment to so prejudice her ability to make a Will”.[235]Overall, I was completely satisfied on the evidence I heard about the Deceased’s mental state before the date of the 2007 Will, at the time of the 2007 Will, and after she had made the 2007 Will in 2008 and 2009, that the Deceased was in a fit mental state to make a will in 2007. I was particularly impressed by Mrs Owens’s clear recollections of the Deceased, demonstrating to me that she retained her mental capacity long after she made the 2007 Will.[236]Applying the tests in Banks v. Goodfellowsupra as explained in subsequent cases, I have no doubt on the evidence that the Deceased fully understood on 5th July 2007 that she was making a will, the extent of her property, and the claims on her property to which she ought to give effect. She was suffering from no mental illness or infirmity which affected her ability to understand these matters and give full and proper effect to them. In short, the Claimants have in my judgment proven that the Deceased had full mental capacity to make the 2007 Will. Andrew has failed to adduce any evidence that raised any real doubt about the Deceased’s capacity.[237]As I said in the Judgment, there is no evidence of any kind which comes close to establishing that the Deceased lacked full capacity to make the Will in 2007. The evidence of the solicitors, barristers, and doctors, and of the family members all pointed in one direction. Though Andrew only saw the Deceased about once a year at the time she made the 2007 Will, he was unable to suggest that she lacked capacity, save by pointing to the drugs she was taking and isolated instances of eccentric behaviour years before. None of these matters gives me any cause to doubt that the Deceased did indeed have full capacity to make the 2007 Will.

Issue 2: Undue influence

[238]As I have said, and as the extract from Williams Mortimer and Sunnucks that I have set out above makes clear, it is very hard to show that a will has been procured by actual undue influence. It would be necessary for Andrew to prove that Nicholas “so overbore the [Deceased’s] will as to induce [her] to make a will where [she] would not otherwise have done so”. There is a need to show illegitimate coercion. It is to be particularly noted that persuasion and advice do not amount to undue influence so long as the free volition of the testator to accept or reject them is not invaded. The testator has to be shown, in effect, to have reached a position where she might have said or thought:
“this is not my wish but I must do it”
. The facts must be inconsistent with any other hypothesis.[239]I have already explained why I have formed the view that Nicholas did not influence his mother, let alone unduly. It is perhaps useful to make specific findings on the main allegations raised by Andrew. I shall follow the order of the chronological summary of his case that I set out above:- i) It is true that the Deceased took benzodiazepines from the mid-1980s. She was probably addicted to them, but there is no evidence that they had a significant adverse effect on her mental state or her behaviour. ii) I do not accept that Andrew has proved that the business he joined in 1985 was insolvent. It appears to have provided for him and his parents, at least until May 2000, when Andrew took it over. The ‘take over’ was effected by Andrew starting his own company, JFLCL, but I have no doubt that many of the clients of the old business went across to JFLCL. It is of no consequence whether this was a “handing over” of the business or not. From May 2000 to December 2001, the deceased worked often, though not full time, with Andrew at JFLCL. For the reasons I have already explained, they did not have an entirely harmonious relationship after control passed to Andrew. The Deceased resented Andrew having any control over her. iii) It is very likely that the Deceased was suffering from COPD by 2000, albeit that she does not appear to have been formally diagnosed until much later. Once again, this is a matter of little importance. As Dr Falkowski explained to me, diagnosis of an acute condition can sometimes provide the patient with comfort, rather than anxiety. She would have known all through the 2000s that she had ‘emphysema’, the old term for COPD with which, I expect, she would have been equally familiar. iv) The row on the 21st December 2001 plainly marked the beginning of the end for Andrew’s relationship with his mother. I am sure that Andrew genuinely believed that she was attempting to take money from the business. I am equally sure that the Deceased thought she was entitled to it. I cannot now adjudicate as to where the balance of the account lay. There seem to have been genuine cases on each side to argue that David and the Deceased owed Andrew money arising from the take over of the business and vice versa. As a result of the fall out, Andrew quickly moved to alleging theft against the Deceased. That was a provocative and, I think, wholly unnecessary escalation of their disagreement. Nicholas tried to sort out who owed what to whom, but merely got caught in the cross-fire. v) During 2002, the Deceased was uncertain how her relationship with Andrew would turn out. She made her 2002 Will, leaving Andrew as a beneficiary, but the relationship quickly deteriorated thereafter as Andrew’s claims against the Deceased continued to rile her. Where the Deceased had previously relied on Andrew to do some of what she wanted done in relation to finances and the trusts, she quickly transferred her attentions and, no doubt, demands to Nicholas. This was not any attempt by Nicholas to influence or coerce the Deceased. It was merely the natural result of the rapidly developing hostility between Andrew and the Deceased. vi) Nicholas helped the Deceased with her personal assets, her bank accounts, and the EH Flanders 1995 Discretionary Trust, the WG Flanders Will Trust and the Edith Flanders Will Trust, and with the trusts’ bank accounts. But the Deceased remained firmly in control as the decision-maker. vii) I do not accept that trust assets worth some £645,000 or any other sum were illegitimately transferred to the Deceased by the forgery of Andrew’s signature or otherwise. I have not had adequate evidence to determine matters relating to the trusts and I do not intend to do so. viii) It is true that Andrew was broadly excluded from day to day involvement in the litigation against Raymond Flanders. It is not clear precisely how much was being claimed, but I broadly accept Nicholas’s evidence that it only amounted to £900,000 including interest and inflation adjustments. Either way, I have no reason to suppose that Andrew did not agree to the ultimate settlement, though the point is of little relevance to the issues before me. ix) When, on 9th August 2004, the Deceased changed her will for the first time to exclude Andrew, she did so of her own free will and volition. By this time, Andrew had accused her of theft, and they were not regularly speaking or meeting. Nicholas had, in my judgment, no influence on her decision making. As Ms Wallace made clear, the Deceased was very certain of her wish to change the will in the way she did. She listened to professional advice but had decided to cut Andrew out and replace him by his children. She was giving effect to the traditional family approach of giving one child’s family (Nicholas) more of the properties, so as to make up for having given the business to the other (Andrew). x) I have no reason to think that there was anything improper, as alleged by Andrew, in the deal agreed with Andrew’s 3 cousins in February 2007. Again, however, this was very much the Deceased’s decision. xi) I have already made my findings about the circumstances of the creation of the 2007 Will. Mr Cox behaved impeccably, and the 2007 Will was anyway a reiteration of the 2004 Will, since relations between the deceased and Andrew had not improved. By that time, the Deceased had discovered about Andrew’s arrest and the criminal charges he was facing. These matters must, quite naturally, have confirmed her wish to exclude Andrew from her benevolence. Nicholas did not influence his mother to make the 2007 Will. His provision of the letter of wishes was simply an administrative task at the behest of the Deceased. xii) I find that there is no evidence that the Deceased acted dishonestly in any of the particulars alleged by Andrew. She may have made mistakes in filling out forms, and she may have behaved in a manipulative fashion, but that did not affect either her capacity to make wills or her free will in doing so. xiii) The gifts that the Deceased made to Nicholas of 25 and 29 Brewery Lane in January 2008 and of various monies at different times were voluntary dispositions unaffected by any improper influence from Nicholas. The Deceased took tax advice and fully understood what she was doing. Again she was giving effect to her family plan and seeking, perhaps rather too late in the day, to save Inheritance Tax.[240]I concluded on the basis of written evidence in the Judgment that, having reviewed all the evidence then before the court, there was not one shred of evidence that the 2007 Will was procured by the undue influence of Nicholas or any other person. Having seen all those witnesses cross-examined, I conclude once again that the evidence is entirely consistent with the Deceased wishing to make the 2007 Will for good, sound, sensible, prudent reasons, and then making that 2007 Will with advice from solicitors and in the usual way. The 2007 Will was unaffected by undue influence from Nicholas or any other person.

Issue 3: Knowledge and approval

[241]It is obvious from what I have already said that I am entirely satisfied that the Deceased knew and approved of the contents of her 2007 Will. Mr Cox properly explained all the clauses of the Will to her; she understood what he was saying, and was fully aware of the nature and effect of her actions. I have had in mind Lord Neuberger MR’s dictum in Gill v. Woodallsupra in reaching these conclusions.[242]Looking at the matter from the point of view of the law as reflected in Barry v. Butlin (1838) 2 Moo PC 480, I find, as I did in the Judgment, that there are no circumstances that have been proved before me which excite the suspicion or vigilance of the court and alert the court to thinking that the 2007 Will has been procured in any inappropriate way. The Deceased clearly knew and approved of the contents of the 2007 Will.

Issue 4: Extrinsic fraud

[243]I wholly reject the allegation that the 2007 Will is affected by any extrinsic fraud, whether by Nicholas or any other person. No such fraud has been made out on the evidence I have heard.

Issue 5: Replacement of the executors

[244]Andrew has repeatedly suggested that Nicholas (or perhaps Nicholas and Mr Eyre) should anyway be replaced as executors. I reject these contentions. There are, in my judgment, no special circumstances that make it necessary or expedient to replace either Nicholas or Mr Eyre. Mr Eyre is a distinguished independent executor, who has behaved entirely properly and appropriately throughout this difficult case. Nicholas has been placed in a difficult position by his brother’s malign allegations. None has been proved, and there is, therefore, no reason not to give effect to the Deceased’s freely expressed wish that Nicholas should be one of her two personal representatives.[245]In the light of the conclusions I have reached, I have no need to consider formally the validity of the 1982, 2002 and 2004 Wills and their associated codicils and letters of wishes. Had I had to do so, I would have concluded that the Deceased had capacity to make each of these instruments, knew and approved of their contents and they were unaffected by undue influence or fraud.

Conclusions

[246]I said in my conclusion to the Judgment that this was “a simple and clear case”. Now it has been contested over 4 full days in court, I must revise that statement. This is a clear case, but Andrew has succeeded in making what was obvious and simple look apparently complex. It was and is not complex. The deceased obviously had capacity to make her wills. She never suffered from any mentally incapacitating complaint, even if she did experience occasional anxiety and mild depression. If people suffering from such complaints were unable to make wills, a large percentage of the population would be so inhibited.[247]The allegation of lack of capacity was, as I said in the Judgment, wholly unsubstantiated.[248]For the reasons I have given, the allegations of undue influence and coercion against Nicholas were simply false and wholly unsupported by any evidence. I again reject them completely. The 2007 Will was regularly executed under sound legal advice, and the Deceased plainly and obviously, on the evidence, know of and approved its contents.[249]The 2007 Will is, therefore, in my judgment, valid, and I shall pronounce in solemn form in favour of it. I shall direct that the Claimants be at liberty to take the grant of probate.[250]I shall hear the parties as to costs and any ancillary matters.