“The significance of evidence as to recollection: [45] Judges have for many years remarked on the vulnerabilities of evidence as to what witnesses remember. Popplewell LJ recently discussed human memory and how witnesses can come to give mistaken evidence in his 2023 COMBAR lecture, Judging Truth from Memory: The Science. In Gestmin… at paragraph 22, Leggatt J went so far as to suggest that ‘the best approach for a judge to adopt in the trial of a commercial case is… to place little if any reliance at all 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’. However, Popplewell LJ explained in his lecture that he did not himself wholly agree with this remark and in Natwest Markets plc v Bilta (UK) Ltd[2021] EWCA Civ 680 the Court of Appeal pointed out at paragraph 50 that ‘it is important to bear in mind that there may be situations in which the approach advocated in Gestmin will not be open to a judge, or, even if it is, will be of limited assistance’. In Kogan v Martin[2019] EWCA Civ 1645 ,[2020] FSR 3 , the Court of Appeal said at paragraph 88 that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence’”
“149. In addition to the procedural formalities with which a will must comply, a will must also be substantively valid. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death (see Hawes v Burgess[2013] EWCA Civ 19 per Mummery LJ at [14]). Thus a will lacks validity if (i) the testator lacks testamentary capacity; (ii) the testator does not know and approve of the contents of the will at the time of execution; (iii) the execution of the will has been procured by undue influence; or (iv) the will, or particular bequests in the will, has been obtained by fraud...”
“150. It is common ground that the correct legal test for testamentary capacity in a case such as this, where the Court is assessing the capacity of a deceased testator retrospectively, is the common law test first articulated in Banks v Goodfellow (1870) LR 5 QB 549 per Cockburn CJ at 565: “It is essential…that a testator (i) shall understand the nature of the act and its effects, (ii) shall understand the extent of the property of which he is disposing; (iii) shall be able to comprehend and appreciate the claims to which he ought to give effect; (iv) and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”
“the law in this country permits people to leave their assets as they see fit, and experience of human nature generally, and of wills in particular, demonstrates that people’s wishes can be unexpected, inexplicable, unfair and even improper”
“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…”
“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.”
“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…”
“… a very strong thing for the judge to find that the deceased was not mentally capable of making the 2007 will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.”
“32 Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who wish to challenge the will are often not able to give evidence of the circumstances of the will. The doctrine of “the righteousness of the transaction” whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged. 33 But “the righteousness of the transaction” is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. 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. All the relevant circumstances will be scrutinised by the court which will be “vigilant and jealous” in examining the evidence in support of the will: Barry v Butlin (1838) 2 Moo PC 480,483 per Parke B.”
“Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix' s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in the unreported case of Crerar v Crerar, cited and followed by Latey J in Morris[1971] P 62 , 78E-G, namely that the court should: '... consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.”
“10. As will appear, and in sharp contrast with Gill v Woodall, this is not a case where there is copious evidence to examine about the testator’s intentions, or about the circumstances of the preparation of the will. Even such evidence as there was (from one of the attesting witnesses) was largely struck out of his witness statement on a pre-trial application by the appellant, on the extraordinary ground that it was hearsay. The Board is therefore content to proceed on the traditional two stage approach, and leave the question whether it should be departed from in evidence-rich cases to a case where it may matter.”
‘when all is dark, it is dangerous for a court to claim that it can see the light’
“[20] As Lord Penzance pointed out in Parfitt v Lawless (1869-72) LR 2 P&D 462, at 469, ‘the influence which is undue in the cases of gifts inter vivos is very different from that which is required to set aside a will’. In the context of wills, as Lord Penzance went on to say at 471, ‘undue influence ... raises the question of coercion, and that only’. [21] As Sir J.P. Wilde, the future Lord Penzance had summarised the relevant law as follows in Hall v Hall (1865-69) LR 1 P&D 481 when directing a jury on a question of undue influence: 'To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.' … [23] In a similar vein, Sir James Hannen P explained to a jury in Wingrove v Wingrove (1885) 11 PD 81, at 82, that ‘if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal’. ‘It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do,’ … As, however, Sir James Hannen P said at 82-83, coercion may be ‘of different kinds’: ‘it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result’… [24] Another point made in Wingrove v Wingrove… is that ‘it is not sufficient to establish that a person has the power unduly to overbear the will of the testator’: see 83. As Sir James Hannen P observed: ‘It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’ [25] The burden is on a person alleging undue influence to prove it to the civil standard. Lord Hoffmann said this about that standard in Home Secretary v Rehman[2001] UKHL 47 ,[2003] 1 AC 153 , at para 55: ‘The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But ... some things are inherently more likely than others… On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.’ … [27] The extent, if any, to which it is appropriate to have regard to inherent probabilities will thus be affected by the particular facts. Even so, it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable. As I have said, ‘undue influence’ signifies coercion in this context, and potential beneficiaries are surely less likely to resort to coercion than to rely on affection, gratitude or even persuasion. [28] Undue influence can be established without direct evidence of it. In this connection, Mann J said in Schrader v Schrader[2013] EWHC 466 (Ch) ,[2013] WTLR 701 , at para 96: 'It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence.'… [31] Theobald on Wills, 19th ed., says this in para 4-060: ‘It has often been said that it must be shown that the circumstances attending the execution must be inconsistent with any hypothesis other than its having been procured by undue influence, but this is overstating the position; the standard of proof is the balance of probabilities. Certainly, it is not enough to show merely that the facts are consistent with undue influence, or that there was an opportunity to exercise undue influence; but the true test is whether undue influence is the most likely hypothesis, having regard to the inherent unlikelihood of someone practising undue influence on a testator.’ [32] I agree. I would accept that undue influence can be proved without demonstrating that the circumstances are necessarily inconsistent with any alternative hypothesis. On the other hand, the circumstances must be such that undue influence is more probable than any other hypothesis. If another possibility is just as likely, undue influence will not have been established. When making that assessment, moreover, it may well be appropriate to proceed on the basis that undue influence is inherently improbable.”
“[142] What is clear from this decision [in Belliss] is that the President found that Mrs Belliss was subject to - if not an insane delusion (in that she was not insane) - then an illusory belief of such a character as to negative testamentary capacity. She did not have the mental powers to enable her to recall and understand the true dealings between her and her daughters. This was not a case a mistaken belief that was capable of being corrected. It was a case of an illusory belief from which Mrs Belliss could not be shaken and which deprived her of reason. I therefore reject the suggestion that Re Belliss stands as authority for the proposition that a mere mistaken belief, which is the product of forgetfulness, is inimical to testamentary capacity. In my judgement, the President was not using the phrase 'illusory belief' as meaning 'mistaken belief', but as denoting a kind of fixed belief, similar in character as an insane delusion, which the testator does not have the mental powers to overcome. The decision has, so far as Counsel's and Mr Templeman's researches have established, never been followed for any wider proposition of law.”
“Mistake. It is important to distinguish between different types of mistake. A mistake or mistaken belief on the part of the testator does not invalidate a will even if it caused him to include particular gifts or provisions in the will. Such a mistake may, however, be a basis for arguing that the will is invalid on other grounds, e.g. that the testator was of unsound mind or suffering from an insane delusion or that his mind was poisoned fraudulently. But where it is alleged that the testator did not know and approve of particular words or clauses in the will because these were included by mistake, there are three possible remedies available. First, the court of probate has always had power to omit (but not to add) words from probate and this jurisdiction will remain applicable to wills of testators who die before1 January 1983 . Second, in the case of testators who die on or after that date, theAdministration of Justice Act 1982, s 20 has conferred additional power on the court (in specified circumstances) to rectify defective wills. Third, omissions or errors in wills can sometimes be cured by a court as a matter of construction.”
“10. Putting to one side illegitimate threats (which are nowadays better viewed as falling within the doctrine of duress: see Times Travel (UK) Ltd v Pakistan International Airlines Corpn[2021] 3 WLR 727 , paras 8-9 and 89-90) undue influence is concerned with a situation where, by reason of the relationship between them, one party (B) has such influence over the other (A) that A does not exercise a free judgment, independent of B, in relation to the making of a transaction between A and B (or, in a three-party situation, between A and a third party, C). 11. Ever since Allcard v Skinner(1887) 36 Ch D 145 , it has been commonplace to divide undue influence into two categories: actual and presumed. But in Etridge the House of Lords made clear that undue influence is a single concept. It does not have two different forms. The correct analysis of the two categories is that they refer to different ways of proving undue influence. Presumed undue influence refers to where the person alleging undue influence relies on an evidential presumption. Actual undue influence refers to where the person alleging undue influence relies on direct proof (of A’s conduct … which led to B not exercising a free and independent judgment). 12. As Etridge also made clear, there are two requirements for establishing the (rebuttable) presumption of undue influence. First, there must be a relationship of influence. This may be established on the facts. But in respect of some relationships there is what is commonly referred to as an irrebuttable legal presumption (but is more appropriately referred to as a legal rule) that the relationship is one of influence (but note not undue influence). Examples of such relationships are doctor and patient (Mitchell v Homfray(1881) 8 QBD 587 ), spiritual adviser and follower (Allcard v Skinner), parent and young child (Lancashire Loans Ltd v Black[1934] 1 KB 380 ) and, of direct relevance to the facts of this case, solicitor and client (Wright v Carter[1903] 1 Ch 27 ). The second requirement is that the transaction must not be readily explicable on ordinary motives. The House of Lords preferred this test, which uses the words of Lindley LJ in Allcard v Skinner, to a test of whether the transaction was manifestly disadvantageous which had been put forward by Lord Scarman in National Westminster Bank plc v Morgan[1985] AC 686 , 703-707. The underlying idea behind the test is that the nature and/or contents of the transaction must make one conclude, in the context of the relationship of influence, that, absent evidence to the contrary, undue influence has been exercised. … 13. If those two requirements are satisfied, so that there is a presumption of undue influence, the burden of proof shifts and it is for the party seeking to uphold the transaction to rebut the presumption by showing that A was not acting under undue influence (i.e. that A exercised free and independent judgment) when entering into the transaction. Although neither necessary nor conclusive, the main method of rebuttal is to show that A obtained the fully informed and competent independent advice of a qualified person, most obviously a lawyer: see Inche Noriah v Shaik Allie Bin Omar[1929] AC 127 and Etridge.”
“In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired.”
“… The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited…”
“… It is not to be suggested that such everyday influences disable a person from freely exercising his or her will. The question only arises when the influences go beyond a point where the freedom of that person to act independently is compromised such that the court concludes that the transaction was not the act of a free agent…”
“… One of the ways in which the donee may commonly do this is by establishing that the donor had received advice from an independent person as to the nature and effect of the transaction. Whilst such advice is not always necessary nor indeed sufficient, its absence is a relevant factor: Etridge[2001] 4 All ER 449 ,[2002] 2 AC 773 (at [20]) per Lord Nicholls and Hammond v Osborn [2002] 2 P & CR D41 at [27], [28].”
“‘[T]he question is whether the person concerned is capable of understanding what he does by executing the deed in question when its general purport has been fully explained to him.’ Thus the overall test is one of ability to understand, rather than actual understanding. If the maker of the gift does not in fact understand the transaction, in circumstances, where its general purport has not been fully explained, that does not establish lack of capacity. The test is whether he or she would have understood it, if the consequences had been fully explained.”
“In a similar position is a director of a company or other fiduciary with possession or control of the property for someone else. Such fiduciaries are not true trustees, because the property is not vested in them, but are in an analogous position, as they claim no personal interest in it, and are treated in many ways as if they were true trustees, including their accountability for abusing the trust and confidence reposed in them, and for the purpose of imposing proprietary and personal liability in equity in respect of unauthorised profits they make from their position or the property, or by reason of self dealing, or in respect of property transferred in breach of trust…”
“…where a third party has extinguished the subject-matter of a specific devise without the authority of the testator, the proceeds of sale, if identifiable, should be treated as the subject of a specific devise which should take effect accordingly. The absence of authority as a matter of fact meant also that the testator is ignorant of what was happening, and indeed, in the two later cases, is also incompetent of managing his affairs. Where, however, the subject-matter has been extinguished by a person authorised under the statute so to act, his acts bind the testator and his estate unless the statute under which the action was taken otherwise provides – see In Re Palmer[1945] 1 Ch 8 .”
“In my opinion, Mrs MacDougall was vulnerable to influence, as described in paragraphs 12.1 to 12.3. It is hard to give a precise timeline as to how vulnerability developed and not possible to give an opinion as to her vulnerability on an exact date. Based on her cognitive impairment being a major factor in her vulnerability, in my opinion, I would say that Mrs MacDougall was not unduly vulnerable in 2008, would have begun to become vulnerable in 2012 (around the time of her diagnosis of dementia) and from about 2015 onwards would have become more vulnerable.”
“We agree that the Deceased would have been vulnerable to undue influence, particularly after her dementia was diagnosed in 2012”
“… Mrs MacDougall would like to have everything concluded by the end of next week, Friday 27th. January. Outstanding matters are: Probate Change to will, leaving 46 Argyle Road W13 to Philip & Sandra Shares in Winder bray Ltd to Philip & Sandra Shares in Acton Mill Hill to Gary MacDougall Transfer 62 Acacia Road to Sandra, declaration to Inland Revenue Discretionary Trust will for Philip & Sandra…”
“Mrs. MacDougall wants to gift 46 Argyle Road W13 to Mr. & Mrs. Thomas, it was suggested that this would be left in Mr. MacDougalls’ will and a Deed of Variation would be needed but this was never done. How is it now best dealt with? My wife and I and also Mrs MacDougall do not have any wills in place, are you able to help us with these?”
“Further to our recent meeting we and Mrs. MacDougall, have decided that we would like to instruct you to deal with the outstanding Inheritance Tax matters, our Wills and other business we briefly touched on.”
“I am writing to enclose the first draft of your new Will. [No draft survives.] As discussed when we met, you appoint Sandra and Gary as executors. Chattels (clothes, jewellery, etc) are left to Sandra and the possible existence of a "Letter of Wishes" is flagged. This will allow you to change your mind about who is to get what without needing a new Will or Codicil. Clause 4 would allow you to leave pecuniary (gifts of money) legacies to individuals you might name. Clause 5 deals with the various properties as you suggested and, as discussed, you need to decide whether these gifts should be "free of" or "subject to" inheritance tax (IHT). Another consideration is that subject to capital gains tax considerations, you might gift one or more of these properties during your lifetime. The remainder of your estate is divided equally between Sandra and Gary and should either of them die before you their children would take their share. Part 2 contains administrative powers for your executors and the relevant definitions are contained in Part 3. I imagine that we shall discuss the final terms of the Will when we next meet.”
“THE PEACEHAVEN PROPERTY When we last met we discussed the possibility of you gifting the Peacehaven property to Philip and Sandra. I understand that you are obtaining indicative valuations for the property but you thought it was worth no more than£300,000 in its present condition. The property is standing at a substantial capital gain as compared with the base cost in your hands (half of which would have been the value when your late husband died). Accordingly, an outright gift would leave you with a capital gains tax (CGT) liability. In order to allow you to gift the property without incurring any immediate tax liabilities I suggested that you should transfer it to a trust for the benefit of Philip, Sandra and their children. Provided you could not benefit under the terms of the trust CGT “holdover” relief would be available and the trustees would take over your base cost. Although the capital gain could be triggered on a disposal by the trustees, if the intention is to keep the property within the family for the longer term this might not be an issue. Another advantage is that the trust would keep the value of the property outside Philip and Sandra’s inheritance tax (IHT) estates. I understand that you would wish to make occasional use of the property and, as I mentioned when we met, a Revenue Tax Bulletin some years ago gave some examples of when the Revenue would regard the donor as “virtually” excluded from benefit including social visits, occasional returns to a house given away to baby sit or to visit a library there no more than four times a year or to stay for short periods of up to two weeks a year (or four if the donee is present) or to convalesce or while the donor’s own house is being redecorated. Accordingly, you could make a limited amount of use of the property without falling foul of the IHT “gifts with reservation of benefit” provisions. If you wanted to make more extensive use of the property then you would need to pay an open-market rent for your occupation. I did enter the caveat that if you were to die prematurely there could be a disadvantage in as much as the gift would be on your IHT “clock” for seven years and it would not benefit from the usual CGT-free uplift on death. However, if you retain ownership it will definitely suffer IHT on death. I look forward to hearing further from you when you have the valuations for the property and should just mention that we are exploring the possibilities of borrowing against your other investment properties.”
“If you do decide to proceed with the gift [of shares] it should be made after the gift to trust of the Peacehaven property, as should the proposed gift of Argyle Road to Sandra and Phillip. I shall be writing separately regarding the trust over Peacehaven and the latest version of your Will.”
“I have been advising Mrs MacDougall and her daughter Sandra and son-in-law Philip Thomas on various capital taxation matters over the last year. Mrs MacDougall is a widow (Mr MacDougall died on18 September 2002 ) and she owns a number of investment properties in the Ealing area. In addition, she owns a property 7 Wellington Road, Peacehaven which has been recently valued at£299,950 and is standing at a gain as compared with its base cost. Mrs MacDougall does not, at present, have anything on her "clock" of immediately chargeable transfers for inheritance tax purposes and my recommendation is that she should transfer the property to a trust for the benefit of Sandra, Philip and their children and remoter issue and claim CGT holdover relief. Mrs MacDougall knows that she would need to pay rent for anything more than de minimis occupation of the property. Mrs MacDougall's son Gary and his family are not to benefit from this property. …I await final confirmation from Mrs MacDougall that she is content with the terms of the trust and I shall then ask you to prepare the trust and to transfer the property…”
“I believe you or Philip will let me have the Land Certificate for Argyle Road so that Mr Harding may deal with the transfer of that property as well. Finally, your instructions were that your Will should include a gift of your various quoted company shares to Philip and it would be helpful if you were able to let me have photocopies of the various share certificates…”
“Philip called this afternoon to give the go-ahead re the trust so while I await the death certificate I am attaching the draft trust and covering letter.”
“My current understanding is that Mrs MacDougall wishes to gift 46 and 46A Argyle Road to Sandra and Philip after the transfer to the trust has taken place and I believe the other properties are held in an existing grandchildren's trust made by Mr & Mrs MacDougall. As yet I have no instructions regarding those other properties…”
“I should be pleased if Mrs MacDougall would confirm that the Will meets her wishes or alternatively of any amendments required. I shall then let Mrs MacDougall have the engrossment together with instructions for execution; I could act as one witness if you would like me to call in but you would need to organise another non-family member to be the second witness.”
“WILL It was good to see you again yesterday and I am writing as promised to enclose the engrossment of your new Will. As compared with the 2008 version you now specifically gift your interests in all the listed properties to Sandra and Philip, otherwise the provisions are as before. Provided you are content that the Will meets your current wishes it should be executed as follows: [he then set out the procedure for doing this].”
“Subject: Change will: Change will: I want to leave 21 Aveune [sic] Crescent W3 to Sandra & Philip and also 45 Berrymead Gardens W3 I would like Sandra & Philip to have power of attorney over my affairs should I no longer be able to manage my own affairs due to frailty or mental disability”
“Dear Gary & Sandra10th November 2011 I have left my estate to Sandra and Philip because Dad left Gary the business and the income it provides. He also gave Gary 174 Avenue Road which he converted into three large flats. On the yard Gary built Launders Gate (five houses). Gary also received 81. Mill Hill Road which is three self contained flats and yard. The present Freehold Premises at 140 Horn Lane is in your name, this is a shop with offices and a self contained flat above which will provide Gary with further income. When Dad was alive he used the business to maintain yours and Sandra’s properties but since he died Sandra has had no help in maintaining them herself whereas you have been able to use the business. It was always Dad’s intention to transfer properties to Sandra and Philip to make things more equal but sadly he died before he was able to do this. I haven’t left anything to any of my grandchildren because they will all benefit from the Trust, you and Sandra will be able to pass on what you have to them when you think the time is right. I am proud of you both and hope you will look after each other and all my grandchildren. Love Mum10th November 2011 .”
“There are scattered deep and subcortical white matter hyperintensities in keeping with mild small vessel disease. There is mild to moderate diffuse volume loss. No space occupying lesion seen. No other significant lesion. Conclusion: mild small vessel disease only. No other significant lesion”
“Mrs MacDougall acknowledges that she may be having some memory problems… Sandra feels that her mother’s memory has declined in the past 18 months. Natural history is reported to be of 18 months duration with insidious onset and gradual decline without fluctuation reported. Her daughter reports that her mother was gradually becoming more forgetful but the whole family noticed a deterioration following a holiday to Crete in June 2012. She reported that her mother became more disorientated whilst on holiday not realising where she was and on one occasion swore at her daughter which was completely out of character. Her daughter has noticed that her mother has become more repetitive, has word finding difficulties, is unable to retain information, forgets appointments, forgets peoples names and has difficulty learning new information (unable to use a computer; continues to use a typewriter). Mrs MacDougall continues to work in the family building business three days a week but is finding it more difficult to cope in the office and her work is now being streamlined to basic administration tasks. Her attention and concentration have decreased. Behavioural and psychological symptoms include anxiety, disinhibition (the episode of swearing at her daughter on holiday; this has only happened on one occasion) and apathy… No abnormal beliefs or hallucinations noted. Exhibited amnesia and executive dysfunction, aphasia and visuospatial apraxagnosia to a lesser degree. Self-care intact. [The report then set out the results of the memory and other tests carried out].” [The report then set out the results of the memory and other tests carried out].”
“2.1 We agree that the Deceased suffered from dementia due to Alzheimer’s disease which the records indicate was diagnosed in 2012, but symptoms of which were reported to have been present since 2011. 2.2 We agree that dementia is a progressive condition so that her symptoms would have gradually worsened from 2011 until she died in 2020, although not necessarily in a linear way. 2.3 We agree that on the balance of probability the Deceased would have had capacity to execute the 2011 Will.”
“2.4. In my opinion and on the balance of probabilities, Mrs MacDougall: • would have had testamentary capacity to execute the 2011 Will”
“Although Mrs MacDougall had a disorder of mind, there is insufficient medical evidence to show that her impairment was severe enough to rob her of testamentary capacity...”
“By the time she signed the 2011 will on 14.03.11, the Deceased had not yet been diagnosed with dementia, and there is no entry in the medical records prior to that date suggesting that she had cognitive problems of any kind. However, as noted above, by the time that she was assessed in the memory clinic in October 2012, it is reported that she had had memory problems for the past 18 months, suggesting that they may just have begun at about the time that she signed the 2011 will. Dementia is a progressive condition, and even 15 months later, on 31.08.12 her score on a test designed to assess whether there was sufficient cognitive impairment to merit referral for further investigation was still only just at a level indicating referral. This suggests to me that at the time she signed the 2011 Will impairments were very slight, and in my view unlikely to have undermined her testamentary capacity.”
“NOTE On the7th March 2013 , between 5pm and 6pm a meeting took place at 1 Beaufort Close W5 3EE. Present were Mrs. Sandra Thomas, Mrs. Jeanne Mac Dougall and Mr. Gary Mac Dougall, Emma Thomas was in the adjoining room. During this meeting Sandra said to her brother Gary “You might as well know that Mum has left everything to me.”
“It’s done and will be in either tonight’s or tomorrow’s post to Mrs M.”
“3.1 We do not completely agree on whether Mrs MacDougall had capacity to make the Codicil in 2013. Professor Burns opined that she “could” have had capacity to make the Codicil, noting that it is up to the Court to make the final determination of the presence of capacity based on all the evidence before it. 3.2 Dr Series is of the view that on the balance of probabilities the medical records do not suggest that Mrs MacDougall was so impaired as to lack capacity to make the Codicil in 2013.”
“Mrs MacDougall had mild to moderate cognitive impairment due to Alzheimer’s disease when she signed the codicil. I think with that degree of cognitive impairment, I would have expected, more likely than not, she could have had the ability to understand the general nature of signing her codicil.”
“In my opinion by the time that the Codicil was signed, the Deceased’s dementia had clearly progressed, but was no worse than moderate in severity. It appears to me that the Codicil itself is relatively simple in its effect, and therefore the degree of cognitive function required to understand it is relatively small. On the balance of probability I think it more likely than not that the Deceased would have been able to understand the nature and effect of what she was signing at that time.”
“David engaged on3rd November 2014 attending Jean McDougall and her daughter Sandra Thomas and son in law Lloyd Phillip in relation to her intended gift of 21 Avenue Crescent to her daughter and son in law by way of joint gift. I asked if there was any consideration for the gift and she said just love and affection. I asked who would be entitled to the income of the property (which I was informed as a rental property - requiring refurbishment and she said they will be entitled to all of the rental income as she does not need it. I was quite happy that Mrs McDougall knew exactly what she wanted to do and why and she was orientated in time and place. Nevertheless I took a note of her GP's details in light of the fact that she advised me that she attends an Alzheimer's clinic. Sandra and Phillip were with Mrs McDougall but did not involve themselves in my conversation with her. I specifically asked her as to her son Garry's reaction to this transfer but she advised me that she had already gifted the property affectively in a previous Will which Garry knew all about albeit that will have now been changed [sic]. Engaged 35 minutes”
“Thank you for your recent letter regarding the above patient's intention to transfer property to her daughter and son in law in the context of her Alzheimer 's disease. I note your reference to Mrs MacDougall being orientated in person, place or time and your impression that she understands the implications of what she is doing. Mrs MacDougall was formally diagnosed with Alzheimer's dementia in 2012. In August 2012, her six item cognitive impairment test score was 10/28 indicating "significant cognitive impairment". In October 2013, her score was worse at 19/28. She was seen in November 2014 by the memory clinic at which time she was deemed stable but with a Rowland Universal Dementia Assessment Scale score of 17/30 in which scores of less than 22 are indicative of cognitive impairment. Of course the issue of mental capacity is alongside the diagnosis of dementia but not related in a linear fashion. Mrs Macdougall is perfectly capacitous to determine what she might like to drink or eat or how to spend her afternoon but that does not necessarily mean she is capacitous for weighty financial matters…. … after discussion with my colleagues. I am of the opinion that an independent assessment of Mrs Macdougall's mental capacity should be obtained prior to this important decision in her life.”
“The assessment was carried out at the above address [1 Beaufort Close] on 9th February, 2015 at 6 PM. I assessed Mrs Macdougall by herself. After the assessment I had a conversation with her daughter Sandra and her husband Llyod [sic] to clarify some factual information.”
“Her last assessment in November 2014 recorded her score as 17/30 in RUDAS (Rowland Cognitive Assessment Scale) which would indicate a moderate degree of cognitive impairment. Her daughter and son-in-law are her carers.”
“She understood that I was a doctor and I came to assess her because her solicitor asked me to do so. As the interview progressed, she struggled to remember who I was and thought that I came for some office work but clearly understood who I was and the purpose of my assessment once I re-introduced myself. She was repetitive but consistent in her accounts.”
“She got [a] bit mixed up between her children and grandchildren when she was trying to tell me about her family but eventually I clarified that her son is called Gary and her daughter is Sandra. She told me that after her husband died Gary got the family business and property. So, the residence where she used to live, she would like to give to Sandra and her husband Philip as a gift. When I asked her which property she is referring to, she said 22 Avenue gardens in Ealing (I later clarified that it is no 21). She also confirmed that Sandra has always been closer to her. She told me that Gary is aware of this decision. When I asked her why she is excluding Gary from this, she again told me that Gary was given the family business and property and also Sandra and her family are the one who are looking after her all these years and she is very happy here. She said that the fact that she has survived all these years are likely to be down to them. She clearly understood that once she makes the gift she would have no control over the property and her daughter and son-in-law would have complete control over it and they could make any decision in relation to that. She said that she is happy to do it and that she does not need that property anyway as this is now her home. She denied being under any duress in relation to this decision. In my opinion, Mrs Macdougall clearly understood the purpose of the assessment and my role. She needed prompting to retain the details but I had no concern about her understanding of the details at any point of time in the assessment. She had clear reasons explaining her decision and that in my view demonstrate a decision making process where she is able to weigh in balance the pros and cons of her wish. She was clearly able to communicate her decision. So, in my opinion, on balance of probabilities, she has fulfilled all criteria as per Mental Capacity Act, 2005 and she does have capacity to make decisions in relation to an instructions implementing a transfer of a freehold property to her daughter Sandra and son in law Llyod Philip Thomas. Capacity is task specific and despite of her diagnosis of Dementia and significant cognitive impairment, my assessment clearly establishes her capacity in relation to this particular decision.”
“… I think I must have thought that this was just a mistake. THE JUDGE: In the number? A. Number 21 to 22. But I did not realise the complexity of the number of properties, but partly it must have been my fault as well that I got that address. I should have been more diligent in terms of exactly which address and things like that…”
“… looking at the report, I think my assumption was this was just a mistake of 21 and 22 and did not have any further implication than that. Now… I have to accept that that line is not fully true in retrospect, but at the time, this is my explanation why I wrote that, because my belief was that clearly, she meant to give the gift of property and that was probably a mistake just between 21 and 22.”
“The second paragraph on page 3 is more troublesome in that Mrs Macdougall lived with her husband Alec in Beaufort Close [sic] at the time of his death and the property that you refer to number 22 Avenue Gardens in Ealing was a property they lived in soon after they married. Number 21 Avenue Gardens [sic] (the subject of the gift here) was a quite separate property (Mr and Mrs Macdougall owned them both). In addition, I think it fairer to say that Gary got the family business and family business property and indeed that Sandra received some property too. From my conversations with Mrs Macdougall, it is the case that she wants to gift 21 Avenue Gardens [sic] to her daughter and son in law because the property is a rental property and she does not need the income and she wants to give it to them.”
“Anousha attending Mrs Macdougall who was bought into the office by Phillip Thomas. Going through the TR1 with Mrs Macdougall and asking her to check that all the details contained therein were correct. Mrs Macdougall accordingly confirming...”
“In a recent call Philip told me that Mrs M had gifted the property to Philip & Sandra. A PET for IHT and a disposal for CGT.”
“.. In this assessment, I did ask her that, you know, established that she was giving something, wanted to know what is the reason she wants to give it, who she wants to give, why it is not to somebody else. So, if we think even in terms of testamentary capacity and the Re Beaney principles, some of them, even if the Re Beaney is not specifically referenced in my report, some of them definitely were covered in my assessment. I think obviously if I had all the information, then that would have made far more questions which I would agree, but I think the point I am trying to make is that some of the Re Beaney principles were still included and because it was early 2015, as you said, it was still kind of debated which was the gold standard, and that may be a reason I did not”
“A. Jeanne did not mention anything about - in my report, there was no mention of anything about rental property or rental income. I think she just said that she wants to gift the property because she does not need that property any more, that now she is living with the daughter, she does not need that property any more. MR MARTIN: So, did you have concerns at this point when these three points were raised that you had not assessed Jeanne on the correct basis? A. I cannot remember whether I had a particular concern about that, but here, also, I mean, the 21, 22, same address, I am not sure that it raised that kind of concern for me because the wider perspective was not being given. I think I accept that what she did not, I think what is the most important bit to me in this, what she did not tell me is that the daughter got some properties, which she did not say at all in terms of explaining why she would choose to give that particular property to the daughter, my Lady. Q. Looking at it now with the huge benefit of hindsight, it would have been a good idea to go back and see Jeanne again, would it not? A. I would have agreed to that, my Lady. THE JUDGE: Do you mean you would agree with that now or you would have agreed to do that at the time? A. What I am saying is at the moment, I would agree.”
“2.5 We agree that it is up to the Court to determine whether to accept the findings of Dr Mukherjee’s report.”
“14.1.1 On the basis of the medical notes alone I think that she could have understand that she was giving away a property, but on balance I think it unlikely that she would have been able to consider this gift against other gifts already made… 14.1.4 If the Court finds that the MCA 2005 is indeed the correct test, and that the relevant information does not include knowledge of other gifts already made, then on balance I agree that she had capacity to make the gift. However, if the Court finds that following re Beaney, the test is that in Banks v Goodfellow, then in my understanding, the matters which she would need to consider are much wider, and would include her own circumstances, those of her children, previous gifts made to them, how they have behaved towards her over the years, the claims of other potential beneficiaries of her estate, and her own future need for financial support. I think that would require a much higher level of cognitive function and on balance I am doubtful that she would by then have had capacity to make that decision.”
“It would seem quite wrong that Susan, however unconscious she may have been of the undue influence that she was exerting on her mother, should be entitled to benefit to any degree from the consequences of her conduct.” iii) Sandra and Philip would benefit from their own misconduct if they were granted relief from the ademption as they would be “locking in” their legacy in 2015. iv) It cannot be known what might have happened between 2015 and 2020 had Sandra and Philip not acted in breach of duty: it is not certain they would have inherited it. What should have happened is that they should have applied to the Court of Protection because they were conflicted. v) Sandra and Philip do not “come with clean hands”
“MR MARTIN: Was the price agreed with your father? A. The price was agreed, there was a conversation with my Gran, my dad was there, my mum may have been part of the conversation, but I cannot recall if she was. And£400,000 was what Henry and I could afford, we had managed to save about£40,000 by living at my parents to put towards a deposit to get a 10% deposit of the price and£400,000 is what we could afford. Q. Just to be clear, your evidence is that you agreed the price with your father and your grandmother, is it? That is what you have just said. A. So we had a conversation, my Gran wanted to give us the flat for free. And we said no, we wanted to buy it. Then a conversation with my Gran and my dad about, you know… what we could afford the property for which is why£400,000 was agreed, because that is what we could afford. But, as I said in my witness statement, my Gran wanted to give it us to for free. Q. You said she wanted to give it to you for free? A. Yes. Q. In terms of agreeing the price of 400,000, which is something different, that was agreed with your father? A. That was agreed in a conversation which my Gran was part of and my dad was there… the conversation was with my dad and my Gran, my Gran was participating in that conversation.”