Nutt & Anor v Nutt [2018] EWHC 851 (Ch)

[2018] EWHC 851 (Ch)Case No HC-2015-004004
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 19/04/2018
Before
MASTER CLARK
Between
(1) CHRISTOPHER ROBERT NUTTClaimants(2) VIVIENNE ROSEMARY NUTTClaimantCOLIN EDWIN NUTTDefendant
Gavin Hamilton (instructed by LAS Solicitors) for ClaimantsThe Defendant in person for in personHearing Hearing dates: 20-22 March 2018
Judgment ApprovedMaster Clark:
[1]This is a probate claim in which the claimants seek to establish the will dated 26 June 2005 (“the 2005 will”) of their mother, Lily Rose Nutt (“Mrs Nutt”), who died on 25 February 2013 aged 88. The only ground on which the claim is defended is that the 2005 will was revoked by a later will dated 7 April 2010 (“the 2010 will”). The Defence as served was accompanied by a Counterclaim seeking proof in solemn form of the 2010 will; but this was formally withdrawn by a letter dated 18 January 2016 sent by the defendant’s then solicitors, Edward Oliver & Bellis. It remains necessary, however, to determine whether the 2010 will is valid; as if it is, it revokes the 2005 will, and would be admitted to probate in common form as the last valid will of Mrs Nutt.[2]Mrs Nutt was a widow, with three adult children at the date of her death. The claimants are her two older children, Christopher Nutt (now aged 73) and Vivienne Mahoney (now aged 71). The defendant is her youngest child, Colin Nutt (now aged 64). Since shortly after close of pleadings (8 December 2016), he has acted in person. I shall refer to each of the siblings by their first name.

The effect of the 2005 will and the 2010 will

[3]Both wills appoint Christopher and Colin as executors. The primary difference between the two wills is that the 2005 will divides Mrs Nutt’s residuary estate between the three siblings; whilst the 2010 will leaves her house, 6 Manford Way, Chigwell, Essex IG7 4JG (“the House”) to Colin. The House is effectively the only asset in the estate and is worth about £350,000. The witnesses Claimants’ witnesses

The witnesses

[4]The witnesses on behalf of the claimants were the claimants themselves, George Mahoney (Vivienne’s husband), Pamela Clissold (a friend of Christopher and his wife Sheila, as well as Mrs Nutt) and John Burt (the solicitor who prepared and arranged the execution of the 2005 will).

Christopher Nutt

[5]Christopher is a well educated person (his qualifications include a PhD), who has had a professional career (unlike the other members of his family). His evidence generally had a measured temperate quality. Nonetheless, it was, in my judgment, coloured by an inability or unwillingness to countenance a disposition of his mother’s estate other than in equal shares to the three siblings. He made a number of statements about Colin intended to diminish his standing, which he was compelled to withdraw from when cross-examined: e.g. that Colin left school without any qualifications; that Colin worked as a bodyguard. His evidence as to Mrs Nutt’s capacity was inconsistent. On the one hand, he described her as having very impaired mental capacity before the date of the 2010 will; on the other hand, he described a conversation with her in the year before she died (i.e. 2012), in which she said that she had left the House to all three of the siblings; and that she wished they would get on better with each other, because she loved each of them the same. He even said that what would happen to the House was on her mind in the last few days of her life, when she was in hospital in 2013. When cross-examined about a conversation between his sister and Beverley Chow after his mother’s death, he avoided giving details of the conversation (which did not assist the claimants), referring to it as “mother rambling on”. He was also reluctant to admit, although he finally did admit, that Mrs Nutt spent Christmas with Colin and his partner Sue on at least several occasions in the period from 2002 to 2012. Overall, I have reservations about his evidence.

Vivienne Mahoney

[6]I also have reservations about the evidence of Vivienne. Her witness statement also made deprecating comments about Colin, which she was unable to support in her cross examination. She claimed to have no recollection of the arrangements for care for Mrs Nutt following her heart attack in 2007, and reluctant to admit (though, again she ultimately did admit) that Colin and his partner Sue stayed with Mrs Nutt for 5 of the 7 days of the week in that period.[7]The other witnesses on behalf of the claimants were honest witnesses, trying to do their best, although Mrs Clissold’s evidence was confused at points.

Defendant’s witnesses

[8]The witnesses who gave evidence on behalf of the defendant were Colin himself, Steven Jones (the attesting witness of the 2010 will), Valerie Jones (Steven’s sister and the other attesting witness of the 2010 will), Mrs Lynne Tansley and Mrs Pat Sayers (both friends of Mrs Nutt) and Janice Salmon (a friend of Colin).

Colin Nutt

[9]Colin’s evidence was forceful, and very emotional at times. He also tended to exaggerate matters that were in his favour, but overall, I consider that he was a generally truthful witness.[10]As to the other witnesses called by Colin, Steven Jones was at school with Colin and is his best friend; through this, he also knew Mrs Nutt very well. Valerie also knew Mrs Nutt, but not as well as her brother. Their evidence is discussed at paras 40 to 42 below. Mrs Tansley and Mrs Sayers had no connection at all with Colin - they met and became friends with Mrs Nutt while walking dogs in the road where she lived; and have no interest in the outcome of this case. They gave their evidence clearly and straightforwardly, and I have no hesitation in accepting it. Janice Salmon was also a straightforward witness, although she did have a connection with Colin.

Expert evidence

[11]The evidence included the report dated 25 January 2018 of a single joint handwriting expert, Mr Anthony Stockton. The bundle included the medical records of Mrs Nutt, but there was no expert medical evidence.

Factual background

[12]Mrs Nutt was born on 4 November 1924. She left school at the age of 14 and went to work at Selfridges. In December 1943, when she was 19, she married Christopher Richard Nutt. He died of a heart attack in 1982, at the age of 60.[13]On 30 May 1986 Mrs Nutt made her first will. This appointed Christopher and Colin executors, and, after a number of small bequests, divided her residuary estate equally among her three children.[14]Colin lived with his parents on a permanent or semi-permanent basis until 15 May 1990, when, after a conflict with his mother (arising from his divided loyalty between her and his then partner – who had serious mental health issues), he left. There was then little or no contact between him and Mrs Nutt until about 2003, when he returned to live and work in the area.[15]Mrs Nutt suffered from a number of medical problems towards the end of her life. In 2001 she began suffering from dizzy spells and complained of a tremor in her right arm. In January 2004 she was diagnosed with Parkinson’s disease.[16]The 2005 will was prepared by a solicitor, John Burt, who was an acquaintance of Mrs Nutt and lived nearby. He also arranged the execution of that will at the House, and he and his wife were the witnesses to its execution.[17]In June 2007 Mrs Nutt had a heart attack and two stents were fitted; followed by an extended period of convalescence at home. In 2008 she also developed Paget’s Disease, a bone-weakening illness. By April 2009 she had limited mobility and was walking with a stick.[18]The only reference in Mrs Nutt’s medical notes to her mental condition during the period surrounding the execution of the 2010 will is an entry dated 11 November 2010 (7 months after the date of the 2010 will), following a home visit by a GP, Dr Nadeem Saleem:
“Home visit saw PT about a week ago, notes enterd in retrospect, she was seen as daughter worried about dementia, when I saw her, she told me she gets anxious, but doesn’t forget, she loves going out but due to mobility can’t do so, also she can answer questions about recent and past things in satisfactory way, she talked about politics and her life and also son was there and i feel she has no dementia but gets anxious and lonely”
[19]On 13 April 2011 Vivienne wrote to Mrs Nutt’s GP, asking for her to be referred to a memory clinic, stating “I appreciate that she did have a small home test several months ago, but now she can no longer remember how to use several simple pieces of household equipment, family member names, dates etc.”[20]On 13 May 2011 Mrs Nutt underwent a Mini Mental State Examination in which she scored 23/30, and an Addenbrookes Cognitive Examination in which she scored 57/100. There is no admissible evidence in this case as to the significance of these scores in assessing testamentary capacity.[21]On 5 July 2011, a diagnosis of dementia in Parkinson’s disease is recorded in a letter of that date, which sets out that she has had a memory problem for six months to a year previously.

Family support

[22]It is common ground that in the last decade of her life Mrs Nutt needed and received a great deal of support from her family. Colin’s case is that he provided the majority of this support and that his siblings provided far less. This is disputed by the claimants, who maintain that all three siblings supported Mrs Nutt to an equal degree; and maintain that there was no reason for Mrs Nutt to make greater provision for Colin than for them.[23]Christopher lived in Bournemouth for 14 years from 1988 to 2003. His evidence was that Mrs Nutt stayed with him during that time, that his family visited her for her birthdays and Christmas; and that in the summer he visited her on Saturdays to do gardening and DIY jobs in the morning, before going on to play cricket at his local cricket club. The journey time was about 3 hours driving there and about 2 hours driving home.[24]In 2003 Christopher moved to Burnham on Crouch in Essex, to be nearer to his mother; and could visit her more frequently, as the journey time was only about an hour. His evidence was that from about 2010 the three siblings had a rota to ensure that one or other of them would be with her each day. He said that he was with his mother often, regularly and for substantial periods of time; and that he gave her caring attention and practical help both domestically and for her many hospital and clinical appointments.[25]As for Vivienne, it is common ground that she visited Mrs Nutt every Sunday, when she did all her laundry and other housework. She also dealt with Mrs Nutt’s paperwork, including bills, pension paperwork, and organising her doctors’ and hospital appointments, to which she also accompanied her mother. Her evidence was that in addition to this, she visited her a further one or two times a week.[26]Colin’s case is that he spent 3 or 4 nights a week at the House from 2005 onwards; spending the other nights at the house of his partner, Sue, in Enfield. The claimants say that, after leaving in 1990, he has never lived at the House. Mrs Nutt’s medical records describe her as living alone. Colin’s address is given in the medical records as the Enfield address. Colin’s evidence was that he and his mother discussed whether she should tell her doctors that she was living alone and that they agreed that she would get a better standard of care if she said she was living alone; particularly since he travelled extensively.[27]I accept that Colin stayed at the House reasonably frequently, but not as frequently as he claimed. However, Enfield is only 25 minutes drive from the House; Colin was frequently working as a builder or landscaper in the area around the House; and he kept his tools at the House. Colin was more easily able to and did spend more time with his mother than his siblings, who lived and worked further away.

The 2010 will

[28]Turning to the 2010 will itself, this is in a pre-printed form. There is no evidence as to who bought the form or how Mrs Nutt acquired it. The operative part of the will is completed in block capitals. Mr Stockton concludes that there is very strong evidence to show that the writing in that part of the will was not produced by Mrs Nutt; and it was common ground between the parties that she did not write it. There is no evidence as to who wrote it, nor as to the preparation of the will. As for the signature appearing to be Mrs Nutt’s signature, this appears in two places in the will: first, immediately below the dispositive provisions; and secondly in the space provided by the pre-printed form. Mr Stockton’s conclusion is that the evidence as to whether Mrs Nutt produced those two signatures is inconclusive i.e. he has no opinion in respect of it.

Issues

[29]In these circumstances, the issues in the claim are:(1) The formal validity of the 2010 will - whether it was executed by Mrs Nutt;(2) If so, whether Mrs Nutt had testamentary capacity when executing the will;(3) If so, whether Mrs Nutt knew and approved the contents of the 2010 will;(4) If so, whether the execution of 2010 will was procured by undue influence on the part of Colin.

Legal principles

[30]The legal principles applicable to this case are well established, and it is not necessary to set out a detailed discussion of them.

Due execution

[31]Section 9 of the Wills Act 1837 provides that:
“No will shall be valid unless— (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either— (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.” (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either— (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
It is for Colin to prove that these requirements are satisfied. Testamentary capacity[32]The applicable test as to testamentary capacity is that set out in Banks v Goodfellow (1869-70) LR 5 QB 5494 as follows:
“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] 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.”
[33]As to the burden of proof:(1) The burden is on the person seeking to establish the will (‘the propounder’) to establish capacity;(2) Where a will is duly executed and appears rational on its face, then the court will presume capacity;(3) An evidential burden then lies on the objector to raise a real doubt as to capacity;(4) Once a real doubt arises there is a positive burden on the propounder to establish capacity; See Ledger v Wootton [2007] EWHC 2599 (Ch) at [5].

Knowledge and approval

[34]The legal principles applicable to the issue of whether Mrs Nutt knew and approved of the contents of the 2010 will are set out in the judgment of Lord Neuberger MR in Gill v Woodall [2011] Ch 380 at [14]:
“Knowing and approving of the contents of one's will is traditional language for saying that the will “represented [one's] testamentary intentions” see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. …”
[35]Previous case law (going back to the 19th century) approached the issue of knowledge and approval on a two stage basis. The court first asked whether the person challenging the will had established sufficient facts to “excite the suspicion of the court”, i.e. whether they had made out a prima facie case that the testator did not in fact know of and approve the contents of the will. Secondly, if the court held that the person challenging the will had excited the suspicion of the court, it then turned to consider whether or not those suspicions were allayed by the propounder of the will.[36]However, in Gill vWoodall, Lord Neuberger approved a one stage or holistic approach, in which the court should “consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.” [21] I respectfully adopt that approach.

Undue influence

[37]The law was summarised by Lewison J (as he then was) in Re Edwards [2007] EWHC 1119 (Ch) at para. 47 as follows (so far as relevant): “There is no serious dispute about the law. The approach that I should adopt may be summarised as follows: i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence; ii) Whether undue influence has procured the execution of a will is therefore a question of fact; iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition; iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud; v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense; vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will; … ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.” … Discussion and determination Execution

Discussion and determination

[38]The claimants do not admit that the 2010 will was executed by Mrs Nutt, so it falls to Colin to establish this. As mentioned, Mr Stockton does not assist on this issue.[39]Colin relied upon the evidence of the attesting witnesses, Steven and Valerie Jones, and invited me to accept that evidence.[40]Steven’s evidence was as follows. Both before and after the execution of the 2010 will, Mrs Nutt had told him that she wanted Colin to have the House after she died. On 7 April 2010, Mrs Nutt phoned Steven at home, and spoke to his brother Frank, asking them to both pop up to her house. His brother Frank was not well enough to go, so Valerie went in his place. When they arrived, Mrs Nutt was alone and let them in. The will was laid out on the table. He had never seen a will before; but Mrs Nutt knew what to do and gave him and his sister instructions:
“She saw me through my paces.”
He didn’t read the will and neither did his sister. After the will had been signed, Mrs Nutt made him and his sister promise not to say anything to Colin about it. Mrs Nutt offered to make them a cup of tea, but Valerie made it. The visit lasted about 30 minutes.[41]Valerie’s evidence was in similar terms to that of her brother, although she recalled seeing the date on the will. Both Steven and Valerie said in their witness statements that they saw Mrs Nutt dating the will; and both accepted in their oral evidence that they could not have done, as the date is clearly in different handwriting from Mrs Nutt’s (as Mr Stockton confirmed).[42]The claimants’ counsel invited me to reject their evidence on the basis of three inconsistencies between Steven and Valerie Jones’ witness statements and their oral evidence. The first was that Mrs Nutt’s request that Frank come to the House was not mentioned in their witness statements - this is a minor detail, and I do not regard it as significant. The second was their resiling in their oral evidence from the statement that Mrs Nutt dated the will in their presence – however, this is the sort of detail which could easily be mistakenly recollected some years after the event. The final inconsistency put forward by the claimants’ counsel was that they did not mention in their witness statements that Mrs Nutt asked them not to speak to Colin about the 2010 will, and this only emerged in cross examination. Again, I do not consider the omission of this evidence to be significant.[43]Most importantly, Mrs Nutt told Mrs Tansley, Mrs Sayers and Ms Salmon that she had made a will leaving the House to Colin i.e. that she had executed a will having that effect.[44]I find therefore that the 2010 will was executed by Mrs Nutt.

Testamentary capacity

[45]In his Defence, Colin accepted that the burden of proof was on him to show that Mrs Nutt had testamentary capacity when executing the 2010 will. In the absence of expert medical evidence, my conclusions are based on the contemporaneous records of Mrs Nutt’s mental condition found in her medical records, contemporaneous documents evidencing her mental condition, and the evidence of the witnesses who saw her at the time.[46]The medical notes include the record of the home visit on 18 November 2010 set out at para 18 above. Vivienne’s evidence was that Colin had told her that the doctor’s visit was very short, less than 10 minutes; and that he had only asked Mrs Nutt a few questions. Colin disputed that and said that the visit was longer, though less than 30 minutes. However, the purpose of the visit was to form a view as to whether Mrs Nutt had dementia; I find that the Dr Saleem took the steps necessary to ascertain whether Mrs Nutt was showing signs of dementia.[47]The claimants’ counsel relied upon the diagnosis of dementia in Parkinson’s disease that was made after Mrs Nutt was examined in June 2011; and upon the letter dated 5 July 2011 from Dr H. Kinsler (Mrs Nutt’s consultant psychiatrist) recording that Mrs Nutt “has had a memory problem for six months to a year”. The claimants’ counsel submitted that the dementia diagnosis at the very least cast a doubt on her capacity, which had not been dispelled. However, assuming that Mrs Nutt had dementia from the start of this period, it is of course later by two months than the date of the 2010 will. I therefore reject that submission. In any event, there is no evidence before me showing that a diagnosis of dementia in its early stages is sufficient to raise a real doubt as to testamentary capacity.[48]Christopher and Vivienne gave clear evidence as to Mrs Nutt’s general lack of cognitive functioning, including being unable to use domestic equipment such as the vacuum cleaner and microwave; and just sitting staring blankly at the television, which was constantly on. They also gave evidence of repeated telephone calls to members of the family asking when they would be coming to visit her, and leading to large telephone bills. They said that by 2010 she could barely write her own name.[49]Their evidence is however inconsistent with Christopher’s own evidence noted above: that Mrs Nutt was discussing her testamentary intentions with him up to her death. It is also inconsistent with the evidence of the witnesses (Mrs Tansley, Mrs Sayer, Ms Salmon) with whom Mrs Nutt discussed the fact that she had left the House to Colin, and her reasons for doing so.[50]The suggestion that Mrs Nutt could barely write her own name in 2010 is also inconsistent with greetings cards written by Mrs Nutt, copies of which were annexed to Mr Stockton’s report. In 2010-11, Mrs Nutt wrote a card to Vivienne saying, “To Viv, Sorry I’m late Love Mum xxx.” In 2011, she wrote and signed a Christmas card to Vivienne and George; and in 2012 she wrote birthday cards to both Christopher and Vivienne. I therefore reject the claimants’ evidence that Mrs Nutt was barely able to write her name in 2010.[51]As for her repeated telephone calls, these would appear be a symptom of her (diagnosed) anxiety, as in a letter dated 5 September 2012 from Susan Gregory, Mrs Nutt’s Parkinson’s Disease Nurse to Dr Kinsler, she states:
“Lily is very anxious after waking first thing in the morning. She will ring her daughter and sons continually, which causes her telephone bill to be astronomical approx. £200. Lily will be crying, concerned when they will be coming. Once they have been she doesn’t tend to phone in the evening.”
This shows that, contrary to the claimants’ contentions, Mrs Nutt was capable of remembering whether or not her family had visited her; because, once they had, she no longer felt the need to call them.[52]Turning to the test in Banks v Goodfellow, Mrs Nutt’s detailed conversations with Mrs Tansley, Mrs Sayer and Ms Salmon clearly show that she had the understanding necessary to make a will. In the case of Mrs Sayer, Mrs Nutt initially talked mainly about Colin in the first few weeks of their friendship, but then explained that Christopher and Vivienne came to visit her a couple of days a week. Similarly, with Mrs Tansley, Mrs Nutt put Colin at the forefront of their conversation. She explained to both witnesses that she had made a will leaving the House to Colin, because the other two children were OK.[53]I am satisfied, therefore that Mrs Nutt did have testamentary capacity when she executed the 2010 will.

Knowledge and approval

[54]There is no direct evidence that Mrs Nutt read the 2010 will nor that it was read to her. It was not read to her by Steven or Valerie Jones, nor did she read it to them. The claimants’ counsel submitted that the question was therefore whether it was safe to infer from the evidence as to the circumstances in which the 2010 will was executed that Mrs Nutt must have been aware, and appreciated the significance of its content, either from(a) having dictated the content whoever wrote it or(b) having it read to her by that person or someone else or(c) reading it to herself.[55]In deciding whether Mrs Nutt knew and approved contents of the 2010 will, applying Lord Neuberger’s guidance in Gill v Woodall, I have regard to all the circumstances surrounding the execution of the will, Mrs Nutt’s character and mental condition, and statements made by her as to the will. As to the first, the evidence of Steven and Valerie Jones (which I accept) was that Mrs Nutt was well aware that she was asking them to witness her will. As I have found, Mrs Nutt had capacity to make a will; and in my judgment, it is inconceivable that she would not have read it and satisfied herself as to its contents before inviting witnesses to attest her signature. Mrs Nutt’s medical records record Vivienne describing her as “very independent”, and this was the evidence of the other witnesses.[56]The claimants’ counsel relied upon the fact that in the 2010 will, Mrs Nutt’s first name is misspelled as “Lilly” and Vivienne’s name is misspelt as “Vivian”. However, Mrs Nutt’s first name has the same misspelling in both the 1986 will and the 2005 will; and Vivienne’s name is misspelt as “Vivien” in both Wills too. I do not attach any significance to these errors. I also do not attach any significance to the fact that the 2010 will does not include any provision for the disposal of Mrs Nutt’s body, as this type of provision is likely to be included at the prompting of the solicitor drafting a will (and is not of course binding on the executors).[57]The only witnesses who gave evidence of Mrs Nutt expressing an intention to leave the House between her three children were Christopher and Vivienne, and Mrs Clissold. I accept that Mrs Nutt did not tell Christopher and Vivienne that she intended to and had made a will leaving the House to Colin. I do not consider it likely that after Mrs Nutt had made the 2010 will, she told them in positive terms that she was leaving the House to be divided between all three children; but, if she did, she did so to keep the peace, and was not telling the truth to them.[58]Vivienne accepted, under cross-examination, that, after Colin had shown her the 2010 will, she phoned her mother’s friend, Beverley Chow, and discussed the will with her. Vivienne’s evidence was that Ms Chow said that her mother had told her that she was thinking of leaving Colin the House; and that when Ms Chow had said that wouldn’t be fair on Vivienne and Christopher, Mrs Nutt had responded “Well, I’ll be dead then.” This conversation was not mentioned in either Vivienne’s or Christopher’s witness statements.[59]Ms Chow was not a witness in the claim; although she was mentioned as a witness in Colin’s solicitors’ correspondence. She provided a draft statement, which was sent to the claimants’ solicitors (not included by them in the bundle, and only added in the course of the trial). It included the following:
“I write to confirm that Mrs Lillian Nut was a close friend of mine for over 25 years and who I got to know very well. At least 2 years prior to her death, lily the name she liked to be called, talked to me about her wish to leave her house to her youngest son Colin, the reasons she mentioned to me was simple, her son Colin didn’t have his own home and the other two Christopher and Vivian did. She was determined that Colin would receive and continue to live in her home which she had always tresured. Lily mentioned her wishes on a regular basis and I listened but didn’t comment in any way. I received a call from Vivian shortly after Lily died asking me if I new anything about her mum’s wishes, I did say much the same as above but added that towards the end I did think as she mentioned it more and more freequently it may have been that the dementure as it progressed, not the word Vivian has used (Lily’s rambellings) I firmly believe that Lily my lovely friend, wanted and was determined that her son Colin gets her house after she has gone. I hope that my statement is received and no further contact is made by the family of Mrs Lillian Nut, as I want to remember her as my close friend and not be drawn into any part of any legal proceedings.”
[60]This statement is not signed, and is of limited weight. But, it supports Colin’s case, not that of the claimants.[61]As for Mrs Clissold, whilst her evidence was that Mrs Nutt told her that the House would be divided between her 3 children, it was that she did so in the period 2000 - 2005, which is not of course the relevant period in this claim. The claimants’ case is not therefore supported by any independent witness able to speak as to Mrs Nutt’s testamentary intentions at the relevant time.[62]Colin himself gave evidence that from about 2008, his mother told him that she wanted to leave the House to him, and asked him to take her to a solicitor. He was reluctant to do so because he believed that, as he put it, he would be accused of making her change her will. He was also concerned that changing her will would ‘cause trouble’ i.e. create tensions in the family. His mother, however, kept insisting that he take her to a solicitor. Eventually, he told her, in forceful terms, that if she wanted to leave him the House, she should go and do it, but that he didn’t want to know about it. I accept that Mrs Nutt told Colin that she wanted him to have the House after she died.[63]The evidence called by Colin also included, as set out in para 52 above, the evidence of Mrs Tansley, Mrs Sayer and Ms Salmon that Mrs Nutt told them that she had made a will leaving the House to Colin.[64]The overwhelming inference to be drawn from this evidence is that Mrs Nutt, for her own reasons, intended to make a will leaving the House to Colin; and the 2010 will reflects that intention. I am therefore satisfied that Mrs Nutt knew and approved the contents of the 2010 will.

Undue influence

[65]The claimants’ counsel rightly accepted that the burden was on the claimants to prove that the facts are inconsistent with any explanation other than that the execution of the 2010 Will was procured by Colin’s undue influence over Mrs Nutt.[66]Regrettably, in seeking to make out this ground, the claimants made a comprehensive attack on Colin’s character, parts of which I have considered above. The claimants alleged that Colin had a dominating and domineering personality. However, the only examples Christopher could give of this in his cross examination was Colin “holding court” at the wakes for both their father and Mrs Nutt; and telling his mother to change her shoes or coat because the ones she was wearing would not keep her warm enough when she went out. These examples clearly fall short of what is required. The claimants also relied on Colin’s “irrational obsession” with how the Nutt family had treated Mrs Nutt, following the death of her husband. However, I accept Colin’s account of the reasons why he felt aggrieved towards one member of the Nutt family (his uncle Johnny); and Christopher accepted in cross examination that all three siblings had agreed not to invite Johnny Nutt to Mrs Nutt’s funeral. I do not therefore consider Colin to have been irrational or obsessive in his attitude towards the Nutt family.[67]The claimants also alleged that Colin charged Mrs Nutt for work carried out by him at the House. It was common ground that Colin carried out various works at the House, including replacing the front porch, works to the patio and garden wall and tiling a shower that was installed on the ground floor: Vivienne’s evidence was that Colin was Mrs Nutt’s “part-time carer, gardener and decorator”. I accept Colin’s evidence that he was paid in cash for materials, but not for his labour. I also accept Colin’s evidence that Mrs Nutt made her own decisions about what to do with her money, and this included giving him and other members of her family (including her grandchildren and great-grandchildren) money; she was, as I have noted, a very independent woman. I reject the suggestion that that Colin prevailed upon Mrs Nutt to give him money; or that he took money from her bank accounts. There is no evidence to support it.[68]Finally, the claimants relied upon two incidents in which Colin was said to have behaved violently towards Christopher. Both incidents undoubtedly involved high levels of conflict between the two brothers; I heard differing accounts as to what actually happened. It is not necessary for me to make findings of fact in relation to them. I am satisfied from the evidence I have heard, particularly the evidence of Mrs Sayer and Mrs Tansley, that Colin was affectionate and attentive towards his mother; and not aggressive or dominating. I also accept Colin’s evidence that he was not involved in the making of the 2010 will.

Conclusion

[69]The claimants’ counsel concluded his submissions by asking, rhetorically, why Mrs Nutt would change her will in 2010, when she spoke highly of all her children, and circumstances had not changed materially since she had made the 2005 will. One reason is put forward in the 2010 will itself: Colin does not own his own house; Christopher and Vivienne do. Another reason may be that, although Christopher and Vivienne gave considerable amounts of help and support to Mrs Nutt, Colin was physically nearer, more available when she needed help, and, in practice, was her first port of call. But it is not my task to decide whether the 2010 will was justified or fair; I am only required to decide if it is valid. For the reasons set out above I find that it is valid, and that the claim therefore fails.

Cited in 2 later judgments