Itoweh Susan Ugolor & Ors v Cameron Eseh Ugolor & Anor [2026] EWHC 745 (Ch)

[2026] EWHC 745 (Ch)Case No BL-2020-000666IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESPROPERTY TRUST AND PROBATE LISTVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 27 March 2026
Before
MR SIMON GLEESON
Between
(1) Ms Itoweh Susan UgolorClaimants(2) Mr Uduoghene Hartley UgolorClaimant(3) Ms Barbara Obatare Anwale UgolorClaimant(1) Mr Cameron Eseh UgolorDefendants(2) Mr Stephen LaycockDefendant
Priya Wagjiani (instructed by Mitchells) Claimants for The Defendants did not appear and were not represented.Hearing Hearing date: 20 February 2026
Approved Judgment.............................MR SIMON GLEESON

Mr. Simon Gleeson :

[1]This claim is a challenge to a homemade will purportedly made by Pamela Ayodele Festous (“the Deceased”) dated 21 March 2008 (“the Purported Will”). The Deceased died on 21 March 2020. The First Defendant is named in the Purported Will as the main beneficiary. The Claimants, who are siblings of the First Defendant and are not provided for therein, challenge the will on a number of grounds. They also argue that the First Defendant should account to the estate for the profits derived by him from the Deceased’s property prior to her death as a constructive trustee.[2]The litigation has been ongoing for some time, and the First Defendant has been debarred from defending these proceedings as a result of significant and continuing non-compliance with interim orders (including costs orders). However, where a will is challenged, the court engages in an inquisitorial rather than an adversarial process. Thus, even in the absence of one party, I am still required to pronounce on the validity of the will.[3]As a preliminary point, I should state what the court’s function in cases of this kind actually is. The parties undoubtedly think of this dispute in moral terms – who did the right thing, who did the wrong thing, and what that conduct deserved. This court has nothing to do with any of those considerations. There is a set of legal rules, developed over centuries, which are applied to decide when a will is valid and when it is not. My role here is to apply those rules to these facts. I do not have any power to decide who is “in the right” – my only role is to apply the rules that the law sets down.[4]In this regard, the principle which I must follow is that a will which is regular on its face should be treated as valid unless a court is satisfied that it should be invalidated on one of the grounds recognised by law. Those that are in issue here are whether(a) at the time of making the will, the Deceased had sufficient mental capacity to understand what they were doing (“testamentary capacity”),(b) that at that time they understood the effect of what they were signing (“knowledge and approval”), or that(c) they were coerced into signing it (“undue influence”).[1]Procedure[5]Ordinarily, where – as in this case - one side is debarred from defending the proceeding, the other side wins. In probate cases, that does not necessarily happen. In an action challenging the validity of a will, the court performs an inquisitorial rather than an adversarial function. This has a number of consequences. The most important of these is that (per CPR 57.10(1)) a default judgment cannot be obtained in a probate claim, and (per CPR 57.11(1) and (2)) discontinuance by one party does not attract any of the consequences provided for by CPR 38. In practice, this means that the court must determine (usually on the papers alone, and with the assistance of only one side) whether the challenged will is valid or not. In this regard it is necessary for the court to consider all of the materials before it, including any submissions and witness statements put forward by the party who is debarred.[6]This does raise the question of how the position of the absent party should be assessed by the Judge. I think this was correctly assessed by James Munby QC (sitting as a DHCJ) in Killick v Poutney [1999] EWHC J0331-12. Having held that the Defendant’s refusal to participate in the litigation did not constitute an “admission” for the purpose of RSC Order 27 rule 3 (judgment on admissions), he went on to say “A number of reasons why the defendant may have chosen [not to participate in the proceedings] come fairly readily to mind—not all of them necessarily detrimental to the defendant. The temptation to speculate must, in my judgment, be firmly resisted. I am not prepared to infer from the defendant's inactivity and from his decision not to participate in these proceedings that, as Mr Russell would have it, he has something discreditable to hide, let alone that what he is seeking to conceal by his silence is guilt of undue influence.”[7]I also note that the position of counsel in a case of this kind is not an easy one. They are not subject to the duty if full and frank disclosure that would normally apply in an ex parte hearing, and must argue their client’s case to best effect. They are, however, bound by their duty to the court to raise issues of which the court should be made aware. The judge must therefore to some extent put himself into the position of counsel for the debarred party, seeking to raise in his own mind the points which might be made in response to the challenge made, and identifying how the available evidence supports or refutes those points. This approach – which would be second nature to a judge in the civil law tradition – requires some mental effort from an English judge. I am very grateful to Ms Wagjiani for the way in which she conducted this case, in which she admirably discharged her duties to both her client and the court.[2]These Proceedings[8]The Deceased was married to Magnus Ugolor (whom she divorced in or around 1980) and they had seven children; the Claimants and the First Defendant, along with three other children who were given up for adoption in the late 1980s (“the Adopted Children”). The Deceased had no contact with the Adopted Children thereafter. The Second Defendant is the professional administrator pending suit appointed pursuant to section 117 of the Senior Courts Act 1981, by the order of Mr Peter Knox QC dated 19 March 2021.[9]By the Purported Will, the Deceased: i) Appointed the First Defendant as her executor and trustee (with her best friend Queen Udu as a replacement executor and trustee) (clause 2); ii) Subject to the payment of debts, funeral expenses and administration expenses she left all of her estate both real (41 St Donatts Road, London SE14 6NU) and personal to the First Defendant (clauses2.1 and2.2 ). iii) In the event that the First Defendant pre-deceased her, she left all her property to her friend Queen Udu granting “absolute discretion with what to do with the property.” iv) She then went on to make pecuniary legacies to her sister Ruth Odegwa (£15,000), her friend Queen Udu (£10,000) and £5,000 to each of her granddaughters Abigail Nadi and Rebecca Ugolor (clause 4). v) She provided for the sum of £100,000 to be held in trust for the Adopted Children in equal shares absolutely, along with a direction that “all efforts shall be made by my trustee to locate and deliver this benefit to the aforementioned. My trustee must seek the appropriate legal assistance to achieve this aim.” (clause 5). vi) She left all her personal chattels not specifically bequeathed to Cameron Matthew (Eseh) Ugolor “as Trustees and as beneficial legatees [sic]” (clause 6).[10]The drafting of the Purported Will is such that, if it were upheld, there would be some significant issues as to its construction. However, those issues are not raised in these proceedings.[11]The Purported Will is the only will made by the Deceased, so that, if the court pronounces against the Purported Will, the estate falls to be distributed in accordance with the intestacy rules. In those circumstances, the Claimants and the First Defendant will be the beneficiaries of the Deceased’s estate (the Adopted Children having lost any entitlement upon their adoption away from the family).[12]The principal asset in the Deceased’s estate is the proceeds of sale arising from the sale of her property located at 41 Donatts Road, London, SE14 6NU (“the Property”). The net proceeds are in the sum of £434,265.93, and are currently being held in the client account of Mitchells Solicitors (by the Second Defendant). The Deceased is also thought to own at least one property in Nigeria.[13]The Deceased died on 21 March 2020.[14]On 30 April 2020, the Claimants obtained a proprietary injunction and freezing order against the First Defendant. This order was extended by a further order dated 12 May 2020.[15]On 4 May 2020, the Claimants issued a claim in the Business List of the Chancery Division seeking declarations in relation to various properties owned by the First Defendant. At that stage, the Claimants were not aware of the existence of the Purported Will.[16]On or around 18 May 2020, the First Defendant disclosed a copy of the Purported Will annexed to an unsigned witness statement. This was the first time that the Claimants became aware of the existence of the Purported Will.[17]By order of 19 May 2020, the proprietary and freezing parts of the orders of 30 April 2020 and 12 May 2020 were discharged upon the First Defendant making various undertakings to the court. The First Defendant was ordered to provide evidence of his assets and copies of all bank statements for the period 1 January 2016 to 19 May 2020.[18]The Claimants, having been told about the Purported Will, applied for permission to amend their claim form and particulars of claim to advance a claim to challenge the validity of the Purported Will (“the Amended Claim”). Permission was granted by Mr Justice Roth by order dated 19 November 2020.[19]Notwithstanding the entry of a caveat, the First Defendant applied to obtain a grant of probate in the Deceased’s estate, which was issued to him out of the Principal Registry of the Family Division on 12 December 2020. It later transpired through correspondence with the probate registry that the First Defendant had represented to the probate registry that he had served a warning on the First Claimant by second class post, which the First Claimant contends was never received. The grant of probate was revoked when the Second Defendant was appointed as administrator pending suit. A grant of letters of administration has not been obtained by the Second Defendant.[20]The amended claim form and amended particulars of claim were filed and served on 23 December 2020.[21]Further applications were made between 3 December 2020 and 19 March 2021.[22]By order dated 19 March 2021, upon the Claimants’ application, Mr Peter Knox QC appointed the Second Defendant (a solicitor) pursuant to section 117 of the Senior Courts Act 1981 as the administrator of the Deceased’s estate pending suit.[23]The First Defendant made three applications for relief from sanctions for having failed to file and serve a defence and counterclaim. These were on 15 June 2021, 19 January 2023 and 23 September 2025. Relief was granted subject to specific conditions with which the First Defendant failed to comply. He has also failed to provide in sufficient detail the information required by the order of 19 March 2021.[24]According to the court file, the Defendant filed a Defence and Counterclaim on 19 January 2023, however, the deadline for filing was 4pm 9 December 2022.[25]At a hearing on 22 September 2025 which the First Defendant did not attend, Master Teverson refused the First Defendant’s application for an extension of time to comply with paragraph 1 of the 10 June 2025 order, and debarred him from defending the claim. The Master ordered that the trial take place on the basis of the written evidence, and gave permission for the Claimants to rely on expert evidence in the field of Old Age Psychiatry.[26]On 19 December 2025, the Claimants’ solicitors filed a pre-trial check list and trial timetable.[3]The Missing Beneficiaries[27]The Adopted Children are the beneficiaries named in clause 5 in the Purported Will. They have not been served with the Amended Claim documents because, despite the Claimants’ best efforts, they cannot be located. The Adopted Children have had no contact with the Deceased or the family since their adoption in the 1980s, and it has proven impossible to locate them. By CPR 19.13 a judgment made in these proceedings would not bind the Adopted Children unless they were given the opportunity to become parties or unless a representation order were made under CPR 19.9.[28]Mr Chapman, the Claimants' solicitor has set out in his sixth Witness Statement the position as regards these beneficiaries. He says that, having unsuccessfully pressed the First Defendant as executor to trace these beneficiaries, he did so himself on behalf of the Administrator Pending Suit. He sets out the steps which he took in this regard, which included instructing a firm of tracing agents. All of these steps were unsuccessful. I also note Susan’s evidence that she and her father sought to establish contact with the Adopted Children in the early 2000s, and were told at that time by a Lambeth social worker that the children had stated, when adults, that they did not wish to re-establish contact with their birth family.[29]Since the claimants seek to have the Purported Will set aside, it follows that if they are successful the Adopted Children will have no claim on the estate. The issue of the position of these children will therefore only arise if the Purported Will is held to be invalid. In this situation the Claimants (one or more of whom intend to obtain a grant of letters of administration) have undertaken, if I am to find that the Purported Will is invalid, that they will take out missing beneficiary insurance for the protection of the estate, and quotes for such a policy have been obtained. They point out that this cost would be considerably less than the costs which would be incurred if the estate were required to appoint separate representatives for these potential beneficiaries.[4]The Evidence[30]This enquiry is conducted entirely on paper, without the benefit of cross-examination of witnesses. For the Claimants, I have witness statements from the First, Second and Third Claimants (who I will call “Susan” “Udu” and “Barbara”) along with statements from Christiana Ugolor, the wife of Udu (“Christiana”) and Oyibo Jatse Iwheta (“John”), a cousin of the Deceased’s former husband and a close friend of the family. I also have an experts report provided by Dr. Kathy Liu, instructed by the Claimants. For the Defendant, I have Witness Statements from the First Defendant, who I will call “Cameron”, although he is also referred to in a number of the Witness Statements by his birth name Glenroy. There are also, of course, a large number of Witness Statements from solicitors.[31]I note two witnesses in particular who have not provided any evidence – Mr Shofolahan and Mr Edgal, the witnesses to the Purported Will. The Claimants’ solicitors have written to both of them asking them to give evidence. Mr Edgal did not rely. Mr Shofolahan did, to the effect that he had been “advised not to discuss this matter with anybody especially those that are querying the will”.[5]The Facts[32]Magnus Ugolor and Pamela Festous, the Deceased, were married in the 1960s. They had seven children. The family home was the |Property – then a council house. They divorced in 1980. At that time the children seem to have been removed into care. Three of them were given up for adoption, but the others remained in contact with their parents. In 2004 the deceased exercised her right to buy the Property – a transaction which it seems to be agreed was arranged and funded by Cameron.[33]The evidence of the conduct of the Deceased during the children’s childhood is fully considered in the expert’s report, and I do not propose to repeat it here. It suggests that for the whole of the children’s upbringing the Deceased’s behaviour went well beyond mere eccentricity, and involved physical (and possibly mental) harm to the children. This is presumably the reason why they were removed by social services. Susan’s observation that the Deceased “tortured” her children may be an exaggeration, but it is clear that relations between mother and children were a very long way outside expected social parameters. Cameron’s evidence is that, as a result of this, the other children “hated” the deceased and wanted nothing to do with her. Their evidence is somewhat different.[34]Susan’s evidence is that she had a good relationship with her mother and saw her from time to time. She also says that her mother visited her brother Udu and his wife Christiana in Nigeria on a number of occasions between 2008 and her death in 2020. Both she and Christina say that the Deceased and Christiana were in regular telephone contact. Both Susan’s and Cameron’s evidence was that Barbara’s relationship with the Deceased was not as good as that of the other siblings, but Barbara’s evidence was that she visited her mother regularly in later life.[35]There is a degree of dispute about where the Deceased lived at different times of her life. It seems that shortly after completing the purchase of the Property in 2004 she moved (or was moved) out of it, and thereafter it was rented out – eventually as a House in Multiple Occupation. All of the Claimants give evidence that the Deceased was unhappy about this, and regularly complained about having been made to move out of what she perceived as the family home.[36]Susan’s evidence was that the Deceased also owned (and was aware that she owned) a property in Nigeria at 73 Ben Heritage Close in Lagos, which she had acquired some time before 2008.[37]Cameron’s evidence as to this period paints a somewhat different picture. He was removed from his mother and placed in a state boarding school at an early age. When he turned 15 (in 1985) he moved in with Magnus, his father to his council flat at 19 Breadgar house. However, his relationship with his father broke down, and he spent some time living with this mother at the Property. In 1988 he was given a council flat (82A Culverley Road) which he subsequently purchased.[38]Cameron’s evidence is that by the early 2000s the Deceased was living alone in the Property, a 5 bedroom house. He therefore asked his sister to take her in and, when this request was refused, moved her out of the house to another flat in order to be able to rent out the Property. He says that the Deceased was “comfortable” on the benefits which she received, the implication being that he did not account to her for the rent that he accepts that he received – indeed his evidence is that he had an arrangement with the Deceased whereby he could keep the rent received for himself. No other evidence of any such arrangement exists.[39]One of the more difficult questions here is as to the relationship between the siblings in the period after 2000. Cameron’s evidence is that the relationship between Susan and her mother was “angry, confrontational and negative”, because of “the punishments she faced as a child”. Susan acknowledges that during this period she was “estranged” from her mother, although she does not specify when this was. I find this entirely plausible.[40]It seems clear that for most of the period from the early 2000s onwards Cameron was his mother’s primary carer. For the early part of that period she seems to have been relatively independent, but her dependency clearly increased as her physical and mental health deteriorated. I do not see any necessary contradiction between the proposition put forward by John – that he was “milking” her financially – and his own perception that he was simply taking care of her.[41]In 2016 Cameron was made bankrupt (under the name Eseh Glenroy Ugolor). This appears to have placed him in severe financial difficulty. At this point he seems to have asked his sister Susan, his father Magnus and his mother to charge their properties in order to secure borrowings on his behalf.[42]The responses to this request varied. Susan simply refused. The position of his father Magnus is more interesting. Cameron’s version of the position as regards his father is that from 2000 onwards he had provided his father with money on a regular basis because of his financial improvidence and inability to support himself. Cameron clearly had an ulterior motive for this support, in that he wished to preserve the position of his fathers’ council flat, 19 Breadgar House, which was threatened with possession proceedings. In 2004 he arranged for his father to exercise a right to buy by lending him sufficient money to enable him to obtain a mortgage for the balance. His father’s improvidence continued, and he was forced to lend him money to pay the mortgage instalments. In 2016 Cameron seems to have brought pressure to bear on his father to charge his flat and to move out of it in order to enable Cameron to let it. Magnus – who was at this time gravely ill - responded by involving John, giving him a Power of Attorney in 2016 to help him resist Cameron’s taking out a charge on his flat or removing him from it. John was successful in this endeavour.[43]Cameron therefore sought to borrow money secured by a charge on the Property. This charge was effected in January 2017, and approximately £93,000 was raised on it (after the repayment of two existing mortgages). It appears that the net proceeds of the loan were paid to the Deceased and then withdrawn from her bank account over time by Cameron.[44]On 18 September 2017 the Deceased had a stroke, and was taken to hospital. On 21 November 2017 she was transferred from hospital to the Westgate Nursing Home. Her GP and medical records seem to show that(a) in 2008 there are no very unusual issues(b) by 2016 she is recorded as being “very difficult to understand”, and explaining to the nurse who saw her that people are coming inside her house trying to kill her, and she is recorded as having late onset psychosis (as well as a number of other physical ailments) as well as paranoid schizophrenia, and(c) after her stroke in 2017 she was almost completely unable to communicate with her doctors.[45]Magnus died in 2017. Shortly after his death, Cameron produced what he alleged to be a will executed by Magnus naming him a sole beneficiary. However in 2019 the court granted letters of administration to Magnus’ surviving wife Veronica on the basis that he had died intestate. The reason for this seems to have been that the purported will (dated 2002) purported to dispose of a property which Magnus did not acquire until 2004.[46]The Deceased remained in the nursing home until her death on 21 March 2020.[6]The state of relations between the Deceased and the siblings[47]Barbara says that she discussed issues of inheritance with the Deceased at some time between 2020 and her death, and she expressed the view that all of her children should benefit equally from her estate. However, it is clear that the question that I have to answer is not as to what the Deceased’s state of mind would have been at the time of her death, but what it would have been at the date of the Purported Will.[48]Christiana’s evidence is that she accommodated the Deceased when she visited Nigeria, that she had a good relationship with her, and that she spoke to her frequently on the telephone. Her evidence was that the Deceased regularly complained that “Glenroy had deceived her” by moving her out of “her house” - i.e. the Property.[49]John’s evidence is as follows. He says that he has known the family since birth, and that he was close to Magnus for the whole of his life. John also confirms that, although the Deceased clearly reposed great trust and confidence in her friend Queen Udu, and gave her her most important documents (including her passport) for safekeeping, she never even mentioned to her that she had a will. John’s testimony is that he visited the Deceased several times with Susan and Barbara between 2017 and 2020, and that relations between the deceased and the children were affectionate.[50]Udo’s evidence largely supports that of the other siblings. In particular, he says (consistently with the statements of his sisters) that in Nigerian families the almost invariable custom is for a parent’s property to be divided on death between the children.[51]It is clear that Cameron was solely responsible for the Deceased's care from at least the moment when she moved out of the Property. He clearly regarded his relationship with both of his parents as to some extent financial and transactional. He says “the financial assistance given by me was the only way they gained property assets in their names I paid for and organised both purchases. My siblings took no part in ensuring their well-being or assisting them in any way shape or form in buying and acquiring those properties. They made no financial contributions and they had no knowledge of how my parents bought the properties. They did not care”[52]Cameron’s position is that he was the person providing day-to-day care for the Deceased for many years. Udu’s evidence is that this is because he “milked” her as a source of revenue. I am sure that both of these are true.[7]The Date of the Purported Will[53]In considering the three challenges to the Purported Will put forward by the Claimants, it is important to establish when the Purported Will was actually executed. This is a critical question for a number of reasons. The first is that, if the Purported Will was dated at a date other than on which it was actually executed, that in itself raises suspicion as to the validity of the execution. The second is that the Deceased’s mental capacity clearly deteriorated over time, and the later the will the greater the risk of lack of capacity or undue influence.[54]There are three items of evidence which I think are material here. The first is the address given for the Deceased in the Purported Will. The second is the use of the name “Cameron”. The third is the question of when Cameron might have focused on the need to regularise his control of the Property.[55]The strongest point here is the address given for the testator. John’s evidence is clear that the Deceased was not living at 1A Silver Street on the date in 2008, and that she actually moved to that address after 2014. Susan’s evidence is that between 2005 and 2012 the Deceased was in fact living with Cameron at 82A Calverley Road, Catford, and that this was the address at which Udu met her on his visits to London in 2005, 2006, 2007 and 2012. She also points out that arrangements which the Deceased is known to have made (for example the air ticket to Nigeria which she purchased in 2008) were made with suppliers who were local to 82A Calverley Road. Cameron’s evidence was that from the early 2000s she stayed at 82A Calverley Road, and had her benefits and other correspondence sent there, but that she also stayed at 1A Silverland St. Canning Town. However, he provides no explanation as to why she would have done so, or why he would have forgone rent on an investment property in order to accommodate her there when she had accommodation in Calverley Road.[56]As regards the name of the beneficiary, all of the witnesses are clear that the Deceased never referred to Cameron as anything other than Glenroy or Eseh. Cameron’s evidence is that he changed his name in 2003, but that is not accepted by any of the other witnesses. Susan’s evidence is that he operated under different names at different times. He was known within the family as “Glenroy”, but he told Susan in 2016 that he was now calling himself Cameron Matthew Ugolor. This may have been related to the fact that in 2016 he was made bankrupt under the name Eseh Glenroy Ugolor. It seems that he has used other names again in other transactions – a property which he owns is registered to him as proprietor at the Land Registry under the name “Eseh Isaacs”. She says that the only names which her mother used for him were “Glenroy” or “Nduka”.[57]I do not believe that the Deceased had any hand in the drafting of the Purported Will, and I think it is clear that the document produced must have been produced by Cameron – the more so as he was apparently at the time holding himself out to be legally qualified. I can entirely understand why he might choose to refer to himself, in a draft created by him, by his newly-adopted name. However, it seems to me to be clear that he started using the name Cameron no earlier than 2016.[58]I think these two points together dispose of the possibility that the Purported Will was in fact created or executed in 2008. This raises the question of when the Purported Will was in fact executed.[59]As regards timing, it seems that Cameron’s bankruptcy in 2016 focused his mind on the issue of inheritance. To be fair to him, that is not unreasonable – I suspect that his view was that he had arranged and financed the purchase of both his mother’s and his father’s flat, thereby securing for them a substantial capital gain, and that he needed to take steps to ensure that that capital gain came to him. It was shortly after this that he created a will for his father (although this will was not admitted to probate), and I think it would be surprising if he had not thought to produce a will for his mother at the same time. If the Purported Will was not produced in 2008 – as I am satisfied it was not – then the most likely time for it to have been created is therefore somewhere after 2016. I also note that it would have been extremely difficult for him to have got his mother to do anything after her stroke in September 2017. I am therefore satisfied that the Purported Will was created sometime in 2017, and that the reticence of the witnesses to the Purported Will to give evidence in respect to it goes to their unwillingness to attest to the date.[60]An incorrect date on a will does not invalidate it, and a will which is correctly executed but deliberately misdated is prima facie valid. The refusal of the witnesses to assist the court does not therefore go to the validity of the Purported Will, but is evidence to be taken into consideration as regards the question of when the Purported Will was actually executed. The Claimants accept that they have no evidence that would support a claim that the Purported Will was not validly executed and witnessed. Consequently I find that, even if the Purported Will is misdated, its formal validity must be treated as established.[8]Lack of testamentary capacity[61]The test for testamentary capacity is well settled. The principles are set out in Banks v Goodfellow (1870) LR 5 QB 549 in the passage at 565:
“It is essential to the exercise of such a power that a testator shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
[62]The Banks v Goodfellow test has not been displaced by the Mental Capacity Act 2005.[63]In Burns v Burns [2016] EWCA Civ 37, the trial judge sought to paraphrase the Banks v Goodfellow test in modern language. That formulation was accepted on appeal as sufficiently representing the law:
“the testator must: (a) Understand that he is giving his property to one or more objects of his regard; (b) Understand and recollect the extent of his property; (c) Understand the nature and extent of the claims upon him, both of those whom he is including in his will and those whom he is excluding from his will; (d) Ensure 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.”
[64]The rules as to the burden of proof in relation to testamentary capacity are set out by Briggs J (as he then was) in Re Key (deceased) [2010] EWHC 408 (Ch) at [97] (with reference to Ledger v Wootton [2007] EWHC 2599 (Ch)):
“(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 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.”
[65]If the terms of a will are inexplicable or irrational, it is likely that there will be a “serious doubt as to capacity” (see: Hughes v Pritchard [2022] Ch 339 (CA) at [95] and [101]). 8.1. The Deceased’s Mental health[66]The First Claimant’s evidence is that throughout her childhood, the Deceased showed symptoms of paranoia and delusional thinking. All seven children were removed from the Deceased’s care at one time or another owing to neglect or bad behaviour by the Deceased. In addition, the Deceased’s medical records show an early diagnosis of anxiety with depression in 2000.[67]The Claimants rely upon the expert report prepared by Dr Kathy Liu dated 2 January 2026 (inadvertently dated 2 January 2025). Dr Liu’s evidence, which is (necessarily) unchallenged, is that by 2016 the Deceased suffered from late-onset psychotic disorder, most likely a very-late onset schizophrenia-like psychosis. She opines that the Deceased exhibited longstanding paranoia personality features, which later developed into a psychotic disorder.[68]The two aspects of the Banks v Goodfellow test to which Dr Liu’s expertise is relevant are the first and fourth. As regards the first, understanding the nature of a will and its effects, her report recites a number of curious attributes of the Deceased, including a strong belief in witches and evil spirits. The possession of unusual religious beliefs is not of itself indicative of mental infirmity. However, these beliefs were accompanied by a sufficiently large number of unusual behaviours to enable Dr. Liu to conclude that in 2008 she was possibly suffering from very late-onset schizophrenia-like psychosis, and that by 2016 this had developed to late-onset psychotic disorder against a background of paranoid personality features.[69]Dr Liu’s conclusion was that these conditions would not, of themselves, have necessarily rendered her unable to understand what the making of a will involved. My reading of her report is that she believes that the Deceased probably did have full testamentary capacity in 2008. However, by 2016 she was in a much worse way, and the position seems to have been more nuanced. Her conclusion is as follows “While it is theoretically possible that delusional beliefs or mild executive deficits could have interfered with her understanding or reasoning and thereby affected her testamentary capacity, I did not identify clear evidence in the records available to me that such factors were operative at this time”[70]As regards the fourth limb of the Banks v Goodfellow test, the presence or otherwise of an “insane delusion”, Dr Liu concluded that there was no evidence that the Deceased’s late-onset psychotic disorder involved delusional beliefs capable of explaining her failure to appreciate the relevant moral claims. Dr Liu therefore considered that the fourth limb was likely not satisfied. I should say that I think this conclusion is justified. It is clear that the Deceased did suffer from “delusions” in the conventional sense of the word – specifically that her daughter was a witch and that she and her family were being poisoned by persons unknown – but these delusions do not go to testamentary capacity. It is interesting to note that this was the position which pertained in Banks v Goodfellow itself. In that case the testator was convinced that he was being pursued and molested by devils or evil spirits, but it was held that these delusions were not capable of having any influence on his capacity to make a will.[71]The claimants say that the Purported Will fails the second and third tests in Banks v Goodfellow. As regards the second – appreciation of the full extent of her property – they say that the fact that the Purported Will makes no mention of the property which the Claimants say that she owned in Nigeria. The evidence as to the Deceased’s property or properties in Nigeria is incomplete. The Claimants contend that the Deceased owned No. 73 Ben Heritage Close long before 2008. However, they have obtained evidence that the Deceased appears to have purchased No. 7 Ben Heritage Close in February 2010. However there is no direct evidence as to what Nigerian property the Deceased may have owned either in 2016 or thereafter.[72]I do not think that the mere omission of the Nigerian property, even if it could be shown that it clearly was owned at the relevant time, would be sufficient to show that the Deceased did not appreciate the full extent of her property. Merely forgetting about a particular asset is not, of itself, proof of lack of capacity, particularly where the asset was of no great value (the recorded purchase price of No 7 Ben Heritage Close was, in 2010, equivalent to around £12,500). The Purported Will shows on its face that she must have been aware that her primary asset was the Property. Consequently, I do not regard this omission as sufficiently serious as to cast doubt on the Deceased’s testamentary capacity.[73]As regards the third limb of the Banks v Goodfellow test - understanding the nature and extent of the claims upon the testator, both of those whom he is including in his will and those whom he is excluding from it - the Claimants say that the Purported Will represents a radical departure from the Deceased’s expressed and settled testamentary intentions. In this regard they say that: i) The Deceased had expressed a positive desire to die intestate. ii) Having never taken any interest in the Adopted Children, the bequest to them of £100,000 (a substantial sum in the context of the estate) is incomprehensible. iii) The provision for her sister, Ruth Odegwa, is surprising given that their relationship was poor. iv) The exclusion of three out of four children with whom the Deceased did maintain a good relationship is inexplicable, especially in the context of what they say was her expressed view to them that she wished for her estate to be divided equally between her four children.[74]In this regard they rely specifically on the dicta of Asplin LJ in Hughes v Pritchard [2022] Ch 339 (CA) in which she observed that the existence of inexplicable or irrational provisions in a will is likely to “raise serious doubt as to capacity.”[75]My starting point here is to ask whether, in all the circumstances, the provisions of the Purported Will are not merely surprising but inexplicable. They are not. It is entirely understandable that a testator may wish to confer benefits on those who they perceive as blood relatives, regardless of the state of relations between them at the date of the will. Equally, as these courts are well aware, there is nothing inexplicable about a testator expressing one set of wishes orally and a very different set in his will. I agree that these provisions are surprising, but I can see nothing in them that is so inexplicable as to justify a conclusion that the Deceased must have lacked testamentary capacity.[76]Finally, the Claimants point out that once a serious doubt as to capacity has been raised, the evidential burden of proof shifts onto the First Defendant to prove capacity. Since the First Defendant has been debarred from defending this claim, he is by definition unable to discharge this evidential burden. Consequently they say that all they have to do to is to establish a serious doubt as to capacity in order to succeed before me. Even if this were correct, it is not relevant, since they have not succeeded in raising a serious doubt as to capacity.[9]Want of Knowledge and Approval[77]As regards knowledge and approval, the rule is that the testator must understand both that they are making a will and the content and broad effect of the will (this is the formulation produced by the Law Commission in their 2025 Report “Modernising Wills Law” which I - and the editors of Theobald on Wills (4-047) - think accurately summarises the existing common law position. Thus, in addition to having testamentary capacity, the testator must know and approve of the contents of the will.[78]It is important to emphasise that there is no necessary read-across from a finding of testamentary capacity to a finding of knowledge and approval. As Norris J. said in Wharton v Bancroft [2011] EWHC 3250 Ch (at [29]): “A challenge on the grounds of want of knowledge and approval is not precluded by the [Claimant’s] admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but need to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect: see Hoff v Atherton [2004] EWCA Civ 1554 at [64]."[79]The court in Re Key, summarising the principles set out in Fuller v Strum [2001] EWCA Civ 1879 held:
“i) “As with testamentary capacity, due execution of an apparently rational and fair will, will ordinarily satisfy the burden of proof on the propounder, unless there are circumstances which excite the suspicion of the court.” ii) In such a case, the propounder may be required affirmatively to prove knowledge and approval. This is an evidential rather than legal burden. iii) The standard of proof is, as is in all civil proceedings, that of the balance of probabilities. Nonetheless the task of satisfying that standard will generally vary in proportion to the degree of suspicion engendered by the circumstances.”
[80]Examples of circumstances which might excite the suspicion of the court include (non-exhaustively): where the will is prepared by a person who will benefit under the will (see: Fuller v Strum), whether the will differs significantly from previous wills and whether the will contains expressions or dispositions that are out of character. 9.1. Suspicion[81]The Purported Will is an unusual document – it gives the impression of having been cobbled together from one or more (extremely elderly) precedents, it is riddled with construction difficulties, and it purports to create a trust. I think the evidence enables me to draw at least the following conclusions. First, and most obviously, it was not created by anyone legally qualified. Second, it was not created by the Deceased herself – the form of the drafting would have been utterly alien to her. Third, it was not created (as the First Defendant suggests) by her with the assistance of the staff at an internet cafe. Fourth, it was created for her by a third party and presented to her to sign – possibly along with some verbal description of its contents, possibly not. Fifth, it seems overwhelmingly likely that the person who created it and presented it to her was Cameron – if only because of the complete absence of any suggestion (from Cameron or anyone else) that anyone else had access to the deceased.[82]If this is correct, then the position is that Cameron, as beneficiary, created the Purported Will which made him a beneficiary and presented it to the Deceased to sign. I emphasise that there is nothing in that fact pattern which would necessarily invalidate the Purported Will. However, as Viscount Simons said in Wintle v Nye [1959] 1 WLR 284 “It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the Court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”[83]I think the facts of this case are such that at least a suspicion has been created. 9.2. The Burden of Proof[84]A further issue arises as to who is required to prove what. Prior to the decision of the Court of Appeal in Gill v Woodall [2010] EWCA Civ 1430, the conventional test applied in matters of this kind was as described by Lord Neuberger MR (at paragraph [21]):
"21. The judge approached the issue of knowledge and approval on a two stage basis. He first asked whether Dr Gill had established sufficient facts "to excite the suspicion of the court", which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the will. This approach accords with Parke B's analysis in Barry v Butlin 2 Moo PC 480, quoted by Lindley LJ in Terry v Painton [1894] P 151, 156–157, referred to above, and it is reflected in the approach in a number of other cases."
[85]However, it was clear from Lord Neuberger’s judgment (at [22]) that he favoured instead a single stage approach:
"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 Re Crerar (unreported) but see (1956) 106 LJ 684, 695, cited and followed by Latey J. in In re Morris, decd [1971] P 62, 78 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."" "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.""
[86]In Re Butcher [2015] EWHC 1240 (Ch), Lesley Anderson QC said (at [14]) that: “I am satisfied that in the light of these authorities that: 14.1. The correct approach in the first instance is to apply the single stage test which requires me to ask did Mr Butcher understand(a) what was in the 2013 Will when he signed it and(b) what its effect would be? 14.2. The two stage test can usefully be deployed as a cross-check to the conclusions reached using the single stage test; 14.3. As noted by Lord Neuberger in Gill at [23] whether one approaches the issue using the single question, which he thought preferable, or the two stage approach, the answer should be the same. I think that this correctly summarises the position.[87]My conclusion from this is that it is not sufficient for the Claimants simply to say “we have raised a suspicion, therefore we win”. I am required to decide whether the suspicion raised is sufficiently plausible to be the basis of a determination as to the validity of the Purported Will.[88]The Claimants challenge the Purported Will on the basis that the testator did not know and approve of its contents, and submit that there are a number of facts and circumstances that ought to “excite the suspicion of the court”. The grounds which I consider relevant are: i) The Deceased did not have any typing skills, nor did she have a computer. More importantly, the Purported Will is composed of complex legal terminology which she is most unlikely to have used herself. It is therefore reasonable to infer that the Purported Will was prepared for her. It seems very likely that the preparer was the First Defendant, and he does not suggest otherwise in his witness statement. ii) The Purported Will makes provision of a substantial sum for three children with whom the Deceased had had no contact for approximately two decades following their adoption, and with whom she had shown no interest in rebuilding a relationship. iii) Susan says that the First Defendant previously sought to create a will in the name of his father, Magnus. This document purported to dispose of property not owned by Magnus at the relevant time, and was not admitted to probate. While this evidence does not directly concern the preparation of the Purported Will, I am invited to find that this fact supports an adverse inference as to the First Defendant’s credibility and conduct.[89]I should note that the Claimants urged on me the further ground that the Deceased repeatedly expressed to them an intention that her estate should be divided between her children equally. Both the date and the substance of these expressions of intent are obscure. However, it seems entirely clear to me that the Deceased was well aware of the existence and identity of her other children. It is said that if the Deceased had intended to disinherit three of her four children, she might be expected to have provided some explanation. However, the mere fact that a testator acts capriciously is not per se evidence of lack of knowledge and approval. Possibly more importantly, it clearly is the case that Cameron had assumed responsibility for the care of the Deceased for an extended period, and that she relied on him to a great extent in her daily life. In such circumstances, I do not think that the mere exclusion of the other siblings is per se a ground for suspicion.[90]However, I think that the other grounds put forward do give rise to a reasonable suspicion. The fact that Cameron sought to obtain probate when he knew that a challenge to the will was outstanding is surprising; the fact that the Deceased was disinheriting the children she had raised but was leaving a substantial legacy to those with whom she had had no knowledge of for many decades is surprising, and the fact of Cameron’s forging of Magnus’ will cannot be disregarded. The Court’s suspicions are therefore excited.[91]It is difficult to disagree with the view of Prof. Kerridge expressed in Parry & Kerridge; The Law of Succession (13th ed. 2016 at 5-57) that it is something of a nonsense to describe a situation as suspicious in the abstract – if the court considers a will to be suspicious, it must specify what it is that is suspected. In this case, the suspicion that is raised is that Cameron may have presented a highly technical document to the Deceased and simply asked her to sign it on the basis of assurances that it gave effect to her wishes – which, ex hypothesi in this scenario, it did not.[92]This potentially conflates capacity, knowledge and approval and undue influence. However, as Scarman J said in In The Estate of Fuld [1968] P. 675 at 722. “Lord Penzance once said that of the issues of testamentary capacity, knowledge and approval, undue influence and fraud, that they very often merged into one another. That position has been made abundantly clear by the decision of the House of Lords in Wintle v Nye”.[93]I think the most important fact here is that the will itself is a somewhat confused document. If – as seems most probable – it was produced by Cameron and provided to the Deceased to sign, it seems unlikely that she would easily have understood (even had she been able to read it, which the Claimants dispute, given the size of the typeface and the state of her eyesight). It may be said that the language designating Cameron as sole heir is clear and unambiguous. However, it is equally clear that the Purported Will does not deal with other assets which the Deceased had (notably the property in Nigeria). This is an area where the doubts raised would be immediately dispelled if there were any evidence that the terms of the Purported Will had been explained by an independent solicitor. However, that is not this case. The suspicion therefore persists.[94]Once the suspicion has been squarely raised – as it is here – it is reasonable to reintroduce the fact of the disinheritance of all but one of the siblings. The knowledge and approval test requires that a testator to be able to appreciate the claims not only of beneficiaries who are included in the will, but also those who are to be excluded (Harwood v Baker (1840) 3 Moo. P.C. 282 at 291, cited with approval in Banks v Goodfellow at [152(h)]). It seems clear from the evidence that the Deceased had a continuing relationship with each of the Claimants in the period (around 2016-17) when I find that the Purported Will was in fact executed. Cameron’s evidence is that the relationship between the Deceased and Susan and Barbara was at that time angry and confrontational – although they dispute that. It is also said in the Claimants’ witness statements that the Deceased had expressed the view that her estate should be equally distributed amongst the family, and this is not disputed. Finally, I note that the Deceased gave legacies to connections – notably her friend Queen Udu. It seems to me to be prima facie unlikely for her to have left legacies to her friends but none to her children in normal circumstances.[95]This takes me back to the Deceased’s mental state. It is clear from her medical records that by 2016 she was suffering from relatively severe mental disturbance. I entirely accept that paranoid schizophrenia is not – per se – proof of mental incapacity. I also accept that if, as a result of a mental illness of this kind, a testator forms a fixed intention to disinherit a particular person, that intention cannot be challenged either on the grounds of capacity or of knowledge and intention. A competent testator who knows his own mind and is not subject to coercion is free to leave his property as he wishes, no matter how unconventional those wishes may appear to others. However, the more unconventional the wishes, and the more surprising the outcome, the more the court is required to ask whether the outcome is really what the testator intended.[96]In this case, I think there is sufficient doubt on this point to cause me to conclude that the Purported Will does not represent the true intent of the testator. It is unquestionable that at the time of execution she was seriously mentally unwell. It is also clearly true that the Purported Will document was prepared by someone who was not a professional adviser of any kind and presented to her for signature. It is highly likely that the person who prepared the Purported Will was its beneficiary. It is said that at the time the Deceased would not have been able to read a document of this kind due to weak eyesight. The question that I have to ask is whether, in all the circumstances, I can conclude that it is more likely than not that the Deceased understood and intended that the effect of her signing the document would be to disinherit all of her children with whom she had a connection bar one, and to leave a substantial legacy to those with whom she had no connection. This seems to me to be sufficiently improbable that the suspicions raised are not allayed by the evidence provided by the person propounding the will. I therefore believe that on balance the knowledge and approval of the Deceased of the contents of the Purported Will cannot be established. I therefore reject the validity of the Purported Will on this basis.[10]Undue Influence[97]Since I have reached the conclusion that the Purported Will cannot be admitted to probate on the grounds of want of knowledge and approval, the argument as to whether it was procured by undue influence technically does not arise. However, since I heard argument on it, I address it here.[98]As a preliminary point, the law on undue influence in probate proceedings is somewhat different from the ordinary law. In particular, the probate jurisdiction does not recognise presumptions of undue influence arising from certain types of relationship between parties. In probate proceedings, undue influence must be proved in full without the benefit of presumptions.[99]The law relating to undue influence in the context of wills is well established. In Re Edwards [2007] EWHC 1119 (Ch), Lewison J (as he then was) summarised the law at [47] as follows:
“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.”
[100]In Rea v Rea [2024] EWCA Civ 169, the Court of Appeal reconsidered principle (iii) from Re Edwards, and held that:
“32. … 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.”
[101]The court is therefore required to find that undue influence is more probable than any other hypothesis, which reflects the ordinary civil standard of proof: the balance of probabilities.[102]In Wharton v Bancroft [2011] EWHC 3250 (Ch) at [30], the court observed that the dividing line between legitimate persuasion and impermissible coercion will be drawn depending “in part on the physical and mental strength of the testator at the time when the instructions are given”. Accordingly, it may be easier to conclude that persuasion crossed the line into coercion where the testator was weak or vulnerable.[103]Finally, in Schrader v Schrader [2013] EWHC 466 (Ch) at [96], the court emphasised that undue influence often occurs behind closed doors and the court therefore may draw inferences from the circumstantial evidence.[104]In this regard the Claimants argue that the Purported Will was procured by undue influence exerted by the First Defendant. The facts which the Claimants rely on in order to establish undue influence are that i) The First Defendant was directly involved in the will-making process: ii) He retained the original of the Purported Will, and none of the Deceased’s other children (or wider family members or friends) were aware of its existence. He failed to inform his siblings of its execution. iii) He was the only child residing with the Deceased in March 2008, when the Purported Will is said to have been executed, and had effective control of her affairs in 2016 and 2017. The First Claimant describes him as “dominating” the Deceased. iv) He misrepresented to others, and it can be inferred therefore to the Deceased as well, that he was a qualified lawyer despite having worked in a law firm for a short time in a non-qualified capacity. v) The evidence suggests that the Deceased was dependent on the First Defendant who, having taken control of her house and financial affairs, provided her with housing. The Deceased also said by multiple witnesses to have complained about the First Defendant attempting to deceive her and removing her from the Property.[105]These grounds are not probative of undue influence. Undue influence in the probate context requires proof that the testator’s will was positively overborne, so as (as Sir J.P. Wild (later Lord Penzance) put it in Hall v Hall (1868) L.R. 1 P & D 481 at 482) “pressure of whatever character ... so exerted as to overpower the volition without convincing the judgment”. In order to find that this was the case, it would be necessary to find that the Deceased had a fixed intention to benefit all of her children which was simply overborne by the First Defendant. However it seems to me to be extremely unlikely that he would have been able to compel her to depart from that intention and to express a different intention – not least because, if he had, it seems vanishingly unlikely that the topic would not have come up at all in the regular conversations which the Claimants say that they had with her between the date of the Purported Will and the date of her death. In this regard, I also note that at the time of these conversations the Deceased was not living with Cameron, but was in a nursing home. It seems to me that, if the Deceased had been compelled to disinherit her daughters and one of her sons against her will in 2016 or 17, and was aware of the fact, it is unbelievable that she would never have mentioned the fact to them at any point thereafter – especially since they say that at that time she was happy to make other complaints to them about Cameron’s conduct.[106]The counterargument to this is that the Deceased was at all times both mentally ill and (from 2016 on) dependent on Cameron. However, this of itself is not enough. In Oliver v Oliver [2024] EWHC 2289(Ch) HHJ Paul Matthews found undue influence in a situation where the testator was so under the beneficiary’s thumb, and so in fear of the beneficiary leaving him that he could not have done otherwise than go along with the beneficiary’s wishes(at [128]). I do not think that an equivalent relationship between Cameron and the Deceased has been proved in this case. It is actual coercion which must be proved - it is not enough to show merely that there was an opportunity to coerce. However since undue influence is almost invariably exercised in secret, the true test is whether undue influence is the most likely hypothesis having regard to the inherent unlikelihood of someone coercing the testator.[107]This all seems to me to support the proposition that the Deceased did not, at that time, have any clear idea of what was in the document which she had signed.[11]The Constructive Trust Claim[108]The reason that it is necessary to consider the challenge to the validity of the Purported Will on the grounds of Undue Influence is that a separate case is made to the effect that, prior to the death of the Deceased, the First Respondent had contrived, through undue influence, to compel her to execute the charge over the Property which enabled the borrowing of the amounts which he subsequently withdrew from her account. The Claimants argue that upon receipt of those amounts he held them on constructive trust for the Deceased, and that he therefore now holds them on constructive trust for the estate.[109]This question requires a different analysis form that applied above. This is because, in the probate jurisdiction, there is no presumption of undue influence. Outside that jurisdiction, by contrast, equity presumes the existence of a relationship of trust and confidence in certain situations, and will therefore presume undue influence in those situations. As Lord Nicholls explained in Royal Bank of Scotland v Etridge (No. 2) [2002] 2 AC 773:
“The law has adopted a sternly protective attitude towards certain types of relationship in which one party acquires influence over another who is vulnerable and dependent and where, moreover, substantial gifts by the influenced or vulnerable person are not normally to be expected. Examples of relationships within this special class are parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical adviser and patient. In these cases the law presumes, irrebuttably, that one party had influence over the other. The complainant need not prove he actually reposed trust and confidence in the other party. It is sufficient for him to prove the existence of the type of relationship.”
[110]However, it is not the case that any transaction entered into by the vulnerable party in such a relationship is necessarily regarded as being the product of undue influence. As Lord Nicholls noted in Etridge (no. 2) (at [21]) “21. ...there are two prerequisites to the evidential shift in the burden of proof from the complainant to the other party. First, that the complainant reposed trust and confidence in the other party, or the other party acquired ascendancy over the complainant. Second, that the transaction is not readily explicable by the relationship of the parties. 22. Lindley LJ summarised this second prerequisite in the leading authority of Allcard v Skinner 36 ChD 145, where the donor parted with almost all her property. Lindley LJ pointed out that where a gift of a small amount is made to a person standing in a confidential relationship to the donor, some proof of the exercise of the influence of the donee must be given. The mere existence of the influence is not enough. He continued, at p 185 "But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift." In Bank of Montreal v Stuart [1911] AC 120,137 Lord Macnaghten used the phrase "immoderate and irrational" to describe this concept.”[111]It is this second prerequisite that creates difficulty in this case. The Claimants say that the making of a gift of some £90,000 by an impecunious widow must necessarily satisfy this condition. However, I think that this is very far from being unarguable. It is clear that the Deceased knew that she owned the Property, and it is the First Defendant’s own evidence that she knew that it was being rented out. She also must have known that the First Defendant was in severe financial difficulties. I have no difficulty with the idea that she might have agreed to a charge being taken out over the property to secure his borrowing provided that the charge was not excessive in amount, and that interest payments were more than covered by the rent received. I also note that the charge was executed 8 months before the Deceased had the stroke which could potentially have rendered her incapable of comprehending such an arrangement. The monthly interest payable to the lender was in fact slightly less than the monthly rent received, but there is nothing in the arrangement which takes it dramatically out of the realm of a transaction which a mother might reasonably have entered into to help a family member.[112]The Claimants point out that this is not in fact what happened. The First Defendant did not in fact make these payments, and a receiver was eventually appointed. This resulted in the estate becoming liable for significant further costs, as well as the return to the tenants of a deposit received from them which was retained by the First Defendant.[113]The problem I have here is that the First Defendant’s mismanagement of the Deceased’s assets during her life does not, without more, impose on him any obligation to make restitution to the estate unless it can be established that he owed her a fiduciary relationship (as, for example, as constructive trustee), in which case liability for the breach of that duty inures for the benefit of the estate. I am asked to find that such a duty arose pursuant to a remedial constructive trust imposed in consequence of his exercise of undue influence over the Deceased. On the evidence before me – which is nearly non-existent on this point – I am unable to conclude that such undue influence existed. Consequently I do not think that the First Defendant is liable to the estate for the mortgage arrears and receivership or other fees which it was required to pay in order to vindicate and sell the property.[114]There is one exception to this – the £2,600 paid to him as a deposit by the tenants of the property. He was under a contractual obligation to repay this money to the tenants at the end of the tenancy, and, since the estate has discharged that obligation on his behalf, he is obliged to account for that amount to the estate.[12]Conclusions[115]I find that although the balance of the Deceased’s mind was very seriously disturbed at the time when the Purported Will was executed, there is insufficient evidence for me to conclude that she did not have the necessary mental capacity to make a valid will. In this regard the expert evidence to the effect that the affliction from with she suffered would not of itself have deprived her of that capacity is the most significant piece of evidence.[116]I find that it is more likely than not that the Deceased did not have the necessary knowledge and approval of the Purported Will. The factual matrix which surrounds the making of the Purported Will raises a great deal of suspicion, and there is nothing in the evidence which allays that suspicion. If, as I have found, the First Defendant prepared the Purported Will himself and put it in front of the Deceased to sign, in circumstances where he was effectively the sole beneficiary, at a time when she was severely mentally ill, this would require convincing evidence to allay the suspicions of the Court. There is no such evidence.[117]I have also considered the allegations of undue influence. I think it is clear that the situation was one where it might well have been possible for undue influence to have been exerted. However, that is not enough – to find undue influence I would have to find some persuasive evidence of such influence being exerted. In this case there is none.[118]I find that there is insufficient evidence before me to permit me to conclude that, prior to the Deceased’s death, the First Defendant exercised undue influence over the Deceased, and that therefore amounts received by him from her property prior to her death were not held by him on constructive trust for her and therefore for the estate.[13]Remedies[119]The Claimants seek an order for an account of monies misappropriated by the First Defendant. The amounts concerned are as follows: i) The sum of £11,737.18 was transferred from the Deceased’s Barclays bank account (account number: 30068578) to the First Defendant (the Claimants contend by the First Defendant himself) on 25 February 2021. The Deceased died some 11 months earlier, and no explanation has been provided by the First Defendant for this withdrawal. The First Defendant (presumably) used the grant of probate to confirm his position as the named executor of the Purported Will to gain access to these funds and make the transfer to himself. He is therefore liable to account for this sum, along with an order for interest at the statutory rate to 16 February 2026. ii) The First Defendant also received rental monies from the Property. Given my findings on the constructive trust claim for pre-death liabilities set out above, I think the claim is exclusively for post-death rents. It is clear that the property was an asset of the estate, and it is clear that he should account to the estate for all amounts received in respect of it from the date of death onwards. The Claimants have produced a rental agreement dated 20 July 2020 which provides for a rental of £2,600 per calendar month. The Defendant has not produced any information as to the amount actually received (despite having been ordered to do so), and I am therefore prepared to assume against him that this amount was received for the whole of the relevant period. The First Defendant must therefore account for the sum of £2,600 per month for the period from the death of the Deceased in March 2020 to the date of sale of the property in September 2021 – a total of £46,800. This is of course in addition to repaying the £2,600 received as a deposit to the estate (which I note he was required to repay by an order of Deputy Master Dovar dated 19 October), for a total of £49,400 along with an order for interest at the statutory rate to 16 February 2026.[120]The Claimants seek an order that their costs of this claim (including their costs of interim hearings where costs have been reserved or not otherwise dealt with) be paid personally by the First Defendant on the indemnity basis pursuant to CPR 44.3(1)(b) and (3), subject to detailed assessment if not summarily assessed.[121]It is clear that the Claimants are entitled to their costs of this hearing, and that the liability for costs should be for the First Defendant rather than for the estate. The only remaining question is as to whether costs should be awarded on the indemnity basis.[122]The provisions of rule 44.3(4) of the CPR make clear that the court ought to take into account a number of factors when deciding what order to make about costs. These factors include the conduct of the parties, whether a party has been successful on part of their case (even if not wholly successful) and any settlement offers made.[123]In Excelsior Commercial and Industrial Holdings v Salisbury Hammer Aspden and Johnson (a firm) [2002] EWCA Civ 879 the court emphasised that there was “a wide and generous discretion” in making orders as to costs, but that there must be some conduct or circumstance which takes the case “out of the norm” to justify an order of indemnity costs (at [12] and [39]) .[124]In Esure Services Ltd v Quarcoo [2009] EWCA Civ 595, Walker LJ held at [25] that there must be “something outside the ordinary and reasonable conduct of proceedings” in order for some conduct or circumstance to be “out of the norm”.[125]The Claimants say that this case is outside of the norm and outside of the ordinary and reasonable conduct of proceedings. They rely on the following facts and matters:[126]The First Defendant has consistently showed a wanton disregard for the rules and court orders. This is notwithstanding that he has at most hearings been represented by solicitors and/or counsel (albeit in some instance through CLIPS).[127]He has failed to comply with almost all of the terms of every order (apart from the injunctive orders) imposed upon him.[128]He has made multiple applications for relief from sanctions, which were in most cases granted, yet he has continued to breach the conditions imposed in those orders.[129]He has failed to pay all but one of the costs orders already made against him.[130]As a result of his persistent failures, this claim (in its amended form) has been on foot for over 5 years without resolution (and it is approaching 6 years since the Deceased’s death).[131]He applied for and obtained a grant of probate despite being on notice of the Claimants’ challenge to the validity of the Purported Will, necessitating further applications and costs of the appointment of a section 117 administrator.[132]His conduct has been such that he has been debarred from defending these proceedings.[133]In the premises, the Claimants submitted that there is conduct in this case which is out of the norm and outside of the reasonable conduct of proceedings. The Claimants therefore invite the court to exercise its wide discretion to make an order for indemnity costs against the First Defendant.[134]I think this is an appropriate case for an award of indemnity costs. The reason is that it seems to have been clear to the First Defendant from an early stage that he could not comply with the requirements of the court process as regards conducting this litigation. He could at that stage have avoided the incurring of any further costs by withdrawing and accepting that the estate should go on intestacy. By maintaining his stubborn resistance whilst continuing to fail to comply with court orders, he has driven the Claimants to incur very substantial further costs. I note that this outcome would only have been possible in a probate action – in any other type of action his debarment would have been the end of the matter. However, that is nothing to the purpose. I think that in this case an award of costs on the indemnity basis is justified. 13.1. Outstanding Costs Orders[135]The court has already made various costs orders in this case, all but one of which have not been complied with. Apart from the sum of £1,500 which was ordered to be paid on 19 May 2020 (and which has been paid), all of the costs awards made against the First Defendant in favour of the Claimants in these proceedings remain unpaid. I also note that the costs of the hearings which took place on 30 April 2020 and 12 May 2020 have not yet been assessed, and require to be assessed as part of this process.[136]The Claimants have taken me through the costs position as regards this hearing. I have reviewed them, and have concluded that, in the light of the fact that costs are to be awarded on an indemnity basis, they are appropriate.[137]The total of the unpaid costs orders and the costs of this hearing is £70,546 (including VAT). 13.2. The Order[138]I will therefore make an order pronouncing against the validity of the Purported Will on the ground of want of knowledge and approval, and, on the basis that the Deceased died intestate, an order that letters of administration be granted to one or more of the Claimants.[139]The First Defendant shall pay the Claimants’ costs (those costs not already summarily assessed) of this claim on the indemnity basis, subject to detailed assessment if not agreed.[140]I will also order that the First Defendant must pay to the estate within 14 days i) The sum of £11,737.18 (see para 119(i) above) plus interest at the statutory rate of 8% from 25 February 2021 to 16 February 2026 (inclusive). ii) The sum of £49,400 (see para 119(ii) above) representing a tenancy deposit retained by the First Defendant in relation the Deceased’s property located at 41 St Donatts Road and rental monies received from that property and retained by him, along with interest at the statutory rate of 8% from 20 July 2020 to 16 February 2026 (inclusive). iii) 75% of the sum of £70,546 (see para 137 above) on account of costs.