Luke Ellis v Stephen Ellis & Ors [2024] EWHC 3416 (Ch)

[2024] EWHC 3416 (Ch)

Case No PT-2022-BRS-000087

IN THE HIGH COURT OF JUSTICE

Venue BUSINESS AND PROPERTY COURTS IN BRISTOL

TRUSTS AND PROBATE LIST (ChD)

IN THE ESTATE OF YEAMON KEITH CARE (DECEASED)

Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GR

Date 26/12/2024

Before

HHJ MICHAEL BERKLEY

(sitting as a Judge of the High Court)

Between

LUKE ELLISClaimant

STEPHEN ELLISDefendants

STEPHEN BERRYMANDefendant

(both as executors of the estate ofDefendant

YEAMON KEITH CARE (deceased))Defendant

VIVIAN CAREDefendant

Charlotte John (instructed by Wright Hassall LLP) for Claimant

James McKean (instructed by Coodes LLP) for Third Defendant

for The First and Second Defendants did not appear but were represented in the proceedings by Stephens Scown LLP

Hearing Hearing dates: 29 th, 30 th April, 1 st, 2 nd May, 1 st July and 5 th September 2024

JUDGMENT

HHJ Michael Berkley:

Overview

[1]These proceedings concern the estate of the late Yeamon Keith Care who was known universally as Keith (“Keith”). Keith and his elder brother, Vivian Pearce Care (“Vivian”), the Third Defendant, are the only children of the late Vivian Yeamon Care (“Yeamon”) and his wife Betty Care (“Betty”). I shall refer to all members of the Care and Ellis families by their first names for ease of reference. No discourtesy is intended. Stephen Ellis is Luke’s uncle but has quite properly taken a neutral stance throughout these proceedings as executor of the will in dispute. The First and Second Defendants are the executors of Keith’s will, the subject of this dispute, and have taken no active part in the proceedings besides Mr Ellis providing a testamentary script. For ease of reference, therefore, when I refer to the Defendant from now on, I am referring to the Third Defendant.

[2]Ms Charlotte John of Counsel represented the Claimant and Mr James McKean of Counsel represented the Third Defendant. The First and Second Defendants were represented but did not appear with the permission of the Court. I am grateful to Ms John and Mr McKean for their extensive written and oral submissions.

[3]The main asset of the estate is Keith’s land at Tregear Farm, Cornwall. Tregear Farm was originally purchased by Betty Care’s family in 1924. Tregear at the date of Betty’s death in October 2013 consisted of 60.66 acres of land, a stone-built farmhouse and agricultural buildings. The land and buildings at Tregear were divided between Vivian and Keith, on the terms of her 2010 will. Keith’s share as at the date of his death was valued at £655,000 and is subject to an outstanding mortgage of approximately £137,000.

[4]Luke propounds Keith’s will dated 23 August 2016 (“the Will”), of which Luke is the principal beneficiary. Vivian disputes the validity of the Will and contends that Keith died intestate. Vivian raises an alternative proprietary estoppel claim to Keith’s share of Tregear Farm.

[5]On all accounts, Keith was a remarkable man who remained determined to continue farming despite being very disabled as a result of severe scoliosis of the spine and attendant complications. His life’s work and focus were his herds of rare breed pedigree Large White pigs (“the Pigs”) and Dairy Shorthorn cattle (“the Shorthorns”). The witnesses described Keith’s scoliosis developing to such an extent in his later years that he was bent nearly double by the end. In particular, Mr Harrisson referred to his walking stick reducing in length about 3 feet to 1 foot, and that his pipe would knock against his knees when he smoked it. Keith’s herd, established from five pedigree Shorthorn cows, was one of only two pure pedigree herds in the world, the other being in Australia. There are two other herds in this country, both of which were established from Keith’s herd. The herd was of sufficient interest that some of Keith’s cattle were purchased on behalf of Prince Charles (as he then was) and taken to his estate at Highgrove.

[6]It is common ground that farming and the Shorthorns gave Keith purpose in life and a reason to keep going. It could be said that it was his whole life. As time progressed, he was not operating on a commercial basis: he was forced to stop selling his milk because not enough was produced, and his disability severely impacted his effectiveness. His mother did all of the accounts until her death in October 2013, although she had been struggling for a period prior to that. Thereafter Keith needed assistance with the administrative and financial side of the farm. He ran up a very large overdraft with Barclay’s Bank who were threatening to take action but, through the assistance of Mr Edward Richardson from the charity Farm Cornwall and Mr Peter Clarke from Farm Crisis Network (later becoming Farm Community Network), he was able to enter into an arrangement with Barclays to charge his share of Tregear in 2015 in order to keep going. I understand that this is akin to an equity-release arrangement in that interest is rolling up on the borrowing. The overdraft was originally standing at around £47,000 in November 2014 and was £168,000 as at the last estate accounts, dated 24 April 2024. It is in fact part of Vivian’s case that Keith’s obsession with the Shorthorns and with continuing to farm on his own despite his physical and financial difficulties, both before and after his mother’s death, that demonstrates either a growing mental incapacity on Keith’s part and/or that he did not understand the nature and extent of his estate when he executed the Will.

[7]It is common ground that Keith was on very high doses of morphine, and had been for many years. This was an attempt to combat the pain induced by his scoliosis and collapsed vertebrae as well other issues. One side-effect of the scoliosis was that Keith’s ribs would press against his internal organs. He had not slept on a bed for over 14 years because it was too uncomfortable. He also had poor eyesight and limited mobility.

[8]Despite all the challenges that he faced, Keith continued farming to the end of his days. He had established for himself a network consisting of a mix of local farmers and their wives, carers and charity support workers, who supported him at home and on the farm. The main charities and their representatives were Farm Community Network (Mr Peter Clarke MBE, Coordinator) Royal Agricultural Benevolent Institution (“RABI”) (Ms Elizabeth Hoare) and Farm Cornwall (Mr Edward Richardson, Farm Adviser and Rural Outreach Worker) and Debbie Evans, Bookkeeper (funded by RABI/Farm Cornwall).

[9]Keith also met a Mr Patrick Evans, who was planning on writing a book on cows, and the Shorthorn Society put him in touch with Keith. This developed into a good friendship, it seems. Keith was also involved with, and was a highly regarded within, the Rare Breed Survival Trust and the British Pig Association. The Claimant, Luke Ellis, says that he was a friend of Keith’s who shared his passion for rare breeds and was also one of Keith’s daily support network. Vivian does not accept this; his position is that Luke’s uncle was the only Ellis that Keith knew well. Luke’s case is that Keith’s family did not feature amongst his friends and support group, and Keith was in fact disappointed and upset by the lack of interest in him and assistance offered by Vivian and his two sons. In reply, Vivian says that he regularly asked Keith if he wanted assistance, but Keith always refused it.

[10]Very sadly, TB was found in Keith’s herd in September 2019 and the majority of the herd was culled, leaving only 8 which was reduced to 6 by February 2020. The herd had already been reduced to 20 by virtue of sales to the then Prince of Wales at Highgrove (about which Keith was very proud) and the only other pure herd in the country in Suffolk, that owned by Mr Granger Harrison with whom Keith was very friendly, despite being physically remote.

[11]Keith died in March 2020 and those 6 shorthorns were moved, not to the Claimant’s farm, but to a neighbouring farm owned by a friend of Keith’s, Larry Trewern. One of the central disputes is Luke’s alleged lack of connection to Keith, and Luke’s failure to take care of the beloved herd after Keith’s death. Vivian asserts that Keith’s decisions in his Will meant that his prized shorthorns (Vivian described them as Keith’s children) were not specifically catered for, nor did Keith ever extract a promise from Luke that he would look after them and breed them in the way that had meant so much to Keith. That in itself is relied on by Vivian as suggesting that he cannot have had capacity when he made the Will. Luke’s failure to take on the remaining herd, Vivian says, is evidence of the lack of any meaningful connection between him and Keith. Luke’s explanation is that it would have been cruel and dangerous to have moved this highly fragile and hand-reared herd into his own large cow-sheds full of commercial beef cows, it being winter, and it was much more appropriate to move them to the other side of the hedge from where they had always been. He also says that Keith in any event had been looking to move the remaining herd to Mr Harrison or Highgrove but had been unable to do so because of TB restrictions.

A Summary of the Issues

[12]A list of issues was produced by Counsel for the Claimant, Ms John. Whilst it runs to 13 individual questions, the four headlines are:-a. A. Was the Will validly executed?

b. B. Did the Deceased have capacity to make the Will?

c. C. Did the Deceased know and approve the content of the Will?

d. D. If the Will is found to be valid, is the Third Defendant entitled to a remedy on the grounds of proprietary estoppel?

[13]Issue A is founded upon an allegation that the two witnesses to the Will, Keith’s GP (Dr Fairlie) and Peter Clarke did not in fact witness Keith execute the Will because they were not both in Dr Fairlie’s consulting room when Dr Fairlie witnessed it.

[14]Issues B and C are self-explanatory. Vivian relies on aspects of Keith’s behaviour; his very high daily dosage of morphine; his inability to grasp that he was significantly in debt to the bank which would mean that Tregear would have to be sold if left to Luke, and what he says is the illogicality of choosing Luke as residuary beneficiary in any event. The parties adduced expert evidence in support of their respective positions. The Claimant’s expert is Dr Waleed Fawzi, MB, BCh, MSc, Dip Ger, MD, MRCPsych (who concludes that Keith had capacity); the Third Defendant’s expert is Dr Hugh Series DM, FRCPsych, LLM, MA, MB, BS (who concludes that he did not), both of whom are consultant old age psychiatrists.

[15]An unusual feature of Dr Series’ opinion is that he accepts that Keith was not delusional and had not been diagnosed with any form of cognitive disorder. He accepts that the height of Keith’s diagnosis in relation to mental health issues had been severe anxiety, but he says that that was not the whole picture. Dr Series opines that Keith was suffering from an undiagnosed case of personality disorder (a conclusion which he fairly acknowledges that other psychiatrists may not agree with), and it is on that basis that Dr Series concludes that Keith did not have capacity to validly execute the Will. It is common ground between Counsel that there is no reported authority in which a personality disorder (other than one involving paranoia or delusions) has led to a finding that the testator lacked capacity to make a will, but I accept that that in itself does not preclude me from doing so if I am persuaded by Dr Series’ expert evidence and Counsel’s submissions.

[16]Issue D is based upon promises or assurances said to have been made by Keith to various people including Vivian, or within Vivian’s earshot and/or knowledge, and upon which promises or assurances Vivian and his sons, Matthew and Adam, are said to have relied. The promises, in general terms, were that Tregear Farm would be reunited upon the death of either brother and then left to Matthew and Adam.

Procedural History

[17]I allowed a very late (1 month before trial) amendment to the Third Defendant’s Defence and Counterclaim to plead that Keith had an undiagnosed personality disorder which in and of itself gave rise to a lack of capacity to make a will. Part of Dr Series’ reasoning was that Keith’s obsession with the Shorthorns prevented him from considering Vivien as a potential beneficiary, as well as causing other irrational behaviour. He had opined that, if such behaviour was present in a significant fraction of the farming community, that would not support his diagnosis. As I set out more fully below, I allowed additional factual evidence from Mr Clarke, an experienced charity witness, as to whether Keith’s behaviour in this regard was highly unusual. It was also conceded by the Third Defendant that, if the amendment was allowed, Dr Fawzi should be allowed to provide a short supplemental report to deal with it, which he did.

[18]One unusual feature of this case is its elongated hearing period. For reasons of unavailability of Counsel and/or the experts, the trial evidence was divided into two tranches: the majority of the factual evidence, and the balance, including the expert evidence, the tranches being separated by some weeks. Counsel then expressed a preference to produce written closing submissions followed by a day of oral submissions in critique of their opponents’ written submissions (to which I acceded). A full set of transcripts has been produced and I have referred back to those to refresh my memory. However, this is an unusual case with unusual features and witnesses of some character whose evidence made a clear impression at the time, and which stand out in my memory.

[19]Another unusual feature of the case is that the Claimant’s witnesses were unable to give very much direct evidence in relation to Vivian’s proprietary estoppel claims, and Vivian and his witnesses were unable to give very much direct evidence in relation to the issue of incapacity. I have therefore drawn inferences from the primary evidence and cross-referenced the contemporaneous documentary evidence to come to my conclusions.

The Law

[20]The law was not highly contentious in this case. I shall deal with it in the order of the list of issues. Due Execution

[21]Section 9 of the Wills Act 1837 provides: 9 Signing and attestation of wills 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.’

[22]There is a presumption of due execution and it is accepted that the ‘strongest evidence’ is required to overcome it (Channon v Perkins

[2005] EWCA Civ 1808

). But what is the ‘strongest evidence’ depends on the circumstances of the case. In Channon, Arden LJ described the concept at paragraphs 45 and 46, as follows:

‘45. So the question of what constitutes the “strongest evidence” for the purposes of this kind of case remains to be explored. As I see it, there is a sliding scale according to which evidence will constitute the strongest evidence in one case but not in another. What constitutes the “strongest evidence” in any particular case will depend on totality of the relevant facts of that case, and the court's evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the “strongest evidence”, and the stronger that evidence will need to be. 46. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied. Allegations that were not made, or were not pursued, and mere suspicion, have to be put on one side.’

[23]The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 remains the test of capacity, as explained and confirmed by the Court of Appeal in Simon v Byford

[2014] EWCA Civ 280

at paragraphs 39 to 47. The passage from Banks is always worth repeating:

“It is essential . . . 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 senses 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.”

[24]The important role played by a shifting burden of proof was summarised by Briggs J (as he then was) in Key v Key

[2010] EWHC 408 (Ch)

at paragraph 97:

‘i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. ii) In such a case the evidential burden 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.’

Testamentary Capacity

[25]The burden of proof in relation to the issue of testamentary capacity is summarised as follows at 4-20 of Theobald on Wills (19th Ed.):

“Although those propounding the will must satisfy the court that the testator was of sound disposing mind, yet if the will is rational on the face of it and is shown to be duly executed and no other evidence is offered, the court will pronounce for it, presuming that the testator was mentally competent. Slight evidence of mental incapacity will not disturb this presumption, and some cases have suggested that even an admitted mental disorder will not upset this presumption unless it is shown that the testator’s mental impairment was of a type that would. However, where real suspicion of incapacity arises, those propounding the will must dispel that suspicion by proving testamentary capacity. Thus where it is admitted by those propounding the will that the deceased suffered from serious mental illness at a period before the will, or where its terms are incoherent, irrational or strange, a presumption may be raised against it, though not a conclusive one. However, it is not the law that in all cases of doubtful capacity there has to be positive proof of capacity before the court can pronounce for the will.”

[26]There is a full and helpful analysis of the applicable law as it has developed post-Banks v Goodfellow to be found in the recent judgment of Smith J in Leonard v Leonard

[2024] EWHC 321 (Ch)

. Smith J’s observations as to the utility and purpose of retrospective expert evidence and its limited assistance where it consists of inference drawn from the documentary and other evidence at [136] to [141] are extremely apposite in the instant matter. Although lengthy I set them out here for reasons that will become apparent.136. Neither expert examined Jack in his lifetime and neither is able to say with certainty whether he had testamentary capacity on the date he signed the 2015 Will. They are dependent on what they can deduce from the contemporaneous medical records and the available evidence. They both acknowledge that it is ultimately for the court to draw factual conclusions as to Jack’s testamentary capacity at the time he executed the 2015 Will and it is clear from their reports and joint statements that, put simply, their differing conclusions are primarily a function of the different views they take as to the available evidence. Thus, as Dr Warner says in his Addendum Report, his conclusions ultimately depend to a significant degree upon the extent to which the court accepts the Claimants’ evidence as to Jack’s cognitive decline. By contrast, Dr Series’ conclusions place particular emphasis on the long and detailed process that Jack undertook in making his 2015 Will and on the statement of Ms Wells (as Jack’s professional adviser) which, if accepted by the court, would in Dr Series’ opinion, as set out in his third report, lend considerable weight to the view that Jack had capacity at the material time. These differences of approach (together with the different emphasis they each attach to the documentary evidence available to them having regard to the witness evidence) explain their differing views as to the likely severity of Jack’s executive dysfunction as identified by the cognitive testing.

137. In the circumstances, this is not a case in which I shall need to prefer the views of one expert over another. They have based their opinions upon their individual reading of the facts without knowing what findings the court will ultimately make. Those opinions are not ultimately determinative of testamentary capacity.

138. Each expert carried out an analysis of the available contemporaneous documents with a view to identifying indicators from those documents as to the cognitive level at which Jack was able to function at the relevant time. In light of that analysis (and having regard to their approach to the evidence more generally), they each sought to opine on the requirements for testamentary capacity as identified in the well-known case of Banks v Goodfellow (1869-70) LR 5 QB 549 .

139. I was initially concerned that the court could derive little, if any, assistance from such an exercise and that concern was not much dispelled when I heard the experts give their oral evidence. While the court can potentially gain considerable assistance in a case requiring a retrospective assessment of mental capacity from the experts’ analysis of existing medical records, their explanation as to the nature and likely cognitive impact of the condition from which the deceased was suffering, their analysis of investigations, scans and tests carried out on the deceased together with their assessment of the potential rate of cognitive decline, nevertheless there is only very limited assistance to be gained from their views (for example) of individual emails sent by the deceased or evidence given by the witnesses in their statements, particularly where they are being asked to give their views on individual documents in a vacuum, without any clear understanding of the totality of the evidence.

140. Furthermore, the criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for common sense judicial judgment depending, as they do, upon an analysis of the entirety of the evidence, including, importantly, the complexity of the relevant will (see Simon v Byford

[2014] EWCA Civ 280

at [17] per Lewison LJ referring with approval to the decision of the Court of Appeal of New South Wales in Zorbas v Sidiroppulous (No 2) [2009] NSWCA 197).

141. Whilst there is possibly scope for experts in a case of this sort to opine (as they did here) as to the inferences that might be drawn from the evidence (as to, for example, the levels of executive function required to write particular documents or carry out specific tasks), and whilst I have on occasions found it useful to record the experts’ views on some of the documentary evidence, I consider that the court must be very wary indeed of placing much weight on such opinions. Ultimately it is for the court and not an expert witness to determine what, if any, inferences should be drawn from the documentary and other evidence when seen in its proper context. It is worth noting that the experts’ reports did not, in any event, deal with the new documents disclosed from Jack’s laptop and from the iMac.

[27]The courts place weight on the assessment that a client possesses testamentary capacity formed by an experienced private client solicitor: see e.g. Hawes v Burgess

[2013] EWCA Civ 74

per Mummery LJ at [57] – [60] and Hughes v Pritchard

[2022] EWCA Civ 386

at [75] to [80] and further [94] to [101] where consideration is given to the approach to assessing capacity and where it is noted at [95] that a testator does not have to “justify any changes in testamentary dispositions whether to his solicitor or his general practitioner in order to prove that he has testamentary capacity. He does not have to give reasons.” This would apply a fortiori to a testator’s earlier stated intentions as opposed to earlier wills.

[28]Counsel agreed that there are no reported decisions in which a personality disorder, other than one resulting in paranoia or delusions, has been held to deprive a testator of testamentary capacity. Those cases in which a personality disorder has been posthumously diagnosed have all involved significant pre-mortem histories of mental ill-health and/or findings of false beliefs amounting to delusions. The issue has been considered in the following cases relied on by Ms John: Ledger v Wootton

[2007] EWHC 90 (Ch)

; Ritchie & Ors v Joslyn & Ors

[2009] EWHC 801 (Ch)

; Re Estate of Julie Spalding (Deceased) [2014] Lexis Citation 31. Again, for reasons that will become apparent, I do not consider it necessary to set these references out in full.

[29]Wilkinson and others v Hicken

[2023] EWHC 1983 (Ch)

was a case in which Dr Series’ opinion was that the testator did not have a personality disorder (despite extreme difficulties in his personal relationships and having been committed to a psychiatric institution after attempting to solicit the murder of his wife). HHJ Williams recorded Dr Series’ opinion as having been “It is by no means the case that having a personality disorder necessarily entails loss of testamentary capacity and in his experience would be unusual.” The court upheld the will concluding that the departure from the terms of an earlier will “… was unremarkable and explicable having regard to Norman's longstanding and unchanged personality traits … whether or not they constituted a diagnosable personality disorder”.

Want of Knowledge and Approval

[30]The twin requirements of knowledge and approval were described by Chadwick LJ in Hoff v Atherton

[2003] EWCA Civ 1554

at paragraph 62 as follows:

“A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs.”

[31]Peter Gibson LJ said in Fuller v Strum

[2001] EWCA Civ 1879

at paragraph 33:

“In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased.”

[32]The leading authority in this field of law remains Gill v Woodall

[2010] EWCA Civ 1430

at paragraphs 14 and 15), although I attempted a summary of the more recent authorities in Re Abraham

[2023] EWHC 1982 (Ch)

at [263.1] – [263.15], which I bear in mind. Lord Neuberger MR in Gill v Woodall at [22] held that single stage test, taking into account all of the relevant evidence and the inferences to be drawn from the totality of the evidence available, is to be preferred over the traditional two-stage test, and the headnote (which is sufficient for these purposes) goes on to summarise the position, thus:

“in relation to the question of knowledge and approval, the fact that a will had been properly executed after being prepared by a solicitor and read over to the testatrix raised a very strong presumption that it represented the testatrix’s intentions at the moment she had executed the will; that the presumption was reinforced by policy considerations in support of the fundamental principle of testamentary freedom and the evidential difficulties presented by the fact that the testatrix could not be directly examined.”

[33]It is not a ‘touchstone of validity’ that a will must have been read over to a testator: McCabe v McCabe

[2015] EWHC 1591 (Ch)

. The evidence of the giving and taking of instructions is also relevant as well as any discussions about the contents of the will with any witnesses who are able to give live evidence about such discussions.

Proprietary Estoppel

[34]I agree with Mr McKean that Rajah J set out a helpful summary of the essential elements of a claim in proprietary estoppel in Spencer v Spencer

[2023] EWHC 2050 (Ch)

at paragraphs 23 – 30 which I gratefully repeat here :

‘23. The doctrine of proprietary estoppel was described as follows in In re Basham decd [1986] 1 WLR 1498, 1503 : 'Where one person, A, has acted to his detriment on the faith of a belief, which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B's property, B cannot insist on his strict legal rights if to do so would be inconsistent with A's belief.' […] 24. There are three main elements to a proprietary estoppel (i) an assurance by B (whether by words or inferred from conduct) (ii) reasonable reliance on the assurance by A and (iii) detriment in consequence of that reasonable reliance; see Thorner v Major [2009] UKHL 18 at [29] . The latter two elements are often intertwined and they are sometimes referred to together simply as "detrimental reliance", but it is important to keep in mind their constituents. If these elements are present they give rise to an equity which the Court will decide how best to satisfy. 25. These are not, however, watertight compartments. As Robert Walker LJ said in Gillett v Holt at 225: "…it is important to note at the outset that the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. Both sides are agreed on that, and in the course of the oral argument in this court it repeatedly became apparent that the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a 'mutual understanding' may depend on how the other elements are formulated and understood. Moreover, the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round." 26. The assurance must be ' clear enough' but what amounts to sufficient clarity, as Lord Walker explained in Thorner v Major at [56] is " hugely dependent on context ". In its proper context the assurance must be reasonably understood by A to be unambiguous and intended to be taken seriously. B's subjective intention in making the statement is not relevant; what matters is how the statements were reasonably understood; Thorner at [3-5], [17] and[18]. 27. The assurance must be that A will acquire a proprietary interest in specified property owned (or possibly about to be owned) by B; Thorner at [2] and [61] […] 28. The assurance does not need to be expressed to be irrevocable. As observed in Gillett at 229E, "… it is the other party's detrimental reliance on the promise which makes it irrevocable ". It is, however, important to distinguish between mere statements of present (revocable) intentions and statements tantamount to a promise; Gillett at 227G to 228F . It is not reasonable to rely on the former. The latter, on the other hand, may be reasonably understood as intended to be taken seriously and therefore reasonably relied upon. 29. There must be a sufficient link between the assurance and the conduct which constitutes the detriment. B's communications do not have to be the sole inducement for A's conduct; it is sufficient if they are an inducement: Gillett at page 226G-H. 30. Detriment must be pleaded and proved, but it is not a narrow or technical concept. It need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The issue of detriment is judged at the moment when B decides to repudiate his assurance. The broad inquiry which then arises is whether the repudiation of the assurance is or is not unconscionable in all the circumstances. See Gillett at 232D-F”’

[35]A few additional observations in the context of the instant matter are also worth making.

[36]A person may make a statement as to present testamentary intentions without it amounting to an assurance or promise capable of founding a proprietary estoppel claim: see e.g. Cook v Thomas

[2010] EWCA Civ 227

and James v James

[2018] EWHC 43 (Ch)

[24] per HHJ Paul Matthews ‘a statement of current intentions as to future conduct is not a promise of that conduct’ (emphasis in original).

[37]The court's estimation of the detriment is not an exercise in forensic accounting but rather an evaluative exercise. In performing the evaluation, the court must take into account any countervailing benefits obtained by the promisee as a result of his reliance. See Davies v Davies

[2014] EWCA Civ 568

at [38], [51] and [56].

[38]Unconscionability is, perhaps, not so much a further element in the cause of action in proprietary estoppel but the thread that binds the other elements together. The matter was explained, with reference to the case before him, by Lord Walker in Cobbe v Yeoman's Row Management Ltd

[2008] UKHL 55

“Mr Dowding [counsel for the appellant] devoted a separate section of his printed case to arguing that even if the elements for an estoppel were in other respects present, it would not in any event be unconscionable for Mrs Lisle-Mainwaring [the appellant] to insist on her legal rights. That argument raises the question whether 'unconscionability' is a separate element in making out a case of estoppel, or whether to regard it as a separate element would be what Professor Peter Birks once called 'a fifth wheel on the coach': Birks & Pretto (eds), Breach of Trust (2002), p 226. But Birks was there criticising the use of 'unconscionable' to describe a state of mind (Bank of Credit and Commerce International (Overseas) Ltd v Akindele

[2001] Ch 437

, 455). Here it is being used (as in my opinion it should always be used) as an objective value judgment on behaviour (regardless of the state of mind of the individual in question). As such it does in my opinion play a very important part in the doctrine of equitable estoppel, in unifying and confirming, as it were, the other elements. If the other elements appear to be present but the result does not shock the conscience of the court, the analysis needs to be looked at again. In this case Mrs Lisle-Mainwaring's conduct was unattractive. She chose to stand on her rights rather than respecting her non-binding assurances, while Mr Cobbe continued to spend time and effort, between Christmas 2003 and March 2004, in obtaining planning permission. But Mr Cobbe knew that she was bound in honour only, and so in the eyes of equity her conduct, although unattractive, was not unconscionable.”

Remedy

[39]Remedy is governed by the now well-known authority of Guest v Guest

[2022] UKSC 27

to which I shall return if appropriate.

The Evidence

[40]For the Claimant I heard from the Claimant himself and five further witnesses of fact. For the Defendant I heard from the Defendant himself and five further witnesses of fact.

Mr Luke Ellis

[41]Luke’s evidence might at first have seemed almost peripheral because he had no involvement with the preparation of the Will, and there is no suggestion that he exercised any undue influence over Keith or that he made promises to Keith about the future care of the Pigs and the Shorthorns to induce him into leaving him his estate. Indeed, Luke was very clear in cross-examination that he had not made any such promises. However, if his evidence is to be believed, he was a good friend of Keith’s and spent time with him farming on a regular basis, interacting with him on the farm both leading up to, and after, the making of the will. He was quite sure that Keith never lacked capacity to make a will.

[42]Luke’s witness statement was measured and if anything understated. He said that he had been taken up to see Keith by his uncle, Steven Ellis, an old friend of Keith’s, when he, Luke, was about 12. He had already started assisting his father on his farm which was about 15 minutes from Keith’s. He described a close friendship developing, concentrating in particular on the Large White Pigs which Luke began to breed himself. He described Keith as intriguing, extremely knowledgeable, passionate and very particular about things on the farm. He described a very regular contact with Keith both personally and on the phone and also between Keith and Luke’s wife and grandmother. He said that, once engaged in conversation with Keith, it was difficult to tear yourself away because the conversation was so good.

[43]Luke stated that Vivian was no real part of Keith’s life; he did not remember Keith speaking of him, even when he was younger. Vivian would only go into the farmhouse if he needed something, he said. Keith never spoke of Vivian’s children and he (Luke) only saw them to wave at in adjoining fields. He noted that Keith had chosen Edward Richardson from Farm Cornwall to be his first point of contact when Keith’s personal alarm went off, despite Vivian living closer than Edward.

[44]In terms of a support network, Luke went into detail about the friends and people around Keith who were pleased to help him, which suggested a lively interest in other people as well as a popularity amongst them. Luke was quite sure that Keith always had capacity.

[45]Luke referred to one occasion when Keith had called him over and had said that he wanted to leave Tregear to Luke, and Luke had said that Keith could do what he wanted but he did not want to know anything about it because he didn’t want it to change their friendship.

[46]From about 2018, Luke’s father was ill, Luke had a young family and a farm to run, and Luke accepted that he had not visited or helped Keith as much as he had been able to do before, which he regretted. He was shocked by Keith’s death because there had been no discernible deterioration in Keith’s albeit already poor health.

[47]Luke explained how, upon Keith’s death, the timing was such that it was impossible for him to take the Shorthorns in safely because they had been reared in such different circumstances to his commercial beef herd: they could not have simply been put into the large cow-sheds on his farm. With more time, he thought he could have accommodated them, but everything had happened so quickly, he said: it was better to have put them in the field next to that which they had spent their entire lives to date with Larry Trewern looking after them.

[48]In cross-examination, it was suggested to Luke that he had misled the court in his witness statement by changing the reasons for him being unable to accommodate the Shorthorns, but he explained carefully that he would have been able to give the Shorthorns a peaceful life along with his own rare-breed herd given time, but the circumstances were against him at that time. It was suggested to Luke that he would never have been able to look after Keith’s Shorthorns for various reasons, implying that Keith leaving the farm to him was illogical. Again, Luke explained that he and his family had always had some rare breed cattle (albeit mostly longhorns) and pigs and that he enjoyed keeping them as a contrast to the commercial herd.

[49]Luke very strongly denied that he had been promised by Peter Clarke and Patrick Evans that if he agreed to look after Keith, he would get the farm. He said that he had met Keith through his uncle, Steven Ellis, and they had got on very well: Luke thought that Keith liked Luke’s attitude to farming and they had a shared interest not only in rare breed cattle, but also pigs; dog breeding and rugby (Luke being a decent rugby player, he said). Luke said he spent a considerable time at Keith’s farm helping him out and denied that it was only his uncle who knew Keith well: he got to know Keith and Betty, too, particularly since being able to drive himself up to Keith’s farm which was 15 minutes away.

[50]Luke explained that he had only ever had one conversation with Keith about the Will when Keith had suggested he would be leaving the farm to him which, Luke said, took him aback somewhat, that someone would be thinking about him in that way. However, he had declined to attend a meeting organised by Mr Clarke about the Will because he felt uncomfortable about knowing about it and didn’t want anything to affect his friendship with Keith. It was suggested that there were many people who had closer relationships with Keith than he had, but Luke answered that Keith had many friends and he thought some of them would have thought as much of Keith as he did. He accepted that “on the surface” he would have thought that Vivian was the more expected choice to be the main beneficiary under the will (as he had said in his statement). He later explained what he meant by “on the surface” was that although they were relatives, it would be different if they didn’t like each other and it “became not an option for Keith”. And although he was surprised to have been made the beneficiary, Luke said that things like that are always a surprise, by which I took him to mean that he wasn’t really expecting it. He later described the relationship between Keith and Vivian as lacking any affection and being such that they would speak only if they needed to.

[51]Luke was asked a series of questions which suggested that Keith was more than eccentric; that he was stubborn, extremely unusual and, by implication, not someone with capacity to make a will. Luke answered calmly and with authority indicating generally that Keith was fastidious in some things; highly skilled at some things; he did not exhibit any alarming or overly eccentric traits; he was unaware of Keith refusing medical treatment, but did not know of Keith’s financial acumen, but he did accept that Keith put the welfare of his animals before the financial burden of that care. He could not recall any panicking on Keith’s part to suggest serious anxiety, but he did worry about some things in life, he said.

[52]Luke very naturally described Keith in fond terms; accepting that he was “different” but not “unusual” in the sense of being odd; but unique. Some of this was simply ways of coping with farming and living with his disability, for instance the fact that Keith slept in a chair because it was extremely uncomfortable to lie down (and this was a reason that several witnesses suggested as a reason that Keith was very reluctant about going to hospital). Luke said that everyone was used to Keith’s ways and those around him admired him greatly. He accepted that Keith’s house was untidy, but not filthy.

[53]Luke thought that the animals, Tregear itself, together with Keith’s friends were the most important things in Keith’s life. One line of questioning was directed to eliciting a description of Keith and his farming practices as being so unique, peculiar and outdated that so as to suggest a lack of capacity. Luke, however, described someone who was, indeed unusual and almost unique, but not obsessed or irrational: just someone who wanted to farm in the way he did because he did not feel the need to change; a stalwart who continued against all the odds with a huge breadth of experience and encyclopaedic knowledge of rare breed farming. He also described Keith’s keen interest in the history of Tregear, having found an old coat of arms relating to the place (which he gave to Luke) and an ancient ‘round’ (a storage facility) about which he was doing some research.

[54]In relation to Keith’s relationship with Vivian and his children, Luke accepted that Vivian was often at Keith’s farm because he kept livestock there, and sometimes his sons, but never in the farmhouse, at least in the more recent years. He said that Keith rarely had conversations with them in his presence, particularly in the latter years. He described Keith’s disappointment expressed to him at the lack of response to requests for assistance. Although he had not seen Keith interact with Vivian (or his sons) directly, he remarked that he had been around a long time with Keith and his many friends and “we’ve all spoken a lot over the years”, resulting in an impression gained that Keith and Vivian did not get on; they weren’t friends and that “there was just nothing there”. He got the impression that Vivian failed to respond to requests of help from Keith and Keith was disappointed by that. He thought that Keith would not have been afraid to ask for help.

Granger Harrison

[55]Mr Harrison is a fifth-generation farmer from Suffolk, and is the only other breeder of dairy Shorthorns in the UK apart from those at Highgrove.

[56]He came to know Keith in the following way in 2014. He was a long-standing member of the Rare Breed Survival Trust and had met the chairman of it at an agricultural show. He had offered to host some cattle on his farm, and the chairman had mentioned three young Dairy Shorthorn bulls and a cow which had been purchased from Keith. He took these on board and wanted to reassure Keith (with whom he had no prior connection) that he would look after them, so he got hold of Keith one night by telephone at 11pm and they had spent four hours talking about rare breed cattle and people in the livestock industry.

[57]The Trust asked Mr Harrison if he would assist Keith with paperwork because he was in ill-health, to which he agreed. His statement says that he arrived at 6pm on the given day in the summer, and had found Keith in his yard. They met and stayed talking outside until midnight; he stayed two days and the pair spent time walking and talking and not attending to the paperwork. When he came to leave he offered Keith to assist with his paperwork, an offer Keith accepted, and Mr Harrison visited a month later, paid for by the Trust. Thereafter, Mr Harrison says that he spoke with Keith at least five times per week, often more, “talking for hours”. Keith was acutely aware of other people and was always concerned for their welfare, he said.

[58]Mr Harrison said that he felt there was friction between Keith and Vivian, and Keith didn’t speak much of him and Vivian didn’t seem to take much interest in Keith’s life. He did not think Vivian’s sons were very much in touch, either.

[59]Keith needed help only because of his physical difficulties, Mr Harrison said, and that it was clear that he had a good network of friends who happily supported him.

[60]In his statement, Mr Harrison describes a serious discussion between him and his wife and Keith in which Keith had asked for financial assistance going forward in return for which he would give the farm to Mr and Mrs Harrison. They did not wish to move to Cornwall, but instead they offered Keith a park home on their land and space to house the Shorthorns there. However, Keith decided that he did not wish to leave Cornwall. It was after that that Keith was thinking about who to leave the farm to and eventually told Mr Harrison that he had decided to leave the farm to Luke Ellis. They discussed the fact that the farm would have to be sold and that Vivian would object to this decision, but Keith, whilst acknowledging those difficulties, was decided, he said. In later cross-examination, he explained that this conversation took place over about six months culminating in the offer to go to Suffolk with an undertaking that Keith would leave anything left from the proceeds to Mr Harrison in his will. After two weeks’ thought, Mr Harrison said that Keith had given a fully reasoned response, declining, largely because he did not want to leave Cornwall where he had been born and wanted to die, and where he had a network of friends and support.

[61]Mr Harrison described the level of morphine that Keith was on and how on one occasion the doctor had tried to reduce it, much to Keith’s despair because of the pain, and so the doctor relented. Mr Harrison was of the belief that Keith was not adversely affected by the morphine. He never thought that Keith had “lost it” at any point. He spoke of Keith’s encyclopaedic knowledge of pedigrees and his ability to recall the breeding back to the 1960s.

[62]In cross-examination, Mr Harrison said that he had purchased more cows and semen from Keith and had visited about five times after the second visit in late summer of 2014. He said that Keith was mentally sharp but needed help juggling his lack of finances with the rigours of registering calves in time. He said that Keith had been financially affected by being able to farm only his half of the farm after his mother’s death, leaving 25 acres only. His physical ill-health added to these difficulties, he said.

[63]Mr Harrison was also asked a number of questions about Keith’s eccentricity, the purpose presumably being to illustrate a lack of rationality, for example Keith’s preference to wash rather than bathe or shower. Mr Harrison, as his friend no doubt, defended Keith, saying that he never smelt and always cut his own hair. He again emphasised Keith’s knowledge about all things pure-bred Dairy Shorthorn.

[64]As regards morphine, Mr Harrison said that between 2014 when he met him and his death, his morphine dosage had increased, but his sharpness of mind had not diminished. He candidly admitted that he thought that Keith was addicted to morphine.

[65]Mr Harrison accepted that Keith was in serious financial difficulties, and so Keith must have discussed the issue with Mr Harrison. Of course, at the time of the making of the will, Keith was in far less debt than he was when he died.

[66]Asked whether he and Keith talked about Vivian, Mr Harrison said that they did not often do so, nor about Vivian’s sons. He never saw them interact with Keith, and the only information he had about them came from Keith. He said that Keith had been surprised and disappointed when his mother had left Keith with the reduced share of the farm. He had been told by Keith that, upon the will being read, Vivian had immediately turned Keith’s cows out of one of the fields that had been left to Vivian. He of course could not confirm whether that story was true. This recollection of the devolution of the farm is factually confused. Mr McKean suggested that this was not Mr Harrison’s confusion but Keith’s. Mr Harrison’s recollection in the witness box of what Keith had said was a lot less certain than his witness statement suggested and, given Keith’s family history and his life-long interest in the land, it is more likely that Mr Harrison had misunderstood that Vivian had in fact been given Burhos farm (a farmhouse plus 10 acres) on his marriage. The division of Tregear was also somewhat complex because it started out as a de facto division in Vivian’s favour at Keith’s election (according to Vivian) because of Keith’s farming limitations; converted into business farming tenancies for IHT purposes which reflected that unequal division which was then repeated in Betty’s testamentary gifts, which may have been the cause of some resentment in Keith’s mind because Vivian had thereby had Burhos as well as half of the land at Tregear.

[67]It was suggested to Mr Harrison that Keith was stubborn, which Mr Harrison accepted on the basis that one has to be stubborn to carry on, but he said, too, that Keith could see both sides of an argument and could be persuaded. He said that he was unaware of Keith refusing medical care and referred to his willingness to have his ulcers treated at home, and to him being taken to hospital in an ambulance on occasions, although he was reluctant to leave the farm. Mr McKean suggested that that reluctance was unreasonable stubbornness but of course most people would be reluctant to be taken away from home to go to hospital, and Mr Harrison said that Keith had come from an era when district nurses would treat you at home and that was his preference.

[68]Part of Vivian’s case is that Keith referred to his charity support network as “his men”, and there was a combined effort by these people to press Keith into making a will, and that there was a sort of campaign against Vivian. Mr Harrison was asked about that soubriquet but he said that he had never heard it before. He accepted that Keith had many friends and much support locally, and when asked whether Vivian was unpopular within that network, Mr Harrison said that Vivian was not really spoken of by anyone he (Mr Harrison) had met.

[69]Mr Harrison was clear that Keith was aware of the value of the farm and the fact that he was in financial difficulty. There had been a discussion about there being a chapel on the farm that could have been sold off to assist, but Keith preferred not to because he did not want to break up his small farm and was worried about Vivian’s reaction.

[70]There was an interesting exchange at the end of Mr Harrison’s cross-examination in which he explained that Keith had been aware that it was unlikely that Luke would take on the Shorthorns, although he knew he would take the Pigs. This was because of his personal circumstances in that his father had had a stroke so they had given up milking and that he had a young family. However, he also stated that nothing was set in stone, and Luke may have indicated differently to Keith at one point and/or changed his mind as and when his circumstances changed. It would have been possible, he said, because Luke was five miles away, to keep the Shorthorns at Tregear whereas he (Mr Harrison) was not willing to keep Tregear as it was not viable in its own right. Mr Harrison felt that Keith’s thoughts had been to divest himself of the Shorthorns over time to people that he knew would retain the pedigree. This included Highgrove potentially, and also Mr Harrison and Larry Trewern. Those plans had been scuppered by the arrival of TB in the herd. Mr Harrison explained that he was in a very low (TB4) region whereas Tregear was in a very high (TB1) region and, whilst he had taken some cattle previously which he would keep, he would not take any more from a herd so recently infected. The important thing for Keith, he said, was that Keith’s herd pedigree was kept going, which he had achieved by moving some to Highgrove and some to Mr Harrison.

[71]It was suggested to him that because Keith was thinking of giving the Shorthorns to safe homes meant that he was unaware of the terms of his will which gave them to Luke who had promised nothing, with which Mr Harrison disagreed. He said that Keith had been aware that Luke may have been unable to take the Shorthorns and so Keith was interested to find them a home before he died. I note at this point that this is of course consistent with the Will because the Will does not contain a specific bequest of the Shorthorns. Indeed, it is consistent with Keith wishing to specifically retain flexibility between making the Will and his death as regards the Shorthorns which reflects cognisance of a realism in Luke’s changing situation (including the recognition of Luke’s father’s stroke).

Peter Clarke

[72]Mr Clarke is a retired farmer and was 86 years old when he gave evidence. At the relevant times he was a volunteer for what was Farm Crisis Network but is now known as Farm Community Network (“FCN”) which is a charity whose purpose is to support farmers in distress of one sort or another. Keith made direct contact with FCN in 2012 because he was concerned that the farm was not making much money and he was experiencing difficulties because of his disabilities. It is to be noted that this was around the time of Keith’s mother’s illness which led to her death in October 2013. It clearly demonstrates that Keith was aware of his financial predicament and was able to focus on the future.

[73]It was Mr Clarke who had arranged the sale of some of the Shorthorns to the Highgrove estate.

[74]Mr Clarke is one of the attesting witnesses to the Will.

[75]Mr Clarke describes in his statement that following a conversation with Keith in 2016, Keith thought it best that he should make a will. At about the same time he met Mrs Tracey Wright, a solicitor, at the Royal Cornwall Show. He subsequently introduced her to Keith. Thereafter, Mr Clarke describes himself purely as a facilitator and said that all instructions for the Will were Keith’s alone.

[76]He described how he set up a meeting between Keith and Ms Wright, who visited Keith on 24 June 2016 at home. He attended the meeting but had arrived late due to traffic on his 80 mile journey there but witnessed Keith giving instructions to Ms Wright.

[77]He went on in his statement to describe how he had driven Keith to his GP, Dr Fairlie, on 23 August 2016 in order to execute the will with he and Dr Fairlie witnessing it. He described Dr Fairlie appearing from the far end of the waiting room and it being a rather cursory experience. In his statement, he said that Dr Fairlie had gathered some tables together and they had witnessed the Will in the waiting room, and that although he could not recall “chapter and verse”, he was sure that both he and Dr Fairlie were present when the Will was executed.

[78]Dr Series had opined that Keith’s devotion to his animals, in particular the Shorthorns, was so extreme that it contributed to his diagnosis of a personality disorder. He had qualified that statement by stating that if it could be shown that Keith’s behaviour in this regard was comparable to other livestock/rare breed farmers then this would not contribute to the diagnosis. When the pleadings were amended as set out above, I gave permission for Mr Clarke to file a second witness statement addressing these points because, absent an expert (given the shortness of time following the amendment), his experience with farming and farmers (including 18 years with FCN involving over 800 farms and in respect of which he has been awarded an MBE) might shed light on the issues. In his second witness statement, Mr Clarke said, after describing a typical working day, The fact that Keith was committed to his herd, is not unusual. This is especially the case with pedigree herds, like Keith had, where the farmer has started it himself. With pedigree herds, it is a very personal thing, the farmer’s life’s work and because of that, the farmer is willing to make sacrifices.

[79]In relation to the alleged abnormally rigid pattern of life, Mr Clarke said that there was a strong element of routine in (particularly dairy) cattle farming. And, too, there was nothing uncommon about farmers only going to the doctors if absolutely necessary and disliking hospitals. He said that it is well known that if a farmer attends an A&E unit and the staff get to know that he or she is a farmer, they will get prioritised. Whether that is true, I don’t know, but it might sum up Mr Clarke’s assessment of a typical farmer. He added that Keith went to the doctors when he really needed to, and often under his own steam (which entailed him walking some distance). In relation to Keith’s inability to deal with the business aspects of farming, Mr Clarke said that many farmers either use professional advisors because of modern complexities of grants and registrations, but they are expensive, and so many farmers use their wives who would often be the principal drivers of the business as well as the bookkeeper and form-filler.

[80]As regards the state of Keith’s kitchen, this was not a surprise, he said, given that this was a farm and considering Keith’s personal and physical circumstances, particularly after his mother’s death.

[81]In cross-examination, Mr Clarke denied that Keith was his “project”; he said that otherwise he’d have had 800 “projects” over 18 years. He visited farmers individually, usually about once a month to give them support, to talk things through. He had nothing to do with Keith’s finances, he said. He was a facilitator rather than an advisor.

[82]There were a number of lines of questioning put to Mr Clarke to suggest that he was pushing Keith in a number of directions, such as reducing his herd size, taking out a secured loan etc. Mr Clarke’s response was that he did not recall doing such things as it was “out of [his] league”, and that Farm Cornwall was more involved with the paperwork and finances. It is important to note that Mr Clarke was obliged to destroy all of his records when he retired from FCN. A few emails were put to Mr Clarke which suggested he had been in contact with Keith’s then solicitor about conversations he’d had with Keith about things like reducing his herd size, but they show, in my judgment, Mr Clarke as facilitator rather than any sort of persuasive or advisory role. It was suggested that he had been pushing Keith to get help in return for leaving the farm to a third party, which Mr Clarke firmly denied. It was also suggested to Mr Clarke that he had encouraged Keith to make a will, but Mr Clarke said (three times) that it had been Keith’s idea, and it did not surprise him. He had simply then put him in touch with Ms Wright.

[83]Mr Clarke denied that he had formed a low opinion of Vivian, and suggested, correctly in my judgment, that the emails he was referred to did not support that. He was reporting what Keith had said and was observing that “there was not much love lost between them”. He had only met him once or twice, he said.

[84]Mr Clarke was criticised in cross-examination for not having mentioned to Ms Wright at the Royal Cornwall Show at their chance meeting that his ‘client’ was on morphine. He was then challenged as being evasive. These were unwarranted criticisms: he was talking to Ms Wright in principle and had been careful to disclose no details about Keith. It was then suggested that he had deliberately withheld this information for fear of Ms Wright declining to accept instructions to make a will, particularly since it was a deliberate tactic on Mr Clarke’s part to ensure Keith did not use DB Law, the family solicitors. I regard that as fanciful given all of the circumstances. Mr Clarke’s description is precisely the sort of thing that happens at County Shows and to introduce the level of connivance suggested has no basis. Mr Clarke went on to say that Keith had not wanted to use the family solicitors. Although he did not know why, it seems to me likely to have been because of Vivian’s connection with them as a joint client when dealing with Betty’s will (which had not gone well) and reflected Vivian’s subsequent distancing himself from Keith in Keith’s eyes. It is notable that in Ms Wright’s attendance note of 24 June 2016, Keith describes them as his brother’s solicitors.

[85]It was then suggested to Mr Clarke that he was “determined for this will to be made”, which he denied. It was suggested to him that he was so determined that he had volunteered to pay half of the legal costs, to which he said that he had helped other farmers in similar small ways as in order to assist. Pausing there, I note that, in fact, several people had assisted Keith financially in small matters such as this. He accepted that he had had to jog Keith along to get things done, but it was then suggested that his use of the words “extract information” in a casual email referring to Keith’s inattention to paperwork was evidence of him forcing this whole issue. Mr Clarke said that that was an inaccurate word to have used, and he was then accused of sending inaccurate information to Keith’s solicitors.

[86]The general attack on Mr Clarke as someone who, for some reason (but not malign, it was emphasised), was on a mission to make Keith make a will at all costs, and to ensure that he did not use DB Law to avoid the possibility of Vivian being mentioned as a beneficiary was, in my judgment, verging on a conspiracy theory. The cross-examination was aggressive and Mr Clarke did not buckle. This was Mr Clarke assisting Keith with a request that he had made which, at his time of life in his state of health was hardly surprising: it was as simple as that.

[87]I must deal with one issue which was said to thoroughly discredit Mr Clarke’s current evidence. Mr Clarke had been surprised by a phone call out of the blue from Vivian’s solicitors in 2022 asking him about the contents of the Will and whether he had been in touch with Dr Fairlie. The attendance note of that call records that he said that he had no recollection of the signing of the Will with Dr Fairlie present or its contents. Mr Clarke explained that he had been caught completely off-guard whilst reading a newspaper one morning at his kitchen table, and he, being of a certain age, had a mental blank having been put on the spot like that. However, his memory had subsequently been jogged by seeing his signature on the Will, and it essentially all came back to him. Mr McKean forcefully suggested that he was lying about that but Mr Clarke was adamant that the conversation was, in essence, an aberration.

[88]Mr Clarke was asked about a second draft of the Will, but could not recollect anything about his involvement, if any, with it.

[89]Mr Clarke was taken to some texts about taking Keith to the doctor to have the Will witnessed. He strongly denied that it had been his idea to ask the doctor to witness the will: he said it was a fait accompli and that Keith had every respect for Dr Fairlie and held him in high esteem, the implication being that it might have been Keith’s idea, but thought the texts he was taken to might suggest that it could have been Patrick Evans. But Mr Clarke was adamant that there had been no concerns over Keith’s mental health. He regarded him as having his faculties, and there was nothing to suggest to him that he did not, although he did accept that Keith may have had a couple of “funny turns”.

[90]In terms of the state of Keith’s kitchen Mr Clarke explained that farm kitchens were not like ordinary kitchens and they were the centre of farm life. Many farmers relied on wives or relatives to maintain those kitchens and Keith had relied on his mother whose deteriorating health meant that the state of the kitchen would itself have deteriorated by the time of her death, and that was the status quo that Keith would have inherited and maintained. It was not in a unique condition in Mr Clarke’s experience.

[91]Asked about Keith’s mental capacity to make a will, Mr Clarke was quick to say that he was not a medic, and would defer to Dr Fairlie who knew Keith very well and would not, he thought, have been willing to witness a will of someone who he did not consider to have capacity. Mr McKean asked Mr Clarke whether he thought that Keith had a personality disorder. After repeating that he was not a medic, Mr Clarke said that he always approached people with an open mind, and having visited hundreds of farms over many years, he thought that Keith did not have a personality problem and did not think that Keith was any different from anyone else in that regard.

[92]It was suggested to Mr Clarke that Keith had been “clueless”, which Mr Clarke denied. He said many farmers were very talented as farmers but knew their limits. Keith’s finances had been looked after by his parents, and he was willing to accept help in this regard after they had died.

[93]Mr Clarke said that he had never heard Keith refer to promises made to anyone as regards the farm, and that he rarely spoke of his family.

[94]In relation to an accusation that he had given instructions to Ms Wright for some terms of the Will without having had them from Keith, Mr Clarke was visibly shocked and was clear that anything he had said to Ms Wright would certainly have come from Keith.

[95]Mr Clarke was clear in re-examination that he had seen Dr Fairlie when they had witnessed Keith’s signing of the Will together. In an answer to a question from me Mr Clarke said that, with all his years of experience dealing with farmers who were ageing, there was nothing in Keith’s presentation or demeanour that suggested to Mr Clarke that Keith would not have comprehended the making of a will or what he was doing generally.

Ms Tracey Wright

[96]Ms Wright was the solicitor who had met Mr Clarke at the Royal Cornwall Show and who drafted the Will. She was (and has remained, at least until trial) a Court of Protection Deputy. She first visited Keith with Mr Clarke present on 24 June 2016 at Tregear Farm, though she had taken a telephone call from Mr Clarke in advance of that in which Mr Clarke had set out the bare bones of the issues to be dealt with. Ms Wright said that she recalled Keith more than most clients because of his physical appearance but also his unusual legacy of bull semen. She had an attendance note for the 24 June 2016 meeting. Although it was not in her attendance note, it was in her statement (and oral evidence) that Luke’s suitability as Keith’s primary beneficiary was raised and discussed, with Mr Clarke questioning Keith to test his choice. Ms Wright felt that there was a link between Keith’s understanding that Luke would look after the Shorthorns and the desire to leave him the farm. She did not, however, explore the possibility that the gift should have been conditional. She explained in cross-examination that she was not in favour of conditional gifts in wills because of the potential complications at a later date. It was put to her that that conversation did not take place because it was not recorded in Mrs Wirght’s attendance note, which Ms Wright denied, stating that not everything got recorded in attendance notes.

[97]Ms Wright was asked whether Vivian had been discussed as a potential beneficiary, and she replied that he had not because Keith had made it clear that he did not want him to be the beneficiary, explaining that he felt that he had already received his inheritance by virtue of having been gifted a greater acreage of better land by his parents. Asked why this was not in the attendance note, Ms Wright said that it was recorded in the file and that was sufficient for her purposes: she did not repeat information in attendance notes which is already recorded throughout the file. She said that she actually recalled the discussion at the meeting and she referred to her handwritten note which covered the unequal acreage and the railway line which runs through Keith’s share of the land and which reminded her of the specific conversation. She firmly denied that she had misremembered the meeting, and recalled the weather, the events, and the discussions, although she accepted that, apart from the odd phrase, she would not remember the meeting verbatim.

[98]Mr McKean suggested to Ms Wright that Mr Clarke had done most of the talking at the 24 June meeting, which she denied. She was than asked whether she had ever spoken to Keith without Mr Clarke being present, which she stated she had not. The inference from the question was that Mr Clarke may have been trying to influence Keith’s instructions. Ms Wright felt that Mr Clarke was neutral and had no concerns about his presence or contribution, and in those circumstances it was not an unusual situation. Mr McKean then linked the fact that FCN were a good source of work to Ms Wright’s firm to her assessment of Mr Clarke’s character, to which she replied she did not at the time know that they were a source of work. Again, this line of questioning suggests nefarious motives and a scenario bordering on the fanciful given the independence of both Ms Wright and Mr Clarke, and the fact that neither stood to benefit from the Will as drafted.

[99]This approach was reflected in another line of questioning in which Ms Wright was said to have taken instructions direct from Mr Clarke in relation to a clause added to the Will after first draft which provided for repayment from the estate to him and Mr Evans for any out of pocket expenses. This relates back to the questions put to Mr Clarke about not going back to check with Keith when that clause was put into the Will. From the emails in question, it can be seen that Mr Clarke had not sought the inclusion of that clause (it was Ms Wright’s draft that he was asked to approve) and he said in evidence that he had not wanted or expected to be repaid, but Keith had been clear that no-one should have been out of pocket for assisting him. I glean from that that Keith must have said something of the sort at the initial 24 June meeting because Ms Wright put it into the Will without apparent prompting from Mr Clarke.

[100]Ms Wright had said in her statement that she knew that Keith did not want Vivian to be a beneficiary because he had told her that their relationship was not good. She said that Keith had given her as an example of this an occasion when Vivian had passed Keith walking to the polling station for the Brexit referendum and not stopped to offer him a lift. It was suggested to her that this would have been impossible, because of Keith’s stature and because Keith used to walk along the disused railway line to get to town and not along the road. Ms Wright stated that he was able to turn and see her face and would presumably have been able to recognise Vivian’s car. She was unaware of Keith’s usual route into the village. However, it is difficult to imagine Ms Wright making up such a recollection and I accept that it happened. Even if Keith had been mistaken (which was not suggested to Ms Wright), it shows that she and Keith did discuss Vivian contrary to the line of questioning which suggested that Vivian’s absence from the attendance note reflected the lack of a conversation about him.

[101]Ms Wright was cross-examined at length about her approach to capacity during the 24 June meeting and the lack of reference to the Golden Rule or the Banks v Goodfellow test in the attendance note. Her response, in summary, was that she had had the Banks v Goodfellow test and the Golden Rule in mind as she always did, but did not feel the need to record explicit reference to them in the note. The overarching reason for this that I took from her evidence was that she had no doubt whatever about Keith’s capacity and so it did not play a big part of her considerations. If there had been, she would have required a capacity report from an independent assessor before proceeding or, at the very least, required a doctor to witness the will, she said. She accepted that she could not assess a personality disorder, but stated that she was not sure how either the Golden Rule or the Banks v Goodfellow test would determine whether someone had a personality disorder. A relevant observation in my judgment.

[102]There were criticisms of Ms Wright in respect of some corrections that needed to be made to the first draft of the Will, and that there was no record in the attendance note of a short discussion that she said she had had with Keith to express a wish that her firm would administer the will that was being drafted, but she said should would have had that conversation because it was an absolutely routine one to have. There is also missing from the will file a second draft of the Will. Ms Wright said that she could not recall why. She worked at a different firm now and could not have access to their systems to interrogate them. I find Ms Wright’s explanations for these matters satisfactory as regards Ms Wright’s integrity. The lack of a second draft of the Will is unfortunate but in the context of the evidence of the drafting of the Will as a whole does not alarm me.

[103]It was also suggested to Ms Wright that she sent the engrossed Will for signature without having checked with Keith that he was happy with its terms. Ms Wright accepted that there appeared to be no record of such instructions, but that she simply would not have done that. There was an email from Mr Clarke dated 18 July 2016 in which he asks Ms Wright to let him know if Keith has not contacted her within a reasonable time. This suggests that Mr Clarke was cognisant of the need for Keith himself to speak to Ms Wright, and I find it more likely than not that Ms Wright would have satisfied herself that Keith had approved the contents of the Will. She is a very experienced probate solicitor who is a Court of Protection appointed deputy. I am entitled to take this into account (provided that I accept her credibility) in assessing her procedures and reliability in terms of assessing Keith and taking instruction generally on the will-making process.

[104]There was, however, an omission from the first draft of the Will (and the Will itself) of a legacy of the Pigs to Luke. Ms Wright felt that there had been a reason for that exclusion but could not find an explanation in the will file itself, despite the Pigs meaning so much to Keith. In my judgment, the likely reason is the same as the reason for the lack of a specific bequest of the Shorthorns as discussed below: that Keith knew and understood the concept of a residuary beneficiary.

[105]Ms Wright did refer to a feeling that the will file was not complete, and there is at least one letter in the trial bundle from that file which is incomplete which lends some support to Ms Wright’s concerns.

Edward Richardson

[106]Mr Richardson works for Farm Cornwall as a Farm Adviser and Outreach Worker, and was originally tasked with assisting Keith with producing a business plan for Barclays Bank in around 2013 after Betty’s death. Having done so, and attended a meeting with the bank where the long term interest-only loan was arranged, Mr Richardson maintained his support for Keith. He visited him at least once per month, but it would regularly be more often. In particular, he assisted Keith with subsidy and Basic Payment Scheme applications and would assist with his post. He said that he was instructed by Keith to replace the letters into the envelopes in order to prevent Vivian, who would occasionally use the farm phone, from being able to see Keith’s business. Mr Richardson was also Keith’s first-responder to his personal alarm system. He said that Keith knew his pill regime very well and was an avid radio listener, being keen on national and international news and current affairs as well as many other aspects of life. In 2018 they visited Highgrove to see Keith’s cattle during which, on a side visit, he was able to correctly identify the pedigree of a shorthorn cattle from the 1960s by looking at a painting viewed from 5 yards away. Mr Richardson did not have much to do with the Will, but he was aware that Keith had chosen Luke to be the main beneficiary, having declined Keith’s offer of the farm himself.

[107]In cross-examination, it was put to Mr Richardson that Keith was “clueless” when it came to finances, which he disagreed with. He said that he knew his farm was an asset which was available for equity release so that he could carry on doing what he wanted in the way that he wanted to do for the time that he had left, which he knew was limited. He did accept that the finances were not good, but they were manageable in this way, he said. With help from RABI and Debbie Evans from Farm Cornwall, Keith’s bookwork was brought under control which Mr Richardson accepted had been poor. He said that Keith’s bookkeeping was not normal but it was not the first time he had seen such paperwork and there are several organisations which are set up to assist farmers who have poor business skills, and so it is not that unusual, he said. This was not a case of a mental health issue, Mr Richardson said, describing him as more than capable mentally; his issue was physical health combined with a lack of family or a partner’s support i.e. practical issues.

[108]Mr Richardson agreed that Keith would not ask for help from Vivian but instead chose his trusted friends and advisors, and said that he had never heard that group being described as “Keith’s men”. He accepted that Vivian visited Tregear to feed his own cattle but had never witnessed a conversation between Vivian and Keith. He did not regard Vivian as a caring brother and was able to say that Keith did not want Vivian involved in his care or any other aspect of his life, and did not want him to be next of kin when Keith’s monitors were supplied and set up.

[109]In terms of the Will, Mr Richardson did not know anything about it save that his impression was that Keith was concerned that if his family was to inherit, the Shorthorns and the Pigs would be sold off and there would be no attempt to continue them. He said that Keith and Luke’s family went back a long way; that Luke was often seen at the farm and shared an interest in the animals, particularly the Pigs, some of which he had bought from Keith. He said Luke and Keith “knew each other, got on with each other, they worked with each other. I assumed that they had known each other for a long time.” When asked about the Shorthorns, Mr Richardson said that Keith had come to realise that the best way to move them was in larger groups, hence Granger Harrison and Highgrove; he wasn’t sure how it was going to end with the Shorthorns, but the TB in the end was the final blow from which Keith never recovered, he said. As at 2016, Keith believed that Luke would ensure that the Shorthorns were properly dealt with and that they survived intact as pedigrees, not sold in Truro market for fat stock, and possibly that Keith’s neighbour Larry Trewern would take some.

[110]Mr Richardson was asked about farmers and their attitude to their own health and medical treatment. He said that most farmers would push themselves until they have no choice but to seek help, and he, too, referred to the anecdotal evidence that A&E departments will triage farmers differently because they are known to be slow to seek care. Much was made in this context of Keith’s apparent refusal to attend hospital for a suspected infection when advised that unless he did so, his life could be in danger. The notes do reflect such a position taken by Keith, but only on one occasion and the note does not express much concern over it.

[111]Asked about the poor state of Keith’s kitchen from a hygiene perspective, Mr Richardson agreed that it was not the normal state of a farm kitchen, but neither was it completely unusual, he said, particularly where a farmer had no partner or live-in relative, where personal care tends to decline in favour of the farm.

[112]Mr Richardson confirmed that Keith would open his post and knew what was in the envelopes he handed to him when he visited: he knew that Mr Richardson was there to deal with bills and finances and identified the relevant pieces of post to him.

[113]In re-examination, Mr Richardson was emphatic that he had never had any cause to question Keith’s mental capacity: his only issue was his physical disability. He expanded at some length on the trip to Highgrove; the “intelligent” conversation in the car with he and Maxine, a carer; Keith’s impression of the Cotswolds, and the incident with the visit to the farm from which he had purchased his shorthorns in 1968 and the painting of the shorthorn, and Keith’s extensive conversation with the farm manager at Highgrove.

[114]In answer to questions from me, Mr Richardson explained that Keith’s choice of radio was BBC Radio 4, and that he followed current affairs. By reference to opening the post, Mr Richardson confirmed that it looked to him like Keith could read and that Keith had understood the contents of those envelopes.

Patrick Evans

[115]Mr Evans is a writer, film-maker and television producer. He had met Keith in 2007 after having been referred to him by the UK Shorthorn Society whilst researching a book. He had made notes of his visits (for the purposes of the book). He said that when he had visited he had become instant friends with Keith, and Betty had provided them with coffee and cake and was very chirpy. In subsequent conversations, Betty had expressed concern to Mr Evans about how Keith would cope after death because of his disability and his emotional reliance on Betty.

[116]Mr Evans met Adam (one of Vivian’s sons) with whom Keith was on talking terms, and Keith had expressed how good Adam was at judging sheep. However, after Betty’s death, Mr Evans said that Adam and his brother had no draw to Tregear and only attended to care for their animals there.

[117]Mr Evans visited once or twice per year and spoke on the phone about once every three months, although from the notes and Mr Evans’ communications to others, it seems clear to me that their discussions were lengthy and detailed, and there was a bond between them. To Mr Evans’ mind Keith “retained his faculties right up until the very end.” He would talk, not only about long term memories but also about news, current affairs, philosophical and other issues, as well as about farming, he said, and Keith would listen to the news on the radio.

[118]Although he was away a lot, Mr Evans did get involved with Keith’s finances and helped him create spreadsheets dealing with outgoings and debts. Keith understood that he needed to raise money. Mr Evans was aware of the potential arrangement with Granger Harrison, and he knew of the potential for selling the chapel, stating that he had spoken to a solicitor and land agent about it, but that there were complications.

[119]Mr Evans’ statement contained details of how Keith had raised with him the prospect of a will in 2016; that he had considered Granger Harrison as a beneficiary, but realised he did not want land in Cornwall, as well as considering Prince Charles (because of his interest in rare breeds) or his grandson Prince George, but realised that they would not want the farm.

[120]Mr Evans made contact with Mr Clarke through Keith and between them they assisted Keith with organising the Will. They spoke on the phone about Luke as a beneficiary and the fact that Keith did not want Vivian to be one. The email Mr Evans sent to Mr Clarke dated 22 June 2016 suggests an in-depth discussion six potential beneficiaries. Luke is not mentioned by name, but that is because the message was from and to someone who did not know Luke. I have no hesitation in rejecting the notion that it was because Keith did not know Luke’s name: Keith had known Luke for many years by this stage. Mr Evans said that he discussed the difficulties Luke might face in keeping the farm given the level of Keith’s debt which, Mr Evans said, Keith acknowledged. However, Keith had said that he felt Luke’s approach to the animals was the closest to his own, and that was why he had chosen him.

[121]Once a draft of the Will was prepared, Mr Evans attended a meeting with Keith and Mr Clarke at which he said the draft Will was gone through very carefully and Keith made his views very clear on each point, he said. A few minor amendments were made by Mr Evans which is the draft with manuscript amendments in the trial bundle. Mr Evans and Mr Clarke paid the fees to Ms Wright’s firm between them.

[122]After Keith’s death, the executors dealt with arrangements, but Mr Evans did speak to a Mr Heather who helped dig the grave which he says was done in accordance with Keith’s wishes: Keith was buried in his chair on a particular spot on the farm.

[123]In cross-examination, Mr Evans said that he regarded himself as a friend of Keith’s who assisted him with practical matters e.g. clearing a drain or communicating with a Brazilian farmer interested in the Shorthorns, which help increased over time. He did not manage Keith’s finances, he said though he did help out with the odd bit of monetary assistance. The spreadsheet he produced was very rudimentary and was not the one in the trial bundle, he said. He did not have any real knowledge of Keith’s debt until the later years when things were getting difficult.

[124]Mr Evans denied that Keith had no concept of the future or time, saying that Keith was always trying to plan for the future, particularly in relation to the destiny of the Pigs and Shorthorns as well as the straws of shorthorn semen that he had had frozen years before, and continued to produce. He was keen for the pedigree of the Pigs and the Shorthorns to be maintained after his death, although it was not his sole priority, Mr Evans said, and he emphasised the breadth of Keith’s friendships and interests.

[125]In terms of the Will, Mr Evans agreed that he discussed it at length with Mr Clarke, but discussed it to an equal or greater extent with Keith, he said. He was taken to his typed-up note of a conversation he had had with Keith. He agreed that at that point Keith was unsure as to whom to leave the farm, but strongly disagreed with the suggestion that the note evidenced Keith failing to appreciate the value of the farm or that he simply wanted to get rid of it. In the email dated 22 June 2016 to which I have already referred, Mr Evans refers to Keith being uncertain about who to leave the farm to (to which he agreed), and it was put to him that he guided Keith as to who the beneficiary should be. Mr Evans denied this, stating that he simply discussed the options with Keith on the phone, as Keith raised them with him. I note in passing that Keith obviously used the phone a lot for conversations with people which, given his physical disability, is not surprising. The reference to “local boy” in the note was a reflection of Mr Evans’ lack of knowledge of Luke’s name, not Keith’s he said – it was for his own reference – it would have been obvious to Keith and Peter who that was. Mr Evans was sure that he had discussed Vivian and the family with Keith on this and possibly one other prior occasion, and Keith had decided that he did not want to leave the farm to his family. I take that to mean that he was listing in that email potential beneficiaries, not discounted ones.

[126]In terms of Luke’s commitment to the Shorthorns, Mr Evans did not consider that Luke had ever made a promise to Keith. He said that he thought Keith was realistic about the practicalities: he knew that Luke had his own farm and herd and physically taking them on at Tregear was not guaranteed; however he felt that Luke was the most likely to do his best for them, and that he may grow even more keen over time.

[127]Mr Evans felt that Keith’s relationship with Vivian, Adam and Matthew had petered out after Betty’s death and this was based on observation and impression from Keith, he said.

[128]So far as the farm was concerned, Mr Evans thought it unsurprising that Keith did not know the precise value of the farm as he was not a land agent, but thought it was well within his scope to consider a rough value.

[129]Mr Evans was cross-examined about the same text message with Ms Wright (in which the Will is mentioned in passing) as suggesting that Mr Evans was giving instructions to Ms Wright for Keith’s will. Mr Evans said that he was only doing what Keith had told him, and I reject that interpretation of that exchange. Part of that exchange was a reference to the 2 August 2016 meeting between the executors, Peter, Mr Evans and Keith. Mr Evans was clear that the expression “satisfactorily and openly discussed” referred to Keith satisfactorily being able to explain to the executors about the terms of the Will, and it had been established that they were happy to be the executors. Mr Evans said that Luke had turned up later and was not present when these discussions were being had. He regarded Luke as having been rather bashful, particularly about the inheritance. In a further text exchange on the same day with Mr Clarke, he referred to the meeting having “taken its toll” on Keith. Mr Evans strongly refuted the suggestion that this referred to Keith having been unable to deal with the meeting or that he was not on top of things. He said Keith had discussed things fully and openly, apart from the time he had already spent with Mr Clarke discussing and preparing the Will, it had been read out at the meeting. He clearly recalled that Keith had gone through every point at the table with everyone present.

[130]Mr Evans could not recall whether anyone had suggested Dr Fairlie witness the Will “because the meeting had taken its toll on Keith” as referred to in Mr Evans’ text message afterwards. It wasn’t his idea so far as he knew. He knew Keith was taking morphine, but denied that he had ever expressed concern about Keith’s capacity to make a will in August 2016. He was referred to a text exchange in which Mr Evans suggests that he would try to persuade Keith to sell some more stock, and suggested that Mr Clarke do the same when he delivers Keith and the Will to the doctor’s. Mr Evans replied by referring to the proposed LPAs which might be witnessed by friends and then said in his text “Yes the will needs doing by the doc – anyway good luck with everything and will be in touch!” Mr Evans denied that this was an expression of concern over Keith’s capacity, rather it was him simply agreeing with Mr Clarke and deferring to his suggestion that the Will should be witnessed by Keith’s GP. Given that LPAs also need the grantor to have capacity, that is hardly good evidence that Mr Evans considered Keith to lack capacity. In any event, Mr Evans’ interpretation of that text is the more natural in this context.

[131]Mr Evans in an answer concluding his cross-examination that he had no doubts about Keith’s capacity and, so far as he was able to recall, neither did Mr Clarke. And he was confident that Keith knew and understood the contents of the Will.

[132]Finally, in answer to other questions, Mr Evans said that he had assumed that Mr Clarke had suggested that Dr Fairlie should witness the Will, but on the basis that he had assumed Mr Clarke had great experience in such matters. From what he saw and heard at the 2 August 2016 meeting, Mr Evans said that Keith could read and write and was fully aware of events and issues at that meeting; that it had all happened at Keith’s instigation and it had been Keith explaining to the executors what he intended by reference to the Will. He also said that Keith listened to Radio 4 and was able to discuss current affairs very lucidly.

Vivian Care

[133]Vivian set out the history of the farm dating back to 1924. He described how as children they had worked on the farm as a family, taking no holidays and yet producing an immaculate farm which produced a living for the family. It was always understood that he and Keith would know that, in return, they would one day be given the farm. He said in his statement that it was always an extremely special place for the whole family, and they used to be taken to visit their grandfather’s grave to emphasise the establishment of the farm.

[134]Vivian’s father had started the herd of Large White Pigs in 1960, and he and Keith had taken over as they grew older. He referred to Keith starting his heard of Dairy Shorthorns in 1977 and how they became his passion and indeed referred to them as being his whole world.

[135]In his statement Vivian said that he had worked at Tregear both before and after school and then 7 days per week for mere pocket money until he got married at the age of 29. He had started working a smallholding of 10 acres in 1979 (Burhos Farm) but still returned to work at Tregear part-time. He failed to mention in his statement that this smallholding also contained a farmhouse and had been gifted to him by his parents upon his marriage. In fact, he said in his statement that he had bought it in 1979, but he corrected this in his examination-in-chief. It is his current home. He went on that he had been allowed to farm two fields at Tregear in his own right from 1992 (amounting to 16 acres) whilst Keith farmed the remainder of Tregear and lived with his parents, stating that Keith required assistance from their father until his death in 2005. Vivian’s sons both worked on the farm since they were at infant school.

[136]Vivian explained in his statement how fragmented the farm is now following his mother’s division, with there being no electricity to his part and a complex water system. There are difficulties with boundaries, too. He said that Keith had always taken the view that it could be sorted after his death and, whilst that worried Vivian, he was relying on the assurances he had always received that the farm would be kept in the family which, in effect, meant his family. Vivian claimed that from 1990 he recommitted to Tregear because of his children. There was a strong bond between the whole family, including his children and Keith – and that bond was the commitment to Tregear, he said and he would not have committed to keeping his land there had there not been the commonly understood commitment to Tregear being kept for the fifth generation, i.e. his children.

[137]Vivian said that Keith had offered him the two additional, larger fields because he could not cope with all of the land he was farming due to his father’s decline and his own ill-health. Although not the ones he would have preferred because they were not contiguous with the two Vivian had, he was pleased to take these on for himself and the children.

[138]After Yeamon’s death, Betty wanted to secure the farm for the future, Vivian said in his statement, the farm being of the utmost importance to her. He arranged for a land surveyor to advise them and farm tenancies were executed to avoid IHT. Worried about inheritance tax, Keith had said that his part of the farm should go straight to Vivian’s children, Vivian said in his statement, with Keith remaining for a peppercorn rent. According to Vivian, Keith could not understand that farm business tenancies would avoid inheritance tax altogether.

[139]Vivian recalls a conversation in 2009 between Betty, Keith and him, in which Keith had said that Tregear and the cows were his life and he promised to keep Tregear for future generations. Vivian said that he told his mother that he did not want a share in the farmhouse because it was Keith’s home (and no doubt because he had Burhos Farmhouse in any event).

[140]Vivian set out in his statement a number of instances of his reliance on the promise and understanding that the farm would be retained within the family via him and Keith, which reliance was to his detriment. This was presumably intended to reflect his Amended Defence and Counterclaim.140.1 The erection of two livestock sheds in 2006 and 2009 with Keith’s and Betty’s approval. This cost £25,000 in materials and £8,000 labour.

140.2 Vivian had obtained planning consent for the conversion of four barns at Burhos which was said to have been obtained in case he wanted to move away to a larger farm in the future. Because of the family commitment to Tregear and Keith’s promises he instead stayed at Burhos and (according to the pleaded case) did not develop the barns but instead spent the money on constructing the 2009 shed at Tregear. This exercise is said to have cost Vivian £20,000. This consent and decision to stay was said in Vivian’s statement, as well as in his Defence and Counterclaim, to have occurred in 2009. He had made no disclosure in relation to the planning consent, but Luke’s solicitors had established that the consent was not obtained until 2011. Vivian corrected the date of the planning consent to 2011 in his evidence-in-chief. In his statement, Vivian also fails to mention that two of the barns were given to Adam and Matthew who converted them and currently let them out. They currently farm a 200-acre farm about 50 miles away.

140.3 Vivian turned down an offer to sell to him 30 acres of land adjoining Burhos for £105,000. He had had a loan lined up, but Keith and Betty had persuaded him not to, feeling that it would be better to keep that credit to purchase land adjacent to Tregear in the future (which would benefit the entire family), and so he did not proceed with the purchase. This differed from his pleaded cases which I deal with below. In his statement, he says that the 30 acres would have been a diversification opportunity and provided an additional entrance for the barns. Moreover, this would also have given Vivian an opportunity to breed additional sheep generating income of £30,000 p.a. plus grants of £5,000 p.a..

140.4 In his statement, and somehow linked to the abortive land purchase at Burhos, Vivian goes on to say that had he known Keith’s intentions, he would have sold his land at Tregear and would have looked to buy something more suitable for his sons.

[141]Vivian says that he cannot understand Keith’s breach of his promise to Betty, himself and his nephews. Vivian also says that Keith would, after Vivian and his sons had carried out work free of charge for him, often tell the boys that “one day, all of this will be yours”.

[142]Vivian refers to another promise said to have been made by both him and Keith to Betty in 2013 that they would keep Tregear together. And on another occasion, Betty told Vivian to “give Keith good advice and keep Tregear together” to which Vivian had replied that he would do his best.

[143]After Betty’s death, Vivian states that Keith told him that there was no point in addressing the division of the fields because it would all be going to Vivian’s sons; similarly, the division of the water supply or provision of electric supply.

[144]The remainder of Vivian’s statement deals largely with Keith’s physical and mental health. The medicine that Keith was on, and his general behaviour together with the huge debts suggested to Vivian that Keith could not have had capacity when making his will. The terms of the Will also suggest that, he said, which demonstrate the failure of Keith to appreciate the huge upset his broken promises would cause.

[145]Vivian also takes issue with the documentary records suggesting that neither he nor his sons were assisting Keith or that they were not really part of his life. He denied that this was the case, stating that they helped and supported Keith throughout.

[146]The contents of the Will were a total shock to Vivian, he said. No-one had any idea that Keith would go back on his promises. Furthermore, the complete lack of any reference to either the Pigs or the Shorthorns in the Will raised alarm bells given their importance to Keith, he said.

[147]The tone of Vivian’s witness statement suggests a belief that those surrounding Keith at the time had taken against Vivian and encouraged or persuaded, or simply overrode, Keith to ensure that the Will did not benefit Vivian or his children. This was reflected in the cross-examination of those witnesses.

[148]In cross-examination, Vivian accepted that Keith could read, at least until his eyesight deteriorated, and that he was generally speaking an intelligent man with a good memory, and a man of his word. He agreed that Keith had had panic attacks or anxiety only after Betty had died and that he was stoical.

[149]Vivian did not pay rent for Burhos but instead was spending money on improving it, he said. He added to the land gifted to him by buying and renting land so that it amounted at its height to 220 acres. He accepted that Keith farmed Tregear separately, and there had never been a partnership between them.

[150]Turning to the shed constructed in 2006, Vivian accepted that he was farming the relevant field and that he had cattle on it, and that it was his idea to build the shed because he did not have enough storage. He asked Betty’s permission and Keith had not disagreed. It was suggested that the decision had been made by him, and simply because it was more convenient for him as a farmer, to which Vivian agreed, stating however, that he had not made any planning applications until his mother had agreed to the shed’s erection.

[151]Referring to the appointment with the land agent that Betty had asked for in 2007, Vivian accepted that had any inheritance tax been payable, Tregear would have been at risk on her death as it was Betty’s only asset. Vivian also eventually agreed that by the conclusion of the same meeting it was clear that Keith was going to inherit not only land at Tregear, but also the farmhouse and buildings outright.

[152]Vivian was then asked about the 2009 shed which was built on one of the fields that Vivian had taken over from Keith. This was to be a store or a cattle shed depending on what the other one was being used for, he said. He agreed that it was built because he thought it would be useful to him, and that he sought and obtained Betty’s permission, thinking it would be a good thing for the farm and the boys, he said. He added that he also approached Keith and he had agreed that it was a good idea. He was sure that this was not a discussion about inheritance.

[153]Referring to a conversation that he was witness to when the 2009 shed was being built, Vivian said that he recalled Betty and Keith coming up to observe its progress and speaking to Adam and Matthew and saying that the shed would be a good asset for them in the future. Asked about the cost of the build referred to in his witness statement about which no documentary evidence had been adduced, Vivian said that he had worked it out using building costs he was aware of, and the hours they had spent building it. He accepted that the labour element of £8,000 had not been third-party labour but represented his and his sons’ labour. He accepted that he worked for himself, but said that his sons were paid their weekly wage, and therefore had to agree that they would have been paid that wage irrespective of whether the shed had been built. Vivian accepted that he had no records left of the expenditure and that he had made a guesstimate, but he considered it to be a “good guesstimate”.

[154]It was suggested to Vivian that he built the sheds because it made good sense to do so at the time, and that was reflected in the fact that he is still using them. He replied it did make good sense but he was also doing it for the future of Tregear for future generations, which became something of a mantra during his evidence.

[155]In his pleaded case on detrimental reliance at paragraph 19(d), Vivian had pleaded that the building of the barn in 2009 was a direct consequence of him having been persuaded not to develop the barns at Burhos for which he had obtained planning consent. Ms John took him through matters, and he had to agree that that was wrong (not least because the planning consent was obtained in 2011), and had to accept that the 2009 shed was an independent project.

[156]Vivian made it clear in cross-examination that he did not in fact intend to develop the barns himself (as pleaded) but to obtain planning permission and sell the land with the value enhanced by the consents and purchase a larger farm elsewhere or land adjacent to Tregear. Vivian accepted that he had in fact given two of the barns to his sons who had now developed them into two three-bedroom houses. Vivian accepted that there had been benefit to the family by him retaining the barns and giving two of them to his sons, and that he was still able to sell the remainder of Burhos if he wanted to.

[157]Vivian’s evidence developed and was rather incoherent: he said that he had been persuaded by Betty and Keith not to sell the land (its value enhanced by the planning consent) in order to buy a larger farm elsewhere which had been his intention, but instead to buy land near Tregear when it became available. When asked why he did not then do that, he said that no such land had become available, and the intention was to sit on it. Interestingly, he then said that it was after Betty’s death, two years later, that he gave two of the barns to his sons. It was suggested to Vivian that this was new evidence: there had previously not been any connection between obtaining planning permission at Burhos and buying land near Tregear, to which Vivian replied that he thought it had been in his statement (it had not, and nor had it been in his pleadings).

[158]In relation to Betty’s will and the correspondence leading up to it between Betty and her solicitor, it was suggested to Vivian that a number of factors tallied up to suggest that Betty was not contemplating a temporary division of Tregear but a permanent one. These were Betty’s careful steps to ensure that Keith received all the land that she had intended, even the non-farmable disused railway line; the terms of the will itself which ensured the maintenance of rights of access and services, and required each son to maintain in good repair and condition the boundaries on the land bequeathed to them “respectively”. Vivian acknowledged that, by the will, he and Keith could do what they liked with their inheritance, but “I go back to the family”, he said: “we had always been brought up that it would stay in the family”.

[159]Vivian agreed that his inheritance from Betty’s will, when combined with the land at Burhos, meant that he had received more than Keith, but he said that Keith had specifically offered the two additional fields that he had. It was suggested that that might have been thought by Keith to have been just the use of them, and that Keith was disappointed with the terms of Betty’s will. Vivian replied that he did not know that Keith felt hard done by Betty’s will: the land had been devised as per the farm tenancies, he said. It was put to Vivian that there had not been the discussion he alleged between him, Betty and Keith which settled on the land division, because there would have been a falling-out at that point, as per Keith’s subsequent stance. Vivian replied that there never had been a falling out at all. It was suggested to hm by Ms John that the expression used in his statement, “To my knowledge Keith said to my Mother something along the lines of ‘Tregear and my cows are my life of course I promise to keep Tregear for the future generations.” was a strange way of putting a conversation that he had actually heard and that it was more like reported speech from a third party, but Vivian was firm in saying that he had been there when it had been said.

[160]Turning to Vivian’s claim that he passed up the opportunity to purchase 30 acres at Burhos from his neighbour, it is pleaded that he had obtained a mortgage offer, but was dissuaded from purchasing the land on the basis that “the money would be better spent developing Tregear”. Vivian said that there was nothing in writing from the neighbour, but it had been agreed orally. The mortgage offer could not be traced, but there is an email from the bank confirming that some funding was available. When it was put to Vivian that “developing” did not mean buying land near Tregear which was what was in his statement, he said that it had always been linked to buying land near Tregear. He accepted, as he had to, that that was not in his Defence and Counterclaim.

[161]In relation to acquiring land, Vivian accepted that the land surrounding Tregear was tenanted Council farmland, but denied that such land does not often come up for sale. In any event, he said, it did not have to be literally adjacent. He accepted that no such land had come onto the market since 2011. It was suggested to Vivian that the only reason he did not proceed was that Betty had been against it because she was against borrowing generally, and persuaded him that to borrow £105,000 at his time of life (he was 62 at the time) was unwise. He denied this, and said, too, that Keith had joined in the dissuasion. In terms of the detriment, Vivian had calculated that he would have profited by £30,000 p.a. if he had bought the land. The figures were challenged as, essentially, fanciful. It was pointed out to him that he had said that he was living on about the same income as Keith had been (which he accepted as £10-12,000), and he was questioned as to how he was going to generate £30,000 from 30 acres when the 220 acres he was already farming produced just £10,000-£12,000. Vivian said there was potential because his pedigree Dorset sheep-breeding was coming to fruition. Asked by me why he did not use the 220 acres to rear Dorset sheep, Vivian said that he had reared commercial sheep to bring the Dorsets on. He did not explain why, from that point, he did not or could not have switched some of his existing land to rearing Dorsets.

[162]In cross-examination about the brothers’ freedom to deal with their respective moieties of the farm, Vivian stated that he did not know that Keith had ever considered moving to Suffolk; he said he would have tried to resolve the Tregear issues, but did agree that Keith could have sold his share if he had wanted to. He also agreed that he was free to sell Burhos.

[163]Vivian had referred to the fact that he had worked for years for no pay (in his younger days), and he was asked whether he agreed that Keith had earned his share of Tregear every bit as much as Vivian had, to which Vivian replied that he had never disputed that.

[164]Vivian said that both his sons were committed to farming.

[165]It was then suggested to Vivian that it was unlikely that anyone would have considered Keith’s words a “hard commitment” that he would ensure Tregear stayed within the family, and Vivian replied, Well it’s all the family have ever talked about, so it’s not that I would say it was a hard commitment.

[166]It was suggested to Vivian that the discussions and Keith’s promises in 2013, if any, were made to Betty and not to him. He said that they had both promised their mother and he had promised Betty that he would look out for Keith. He was asked whether it was fair to characterise that as both sons giving assurances about the family sticking together, to which he replied, yes.

[167]Vivian accepted Betty had dealt with Keith’s finances, and after her death it had been Debbie Evans. He considered it was a lack of capability on Keith’s part rather than Keith being disinclined.

[168]Vivian accepted that Keith would only have considered reducing the size of his herd if no other options were left and that he had told RABI in 2013 that that was his only option, although he was keen to point out that Keith had not really done so. Asked whether his sons had ever expressed an interest in taking on the herd, Vivian said that there had been some talk of going back into milk with them, but he knew no details.

[169]In terms of help, Vivian said that he and his sons had offered him a lot of help, and sometimes he accepted small things to be helped with but other times said there was nothing he needed. Vivian had not seen Luke on the farm very much, he said. He confirmed that he had had tea every day at Tregear until mother died, but thereafter he used the phone occasionally and let nurses in from time to time.

[170]It was suggested to Vivian that Keith’s reluctance to get involved with Betty’s probate was nothing to do with any lack of capacity, and Vivian said he thought it was more because he liked the idea of not having to deal with it. He accepted that it was rational for Keith to think about the Shorthorns when making his will, and to keep on with the Shorthorns despite everything. He thought that the Pigs and Shorthorns were central to Keith and would have expected to have seen a specific legacy dealing with them in his will.

Adam Care

[171]Adam is one of Vivian’s sons and was 37 at trial. He said that he spent a great deal of time at Tregear as a child with his grandparents and Keith. He said that he had a “great relationship” with them. His witness statement was fulsome about his time spent at Tregear and his love for the place. He emphasised how important it was in the family, that nothing came before Tregear. He detailed his appreciation of pedigree breeding and his success with sheep breeding.

[172]Adam also emphasised the extent of support that Keith received from Betty and Yeamon, his grandfather in terms of paperwork in particular, but also with cooking and cleaning.

[173]Adam, referring to the years before Betty died, described how Keith and he “knew each other inside out” and were extremely close. He admired Keith enormously and even when he had less time to spend with Keith and Betty he was still looking after Keith.

[174]The meeting with the land agent in 2007 was described by Adam. He said that Keith was worried about inheritance tax on Betty’s death, and that Keith suggested that he would pass Tregear onto Adam and Matthew even though he didn’t own it then. Adam then said that Keith had talked of living at Tregear for life at a peppercorn rent in order to avoid any risk that Keith would pay inheritance tax, give Keith security and ensure Tregear would remain in the family for future generations. He understood that Betty’s will was part of this planning.

[175]Adam referred to the shed built in 2006 and said both Betty and Keith were happy about it. When the 2009 shed was being built, he said that Keith had visited and remarked how much better it would be when “it would be all back together” and the investment was a good idea because it would be his and Matthew’s one day. He said that there was so much talk of the Tregear staying within the family there was never a reason to suggest that it would not. Without that, Adam said that “we wouldn’t have invested in Tregear”.

[176]Adam’s statement describes Keith’s declining health. He recalled the first day that Keith had taken morphine and had taken 4 tablespoons instead of teaspoons and how that had had a dramatic effect. Adam said that Keith was always falling asleep in the middle of doing things: in the field, in the pig shed, milking the cows etc., both before and after Betty’s death. He would fall asleep during conversations, too. Adam also said that Keith could not see what he was doing, banging his head against doors and bashing his face; he would fall a lot, too, he said: he would be doing a job, then pass out and knock his head when he fell, he said.

[177]Most starkly, in Adam’s statement, he said something that no other witness (bar one, to whom I shall come) did: that Keith’s stockmanship began to fail and his standard of care for the livestock declined:

“They started to suffer. When you work with livestock you know they are sick, Keith seemed to lose his eye for good stock. He couldn’t see them deteriorating. It was hard to see for someone who was brilliant with his cattle. It was even more sad that he failed realise that his stock was deteriorating, as he struggling mentally to contain what had and had not been done.”

Adam referred to a visit from a Trading Standards Officer in the summer of June 2019, though he did not know specifically why they were there. It is notable that no timescale was put by Adam on this deterioration in relation to the date of the Will of August 2016.

[178]Adam said that after Betty’s death, Keith’s health deteriorated and he seemed to take less care of himself. Either he or Vivian would see Keith once a day to check on him. He referred to the help Keith received from charities.

[179]Shortly before Keith’s death, Adam stated that he had asked Adam to take over the Pigs, and Adam had agreed, stating that they would remain at Tregear where they had always been.

[180]Adam described he and Matthew having been offered a 20-year tenancy of a County Council farm (Lower Lydcott Farm) after a competitive tendering process in 2019. This is 55 miles away from Tregear. He said that he specifically went to discuss the opportunity with Keith who encouraged him to take it, but that Tregear would always be there after Keith had finished farming. Adam and Matthew took the lease and farm it between them to this day.

[181]In cross-examination, Adam would not concede that Keith was, subject to any eyesight issues, capable of reading, even though Vivian had confirmed that he could. He insisted that he could not comment because, although Keith had taken farming journals for years, he had only ever seen him look at the pictures.

[182]Adam gave few straightforward answers. He is clearly quite a sophisticated businessman and farmer and he was careful to answer in indirect ways to talk around the answer to his point of view. He did say that he could remember verbatim the conversations that he had had with Keith and others as a schoolboy because he spent so much time at Tregear.

[183]Asked about the 2007 meeting with the land agent, and answering the suggestion that that it had not been about Keith’s estate, Adam agreed that if anything it was about Betty’s estate, but it was in the context of the farm always coming back to the family. Keith was primarily worried about inheritance tax because he did not like complications, he said: the meeting was to discuss farm tenancies so that inheritance tax good be avoided, but if, by the farm skipping a generation to go straight to Adam and Matthew they could have saved tax, they would have explored it further he said.

[184]Adam considered comments made by Keith about the sheds being good investments for the future as being promises made to him as to the future of Tregear remaining in the family: promises about the future and ones made regularly throughout his life, he said. There were promises made later, too, he said which led to sacrifices by him as well as a promise to Keith that he would farm as Keith wanted. He accepted that he was talking about 2018, but said that it had happened often, and often casually, in passing.

[185]There is no claim or counterclaim from Adam Care in this case, and so I will not dwell on promises said to have been made to him save insofar as Vivian may have been present or Keith knew that they had been transmitted to him.

[186]It was pointed out to Adam that the Claimant’s witnesses had all said that Keith was able to have long, intelligent, conversations which did not chime with his evidence about Keith falling asleep all of the time. Adam replied that that was his experience and he saw him almost every day. He did confirm that the morphine overdose error had only occurred once when he was first prescribed it. However, he did say that Keith would run out of medication before time, which suggested that he took more than the prescribed dose, although I note that the medical records do not show this as being an issue.

[187]It is clear that Adam was concerned with Keith’s preferred way of farming, saying that Yeamon was a more modern farmer than Keith, who did things his way and maintained belief in superstitions such as St. Swithin’s Day.

[188]Adam suggested that the lack of any record of him attending appointments with Keith was that he would often wait outside, but he said he did take him on at least one occasion after 2016.

[189]Referring to Adam’s witness statement, Ms John pointed out that there was nothing in there suggesting any substantial assistance having been given to Keith after Yeamon’s death. Adam said that he used to mow hay after that time, and when they were down there daily, they would ask him if he wanted anything done, and they would do whatever he asked them to. He said the number of animals that Keith had would have required only a few hours’ work a day as at 2014. He said it was completely untrue that the family relationship deteriorated after Betty’s death; he said he saw Keith on a daily basis.

[190]Adam’s evidence was that he would have refused the Lower Lydcott Farm tenancy had he known that Tregear was not being left to the family; they would instead have looked to purchase a farm. He then said, however, that if a Council farm came up for rent near to Tregear, being an existing tenant would have stood him in a better position to bid because he had a proven track record. He also stated that Lower Lydcott Farm could largely be run by Matthew alone because they had largely mechanised it.

[191]Finally, turning to Keith’s mental health, Adam said that Keith was not managing his affairs as was reflected by the £168,000 of debt. He did not make coherent decisions, because his objective had been to milk his cows again and that something that was unachievable given his physical and mental health, and the fact that there were insufficient cows to be a viable option. He said it was cruel to give Keith the idea that he might be able to milk again, which does rather grate with his suggestion (and Vivian’s) that he had offered to help Keith with a plan to do just that to make him happy.

Valerie Care

[192]Valerie Care is Vivian’s wife, they having married in 1979. She endorsed Vivian’s statement in her own, and emphasised how much the family loved Tregear, and how farmers are attached to land and animals. She described Yeamon’s support for Keith; his death and how that affected Keith; Betty’s declining health and Keith’s naivety. She give examples of the Spanish lottery scam that Keith had nearly fallen for (as had Adam) and his surprise that a person’s pension could be drawn in cash from different post-offices. She described as Keith being almost child-like, rarely leaving the farm and being looked after by Betty both personally and in terms of paperwork.

[193]Valerie described Keith’s declining health, increasing medication, and his determination to keep on with the Pigs and the Shorthorns. She described the days before his death and his death itself. She went into detail about what happened in the days following, including the poor way that Vivian was said to have been treated by the executors of Keith’s estate and how the burial was not what Keith wanted.

[194]Valerie said that she had known Keith for 40 years and was surprised that he had broken a promise, one that she had heard him make to his mother. She said that her sons were passionate farmers and the plan had been to take Lower Lydcott Farm and for one of them to come back and farm at Tregear/Burhos to be near to her and Vivian as they grew older which plan was now in ruins. Tregear had always been a priority for Vivian, she said, and he has been devastated, and left with a fragmented farm with a complex water supply and no electricity.

[195]In cross-examination, Valerie said that she and Vivian discussed everything and did the paperwork together, each having their own strengths. The boys helped when they had been there. She agreed that Betty did most of the paperwork, but that Yeamon had his finger on the pulse. She agreed that she thought Keith was unworldly because he didn’t think much beyond the farm, but she had been able to explain the post-office issue eventually. She said that both Betty and Yeamon were concerned at how Keith would cope after their respective demises. Valerie was understandably keen to refer to the extensive care that she had afforded Betty as her health declined. She stated, too, that she had offered to help Keith after Betty had died, such as asking him up for Christmas or taking him Christmas lunch, but that he would refuse. She said the family did care and would have done anything for him, for example she used to go looking for him when people couldn’t contact him, which could take some time due to his shortened stature.

[196]Tregear had always been at the forefront of the family’s decisions, she said. Whatever was going on, be it births, deaths or marriages, the first question was what was happening on the farm, Valerie said. Betty had been adamant that the family must strive to keep Tregear going, and had emphasised that she and Vivian must give Keith all the help and support they could do to achieve that. She did not agree with what her husband had said that any promises made in the 2013 meeting were promises made to Betty and not to Vivian.

[197]Valerie was asked about the absence of any mention in her statement of the alleged discussions about Vivian being dissuaded to buy land at Burhos in order to invest in Tregear. Valerie said that that was because the final decision was not hers because Burhos had been gifted to Vivian alone, but what that has to do with buying additional land she did not explain. Asked whether she’d had any opinions about whether it was a good idea to buy the land at Burhos, she repeated that it was not her decision. She was challenged that it was unlikely that they would not have discussed the quite serious choices involved, and she repeated that it was not her decision: the loan was via a business account which was in Vivian’s name only. I pressed her on that, given that she had earlier said that she and Vivian discussed everything, and Valerie said that they did discuss things, but it was not her decision. She would have liked him to retire at 65, but he’s never going to do that, she said. She confirmed that she had not been there when Vivian discussed the issue with Betty. She did say later, however, that “we wouldn’t have looked into finding out whether we were eligible for the money in the first place” had they been against the principle of borrowing, which suggests that she in fact had been involved in the potential acquisition at the time.

[198]Valerie explained that Burhos was very small in terms of house and acreage, describing it as an “off-farm”, and they had more land and animals at Tregear and elsewhere on rented land, so Burhos was little more than a base. The boys had spent more time at Tregear than Burhos, she said.

David Andrew

[199]Mr Andrew is Vivian and Valeries’ neighbour at Burhos and the proposed vendor of the 30 acres of land there cited by Vivian as part of his detrimental reliance on Keith’s promises. He knew Keith and the family from the 1970s and he did contracting work at Tregear for Keith until Betty’s death. He, too, described Keith as doing things the hard way, the old fashioned way, of which he was proud. He, too, described how Betty and Yeamon were concerned about Keith after their deaths. Mr Andrew did not visit Tregear after Betty’s death. He found Keith’s demands too much, and he was of the opinion that Keith would not cope with paperwork after Betty had died.

[200]Mr Andrew would have lunch at Tregear when Yeamon and Betty were alive, and he said that the family would always talk of their wish that Tregear would carry on. The family worked together as a team, he said. He also stated that Tregear was never properly split and he was witness to many conversations over decades when the reunification of Tregear was talked about at some point in the future. These conversations were also had at lunch around the table, Mr Andrew said: the farm would pass to Keith and Vivian and then on to the survivor before being passed onto Matthew and Adam. Keith and Betty did most of the talking, he said.

[201]Despite saying that he had not really gone down to Tregear after Betty’s death, Mr Andrew commented that he, like Adam, had witnessed a deterioration in Keith’s cattle who looked hungry and uncared for; he said that he had seen the farm falling into dilapidation, as well as a fall-off in Keith’s personal care. He also said that Keith had told him in the later years of his life that he wanted the Shorthorns to stay on the farm and he be buried beneath them. It is common ground that Keith rarely left the farm. Mr Andrew did say later that he had a plot of land opposite Tregear and he could see Keith’s cows from there.

[202]In cross-examination, Mr Andrew agreed that Yeamon had also worked in old-fashioned ways and Keith’s methods were a continuation of that. He accepted that Keith could drive the tractor but that it probably had no power-steering which would have made it more difficult the more Keith’s condition worsened. He did not know of Keith’s special orthopaedic chair nor of Keith’s inability to sleep in a bed. He said that Keith slept in the kitchen so he could get up to check the cows at night.

[203]Mr Andrew could not see the contradiction in what he had said in his statement that, when the future of the farm was being discussed, Keith and Betty had done most of the talking, but at the end of the same paragraph he had said that “Keith never said a lot”. He was pressed but maintained there was no contradiction. In reference to the conversations themselves, Mr Andrew described the family as talking about their wishes. He stated in answer to a direct question (put in various ways) that he had never witnessed a promise being made by Keith to anyone.

[204]Mr Andrew had been told by Vivian that, on Betty’s death, Keith had picked the fields to have and Vivian had had what was left. He simply would not accept that Betty’s will had left specific fields to each son because Vivian had told him otherwise.

[205]In reference to the proposed land sale, Mr Andrew said that the deal had been done orally, and both he and Vivian had their finances in place, and it was ready to go to solicitors. He was asked whether Vivian had told him that the reason it did not go ahead was because Betty had told him that she did not want him to buy the land or borrow the money. He replied yes. He then added that he assumed that Betty and Keith didn’t want him to buy land when he had land coming to him. When pressed, he said that this was an assumption and he had been told that it had been Betty who was against the proposal.

[206]In re-examination, Mr Andrew suggested that the assertion that Keith had picked the fields after Betty’s death was also told to him by Keith himself, although he did seem to step back from that position in further questioning.

Anne Freeman

[207]Mrs Freeman is the widow of a school-friend of Vivian’s and knew Betty and Yeamon well, too.

[208]Mrs Freeman describes the Cornish family farming tradition which is unfamiliar to those not involved, she said: it is a close community. Furthermore, there is no doubt amongst these farming families that the farm will always stay in the family, without question. She describes Keith’s physical deterioration and that he also deteriorated mentally as time went on. She said that Keith was very innocent and inexperienced and could, she thought, be suggestable. She did not put a timescale on his deterioration in her witness statement.

[209]In cross-examination, Mrs Freeman said that her late husband, a builder, worked less for Keith as time went on. She would pass by Tregear when walking her dog on a particular route, but she would talk to Keith on the phone. She thought that Keith got help from friends and neighbours. She was not aware of the charities’ involvement.

[210]Mrs Freeman was not aware of any difficulty with Keith and Vivian’s relationship, but she did say that she had never seen them together after Betty’s death, and agreed that her comments on them being close referred to a time before Betty’s death.

[211]In terms of Keith’s naivety she was not sure whether this was due to his inexperience or mental health issues. She said that he relied heavily on his parents before they died, to the extent that Betty used to give him pocket money for his tobacco, Keith not really dealing with his own money at all. Mrs Freeman referred to the Spanish lottery incident, too. She also said that she and Keith had talked about the difficulties of breeding rare-breeds in terms of preserving bloodlines etc., something they had in common, though she bred rare-breed dogs. Mrs Freeman was unaware of Keith listening to Radio 4 or discussing current affairs with anyone.

[212]Turning to inheritance, Mrs Freeman confirmed that her comments relating to Tregear staying in the family were derived from her understanding of how things were usually approached in Cornish farming families, and that she had never discussed Keith’s will with him.

Dr Hugh Fairlie

[213]Dr Fairlie had provided two statements. In the first he said that he had not undertaken a capacity assessment of Keith, but that when Keith arrived for his initial appointment in relation to the Will, he had stated that he needed a capacity assessment and was told that he did not have time, and would need to book a longer appointment and pay a higher fee (this, I find, is wrong, because Mr Clarke’s suggestion is much more likely on the facts as I refer to below). He said that on the second occasion, Keith had not booked a capacity appointment, merely a will-witnessing appointment which is a standard length appointment. Dr Fairlie could not recall Mr Clarke’s presence and did not recollect ever meeting him, but could not say whether anyone attended with Keith on the day. He did recall seeing Keith sign the Will and signing it himself.

[214]In his second statement Dr Fairlie spoke of Keith’s love and devotion to his cattle above all else, and how he was very concerned that they should not be sent to food-slaughter on his death. He thought that Vivian and Valerie did have strong family feelings for Keith and Valerie informed the surgery if they were concerned. He was unaware of any animosity between Vivian and Keith, and could only think that Keith was concerned that Vivian might not want to look after the Shorthorns and might simply send them to slaughter.

[215]In cross-examination, Dr Fairlie did not recall Keith being treated for anxiety but agreed that the records suggested that any such treatment was from 2018 and not before, and that Keith was not on Lorazepam when he made the Will. He said that he had never had any doubts about Keith’s capacity to make medical decisions.

[216]Dr Fairlie was referred to medical notes in which Keith was recorded as thinking about sending the herd to Suffolk and expecting no support from the family which, it was suggested by Ms John, was at odds with Dr Fairlie’s statement which had suggested that Adam and Matthew were being considered as potential donees of the herd. Dr Fairlie replied that Keith was apprehensive that his brother and nephew would not continue the herd. He had not heard about the Suffolk proposal.

[217]In terms of witnessing the Will, Dr Fairlie said that prior to doing so, he would have discussed with Keith the size of the estate, who he was naming in the will, and the implications of the will. This was standard practice for a doctor witnessing a will, he said, even if not recorded in detail. And he would have had to have been satisfied that the testator understood the nature of what they were signing and what they were doing. Had he not been satisfied that Keith understood those matters after his conversation, he would not have signed the will, he said.

[218]Dr Fairlie was asked about his own experience of making a will and he understood that one needs both witnesses to be present when the will is signed, and he understood that it was a serious task to witness a will. When asked whether he would sign that he had witnessed something when he had not, he said “No, most certainly not”. He confirmed that he did not recall anyone else there, and did not recognise Mr Clarke when shown a photograph of him. He recognised that it had been a short appointment in a busy day and that it was possible that his recollection was wrong. Asked whether it was likely that anyone was with Keith, Dr Fairlie said that Keith was capable of walking to the surgery, but then said that the solicitors had told him that he needed two witnesses, so it seemed likely that he would have brought someone with him, even though he did not recall it. He agreed that Mr Clarke’s contemporaneous observation that Dr Fairlie was not in a good mood suggested that he (Mr Clarke) had been there. Finally, Dr Fairlie was taken to the attestation clause which clearly refers to him witnessing the signature with another person present, and he was asked whether he would sign as witnessing Keith’s signature with another person present when they were in fact not present, and he said he didn’t think that he would have done.

[219]In re-examination Dr Fairlie was asked further about questions he would have asked Keith, and he added one that he thought he may have asked on this occasion, namely “What about family as beneficiaries?”. He did not specifically recall asking it but thought that he may have done because Keith had said that the main beneficiary was Luke and not family.

Video Evidence

[220]I was invited to watch, on my own, two videos which were taken by Mr Evans when visiting Keith at Tregear on his 59th birthday in June 2013, four months before Betty’s death. Keith was out in the fields amongst the Shorthorns and was in conversation with Mr Evans. One was six minutes long; the other much shorter. I saw and heard a coherent and witty man albeit, even then, physically quite bent over.

Common Threads

[221]Each of the witnesses emphasised how important the Pigs, and in particular the Shorthorns, were to Keith. The Defendant’s witnesses were all at pains to emphasise how upset Keith would have been (even devastated) had he known that the Shorthorns were no longer at Tregear and that Tregear would have to be sold if the Will is upheld. So, too, in the manner of Keith’s burial. The Defendants’ witnesses all implied that Luke and the executors had let Keith down, and that Keith would never have left Tregear to Luke if he had known what would happen to the animals and how he would be treated after his death. Some of these matters go to whether or not Keith had capacity at the time he made his will, but beyond that, the court has to be careful not to be sentimental in assessing the evidence of a disappointed family and supporting friends.

Assessment of the Factual Witnesses

[222]I found Luke Ellis to be honest and straightforward. I agree with Mr Evans that he is somewhat bashful about his position and it is to be remembered that no-one suggests that he pushed himself into Keith’s affections or otherwise acted improperly to have found himself in this position. He was understated in his connection with Keith which went beyond assisting him on the farm. He was clear that he had not made a promise to Keith about the animals which he could so easily have done thereby bolstering his own case substantially. By the time of Keith’s death, there were very few Shorthorns left, and they were in the control of the executors, and so it would have been difficult to successfully argue that he had deliberately broken such a promise. Similarly, he did not over-egg the assistance he gave Keith, nor did he seek to disparage Vivian or Adam. He was also candid in saying that his real interest was in the Pigs. Whilst Luke was the only one of his witnesses to stand to gain from the evidence he gave, my assessment of him was a young farmer who had found a common soul in Keith in his approach to farming animals and, insofar as he could, he wanted to fulfil Keith’s wishes. His evidence was measured, balanced and calm, and I accept his evidence as being truthfully given.

[223]I found Mr Harrison to be an impeccable witness. He was at pains not to make assumptions. He was the paradigm of a careful and balanced witness, always seeking not to take sides or in any way disparage Vivian or his family, and making clear, in terms, that he had“no axe to grind with Vivian” which his evidence manifestly reflected. He made clear distinctions between what he knew and what he had been told, and what impressions he had formed from context and conversations and why. He readily made concessions when he felt he might be wrong because of either a lack of information or a lapse of memory, but he also was careful to contextualise answers, for example he was asked whether he agreed that Keith was vulnerable, to which he replied yes, but that that was because of his physical disability. Mr Harrison was frank and candid in his answers and was clearly not simply giving answers that he thought would support the Claimant’s position. It is, of course, relevant that he had never met the Claimant until having attended court on the day of his giving evidence. Mr Harrison is a very experienced fifth-generation farmer who clearly had a deep affiliation with Keith. Their physical distance did nothing to diminish this, which in itself suggests a strong bond and mutual understanding. I accept Mr Harrison’s evidence in full.

[224]Mr Clarke was clearly a man of great integrity and what one might describe colloquially as “old school”. Of course, at 86, his memory of what happened 6 to 12 years previously was not going to be perfect, and he was quick to acknowledge that and candidly replied to questions accordingly when that was the case. I did not gain any sense that he was being evasive or being forgetful simply in order to assist Luke’s case. On the other hand, he did remember certain things clearly, which is a characteristic of human memory. I found him to be straightforward and candid witness who was aware of the limitations of his time spent with Keith and of his role in assisting Keith. I accept entirely that he considered himself a facilitator and nothing more, and I entirely accept that it was Keith who had raised the idea of making a will in the first place and that all that Mr Clarke did thereafter was to assist in making the necessary arrangements. I also accept that he recalls witnessing the Will in the presence of both Keith and Dr Fairlie. He may have got it wrong about signing the Will in the waiting room (and it is inherently unlikely, particularly given the conversation Dr Fairlie says he would have had with Keith), but that does not mean that he does not specifically recall signing in Dr Fairlie’s presence. The matters put to Dr Fairlie by Ms John tend to support the proposition that both were present when Keith signed. I accept Mr Clarke’s evidence.

[225]Ms Wright’s evidence was given honestly and fairly in my judgment. She had not sought to find out about the details of the dispute in advance of the trial and was clearly slightly surprised at the tone and force of the cross-examination. That is not a criticism of Mr McKean, but it seems to have unsettled her at first and made her a little defensive over time. She was clear about her methods of work and obviously recalled Keith well as a client. Overall, I am satisfied that Ms Wright is a conscientious and experienced solicitor who would have acted in accordance with her usual practices in the context of taking instructions for a will, the terms of which gave no reason to excite any concerns about undue influence or, in Ms Wright’s opinion, any concerns about capacity. She received lucid, clear and reasoned instructions about excluding Vivian and the family from the will, and she needed to take no further steps to satisfy herself about Keith’s capacity. I accept that she satisfied herself that the Keith passed the Banks v Goodfellow test. She did not feel the need to invoke the Golden Rule because of Keith’s demeanour and clear instructions. Whilst he was severely disabled, Keith was not old. Ms Wright’s evidence was that it did not even occur to her to ensure that the Will was witnessed by Keith’s GP, let alone an independent assessor. It was not, I find, her idea that Dr Fairlie witnessed the Will. I can see that on a very strict application of a counsel of perfection there could be some criticism of the detail of her record-keeping, but I accept that from the records available to her combined with her recollection of events, her evidence was reliable.

[226]Mr Richardson was quite clearly an honest and straightforward witness. He was careful to recuse himself from any bounty being offered by Keith, and clearly had Keith’s best interests at heart. Whilst some of the Defendant’s witnesses considered the arrangements with Barclays Bank to have been commercially unwise, Mr Richardson was trying to facilitate Keith’s continued farming practices on Tregear, farming the Pigs and the Shorthorns as he had always done which was, as more than one witness put it, the reason Keith got up in the morning. Adam was clearly approaching this issue from a commercial angle, and he was possibly right that Keith was never again going to be able to farm those animals in a commercial way. Setting aside the ongoing transmissibility of the farm without encumbrance, however, Mr Richardson’s advice and efforts did allow Keith to continue farming until the end. As Dr Fairlie said in terms, he was particularly concerned in Keith’s case about him giving up the Shorthorns and Pigs and retiring, and Mr Richardson enabled him to avoid doing that, albeit at the expense of some of the equity in the farm. I accept Mr Richardson’s evidence.

[227]Mr Evans was a cautious witness. He is obviously a person who takes notes and prefers speaking from records. In cross-examination he seemed concerned that he was being set up for a trap with each question he was being asked, in case there was a note or record that might contradict him. He was therefore perhaps less emphatic in giving his opinions than he was in his witness statement. However, once he was sure of his ground, his evidence was firm and in fact there was little or nothing that was produced from within the bundle that contradicted what he said. Such as there was was unconvincing, and I give by way of an example the text referring to having the Will witnessed by the doctor about which much was made in cross-examination but which I found to be unconvincing in terms of undermining Mr Evans’ evidence. He was clearly very fond of Keith and may have been tempted to play his abilities up, but he strikes me as a rather meticulous man who is unlikely to let emotions cloud his judgment. I in general accept his evidence unless it is strongly contradicted by contemporaneous documentation of which I can identify none.

[228]I found Vivian to be less straightforward than the other witnesses to whom I have already referred. There were elements of his evidence that do not withstand scrutiny. By way of example, I cite the following.

[229]The purchase of land adjacent to Burhos. Whilst I accept that there was a parcel of land that Vivian had agreed to purchase from Mr Andrew, I do not accept that Keith had anything to do with the decision not to go ahead. First, he had no particular reason to do so. Secondly, the reasons given by Vivian are not logical. He had already stated that he was biding his time with regard to selling the land with planning permission in case land came up at or near Tregear. His stated intention was to sell that enhanced land when an opportunity arose. There was no possible reason not to acquire land to add to that which he already had (which he said gave added potential and thus value for the barn development) and carry on abiding an opportunity arising near Tregear. Burhos was described by Valerie as an off-farm or off-smallholding, which would normally mean that it would be used for non-farming activities, as I understand it, thus implying that it was not viable in its own right. To add 30 acres to Burhos’ 10 acres would likely have increased its value more than the value of the land (although I accept that I do not have expert evidence to that effect) and at the very least its attraction to farmer buyers. As Vivian himself said, farmers are always looking for more land. Another implausible piece of evidence in this regard is passing up the opportunity to earn £30,000 p.a. from such a small acreage when the 200 acres was producing ‘take-home’ income of between £10,000-£12,000. It makes no sense. Furthermore, according to Vivian, they were in a position to launch properly into breeding the Dorsets at this time having worked so hard to that point, and to suggest that this aborted sale prevented them from doing so is not credible. Even if there was something in Vivian’s evidence about the reasons for not proceeding with the purchase (namely Keith’s promise and input, which I don’t accept), he could have replaced such of the commercial sheep he kept on his other land as the Dorsets would need room for, and made the £30,000 that way. By far the most likely explanation for pulling out of the deal was pressure put on by Betty, and probably Valerie, not to get into £105,000 of debt at Vivian’s age. Valerie’s answers to questions about the lack of reference to the deal in her statement and discussions around it (i.e. it was not her decision) were unconvincing and were contradicted elsewhere in her evidence. She and Vivian had already stated that she and Vivian cooperated in the running of their farm business. My feeling was that she did not want to answer under oath as to her and/or Betty’s reluctance for Vivian to get into debt at that time. She candidly said that she wanted Vivian to retire. Betty, as Vivian was quick to say, had never been in debt and was likely to have been nervous about Vivian doing so, even if his intentions had been to farm into his old age. Another anomaly with Valerie’s evidence for not expressing any opinion on the decision to purchase is, as already noted, the irrelevance of the farm being in Vivian’s sole name in relation to a decision on whether he or they should acquire a further 30 acres.

[230]I am not convinced that Vivian would have corrected his witness statement to refer to Burhos having been gifted to him rather than him having purchased it unless Luke’s solicitors had not done the research that they did and confronted him with it. It was an error contained in the pleadings as well as the witness statement, and it is something that even a cursory glance at either document would be noticeable to someone in Vivian’s shoes.

[231]Vivian’s evidence about the planning permission obtained at Burhos is also not straightforward. No disclosure was given on this issue, and the Claimant’s solicitors had to investigate publicly available records about it. Vivian had pleaded dates which fitted in with his case about the construction of the 2009 sheds. This was repeated in his witness statement. He needed to adjust them only when Luke’s solicitors raised the issue.

[232]In addition, Vivian first suggested that he intended to develop the barns himself and that Keith opposed it, suggesting that the money would be better spent on land at Tregear. Vivian then said that he never intended to develop it himself, but refrained from doing so in order that he could spend the money at Tregear. Whichever is correct, the same observations that I have made above in relation to the additional land at Burhos can be made in this regard as well: the prospect of land coming free near Tregear was not immediate, and he could have proceeded to develop the barns himself. He was not up-front about having gifted two of the barns to his sons (another discovery by Luke’s solicitors) who could, should they choose, move back to look after Vivian and Valerie, particularly if, as Adam says, Lower Wydcott Farm can be run by just one of them.

[233]I have no doubt that Vivian genuinely wants to have Tregear given to him or his sons, and that he wants to keep it in the family. However, I am not satisfied that Vivian’s evidence is reliable and, although often not directly contradicted by the Claimant’s witnesses does not chime with their evidence, which I prefer to Vivian’s.

[234]As I have indicated above, Adam’s evidence was careful in the sense that he was careful to tailor his responses to incorporate, wherever possible, a reference to a long-standing family understanding that Tregear would remain in the family, even if that was out of context.

[235]Adam’s suggestion that “we would not have invested in Tregear” without Keith’s promises is not supported by any evidence of investment by him. Vivian’s evidence about financing the two sheds was that it was his investment because he was paying Matthew and Adam their weekly wage. I am unaware of any farming partnership at the time between Vivian and Adam and Matthew. This applies to the planning and aborted land acquisition.

[236]Adam was keen to make reference to individual events as suggesting a lack of capacity on Keith’s part. For example, the four tablespoons of morphine and the Spanish lottery incidents which he implied, by virtue of the emphasis that he put on them, that they were examples of regular such behaviour by Keith. These were, however, isolated incidents and more than countered by very much more significant evidence of Keith’s engagement with people than Adam would have the court believe Keith was capable of. This applies to Adam’s evidence about Keith’s ability to read: he would not concede that Keith was even capable of reading and writing, quite apart from his eyesight. And as to his evidence of Keith’s tendency to fall asleep in mid-conversation, only Mr Andrew (as to whose evidence, see below) and Vivian (and only in cross-examination) made reference to this and the independent witnesses referred to Keith being able to talk intelligently for long periods. I consider that Adam was exaggerating these aspects of Keith’s demeanour and any deterioration of his mental health. Apart from Mr Andrew (see below), Adam was the only witness to speak of a deterioration in the state of the Shorthorns and the Pigs. Given the universal opinion that the animals were so important to Keith, and the lack of evidence from anyone else reliable (and even Vivian), I find that Adam’s evidence here is also likely to be exaggerated or imagined in order to support Vivian’s case on capacity. Another example of Adam being uneven in his approach to his evidence was his severe criticism of the efforts made by Farm Cornwall to put together a business plan to support Keith’s resumption of milk production which he described as cruel and wildly improbable, and yet he stated that he had met with Keith and had offered to work with him to achieve the same aim which must have been said in an effort to bolster his perceived interest in Keith, and in the Pigs the Shorthorns remaining on Tregear.

[237]Adam’s own evidence on the time and attention that he and his family devoted to Keith after Betty’s death suggested a very cursory and transactional relationship. There is no suggestion that either he or Vivian spent any quality time with Keith, nor did they take any interest in his animals or discuss them with him. His evidence is that the only contact between Keith and him and Vivian was a perhaps daily check-in to see if he was alright by one or other of them. In comparison to the levels of companionship and attendance by the family when Betty was alive, it is not surprising that Keith felt disappointed and even abandoned after her death, as reported to his support network, some of whom gave evidence.

[238]I find that Adam’s evidence needs to be treated with some caution as it is slanted heavily in Vivian’s favour and he was reluctant to make any concessions, at the same time as exaggerating those things that favoured Vivian’s case. I do accept that he had a close relationship with Keith at one point, but that waned following Betty’s death.

[239]I have no doubt, as with Vivian, that Adam sincerely wishes for Tregear to be retained in the family, whether it is for sentimental or farming reasons. A reunited Tregear would obviously make a more viable farm, particularly when combined with Burhos.

Valerie Care

[240]I found Valerie to be a sympathetic and largely credible witness. I accept that she had interpreted Keith’s words to Betty as being that of an assurance that, at least at that time, he intended to leave his share in Tregear to either Vivian or the boys. I accept her evidence that she did care a great deal for Betty and did offer to assist Keith domestically. I am also prepared to accept that Tregear was very important to Betty and the rest of the family, including Keith and that she had a genuine expectation that Keith would leave it to Adam and Matthew.

[241]Valerie was very coy about the aborted land purchase, as I have already recorded, and relevant evidence in support of Vivian’s case on matters beyond the family’s love for Tregear was scant. She did not give any evidence which supported Vivian’s claim on detrimental reliance.

David Andrew

[242]I am afraid that I did not find Mr Andrew a convincing witness, and I reject his evidence unless it is corroborated by documentary or other disinterested witnesses. Mr Andrew made rather sweeping generalisations favourable to Vivian’s case without considering them in context, either in time or place. For example, his observations about the deterioration of the state of the Shorthorns was in relation to a period that he had ceased to visit Tregear. His evidence about a plot of land opposite from where he could observe this was not in his witness statement and only surfaced in re-examination. There was a complete contradiction between what Mr Andrew said about the conversations at the lunch table about the future of Tregear, where he said in one sentence that it had been Betty and Keith who did most of the talking and in another that Keith hardly talked on those occasions. Mr Andrew would not even accept that there was a contradiction there, and did not even accept that it was a possibility that he may have been referring to Yeamon as Betty’s co-conversationalist on those occasions.

[243]Mr Andrew accepted that a lot of what he said had been told to him by Vivian, and he would not have it that Tregear had been effectively separated when the farming tenancies were granted during Betty’s lifetime, and that Betty had confirmed that split in her will; instead he was resolute that what Vivian had told him was correct, and Tregear had only been split after Betty’s death and at Keith’s behest.

[244]Mr Andrew was candid in one way, and I accept this evidence as being against Vivian’s case which, he had made clear by his other evidence, he wished to support: Mr Andrew did concede that he had never witnessed Keith make a promise to anyone, and this despite the fact that he had regularly spent time with Betty and Keith when the future of the farm was being discussed. It does suggest that the contradiction referred to above should be resolved in favour of Keith not saying much on those occasions.

[245]Mrs Freeman was a witness of limited evidential value, but straightforward and honest. Her evidence was largely based on assumption and tradition in the farming community. She did describe deterioration in Keith’s health but her involvement with Keith was peripheral at the relevant times, as she accepted that her experience related to Betty’s lifetime.

[246]She did say that her husband had visited Keith less as time went on, and, tellingly, that Keith obtained his help and support from friends and neighbours which chimes with the Claimant’s witnesses. Her ignorance of the charities’ involvement suggests(a) that she had little to do with Keith after Betty’s death and

(b) that Keith regarded those who assisted him from the charities as being his friends. Her evidence about long conversations with Keith on the telephone about rare-breed breeding also chimes with the evidence regarding Keith’s ability to hold intelligent conversations.

Dr Fairlie

[247]Dr Fairlie was obviously a straightforward and honest witness of integrity. He made significant concessions in his evidence relating to the probability that Keith was accompanied by someone when he attended for the witnessing of the Will, and that he may have simply forgotten about Mr Clarke being present, particularly in light of Mr Clarke’s contemporaneous evidence about his mood on the day. Dr Fairlie was clear that he would have asked Banks v Goodfellow questions and was fairly forceful that he would not have signed as witnessing something that he had not. Dr Fairlie was thus someone doing his best to assist the court even though his evidence departed somewhat from his written statement.

Counsel’s Submissions

[248]Due to the elongated nature of the trial, Counsel sought permission to supply sequential written submissions followed by a hearing at which they could address the court on those submissions. Mr McKean produced a 26-page document of closing submissions (which was on top of a 24-page skeleton argument). Ms John produced a 26-page document of close-typed script (on top of a 27-page skeleton argument). I make no criticism of these documents and am grateful for them all. At the final hearing, both Mr McKean and Ms John in fact took me through their written submissions.

[249]Having those submissions and Counsel’s respective skeleton arguments in writing renders a summarisation of their arguments otiose, particularly since many of the submissions relate to findings of fact. I mean no disrespect to them and emphasise that I have re-read those submissions which supplement my notes of the final day of hearing. I will, where necessary, deal with their submissions when dealing with my conclusions. Discussions and Findings of Fact Personality Disorder

Discussions and Findings of Fact

[250]Because both experts agree that Keith suffered from no delusional or cognitive disorder, and no other trauma of the mind, the issue of whether Keith had capacity to make the disputed will requires two findings. The first is that, on the evidence available to the court, the court concluding that he had a personality disorder. The second is that, if so, that personality disorder meant that he lacked capacity to make the Will.

[251]Much time and money was spent on this issue. Because of the significant benefits it will bring to the reducing the length of this judgment, I intend to deal with this issue first by giving my conclusions on the first of those two findings.

[252]From the factual evidence that I heard and will accept, it is plain to me, well beyond the balance of probability, that Keith did not present with the symptoms of a personality disorder. All of the evidence that I heard (even such evidence as was available from the Defendant’s witnesses) renders the suggestion that he was socially disengaged nothing short of surprising given his network of friends and the enthusiasm with which he embraced their contact, and his wide-ranging and lengthy conversations with them. He maintained a keen interest not only in rare-breed cattle generally, but also pigs, rare-breeding as a particular skill, and farming in general. Apart from regular contact with them, he was interested in and engaged with the social and medical welfare of his friends and their families with direct evidence from Mr Harrison and Luke in this regard. Keith was a regular listener to BBC Radio 4 suggesting an engagement with current affairs and other cultural matters; he took and read Farmer’s Weekly and other farming journals regularly, apparently up until his death which shows that he was engaged with modern farming and farming affairs and was not stuck in another world, contrary to the submissions made on behalf of Vivian. His disclosed calendar illustrated that he was marking relevant dates (such as artificial insemination and calf registration dates) up to and including February 2020. He was engaged with the history of Tregear and was interested in researching it. He continued to demonstrate a high intellect in relation to his knowledge and retention of pedigree matters. There was evidence (e.g. Mr Harrison) that many farmers never give up until it is impossible to continue. Of course, many farmers have children who can ease the burden of ageing without the need for the parent to give up, but Keith’s wish to keep farming was not unusual. He had no offspring to whom to leave the farm, and so it was not illogical to use the capital value of the farm to allow him to continue to do what everyone agrees was his life’s work and interest right up until his death.

[253]Furthermore, there is good evidence that Keith had no difficulty with self-worth: he appears to have been confident in areas in which he professed to be knowledgeable. His inabilities on administrative matters stem from a lack of experience (his mother having taken care of farm finances and paperwork for years) and probably education. He was able to cope with personal care and sustenance with assistance, despite his severe disability. If he needed assistance with personal care he was not averse to asking or accepting it. This applies to other forms of assistance. He does not seem to have been considered by his care-workers or the authorities as a fire-risk as regards his pipe smoking which suggests a sense both of responsibility and foresight.

[254]It is said on behalf of Vivian that Keith was unable to see beyond his animals, and his obsession with their care precluded anyone from assisting him. I accept that it would be perfectly natural for Keith to have been concerned that others would look after his carefully bred and nurtured animals in the way he thought appropriate but, as is clear from Luke Ellis’ evidence, all Keith needed was a demonstration of the care and attention that he thought was due before he was able to trust others to assist. He was thus not obsessive about them, just cautious and caring, which is, I find, reflected in the terms of the Will and choices of beneficiary.

[255]Dr Series’ list of identified traits upon which he formed his opinion that Keith had a personality disorder, as concisely summarised by Dr Fawzi in ¶6.4 of his supplemental report which dealt with this aspect, are based on a factual state of affairs that I find impossible to recognise on the evidence that I have seen and heard, and on its face is predicated on a more than minimal degree of supposition. These traits are negative affectivity; social detachment; dissociality; disinhibition and anankastia. Dr Series’ conclusion referred to in Clause 6.5 of Dr Fawzi’s report, namely that Keith’s obsession with the Shorthorns pushed out consideration of his family when excluding them from his will is something of a non-sequitur as well as being at odds with Vivian’s case and the evidence heard in court that Keith did not extract any promise from Luke that he would look after the Shorthorns at Tregear (or indeed anywhere). The careful consideration of the beneficiaries of the bull semen is a good example of Keith being able to contemplate and plan for the future (as is the preservation of the semen in the first place), and a recognition that it was the future of the pedigree in the herd that mattered to Keith, rather than the individual cows, although their welfare and treatment (i.e. not for food slaughter) was clearly also important.

[256]These observations and findings are in addition to those set out by Dr Fawzi in paragraph 9 of his supplemental report, the opinions and conclusions of which accord with the evidence I heard about Keith compared to the rather extreme factual assertions projected on to Keith in Dr Series’ reports. I accept that both experts were reporting without having had the benefit of hearing and seeing the live evidence that I have had, which is why I am able to deal with this evidence summarily. Here, the observations of Smith J set out above are of particular significance. Having seen and heard the evidence, Dr Series’ factual deductions about Keith from the written records and written evidence are alien to the picture of Keith which so clearly emerged from that live evidence. Accordingly, Keith was not the person with the traits which Dr Series ascribes to him by extraction from the material before him. Theoretically, he may have been if the evidence had come out differently, but the evidence that I saw and heard cannot support Dr Series’ factual basis for his conclusion.

[257]It follows from these expressed conclusions that I will not need to deal with the experts further. Whilst both experts were abiding with their Part 35 duties, Dr Fawzi’s approach was generally more balanced, and he dealt with extensive and skilful cross-examination admirably and fairly and explaining carefully his reasons for disagreeing with Dr Series, whereas Dr Series, though candid and fair about some matters, such as the fact that other psychiatrists may not agree with him as to personality disorder, he appeared less willing to concede any ground on his view that personality disorder by itself is capable of causing testamentary incapacity.

[258]Were it to have been necessary, I would have preferred the evidence of Dr Fawzi over that of Dr Series.

[259]It follows that Keith did not have a personality disorder and that should, on the expert evidence, deal with testamentary incapacity. However, I will also make further findings of fact in this regard.

Keith’s Testamentary Capacity and the Will

[260]I will deal with the three issues relating to the Will as separately as I can, and so any reference in this section of the judgment to what Keith did or did not feel obligated to do in relation to Tregear should be read as being subject to any claim for proprietary estoppel.

[261]The idea of making the Will came from Keith. Just because Mr Clarke said that Keith was “unable to plan for the future” that cannot be taken out of context. It does not mean that he did not have a concept of needing to. That was precisely why he called in the various charities which it is common ground that he did. Keith may not have proposed the loan arrangement but that was something upon which he was seeking advice. Mr McKean sought to portray Mr Clarke as someone who was steering Keith’s life in the direction he saw fit, albeit with the best of intentions, and that this masked Keith’s inability to do so himself. I reject that approach, as I have already found Mr Clarke to have been a facilitator, just as he suggested.

[262]Much was made of Keith’s sequence of decision-making in the will creation process as casting doubt on his capacity and understanding. This was based on the fact that Keith apparently decided first that he needed to find someone to whom to leave his share of Tregear to before deciding who that person was. Mr McKean categorised that as Keith “casting around for a beneficiary” whilst overlooking the obvious candidates within the family.

[263]I do not share Mr McKean’s concerns. Keith’s decision-making process is perfectly logical if one approaches it in line with the case advanced by Luke (based on what he has been told) without a cynical eye (though necessarily with a critical one): if I accept that Keith had come to the conclusion that his family were no longer interested in him or his animals, it would be reasonable and logical for him therefore to not want to leave the animals’ future for them to decide, and further that, as a result, they had no claim on his bounty. In those circumstances, he would have decided to leave the farm other than within the family, and therefore had to consider carefully to whom he should leave the farm and the future decision making in relation to the animals. This accords entirely with Ms Wright’s evidence as regards Keith’s decision not to choose Vivian as the main beneficiary. She said that it was a decision he had already made, and that therefore Vivian simply did not feature in Keith’s selection process for that position. It accords, too, with Mr Clarke’s, Mr Richardson’s and Mr Evans’ evidence. These are independent witnesses whom I have found were truthful witnesses.

[264]The realistic evidence that came from the witnesses who had discussed the Will with Keith was that Luke was the local person who most understood his way of farming and in whom he wanted to entrust dealing with the Shorthorns appropriately. It is important to keep in mind that the Will was executed in 2016, and a lot happened between then and Keith’s death which Luke had no control over, and neither did Keith.

[265]The evidence that Keith did not consider that he had a good relationship with Vivian (or Adam or Matthew) is also a theme of the independent witnesses’ evidence. I have already made reference to Adam’s own evidence that suggested a rather perfunctory engagement with Keith after Betty’s death. It is very evident from many witnesses that Keith was not only capable of, but really enjoyed, company and conversation. It may be that Adam and Vivian felt that they had heard it all before, and took Keith for his word when he said that he did not need help but, given what I have learnt about Keith’s fondness for social and intellectual engagement, I can well understand and believe that he resented what he would have considered the sidelining of him by the family.

[266]There is in fact almost no evidence of any sort of closeness or ongoing relationship between Keith on the one hand and Vivian and Adam on the other after Betty’s death. Valerie talked of offers to cook him meals, but Vivian and Adam’s own evidence offers scant suggestion of even camaraderie, let a lone a close family bond. This is also reflected in such of the medical notes that mention Keith’s family and his relationship with them.

[267]It was not a question, in my judgment, of any particular falling out between Vivian and/or Adam on the one hand and Keith on the other, but a disengagement; a sense that Keith felt that they did not show an ongoing interest in the Pigs and Shorthorns to entrust their future to him. He also felt that he did not mean enough to them to merit his generosity by leaving his share of Tregear to them. He did, it seems, feel a sense of grievance that Vivian had received more than his fair share of his parents’ assets by virtue of the gift of Burhos when coupled with the almost equal division of Tregear. As Ms John submitted, Keith may have been willing (even relieved) to have given over Barnfield and Wilclose fields for Vivian to farm, but he felt that these were his entitlement in terms of ownership, and he had been deprived of them.

[268]I reject entirely the notion that Keith’s “men” (a term only Vivian seems to have heard of as referring to Keith’s support team who, notably included at least two women in significant roles) had it in for Vivian. There was absolutely no reason for them to adopt that stance, and they in my judgment were far removed from the sort of people that would do so for no good reason. Mr McKean submitted that Mr Harrison’s evidence that “nobody really spoke of Vivan” was an illustration of the approach adopted by the “men”, whereas the reality was that nobody really spoke of Vivian because Keith didn’t, and that was because he was no longer part of Keith’s life in any meaningful way. This was also the general consensus amongst Luke’s witnesses.

[269]The short videos to which I have referred suggested, albeit in 2013, a thoughtful but witty and even mischievous man who looked reasonably well presented (albeit in what I understand to be Keith’s unerring old-fashioned farmer’s style) and was bright and engaging. They give an insight, albeit a limited one, into what everyone agrees was a remarkable, even exceptional, man.

[270]A good deal of the evidence and submissions on Vivian’s part seem to have been aimed at discrediting the fact that Luke did not commit to taking on the Shorthorns and was only mildly interested in the Pigs; and that Luke’s (or more accurately, the executors’) behaviour since Keith’s death shows that Keith’s choice was clearly illogical and did not achieve the very thing that he was looking for. From collating the evidence that I have seen and heard, I find that Keith was not, even in 2016 before the TB episode, looking for someone who would necessarily retain the Shorthorns on Tregear. He was probably hopeful that they would if they could, but Keith was realistic about the fact that almost no-one would or could be as dedicated and committed to them as he had been. From Keith’s conversations with Luke’s witnesses, I readily deduce that what Keith was looking for was someone who had the same mindset to breeding and keeping rare breeds as he did. He did not see that in Vivian, Adam or Matthew. They were purely commercial farmers as Adam amply demonstrated when giving his evidence. No criticism of them in that regard is intended by this finding: Keith’s way of farming was commercially unrealistic. Without the collateral of his share of Tregear, Keith would have had to cease farming years before. He would not have been able to farm for many more years, even if his health had allowed him to. Although Luke is a commercial farmer he has his own herd of Large White Pigs and, whether he was right or wrong, it seems to me clear that Keith felt that he understood what it meant to have a rare breed herd. Adam and Matthew used to, but had demonstrated no ongoing interest visible to Keith: there is no suggestion that Adam of Vivian ever spoke to him about the Dorsets which demonstrates their detachment from him. Insofar as the Shorthorns were not viable at Tregear or on his own farm, Keith felt that Luke would have ensured that they were not disposed of at the market for meat but instead found a home with someone like Mr Harrison or at Highgrove or even Larry Trewern had he been younger.

[271]I do not agree with Mr McKean that Keith was not aware of his debt and that some of the land at least would have to be sold. He certainly knew there was a debt as he spoke of it to many people and referred to it specifically when considering the potential beneficiaries with Mr Evans: see Mr Evans’ email to Mr Clarke of 22 June 2016. That email demonstrates that Keith was considering carefully a number of potential beneficiaries. There was no person so close to Keith that their choice would be obvious, and so he undertook an analysis with Mr Evans and his other friends. He was not close to Vivian.

[272]There is some evidence, too, that part of Keith’s thinking was that the person to whom he was going to leave the farm to would provide Keith with help on the farm, which Luke was able to do.

[273]I therefore conclude that Keith had logical grounds for coming to the conclusion that he did, namely that Vivian and Adam were not the people to whom he wished to entrust the future of the Pigs and Shorthorns, and further that they did not in general deserve his bounty. That in my judgment is not illogical nor does it call for explanation or otherwise excite the suspicion of the court. Neither is that choice evidence that Keith lacked capacity by virtue of bypassing an obvious beneficiary.

[274]The choice of Luke as principal beneficiary was not illogical or inexplicable. It was for Keith to make his choice of beneficiary, and the communicated reasons for doing so do not call for explanation, nor do they suggest a lack of capacity.

[275]Much was made of the lack of a specific bequest of the Pigs and the Shorthorns. I am fully satisfied that there was nothing suspicious about the preparation of the Will, and at some point a decision was made not to bother with a specific legacy of the animals. That is quite explicable by the fact that no such provision was needed. Had there been evidence that Keith wished to separate the animals from the farm, then that might have called for explanation, but Keith was perfectly capable of understanding the effect of making Luke the residuary beneficiary so that the animals were to pass to him as well as Keith’s share of Tregear which is similarly not made the subject of a specific gift.

[276]I accept Ms Wright’s account of the June 2024 meeting. Of course, she was partially assisted with the attendance notes, but her evidence was that she specifically recalled Keith as a client, not only for his physical appearance, but also the bequests of bull semen. I accept that she was able to recall the aspects of that meeting and discussions she had with Keith to the extent that she said in the witness box, even if they are not reproduced in the attendance notes.

[277]I find that the manuscript corrections made to the first draft are unremarkable and do not represent a wholesale failure by Ms Wright to record Keith’s wishes properly.

[278]Perhaps more importantly, I find that Keith participated in the meeting on 2 August 2016 as described by Mr Evans. I find nothing suspicious about how the meeting was arranged. I have already indicated that I find allegations of Ms Wright wrongly taking instructions from third parties to be misguided. Keith attended that meeting along with Mr Evans and Mr Clarke and the executors, one of whom was a very long standing friend of Keith’s. Mr McKean correctly observes that Mr Clarke could not recall the meeting despite there being text messages between him and Mr Evans following it. However, those text messages both to and from Mr Clarke, as well as those from Mr Evans to Ms Wright are valuable contemporaneous evidence which suggest that Mr Clarke had chaired the meeting and impressed Mr Evans with how he handled people, and that it had indeed gone well. It seems most unlikely to me that the Will would not have been discussed given that that was the purpose of the meeting. The draft was, of course, amended at that meeting which bolsters such a discussion. Mr Evans’ recollections were criticised by Mr McKean as being inconsistent and therefore unreliable, referring to it as an “inaccurate reconstruction”. Mr Evans did not need to recall the specific details of e.g. where Keith was standing or sitting when he read the draft will, or indeed who had read it out, in order to be able to recall the general effect of the meeting in which he recalled Keith had participated fully, explaining to the executors his intentions with each of the clauses. I accept that evidence, which is reflected in the text to Ms Wright that “all things were satisfactorily and openly discussed”. Mr Clarke’s text of 2 August 2016 to Mr Evans also reflects that thing had gone well, despite Mr McKean’s concerns regarding the reference in that text to the meeting having “taken its toll” on Keith. Keith was not used to being at meetings with several people and participating in discussions, and he was not in good health. It is not surprising that such a meeting would have taken its toll: that fact that it did rather emphasises Keith’s full and active participation rather than suggesting he was sitting on the sidelines and not taking things in.

[279]Mr McKean also suggested that Mr Evans’ answer to his questions about Luke’s presence at the meeting suggests that he was more generally wrong about it. However, Luke’s evidence was that he did attend the meeting, but only at the end, and he had had the most rudimentary of explanations as he did not really want to know about the contents of the Will.

[280]I also accept Dr Fairlie’s evidence that he would have carried out a basic Banks v Goodfellow question-and-answer session with Keith before he would have agreed to witness the Will, and that he must have been satisfied with the answers he received. He knew Keith well, and was fully cognisant of his medication as well as of his family circumstances and the love of Tregear and the animals. His evidence that he did not know of a rift between Keith and Vivian would have alerted him to further question Keith’s choice of beneficiary.

[281]I accordingly have no hesitation in finding that Keith had capacity to make the Will and that he both knew of an approved of its contents. The additional clause that was inserted regarding the repayment of expenses was done as part of Keith’s wishes.

Due Execution

[282]The execution of the Will was witnessed by two intelligent and professional, or quasi-professional,people who were there solely for that purpose. Dr Fairlie was adamant that he would not have signed as having witnessed something which he had not. It was submitted that it was very plausible that he did not read the attestation clause carefully to know that both witnesses had to be present and sign in Keith’s presence, but Dr Fairlie is a veteran witnesser of wills and is likely to have known of the need for that to be done whilst both witnesses are present.

[283]Dr Fairlie also mis-recalled the reason for the abortive first visit to the surgery with Mr Clarke. That had been because Mr Clarke had been delayed and they were late. That was the reason there was insufficient time to witness the Will that day. There was never intended to be a capacity test in relation to the Will or, indeed, the subsequent Lasting Powers of Attorney. This shows that Dr Fairlie, who readily admitted this, does not, like the rest of us, have a perfect memory.

[284]The signed attestation is itself evidence that the Will was duly executed. There is little evidence to counter that. Mr Clarke’s memory is certainly not perfect, but it must be borne in mind that he had specifically taken Keith to the GP surgery to get the Will duly executed having already wasted one journey (remembering that he had a round-trip of 90 minutes each way) in a failed attempt to do so. He had received instructions on what to do from Ms Wright and, given his administrative role in supporting Keith, I find that he was highly likely to have followed them.

[285]I am not at all perturbed that neither Dr Fairlie nor Mr Clarke could recognise one another from a photograph. Their meeting was fleeting (Dr Fairlie giving Mr Clarke what Mr Clarke described as a cursory glance) and they would have carried out their witnessing obligations separately albeit in each other’s presence. There was no need for any social engagement which might fix a memory.

[286]It is true that Mr Clarke does not appear to have contacted either Mr Evans or Ms Wright to say that the Will had been executed. But by then the pressure was off: the Will had been executed, and there was no need to keep others updated. Mr Clarke was sure that he had witnessed the Will with Dr Fairlie present and he would have to have been seriously mistaken or lying if he did not. I find neither to have been likely.

[287]Taking all of the above factors into consideration, I find that the Will was duly executed. Proprietary Estoppel The Promises or Assurances

Proprietary Estoppel

[288]I have set out Rajah J’s summary of the principles above, and I bear them in mind. In particular, I have in mind that the relevant promises or assurances do not have to be expressly made but can be inferred from indirect words or actions, and it is the meaning reasonably conveyed to Vivian that is important, not what Keith intended. On the other hand, those same words and acts might be properly construed in context as being statements of current intention rather than a definite assurance as to the future.

[289]Some of the promises or assurances alleged to have been made by Keith, i.e. those made before Betty’s death, were made when Keith did not own the land in question. Indeed, Keith did not inherit the extent of Tregear that he had expected which goes to demonstrate the difficulties in establishing a proprietary estoppel on land not owned by the promisor. Furthermore, some thought was given to bypassing Keith altogether at the meeting with the land agent for the purposes of discussing Inheritance Tax (“IHT”) in the autumn of 2007. After that date, when Tregear was all but certain to be left to Keith and Vivian in some combination, I am prepared to accept for these purposes that, as a matter of principle, Keith could have made promises or assurances that he would leave to Vivian that part of Tregear which belonged to him at the date of his death. This does not sit squarely within the phrase “about to be owned” used by Lord Walker in Thorner v Major, but the relative certainty of some inheritance from Betty (provided Keith survived) makes the promises susceptible to founding an estoppel. However, I accept Ms John’s submission that this aspect of the factual matrix must serve to potentially dilute the reasonableness of Vivian’s reliance on any such promises or assurances.

[290]The purpose of the autumn 2007 meeting was to discuss IHT. Keith’s principal concern seems to have been that he would be liable to pay IHT on his mother’s death. He was expecting to inherit the larger share of Tregear and he would thus have had to bear the burden of any IHT. As Vivian accepted in evidence, this meeting was about the transition from Betty to Keith and Vivian, and the critical decision made on that day was to grant the farming tenancies to avoid IHT on that transfer of the farm. Vivian accepted that the idea of Keith being skipped over was dismissed and everyone proceeded on the basis of each son inheriting outright. I take the pleaded reference to Keith saying that Vivian would have to pay the IHT on whatever he inherited from Keith as Keith wanting to be sure that he would not somehow be liable for it. Any talk of inheritance from Keith during that conversation would have been in the context of IHT and as passing comment or by way of affirming an assumption; not a unequivocal promise being made by Keith to either Vivian or Adam.

[291]Because of the context of the meeting, I find that it would have been unreasonable for anything said outside the parameters of the purpose of the meeting and therefore in passing to have been relied upon by Vivian as anything other than a statement of current intention.

[292]Incidentally, these concerns of Keith’s about IHT and his suggestion of being bypassed in Betty’s will bely the submissions made on behalf of Vivian that Keith was simply unable to contemplate planning for the future.

[293]I accept the evidence from Vivian, Valerie and Adam that, prior to Betty’s death, there was a family expectation that the farm would remain in the family. The family was much closer then, and Betty would have certainly, from what I have heard about her, assumed that it was going to so remain. Vivian, Valerie and Adam would also have assumed that that was the case, and I must construe their evidence about what was said and done in that context. That means that their recollections of what was said and done are tinted by that expectation but it could also affect how such words or conduct were reasonably understood by them.

[294]Keith and Betty were very close, by all accounts. I accept that he would not have wanted to upset her and would not have wished to openly contradict her as and when she spoke of the farm going forward. Prior to Betty’s death, Keith may well have had a current intention to leave Tregear to either Vivian or Adam and Matthew, more likely the latter as Adam and Matthew had undertaken rare-breed breeding albeit in the form of sheep and were younger.

[295]Going forward, the next pleaded promise or assurance was in the autumn of 2009 when Betty amended her will after Yeamon’s death. It is said that Betty intended to divide the farmhouse as well as the Tregear land between them but that Vivian and Keith persuaded her that that was unnecessary. The pleaded case is that Keith made a promise to Betty, not to Vivian, and there is nothing pleaded about Vivian taking this promise as being addressed to him or that he took it as a serious and settled assurance to him that Keith would leave that part of Tregear left to him to Vivian and/or Adam and Matthew. I accept that whatever was said would have been within Vivian’s earshot.

[296]If Betty had the intention of dividing the farmhouse between Keith and Vivian, then it would have completely ignored the gift of Burhos to Vivian. There is no logical connection between Betty refraining from dividing the farmhouse and Keith’s alleged promise to leave his inheritance within the family. By Betty leaving anything to Keith absolutely, that left him with testamentary freedom (subject to estoppel). A division of the farmhouse or not would have made no difference. What I find most difficult in accepting that a promise or assurance was made by Keith to Betty, or indeed what Vivian and Adam have portrayed as an obsession of Betty’s that she extract promises from her children that the farm would remain in the family, is Betty’s will file. There is a complete absence of any reference to the farm remaining in the family despite it being noted that Keith was childless and Vivian had two sons. There is not even an expression of wishes, either by way of letter or even in the instructions for the will, still less any apparent consideration of alternative and far more secure ways of achieving her aims, such as a life-interest or a trust.

[297]In addition to these factors, I take into account(1) that Betty was keen to convey each son’s land with its attendant rights with a duty to maintain borders and

(2) to ensure that Keith received all of the land she intended to leave him, namely the railway track. This was presumably to give Vivian as much of the farmable land as possible whilst maintaining what Betty thought was a fair division of the farm. These factors suggest that Betty did not have in mind that there was a commitment on Keith’s or Vivian’s part to reunite Tregear; instead it points to an intention to give them the share she intended absolutely.

[298]It is common ground that Betty was always concerned about how Keith was going to cope after her death. She knew he was quite seriously disabled by his scoliosis and in a lot of pain if not controlled. He suffered many knock-on effects from the scoliosis such as interference with his organs by his ribs and digestion issues. It seems to me more likely than not that Betty wanted to ensure that Keith could deal with as much of Tregear as he was to receive in any way that would enable him to obtain such care as he needed. This could only be done via an absolute gift, but that could have been accompanied by a letter of wishes or similar if her views about Tregear going forward had been as trenchant as Adam and Vivian portrayed at this meeting.

[299]I therefore find that Keith did not make the promises as alleged to Betty at this meeting. Betty may have expressed a desire that the Tregear remain in the family, but it was not in strong enough terms for her to do anything about it such as extract a promise from Keith or refer to it in her will or to her solicitors. In those circumstances, anything that Keith did say at that meeting was not of sufficient certainty so as to be reasonably relied upon to found an estoppel.

[300]Finally, the last pleaded occasion on which an explicit promise is alleged to have been made was twice in the summer of 2013 as Betty’s health deteriorated. These were allegedly made to Betty by both Keith and Vivian upon Betty’s express request, namely that Tregear would remain in the family for the next generation and were said to have been witnessed by Valerie.

[301]Vivian in his cross-examination accepted that this was not a firm commitment on Keith’s part, but referred me back to “the family” by which I took him to mean the context of the family’s expectations. That was a candid admission by Vivian and suggests a familial expectation rather than any firm assurances that Keith was committing to bind himself. Vivian also accepted that Keith had been free to sell his share of Tregear if he had decided to move to Suffolk (although Vivian was unaware of that option), but to be fair to Vivian he did refer in a later answer to Keith’s ability to dispose of his share of Tregear as he saw fit being subject to the promises he made to the family.

[302]Anything said by Keith to Betty when she was obviously in her final months is tempered by the words that Betty was said to have used to Vivian: that he should be sure to give Keith good advice in relation to Tregear. That suggests that Betty might have been concerned that Keith would sell his share. I am, however, prepared to accept that something along the lines of the pleaded case did occur. It could have been an assurance that Keith would keep Tregear together as long as he could: he was quite badly ill by then and everyone must have been aware of the possibility that he might need paid assistance with living independently and so must have been free to deal with his share as he saw fit. Vivian did not demur from the suggestion that these were assurances given to Betty and not directly to Vivian. Valerie disagreed, suggesting that both Keith and Vivian had made promises to Betty and to each other, but in light of Vivian’s position, this has less weight. It may well have been Keith’s intention at the time to act accordingly but, unless Vivian sought his own assurances from Keith, it seems to me unreasonable to have relied on an assurance given to a third party in order to found a legitimate and binding commitment to leave his entire estate within the family whatever happened after Betty’s death.

[303]I accept that there is evidence that the family (during Betty’s lifetime) did discuss the farm going forward and it was the general expectation that Tregear would remain in the family. As Valerie and Ms Freeman said, that is just what happened in Cornish farming families. However, Vivian could not point to Keith having made any direct promises to him, and any discussions were founded on a general expectation that the farm would remain in the family.

Reliance and Detriment

[304]In my judgment, this is the weakest aspect of Vivian’s case on proprietary estoppel. I have already dealt with my assessment of Vivian’s evidence (and that of David Andrew) in relation to the planning consent for the barns and the abortive purchase of the land at Burhos. The planning consent and what Vivian chose or chose not to do with it had nothing to do with Keith. The reasons advanced are illogical and contradictory. Vivian elected not to proceed with the land purchase at Burhos for reasons which were unconnected with Keith. Accordingly, those two aspects of the matter fall away as acts of detrimental reliance on any promise or assurance made by Keith.

[305]The 2006 shed was built prior to any pleaded promise or assurance and was for the benefit of Vivian’s farming enterprise. He clearly needed and utilised it in support of his share of the farm as Keith did not use it so far as I am aware. Because the construction pre-dates any pleaded promise, there can be no causal link between them.

[306]The 2009 shed was built after the date of the alleged promises that I have found were not made as pleaded in 2007, but in case I am wrong about that, this shed was, I find, again built by Vivian for his own purposes and it served his extended acreage at the farm. I do not accept that this shed would not have been constructed but for anything Keith had said about Tregear remaining within the family, and in any event, it can hardly be said to have been detrimental to Vivian. This might have been different if it had been unnecessary in order to improve his own farming operations, but there is no evidence of that: I have no evidence that Keith ever used it or that its construction meant that Vivian had over-capacity as a result. There is therefore no causal link to anything Keith had said or done, and no detriment was suffered by Vivian as a result.

[307]Whilst purely financial detriment is not a requirement, I can identify no “life-changing choice” or lifelong commitments or similarly important changes of direction (other than the building up of an expectation) made by Vivian (or anyone else) as a result of what was said or done by Keith, and I have in mind the passages cited by Mr McKean in his skeleton argument at paragraphs 110-113 (Winter v Winter

[2024] EWCA 699

and Spencer v Spencer

[2023] EWHC 2050 (Ch)

[308]Vivian’s statement suggests that he retained the land at Tregear because he had re-committed to it since the birth of his children in reliance on the understanding that it would remain in the family. This suggests that he had a choice in deciding to do that (contrary to there being an obligation not to sell), but the retention of the land is unlikely to be a detriment, barring a missed investment opportunity which has not been identified by Vivian. Furthermore, land prices have increased more than inflation and most investment returns, and Vivian’s share can be sold at any time. The submission that Burhos would have been sold but for the promise to leave the balance of Tregear to Vivian is unsubstantiated and illogical. It is unlikely to have been a detrimental decision in any event, give that it has provided a home for Vivian and Valerie for many years and two homes for their children.

[309]Vivian and his sons claim that they have worked long hours at reduced rates of pay. That may be true, but that was in order to secure Vivian’s inheritance, and Vivian admitted that Keith had earned his share just as much as he had. The assistance afforded to Keith once the farm had been de facto split between them was minimal and cannot amount to a detriment suffered by Vivian or his sons in reasonable reliance on any promise or assurance made by Keith.

[310]Vivian also complains that what is left to him at Tregear is unworkable given the doubts over boundaries and the layout and distribution of services, but that is just a factor in support of an argument that Betty did not intend the division to be permanent, and cannot amount to detrimental reliance.

Unconscionability

[311]Although this permeates the entire consideration of proprietary estoppel, it is necessary to come to the forgoing factual conclusions before it can be considered in the round.

[312]The worst that can be said against Keith is that he did not live up to expectations that he had allowed to develop within the family. However, I have found that such statements as he made were based on his then current intention to leave the farm within the family, which was probably true. He had never made assurances of sufficient seriousness and commitment to Vivian that, objectively judging his subsequent behaviour, it could be regarded as unconscionable to renege from. Even to the extent that he had encouraged Vivian to believe until 2013 that he would be leaving his share of the farm to him or his sons,(a) he never repeated such assurances after 2013 but

(b) much more importantly, Vivian suffered no detriment by relying on that expectation being met, save for the sheer disappointment of Tregear not remaining in the family. I am prepared to accept for these purposes that that disappointment is acute and felt by Adam as well as Vivian and indeed Valerie. However, Vivian cannot point convincingly to anything that he would have done differently or refrained from doing, to his detriment in either case, had he known that Keith would not fulfil the familial expectation that Tregear would remain in the family.

[313]Had there been an estoppel operating in Vivian’s favour, I would have assessed the level of detriment suffered as having been so low that, even applying the principles of Guest v Guest, this is one of those cases where fulfilment of the promise is not justified. The fulfilment of the promise would have been out of all proportion with the level of detriment suffered by Vivian when combined with the deterioration in his relationship and engagement with Keith in the last 7 years of Keith’s life. The real suffering here is that of the disappointed would-be beneficiary and the sadness that Tregear would no longer be in the family. Accordingly, I would have held that the appropriate remedy would have been to give Vivian and the family an opportunity to purchase Luke’s share of Tregear at its open market value. However, I have not been able to find an estoppel binding on Keith’s conscience, and so no remedy is appropriate.

Conclusion

[314]I therefore allow the Claim and admit the Will into probate in solemn form, and dismiss the Counterclaim.

[315]I have found that Vivian’s and Adam’s dismay at not being able to farm Tregear as a whole to be genuine. In those circumstances, I express my wish and hope that, assuming that Luke will need to sell some or all of his share in Tregear to clear Keith’s indebtedness to the bank, Vivian, Adam and Matthew will be given first refusal to purchase whatever is sold.