Markou & Anor v Goodwin & Ors [2013] EWHC 4570 (Ch)

Case No HC11C04557

[2013] EWHC 4570 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Rolls Building,, 110 Fetter Lane,

Date Wednesday, 27 November 2013

London EC4 1NL

Before

MR JUSTICE NUGEE

Between

MARKOU & ANOTHERClaimant

GOODWIN & OTHERSDefendant

MISS S BROWN appeared for Claimants.

MR S REDMAYNE appeared for Defendants.

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Judgment

Wednesday, 27 November 2013

J U D G M E N T

[1]This is the trial of a probate action. Mrs Eileen Nora Rand (née Goodwin) died on 4 November 2007 aged 79. There are two wills in contention. The claimants propound a will dated 25 June 2007 (“the 2007 Will”) and the defendants propound a will dated 18 December 1969 (“the 1969 Will”). The central question I have to decide is whether the 2007 Will is a valid will. This turns largely on whether Mrs Rand had testamentary capacity at the time that she executed it. There is also a question whether she knew and approved the contents of that will.

[2]Mrs Rand was born in 1928. She was the middle one of three children. They were brought up in Edmonton in North London, and she lived there all her life. She had an older brother, Horace (known as Bill), who was born in 1924 and about 5 years older than her, and a younger brother, Derek, who was born in 1934 and about 5 years younger. Her older brother Bill was married twice. He divorced his first wife in 1965. In 1968 he married Lillian (known as Pat), who knew the family well as she had been best friends with Eileen since they were at school together. Bill Goodwin died in April 2007, survived by his widow Pat, who gave evidence before me. There were no children of either marriage. Mrs Rand’s younger brother, Derek, survived her. He is the first defendant, and also gave evidence before me, as did his wife, Julie. In about 1967, Eileen, who was then 38 met and fell in love with Edward Rand (known as Ted). He was a good deal older than her and was then a widower, his first wife Elsie having died in February 1966. Eileen and Ted were married on 26 August 1967, after what Pat described as a “whirlwind” relationship, and she went to live with him at his house, 99 Charlton Road, also in Edmonton, which he was the freehold owner of. Mr Rand, however, did suddenly in November 1968 after they had been married for less than 15 months. Mrs Rand inherited the house from him and continued to live there until shortly before her death. After her mother died at the end of 1972 her father came to live with her, but after his death in 1985 she lived there on her own.

[3]Ted Rand and his first wife had a daughter, Sheila, who was born in 1935 and so was not much younger than Eileen. She was brought up in 99 Charlton Road, but had already left home and was herself married by the time her father and Eileen got married. She is the second defendant. Her husband was David Woolvin. I was told he died in 2008, and I was told, although there was no formal evidence, that she is the executrix and beneficiary of her husband’s estate. Sheila Woolvin had one child, a daughter Sharon (now Mrs Sharon Martin), who is the third defendant and who gave evidence before me. Mrs Woolvin herself is now in her late seventies and although she signed a witness statement on 25 February of this year, she defends this action by her daughter Sharon as her litigation friend, her GP having confirmed on 1 March that she suffers from short term memory loss and lacks mental capacity under the Mental Capacity Act 2005. She did not, in the event, give oral evidence before me, and in her evidence Mrs Martin explained that her mother is currently in hospital, that she had a stroke 20 years ago, and was diagnosed with vascular dementia in December of last year.

[4]I had evidence of two successive wills made by Mr Rand. The first was made on 1 March 1966, i.e. very shortly after his first wife died, and before he married Eileen. In it he appointed his daughter Sheila and her husband David as his executors, and left all his estate to them in these terms:

“My said daughter, her said husband and her daughter Sharon, and any other of her child or children living at the date of my death and who shall attain the age of 21 years, or being female marry under that age, if more than one, in equal shares absolutely.”

The second will was made on 15 September 1967, i.e. shortly after he married Eileen. In it he left his entire estate to Eileen and appointed her sole executrix if she should survive him, but, if not, he left his estate to Sheila, her husband and daughter, and any other children of hers, in terms identical to those of his 1966 will.

[5]As I have said, Ted Rand died in November 1968. On 8 September 1969 Mrs Rand made the 1969 Will. Apart from the claimant’s contention that it has been revoked by the 2007 Will, it has not been suggested to me that there is any other reason to doubt its validity. It appears to be signed, on its face, by Mrs Rand and two witnesses described as clerks at Windsor & Co, the firm of solicitors who appear to have drawn up the will. They retained the original, and produced it after her death. I see no reason to doubt that it was duly executed and, subject to the question of revocation, is valid. Its terms, so far as relevant, can be summarised as follows. By clause 2 Mrs Rand appointed her brothers, Bill and Derek Goodwin, as her executors and trustees. By clause 3 she demised the freehold house at 99 Charlton Road, which she had by then inherited from her late husband’s estate, on trust for sale with the net proceeds to be divided into two. She left one half to “such of Sheila Woolvin and her husband David Woolvin and such of the children of Sheila Woolvin as shall be living at the date of my death and respectively attain the age of 21 years and, if more than one, in equal shares absolutely.” This wording is very similar to the wording in her husband’s two wills, and I infer that it is likely to have been taken from them. She left the other half to such of her brothers Bill and Derek as should survive her, with the substitution of Derek’s children if he should predecease her. By clause 4 she left the residue of her estate to her brothers in similar terms.

[6]In the events which have happened, if the 1969 Will is her true last will, the practical effect is that Mr Derek Goodwin is appointed executor. He takes half the proceeds of the house and any residue, and the other half of the proceeds is divided two thirds to Mrs Sheila Woolvin, one third in her own right and one third as beneficiary of her husband’s estate, and one third to Mrs Martin. There is nothing to suggest that Mrs Rand made another will until nearly 40 years later, in 2007. As I have already said, she was then living alone in the house at 99 Charlton Road. On 27 April of that year her older brother Bill died. On 23 May she was admitted to the North Middlesex University Hospital in North Middlesex following a fall. She was discharged a couple of weeks later on 7 June and returned home. Late on 21 June she was admitted again to North Middlesex. She was then very ill with acute renal failure and was admitted to the intensive care unit (ICU). She was discharged from the ICU on 7 July 2007 and transferred to the Charles Coward Ward. She was discharged from hospital on 17 August 2007 to a nursing home. She never returned home, and died in the nursing home on 5 November 2007.

[7]Between these two hospital admissions she was home for two weeks, from 7 to 21 June. During this time the 2007 Will was executed. I will have to consider the evidence as to its preparation and execution in more detail in due course, but, in summary, instructions were taken for the will on 15 June 2007 by Mr Markos Markou. He then prepared the will, and it was signed on 20 June 2007. Its terms can be summarised as follows. In the opening words Mrs Rand revoked all former testamentary dispositions. By clause 1 she appointed Mr Markou and Mr Nicholas Efthymiou as her executors and trustees. Mr Efthymiou is the husband of Androulla Efthymiou, who is a beneficiary under the will. Mr Markou and Mr Efthymiou are the first and second claimants in their capacity as executors under the 2007 Will. Each gave evidence before me. By clause 2 Mrs Rand left her entire estate to her brother Derek Goodwin and Androulla Efthymiou, if she should survive her for 28 days. Mrs Efthymiou was a neighbour of Mrs Rand’s, who, as appears below, had become a friend and carer for her over the years immediately preceding her death. She is the third claimant and also gave evidence. Clause 3 contained a provision containing substitutionary gifts to be issued to Mr Derek Goodwin and Mrs Efthymiou in the event of their not surviving Mrs Rand for the requisite period. Clause 4 conferred certain powers on Mrs Rand’s trustees in the event of a person under age having a beneficial interest in the estate. Clause 5 contained a charging clause in conventional terms authorising the trustees to employ any of their number engaged in a profession, and providing that anyone so employed would be entitled to take fees for so acting. The will is signed by Mrs Rand and by two witnesses: Mrs Anna Gregoriou and Mr Christos Christou. As appears from their names, both are members of the Greek or Greek Cypriot community in North London, as are Mr and Mrs Efthymiou and Mr Markou. Mrs Gregoriou and Mr Christou each gave evidence before me. In the events which have happened, therefore, the effect of the 2007 Will, if valid, was to appoint Mr Markou and Mr Efthymiou as executors, and leave Mrs Rand’s estate to be shared equally between Mrs Efthymiou and Mr Derek Goodwin.

[8]It is not necessary to recount what has happened to the estate since the death in any detail. In summary, Mr Derek Goodwin initially took out letters of administration on the basis that Mrs Rand had died intestate. Mr Markou attempted to obtain revocation of this grant on the basis of the 2007 Will, but Mr Derek Goodwin then himself obtained revocation of the letters of administration and proceeded to obtain a common form grant on the basis of the 1969 Will, which had by then been located. Having done so, he sold the house and the proceeds have subsequently been distributed to himself, Mrs Woolvin and Mrs Martin. This has occasioned a certain amount of suspicion and accusations from the claimants on the basis that he should not have proceeded in this way when he knew of the existence of the 2007 Will. His position, as expressed by his solicitors, is that they had clear evidence of Mrs Rand’s incapacity at the time of the 2007 Will, and in those circumstances there was nothing wrong in proceeding to obtain probate of the 1969 Will, which enabled the house to be sold. The claimants were told that the proceeds would be distributed unless agreement was reached or proceedings taken, and in the absence of either, the proceeds were indeed distributed. None of these matters are before me or were explored in evidence, and I do not propose to express any views in relation to them except to say that there is nothing to suggest that Mr Derek Goodwin acted other than in accordance with the advice of solicitors. They do, however, explain why the relief sought by the claimants in this action is that the grant of probate of the 1969 Will be revoked and probate be granted of the 2007 Will. The defendants counterclaim for an order pronouncing against the 2007 Will and granting probate of the 1969 Will in solemn form.

[9]In their pleading, the defendants do not make any admissions about the execution of the 2007 Will, but no challenge was made before me to the execution of the 2007 Will, and I am satisfied that it was duly executed. That leaves two issues for me to resolve. Did Mrs Rand have testamentary capacity to execute it? Did she know and approve the contents of it?

[10]Apart from the medical experts, who I will come to in due course, I have already indicated those who gave evidence before me, namely, for the claimants, Mr and Mrs Efthymiou and Mr Markou, and the two witnesses to the 2007 Will, Mrs Gregoriou and Mr Christou; and, for the defendants, Mr Derek Goodwin and his wife Julie, Mrs Pat Goodwin and Mrs Sharon Martin. I am satisfied that all the witnesses were sincerely doing their best to assist the court. I do however have reservations about one aspect of Mrs Efthymiou’s evidence, which I will explain in due course. Mrs Woolvin’s evidence was read. In the absence of cross-examination and in the light of the evidence I have of her lack of capacity, I can place very little weight on it, but it is not of central importance to the issues.

[11]I will now come to the facts in more detail, starting with relations between Mrs Rand and the various members of her family. It is apparent that she was very close to her older brother Bill. Mrs Pat Goodwin says:

“Eileen was very close to both her brothers, and if we went on holiday she came with us. If we went out for the day she came, and I also went out with her independently. Eileen always spent Christmas Day with Bill and I, returning to her own home on Boxing Day.”

That was confirmed by Mr Derek Goodwin. In re-examination Mr Derek Goodwin said, “We were a very close family.” He also said, “Bill, my brother, and his wife Lillian” i.e. Pat, “also spent a lot of time with Eileen.” Mrs Efthymiou herself said that she used to take Mrs Rand to see her brother Bill when he was suffering from cancer, and took her round to see him at least once a week for about 2 years, and that her brother Bill and sister-in-law Pat were happy that she took Eileen to see them. In cross-examination she accepted that Mrs Rand used to talk highly of Bill, and she also said that it hit her very badly when he died.

[12]Mrs Rand was also very close to Pat. Pat’s own evidence is that she had been best friends with Eileen since their school days, and since she could remember. They went to the same school and were in the same class, and they lived very near to each other and spent all their time with each other. They lived in the same road when they were teenagers. They even worked for some periods in the same place. They went out socially together, they spent their free time together, and had days out and holidays. “I was either at her family’s house, or she was at mine”, she said. “I spent such a lot of time at Eileen’s family house and knew the whole family very well. I was considered part of the family. Indeed Eileen was considered part of my family. We really spent all our spare time together. She had always been my best friend.” Speaking of the period since 2000, when her husband became ill and was in and out of hospital and was diagnosed with various illnesses, to include cancer, she said, “I continued to see a lot of Eileen. She had always been a very big part of my life, and although my husband was ill, I still spent a lot of time with Eileen.”

[13]Mr Derek Goodwin said, “She had quite a lot of friends, and her very best friend was Lillian.” Pat in her oral evidence said that when she was married to Bill she used to try and visit Eileen on Friday and Saturday every week. She used to walk round. She lived in Oxford Road, and had done for over 70 years, which was not very far from Eileen’s house. She also kept in contact by telephone. I accept all this evidence.

[14]She was also close to her younger brother Derek. I have already referred to Mr Goodwin’s own evidence that they were a close family. He also said that when his older brother Bill became ill he saw Eileen a lot, although he accepted that he was a bit preoccupied with Bill’s health at the time, rather than Eileen’s. In cross-examination he explained that he used to visit Bill when he was in hospital, and provided the visit was during the day he would go round to see Eileen afterwards, although not if he was visiting the hospital in the evening. Pat’s evidence was that she really spoilt Derek, her baby brother. Again I accept this evidence. I also accept that her relationship with her husband Ted, although she was married for only a very short time and had no children, was a very important part of her life. Pat’s evidence was that “In about 1967 Eileen met Ted Rand, a widower. He was a lot older than her and was a meat porter. He was a really jolly man, and they hit if off. Eileen was over the moon.” She also said, “I believe she promised Ted she would look after his family. She always said throughout her life that Ted was the love of her life.” Derek’s evidence was, “Although he was over 20 years older than her, he was such a nice man, and he made Eileen so happy. I remember him saying to me, ‘I will look after your sister. Don’t worry about her. I’ve made provision for her. She will be alright.” Then he said that despite the fact that her relationship with Ted was a short one, perhaps because it was cut prematurely short she held Ted in very high esteem throughout her life. Again I accept this evidence.

[15]So far as her relationship with her stepdaughter Sheila is concerned, it is common ground that Mrs Woolvin found it initially difficult to accept her father’s marriage to a much younger woman who was less than 7 years older than her, after what must have appeared to her to be really quite a short interval since her mother’s death. That is entirely understandable. But I had evidence that she did visit. The evidence of Mrs Martin, although she was only 3 or 4 at the time, was that she remembered going to see her grandfather and Eileen, and I accept this evidence. Mr Derek Goodwin’s evidence was that there was an initial breach, but the breach was healed, to the extent that they exchanged Christmas cards and the like. I find this to be so. His wife Julie, when clearing out Mrs Rand’s house, found a letter, which she did not keep and cannot remember the date of, from Mrs Woolvin to Mrs Rand, thanking her for a very nice day. And Mr Derek Goodwin said that his sister had told him that she had been visited by her stepdaughter. For what it is worth, and I have already said that I am unable to place very much weight on this, Mrs Woolvin’s written evidence says that she did continue to remain in contact by telephone with Mrs Rand, although she explained that she had two strokes in her forties.

[16]This evidence does not, I think, demonstrate any particular recent contact between Mrs Woolvin and Mrs Rand, and in closing Mr Redmayne, who appeared for the defendants, accepted that Mrs Woolvin had not visited for many years. But it is some evidence that any rate Mrs Woolvin was reconciled to Mrs Rand after her father’s marriage to her, and that they did keep in touch, to at least a limited extent, thereafter. I also had evidence of Mrs Rand’s relations with her cousins; in particular, Mrs Julie Goodwin told me that she did keep in touch with her cousins, one in particular called Sylvia, who was much the same age as her, but that there came a stage when Sylvia wrote a couple of letters to Mrs Rand and received no response, and was so concerned that she contacted Pat to ask if there was anything wrong.

[17]That deals with her relationship with members of her family. With regard to her relationship with the claimants, Mr and Mrs Efthymiou, that is much more recent. Mrs Efthymiou in evidence put it as 4 years before her death. There is some evidence that it may only have been 3 years, but it does not matter. I heard some evidence about how she met the Efthymious. Mr Nicholas Efthymiou’s account was that he was outside his house on his drive. Mrs Rand lived round the corner, and she came along. She was a sprightly sort of character. Her shoelaces were undone, and she called out, “Young man, would you mind doing up my shoelaces. I’m obliged.” The next day, or the day after, she came round bringing a small gift of some beers as a thankyou present for doing up her laces, and in that way she met Mr Efthymiou’s wife, Androulla, and thereafter they became close friends. I see no reason to doubt this account, and I accept it.

[18]Mrs Efthymiou’s evidence explains that when they met they became friendly, and she started to help her on odd occasions, and as time went on these occasions and the assistance she gave increased considerably. Mrs Rand had difficulty doing shopping, and Mrs Efthymiou found herself helping her on a more regular basis with matters such as cooking and shopping. She used to take her to her GP and hospital appointments. She used to take food round to her. She used to take her to go and see Bill and Pat, as I have already referred to. Sometimes she used to stay overnight in Mrs Efthymiou’s house. She indeed says in her evidence that she enjoyed the experience of looking after Eileen so much that she enquired about being a carer, and was pleased to have been appointed to the position of a personal care assistant, which she has now held for nearly 3 years, and which she says she thoroughly enjoys, although it is very hard work. She said, “Looking after Eileen made me realise how much I enjoyed helping people and inspired me to do my NVQ and embark upon my present career.” All this evidence was given in an open and straightforward manner, and I accept it. I accept also that Mrs Rand became fond of Mrs Efthymiou and her family, and that she often spoke to Mrs Efthymiou about her appreciation and consideration of what she was doing for her. Indeed, Mr Redmayne described her in closing as being a carer that she was “clearly close to and had affection for”, and that seems to me to be an accurate description of their relationship. Mr Efthymiou also confirmed that his wife became very fond of Mrs Rand, and that she became in effect a very close family friend. In re-examination he said that Mrs Rand was very fond of their children, and Eileen almost became an extension of the family. He himself used to go round to her house and help with minor matters of maintenance of her house, for example, replacing the kitchen rear door and securing a carpet that had lifted up, and the like, although he said he did not consider them to be substantial, and that he himself had become quite fond of her. Again I accept all this evidence.

[19]I now come to the occasion on which the will was executed. Mrs Rand was discharged from hospital on 7 June. Mrs Efthymiou’s evidence was that Mrs Rand had been saying for a while that she wanted to give her a gift or leave something to her in appreciation of what she had done for her. Mrs Efthymiou said that she used to turn the conversation to another topic, because she was a bit embarrassed about it. But at the end of May or the beginning of June Mrs Rand was talking about leaving part of her property to her. Mrs Efthymiou accepted that this was probably when Mrs Rand came out of hospital, and that she, Mrs Efthymiou, then acted quite quickly. She told me that she was rather embarrassed about it, but she did tell her husband, Mr Nicholas Efthymiou. He accepted in cross-examination that his wife had probably told him that Mrs Rand had wanted to leave half the house to her, although he said that he could not be sure of that. Her husband then asked around and was referred to Mr Markou through an acquaintance. He did not previously know him. Mr Markou is not a qualified solicitor, but he has experience in will writing. He has previously been a barrister’s clerk. He described himself to me as a solicitor’s managing clerk. He has been on courses in relation to will writing. He has a company called Legal Solutions, which provides various legal services. He came round to Mr and Mrs Efthymiou’s house. He and Mr Efthymiou then went to see Mrs Rand. His evidence was that that was a day or two later. He took instructions from her when she was sitting in her back room overlooking the garden. Mr Efthymiou took the opportunity to fit an extension to the telephone cable, but he did not come into the room while Mr Markou was taking instructions. Mr Markou took a contemporaneous note of the instructions, which is in evidence before me. It is one page of handwritten notes. It indicates the date, 15 June, and the time taken, which was some 40 minutes from 11.30 to 12.10. I am not going to read it out, because it is in evidence, but it does contain instructions for the will which he then drew up.

[20]In addition, Mr Markou’s evidence was that she had told him quite a few things which he was adamant she wanted to explain in the will, and that he explained to her that if she had such comments, it would be better if they were put in a side letter which would accompany the will, which she was happy with, and he said he would dictate it as soon as possible. He also gave evidence that once he had taken instructions, while they were waiting for Mr Efthymiou to finish fixing the extension cable, he and Mrs Rand began to have a general chat. He said, “I always have my own way of satisfying myself when taking instructions for the preparation of a will from elderly or unwell persons, which is two sets of questions, which I was told was good practice, i.e. the name of the present British Prime Minister, date, year and time of day. Mrs Rand answered these two questions without any difficulty.” Mrs Rand paid Mr Markou £100 in cash for his services. Mr Markou explained to her about executors and trustees. She suggested that Mr Efthymiou might be one, and asked if Mr Markou might be one. After he finished his work, Mr Efthymiou came into the room and Mr Markou asked him if he would like to be an executor, and he agreed. Mr Markou then went back to his office and dictated the will and the side letter almost immediately. I have already set out the provisions of the will. The side letter contains various explanations. It is addressed “To whom it may concern”, and starts off, “I have requested Mr Markos T Markou, who has also prepared my will, to prepare this side letter as I wanted to explain things that could not be put in my will, namely”, and there is then set out in five paragraphs various explanations, some of which I will come back to. Mr Markou having drafted the will and side letter, put them in a brown envelope and dropped them through the letterbox the next day. He did not draw up an enduring power of attorney, which was one of the matters he had discussed with Mrs Rand, but he gave a blank form for an enduring power of attorney to Mr and Mrs Efthymiou. He explained to me that he did not see the need to charge £100 for what was a fairly straightforward form.

[21]On 20 June Mr Efthymiou arranged for the two witnesses, Mr Christou and Mrs Gregoriou, to meet at his house and go round to Mrs Rand’s house to witness the will. Mr Christou was one of his closest friends. Mrs Gregoriou was a close friend of his wife’s. The three of them then went to Mrs Rand’s house. She signed the will and the enduring power of attorney. She must also have signed the side letter, although Mr Efthymiou did not recall that, and the witnesses did not either. Mrs Gregoriou’s evidence is that they took the will and the EPA back to Mr and Mrs Efthymiou’s house and left it there. Mr Efthymiou must have given it on a later occasion to Mr Markou, as he had the original. Neither witness spoke to Mrs Rand about the contents of her will, and there was no evidence given before me that it was read to or by her.

[22]I come then to the issue of testamentary capacity. I start with the law. There was no substantive dispute as to the law before me. The classic statement of the requirements for testamentary capacity are found in the judgment in Banks v Goodfellow (1870) LR 5 QB 549, the judgment of the court being given by Cockburn CJ. At page 565 he said this:

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

That has been approved recently by the Court of Appeal in Sharp v Adam

[2006] EWCA Civ 449

, where the judgment of the Court was given by May LJ. At paragraph [66] he described that case as “the leading authority on testamentary capacity” and as a decision which has withstood the test of time. He then cites the passage which I have read, which he refers to at paragraph [68] as being “the classic passage”, and for ease of reference the Court of Appeal inserted (a), (b), (c) and (d) to make 4 separate conditions in the passage which I have read. At paragraph [82] there is a reference to the fact that the court asked counsel in the case to draft a suggested modern version of the Banks v Goodfellow formulation. May LJ continues:

“We do not reproduce the draft, because we do not consider on reflection that the Banks v Goodfellow formulation needs to be reformulated, nor is it perhaps open to this court to do so…”

I was also referred to the earlier Privy Council case of Harwood v Baker (1840) 3 Moore’s PCC 282. The ratio of that case is found at page 290 in these terms:

“But their lordships are of the opinion that, in order to constitute a sound disposing mind, 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 that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration; and therefore the question which their lordships propose to decide in this case is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.”

[23]The other principle of law which it is necessary to refer to is that laid down in Parker v Felgate (1883) 8 PD 171. I will read from the headnote, which contains a summing up of the President of the Court, Sir James Hannen:

“If a testatrix has given instructions for her will, and it is prepared in accordance with them, the Will will be valid though at the time of execution the testatrix merely recollects that she has given those instructions but believes that the will which she is executing is in accordance with them.”

In the course of his summing up, Sir James Hannen instanced 3 different states of mind, the third of which was these (page 174):

“There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, “I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;” it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient.”

He left three questions to the jury, the first question being: did the deceased when the will was executed remember and understand the instructions she had given to Mr Parker? To which the foreman answered No. The second question was: could she, if it had been thought advisable to rouse her, have understood each clause if it had been put to her? Again the foreman answered No. The third question was: was she capable of understanding and did she understand that she was engaged in executing the will for which she had given instructions to Mr Parker? To which the answer was Yes. The court pronounced for the will. That was approved by the Court of Appeal comparatively recently in Perrins v Holland

[2010] EWCA Civ 840

. In that case there was a concerted attack on the principles of Parker v Felgate, as appears from the judgment of the Chancellor, Sir Andrew Morritt, who set out the first issue in the appeal, as to whether the principles expanded by the President in Parker v Felgate are correct statements of the law. Notwithstanding that attack after a comprehensive review of the authorities, the Court of Appeal upheld the principle – see at paragraph [23] in the judgment of the Chancellor:

“Counsel for David submits with some force that if the validity of a will depends on both testamentary capacity and due execution logically the former should exist at the time of the latter. The cases to which I have referred demonstrate clearly that that was not and is not the law.”

He summarises:

“I do not consider that, even if I thought that Parker v Felgate had been wrongly decided, which I do not, it is open to this court to hold that Parker v Felgate was wrongly decided and should not be followed.”

See also the judgment of Moore-Bick LJ which is to the same effect.

[24]There was some discussion before me as to precisely what it is that a person needs to know in order to satisfy the third state of mind in Parker v Felgate: is it enough to know that they are executing a will, or do they also have to know that they have given instructions and believe that the will gives effect to those instructions? There is some discussion in the judgment of Moore-Bick LJ. At paragraph [56] he says:

“In the third example the testator can remember only that he gave instructions for his will, believes that the document correctly reflects them (as it does), and decides to execute it on that understanding.”

At paragraph 70 he says:

“…in order to bring the case within the principles applied in Parker v Felgate it is necessary to show that the will as executed conforms to the instructions given to the draftsman and that the deceased understood that to be the case… Provided the deceased was capable at the time of execution of understanding that he had given instructions and intended to implement them, changes of mind in the meantime do not matter.”

That is supported by the cases to which he refers. In paragraph [50] he refers to a decision in In the Estate of Wallace deceased, where Devlin J found that the testator had executed the will in the understanding that it gave effect to the provisions of a document which he had previously signed called his “Last wish”. In paragraph [51] he refers to the decision in Re Flynn deceased, in which Slade J referred to a testator who was capable of understanding and did understand that he was engaged in executing a will for which he had given instructions, even if he could not remember what those previous instructions were. He said this:

“However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions.”

Then in paragraph [52], finally, he refers to the decision in Re Clancy, a decision of Rimer J, where Rimer J held:

“It was sufficient that she executed the will knowing what she was doing and acting in the understanding that she was giving effect to her earlier instructions.”

[25]In my understanding of the law, it is therefore necessary, as indeed appears from the judgment of Sir James Hannen in Parker v Felgate itself, that where a person seeks to avail themselves of the principle in Parker v Felgate, it must be shown that the testator not only knows that he is signing a will, but knows that he is signing a will which gives effect to instructions which he has previously given. If he cannot remember giving instructions at all, that will not, in my judgment, be enough.

[26]Finally before I leave the law I should refer to the burden of proof as to testamentary capacity. There is no dispute about this. It is set out conveniently in paragraph [97] of the judgment of Briggs J in Re Key Deceased

[2010] EWHC 408

Ch as follows:

“The burden of proof in relation to testamentary capacity is subject to the following rules: i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.”

I should also refer to the fact that in that case at paragraph [99] Briggs J said:

“…there was due execution of the 2006 Will and it was, by common consent, eminently rational. Indeed, a powerful factor in favour of the defendants' case generally was its fairness, to the mind of anyone who regards equal treatment between children as fair treatment.”

The will in that case substituted an equal division of the property for what had been a very unequal division in the testator’s previous will. “Accordingly, the evidential burden of proof in relation to testamentary capacity was, initially, transferred to the claimants as objectors. 100. I am nonetheless satisfied that a sufficient doubt as to Mr Key's testamentary capacity was raised by the claimants to transfer the burden in relation to it back to the defendants as propounders of the 2006 Will. Mr Key was both aged and, in psychiatric terms, infirm.” On the evidence in the case before me, as I will come to, in my judgment there is no doubt at all that the same is true in this case, that although the will may have been eminently rational on its face, there was a sufficient doubt raised as to Mrs Rand’s testamentary capacity by the defendants to transfer the burden in relation to it back to the claimants as propounders of the will, Mrs Rand being both aged and, as I will come to, in psychiatric terms infirm. It is not sufficient to discharge that burden to point to the fact that the will by itself appears to be rational on its face.

[27]I heard from two experts. For the claimants, I heard from Professor Henry Hodkinson, who is an emeritus professor of geriatric medicine. He has had over 30 years’ experience in geriatric medicine, and is an experienced expert witness. He described himself as now exclusively carrying out expert witness work. He had no dealings with Mrs Rand himself, and his opinions are derived exclusively from her medical notes. For the defendants, I heard from Dr Michael Aziz. He is a consultant physician in acute medicine for the elderly at the North Middlesex, where he has been a consultant for 20 years, and Mrs Rand came to be under his care during her second admission, but he was not responsible for her at the time of the first admission, or of the 2007 Will, and he too based his report on reviewing the hospital medical notes. I will consider their opinions after setting out the factual evidence of Mrs Rand’s state of health.

[28]I will start with her general physical health, as revealed by the hospital notes, up to the time of her first hospital admission in May 2007. She was diagnosed with type 2 diabetes in 1985 and prescribed drugs to deal with it, namely metformin and, from 2004, glycoside. There was in incident in 2002 when she was admitted to the North Middlesex on 4 February with hypoglycaemia. (Hypoglycaemia is low blood sugar, whereas hyperglycaemia is high blood sugar. Either can lead to confusion.) The ideal range for blood sugar is about 5-8 mls per litre. On 4 February 2002 her blood sugar level was 2.2. She was reported to have been found by her friend Maud to be very confused and to have collapsed in a chair and lost consciousness. She could not herself remember what had happened. But by the time she got to hospital she was alert and oriented and she was noted as having a mental test score of 10 and 10, indicating that she was given what is called the “Abbreviated Mental Test” (AMT), so there was nothing then wrong with her mental capabilities. She also had high cholesterol, for which she was prescribed statins. It is not suggested that this has any relevance to her mental health. Her notes revealed some other matters. She had a long history of smoking, but had stopped in 1984, and drank very little alcohol. She had periodic checks on her eyes (which can be affected by diabetes), and although she was diagnosed with background retinopathy and mild cataracts, there is no reason to suppose that this had a significant effect on her vision. In 2005 she was reported as having fallen twice in her garden and complaining of pain in her feet. Later that year, her GP referred her to the Department of Medicine for the Elderly at the North Middlesex for unexplained weight loss, and she was seen a number of times in connection with that, but without any conclusions. The notes also reveal that Mrs Rand developed an ulcer on her left foot. She attended a foot clinic at the North Middlesex as an outpatient. On 15 February 2007 there was no sign of infection present. On 1 March the ulcer was described as “superficial”, i.e. on the surface, with slight yellow pus, and the clinic asked her GP to prescribe antibiotics. On 27 March it was described as “inflamed”, and on 29 March as “slightly red in appearance” and still showing signs of infection, and so the clinic asked her GP to prescribe her with another week’s course of augmentin, a penicillin-type drug. By 1 April the ulcer was described as having “no swelling, pus or redness”, and on 10 May again as having “no pus or redness present”. I deduce from this that although the ulcer did become slightly infected, the infection was successfully treated with antibiotics, and was not a continuing problem at the time of Mrs Rand’s hospital admissions.

[29]In February 2007 she was also seen at the North Middlesex by Dr Tissier, a senior house officer (SHO) to Dr Luder in the Department of Medicine for the Elderly, for a swollen left leg. Dr Tissier prescribed her medicine for cellulitis, which is an inflammation of the skin. It was suggested to Dr Aziz that infections such as this could spread elsewhere in the body, which he agreed could happen, but he said that if this had been the case, he would have expected to see evidence of low blood pressure and fever, and there was no evidence of either, and there was no evidence that this had happened to Mrs Rand. I accept his evidence on this. None of these matters seem to me to be of any great significance to an assessment of Mrs Rand’s mental health. The notes also reveal the following. They contain a number of references to the fact that she received help and support. On 23 December 2005, Dr Singer in her GP’s practice referred to her as being “Generally self-caring, living alone, but with good support from neighbours.” On 7 March 2006 Dr Luder saw her and Mrs Efthymiou, and noted that “Mrs Efthymiou supports her and goes in daily with a meal”. On 8 May 2006 Dr Resguey, an SHO to Dr Luder, described her as “having a friend who helped her from time to time, but being otherwise fairly independent”, and on 30 November 2006 Dr Luder described her as “living alone and managing well with the help of a supportive friend”. I accept that all these are likely to be references to Mrs Efthymiou.

[30]There is some reference to her being vague, namely on 9 March 2006 Dr Luder described her as “a little vague” in reference to her description of her symptoms, and on 8 May Dr Resguey described her as “very alert, but giving vague answers”. I take this to mean that she was not precise about matters, but it does not by itself establish cognitive impairment. As Professor Hodkinson put it in oral evidence, “There are many vague historians who are not demented”. Apart from this, there is no suggestion in the medical notes up to May 2007 of any confusion or memory problems, a matter on which Professor Hodkinson placed some weight.

[31]She had a CT scan on 6 April 2006 as part of the investigation into her weight loss. The report referred to a minor scar on her kidneys “after previous infection”, and it was suggested to Dr Aziz that this might be of relevance to her general state of health in 2007. However, I accept his evidence that this is of no significance and that there is nothing to indicate when the infection was, it could have been in childhood for all one knew, and the scan did not suggest it to be recent.

[32]On the morning of 23 May 2007 Mrs Rand was admitted to the North Middlesex after a fall. She had been found on the floor and did not remember what had happened, although she believed she had tripped. On examination she was alert. “Alert” is not a description of mental ability, but whether a patient is awake or drowsy. There is a scale called the Glasgow Coma Scale (GCS) based on three indications, eyes, verbal and motor, which measures this, and Mrs Rand scored 15 out of 15. She was, however, noted as confused, and as having a blood sugar level of 19.2, i.e. a high reading. A urine test also showed raised sugars and ketones in the urine. She was given an AMT of 10 questions, but only scored 2 out of 10. She was diagnosed with hyperglycaemia. The doctor who saw her in accident and emergency, who would seem to be Dr Yusef, writes on her admission form “Hyperglycaemia→confusion”, which Professor Hodkinson interpreted as intended to mean that the hyperglycaemia in his view caused the acute confusion. I accept this interpretation. The admission notes record that Mrs Rand could not remember how she fell, and most of her history was taken from her neighbour, i.e. Mrs Efthymiou. This includes a note that she was “noted to be forgetful for the last 3 months”. Mrs Efthymiou before me denied that she would have said that, but I think it highly unlikely that this would have been recorded unless she had, and I find that she did. On 24 May she was assessed as having an understanding of the reason for her admission. Dr Withipoon saw her on 24 May and described her as “very alert, but very very vague with history” and recommended a mental test the next week. Her blood sugar level was soon brought under control, and by 27 May was generally under 10. There are several entries where the nursing staff have noted that “she remains confused”, or “remains slightly confused”, or simply “confused” on 27 May twice, 28 May twice, 29 May, 30 May and 4 June. On 30 May she took a mental test called the Mini Mental State Examination (MMSE), and scored 13 out of a possible 30 (wrongly noted down as 11 out of 30). On the same day, someone is recorded as speaking to Mrs Efthymiou and explaining the low MMSE score of 11 out of 30. On the next day, Dr Withipoon recorded that Mrs Rand’s history and the MMSE score of 11 out of 30 suggested dementia, and recommended a CT scan. This was carried out on 31 May. It showed atrophic change, which the experts agree is consistent with dementia but not diagnostic of it. Indeed, in oral evidence Dr Aziz said it was not diagnostic of anything. On 1 June, and again on 5 June, an unnamed SHO on a ward round noted a diagnosis of dementia based on the CT scan and the MMSE score of 11 out of 30. She was discharged home on 7 June 2007. By that stage she was physically well enough to go home, but she was not discharged until a care package had been arranged for her. On 29 May 2007, an occupational therapist noted her as having “marked confusion”, referring to the AMT score of 2 out of 10 on admission, and recommended a care package of 3 visits daily. It appears that this was what was put in place, although the evidence on this is not as complete as it might be.

[33]The evidence as to her state of health between being discharged home on 7 June and readmitted 2 weeks later comes from her medical records from her GP. So far as relevant, these record the following. An entry dated 19 June records that Mrs Rand was discharged from hospital “yesterday, and visited today, complaining of feeling unwell. She requested a GP visit”. Unless the date is wrong (which I think is unlikely) the statement that she had been discharged “yesterday” must, I think, be wrong. On 19 June Dr Fenn visited Mrs Rand at home. He recorded that she had been discharged from hospital 10 days before and “last 2 to 3 days has not felt well, drifting, holding on to wall for support”. It is common ground that “drifting” here is a reference to her physical state, not that her mind was wandering. Dr Fenn noticed a strong UTI (urinary tract infection) smell in the house and suspected UTI, but could not take a urine sample. Her blood sugar was low (3.6). Carers were coming in twice daily, and he left instructions for the afternoon carer to obtain a sample. He gave her a banana to get her blood sugar up. A sample was presumably taken, as on 20 June a laboratory report indicated heavy mixed growth on trimethoprim. This is indicative that she did indeed have a UTI. It is common ground that UTI can cause confusional states. Indeed, it is one of the commonest causes. On 21 June Dr Fenn received a telephone call from one of the intermediate care nurses, who advised him that Mrs Rand’s blood sugar had been low (2.2 to 2.) and was not eating much. He prescribed a liquid feed. A further call to the surgery the same day records the intermediate care nurse reporting that her blood sugar had “been low earlier, but seemed okay now” and that the nurses would keep an eye on her. However, very late on the evening of the same day, 21 June, she was brought in by ambulance to the North Middlesex. On admission, she was drowsy, not responsive to verbal commands, and her GCS score was 9 out of 15. She had low blood sugar (2.0), and was severely acidotic. She was diagnosed with hypoglycaemia and acute renal failure. She did not perform the Abbreviated Mental Test as she was not alert enough to answer. A note made by a specialist registrar reads “NOK” (next of kin) “=neighbour ‘dementia’ mild, carers BD” (twice daily) “started after discharge. Independent on most ADLs” (activities of daily living) “neighbour takes her shopping. Not confused in shops C” (with) “money (shopping)”. This is another reference to Mrs Efthymiou, as she accepted. She accepted that she said most of these things, but denied using the word “dementia”. She said that she would not have said that because she did not then know what it was. But again I consider it unlikely that it would have been noted in this way unless she had said this, and, as already noted, she had been told the results of the MMSE on 30 May in the course of the first admission. I find that she did refer to Mrs Rand as having “dementia”, reporting what she had previously been told, but qualified it by saying that it was “mild”.

[34]Mrs Rand was transferred to the ICU early on 22 June in a critically ill condition. Dr Aziz described her as “moribund” on admission, and Mr Derek Goodwin said that he was told that she was more dead than alive. Mr Goodwin came to see her that day and said he was not happy with Mrs Efthymiou having been put down as next of kin. The next day, Dr Mohan, a consultant in the ICU, had a discussion with him, which led to him agreeing to a “Do not resuscitate” order. In the course of this discussion he is recorded as having referred to her as having “memory problems”. Despite the seriousness of her condition, she responded to treatment. Her blood ceased to be acidic. Her GCS score gradually increased to 12 out of 15 by 26 June, 13 out of 15 the next day, and 15 out of 15 by 29 June. By 2 July she was well enough to be discharged from the ICU and transferred to the Charles Coward Ward. It was, in Dr Aziz’s words, “a fantastic recovery”. In the intervening period, her notes variously describe her as “awake and responsive, but still somewhat confused” – 22 June; “confused at times, talking nonsense” – 28 June; “confused most of the time and at times lucid and appropriate” – 29 June; and “slightly confused” – 3 July. She was kept on the ward until 17 August. On 3 July she did the Abbreviated Mental Test and scored 3 out of 10. On 4 July she was noted by a speech and language therapist as appearing to be in good spirits but confused, interacting with the therapist, but not answering questions appropriately or consistently. On 13 July the therapist spoke to Mrs Efthymiou who expressed some concerns regarding Mrs Rand, including “cognitive/memory difficulties and some unusual inappropriate language”. In cross-examination Mrs Efthymiou accepted that she referred to inappropriate language, and said that she did not remember referring to cognitive or memory difficulties. Again, however, I find that she did refer to them as recorded in the notes, maybe not in those precise words, but I find that was the effect of what she said. On 18 July Mrs Rand performed another MMSE. Her score was 13 out of 30, the same as it had been on 30 May. On 19 July she was noted as “confused, wanting to get out of bed to meet her grandparents and parents who were in the next building”. On 24 July an entry records that the doctors were to decide if she had capacity to make decisions. On 27 July she was noted as “calling out at times, but when attended she did not know why she was calling”. On 11 August she was noted as “remaining confused”. On 14 August Dr Withipoon assessed her capacity. He noted that she was “not orientated in person, place or time and she believed her mother and father were still at home”. She scored 1 out of 10 on the Abbreviated Mental Test, and Dr Withipoon concluded that she definitely had no mental capacity, being unable to retain information and therefore to make an informed decision. As already noted, she was discharged to a nursing home on 17 August, where she died on 5 November.

[35]The most detailed investigation into her mental state were the two MMSE’s on 30 May and 18 July. The experts are agreed that the score of 13 out of 30 which she scored on each occasion indicated moderate cognitive impairment. Professor Hodkinson explained that old people without mental problems usually score between 28 to 30. Below 27 one starts to wonder. Between 10 and 20 it is usually described as “moderate” impairment, and below 10 as “severe”. But the experts disagree on the explanation for these results. Both agreed that on each admission Mrs Rand was seriously ill and confused, but Dr Aziz took the view that by the time of the tests she had however recovered to what he called her “base level”, and he found it strikingly significant that on each of the two admissions, which were in his words “very, very different”, the results were the same. He therefore concluded that she had a dementing illness. In his report he said it was likely to be Alzheimer’s, but in oral evidence he somewhat qualified that by saying that that was perhaps too didactic. She had risk factors for vascular dementia and it could have been that instead. Professor Hodkinson’s view is that the low scores for both the AMT tests and the MMSE scores were more likely to be explained by Mrs Rand suffering from acute confusional state, or delirium, brought on by physical illnesses, and are not indicative of dementia. So far as the first admission is concerned, his initial report refers to her on 23 May 2007 as having been found collapsed in a chair, and says that when first seen in A & E she was “drowsy and confused” with a Glasgow Coma score of 9 out of 15, and that a BM Stix test showed low blood sugar of 2 mls per litre, diagnostic of a hypoglycaemic episode. This was admittedly a misreading of the notes. The reference to being “collapsed in a chair” was not to the first admission in 2007, but to the admission in 2002. The reference to a GCS score of 9 out of 15 and the BM test of 2.0 was not a reference to the first admission in 2007, but to the second admission in 2007 on 21 June. He took the opportunity, once this had been pointed out to him, to reconsider the notes overnight and (as he put it) to regroup. His view, when cross-examination resumed, was that the first admission, where she had high blood sugar and ketones in the urine, indicated an early stage of diabetic ketosis. Ketones are not normally found in urine, and are a mark of early stage diabetic coma. She was not in a coma, but it can cause a confusional state. This, in his view, explained the low AMT score of 2 out of 10. He pointed out that this was not the equivalent of 13 out of 30 on the MMSE, but was more like 5 out of 30. He therefore considered that, on admission, she was suffering from an acute confusional state. He explained that the confusional state outlives the provoking event, and it is very common for a confusional state to persist for days, or even weeks after the provoking event. His view, therefore, was that the improvement from the AMT Score of 2 out of 10 on 23 May to the MMSE score of 13 out of 30 on 30 May was a “big improvement”. He therefore considered that the score was not indicative of a dementing illness, but of a confusional state in the improving phase.

[36]So far as the second admission is concerned, when admitted Mrs Rand was acutely ill, with severe metabolic disturbance. The scores of 3 out of 10 on 3 July for an AMT, 13 out of 30 on 18 July for an MMSE and 1 out of 10 on 14 August for an AMT, showed a variable score, as he put it, “low, medium low”, which fits with a confusional state and does not fit with dementia. He did not quarrel with Dr Withipoon’s diagnosis of 14 August that Mrs Rand had no capacity on that date, but he was careful to say that he disagreed with the diagnosis of dementia. In his view, the acute confusional state continued at that date. He said it clearly had its ups and downs. At the time of writing his initial report, Professor Hodkinson thought that there was no history of mental deterioration prior to Mrs Rand’s first hospital admission. By the time of the experts’ joint report, he had seen the entry in the casualty notes for 23 May 2007, recording Mrs Efthymiou as saying that she had been forgetful for the last 3 months, but he concluded that this indicated no more than an early and mild dementing process at most. In oral evidence he referred to the evidence as “not excluding a mild underlying dementia”.

[37]Professor Hodkinson is plainly a very experienced and knowledgeable expert, and despite his initial errors I found him an impressive witness. It was suggested to me that he had espoused the cause of his client too much. I did not consider this to be so. Dr Aziz has many years of dealing with the elderly, and he too I found an impressive witness whose evidence was, as Mr Redmayne who appeared for the defendants submitted, intelligent and thoughtful. What their evidence, taken together, shows is how difficult it is on the basis of isolated tests and notes alone to be sure about the underlying causes of cognitive impairment. Professor Hodkinson at one point commented that it would have been helpful to have had a series of tests so that one could see a pattern.

[38]My conclusions on the medical evidence are these. I accept Professor Hodkinson’s evidence that the variable pattern of the test results are consistent with, and more likely to indicate, that on 23 May Mrs Rand was suffering an acute confusional state, probably triggered by early stage diabetic ketosis, which was improving by 30 May. I accept, however, that this is not the full explanation of Mrs Rand’s cognitive impairment, and that she did have a dementing illness prior to admission. Professor Hodkinson was inclined to accept that she might have had a mild dementia. I had rather more evidence about her state of mind as perceived by lay observers than he had and, for the reasons given below, I am satisfied that she was suffering from an underlying dementing illness for some months before her first admission. I accept Professor Hodkinson’s opinion that this was not, by itself, the cause of the low AMT and MMSE scores on the first admission. So far as the second admission was concerned, I again find that Mrs Rand was suffering from acute confusional state on admission on 21 June, triggered in this case by a combination of matters which made her critically ill: hypoglycaemia, acute renal failure, multiple organ failure, and quite possibly the UTI as well. Again, she improved from a score of 3 out of 10 on 3 July to a MMSC score of 13 out of 30 on 18 July. I do not find it necessary to decide whether the low score of 1 out of 10 and the lack of capacity on 14 August was still attributable to the acute confusional state, as Professor Hodkinson thought, or whether it was, as Dr Withipoon thought, caused by dementia. It is entirely possible that her underlying dementia had by then become more serious. His recording of the fact that she believed her parents were alive is confirmed by evidence from Mr Derek Goodwin, who said that when she was in hospital “she kept on asking me all the time ‘Do Mum and Dad know I’m in hospital?’ I eventually had to tell her that our parents had passed away”, and also said that “She would say things like she went to the green today, or she had fish for tea”. He was inclined to put this as occurring in both admissions, but his wife suggested that it referred really to the second admission, and I think she is probably right over this. It is noticeable that there is no record of any further improvement in her mental state after 14 August, either from the medical evidence or the notes from the nursing home, who admitted her as having dementia, or from any of the witnesses who saw her. Indeed Pat who visited her in the nursing home said, “I visited the nursing home, but she did not know who I was.” And it may very well be that her dementing illness had become more severe by mid August. But, as I have said, I do not need to decide this, because it is not directly relevant to the question of her mental state in mid June. However, even accepting, as I do, the main thrust of Professor Hodkinson’s opinion, that does not resolve the issue. The question for me is whether it is established that she had capacity on 20 June, or, in accordance with Parker v Felgate, on 15 June, with sufficient capacity on 20 June to satisfy the Parker v Felgate test. I have already said that, so far as the burden of proof is concerned, a sufficient doubt is, in my judgment, clearly raised, to put the onus firmly on the claimants.

[39]Miss Brown’s primary case was that Mrs Rand had full capacity on 20 June, but this cannot, in my judgment, stand with the medical evidence. The evidence as to her physical state was that she was “drifting” on 19 June, that she had then been ill for 2 to 3 days, but there was evidence of the UTI on 19 June, when Dr Fenn visited her and found a strong smell. That was confirmed by the laboratory test on 20 June. She was acutely ill on the evening of 21 June. Dr Aziz thought that her kidney malfunction had been “brewing”, as he put it, for 7 to 10 days. Professor Hodkinson did not accept that, saying, “I don’t see how one can deduce that”, but he did accept that the metabolic abnormalities she presented with on the evening of 21 June had not occurred overnight and would have been the result of 2 or 3 days successive deterioration. He was asked in cross-examination these questions. It was suggested that she was in a physically poor state on 20 June, to which he said “Yes”. Question:

“That could cause an acute confusional state?”

Answer:

“Yes.” “The likelihood is that she was in an acute confusional state on 20 June?”

Answer:

“Yes”. “And if she were, she would not have had capacity to give instructions for a will?” to which the answer was “No”

. Then a little further on Professor Hodkinson said, “My judgment is, on balance, that she would have been able to fulfil the requirements of Parker v Felgate”. That indeed is what he had said in his report. In paragraph 16 of his report he said:

“On 20 June she was in a deteriorating state of physical health and her cognitive mental abilities may have again been becoming somewhat compromised. However, I am guided by the rule in Parker v Felgate, which says that provided that a person has testamentary capacity when giving instructions, then the standard required of execution is far lower, it being sufficient the testatrix understands that she is executing the will for which she had previously given instructions.”

His conclusion at paragraph 20 is:

“On the basis of the information available to me, I conclude that, on balance of probability, Mrs Rand would have recognised that the document she signed on 20 June was the will based on her earlier instructions so as to satisfy the rule in Parker v Felgate.”

In the light of this evidence from the claimant’s own expert witness, I cannot possibly find that the claimants have discharged the onus of showing that Mrs Rand had full testamentary capacity on 20 June, and I find that she did not.

[40]The secondary case that Miss Brown put forward was that she had full testamentary capacity on 15 June and sufficient capacity to satisfy the Parker v Felgate test on 20 June. As to 15 June, Professor Hodkinson’s view is that, on the first admission, she suffered an acute confusional state which was improving on 30 May. He did not have any medical evidence that it continued to improve, or as to what her mental state actually was on 15 June. In particular, he told me that you could not tell anything about her mental state from the fact that she was discharged on 7 June. You could not tell if she was still confused. His reading of the notes was that the hospital was waiting for her diarrhoea to settle, and it is notable that the occupational therapist recommended her for discharge with a care plan of carers coming in three times daily, at a stage when she was categorising her as having “marked confusion”, relying on the score of 2 out of 10, as I have previously mentioned. Given Professor Hodkinson’s evidence that acute confusional state can persist for weeks after a provoking event, it follows that even if he was entirely right in his diagnosis that Mrs Rand had only mild underlying dementia, and the low scores seen in May were the result of acute confusional state, it does not indicate that she would have recovered by 15 June. It is noticeable, in his view, that in the case of the second admission the trigger event was on 21 June, but the acute confusional state was still persistent on 14 August, some 7 weeks later.

[41]In my judgment, therefore, the medical evidence does not and cannot answer the question as to what mental state she was in on 15 June. Even accepting Professor Hodkinson’s opinion on acute confusional state rather than moderate dementia, as was Dr Aziz’s opinion, the real question is whether it had improved by 15 June to the requisite level. As Professor Hodkinson himself accepts, this can only be determined by looking at other evidence, in particular the instructions that she gave on that day. His view was that the detailed instructions she gave, and the fact that she gave what he described as cogent and logical reasons for her decisions, indicated that she had much improved cognitive function in the time when she was at home between the two admissions, but he of course accepted that ultimately it is a matter for the court, after hearing the totality of the evidence, and, as I have already said, I have the benefit of rather more detailed explanation and evidence than was available to him. There are two particular strands to this. First is the evidence of those who knew Mrs Rand as to her mental state in the months before her first admission. This can be summarised as follows. Firstly, Mrs Pat Goodwin said she could not remember exactly when Eileen became ill. The first thing she noticed was her becoming “less nice”. She said, “Eileen was always a very nice, sympathetic and generous person. She always had sympathy for everybody. She was changing and becoming less sympathetic, and this was quite clearly noticeable when my husband, her brother, was ill. She was not very caring. It was just not like her.” She then said, “She started becoming forgetful and became increasingly erratic.” She gave a particular instance of Eileen arriving at her home at 8 o’clock on a very hot summer’s evening “wearing a plastic mac and carrying a trolley and said we were going shopping”. She referred to the fact that she stopped phoning so regularly. She stopped calling her cousin Sylvia who had always been in contact with her, as I have already referred to. She gave a particular example when she, Pat, told Mrs Rand that she had some bad news after Bill had died. She told her that Bill had passed away, and she responded, “Oh, that news”, which Pat described as “very strange”, because she was so close to her brother. I accept all this evidence.

[42]Mr Derek Goodwin said, “It was not until late 2006, but in hindsight it was probably before, that my sister started repeating conversations, i.e. telling me something and then shortly after telling it to me again. She would start one conversation but almost immediately start on a different one. She would then have no recollection what she was talking about previously. She was forgetful around the house, leaving the kettle on and the like.” In cross-examination he expanded on this and said, “She would tell me a story. She would then nod her head, and then she would start telling me exactly the same story.” In relation to leaving the kettle on, he explained that she would not have electric kettles but had kettles that went on the stove, and she burned through the bottom of a number of kettles. He also said, “I would speak to my sister on the telephone, but she became more confused on the telephone and also would forget to telephone her.” During the critical fortnight of 7 to 21 June he gave evidence that he visited. He said this, “On one occasion I asked her if the carer had been to attend to her, and she replied that she did not know. I checked the carer’s logbook, and the carer had been that day.” I accept that evidence, and since she did not have carers except during the period 7 to 21 June, in my judgment that can be securely dated to that fortnight. He also said that the house had not been kept clean for some months. His wife Julie confirmed his account. She also said, “She wasn’t the same lady any more. She neglected her hair and she let her nails grow.”

[43]Against this, I have Mrs Efthymiou’s evidence. She said, “Her state of mind was what I would describe as normal for her age.” This is at the time of her first admission on 23 May. “She was speaking clearly and made sense. There were no signs of forgetfulness or mental issues.” However, as I have already referred to, the medical notes on three separate occasions record Mrs Efthymiou as saying that Mrs Rand had been forgetful, that she had “dementia”, and that she had cognitive/memory issues, and I have already said that I accept that evidence. I do not think that Mrs Efthymiou, who generally gave evidence in a very straightforward manner, is deliberately being untruthful about this, but the events took place 6 years ago, and they have become very important to her, and in the intervening period she has no doubt come to think that Mrs Rand had a better state of mind than the contemporaneous evidence indicates. In any event, so far as the critical period of 7 to 21 June is concerned, she accepted in cross-examination that she did not visit Mrs Rand much in this period. She stayed away, because she was embarrassed about the will. She was asked whether she did not go round so much, to which she said, “No”, and she was asked whether that was because the will had been drawn up, to which she said “Yes”, but also that Mrs Rand had carers and she was in good hands.

[44]Miss Brown referred to the GP notes and the fact that they contained no specific indications of confusion or forgetfulness for the period 7 to 21 June. I accept that, but it does not, by itself, take matters very much further. She was receiving a care package of either 3 times a day or twice a day, and it might not have seemed notable to record that she needed help. I did not, in the event, hear from the carers, who might have been able to shed more light on this.

[45]In the light of the totality of the evidence, I find that before her first admission on 23 May and in June 2007, after the discharge, she was forgetful, and that this was indicative of an underlying dementing illness. This does not, by itself, mean that it was at that stage so advanced that she lacked capacity, but it does require one to consider with care whether the onus on the claimants as to her capacity on 15 June has been discharged. Professor Hodkinson, as indicated, relied on the clarity of her instructions and the cogent and logical reasons for the decisions. I accept, and indeed it was not disputed, that she clearly had a degree of memory and insight on 15 June, as shown by the instructions given to Mr Markou, who had no previous knowledge of her, her family or her wishes, and who therefore could not have made up any of the matters recorded in his note. They must have come from Mrs Rand. The note indicates that she told him that she had not been married long; that her husband Mr Rand was previously married; that she had been bad at night and taken in the ambulance to North Middlesex Hospital; that she was in the first hospital bed in the ward; that she had no children but that her husband had had a daughter; that she had not seen her since after the funeral; that Ted left the house to Eileen; that she had two brothers and one had died and was survived by her younger brother whose name was Derek James Goodwin; and she referred to Andre, and referred to Andre and her husband as being “good friends”. All those matters, with the possible exception of the fact that she had not seen Mrs Woolvin since after the funeral, were true and accurate, and in my judgment tend to confirm Professor Hodkinson’s view that her mental state had improved from 30 May. I also accept, and again it is not disputed, that, on the face of it, it is not irrational for an elderly woman to wish to leave property to a close and supportive friend and carer, and the reasons given, that she and her husband were good friends, are, on their face, entirely rational. But there are, nevertheless, certain matters which do, on investigation, seem slightly odd.

[46]The first of these is that Mr Markou’s notes record her as “wishing to leave £10 to Ted’s daughter”, but that she could not find her address and so she dropped it. £10 is too small a sum in 2007 to be a meaningful amount. It seems to me that there are only two possible explanations. One is that she deliberately intended this to be an insulting gift. I reject this explanation. To have left Mrs Woolvin £10 deliberately would have been a very unkind thing to do, and nothing I have heard of Mrs Rand from those who knew her suggests that she was mean, or vindictive, or cruel, or had any unkind streak in her at all. She was described by Mrs Efthymiou as “a lovely lady”. She was described by Mrs Gregoriou, who met her once at Mrs Efthymiou’s house, as “a very nice lady”, and also by Mr Markou as a “nice lady”, and I have already referred to Pat’s description of her before the onset of her change of mind. On the contrary, she seems to have been a very pleasant woman. I therefore reject the explanation that she deliberately intended to be unkind to Mrs Woolvin, and if she had really deliberately set out to be unkind in this way, one would expect her to carry it through and not be put off just by being unable to lay her hands on her address. The only other possible explanation, so far as I can see, and none other has been suggested to me, is that she did wish to do something for Mrs Woolvin. In this case it raises real doubts as to her awareness of the value of money. £10 may have been a reasonable sum to leave as a small legacy in the 1960s, but by no reasonable view could it be regarded as such in 2007. In my judgment, this casts some real doubt on her then state of mind.

[47]The second matter which emerges from the note that Mr Markou took is that he records an address for Mr Derek Goodwin in Ilford, which is an address that Mr and Mrs Goodwin had left some 11 or 12 years before. Mr Markou explained in evidence that Mrs Rand left him to find the address in an address book which she gave him, and that he found this address, and he may not have looked on to find if there was a later one. That is some explanation, but it is still odd that Mrs Rand did not know her brother’s address, where he had been for 11 or 12 years, or know where to find it. Mr Goodwin explained to me that she certainly had known their address. He received birthday and Christmas cards up to a couple of years before.

[48]There is also the matter of the side letter which was dictated by Mr Markou on the basis of what she told him. Paragraph 1 of the side letter explains that she decided that she would only include her surviving brother, i.e. Derek Goodwin:

“I felt that my brother was close to me.”

That, by itself, is a perfectly adequate explanation. Paragraph 2 however goes on:

“I do not include my late brother’s family as did not consider my late brother’s family close to me.”

Her late brother was, of course, Mr Bill Goodwin. The reference to her late brother’s family can only mean one of two things. Either it is intended to be a reference to his children, or to his wife Pat. He did not have any children, and since Mrs Rand had an otherwise good memory of the various members of her family, I regard it as unlikely that she had come to think that her late brother Bill and Pat had had children. In any event, if she had, that by itself would cast doubt on her understanding of her relatives. That means that the only likely explanation is that this is a reference to his wife Pat, but it makes no sense at all to say that Pat was not close to her. I have already referred to some of Pat’s evidence as to them being best friends since school days. She also said, “She had always been a very big part of my life.” She gave oral evidence to me and explained that she used to walk round to Mrs Rand’s house, which was not very far away. Julie Goodwin said of this paragraph, “That just isn’t right. That just isn’t Eileen.” Derek Goodwin said in his evidence that she had quite a lot of friends, and her very best friend was Lillian. He confirmed in his evidence orally, “My sister wouldn’t have put these words down about people that she liked.” I accept this evidence.

[49]Miss Brown submitted that friendships change and, in any event, perceptions differ, but I do not think that this can be the explanation. Of course, Mrs Rand did not need to leave anything to Pat, and it is noticeable that under her 1969 Will she left property only to Bill and, if, as happened, he predeceased her, it would not go to Pat but would be added to Derek’s share. So there was nothing irrational or surprising about her not leaving money to Pat. But there is something distinctly odd about her explaining this as being because Pat was not close to her. I find that this too is strongly indicative that her dementing illness, or the acute confusional state that had been triggered on 23 May, or a combination of the two, was affecting her judgment.

[50]The next matter is paragraph 3 of the side letter. Paragraph 3 says:

“I also do not want to include my late husband’s daughter, because she has not kept in touch with me since her late husband died.”

Here the explanation, on its face, is an entirely rational one. But I have already referred to evidence from Pat and from Derek and from Mrs Martin that she did keep in touch with her, and that is evidence which I accept. Added to that is the fact that Pat said, “I believe she had promised Ted she would look after his family. She always said throughout her life that Ted was the love of her life”, and the evidence from Derek that, “She told me that she had promised Ted that she would look after his family. She made reference to this on a number of occasions to me.” Again I accept that evidence. And that tends to be confirmed by the fact that she kept various important pieces of paper in a locked box in a wardrobe, which in the event she gave to Mrs Efthymiou, which included Ted’s birth certificate, their marriage certificate, and various matters relating to his death. And indeed by Mrs Efthymiou’s own evidence in which she said, “She did not want to re-marry, as this felt disloyal to Ted. Ted was her first love.” It is also consistent with the terms of the 1969 Will which, as I set out earlier, echo those of Ted’s own two wills which are in evidence. I find that she did promise Ted that she would look after his family. She kept that promise in 1969, and she did not change her mind in the next 37 years. None of this means, of course, that she was not entitled to change her mind and decide in 2007 that the promise she had made to her husband so long before – it is not suggested that this promise was legally binding – was no longer something that she was going to keep. But, if so, one would expect a very different explanation than the bald and not entirely accurate one which she gave, and it is distinctly possible, in my judgment, that the rather half-hearted attempt to leave a legacy to Mrs Woolvin was itself a recognition, although not a very accurate one, that she did owe some moral obligation to her. If so, the very fact that she did not carry it through indicates a lack of focus, or what in some of the cases is called “a lack of energy” in relation to this aspect of her will.

[51]Paragraph 4 of the side letter refers to other family members:

“I have also considered my other family members, but have not included any of them, as they are not close to me, nor have they stayed close to me.”

Again, the evidence is that she used to be in regular contact with Sylvia, at least, and that it was she who lost touch with Sylvia, rather than the other way round. Again, there is nothing odd or irrational about not leaving money to her cousins, and she had not done so before. But once again the explanation that she gives is rather at odds with what we know of the facts.

[52]Set against these considerations, I had the evidence of Mr Markou that she appeared, in his words, “completely normal and rational, certain of her instructions, and very clear on the reasons for those instructions”. He says that at no point during the meeting did he have any reason to believe that Mrs Rand did not understand the nature and effect of the instructions she was providing. I have also already referred to the fact that he asked two questions which he had learned were good practice, precisely in order to check that she did understand what she was doing. I accept his evidence, and I accept that she presented to Mr Markou as rational, and he did not have reason to think otherwise at the time, although I do think that he might have paused to consider why she was thinking of leaving £10 to somebody. As to the two questions, I am told that the Prime Minister on 15 June 2007 was still Tony Blair, who had been Prime Minister since 1997, for over 10 years. And she was undoubtedly oriented to time and date. These do show a considerable degree of understanding, but, in my judgment, they do not remove the effect of the oddities that I have referred to.

[53]So far as the Banks v Goodfellow test is concerned, as lettered in the judgment of the Court of Appeal in Sharp v Adam, requirement(a) is that she should understand the nature of the act and its effects, i.e. the act of making a will. Mr Redmayne did not dispute that it was clear from the instructions that she knew she was making a will and what it did.

(b) is that she should understand the extent of the property of which she was disposing. Again, it is not disputed that she did have a sufficient understanding of the extent of the property of which she was disposing.

(d) is that no disorder of the mind should inter alia prevent the exercise of her natural faculties. Here, Mr Redmayne submitted that she did not pass the test, and I accept this submission. I find that she was suffering from a disorder of the mind, or, in modern language, cognitive impairment, and that the claimants have not discharged the onus of showing that she satisfied part (c) or (d) of the test as laid down in Banks v Goodfellow. I have in mind also the passage which I have already read from Harwood v Baker as to the requirement for caution where someone is concentrating their attention on the object that is before them and is less capable of recollecting those who are not in their immediate presence. I should record that this does not mean that Mrs Rand did not wish to leave property to Mrs Efthymiou. I accept, as I have already said, that she was a close friend. I accept that she did wish to benefit her. I think she was deeply appreciative of the close and regular support that Mrs Efthymiou gave her, and she was genuinely fond of her and her family. If it is suggested, indeed I am not sure that it has been, that Mrs Efthymiou was taking advantage of Mrs Rand, I entirely reject it. However, for a will to be upheld it is established in the authorities that it is not enough to show that the testator or testatrix wished to benefit the person who was in fact benefited. It must also be shown that no mental disorder or, in modern language, as I have said, cognitive impairment, prevented her from having in mind all the other claims and considerations which she should properly have in mind. This does not just mean recording who else might be potential beneficiaries, but the nature of their claims. For the reasons I have given, I am not persuaded, on the balance of probabilities, that this is the case. I therefore find that she did not have testamentary capacity on 15 June.

[54]That is enough to dispose of the case, but I should briefly deal with the issue of her capacity on 20 June. As I have said, that depends, in my judgment, on the third limb of Parker v Felgate being satisfied. Again the onus is on the claimants. Again I find that it has not been discharged. The evidence really amounts to no more than that she signed a piece of paper. Mr Christou says:

“I remember speaking generally to Mrs Rand. She seemed alert and normal. I did not speak to Mrs Rand about the contents of the will or anything in connection to the will. She seemed clear that she was signing her will. She seemed alert and competent in signing her name on the will without any difficulty or hesitation.”

Mrs Gregoriou says, in almost identical language, “I also remember speaking generally to Mrs Rand. She looked happy and alert. I did not speak to Mrs Rand about the contents of the will or anything in connection to the will. She seemed clear that she was signing her will. She seemed alert, confident and competent in signing her name on the will without any difficulty or hesitation.” Miss Brown said that the will had been dropped off some 4 days before, and that was ample time for her to read it. No doubt it was, but there is no evidence before me that she ever did so, and I am not prepared to infer, in the light of the evidence that I have heard, that she would have done so. This evidence does not, in my judgment, establish, on the balance of probabilities, even that she really knew that what she was signing was a will, but it does not establish, in any event, that she recollected that she had given instructions on 15 June and knew that she was giving effect to those instructions. It is entirely consistent with the evidence of the witnesses Mr Christou and Miss Gregoriou, whose evidence I accept, that she had no recollection of seeing Mr Markou, or that she had given him instructions at all. In my judgment, the requirements of Parker v Felgate are not shown to be made out.

[55]So far as want of knowledge and approval is concerned, it is not necessary, in the light of my conclusions, to deal with this. I will, however, say a few things very briefly. The requirement as to knowledge and approval is really designed to ensure that the court is satisfied that the will gives effect to the intentions of a testator or testatrix. In a normal case where there is no question of capacity, knowledge and approval will be assumed from the mere fact of signature. But in certain cases, which have traditionally been classified as those which excite the suspicion of the court, for example where the draftsman of the will takes a substantial benefit under it, the court requires to be satisfied by the evidence that the will genuinely represents the intentions of the testator or testatrix. It has been said to be really an evidential matter. I was referred to the case of Fuller v Strong

[2001] EWCA Civ 1879

, a decision of the Court of Appeal, which contains a relatively modern examination of the principles. Normally the question of knowledge and approval falls to be determined as at the date of execution. But where there is a question of capacity and the principle in Parker v Felgate is invoked, the position is a bit more complex – see Perrins v Holland, where there is a full discussion on this point. As I read that case, the result is, firstly, that one can have knowledge and approval, even in a case where a testator lacks capacity – see, in particular, the Chancellor’s judgment at paragraphs [28] and [29], and the case in the Privy Council of Battan Singh v Amirchand referred to in paragraph [29], and in the judgment of Moore-Bick LJ at paragraph [63]. It may seem paradoxical that a person can know and approve the contents of a will while lacking capacity, but it is in fact an entirely logical position, and in any event it is binding on me. The second thing I take from the decision of the Court of Appeal in Perrins v Holland is that in a Parker v Felgate case knowledge and approval at the date of execution is not in fact required, provided it is shown at the date on which the instructions are given.

[56]In the present case, Mr Redmayne accepted that on 15 June Mrs Rand did intend to leave half the property to Mrs Efthymiou, and that she therefore knew of and approved the gift of that property to her. That, as I have explained, is, in accordance with the authorities, not inconsistent with the lack of capacity which I found on that day. I find that she did know and approve of that, but, for the reasons already given however, it does not assist in this particular case. I will therefore pronounce against the 2007 Will and admit the 1969 Will to probate in solemn form.