‘176. ….I consider that I must bear firmly in mind the much repeated observations of Leggatt J (as he then was) in Gestmin SGPS S.A. v Credit Suisse Limited[2013] EWHC 3560 (Comm) at [15]–[22] with regard to the unreliability of memory, and his caution to place limited, if any, weight on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. 177. A particular concern identified by Leggatt J was the ability of a witness, in seeking to recall events that took place some time ago, to falsely do so, but with genuine conviction and belief that their recollection is accurate. Thus, as Leggatt J cautioned in Gestmin at [22]: “… it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.” Allied to this is a concern that a witness seeking to recall events over a significant period of time is liable, in reconstructing those events in his or her own mind, to do so in a way that inaccurately recalls the same in his or her favour, and to exaggerate perceived advantages to his or her own case, and to do so without deliberately giving false evidence. 178. The Court of Appeal in Kogan v Martin[2019] EWCA Civ 1645 at [88] stressed the importance of making findings by reference to all the evidence, that is both documentary evidence and witness evidence, placing such weight as the circumstances require on each. As I have indicated above, a difficulty in the present case is a paucity of contemporaneous documentation to assist in the resolution of questions of fact. In these circumstances, it will be of importance to test the witness evidence against the inherent probabilities of the relevant situation, and considerations such as the consistency (or otherwise) of a particular witness' evidence with other evidence, the internal consistency of that evidence, and the consistency of that evidence with what the witness might have said on other occasions – see Kimathi v The FCO[2018] EWHC 2066 (QB) , at [98].’
‘They have short memories. I don’t’
‘Carol My mum said that when dad was, came over and before he died, urm you, he came up here and in front of you, Sue and Grandad, you all promised and agreed that if anything happened to either of you a third would be split and go to my mum. …. Terence Carol, A lot has happened since then love hasn’t it? A lot has happened since then. Carol Yeah but you don’t, you don’t, you don’t promise though do you…you don’t promise. Terence Sorry I don’t, yeah but you don’t promise to start things either do you. Carol I’m not starting anything. Terence The last will has been said and it has been said. Carol I know it has. Terence There is no money going anywhere towards anybody else. It’s split between me and Sue, there wasn’t, it was split between the three of us. Carol Yeah. Terence But I’ll tell you the truth, but unfortunately, your mouth got you in a lot of trouble. Carol What do you mean by that? …. Terence For the arguments. Carol What arguments? …. Terence That is the last will and testimony, that is it, finished. Carol What arguments? …. Terence What arguments! What have you lost your brain as well? Carol No I haven’t lost my brain, don’t be so rude. Man Well you slagged me off, you slagged me off you slagged granddad off.’
‘6.6 In trying to understand the change in the 2018 Will one has to consider the Deceased’s state of mind and obvious vulnerability at the time given that his medical notes suggest numerous hospitalisations and significant competing physical co-morbidities in the days prior to the Will. As outlined above, such competing co-morbidities have consistently been shown to impact on an individual’s mental health which, in turn, can affect their capacity to make decisions in their best interests. Whilst there is no formal evidence to suggest a lack of capacity, these competing co-morbidities and the obvious concern for his health and well being from the Defendant/s confirm a state of frailty and dependency at the time.’
‘9.1 As outlined above, it is not possible to say with any degree of certainty that the deceased lacked Testamentary Capacity at the time of writing the 2018 will. What is evident however, is that he was physically, and in all probability, psychologically frail at the time. This state of being may have played a part in him being more subservient. His obvious vulnerability, therefore, prior to the 2018 Will would have rendered him susceptible to acquiescence and undue influence (Lechner et, al 2015). This might help to explain why, when asked if he was able to “comprehend and appreciate the claims to which he ought to give effect and whether there were any other parties that might consider themselves to have a moral claim on the estate,”he told the solicitor at the time that there were no reasons to appreciate the claims of others who may have a moral claim on his estate. In my opinion, if the deceased had full capacity at the time, he would have been well aware that his deceased son’s children had a moral claim on the Will. This again, is something for the Court to consider.’
‘There was no evidence that Mr Ward had any cognitive impairment due to dementia, delirium or that he was depressed’
‘10.1 Mr Ward was an elderly gentleman with a number of physical health problems particularly affecting his respiratory system resulting in recurrent chest infections which were treated in hospital. The medical notes paint a picture of a person who was frail. 10.2 Many people with Chronic Obstructive Pulmonary Disease (COPD) have difficulties with memory, orientation and concentration. This is most likely because the brain is deprived of oxygen because of the inefficiency of the lungs transferring oxygen to the blood stream due to chest disease. 10.3 In October 2016 the notes state that Mr Ward “…failed a dementia screen.” This does not indicate he had dementia it simply means that on a test to measure his cognitive function he did not do well. In those circumstances it is good practice to enquire further and do further, more detailed tests. I have got no evidence that these more detailed tests were carried out but there was no evidence the Mr Ward’s cognitive impairment progressed over the next three years as one would imagine it would in someone with a progressive dementia. Mr Ward’s death certificate did not record any evidence of dementia. 10.4 Mr Ward had an indwelling urinary catheter which is commonly associated with recurrent urinary tract infections which are a common cause of episodes of confusion. There is evidence at the material time at the end of November 2018, that he did have a urinary tract infection. However, although it could have affected his mental state and therefore testamentary capacity, I can find no evidence in the medical notes that I have seen that it did so. It is possible he failed the dementia screen because of an episode of delirium at that time which was two years before he signed his will. 10.5. Mr Ward had an episode of depression in 2009 but that seemed to have been treated successfully at that time and he was not on antidepressants at the time he instructed and executed his will. 10.6 During his many hospital admissions, there is evidence that assessments of his cognitive function were carried out. They used a measure called the Abbreviated Mental Test Score (AMTS). This is a measure of cognitive impairment scored out of ten, testing orientation and concentration. It is used particularly in the general hospital setting as it is a sensitive and quick to administer measure of delirium. 10.7 In the months running up to signing of the will, and once after, there are entries in the discharge letters from Ealing Hospital (on6 June 2018 ,21 July 2018 ,22 September 2018 ,22 October 2018 and4 February 2019 ) concerning the AMTS. The standard hospital discharge letter has a section about the AMTS (Appendix 2 is an example but it is the same template for all the discharge letters). 10.8 The letter has the letters, AMTS, then a space, then an oblique sign followed by the number ten. In my opinion, this is a template where the clinician puts the score out of ten in front of the oblique sign. None of the scores are filled in. This suggests to me, although it is ultimately a fact for the Court to determine, that the clinician was not concerned about impaired cognition and so considered there was no need to complete the test. 10.9 There is also a section on the same template entitled “Capacity” (also in Appendix 2) and the entries record “not assessed.”. This suggests to me that the clinician had no reason to doubt the presence of capacity. On4 February 2019 , the question was answered “Yes”, suggesting to me that capacity was definitely considered to be present.’
‘Did the testator understand the nature of the act and its effects? Frederick certainly seemed to understand the purpose of a will and the consequences of executing one. Did the testator understand the extent of the property of which he is disposing? Frederick’s understanding of the extent of his estate is recorded above. Was the testator able to comprehend and appreciate the claims to which he ought to give effect? On being asked whether there were any other parties that he might consider themselves (or be considered by others) to have a moral claim on the estate I was told that there were not. Was the testator’s mind affected by any disorder or delusion which was active in bringing about a disposal which the testator would not otherwise have made? I saw no evidence of this during our interview. I note that Frederick had a tendency to leave out numbers or letters on the questionnaire, so I was particularly alert for signs of mental impairment. However, he was engaging, cheerful and quite clear about what he wanted. He was able to discuss his medical condition and treatments in terms that were consistent with what I would have expected (my wife is a chronic asthmatic, and so is on many of the same treatments).’
‘He wants to update his will with a few small changes. Firstly he explained that he was in hospital 3 times recently with emphysema and none of his grandchildren visited him which hurt him. So he wants to reduce the gift to grandchildren from£500 to£50 . He wants his son in law Carl to have one of his pocket watches in addition to his grandsons Daniel and Brian and wants to give his wrist watch to his daughter.’
‘7 The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings: see Kenward v Adams The Times,28 November 1975 ; In re Simpson, decd (1977) 121 SJ 224, in both cases per Templeman J, and subsequently approved in Buckenham v Dickinson[2000] WTLR 1083 , Hoff v Atherton[2005] WTLR 99 , Cattermole v Prisk[2006] 1 FLR 693 and in Scammell v Farmer[2008] WTLR 1261 , paras 117–123. 8 Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope….’
‘93 ….The testator must be able (1) to understand the nature of his act, ie, making a will, and its effects (2) to understand the extent of the property of which he is disposing (3) to comprehend and appreciate the claims to which he ought to give effect. He must not be subject to any disorder of mind as shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties”.’
‘96 Banks v Goodfellow was itself mainly a case about alleged insane delusions. Many of the cases which have followed it are about cognitive impairment brought on by old age and dementia. The test which has emerged is primarily about the mental capacity to understand or comprehend….’
‘97 The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less: see generally Ledger v Wootton[2008] WTLR 235 , para 5, per Judge Norris QC. 98 Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insight into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges….’
‘(i) the testator has testamentary capacity at the time when he gives instructions to a solicitor for the preparation of the will; (ii) the will is prepared so as to give effect to the instructions; (iii) the will continues to reflect the testator’s intentions; and (iv) at the time of execution the testator is capable of understanding, and does understand, that he is executing a will for which he has given instructions.’
‘86. On this issue I was invited to follow the approach of Norris J in Wharton v Bancroft[2011] EWHC 3250 (Ch) at paragraph 28: “(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions. (b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense. (c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute). (d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph [14], that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator's intentions at the relevant time. (e) But proof of the reading over of a will does not necessarily establish “knowledge and approval”. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself. (f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn. (g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge. (h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.” 87. I can safely follow that helpful encapsulation. The real question is that appearing in paragraph (a) – whether Jessica “understood what [s]he was doing and its effect (that is to say that [s]he was making a will containing certain dispositive provisions) so that the document represents [her] testamentary intentions.” 88. My attention was also drawn to the judgment of Chadwick LJ in Hoff v Atherton[2003] EWCA Civ 1554 at paragraph 64: “Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will – that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was-- doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents – in the wider sense to which I have referred.”’
‘47. There is no serious dispute about the law. The approach that I should adopt may be summarised as follows: i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence; ii) Whether undue influence has procured the execution of a will is therefore a question of fact; iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition; iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud. v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense; vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will; vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside; viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone; ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.’
‘49. Whilst Lewison J stated that what must be shown is that the facts are “inconsistent with any other hypothesis” other than undue influence, this is to overstate the position. The standard of proof is the normal civil one of the balance of probabilities. As counsel for the Claimants pointed out, an allegation of undue influence is a most serious one to make: see Re Good (deceased) Carapeto v Good[2002] EWHC 640 (Ch) . It is a species of fraud, which requires strong and cogent evidence to prove, citing Re H (Minors)[1996] AC 563 , in the well-known speech of Lord Nicholls, at p. 586: “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence… Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.”’