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Cite as: [2004] EWHC 1613 (Ch)

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Neutral Citation Number: [2004] EWHC 1613 (Ch)
Case No: HC03C02402

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE ESTATE OF RICHARD SHERRINGTON DECEASED (Probate)

Royal Courts of Justice
Strand, London, WC2A 2LL
13/07/04

B e f o r e :

THE HONOURABLE MR JUSTICE LIGHTMAN
____________________

Between:
DALIAH DORIT SHERRINGTON
DONNA KARINA SHERRINGTON
RAMON GERARD DAVID SHERRINGTON


Claimants
- and -

YVONNE ROSE SHERRINGTON
Defendant

____________________

Ms Elspeth Talbot Rice (instructed by Withers LLP, 16 Old Bailey, London EC4M 7EG) for the Claimants
Mr Paul Teverson (instructed by Berwin Leighton Paisner, 154 Fleet Street, London EC4A 2JD) for the Defendant
Hearing dates: 15th - 18th & 23rd June 2004

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Lightman:

    INTRODUCTION

  1. The claimants in this action Dahlia, Donna and Ramon Sherrington ("the Claimants") are the three children by his first marriage of the late Mr Richard Sherrington ("the Deceased"). The defendant Mrs Yvonne Sherrington ("the Defendant") was the Deceased's second wife and is his widow. In this action the Claimants seek revocation of the grant to the Defendant on the 10th May 2002 of probate of the Deceased's will dated the 7th September 2001 ("the Will"). On the same occasion that the Deceased signed the Will, the Defendant signed her will ("the Defendant's Will"). (I shall refer to the Will and the Defendant's Will together as "the Wills".) The two issues raised in this case are whether the Will was duly executed and whether the Deceased knew and approved the contents of the Will. The onus of proof on the balance of probabilities on both of these issues is upon the Defendant. The legal requirement upon the Defendant to establish these facts is a safeguard in will cases against fraud upon the dead: Re Fuld deceased (No 3) [1968] P 675 at 719 per Scarman J. There is no allegation of undue influence or lack of testamentary capacity.
  2. I have heard a considerable number of witnesses in this case. The larger part gave evidence as to the characters of the Deceased and the Defendant and their relationship with each other and the Claimants. There are however five principal witnesses who also gave direct evidence on one or other or both of the issues in this case. They were the Defendant, her daughter Dr Nathalie Walker ("Dr Walker"), Mr Rafiq Butt ("Mr Butt") (who combined the roles of the Deceased's confidant, friend, business adviser and chauffeur), his wife Mrs Ayesha Butt ("Mrs Butt") (an assistant teacher) and Mr Pranlal Thakkar ("Mr Thakkar") who is also known as Mr Depala and who worked as a cleaner at the Deceased's office in the evenings. This case very much turns on the weight to be afforded to their evidence.
  3. THE RELEVANT HISTORY

  4. The Deceased was born in 1945. He was a successful solicitor, the founding and managing partner of the firm Sherringtons. He was also a successful entrepreneur carrying on a loan business through a company called Barex Brokers Limited ("Barex") of which he was sole shareholder and sole director. By 2001 the Deceased was more a businessman than a practising solicitor. His role in Sherringtons was essentially overseeing the running of the firm. The value of Barex is estimated as about 6 million. On the 17th April 1984 Barex established the Barex Pension Fund ("the Fund"). The Fund is split in two. One share, representing 45.8% of the Fund's value, is appropriated to the Deceased's first wife Gloria Sherrington ("Gloria"). The other share, representing 54.2% of the Fund's value, is appropriated to the Deceased. The value of the shares is in issue. It has been suggested in evidence that their respective values may be 800,000 and 900,000.
  5. The Deceased married Gloria on the 19th December 1971 and the Claimants were born respectively in 1974, 1977 and 1982. The matrimonial home was in Cheyne Walk, Hendon, London. In 1995 the Deceased left the matrimonial home to live with a Ms Maria Baram, a relationship which ended in early 1998. The Deceased commenced proceedings for divorce. In April 1998 the Deceased met the Defendant, who had two daughters at university by an earlier dissolved marriage. In May 1998 the Deceased proposed to the Defendant and they became engaged and began living with each other. Their marriage had to be delayed until the Deceased's marriage to Gloria was dissolved on the 26th May 1999 when a consensual order for matrimonial relief ("the Order") was made which included provision for Ramon as well as Gloria. The Deceased married the Defendant on the 27th July 1999. The Claimants opposed the marriage and refused to attend the wedding. The Deceased and the Defendant tried hard to persuade the Claimants to accept the Defendant, but failed. The relations between the Deceased and the Claimants were strained during this period, but fully healed shortly thereafter.
  6. Sherringtons purchased the practice of a firm of solicitors called Hanchett-Woolstone ("HW") which was about one mile's distance away from the office of Sherringtons. In June 2001 HW lacked a trained lawyer working for it and only had limited other staff, and the Deceased asked the Defendant to help out working (in effect) as a receptionist at HW. The Defendant agreed and the same month began work. Her work involved attending on existing and new clients who came to the office and sending their files and referring their work to Sherringtons. In July 2001 her daughter Dr Walker, who had just completed her work on a PhD on plant ecology, also began to work there. Her primary role was to update the database, but she also assisted the Defendant dealing with clients. Neither the Defendant nor Dr Walker had any legal qualifications or experience. One important part of their work was to obtain the preliminary instructions from clients regarding their wills and to send the clients' existing wills, together with those instructions, to Sherringtons.
  7. At or about the end of August 2001 her work with clients' wills occasioned Dr Walker to ask the Defendant whether she and the Deceased had made new wills. Any will executed by either of them prior to their marriage would have been revoked by their marriage. This question in turn occasioned the Defendant at some time thereafter to ask the Deceased whether they should make new wills. There was no urgency in executing the new wills. As the Defendant said in her evidence: "We were not in a hurry. He was 56 years old. I was 53 years old. There was no rush". The Defendant gave an account of what followed which is challenged by the Claimants. According to the Defendant: (a) discussions followed between the Defendant and the Deceased, and they agreed that they should make reciprocal wills under which each of them should leave their entire estates to the other, and that they would trust the survivor to take proper care and make proper provision for the family, and in particular the children, of the first to die; (b) in reaching this agreement the Deceased and the Defendant had particularly in mind three considerations: (i) that they did not wish the survivor of them in any way to be dependent on the children of the first to die; (ii) that this course had the advantage that no inheritance tax would become payable on the death of the first to die; and (iii) that, in case the Deceased died first, this course ensured that Barex remained in the single ownership and would not require a sale, or the discontinuance of the business of, Barex; and (c) the Deceased decided that, in order to maintain the confidentiality of their testamentary provisions, rather than instruct the experienced staff member at Sherringtons, the Defendant should ask Dr Walker to draft the new wills though she had never drafted a will before in her life and, to assist her, he supplied her with Sherringtons' manual for drafting wills.
  8. Dr Walker has told me that she was very concerned when she learnt of the proposal regarding the Defendant's Will, for she and her sister were still living at a property owned by the Defendant which had been the home of the Defendant before her marriage to the Deceased and she was anxious that she would lose this home if the Defendant died first; and that she accordingly telephoned the Deceased and told him of her concerns. She says that the Deceased replied that she had no cause for concern, for he loved her as one of his own children, that they were one big family, that if the Defendant predeceased him the Defendant could trust him to look after the Defendant's children and (which is challenged by the Claimants) that if the Deceased predeceased the Defendant, he could trust the Defendant to look after his children. Dr Walker says that she was very touched by what he said and her anxieties were allayed.
  9. Dr Walker goes on to say that there was no urgency at this stage and she decided to practise making a will for the Defendant using a word processor and the manual. She found the process time-consuming and had made no great advance before the 7th September 2001. Whether she did practise as she says is in issue.
  10. On the 6th September 2001, on the evening before their flight for a short holiday to France, (according to the Defendant) the Deceased and the Defendant decided that they should execute the Wills before they left and that the Defendant should ask Dr Walker to complete their drafting as a matter of urgency so that they could be executed the following evening.
  11. Dr Walker gave me her account of her implementation of this decision which was supported by the evidence of the Defendant and challenged by the Claimants. In her drafting and preparation of the Wills she used a word processor. She began by drafting the Will. To assist in drafting she decided (instead of using the manual) to use a precedent of a testator's will and to adapt it. As she had no experience in drafting wills, she needed to raise a whole series of questions regarding the drafting as she proceeded. It was important that the Defendant should agree to the provisions of the Wills and accordingly she wanted the Defendant to be present when the Deceased gave any instructions. Dr Walker therefore requested the Defendant to act as conduit passing her questions back to the Deceased and his answers to those questions to her. The Defendant agreed and so acted. When the draft of the Will was completed, the Defendant in the presence of Dr Walker read the draft on the telephone to the Deceased. The Deceased merely said that the Will was "fine". The Will at that stage contained none of the typographical errors apparent in the Will. The draft apparently at one stage provided that, in case the Defendant was unwilling or unable to act as executor or should predecease him, the Claimants should be his executors and that, in case the Defendant did not survive him or disclaimed his estate, his estate should pass to the Claimants. But at some later stage in the drafting process Ramon was no longer included as an executor. Neither the Defendant nor Dr Walker had specific recollection of this change. It may have been made at the stage that the Deceased approved the draft of the Will on the telephone. The draft included in clause 4(b) a provision conferring a power exercisable in case of minor (i.e. under-age) beneficiaries ("the Minority Clause") which was totally inappropriate, for there was no minor beneficiary. No specific reference was apparently ever made to this provision.
  12. Dr Walker says that, after the telephone call she proceeded to draft a mirror will for the Defendant. In the case of the Defendant's Will her two daughters were the default executors and beneficiaries. Dr Walker then prepared engrossments of both wills ready for execution and gave them to the Defendant.
  13. The Deceased's engrossed will (as subsequently executed) read as follows:
  14. "THIS IS THE LAST WILL AND TESTAMENT of me RICHARD MICHAEL SHERRINGTON of PENTHOUSE 19, BICKENHALL MANSIONS, BICKENHALL STREET, LONDON W1U 6BP AND I HEREBY REVOKE all former Wills and testamentary dispositions made by me
    1) I APPOINT my WIFE YVONNE ROSE SHERRINGTON to be the Executor [sic] and Trustee of this my Will PROVIDED THAT if he [sic] shall be unable or unwilling to act in either such capacity or if he [sic] shall predecease me I APPOINT my daughters DALIAH SHERRINGTON and DONNA KARINA SHERRINGTON to be the Executor [sic] and Trustee [sic] of this my Will
    2) SUBJECT to the payment of my just debts funeral and testamentary and other expenses and any capital duties payable on or arising from my death I GIVE DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever situate not otherwise disposed of UNTO YVONNE ROSE SHERRINGTON
    3) SHOULD my said wife fail to survive me by seven days or (if having so survived me) she shall disclaim any part or parts thereof (for which purpose my estate shall be deemed divisible into as many parts as shall be required to give effect to this provision) then I GIVE my said net estate or such disclaimed parts as the case may be unto my said daughters and my son RAMON SHERRINGTON
    4) MY TRUSTEES shall have the following powers:-
    (a) My Trustees shall have the same full and unrestricted power of investing in all respects as if they were absolutely entitled thereto beneficially and subject to no restriction with regard to advice or otherwise in relation to investment and without prejudice to the generality thereof they shall have power to buy sell or retain any freehold or leasehold property whether as an investment or a residence for any beneficiary
    (b) In addition to all other powers conferred by law my Trustees shall have power at any time and from time to time to raise capital and pay or apply the same to or for the benefit of any minor beneficiary hereunder whether or not they shall in so doing exhaust the Trust Fund
    (c) My Trustees may insure to the full replacement value thereof against loss or damage by fire or any other usual risk any property comprised in my estate for the time being or in any Trust fund created hereby paying the premiums out of the income or capital of my residuary estate and any money received by my Trustees under any such policy shall be treated as though it were proceeds of sale of the property insured
    5) UPON my death it is my wish that my body be BURIED TOGETHER WITH MY WIFE.
    IN WITNESS whereof I the said Testatrix [sic] have hereunto set my hand this 7th day of September Two Thousand and One
    SIGNED by the Testatrix [sic] in our
    presence and then by us in hers [sic]"

    It will be noted (as shown above) that the Will contained the typographical errors which I have pointed out. Dr Walker explains them as arising from the erroneous transposition to the Will of language apt and adopted in the Defendant's Will occasioned by the fact that Dr Walker's drafting was constantly interrupted with calls for her attention elsewhere.

  15. After handing the engrossments to the Defendant, Dr Walker left the offices of HW to post her own job applications. An issue has arisen whether the Defendant remained at HW's offices, as she says in her evidence or left the offices to go to her mother's flat. Mr and Mrs Butt say that they picked her up, not from those offices, but from her mother's flat. I prefer the evidence of Mr and Mrs Butt on this issue.
  16. On arrival at Sherringtons both the Defendant and Mrs Butt left the car to enter the building, leaving Mr Butt in the car. The Defendant went to the Deceased's office. Mrs Butt, who was pregnant, needed to use the lavatory and, when she left the car, she went straight there. The Defendant says that she had asked Mrs Butt whilst she was in the car to accompany her up to the Deceased's office. Mrs Butt denies this. Again I prefer the evidence of Mrs Butt on this issue.
  17. On entering the Deceased's office the Defendant took the Wills out of the envelope and handed them to the Deceased. There was a degree of urgency in completing the execution of the Wills if the Deceased and the Defendant were to leave for the airport in time to catch their 9 p.m. flight at Luton Airport. It was already 6.30 p.m. Anxiety about catching planes created a sense of panic in the Deceased. According to the Defendant's account which is challenged by the Claimants, Mrs Butt and Mr Thakkar thereupon witnessed the Deceased's signature to the Will. I shall examine in detail the circumstances in which the Deceased, the Defendant, Mrs Butt and Mr Thakkar signed the Wills when I consider whether the Will was duly executed. According to a witness statement of Ms Deepikaa Vyas (who because of ill-health was unable to attend the trial and whose evidence accordingly could not be tested) the Deceased gave the Wills to her telling her that they were his and the Defendant's wills and instructed her to keep them in a safe place and not let anyone see them, and she did as she was told. On the Deceased's return from France some time after the 11th September 2001, the Deceased asked her to sew up the Wills. She did so and handed them back to the Deceased. She says that, when sewing them up, she read the Wills and noted that Mrs Butt and Mr Thakkar were the witnesses. The Deceased then placed the Wills in a filing cabinet in the Deceased's office.
  18. After her return to the car Mrs Butt made no mention to Mr Butt that she had signed any document, so far as she was concerned nothing of any significance had occurred. Mr and Mrs Butt thereupon drove the Deceased and the Defendant to the airport.
  19. On the 1st October 2001, the Deceased went to Australia to see his daughter Donna, returning on the 20th October 2001. On the 30th October 2001 the Deceased was killed in a car crash aged 56 years.
  20. Mr John Lewis was the Deceased's accountant and close confidant with whom he discussed every aspect of his business and personal life. This included the Deceased's relationship with the Defendant and the Deceased's wish to make provision for the Claimants in the event of his death. Yet the Deceased never discussed the Will with him. The Will and its contents were a total surprise to Mr John Lewis when it came to his notice after the Deceased's death, and accordingly, when he saw the signature of Mrs Butt on the Will, he asked Mr Butt why Mr Butt had not told him that Mrs Butt had "witnessed" the Will. Mr Butt replied that Mrs Butt had not told him that she had done so. Mr Butt then asked Mrs Butt why she had not told him that she had "witnessed" the Will. Mrs Butt told me (and I accept her evidence) that she then realised for the first time that the documents which she had signed were wills and that she understood that the expression "witnessing" a will was apt to cover the situation where she had merely signed a document which (unknown to her at the time) had been a will. On that understanding she answered Mr Butt saying that she had "witnessed" the Will.
  21. As I have already said, the Defendant was granted probate of the Will on the 10th May 2002. The value of the Deceased's estate was valued for probate purposes at 2.8 million. Its real value lies closer to 10 million. These proceedings were commenced on the 2nd July 2003. Mr Neil Arthur was appointed administrator of the Deceased's estate pending the outcome of the action on the 29th March 2004.
  22. During the Christmas period 2001 Mr and Mrs Butt went to visit the Deceased's brother Mr Howard Sherrington ("Howard") and his wife Mrs Shirley Sherrington ("Shirley"). This was not just a courtesy or social visit. Mr Butt felt very strongly that the provisions of the Will were very unfair both to the Claimants and himself. No provision was made for the Claimants despite their place in the Deceased's affections and no provision was made for him despite his faithful service over many years. Mr Butt was on unfriendly terms with the Defendant. Mr Butt wanted to see if anything could be done. On the occasion of this visit Mr Butt told Howard and Shirley that Mrs Butt had "witnessed" the Will and Mrs Butt assented that this was so.
  23. Solicitors also approached and interviewed Mr Thakkar seeking a statement. This was a very difficult exercise because Mr Thakkar has a very limited understanding of English. He had to give evidence through an interpreter as his first language is Gujarati. Whilst a statement was eventually drafted, he refused to sign any statement and he had to be subpoenaed to give evidence.
  24. CHARACTERS AND RELATIONSHIP BETWEEN THE DECEASED AND THE DEFENDANT

  25. A large number of members of the Deceased's extended family and of his friends (as well as the Defendant and Dr Walker) gave evidence regarding the characters of the Deceased and the Defendant, their relationship with each other and their relationship with the Claimants and the state of their marriage. This evidence is directed most particularly to the issue whether the provisions of the Will accord with the Deceased's known wishes at the time of its execution. I should briefly summarise this evidence. I make it plain that I am not concerned with the cause or blame for any conflict or breakdown in the relationships between the Defendant and the Deceased and the Defendant and the Claimants, but with the relationships as they existed and the Deceased's perception of these relationships when he made the Will.
  26. The Deceased was lively and sociable, indeed larger than life. He had a booming voice and a forceful personality. He had a strong character and generally got his own way. As Dr Walker stated in her evidence, he was an impatient, restless man who liked to get things done quickly. He was until his marriage to the Defendant self-confident, outgoing and an optimist. The extrovert exterior however concealed a sensitive and vulnerable person who hated conflict and confrontation and would do anything for a peaceful life. He was in every way a family man. He was a very loving and supportive father totally devoted to the Claimants notwithstanding their attitude to the Defendant. He was supportive towards them, not merely in financial terms but in everything which they did. There was nothing he would not do for them. His total commitment to his family included Gloria. He remained on good and indeed affectionate terms with her, kissing her when he met her, notwithstanding the divorce. He regularly visited her, ate her chicken soup and gave her presents until his death. The Deceased continued to behave in this way despite the serious objection voiced to this conduct by the Defendant and the fact that it was plainly hurtful to the Defendant. The Deceased was devoted to his 94 year-old mother who lived in a nursing home and financially provided for her. He was loving to his two brothers and to Howard's wife Shirley. His generosity was boundless. He was a man of honour who believed in fulfilling his obligations as he saw them.
  27. The Deceased's desire for a peaceful loving and united family included (on his marriage to the Defendant) the Defendant and her family. On his marriage he set out to establish a close and loving relationship with the Defendant and her children. The Deceased succeeded in establishing a close and loving relationship with the Defendant's children but his relationship with the Defendant quickly went sour. The Deceased never could persuade the Claimants or Gloria to accept the Defendant. Gloria refused to communicate with the Defendant and the Claimants' loyalty was to Gloria and they would never allow a close relationship to arise between them. The Deceased never resolved this impasse.
  28. The Defendant on her marriage to the Deceased faced challenges which any second wife would have found difficult to cope with in the attitude adopted towards her by the Claimants and Gloria and the Deceased's continuing relationship with Gloria. Gloria, as it seemed to her, was trying to maintain a hold on the Deceased. She considered that, as the Deceased's wife, the Deceased should place her first and show his primary loyalty to her. The Deceased's loyalties were however always divided between on the one side Gloria and the Claimants and on the other the Defendant. The Defendant had an even more forceful personality than the Deceased. She was charming, but (as Shirley vividly portrayed her) she was also a person who knew what she wanted, insisted on getting her own way and, if she did not get it, her mood totally changed and she was resentful and her charm gave way to a display of deep animosity. (The Defendant displayed this characteristic when she gave evidence.) The Defendant often did not get her own way in the family set-up in which she found herself and the Defendant regularly felt it necessary to assert herself and show the deep anger which she felt. She would shout at the Deceased and at least once locked him out of the house. Their relationship was volatile and tempestuous. There were vehement rows and storms. The Deceased complained bitterly to family and friends alike about the Defendant referring to her in abusive terms such as "Hitler" and a witch. He needed to get away from her and for this reason took holidays with Ramon alone. The unhappy situation that developed was such that the Deceased felt and expressed to others the view that the marriage had been a mistake, indeed "the biggest mistake in my life", and that the Defendant was only interested in him for his money. He stated that he had great concern for the future. He must have realised that the marriage could not last. The strains of his relationship with the Defendant occasioned the Deceased obvious stress and deep unhappiness. The change that came over him was readily apparent. He became depressed and withdrawn. In a letter dated the 17th October 2002 from Mr John Lewis to Mr Stephen Rosen of DTE Kramers, Mr John Lewis wrote:
  29. "Prior to Richard's travel to Australia, I had been to see him on many occasions, in respect of the accounts of Sherringtons and one particular occasion it was to complete the Forms for the Solicitors Indemnity Fund (SIF).
    Richard was unable to cope with SIF form in any shape or form whatsoever.
    I would enter his office and he would have his head slumped over the desk as if asleep and unable to communicate.
    I saw him in this state on quite a few occasions, as did Soli Daruwalla.
    I would ask him 'is there anything I can do to help you'. Then would come in a very deep voice, as if from the depths of the ocean saying, 'No, thanks'.
    In those circumstances it was very nearly impossible let alone difficult to get the SIF Forms completed, but also impossible to deal with anything on the Accounts of Sherringtons. He would put every thing off and seeing him in such a state of what appeared to be mental turmoil or anguish one was somewhat loath to add any pressure in those circumstances. I am sure you understand this with your experience of clients over the years. I had never ever seen him like this ever before. But he was like this for days and days and I began to believe that he would never go on holiday for this reason."

    When faced in the witness box with the contents of this letter, the Defendant insisted that Mr John Lewis wrote another letter absolutely contradicting everything that he wrote in this letter and that this further letter was in her file. Though I requested her to do so, she never produced this further letter and quite plainly it never existed. The Defendant conjured it up to counter the unpalatable effect of Mr John Lewis' letter. The description of the Deceased by Mr John Lewis accords with the picture painted by the other evidence before me.

    WITNESSES

  30. Before I turn to the two issues in this case I should say a preliminary word about the five principal witnesses ahead of examining their evidence on the critical issues. The Defendant and Dr Walker are interested and not independent witnesses. I found the Defendant to be an unsatisfactory and unreliable witness. She is a person who is quite unable to come to terms with unpalatable facts and will say anything that comes to mind irrespective of its truth to contradict them. An example is her response when faced with Mr John Lewis' letter dated the 17th October 2002. Her total conviction of the righteousness of her cause blinds her to any facts adverse to her case. She showed herself to be aggressive, intolerant, ready without any basis to charge anyone who gave evidence adverse to her cause with deliberately lying. She refused to answer questions directly. She fenced. She constantly interrupted counsel's questions. Dr Walker began as a composed and helpful witness but as soon as she was questioned about the drafting of the Wills, became unnerved, uncomfortable and agitated. The cross-examination revealed that she had good reasons for her anxiety, for her evidence when tested lacked credibility. The other three principal witnesses are independent. Mr Butt was highly partisan and I can give limited weight to his evidence. I found Mrs Butt honest and truthful. Mr Thakkar, because of his very limited understanding of English gave evidence through an interpreter. Though in answering questions and in stating his recollection both before and at the trial he was often "out of his depth" and easily confused, he was in my view anxious to tell the court the truth as he saw it.
  31. DUE EXECUTION

  32. Section 9 of the Wills Act 1837 (as substituted by the Administration of Justice Act 1982) provides (so far as is material) that no will shall be valid unless it is signed by the testator, unless the testator's signature is made in the presence of two or more witnesses present at the same time, and unless each witness attests and signs the will in the presence of the testator. Despite suggestions to the contrary in Re Benjamin [1934] 1 All ER 359, it is quite clear that: (1) for the valid execution of a will, the burden is on those propounding the will to establish on the balance of probabilities that the technical requirements of the Act are strictly complied with irrespective of whether such insistence defeats the testator's intent (see Re Colling Decd [1972] 3 All ER 729) and; (2) although it is unnecessary that the attesting witnesses know that the document they are signing is a will, it is necessary to show that the attesting witnesses when signing the will intended by their signatures to verify that the testator had signed or acknowledged his signature in their presence (see Re Beadle [1974] 1 WLR 417 at 421). For this purpose it is sufficient that the will bears the signature of the testator, that two persons are asked to sign (and do sign) as witnesses and the testator's signature is so placed that the witnesses could see it, whether or not they in fact did so: Daintrey v. Butcher (1888) 13 PD 102. The issues on due execution are whether the Deceased signed the Will in the presence of two attesting witnesses (Mrs Butt and Mr Thakkar) and whether those two attesting witnesses signed the Will intending thereby to attest or witness that the Deceased signed in their presence.
  33. The Will on its face appears to have been validly executed and in the absence of other evidence the court would have presumed that it had been validly executed. This presumption would have been reinforced by the fact that the Deceased was an experienced solicitor and that it is prima facie improbable that an experienced solicitor would fail to ensure that the required formalities were undertaken to ensure the validity of the Wills. There is however direct evidence on the issue of due execution and that evidence has to be evaluated.
  34. After the Defendant had handed the Wills to the Deceased and told him that Mrs Butt was in the lavatory, the Deceased or the Defendant summoned Mr Thakkar and the Deceased asked the Defendant to summon Mrs Butt. The Defendant went to the lavatory and called to her asking her to come to the Deceased's office as soon as she had finished. Whilst the Defendant was doing this, Mr Thakkar entered the Deceased's office. Whilst waiting with Mr Thakkar for the Defendant to return with Mrs Butt, the Deceased (in the words of Mr Thakkar) "was just sitting there crossing his hands". There is no evidence before me that the Deceased read the Wills and I do not think that I can or should infer that he did so. All I can and should infer is that he identified the Defendant's Will and, when the Defendant returned to the Deceased's office, handed it back to the Defendant. Shortly afterwards Mrs Butt entered his room.
  35. The critical issue is what happened next in an episode lasting at most 5 minutes. I shall first set out the Defendant's account. She says that the Deceased told Mrs Butt that she and Mr Thakkar were going to witness the signatures of himself and the Defendant (and may have said that the documents were wills) and should sign every page adding on the last page their addresses; and he went on to tell Mrs Butt to translate his directions to Mr Thakkar. Mrs Butt thereupon spoke to Mr Thakkar in a foreign language (evidently Urdu). The Deceased then signed the three pages of the Will and Mr Thakkar and Mrs Butt signed where shown. In the course of this process the Defendant also handed to them her will to sign and the Deceased angrily told her to take it back: she must sign it first.
  36. I turn now to the account of Mrs Butt. She says that the Deceased asked her to sign the sheets of paper and put her address on one of the pages and to pass on these instructions translated into Urdu to Mr Thakkar. She did exactly this. She did not see the Deceased sign the Will and did not see or notice his signature. She had no idea that what she was signing was a will and had no intention to verify or attest the Deceased's signature.
  37. Mr Thakkar's evidence is much to the same effect. After Mrs Butt arrived in the Deceased's office the Deceased (plainly through Mrs Butt) told him to sign the papers before him and he was then told either by the Deceased or the Defendant where to sign and where to write his address. He did not read the pages he signed, he did not see the Deceased sign or his signature, he did not know what the pages were and he had no intention to attest or verify the Deceased's signature.
  38. Mrs Butt was an impressive witness. She gave her evidence clearly and without hesitation. She has nothing to gain by telling anything other than the truth. I accept that her husband felt strongly and expressed his view strongly, most particularly to Howard and Shirley, that the Will failed to make proper provision for the Claimants and indeed himself, and that her husband is considerably older than herself. But I have no reason to believe that she has in any way consciously or otherwise moulded her evidence to reflect his wishes. She impressed me as a person who knows her own mind and, whilst (as she told me) she respects Mr Butt as her husband, that does not mean that she does what he tells her, let alone in respect of her evidence. In a word, she has given cogent evidence that the statutory requirements were not complied with.
  39. I do not think that the force of her evidence is in anyway inconsistent with what she and Mr Butt told Howard and Shirley on the occasion of the visit they made to them. As I have already said, Mr Butt told them that Mrs Butt had "witnessed" the Will and Mrs Butt assented that this was so. (When Mrs Butt in her evidence said that she said nothing, she clearly meant that she merely assented to what her husband had said in this regard.) But it is clear from Mrs Butt's evidence that in so speaking she did not intend to say more than that she had signed the Will. She did not know the technical meaning of the phrase "witness the will" and had no intention to convey the meaning that she signed as a witness intending to verify the Deceased's signature.
  40. The evidence of Mr Thakkar not merely accords with the evidence of Mrs Butt. It is exactly what one would expect if (as Mrs Butt says) the instructions which she passed on to him in Urdu were simply to sign and write his address where shown.
  41. There is however a complicating factor in respect of Mr Thakkar's evidence. Mr Thakkar was requested by two firms of solicitors to give an account of events when he signed the Will. He first saw Ms Pauline Fowler. The interpreter arrived late at the meeting. During the interview, Mr Thakkar said that he had seen the Deceased sign the Will. Mr Thakkar explained to me that this was a lie and that he lied because he feared for his continued employment by the Defendant. He secondly saw a Ms Annabel Crumley. On this occasion Mr Thakkar repeated the "lie" because he did not want to change his story. It is sufficient to say that there are inconsistencies between what Mr Thakkar told the two solicitors and what he has said in his evidence. Mr Thakkar insists that, whatever he may have said or been taken to have said previously, what he told me in his evidence was true.
  42. Mr Thakkar had no understanding of what was going on in the Deceased's office. He has resented his unknowing and unintended involvement in this family dispute. In all of this dispute regarding his role he has been very much "out of his depth". He has also felt vulnerable and that his job at Sherringtons was on the line. This and the ambiguity of the phrase "witnessing a will" has been the occasion for the varying accounts that he has given over the period. But in my judgment when giving evidence before me Mr Thakkar was an honest witness trying his best to recall with accuracy what occurred and, even if a discount should be allowed on the weight to be afforded to his evidence on account of his previous inconsistent statements, I think that his evidence affords support for that of Mrs Butt.
  43. I must weigh on the other side the evidence of the Defendant. As I have said I did not find the Defendant a satisfactory witness. I have already indicated a number of respects in which I have rejected the Defendant's evidence as to the circumstances leading up to the execution of the Will. I shall have to indicate others later when I turn to the issue of knowledge and approval. I did not find her account of the circumstances in which the Will was signed convincing. It had the air of wishful reconstruction rather than recollection. Most certainly her evidence cannot stand with that of Mrs Butt (still less with the evidence of Mrs Butt supported by that of Mr Thakkar).
  44. I should make clear that I have brought into account the probability or otherwise of the Deceased having failed to give the necessary instructions to ensure that the Will was properly executed. What I have to bear in mind are the circumstances of execution and the character (as disclosed in the evidence) of the Deceased. The Deceased was a man used to getting his own way who was impatient and who (as the Defendant and Dr Walker told me) paid little regard to rules. He saw no occasion to let Mrs Butt or Mr Thakkar (any more than anyone else in the office save possibly Ms Vyas) know what he and the Defendant were about. There was a degree of rush to catch the plane. In a sentence, I do not think that the conduct of the Deceased, as described by Mrs Butt and Mr Thakkar, is out of character. Whether so or not however, I am satisfied that the cogent evidence of Mrs Butt (supported if necessary by the evidence of Mr Thakkar) ought to be accepted.
  45. In my judgment what happened was that (unknown to and unnoticed by Mrs Butt and Mr Thakkar) the Deceased signed the Will and he then merely told Mrs Butt and (through Mrs Butt) Mr Thakkar to sign and write their addresses where indicated. The Deceased did not draw their attention to his signing the Will nor did he acknowledge his signature or draw attention to it. Nor did he tell them that they were to sign as witnesses. No explanation was given of the nature of the document to be signed or the purpose of their signatures. Mrs Butt and Mr Thakkar signed with no intention beyond complying with the Deceased's instruction. They had no intention, and no reason to intend, to verify or attest the Deceased's signature. For them signing was a matter of no significance and it was for that reason that Mrs Butt did not even mention the incident to Mr Butt. The significance only emerged as a surprise to her after the Deceased's death.
  46. The Defendant has accordingly failed to establish that the Will was validly executed.
  47. KNOWLEDGE AND APPROVAL

  48. In view of my decision that the Will was not validly executed, it is unnecessary to determine whether the Deceased knew and approved the contents of the Will. But since the parties have fully argued this issue, I should express my view on this more difficult question.
  49. Where the circumstances attending or relevant to the preparation of a will excite the suspicion of the court that the will does not express the testator's true wishes, the court is insistent that probate is not granted of that will unless the suspicion is removed. The facts give rise to a suspicion if the person who has prepared or been instrumental in the preparation of the will is a beneficiary under the will. The degree of suspicion and the ease or otherwise with which it may be dispelled depends on the circumstances of the case and a circumstance is whether the provisions of the will are in accord or at variance with the testator's known affections and intentions.
  50. The role of the court on this issue does not extend to determining the reasonableness of the provisions of the Will or of the disappointment of the legitimate expectations of the Claimants save in so far as they throw light on the issue of knowledge and approval. (The legislature has since 1938 provided a statutory remedy for dependants from whom provision has unreasonably been withheld.)
  51. The Will in this case was prepared by Dr Walker on what the Defendant says were the oral instructions given to her by the Deceased which she communicated to Dr Walker and under the Will the Defendant was the sole beneficiary. The circumstances are such as to bring into play the requirement that the Defendant must establish on the balance of probabilities that the Deceased knew and approved the contents of the Will. The suspicion might be slight and easily dispelled if the terms of the Will were explicable by the normal loving relationship between a testator and his spouse and sole beneficiary. But in this case the Deceased's relationship with the Defendant was quite abnormal and the Deceased's estate was amply sufficient to provide also for the Claimants to whom he was devoted as well as the Deceased. No complaint is made in respect of the failure to make testamentary provision for Gloria.
  52. The evidence before me establishes clearly that: (1) the Deceased's relationship with the Defendant by the date of the Will was so bad that it occasioned the Deceased great unhappiness and a deep depression; (2) the Deceased took and expressed the view that his marriage had been a terrible mistake and that the Defendant may only have married him for his money; (3) the Deceased felt deeply antagonistic to the Defendant and spoke of his antagonism in extreme terms; (4) the Deceased was totally committed to the Claimants and was concerned to provide for their future; and (5) the Deceased knew of the history of bad (or no) relations between the Defendant and the Claimants.
  53. There are four extraordinary features of the Will and the circumstances of its execution. The first is that by leaving everything to the Defendant the Deceased made the Claimants dependent for any benefit from his estate on the whim of the Defendant a person whom he could not trust to act in this role. The second is that the Deceased (a very wealthy man) committed the preparation of his will to a novice who has never drafted a will in her life before when experienced draftsmen were readily available. The third is that the Will contained a series of obvious typographical errors and the out of place Minority Clause. The fourth is that the Will was prepared in the course of one day in a totally unnecessary rush leading to use as one of the attesting witnesses of a person with such a limited understanding of English that the other attesting witness was required to translate the Deceased's instructions to him.
  54. I turn to consider the evidence of the Defendant and Dr Walker as to the circumstances in which the Will was made and the reasons why it was made. The Defendant's evidence is to the effect that on the night of the 6th September 2001 she and the Deceased agreed to make reciprocal wills and that in all the discussions that took place between the Deceased and the Defendant leading up to the decision to make reciprocal wills the Deceased never once mentioned the Claimants. I do not find this evidence credible (let alone convincing). The Deceased would not have entered into discussions leading to an agreement to make the reciprocal wills without fully considering and raising the topic of the Claimants and the provision to be made for them. Likewise I find the evidence neither credible nor convincing that the Deceased knowingly agreed to reciprocal wills in the terms in which the Will and the Defendant's Will are drafted. The reasoning attributed to the Deceased is plainly the product of (wishful) reconstruction. Provision could have been made for the Claimants without leaving the Defendant in any way dependent on them, without incurring liability to inheritance tax on the Deceased's death and without requiring any sale or discontinuance of the business of Barex, and this would have been obvious to the Deceased. I am not satisfied that there was any agreement between the Deceased and the Defendant save that each of them should make a will.
  55. I turn to the evidence of Dr Walker of her telephone conversation with the Deceased about the risks to her sister and herself arising from the terms of the Defendant's Will as regards their home if the Defendant died first. I am prepared to accept that Dr Walker had a conversation regarding the Defendant's home and was reassured that the Deceased would look after her if the Defendant predeceased him. I have no doubt that the Deceased would indeed have looked after her. I do not think that the Deceased said anything about the Will. Having regard to the relationship between the Defendant and the Claimants, it is totally improbable that the Deceased said what Dr Walker attributes to him. Further that what the Deceased said was limited to the impact of the Defendant's Will on Dr Walker is in accord with the record of the conversation in the Defendant's solicitor's letter dated the 9th October 2002.
  56. I do not accept the evidence of the Defendant and Dr Walker that the Defendant read the whole of the draft Will to the Deceased. Their account of this conversation and the circumstances in which it took place is not credible. Three matters stand out. The first is that Dr Walker insists that prior to the 7th September 2001 she made a limited start using the word processor drafting the Defendant's Will, and that she put this aside on the 7th September 2001 to begin drafting the Will. This evidence was given in an effort to explain how it was that the draft of the Defendant's Will was saved on the word processor earlier than the Will notwithstanding her evidence that on the 7th September 2001 she began by drafting the Will. In my judgment the Defendant's Will was saved first because on the 7th September 2001 she began drafting and completed drafting the Defendant's Will before she began drafting the Will. I do not accept her evidence of efforts at drafting at any earlier date. The fact that the draft of the Defendant's Will was prepared and saved first explains the typographical errors in the Will: these are attributable to the use by Dr Walker of the draft of the Defendant's Will as the precedent for the Will and to her failure to make the appropriate corrections.
  57. The second matter which stands out is that, if the Defendant had read out the whole of either draft, the Deceased must have noted the totally inappropriate "Minority Clause" and required its omission: it stood out like a sore thumb. If the Defendant had read out the draft of the Will, the draft would have included the typographical errors and the Deceased would also have required their correction.
  58. The third matter is the failure of the Defendant and Dr Walker in their evidence satisfactorily to explain when the Deceased decided to exclude Ramon as a default executor. According to their evidence, at some stage a decision was made to exclude Ramon, but whilst neither had any recollection when and how this decision was made and communicated to them, Dr Walker thought that this may have been when the Defendant read the Will to the Deceased on the telephone. But if this is so, the Deceased when reading the Will did not merely say that the Will was fine as the Defendant and Dr Walker insisted in their evidence. If the decision to drop Ramon as default executor occurred at that stage, its implementation involved redrafting, not merely clause 1 (omitting his name as one of the default executors) but also in clause 2 (adding his full name and description "my son Ramon Sherrington"). Neither the Defendant nor Dr Walker had any recollection of this exercise.
  59. I am not satisfied on the balance of probabilities that the Deceased was ever informed of the contents of the Will or ever read it. The evidence establishes (and establishes no more than) that the Defendant was instrumental in drafting the Will and put it before the Deceased for execution and that the Deceased thereupon executed it. The Deceased had an opportunity to read it when it was handed to him but I am not satisfied that he did read it. The Defendant has failed to discharge the onus of proof which rests on her to prove that the Deceased knew and approved of the contents of the Will when he signed it. It may be that only in exceptional cases the court will hold that a solicitor in practice did not know and approve the contents of his will, but Ms Talbot Rice (counsel for the Claimants) has satisfied me that this is such an exceptional case. Since the Defendant has failed to discharge the onus of proof resting on her, her claim to probate must fail on this ground also.
  60. CONCLUSION

  61. Accordingly for the two separate and distinct reasons which I have given I order that the grant of probate of the Will to the Defendant be revoked.
  62. *********


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