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Cite as: [2015] EWHC 3301 (Ch)

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Neutral Citation Number: [2015] EWHC 3301 (Ch)
Case No: HC-2014-000160


7 Rolls Building
New Fetter Lane
London EC4A 1NL
18 November 2015

B e f o r e :

His Honour Judge Behrens sitting as a Judge of the High Court

(A company limited by guarantee no. 00454169 and registered charity no. 207720)
(A company incorporated by Royal Charter no. RC000500 and registered charity no. 226227)
(A company limited by guarantee no. 00507597 and registered charity no. 207994)
(A company limited by guarantee no. 00534147 and registered charity exempt reference no. X90004)

- and -



Richard Wilson (instructed by Royds LLP) for the Claimants
Simon Myerson QC and Benjamin Fowler (instructed by Kelsall & Company) for the Defendant
Hearing dates: 2 – 6 November 2015



Crown Copyright ©

    Judge Behrens:

    1. Introduction

  1. This is a probate action arising out of the death of Dorothy Whelen ("Mrs Whelen") who died on 9 February 2012 aged 92. The Claimants are the residuary beneficiaries under a will dated 21 October 1982 ("the 1982 Will"). The Defendant, Alan Turner, is a relatively small beneficiary under a homemade will which is alleged to have been executed on 1 November 1999 ("the 1999 Will"). The principal beneficiary under the 1999 Will was Hazel Turner ("Mrs Turner") who is Alan Turner's mother. Other beneficiaries include two of Alan Turner's brothers, Philip and Glen Turner and Robin Summers. The estate is valued at approximately £1.8 million pounds.
  2. The principal relief sought by the Claimants is a grant of probate in solemn form of the 1982 Will. The Claimants challenge the validity of the 1999 Will on two grounds.
  3. First, the Claimants contend that the 1999 Will was not executed in accordance with s 9 of the Wills Act 1837. In particular they contend that it was not signed by Mrs Whelen in the presence of 2 witnesses (s 9(1)(c)) and that the two witnesses who attested the will (Mr Hallam and Mrs Tomalin) did so at the request of and in the presence of Mrs Turner in the belief that they were witnessing Mrs Turner executing her own will. Both Mr Hallam and Mrs Tomalin assert that Mrs Whelen was not present when they attested her will (s 9(1)(d)).
  4. Alan Turner does not accept this analysis. He points to the fact that his mother and Mrs Whelen were lifelong trusted friends. They had been to school together; they had been bridesmaids at each other's weddings. Mrs Whelen had no close relatives and had expressed a wish to leave her property to Mrs Turner. Mr Hallam and Mrs Tomalin did not raise the question of any irregularity in respect of the 1999 Will until 2005 some 6 years later. Whilst they have made further witness statements the later accounts have included details not included in the original 2005 witness statements. In all the circumstances he invites the court to treat their evidence with caution and to rely on the presumption of due execution.
  5. Second, the Claimants contend that Mrs Whelen did not know and approve the contents of the 1999 Will. They contend that this is one of those cases which "excite the suspicion of the Court". In those circumstances it is for Alan Turner as the person propounding the 1999 Will to prove affirmatively that Mrs Whelen knew and approved the contents of the 1999 Will. They contend for a number of reasons that the will fail in that task. Alan Turner does not accept that the 1999 Will excites the suspicion of the Court and thus he seeks to rely on the presumption of due execution. If, contrary to that submission, the suspicion of the court is "excited" he contends that in all the circumstances the court can be satisfied that Mrs Whelen knew and approved the contents of the 1999 Will.
  6. The matter does not end there. The terms of the 1982 Will are not in dispute. However, an issue has arisen as to whether it has been revoked. Although a copy of the 1982 Will was found in Mrs Whelen's house after she died the original will cannot be found. If the 1999 Will was validly executed there is no dispute that it validly revoked the 1982 Will. However, if the 1999 Will was not validly executed an issue arises whether Mrs Whelen revoked the 1982 Will by destroying it. This is an issue between the Claimants as residuary beneficiaries under the 1982 Will and Mrs Whelen's next of kin who would be entitled under an intestacy. Alan Turner is not related to Mrs Whelen with the result that it will make no difference to him whether or not the 1982 Will was revoked. He will only succeed if the 1999 Will was validly executed.
  7. On 20 December 2013 the Claimants and the next of kin reached a confidential agreement in relation to the estate. In those circumstances the next of kin have elected not to take part in the proceedings.
  8. In those circumstances Mr Wilson submitted that Alan Turner should not be permitted to cross-examine or make submissions on this issue. Whilst I saw the force of the submissions I did not accept them. For reasons I gave on the first day of the trial I permitted Alan Turner to participate in this issue. In summary I felt that Alan Turner was already a party and plainly had an interest in the question of the execution of the 1999 Will and thus was in no way intermeddling in the proceedings. Furthermore, the question of whether Mrs Whelen destroyed the 1982 Will might be relevant to the question of whether she knew and approved the contents of the 1999 Will.
  9. Finally there is an application under s 116 of the Senior Courts Act 1981 that the interest of Mr Godfrey (who was named as the executor of the 1982 Will) be passed over in favour of the Claimants. This application only arises if the Claimants succeed in establishing their entitlement to a grant of the 1982 Will. If they do there is no opposition to the s 116 application and I can deal with it quite shortly.
  10. 2. The facts

  11. Mrs Whelen was born on 1 July 1919. Mrs Turner was born some 7 months later on 29 February 1920. It is not in dispute that they were life-long friends. According to Mrs Turner they met in 1925 at Sunday school. They attended the same school and remained friends all their lives.
  12. Mrs Turner married in 1940. Mrs Whelen married in 1948. Each was a bridesmaid at the other's wedding. At this time they were both living in Halifax.
  13. Mrs Whelen remained in the UK. She moved first to Lymington and then to Hampton Court. Mrs Turner emigrated to Argentina in the mid 1950s and lived abroad for 22 years teaching English as a foreign language.
  14. Mrs Whelen worked at some time for the International Wool Secretariat in London.
  15. Mr Whelen was a qualified surveyor, an auctioneer and was involved in property dealing. Much of his property dealing was carried on with an accountant, Robin Summers ("Mr Summers"). As a result Mr Summers became a close personal friend and advisor to Mrs Whelen.
  16. After she returned to England Mrs Turner taught at a language school in Richmond. Whilst there, in about 1991 she met a fellow teacher Mr Hallam.
  17. In August 1997 Mr Hallam set up his own small language school in Richmond. Mr Hallam described it as a boutique school accredited by the British Council. He generally employed about 3 teachers apart from himself. In the summer months there would be up to 45 students but in other months there were less than 15. The students were usually young and often only attended for a matter of weeks. Amongst the teachers employed by Mr Hallam were Mrs Tomalin and Mrs Turner. Mrs Tomalin was employed full time from 1998 to 2007. Mrs Turner was employed from 1997 to 2005 on a part time basis. She worked from 9.30 – 12.30.
  18. In his first witness statement Mr Hallam described Mrs Turner as a reliable trusted member of staff, highly regarded by her colleagues and her students. He considered her to have the highest standards of integrity and regarded her as a close friend.
  19. The 1982 Wills
  20. Mr and Mrs Whelen each made wills in October 1982. The wills were professionally drawn and prepared by a solicitor – Mr Godfrey, a partner in the firm of Lake Parry & Treadwell ("LPT") of Pall Mall, London.
  21. Mr Whelen's will appointed Mrs Whelen as his sole Executor (in the events that have happened). He left his estate entirely to Mrs Whelen. In the event of her predeceasing him, he left his estate in equal shares absolutely to the four charities who are the Claimants, namely, The Royal National Institute for the Deaf, now called The Royal National Institute for Deaf People, The Royal National Institute for the Blind now called The Royal Institute of Blind People, The Marie Curie Memorial Foundation now called Marie Curie Cancer Care and The Chester Beatty Research Institute now called The Institute of Cancer Research: The Royal Cancer Hospital.
  22. Mrs Whelen's will was a mirror of her husband's. She appointed Mr Whelen to be the sole Executor but if he predeceased her, or was unable or unwilling to act then Mr Godfrey was to be the sole Executor. She left her entire estate to Mr Whelen but if he predeceased her, she left her estate in equal shares to the same four Charities that Mr Whelen had named in his Will.
  23. On 14 October 1982 Mr Godfrey sent the unexecuted wills to Mr and Mrs Whelen with instructions as to the due execution of the wills. The wills were executed on 18 and 21 October 1982 respectively.
  24. On 1 November 1982 Mr Whelen sent both executed wills to Mr Godfrey for safekeeping. He indicated that copies would be retained at their home, Tiltyard Cottage, Hampton Court.
  25. LPT's records indicate that on 2 May 1989 both of the wills were sent to Mr and Mrs Whelen.
  26. Mr Whelen died on 3 June 1989. LPT were instructed to act by Mrs Whelen. A grant of probate in common form was obtained on 1 August 1989. There is accordingly a strong inference that the original of Mr Whelen's will was returned by Mrs Whelen to LPT so that it could be lodged with the Probate Registry.
  27. Following the death of Mrs Whelen on 9 February 2012 Mr Suren, the Managing Director of Probatum Ltd (a company specialising in assisting solicitors in probate matters) acting on instructions from Mr Fellows (a partner in Calvert Smith & Sutcliffe ("CSS") carried out a search of Tiltyard Cottage. Mr Fellows was concerned both to secure the property and check for any will that might be there.
  28. Mr Suren carried out a systematic search on 13 February 2012. The search lasted about 3 hours. In the front bedroom on the first floor he found a cardboard shoebox underneath a large amount of shoes.
  29. Within the shoebox were some documents a brown envelope which appeared to have been sent from LPT. It was addressed to Mr & Mrs L Whelen at Tiltyard Cottage, Hampton Court Road, Hampton Road, East Moseley, KT8 9BY. On the envelope someone had written the words
  30. "Copy Wills – original with Lake Parry & Treadwell (Godfrey)".
  31. Inside this envelope he found the copy of the Wills of Mr and Mrs Whelen dated 18 and 21 October 1982. Mr Suren took them to the offices of CSS with a set of the new keys to the house.
  32. The original of the 1982 Will was not found at Tiltyard Cottage and has not been found anywhere else.
  33. Relationship between Mrs Whelen, Mr Summers and Mrs Turner after Mr Whelen's death
  34. After Mr Whelen died Mrs Whelen had a number of small pensions from her employments, interest from cash in the bank, rents from 3 houses that she owned and dividends from the companies set up by Mr Summers and Mr Whelen. She also had £800,000 invested in Lloyds TSB Guernsey.
  35. She lost interest in financial affairs. As a result she became increasingly dependent on Mr Summers both as a friend and accountant and the prime mover in the companies of which they were each shareholders. Mr Summers saw Mrs Whelen about once a month after Mr Whelen died but would speak with her two or three times a week to make sure she was safe and well.
  36. There is significant evidence that Mrs Whelen became increasingly dependent on Mrs Turner after Mr Whelen's death. Apart from the evidence of Philip and Alan Turner this was confirmed by Mr Summers and Mr Hallam who noted that Mrs Turner told him on a number of occasions that she was looking after and elderly lady in Hampton Court.
  37. The picture painted by Philip and Alan Turner is of Mrs Whelen making regular and repeated visits to Mr and Mrs Turner's house, of spending significant amounts of time there, including Christmas and other holidays there and generally being treated as one of the family.
  38. Testamentary Intention
  39. Before looking at the circumstances in which the 1999 Will was executed in detail it is convenient to set out the various occasions when Mrs Whelen discussed or is said to have discussed her testamentary intentions. It will be recalled that Mr and Mrs Whelen had no children and were not close to their distant relatives. In the 1982 wills the residuary gifts were to the Claimants.
  40. Mr Summers and Mr Isaacson
  41. Between 1998 and 2000 Mr Summers had a number of conversations with Mrs Whelen over the making of a will. In his witness statement he described himself as becoming more and more aware that Mrs Whelen was not happy with the original will. In any event Mrs Whelen asked him to recommend a solicitor and Mr Summers recommended Mr Isaacson, a solicitor employed by Evill and Coleman of Putney.
  42. In a letter dated 13 June 2013 Mr Isaacson recalled meeting Mrs Whelen at her property at Hampton Court and also in the office in approximately 1999/2000. A physical file was opened for Mrs Whelen but he heard no further from Mrs Whelen
  43. One of the documents found by Mr Suren was a letter dated 13 July 1998 from Mr Isaacson. That letter referred to a meeting 5 days earlier and includes the following paragraph:
  44. I discussed with you the arrangements for making a new will and understand that you will send me a copy of your existing will if you can locate it.
  45. Mr Isaacson went on to give general instructions of the matters Mrs Whelen had to consider in order to enable Mr Isaacson to prepare a draft of any new will. One of the matters mentioned for Mrs Whelen's consideration was the possibility of leaving part of the estate to one or more charities. Mr Isaacson then sent a list of the charities concerned with helping blind and deaf people.
  46. The letter is of importance for two reasons. First, it gives rise to an inference that Mrs Whelen had not deliberately destroyed the 1982 Will before July 1998. It also suggests that Mrs Whelen was not then sure if she could locate the 1982 Will. Second, it is a reasonable inference that, at the meeting on 8 July 1998, Mrs Whelen had raised the possibility of leaving money to charity and had specifically mentioned the deaf and the blind. It is to be remembered that the first two residuary beneficiaries under the 1982 Will are such charities.
  47. On 4 February 2000 Mr Summers wrote a letter to Mrs Whelen in which he suggested that she ought to make a will. He pointed out that she had friends and god children going back a long way and that if she died intestate the estate would devolve on her relations. Although she replied some two weeks later and explained that she did not get on with Mr Isaacson she did not take up Mr Summers' suggestion.
  48. On 20 March 2003 there was a telephone conversation between Mrs Turner and Mr Summers. The details of the conversation do not matter. However in the course of the conversation Mrs Turner told Mr Summers about the 1999 Will. She told him that the house had been left to her and that he (Mr Summers) had been left 50% of the estate. In evidence Mr Summers said he did not believe this. On the file note he added by way of comment:
  49. Don't hold your breath.
    CSS and Mr Fellows
  50. On 2 February 2000 Mrs Whelen and Mrs Turner went into the offices of CSS and were seen by an experienced legal secretary Mrs Pusey. The meeting lasted about 45 minutes. Mrs Pusey took initial instructions from them and made a detailed file note of what was said. Most of the talking was by Mrs Turner but Mrs Pusey was quite satisfied that Mrs Whelen understood and participated in the conversation.
  51. Initially Mrs Whelen wished to make Mrs Turner her attorney but (at Mrs Pusey's suggestion) changed her instructions so as to appoint Mrs Turner and Mr Fellows jointly. An appointment was made for them to see Mr Fellows.
  52. Mrs Whelen told Mrs Pusey that she had not made a will. Mrs Pusey suggested that she should speak to Mr Fellows about that when she saw him. Mrs Pusey's note reads:
  53. She said she wanted everything to go to her friend Mrs Turner and again would appoint Mrs Turner as exor with CSS. She said that she did not wish to leave anything to her family.
  54. Mrs Pusey also referred to the fact that Mrs Whelen was often forgetful.
  55. Mr Fellows saw Mrs Turner and Mrs Whelen on 8 February 2000 for about an hour. He explained in detail the effect of an enduring power of attorney. He was entirely satisfied that she was of sufficient capacity to execute such a document and it was executed.
  56. Mrs Whelen was vague about her assets and alleged that a cleaner had stolen a lot of papers from a filing cabinet in her home.
  57. There was a discussion about making a will. Mr Fellows' note reads:
  58. She realises she needs to make a will but at the present time really wants to give it more thought.
  59. One of the features of the case is that neither Mrs Whelen nor Mrs Turner mentioned the 1999 Will at either meeting at CSS.
  60. At the end of March 2000 there was a conversation between Mr Fellows and Mr Summers about Mrs Whelen's affairs. It is plain from a letter dated 24 March 2000 that Mr Fellows considered that Mrs Whelen needed to be encouraged to make a will if possible and from a letter dated 30 March 2000 that he was seeking more information from Mr Fellows in order to enable him to "give her proper advice concerning her will".
  61. As noted above Mrs Turner did not disclose the existence of the 1999 Will to Mr Fellows at the 8 February 2000 meeting. However on 19 June 2000 she brought the original to Mr Fellows. Mr Fellows made a copy which he retained. Mrs Turner kept the original.
  62. Alan and Philip Turner
  63. When they gave evidence both Alan and Philip Turner gave evidence of informal remarks made by Mrs Whelen following the death of Mr Whelen in the 1990s expressing an intention to leave everything to Mrs Turner.
  64. Philip Turner was Mrs Whelen's godson. Although he acknowledged that Mrs Whelen was fond of both his brothers he thought he was her favourite and that he was the most likely of the 3 brothers in whom she would confide. In the mid 1990s he estimated that he saw Mrs Whelen about once a month. In paragraph 7 of his witness statement he says he can recall an occasion at Mrs Whelen's home when she said:
  65. "Oh, it's all going to your Mum, anyway. I don't care about my family up North, they never bother to visit me. Your Mum is my best friend."
  66. Philip Turner interpreted this as referring to Mrs Whelen's home and not her other assets. In cross-examination he said that this probably occurred in about 1995 – 1996.
  67. In paragraphs 7 to 9 of his witness statement Alan Turner gave a number of examples of occasions where he says Mrs Whelen made similar remarks to him or in his hearing. The remarks were said to have occurred about twice a year in the 1990's and were to the effect that everything was going to Mrs Turner when she died. Mrs Whelen is also alleged to have said that the idea of leaving everything to charity was Mr Whelen's idea and that he had reservations about it towards the end.
  68. There is no corroboration for any of these statements and it was suggested to both of them that there were no such conversations. However they both told me that the conversations had indeed taken place.
  69. Mrs Whelen's health
  70. There is evidence that by the end of 1999 Mrs Whelen was becoming forgetful. This is referred to in Mrs Pusey's file note. Mrs Whelen refers to it herself in the letter she wrote to Mr Summers in reply to his letter of 4 February 2000. However there is no suggestion that she did not have capacity to execute the EPA on 8 February 2000.
  71. There is also evidence of paranoia about her house being broken into. She had changed the locks on her house on a number of occasions and there are a number of references to the theft from her house by the ex cleaner.
  72. In his witness statement Mr Fellows describes the rapid decline in her mental facilities after February 2000. It is not necessary to set it out here. The EPA was registered on 24 November 2000. It is plain that Mrs Whelen ceased to have capacity by then. It is probable that she had lost capacity by the beginning of July 2000. I was, in particular, referred by Mr Myerson QC to a file note made by Mr Fellows on 6 July 2000 when he acknowledged that the stage had been reached when the EPA ought to be registered.
  73. In any event she did not live at Tiltyard Cottage after 2000.
  74. Mr and Mrs Turner's will
  75. Mr and Mrs Turner also signed homemade wills in 1999. The terms of their wills are not relevant to the issues in this case. However there are a number of features of their wills which are highly relevant.
  76. It is plain that that the homemade will form used by Mrs Whelen came from the same source as those used by Mr and Mrs Turner. The colour of the form (yellow), the type fonts and the layout are identical. The wording used on the form is virtually identical. The only difference is the wording following the word "Dated". In Mr Turner's will it is:
  77. Dated this … day of …… 19…
  78. In Mrs Turner's and Mrs Whelen's will it is:
  79. Dated this … day of (month) …… (year) …
  80. I agree with Mr Wilson that the difference is readily explicable on the basis that the millennium was approaching and Mrs Turner and Mrs Whelen's wills were a later version of the homemade will from the same source.
  81. Mr Turner's will is dated the 11th August 1999. It is signed by Mr Turner above the date. It purports to be witnessed by Ms Williams and Mrs Tomalin using a blue ball point pen.
  82. There is no direct evidence from either Mr Turner or Ms Williams as to the execution of Mr Turner's will. Mr Turner died in 2011. There has been no grant of probate. Ms Williams was a temporary teacher at Mr Hallam's language school between March and August 1999. She has not been traced further. Mrs Tomalin acknowledged that the signature on Mr Turner's will was her signature but had no recollection of witnessing his will. She said she had met Mr Turner on a bus.
  83. Mrs Turner's will is dated "28 day of (month) 1999". It is signed by her above the date in the same position as in Mr Turner's will. It is witnessed by Mrs Tomalin and Mr Hallam. Mrs Tomalin used a black ball point pen with similar ink to the ink used by her when witnessing the 1999 Will.
  84. In a later section of this judgment it will be necessary to set out in detail what Mrs Turner, Mr Hallam and Mrs Tomalin say about the circumstances in which their signatures appear on Mrs Turner's will as it is tied up with their evidence of the execution of the 1999 Will.
  85. Mrs Whelen's will
  86. Mrs Whelen's will is dated 1 November 1999. It is apparently witnessed by Mr Hallam and Mrs Tomalin. It contains an attestation clause in the following form:
  87. Signed by the
    in our presence and
    by us in his/hers
  88. Its provisions may be summarised. Mrs Whelen appointed Mrs Turner as her sole executrix. She left Tiltyard Cottage to Mrs Turner. There were pecuniary legacies of £10,000 to Philip Turner, £5,000 to each of Alan Turner, Glenn Turner and Elizabeth Shaw. The rest of the estate was to be divided equally between Mr Summers and Mrs Turner. Finally there was clause which provided:
    Forensic Examination
  90. All three homemade wills (i.e. the 1999 Will together with the homemade wills of Mr and Mrs Turner) have been forensically examined by Dr Audrey Giles the well-known and highly qualified forensic examiner.
  91. Dr Giles's conclusions can be summarised.
  92. In the examination of Mrs Turner's will she found impressions of the signature and address of Mrs Tomalin that had been made on the will of Mrs Whelen. She concluded that Mrs Whelen's will had been placed directly on top of Mrs Turner's will when Mrs Tomalin signed and added these details to Mrs Whelen's will. The position of the impressions indicated that the two wills were placed more or less in alignment at the time.
  93. Dr Giles regarded the impressions of Mrs Tomalin's signature and address on Mrs Turner's will as conclusive evidence that Mrs Turner's will was directly underneath Mrs Whelen's will when Mrs Tomalin appended her name as a witness to Mrs Whelen's will.
  94. In addition Dr Giles noted that Mrs Tomalin's signature on each of the wills was in similar black ball point ink. She concluded that this amounted to strong positive evidence that both Mrs Whelen's will and Mrs Turner's were witnessed by Mrs Tomalin at the same time.
  95. Dr Giles found that four different inks were used in the body of Mrs Whelen's will. One of these (which she designated "A") was used for the details of Mrs Whelen at the top of the Will, the name Hazel Turner as the executor and the date and signature of Mrs Whelen at the bottom. When she examined the handwriting she noted that all the handwriting in this ink was in the same general style. When Mr Summers gave evidence he said that he recognised this handwriting and the signature as that of Mrs Whelen.
  96. Dr Giles's examination of the other handwritings led her to the conclusion that there was very strong positive evidence that the remainder of the entries in Mrs Whelen's will were not written by Mrs Whelen.
  97. Dr Giles noted that the date in Mrs Whelen's will was written in an unusual manner with the month November being written beneath the printed areas where the date should have been written. Mrs Tomalin's signature on Mrs Whelen's will extended into the space where the month would have been written. She concluded that this amounted to weak positive evidence that Mrs Tomalin's signature was added before the will was dated.
  98. Dr Giles noted that part of the address of Mrs Turner, the words "I Leave" and the final clause were in a different ball point ink (designated "B") from the ball point ink used for the bequests in the will (designated "C"). She found three different styles of handwriting within these sections of the will. She had considerable doubt as to whether all the entries in the bequest section were made by the same person but in the end (despite being pressed in cross-examination) her findings were inconclusive. She was undecided as to whether the writings were all by one person or partly by a person trying to mimic the handwriting of the person who wrote the main body of the bequests.
  99. Mr Hallam's evidence
  100. Mr Hallam has made 3 witness statements and an affidavit. They are dated 6 July 2005, 21 July 2013, 18 March 2014 and 7 March 2015.
  101. In paragraphs 5 to 10 of his first witness statement Mr Hallam describes the circumstances in which he signed the 1999 Will which include:
  102. 5. Some years ago Mrs Turner asked me to witness her will "because we have been friends for so long". I do not know exactly when this was, but it was certainly after the middle of 1998 when we moved to our new premises. It seemed a perfectly reasonable request in view of our long friendship. I remember distinctly that she asked me to witness her will and not her signature.
    6. I have never previously witnessed a will for anyone and so I was not familiar with the procedure.
    7. … Mrs Turner works from 9.30 to 12.30, and she always comes to see me before she goes home. On this occasion she came to say goodbye and casually raised the subject of her will. She then produced it either from a bag or an envelope, I cannot remember which. She put it down on the counter in reception and I believe she covered the text leaving only the bottom part of the will visible. It is possible that she might only have pulled the bottom part of the will out of the envelope.
    8. Mrs Turner asked me to sign at the bottom right hand corner. I did so without hesitation and without question. I did not ask to read the document before I signed because I considered the contents of her will might be of a private nature. I signed on the basis of total trust. There was no-one else present in the room at the time. It was all very casual and informal.
    10. I do not recall noticing Mrs Whelen's signature, nor do I remember whether Mrs Turner covered it up. … I am almost certain that Mrs Whelen's signature was not the will while I signed it. The whole episode only took a couple of seconds and was of relatively little significance to me.
  103. In paragraphs 11 to 19 of his witness statement Mr Hallam sets out how he discovered what had happened.
  104. It will be recalled that Mr Fellows was given a copy of the 1999 Will on 19 June 2000. In June 2005 Mr Fellows (who was, of course, Mrs Whelen's attorney) reviewed the 1999 Will. On 10 June 2005 he wrote to Mrs Turner. After suggesting that the original should be placed in the strong room for safe keeping, he summarised its terms. He made the point that it would be possible to apply to make a statutory will but he was not convinced that it was advisable. However he invited Mrs Turner to a further meeting to discuss the will and what to do with Tildyard Cottage.
  105. It was in these circumstances that Mrs Turner decided to make a further copy of the 1999 Will on 16 June 2005 on the photocopier at the Richmond language school. In his witness statements and in evidence Mr Hallam described how he was accustomed to help Mrs Turner when she photocopied the lessons for the day. Mr Hallam believed that Mrs Turner had made a mistake and was photocopying a blank page. He therefore went over to the machine and lifted the cover to find that she was photocopying a document. He noted from the ruined photocopy that his signature was in the bottom right hand corner. He also noted that Mrs Turner tore up the document into fragments and placed them in an exercise book. Mr Hallam found one fragment later that day and another few fragments the following Monday. He reconstructed the fragments and realised from the parts he had read that he had been deceived into witnessing the will of someone other than Mrs Turner.
  106. Mr Hallam was extremely concerned about this and contacted his solicitor on 21 June 2005 – Mr Morton at CSS. Mr Morton's file note summarises what Mr Hallam told him. Mr Morton discussed it with Mr Fellows whilst opening the post. The address – Tiltyard Cottage rang a bell with Mr Fellows and the original copy of the will was retrieved. Mr Morton referred Mr Hallam to the litigation partner – Mr Williams in order for him to make a statement. The statement was made and signed on 6 July 2005.
  107. Mr Hallam believed that he was advised by both Mr Morton and Mr Williams that he should not discuss this with Mrs Turner and that he should terminate her employment. Neither Mr Morton nor Mr Williams had any recollection of giving this advice. There is certainly no file note mentioning it. Whether or not he received that advice he did terminate Mrs Turner's employment shortly thereafter.
  108. In his second witness statement Mr Hallam confirmed the authenticity of his signature on Mrs Turner's will. He went to say that there was only one occasion when he was asked by Mrs Turner to sign a document. He was prepared to believe he signed both documents on the same day but was quite sure he was not asked to sign on two separate occasions and separate days.
  109. It is not necessary at this stage to refer to more of Mr Hallam's statements at this stage. In cross-examination Mr Hallam was taken through his witness statements in some detail. He remained adamant that he had not knowingly witnessed Mrs Whelen's will. He did not know Mrs Whelen and that the only occasion he had witnessed a will was the one occasion when he was asked to do so by Mrs Turner. He at all times believed he was witnessing Mrs Turner's will. He accepted that he had forgotten that he signed two pieces of paper. He could not remember which of the documents was on top of the other. He repeated that he was extremely upset by the discovery. Mrs Turner was one of his closest friends. He did not discuss the matter with Mrs Turner. He was acting on the advice of his solicitors.
  110. Mrs Tomalin's evidence
  111. There are four witness statements from Mrs Tomalin. They are dated 4 July 2005, 31 August 2012, 6 August 2012 and 10 March 2015.
  112. Her first witness statement was made at the suggestion of Mr Williams. She agreed that she had discussed matters with Mr Hallam before she made it. Mr Hallam told her she needed to make a statement so she attended the offices of CSS and saw Mr Williams.
  113. Her first statement includes:
  114. 2. Some years ago I recall [Mrs Turner] asking me quite casually if I would sign something for her. I think it was the following day that she said she would like me to witness a will. I assumed it was hers, although I cannot recall her saying that it was. I might have jumped to the conclusion that it was her will.
    3 I remember that Hazel and I went into one of the classrooms together. I believe that there was someone else in the room, but I do not think it was Frank Hallam. I cannot recall who it was.
    4. Hazel produced a piece of paper from her bag and put it on the teacher's desk. I have no recollection of her covering any part of it with a piece of paper or anything else. She might have covered parts with her hands, but this would have looked perfectly innocent. I was not interested in reading the document and I have no reason to suspect anything.
    5. Hazel asked me to sign in the bottom corner, which I did, It was all over in a few seconds and so far as I was concerned it was an insignificant event.
    6. I cannot recall whether Frank Hallam had already signed it, nor can I recall noticing the signature of the testatrix, Dorothy Whelen.
  115. Mrs Tomalin's second witness statement was made some 6 months after Mrs Whelen's death at a time that CSS were in correspondence with Piper Smith Watton ("PSW") the solicitors acting for Mrs Turner and her son Philip.
  116. According to both Mrs Tomalin and Mr Fellows, Mr Fellows could not at that time find the original of Mrs Tomalin's witness statement and wished to disclose a signed copy to PSW. Whether or not this is true the second statement contains three additions to the first statement. In paragraph 3 Mrs Tomalin has added the words "but I can confirm it was not [Mrs Whelen] whom I have never met". In paragraph 5 Mrs Tomalin has added "No one else signed the document in my presence" Finally Mrs Tomalin has added a paragraph exhibiting the 1999 Will.
  117. At the time of her third witness statement it had been drawn to Mrs Tomalin's attention that she had witnessed Mrs Turner's will as well as that of Mrs Whelen. In that statement she gave a significantly more detailed account of events than she had given 8 years earlier. Amongst the points she made she emphasised that the person present was not Mrs Whelen and that she was never told she was witnessing anything other than Mrs Turner's will. She repeated that there was only one occasion that she was asked to sign documents.
  118. By the date of her fourth statement Mrs Tomalin had been made aware that she had witnessed Mr Turner's will. In paragraphs 10 and 11 of her witness statement she acknowledged that her signature on Mr Turner's will was genuine. However she had no recollection of witnessing the will. She did not recognise it. It is to be noted that Mrs Tomalin had used a different coloured ball point pen when witnessing Mr Turner's will. Thus, it can be inferred that she signed Mr Turner's will on a separate occasion from the attestation of the 1999 Will.
  119. Mrs Tomalin was naturally cross-examined about the differences between the accounts, she was pressed on the fact that that she did not expressly state that the third person in the room was not Mrs Whelen in her first account. She remained adamant that the third person was not Mrs Whelen. She would have noticed an elderly person in the room. The third person was a student who had nothing to do with the transaction. He might only have been passing through. She reiterated that she believed she was witnessing Mrs Turner's will. It was plain from her answers that she did not now remember much about the finer details of the incident. She could not remember if part of the will was covered or not; she did not remember the occasion when she signed Mr Turner's will. She could not remember how the two documents were presented to her. She could however clearly remember being asked to sign Mrs Turner's will and clearly remember that Mrs Whelen was not present.
  120. Mrs Turner's affidavits
  121. Mrs Turner is now 95 years old. She did not attend court. A medical report by her GP, Dr Sayer, dated 28 September 2015 makes it clear that she is very frail, housebound and suffers from severe dementia. She is not able to retain, understand or make informed decisions on any matters.
  122. Mrs Turner has sworn two affidavits dated 26 July 2013 and 12 September 2013. In the course of his evidence Philip Turner was asked to comment on Mrs Turner's mental capacity in 2013.
  123. Philip Turner acknowledged that his mother has dementia and could not now come to court. He said that until quite recently she was mentally quite alert although she had good days and bad days. She was, of course 92 in 2013. The wills had been made some 13 years before.
  124. It is not necessary for me to refer to refer to the first affidavit because the second affidavit merely adds 2 paragraphs (3A and 3B). The relevant parts of the second affidavit read:
  125. 3A During 1999 my husband and I decided to make our wills, and we did this using a pro forma printed form on which the formal parts of the will were printed, leaving the testator to complete the blanks and write the narrative of the will. My husband and I decided to have our wills witnessed at my place of work, The Richmond Language Training Limited School in Richmond upon Thames, the proprietor of which was Mr Frank William Hallam. My husband, being a rather more organised person than I am, had bought his will form first and made his will upon the 11th of August 1999 and his will was witnessed by a colleague, Helen Tomalin and another employee of the school. I also made my will, but I took my time to do so, and my will was witnessed by Mr Frank William Hallam and the said Helen Tomalin upon either 28th of September or 28th of October 1999. I knew that I could have my will witnessed at the school whenever I wished.
    3B. In late October of 1999 Dorothy, having heard about our wills, also decided to make a homemade will, and as she lived alone and had no close friends other than myself, she asked me if she could have it witnessed at my workplace, just as I had done. Dorothy and I had a custom of meeting once a week for lunch at the school, and therefore it was most convenient to have Dorothy's will witnessed at the school. I believe, as far as I can remember, that the witnessing of the will was an unplanned occasion that coincided with Dorothy's and my weekly lunch date.
    4. Upon the 1st of November 1999 1remember that I met my friend Dorothy outside in the street as was our custom and we both went into the school, into a classroom at the top of the building . I remember following Dorothy up the steps and going into a room at the top of the building. I can remember telling Dorothy to go up the steps and I followed behind her. I remember hoping that Mr Hallam and Helen Tomalin would make themselves available to witness the will. When we were in the room we sat down. I recall, fortuitously, Frank Hallam was in the room also and that Helen Tomalin was in the room as well. There were therefore the three of us in the room as well as Dorothy. I can remember Dorothy signing her will, and I can remember Frank Hallam and Helen Tomalin signing the will also. I believe that Dorothy signed the will first, Frank signed second and Helen signed third. However, I cannot be entirely sure of the exact sequence and it may be that Helen signed second and Frank signed third. I exhibit hereto a copy of Dorothy's wi11 of the 1st of November 1999 marked "HTl ". I remember that the atmosphere in the room was light hearted and we were joking and laughing. I also remember that the occasion was a very quick, casual event amidst the "controlled chaos" of the lunchtime activity at the school. Following the execution of the will, Dorothy handed the will to me in its envelope, which has Dorothy's handwriting of "executor" on the front. I can categorically confirm that my will and Dorothy's will were signed by the same witnesses on separate days as the dates of the wills clearly indicate.
    5. I have been asked as to why the word "November" appears to be misplaced in the will, but I was not paying sufficient attention to the signatures to be able to explain this. Possibly the word "November" is misplaced because the signature of Helen Tomalin does not leave sufficient room in the line to insert the word "November". I do not know who dated the will, but from a comparison of Dorothy's signature and the words "First", ''November", and "1999", I believe that Dorothy dated the will. Similarly, I do not know why Dorothy's signature appears to below the signatures of Helen Tomalin and Frank Hallam; I can only speculate that this is because there is no obvious place for the testatrix to sign the will, save where Dorothy has in fact signed.
  126. Both Mr Hallam and Mrs Tomalin have commented on the facts contained in this affidavit. It is not necessary to refer to them all. However it is necessary to refer to some of them:
  127. 1. Mr Hallam denies that Mrs Whelen and Mrs Turner met at the school once a week for lunch. He points out that Mrs Turner never lunched at the school. He was there every day. He knew who lunched at and visited the school. He would have known if an elderly lady in her 80s had lunched at the school. He did, of course, accept that it was possible that they met once a week for lunch elsewhere in Richmond but he knew nothing of such an arrangement.
    2. Mrs Turner had trouble walking up the stairs. Her classroom was on the first floor and she never had any reason to go to the top of the building.
    3. Mr Hallam claimed that much of paragraph 4 is false. There was no meeting anywhere in the building. It is not true that the four persons mentioned were ever in the same room together.
    4. In paragraphs 27 and 28 of her third witness statement Mrs Tomalin disputed paragraphs 3A and 4 of the affidavit and reasserted matters that are set out above.
    Events after June 2005
  128. In the light of the issues in the case it will be possible to deal with events after June 2005 relatively shortly.
  129. Events prior to Mrs Whelen's death
  130. .It will be recalled that Mr Fellows and Mrs Turner were the attorneys under the EPA signed in February 2000 and registered in November 2000. Mr Fellows looked after the financial side of the EPA; Mrs Turner would visit Tiltyard Cottage, check its condition and pick up the post.
  131. Following the events of June and July 2005 Mr Fellows and his partners decided to take no further action. He decided that that the 1999 Will was not a valid testamentary document and could never be admitted to probate. Mr Fellows considered whether he ought to make an application to remove Mrs Turner as a co-attorney or to make an application to the Court of Protection for a statutory will. In paragraph 47 of his witness statement Mr Fellows explains why he decided not to make either application. It is not necessary for me to express any view as to whether those reasons are good or bad.
  132. Mr Fellows also decided not to disclose to Mrs Turner the evidence he had obtained from Mr Hallam and Mrs Tomalin. Thus, Mrs Turner was wholly unaware of this evidence whilst Mrs Whelen was alive. From her point of view the evidence only came to light after Mrs Whelen died in 2012.
  133. Tiltyard Cottage
  134. Mrs Whelen's condition deteriorated in 2010 and she died on 9 February 2012. Following her death Mr Fellows instructed Mr Suren to change the locks and secure Tiltyard Cottage and to carry out the search referred to above. Mr Suren carried the search on 13 February 2012 and amongst other things found copies of Mr and Mrs Whelen's 1982 wills in the shoebox in the bedroom cupboard. He did not find the original of the 1982 Will.
  135. When Mr Suren started his search he formed the view that there had already been an extensive search in the house. He was unable to judge when this had taken place. Clothes and other contents had been tipped out of cupboards. Drawers had been emptied out on to beds. He thought that there had been a serious search, presumably for documents or valuables.
  136. Mr Suren made a number of further visits to Tiltyard Cottage on the instructions of Mr Fellows. Any documents he regarded as important he delivered in black sacks to Mr Fellows. There were a substantial number of such documents. These included the 1982 correspondence between Mr Godfrey and Mr Whelen over the 1982 wills and the letter dated 13 July 1998 from Mr Isaacson.
  137.  He has since received instructions to make regular visits to Tiltyard Cottage. He has ensured it has remained secure and has organised some limited gardening.

    Events leading to the issue of proceedings
  138. In March 2012 Mr Fellows entered into correspondence with PSW over the 1999 Will. PSW were acting for Philip Turner and his mother. It was at this time that Mr Fellows disclosed Mr Hallam's witness statement. He entered a caveat. In April 2012 Philip Turner also entered a caveat.
  139. In October 2012 Mr Godfrey (the executor named in the 1982 Will) granted Mr Miller Craig of Royds a Power of Attorney to seek a grant in respect of the 1982 will. From that date Royds had conduct of the claim on behalf of the Claimants.
  140. In late 2012 and early 2013 Philip Turner entered into discussions with the next of kin who were also considering their position in the light of the failure to locate the 1982 will. In the course of those discussions Philip Turner sent emails dated 19 February 2013 and 10 April 2013 to Jane Walker, one of Mrs Whelen's cousins. In the 19 February 2013 email Philip Turner summarised the background and made the point that Mrs Turner would not have been able to act as executor. He continued:
  141. However, we never reached that stage due to the Frank Hallam statement trying to defeat the will altogether, and the fact that Dorothy was not present when the document was witnessed, held up any probate taking place on this last will and testament. (my underlining)
  142. In the 10 April 2013 Philip Turner complained that his mother was accused of being fraudulent:
  143. I take umbrage to the fact (although it was probably instigated by David Fellows) that on more than one occasion Royds made reference to the 1999 Will made and signed by Dorothy as being "fraudulent" Yes, it was witnessed badly and apparently Dorothy was not present when my Mum took the will to her school that day to have it witnessed by two teachers there. But fraudulent, never! As if her very best friend since childhood, both bridesmaids at each other's wedding, the one person she saw and spent unlimited time with throughout her entire life and trusted completely with everything, would instigate a fraudulent will. (my underlining)
  144. When he gave evidence Philip Turner was asked about the two underlined passages. It was suggested to him that those two passages were, in effect, an admission that Mrs Whelen was not present when the 1999 Will was signed and that it was not properly attested. It was suggested that that information could only have come from his mother. Philip Turner denied this. He said he was only setting out what was alleged in Mr Hallam's witness statement. He said that he had a subsequent conversation with my mother and put to her that both witnesses were claiming that Mrs Whelen was not present. Mrs Turner did not accept that suggestion.
  145. In fact there is a third email, dated 30 May 2013 which gives a somewhat different version of that conversation. In that email Philip Turner says:
  146. I have spoken to my Mother who only recalls, and very clearly, the fact that Dorothy repeated to her several times prior to 1999 that it was her wish to leave her house - Tiltyard Cottage in Hampton Court - to her and that she wanted to have this in her last will and testament. She was not sure about the rest of the estate and told me that she never liked to ask Dorothy about this as she was a very private person and respected her friend too much to pry into her affairs.
    She did not recall Dorothy mentioning either destroying or not having another will (with reference to the 1982 will of which Royds now possesses a copy).
    The only person that Dorothy would have chosen to share the information you are asking about was my Mother, her best friend. Or perhaps with Robin Summers also, her financial adviser and a very good friend of both Leonard and Dorothy Whelen over a span of very many years.
    I believe that both Frank Hallam and Helen Tomalin express in their statements that they both signed only one will. Hallam signed both Dorothy's and my Mother's wills in 1999 and Tomalin signed Dorothy's, my Mother's and my Father's wills so the statement in this regard at least, is erroneous.
  147. In February 2013 Philip Turner and his mother agreed to withdraw their caveat. In his witness statement Philip Turner says that this was because of the threat of an adverse costs order.
  148. Caveats were subsequently entered by the next of kin on 3 April 2013 and by Alan Turner on 26 June 2013. In December 2013 the next of kin reached a confidential agreement with the Claimants and withdrew their caveat. As part of the agreement their solicitors for the next of kin wrote a letter which openly acknowledged that they withdrew their opposition to the 1982 copy will being admitted to probate and that they had no objection to such an order being made. In a further letter dated 8 October 2015 the solicitors for the next of kin have disclosed part of the confidential agreement and have made it clear that even on intestacy the Claimants would benefit by way of a lump sum.
  149. These proceedings were commenced on 13 June 2014. It is not necessary to set out the history of the proceedings.
  150. 3. Execution of the Will

    The Law
  151. Section 9 of the Wills Act 1837 sets out the requirements for the valid execution of a will. It provides as follows:
  152. "No will shall be valid unless—
    (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
    (b) it appears that the testator intended by his signature to give effect to the will; and
    (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    (d) each witness either—
    (i) attests and signs the will; or
    (ii) acknowledges his signature,
    in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary."
  153. I was referred to a number of authorities on the effect of s 9 when coupled with the presumption of due execution in a case where the will appears on its face to be validly executed and the document contains a full attestation clause. In particular I was referred to Re Sherrington [2005] EWCA Civ 326, Re Channon [2005] EWCA Civ 1808; the observations of Phillimore J in Re Bercovitz [1961] 1 WLR 892 (at 896) and the observations of Guy Newey QC (as he then was) in Re Papillon [2006] EWHC 3419 (Ch) at paragraph 22.
  154. I shall not lengthen this judgment by setting out all of the references from those authorities. The relevant law is, to my mind contained in paragraphs 6 – 12 of the judgment of Neuberger LJ (as he then was) in Re Channon and paragraphs 43 to 49 of the judgment of Arden LJ in the same case. The passage from Neuberger LJ's judgment (omitting some of citation included in paragraph 6) is in the following terms:
  155. 6. The law in this field has recently been considered and discussed by this court in a case decided some two weeks after Judge Weeks gave his decision, namely Sherrington v Sherrington [2005] EWCA Civ 326. In giving the judgment of the court in that case, Peter Gibson LJ said this:
    41. To similar effect was Lord Penzance in Wright v Rogers (1869) LR 1 PD 678 at p. 682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Lord Penzance said at p. 682 that the question was whether the court was able to rely on the witness's memory. He continued:
    'The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.'
    42. … Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has 'the strongest evidence', in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness."
    7. There is good reason for the requirement that one must have "the strongest evidence" to the effect that a Will has not been executed in accordance with section 9 when, as in this case, it appears from the face of the Will that it has been properly executed in all such respects and where there is no suggestion but that the contents of the Will represented the testator's intention. Where a Will, on its face, has been executed in accordance with the section 9, and where there is no reason to doubt that it represented completely the wishes of the testator, there are two reasons, one practical and one of principle, why the court should be slow, on the basis of extraneous evidence, to hold that the Will was not properly executed.
    8. The practical reason is that oral testimony as to the way in which a document was executed many years ago is not likely to be inherently particularly reliable on, one suspects, most occasions. As anyone who has been involved in contested factual disputes will know, people can, entirely honestly and doing their very best, completely misremember or wholly forget facts and events that took place not very long ago, and the longer ago something may have taken place the less accurate their recollection is likely to be. Wills often are executed many years before they come into their own.
    9. Furthermore, when one is dealing with the recollection of witnesses to a Will, one is, as my Lord, Mummery LJ, pointed out in argument, often, indeed normally, concerned with the evidence of persons who have no interest in the document that has been executed, and therefore to whom the signing of the Will would not, save in usual circumstances, have been of particular significance.
    10. The principled reason for being reluctant to hold that a Will, properly executed on its face, representing the apparent wishes of the testator, should be set aside on extraneous evidence, is that one is thereby declining to implement the wishes of the testator following his death. That would be unfortunate, especially in a case he has taken care to ensure, as far as he can, that his wishes are given effect in a way which complies with the law.
    11. In these circumstances, it is not surprising that in relation to Professor Channon's Will, which had a full and valid attestation clause and represented his wishes, there has to be cogent and clear evidence, i.e. testimony which constitutes "the strongest evidence" before one can justify the conclusion that the judge reached.
    12. As explained in paragraph 33 of the judgment in Sherrington, and as was understandably emphasised by Mr Robert Arnfield, who appears on behalf of the respondents, the claimants below, in this case, there is a competing point of principle. While one should be slow to find that a Will, valid on its face and representing the wishes of the testator, is nonetheless ineffective on grounds of failure to comply with section 9, this court, as an appellate court, should be slow to interfere with the findings of fact made by a trial judge, who heard directly relevant oral testimony and who has delivered a clear and reasoned judgment. However, it should be remembered, in the light of the law summarised in paragraphs 40 to 42 in Sherrington, that this is not a case where the judge simply had to carry out the normal exercise of deciding whether certain witnesses were to be believed or not. It was a case where he had to decide whether, in light of the evidence taken as a whole, he could reasonably conclude that there was "the strongest evidence", that the Will has not been legally executed. Allowing for the fact that that expression is somewhat hyperbolic in its terms.
  156. The passage from Arden LJ's judgment is in these terms:
  157. 43. So, in this kind of case, the court is faced with a situation where the execution of the will by the testator together with the attestation of his signature by the witnesses is regular on its face but one or both of the witnesses come to the court later and give evidence that it was not in fact duly executed.
    44. Lord Penzance refers to the need for the "strongest evidence" before the court will hold that such a will was not duly executed. I accept that, as Mr Robert Arnfield, for the respondent, submits, the requirement for the strongest evidence does not mean that there could be no other evidence that could be stronger. If that were the meaning of the phrase used by Lord Penzance, there would be no case in which anything less than perfect recollection of execution in accordance of the attestation clause could satisfy section 9 of the Wills Act.
    45. So the question of what constitutes the "strongest evidence" for the purposes of this kind of case remains to be explored. As I see it, there is a sliding scale according to which evidence will constitute the strongest evidence in one case but not in another. What constitutes the "strongest evidence" in any particular case will depend on totality of the relevant facts of that case, and the court's evaluation of the probabilities. The court must look at all the circumstances of the case relevant to attestation. The more probable it is, from those circumstances, that the will was properly attested, the greater will be the burden on those seeking to displace the presumption as to due execution to which the execution of the will and the attestation clause give rise. Accordingly the higher will be the hurdle to be crossed to meet the requirement of showing the "strongest evidence", and the stronger that evidence will need to be.
    46. Likewise, if the evidence of due attestation is weak, then the burden of displacing the presumption as to due execution may be more easily discharged and the requirement to show the strongest evidence satisfied. Allegations that were not made, or were not pursued, and mere suspicion, have to be put on one side.
    47. I turn to another point. In paragraph 41 of his judgment the judge said:
    "I do not think it is necessary for me to speculate as to how the signatures came to be upon that document. There are various possibilities but it is not necessary for me to make any finding on what would be no more than a surmise. …
    48. With respect to the judge, it seems to me it will in general be necessary for the court to consider the possible reasons why a witness who signed the attestation clause now avers that it was not signed in the way that the attestation clause states. If the explanation is simply lack of recollection, that on its own may not be sufficient to satisfy the court, but evidence from both witnesses that they were nowhere near the place of execution stated in the attestation clause on the particular date would be likely to carry more weight.
    49. In evaluating all the evidence the judge must bear in mind the policy reason identified by Lord Penzance, namely that the court should not, by its decisions in this field, cause "the greatest uncertainty in the proving of wills".
  158. Thus, I have to decide, in light of the evidence taken as a whole whether there is "the strongest evidence" that the 1999 Will was not executed in accordance with s.9. I must bear in mind the sliding scale referred to by Arden LJ in paragraph 45 of her judgment and the guidance she has given in paragraphs 46 to 49. In so far as different guidance is given by Mr Newey QC in Papillon or Phillimore J in Bercovitz I must follow the guidance from the Court of Appeal in Channon.
  159. In his closing submissions Mr Myerson QC drew to my attention paragraphs 15 to 22 of the judgment of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm). In that passage Leggatt J drew attention to the fallibility of human memory and the usefulness of oral testimony. The passage is lengthy and I shall not set it out in full. In deference to Mr Myerson QC I will set out part of it:
  160. 16. … One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
    17. … psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. … External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else ….
    18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
    19. …
    20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
    21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
    22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, 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. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
  161. I bear these observations in mind. This is, of course, not a commercial dispute. Mr Myerson QC did not and could not submit that, in a disputed will case, the court should ignore the oral testimony of the attesting witnesses. I accept, however, that the fallibility of human memory is a factor to be taken into account in deciding whether there is the strongest evidence that the 1999 Will was not properly executed. Indeed it seems to me that Arden LJ had that factor well in mind in the guidance in paragraph 48 of her judgment.
  162. Submissions
  163. The rival submissions can be summarised relatively shortly. Mr Myerson QC does not submit that either Mr Hallam or Mrs Tomalin were dishonest witnesses. He submits that they are unreliable. He relies on the strong friendship between Mrs Whelen and Mrs Turner. It is thus inherently unlikely that Mrs Turner would commit a fraud on her best friend. He points to the lack of any close relations of Mrs Whelen and the fact that Mrs Whelen had expressed a wish to leave at least Tiltyard Cottage to Mrs Turner. He submits that the evidence of Mr Hallam and Mrs Tomalin is unreliable in a number of respects. He relies on the lapse of time between the date of the 1999 Will and 2005 when the first witness statements were made; he relies on the further lapse of time between 2005 and the later witness statements. Both Mr Hallam and Mrs Tomalin failed to remember that they had signed in two places. Mrs Tomalin had also forgotten having witnessed Mr Turner's will. Mrs Tomalin failed to mention expressly in her 2005 statement that Mrs Whelen was not present when she signed the will. Although Mr Hallam's suspicions were aroused in 2005 he did not test them by putting them to Mrs Turner. He points to the differences between the various statements made by Mr Hallam and Mrs Tomalin and to the extent to which Mrs Tomalin was prepared to speculate. In so far as their evidence became more detailed in later statements he cited that as an example of the fallibility of memory referred to by Leggatt J. In all the circumstances he submits that this is a case like Channon where the evidence to rebut the presumption is inadequate.
  164. Mr Wilson submits that the evidence of due attestation is weak and that this is a case which is at the low end of Arden LJ's scale. He draws attention to the unusual features of the will itself; it is a home made will; only part of the will was written by Mrs Whelen; three other different inks were used to complete Mrs Turner's address and the bequests section. Thus different parts were completed at different times. It is uncertain whether one or more persons completed these sections. It seems likely that Mrs Whelen wrote the word November after Mrs Tomalin placed her signature on the will. That means that either Mrs Whelen signed and dated the will after Mrs Tomalin or that she signed and dated the will at different times. He invited me to reject the affidavits of Mrs Turner. They are made over 13 years after the event. They were not tested in cross-examination and in at least one important respect they are inconsistent with the views of Dr Giles. Indeed Mr Myerson QC accepted the opinion of Dr Giles that both Mrs Turner's and Mrs Whelen's were witnessed by Mrs Tomalin on the same day. He invited me to accept the evidence of Mr Hallam and Mrs Tomalin that they both believed that they were witnessing only one will – that is to say Mrs Turner's will; that they did not knowingly and would not knowingly have witnessed Mrs Whelen's will whom they did not know. He invited me to treat the evidence of Philip and Alan Turner with caution in that there is clear evidence that Mrs Whelen was a private person who did not discuss her affairs and it is unlikely that she would have had so many and so frequent discussions as to where she was going to leave her property. He accordingly submitted that this is a case where there is the strongest evidence to rebut the presumption of due execution. He submitted that this was supported by the two emails Philip Turner sent in February and April 2013.
  165. Discussion and Conclusion
  166. I do not accept that the emails sent by Philip Turner in 2013 really assist the Claimants' case. In my view it is perfectly possible to read those emails as Philip Turner setting out Mr Hallam's allegations. It has to be remembered that Philip Turner was not present in 1999. There is no reason to infer that his mother in effect admitted to him that Mrs Whelen was not present and that the will was not properly witnessed. Indeed the email of 30 May 2013 suggests the opposite.
  167. I have no difficulty in accepting all the conclusions of Dr Giles in her report. I include the conclusion where she felt there was only "weak positive evidence", that is to say the conclusion that Mrs Whelen wrote the word "November" after Mrs Tomalin had signed as a witness.
  168. I do not think I can attach much weight to the relatively detailed account given by Mrs Turner in her two affidavits. It was not tested in cross-examination. She is plainly wrong when she categorically confirms that her will was signed on a different day from that of Mrs Whelen. Furthermore Philip Turner's email of 30 May 2013 suggests that his mother's memory was very limited at that time.
  169. I am satisfied that Mrs Whelen did tell Mrs Turner on a number of occasions in the late 1990's that she would leave her house (Tiltyard Cottage) to Mrs Turner. This appears in the email of 30 May 2013 and is not inconsistent with what she told Mrs Pusey and Mr Fellows in February 2000. As there is no doubt she in fact signed the 1999 Will I think she must have forgotten about it by February 2000. I think it is probable that Philip Turner and/or Alan Turner heard some of these conversations. However, in agreement with Mr Wilson, I am cautious about accepting evidence of private discussions about her intentions with either Philip Turner or Alan Turner.
  170. The terms of the 1999 Will are relatively straightforward. Mrs Whelen had no children and no relatives she wished to benefit. She had expressed a clear intention to leave Tiltyard Cottage to her closest friend and thus that bequest is readily explicable. It is common ground that she was close to all of the members of the Turner family so that the relatively modest bequests to the 3 Turner children are readily understandable. Philip Turner was her godson; hence the bequest to him was larger than to his brothers. There is no evidence as to Elizabeth Shaw. Mr Summers was a great friend of her husband, his business partner and had been Mrs Whelen's accountant and advisor since Mr Whelen died in 1989. It is well understandable that Mrs Whelen should wish to divide the residue between Mr Summers and Mrs Turner.
  171. I agree with Mr Wilson that it is impossible to know why different ball point pens were used for the writing of the will, or how many people were involved but it seems to me more probable than not that the bequests in the will represented what Mrs Whelen wanted at the time she signed the 1999 Will.
  172. agree with Mr Wilson that this case falls at the lower end of Arden LJ's scale. It was a home made will. There is no evidence that Mrs Whelen or Mrs Turner were aware of the formalities necessary for the execution of a will or that they received any advice about it. Certainly Mr Hallam and Mrs Tomalin were ignorant of the necessary formalities. There are some unusual features about the case; the most important being that if the attestation was in accordance with the Wills Act Mr Hallam and Mrs Tomalin would have been asked to witness two wills at the same time and that one will was immediately on top of the other. That is, of course, contrary to the recollection of Mr Hallam, Mrs Tomalin and Mrs Turner. It is also to be noted that all 3 witnesses describe the incident as being "informal", "a very quick casual event".
  173. In the end I have to ask myself how reliable is the evidence of Mr Hallam and Mrs Tomalin bearing in mind the test set out above and repeated at the end of paragraph 12 of Neuberger LJ's judgment. I accept, of course, that there are the problems identified by Mr Myerson QC in his submissions. In the end despite these problems I accept the main and important parts of their evidence. I accept that they were each asked to witness one will and not two. I accept that they were not present together when Mrs Whelen's will was witnessed. I accept that they both believed they were witnessing Mrs Turner's will and that Mrs Whelen was not present at the time.
  174. Once it is accepted that both wills were witnessed at the same time this ceases to be a case where Mr Hallam and Mrs Tomalin have forgotten about the incident altogether. They both recollect the incident and have a recollection of the important parts of it. I accept that they have forgotten the finer details (such as the number of times they signed and precisely what they saw and what was covered up). Mr Hallam's recollection in 2005 was sufficiently clear for him to contact his solicitor and express his concerns. He did this notwithstanding his close friendship with and trust of Mrs Turner. It was sufficiently clear for him to terminate Mrs Turner's employment whether or not he was advised to do so.
  175. With the benefit of hindsight I agree that it would have been better if he or Mr Fellows had confronted Mrs Turner at the time. Apart from anything else it would have enabled further consideration of the question of whether an application should be made for a statutory will. However, that does not affect the reliability of Mr Hallam's and Mrs Tomalin's evidence.
  176. In all the circumstances I am satisfied that Mrs Whelen's will was not executed in accordance with s 9 of the Wills Act 1837 and thus should not be admitted to probate.
  177. 4. Want of knowledge and approval

  178. In the light of my views on execution this point does not arise. However as the matter has been argued I shall deal with it briefly
  179. The Law
  180. I was referred by Mr Wilson to paragraphs 12 and 13 of the judgment of Mummery LJ in Hawes v. Burgess [2013] EWCA Civ 94:
  181. "12. As for want of knowledge and approval of the contents of the 2007 Will, the scope of the inquiry indicated by a long line of authorities gives rise to other questions distinct from lack of mental capacity to make the will: Wintle v. Nye [1959] 1 WLR 284; Fuller v. Strum [2001] 1 WLR 1097; Gill v. Woodall [2011] WTLR 251. The relevant questions to ask in this case are—
    i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said "Yes."
    ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said "No."
    13 In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed."
  182. In paragraph 22 of the judgment in Gill Lord Neuberger MR cautioned against a two stage approach to the question:
  183. 22. 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."
  184. I agree with Mr Wilson that there are features of the 1999 Will that excite suspicion. It is a homemade will prepared or at least obtained by the principal beneficiary. It is by no means clear when the bequests were inserted or who they were written by. There is no evidence that it was read over to Mrs Whelen. It was not properly attested. As against that there is no doubt that Mrs Whelen signed the will. Mrs Whelen had on a number of occasions expressed an intention to leave Tiltyard Cottage to Mrs Turner. Mrs Turner was a lifelong and close friend of Mrs Whelen. Mrs Whelen had no close relatives and did not wish to benefit her distant relatives. The terms of the will are relatively straightforward and easy to understand. Furthermore, as stated above the legacies and residuary gift are readily explicable.
  185. Taking all of these factors into account I would have concluded that Mrs Whelen did know and approve the contents of the will she signed.
  186. 5. The loss of the 1982 Will

  187. Where a will is last traced to the testator's possession and is not forthcoming at his death after all reasonable search and enquiry it is said that there is a rebuttable presumption that he has destroyed it with the intention of revocation – See Welch v Phillips (1836) 1 Moo. P.C 299. One of the leading textbooks, Williams Mortimer & Sunnucks at paragraph 14-30, suggests that the strength of the presumption varies according to the character of the custody that the deceased had over the will and that it is a presumption that may always be rebutted by adducing evidence which raises a higher probability to the contrary. Furthermore there is authority – Sprigge v Sprigge (1865-69) LR 1 P & D 608 which suggests that the presumption does not apply where the deceased became insane after the execution of the will and continued insane until his death. In such a case it cannot be shown whether it was destroyed at a time when the deceased was sane or insane. In the course of argument I posed the question of whether the rule in Sprigge would apply in a case where the deceased became insane a very short time before death and the will had been in her custody for a long period before that.
  188. In the light of the position taken by the next of kin this is not the place for a detailed examination of the authorities. Having regard to Mummery LJ's view about the use of presumptions in this area of law and Lord Neuberger's view about the better approach it seems to me (adapting the words of Latey J in Morris) the court must 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 1982 Will was lost rather than destroyed with the intention of revoking it.
  189. There is no direct evidence that Mrs Whelen destroyed the 1982 Will. In my view no inference can be drawn from the fact that only a copy of the 1982 will could be found. The copy was retained by Mr and Mrs Whelen on 1 November 1982 when the originals were returned to Mr Godfrey. The originals were returned to Mr and Mrs Whelen some 6½, years later on 2 May 1989. There is an inference that can be drawn from Mr Isaacson's letter of 13 July 1998 that Mrs Whelen had not deliberately destroyed the 1982 Will at that time and that she was not at that time certain she could locate it. There is significant evidence that other important documents belonging to Mrs Whelen were lost. This includes the title deeds of some of her properties, and her driving licence. There is evidence that Mrs Whelen believed that her ex-cleaner had stolen documents from her. When Mr Suren searched Tiltyard Cottage he found evidence of an extensive search by unknown persons.
  190. All of these matters lead me to the relatively clear conclusion that on the balance of probabilities it is more likely that the 1982 Will was lost rather than destroyed by Mrs Whelen with the intention of revoking it. Accordingly the Claimants have discharged the burden and I hold that the 1982 Will should be admitted to probate.
  191. 6. S. 116 of the Senior Courts Act 1981

  192. Under the 1982 Will Mr Godfrey is appointed as sole executor. It is clear from the evidence that he is old and infirm and has no wish to undertake the executorship of the 1982 Will. I shall accordingly make an order under s 116 the details of which can be discussed when this judgment is handed down.
  193. I cannot leave this case without expressing my gratitude to all those involved in its preparation. It was helpful to have electronic copies of the bundle. The skeleton arguments, closing oral and written submissions were of a high quality and of great assistance in determining a by no means straightforward and anxious case. In so far as there is a criticism of the preparation it relates to the preparation of and contents of the witness statements which were not confined to the factual material which they addressed but included numerous comments and statements of opinion which were, of course, inadmissible. The parties are referred to Appendix 9 of the Chancery Guide for details of what should and should not be included in a witness statement.

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