“Our clients are not taking any active part in these proceedings and, accordingly, they do not intend to attend or be represented at the hearing of the trial itself. We have nevertheless instructed Mr Jonathan Allcock of Maitland Chambers to attend briefly at the start of the hearing on Monday, both as a courtesy to the court and to enable arrangements to be made for our clients to be informed of the outcome of the dispute so that they might have the opportunity to make representations about consequential orders and directions.”
“We act for Bruce Peskin in relation to the above claim and have assisted him in the provision of his witness statements which are being included in the claimant’s disclosure. We write to confirm that Mr Peskin will be in London for the duration of the trial. He remains available and willing to give evidence of the same and assist the court in its deliberations. For ease of reference copies of Mr Peskin’s witness statements are enclosed.”
“33. The first and second defendants contend that the execution of the 2008 will was obtained by the undue influence of the eighth defendant [that is Mr Peskin]. 34. The deceased is the stepmother of the first and second defendant. She married the late Brian Taylor on5 July 1966 when the first defendant was 11 years old and the second defendant was 9 years old. During the remainder of the childhood of the first and second defendants they spent every other weekend and shared holidays with the deceased, who was a second mother to them for the rest of her life. 35. After about 2005, there was very little contact between the deceased and her sister’s family, including the fifth to eighth defendants when, during the period between about 2005 and the death of Brian Taylor on18 October 2008 , some 38 days before the deceased gave the first claimant instructions to prepare the 2008 will, the first defendant inquired after the fifth to seventh defendants. The deceased almost invariably indicated that they had not been in contact. 36. In her will dated29 July 1999 the deceased altered her previous will dated29 September 1988 in which she bequeathed 50 per cent of her residuary estate to her sister and her brother in order to leave her entire residuary estate to the first and second defendants. 37. The first and second defendants remained close to the deceased at all times until her death, the first defendant seeing her often and providing practical and emotional support to both her and to Brian Taylor. The first defendant continued to telephone the deceased regularly and to support her after the death of the deceased’s husband. The claimants and the fifth to eighth defendants have no reason to be aware of the relationship between the first and second defendants and the deceased. 38. The deceased and her husband visited Penny Peskin, sister of the deceased, and the husband of the eighth defendant, until a few years before they died. They ceased to do so after the eighth defendant sought repeatedly, by the exertion of pressure because of his bad financial situation, to obtain financial assistance from Brian Taylor in relation to a property development and sale. As a result of this pressure, the deceased made the 2005 will in which she removed the eighth defendant as executor. The deceased’s physical and mental health deteriorated significantly during 2008 when she became increasingly frail. 39.1. In May to June 2008 before the death of Brian Taylor, she spent some time in a nursing home following the fracture of both hips and a subsequent hip replacement operation. 39.2. At around the time of Brian Taylor’s death she was suffering from cirrhosis and jaundice. 39.3. For some time before the death of Brian Taylor, she was largely dependent upon him for her care needs. 39.4. She was becoming increasingly unhappy with her physical condition and increasingly unable to cope with it. 39.5. In the week leading up to the giving of instructions for the 2008 will on25 November 2008 , the deceased suffered acute muscular-skeletal chest pain and nausea and ongoing pain in her right thigh. 40. On the evening of the death of Brian Taylor on18 October 2008 , the first defendant took the deceased home. In the course of conversation that evening she represented to the first defendant and his wife that she had inherited her husband’s estate and that her estate would be left in equal shares to the first and second defendants. She repeated this representation to the first defendant at the funeral of Brian Taylor. 41. Further, following the death of Brian Taylor the deceased was, in the period between the death of her husband and the execution of the 2008 will, physically and emotionally very frail, indicating on occasion that she no longer saw any purpose in continuing to live. She was accordingly particularly susceptible to pressure in this period and unable to cope with the pressure applied to her by the eighth defendant, as set out below. Between the date of death of Brian Taylor on18 October 2008 and the date of the execution of the 2008 will, the eighth defendant unduly influenced the deceased to make a will in which his children were the principal beneficiaries. He did so by: 42.1. Repeatedly telephoning the deceased in order to persuade her to make substantial provision for his children in her will and thus disinherit her stepsons. 42.2. Persisting in the said course of conduct, notwithstanding her fragile mental state and her evident vulnerability. 42.3. Procuring that the second claimant, who was his former family solicitor and who acted for the fifth defendant in her divorce from her first husband, was present on25 November 2008 when the first claimant attended the deceased’s house in order to take instructions for the 2008 will, such that the deceased felt compelled to comply with the eighth defendant’s requests. 43. The deceased complained to the first defendant and to the third defendant during the period between the death of Brian Taylor and the execution of the 2008 will that: 43.1. she did not know what to do about her will; 43.2. that the eighth defendant had been telephoning her and pressurising her to make provision for his children in her will and that she believed that he was in financial difficulty.”
“141. Lewison J did not refer to the authorities which supported his summary of the legal principles. I was specifically referred to Craig v Lamoureux[1920] AC 349 and Hall v Hall [1868] LR 1 P&D 481 which plainly provide the source, for some parts at least, of that summary. In particular, the former of these two cases is the source of the statement circumstances must be ‘inconsistent with a contrary hypothesis’, that is, a hypothesis other than the exercise of undue influence, see[1920] AC 349 at 357. In the present case, where I have considerable evidence as to the circumstances in which the disputed will was prepared and executed, I think that it is more appropriate for me to simply ask whether the party asserting undue influence has satisfied me to the requisite standard that the will was executed as a result of undue influence. The requisite standard is proof on the balance of probabilities but, as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator’s will has been overborne by coercion rather than there being some other explanation: see how the matter was put by Rimer J in Carapeto v Good[2002] EWHC 640 (Ch) at [124] – [125]. This last case also makes clear that a finding of undue influence can be made by a court drawing inferences from all the circumstances, even in the absence of direct evidence of undue influence: see at [126].”
“I can confirm that Mrs Taylor has endured a difficult year 2008. She had in the space of four months fractured both hips on separate occasions. Her rehabilitation following the fractures was slow. Her husband passed away in October 2008 and her general health was deteriorating due to the inevitable progress of primary biliary cirrhosis.”
“Attending Mrs Taylor. When I called to see her at home, she was somewhat frail and it transpired that, while she does have a liver problem, she had had two hip replacements and was not feeling very good. She wanted me to check exactly what her existing will said and I went through it with her. Present at this time was her friend/secretary/PA, Lucy. As we were going through the will, a Derek Randall arrived. It turned out that Derek Randall was a retired solicitor who had acted for Marlene Taylor’s family for many years and she had asked him to call in to help with the terms of the new will.”
“The deceased made it clear to me that a decision to remove David and Paul Taylor from her will was based on a number of factors: firstly, neither David nor Paul regularly visited her or her husband and, secondly, neither David nor Paul did much in the way of helping the deceased or her husband. Finally, the deceased did not consider that David or Paul should receive anything from her estate on the basis that the money contained therein had come from her side of the family.”
“The background is that Brian has two sons, David and Paul, from a previous marriage, who were not very close to them. They saw very little of them and, indeed, Paul lives in Israel and they have not seen him for about five years.”
“7. I anticipated this might cause some unrest amongst David and Paul Taylor who were destined under the deceased’s previous will to receive everything. I advised the deceased to give some sort of monetary gift to each of her husband’s sons as a gesture of goodwill. At first, the figure of£5,000 was discussed and that was later upped to£10,000 each for David and Paul Taylor. 8. At no time did the deceased exhibit any signs of memory loss or confusion. Indeed, the deceased understood exactly the nature of her instructions and the effect this would have on her will.”
“Following your meeting, you recommended that VPS check the investment fund which Mrs Taylor has in the sum of£510,000 to ensure that it has not been written in trust following her death, and that it falls into her estate.”
“Please ring after 3.00pm Tuesday re draft will for Mrs Taylor”
“Went through draft will with him. Altered£5,000 to£10,000 for Taylors, per instructions.”
“I am aware that she’d been receiving telephone calls from Bruce Peskin, her brother-in-law, and she told me that he was wanting to look after his children in her will as his investments had not been very successful, and he had spent a lot of money on his property and she thought he was in financial difficulty. I am also not aware of Marlene ever saying that she saw very little of David or Paul. She accepted that Paul living in Israel made visiting difficult, however, David was constantly phoning and updating Marlene on the medical situation of both his in-laws and Paul’s wife, as they both had health problems. During the many years of close relationship with Marlene, I never heard her say a bad word against David or Paul; ‘the boys’ as she always affectionately referred to them. [I am well aware that both David and Paul were in constant regular contact with both Brian and Marlene and that after Brian’s passing away, David in particular was a pillar of strength to Marlene and helped sort out his father’s affairs and, in particular, Brian’s funeral, for which I know Marlene subsequently was very grateful and appreciative. [the letter went on to say] In all the years of my association, I pride myself in the knowledge that I have never broken confidence regarding their affairs. I am aware that her brother-in-law, Bruce, had been making contact with her, and I genuinely believe that he was influencing, putting pressure on her when she was obviously in a very low state of health and morale.”
“Marlene always used to reply that they see very little of them and they’d not seen very much of them since Marlene’s parents, Phil and Freda Stansbury, had died. I asked her why not and she replied there was no real reason why they should get together. She said they were from a different generation and they had their own lives and families. I believe that, apart from Marlene’s last few weeks, they never visited Dad and Marlene at the home they moved into in 2004.”
“Marlene and Dad used to tell us how sick Penny was and how Bruce and Penny were coping living in Spain. Marlene explained to Louise and I about Bruce’s financial situation and that things were very difficult financially.”
“One subject that was raised on a number of occasions by Dad and Marlene was their wills and their wishes. While they were both together, they explained that I was to be the executor of Brian’s will, that on the first death everything would pass to the survivor and, on the second death, everything was to be split evenly between Paul and myself. This is as stated in Brian and Marlene’s 2005 wills. It was quite straightforward, and there really was nothing to be added to these conversations apart from obviously appreciating the family for what they had arranged.”
“Immediately following Dad’s passing, I had a meeting with the hospital bereavement officer. We were very concerned about Marlene’s welfare; not only had she just lost her husband of 40 years, but she was also extremely physically weak and vulnerable herself. She had complicated medical problems over many years. Dad had told me that basically he had been her carer for months, doing much of the cooking, shopping, etc, to look after her. For a long time Marlene had been unable to go upstairs, and was sleeping downstairs in the kitchen dining area, so I was very concerned about ongoing care for Marlene. The welfare officer explained what care they could arrange for her and I took details of contact numbers of social workers and hospital emergency duty team social workers. We did our very best to assure her that we would care and look after her. We told her that whatever she needed, she only had to ask. We also suggested that she have a carer live in, but she was not interested.”
“We left it that we would keep in regular contact and that we would keep in touch with them and would arrange things if and when she wanted this. The three of us had a snack together and we made her as comfortable as possible. Before we left, she mentioned to Louisa and I about the will, just repeating exactly what we had discussed on previous occasions, namely that we would not be getting anything now from Dad’s will, and that everything would be going to her and that it would come to Paul and I when she passes. Obviously this was a very delicate matter and there was no necessity for her to mention this. I did not want her focusing on any of this or even think about these matters. I thanked her and said, ‘All will be okay’ and quickly changed the subject.”
“Paul and I came to meet Marlene early at the house and go through a lot of Dad’s belongings. We then took Marlene to her hairdressing appointment. After this we took her shopping to the supermarket and had fun going around doing shopping with her.”
“After Dad’s funeral, Marlene told me that her brother-in-law, Bruce Peskin, had spoken to her on several occasions and said he wanted to make changes to her will. She told me that Bruce wanted someone called Derek Randall to become an executor. I said that I did not know him, and had never heard either Dad or Marlene mention Derek Randall. I asked her who he was. She said that he’d been Bruce’s family solicitor for many years. Marlene said that Bruce had spoken to her a number of times on this and is insisting that Derek Randall become executor. She said, ‘I am being pressured into things’. Marlene said the only change she was going to make was to make Derek Randall joint executor. I thought this was fine, and I believe this gave me confidence that there would not be any other major changes to what had already been discussed and, out of common humanity and decency, did not want to have any deeper discussion or ask any questions concerning this as she was clearly at a very low ebb, grieving, having only just lost her carer and husband of 40 years. I believed I was the other executor, although I subsequently discovered that was not the case.”
“At one point immediately after the cremation ceremony a man approach me and introduced himself as Derek Randall. I had not met him previously. He asked straight away if he could talk to me about Marlene’s will. I was shocked at his approach immediately after the cremation and at the burial ground where the guests were still present. He informed me that Marlene had left£10,000 each to my brother, Paul and me. I was shell shocked by this. The service at the crematorium had only just finished and, at the moment he introduced himself, I was talking to one of Marlene’s very close friends.”
“I do not believe that following my father’s death Marlene was in a position, either physically or emotionally, to assist the demands of Bruce to make major fundamental changes to her will. On a number of occasions when we spoke she said that she completely lost interest in everything and there was nothing left to live for.”
“Cindy, Dominic and Andrew had very little contact with Marlene and Brian since Marlene’s parents died in about 2004, 2005. This was confirmed on several occasions by Brian and Marlene.”
“Both David and I have enjoyed a typically warm and constant family relationship with Brian and Marlene.”
“I know that David in particular kept in regular contact with Marlene and Lucy, who’s been fantastic. David was always telling me how Marlene was, what her spirits were like, and we both agreed that it would be best to try and get her to focus on the future.”
“Occasionally, we used to ask how Bruce Peskin and his wife, Penny, were, as Penny had been ill for many years, but the reaction we always got was that Bruce spent all his money on a ridiculous property investment in Spain.”
“They did not enjoy their time with Bruce as he was attempting to get some kind of funding from them for his property investments and they always said it was doomed to failure from the outset and, even if he did manage to sell, he’d make a loss. They said he was in severe financial difficulty and this was making it unpleasant to be with him.”
“When Marlene’s mother and father were alive, Brian and Marlene used to spend Christmas and other festivities with Phil and Freda and their family, including Cindy, Dominic and Andrew. So, from time to time, we asked how they were. Marlene was always very dismissive, saying that they had shown no interest in either of them since the death of her parents and they were a different generation with their own families and had little or no contact.”
“I can also confirm that Brian and Marlene had on several occasions when we met them made clear what their intentions were with regards to their estate. It was very clear that everything would go from one to the other on the first death, and then divided equally between Paul and David on the second death. There was nothing to doubt this as their earlier wills substantiate this. Marlene also repeated this when we returned home and had dinner with her immediately after Brian died. She asked me to check her bank statements for them, and said this was fine as it was all going to David and Paul. She said words to the effect that, for the time being, she needed all the money that was in the kitty for her care and welfare while she was alive but on her death everything would be divided equally between David and Paul, ‘As your father wanted, and we discussed many times.’”
“Whilst it’s true I’m in Jerusalem, Israel, and travel to the UK is not a regular occurrence, I remained in constant telephone contact with my father before his tragic passing, and with Marlene following the death. I would speak to my father at least every two weeks and, since his passing, would phone Marlene at least as often, although her failing health was clearly and sadly in great evidence. She continued to inquire as to Muriel’s health, and the health and wellbeing of Vanessa and Eden [his own children]. I particularly enjoyed her outspoken humour, independence, and straight-talking honesty. In this regard, I had a brief conversation with Cindy after my father’s death as my concern over Marlene’s welfare was paramount. She in no uncertain terms made it clear to me that she had more urgent priorities and that such things as seeing or visiting Marlene was secondary, ‘I have a business to run’, was her response.”
“However, my brother, David, was and has always been very much involved with both our father and Marlene. He was constantly available to them, visiting often with both kindness and love, he assisted in whichever way he could, finding time, energy and the will to remain close and supportive to both our father and Marlene.”
“During the final four years of their lives, I and my husband also undertook more carer duties, assisting in their move to the High Street, shopping, and doing odd jobs for them.”
“Following the unexpected death of Brian in October 2008, Marlene, whose health had deteriorated during the preceding months, asked me to make arrangements for her solicitor to call. She was concerned that she needed to update her will to replace Brian, who had been listed as one of the executors. Marlene appointed Derek Randall as Brian’s replacement executor because Bruce Peskin, her brother-in-law, was advising her to do so. I’m aware of this because Marlene told me that she wanted to get it over with as Bruce was being persistent. I telephoned Vanessa Schomberg to make the appointment and I recall that both she and Derek Randall came to the house to discuss the will with Marlene. However, as soon as they began discussing the will, I left the room and went upstairs. I could not hear what was said. It was only after Marlene’s death I learned Marlene had left me a bequest and that it was more than had been left to David and Paul. Vanessa Schomberg came to the house to pick up a box containing Marlene’s will, personal papers and jewellery. It was then that Vanessa Schomberg told me the bequests. I was totally shocked and in tears. I could not believe that I’d been left more money than the boys.”
“In all the years of my association, I can pride myself in the knowledge that I have never broken confidence regarding their affairs. However, I am aware that her brother-in-law, Bruce, had been making contact with her, and I genuinely believe that he was influencing and putting pressure on her when she was obviously in a very low state of health and morale. Marlene told me that Bruce wanted her to look after his children in her will as his investments had not been very successful and he had spent a lot of money on his property in Spain, and she thought he was in financial difficulty. He called on many occasions, to the extent that I was told by Marlene if he phoned I was to tell him she could not come to the phone. As a result, he started calling when he knew I would not be there. Marlene told me this and I can confirm that, as she did not answer the phone, I would have to listen to the answer phone during my next visit and tell her what he had said, which was normally just that he had called.”
“Drawing on many years of close association with both Brian and Marlene, I never once heard either of them say a critical word against ‘their boys’, as they were always affectionately referred to by both of them.”
“I can confirm that both David and Paul were in constant regular contact with both Brian and Marlene, and then after Brian’s passing away, David in particular was a pillar of strength to Marlene and helped sort out his father’s affairs and, in particular, Brian’s funeral, for which I know Marlene was very grateful and appreciative.”
“I’ve no wish to become involved in a family argument over Brian and Marlene’s wishes, but would add that, in all the years as their personal assistant and friend to both of them, David and Paul, both of whom I’ve met in person at the house and spoke to on the phone on many occasions, were in regular contact with Brian and Marlene. However, I never have had any personal contact with Dominic, Andrew or Cindy during my years of association until after Marlene became ill, when Cindy made contact. When Marlene became less independent, I contacted Cindy for decisions to be made regarding Marlene’s wellbeing. She would generally say, ‘I will leave it to you, as I’m too far away’. Hence, I would speak on the telephone and discuss issues with David who offered on many occasions to come to the house to help if I needed him, and always wanted to know what Marlene’s situation was, especially when she was relying on myself and my husband, who had to attend to her needs when she fell out of bed during the night. It was also David that I contacted first, before Cindy, as he was always more helpful, especially when I made arrangements for Marlene to go into hospital. Sue, her close neighbour, and Terry, her cleaner, also made arrangements for Marlene to go into hospital when I was not available and I’m sure that they could substantiate that it was David who was most concerned and helpful regarding these matters.”
“I knew that she had a sister in Spain with Parkinson’s, a brother, Anthony, whom she would have nothing to do with, and two stepsons, David and Paul.”
“Marlene had never mentioned Cindy and I did not know anything about Cindy or anybody else until approximately the first week of March 2009. Marlene was admitted to hospital with severe stomach pains. After a couple of days, when I realised she was going to be in for a while, I said that she should let her sister know. She told me the telephone number was in her address book under Cindy Kaplan. I looked that evening, but was not sure as the number was a London number, so I took the book with me ...”
“I used to call on her every evening after work and, on weekends, two/three times a day. Sometime shortly after Brian’s death, I went to see her and said, ‘Hello Marlene, how are you?’ She just burst into tears. I went over to comfort her, and asked her what was wrong, and she said, ‘I can’t cope with everything any more and I don’t know what to do about my will’. She was very disturbed and distraught about this. I said I would help in any way, but I did not mention anything further about her will as I did not think it was any of my business. She was clearly inconsolable, and disturbed about this.”
“Closer to both of them and helped out caring for Marlene, as did Lucy, also a neighbour.”
“I would like to say that in all the years I worked for Marlene and Brian, I got to know David through phone calls which I sometimes took for them and found him to be a very nice man.”
“Marlene told me how fond she was of David and Paul and she was very, very sad about Paul’s wife suffering from cancer.”
“During the 15 years that I was working for Marlene and Brian, I was always aware of the close relationship between them and David and Paul. This was particularly the case for Marlene, following Brian’s passing.”
“... knowing that Paul phoned from Israel, and the fact that David was in very regular contact with Mrs Taylor, following Mr Taylor’s death.”
“I was really shocked to hear, following her death, how Marlene had changed her will so soon after Brian’s death. At this time she was really very poorly, and quite grief-stricken, following Brian’s sudden unexpected death. This major change goes completely against all the positive feelings that she had often expressed to me about how she felt towards David and his wife, Louise, as well as to Paul, Muriel, and their daughters. She often said that she was so appreciative towards David for all his support. This came as a complete surprise and contrary to her true sentiments towards them.”
“I can honestly say that throughout the time that I was with Marlene I never once heard her speak or even mention Cindy, Andrew or Dominic.”
“She asked me who I was as she did not recognise my name. I explained to her that I’d been married to Jill, who was her husband’s niece. I asked her how she was, and she was not inclined to talk about that. I expressed my condolences, and then asked her what had happened. She responded, ‘You want me to go into all this’, and was quite unwilling to continue the conversation. She said that she did not want to talk, and that she was in a difficult situation and being pressured on all fronts on Brian’s wishes. She said that she was finding it difficult to cope, and kept repeating this. She was clearly distressed and didn’t want to go into any details. My impression is that she was troubled and under considerable stress.”
“I can confirm that David and his wife, Louise, as well as Paul and Muriel, his wife (now passed away) mutually enjoyed a close, warm and loving relationship with both Brian and Marlene. When Paul and his wife visited, with and without their children,... they spent time together as a family, and I know that David and Louise maintained regular contact with both Brian and Marlene.”
“I know David was particularly supportive towards Marlene after Brian died, and followed this up with regular contact and offers of help and support to her. I was often in contact with David and so I know full well that he also did a great deal arranging Brian’s funeral, and that Marlene really appreciated this.”
“I am shocked to hear what Marlene has done with regards to changing of the will and it does not reflect in any way the close appreciation and warmth that she felt towards David and Louise, as well as Paul and Muriel, and their children….all of whom she was very fond of.”
“Given the strong relationship that David and Paul had with Marlene and Brian and the support that in particular David showed (Paul lives overseas) towards both especially in the last few years of their lives, I find it hard to believe that Marlene would have disinherited Brian’s children in this manner. Her actions are particularly out of character as, following Brian’s sudden and unexpected death, she was very low, both psychologically and physically, and I would have thought that changing her will, disinheriting David and Paul in favour of Cindy, Dominic and Andrew Peskin would have been the last thing on her mind at this very difficult time. Furthermore, immediately following the death of Brian, she was poorly, more or less bed-bound and immobile. She really was at a very low ebb, and emotionally fragile and grieving for her husband who had been her carer over the last few months of his life.”