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||Neutral Citation Number:  EWHC 915 (Ch)
||Case No: 5BS50324
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (PROBATE)
BRISTOL DISTRICT REGISTRY
||Royal Courts of Justice
Strand, London, WC2A 2LL
||27th April 2006
B e f o r e :
THE HONOURABLE MR JUSTICE HART
|| (1) MARK WESTENDORP
(2) JILL WESTENDORP
||- and -
||JOHN FREDERICK WARWICK
Mr John Sharples (instructed by Milne & Lyall) for the Claimants.
Mr Michael Waterworth (instructed by Hood Vores & Allwood) for the Defendant.
Hearing dates: 14, 15, 16 March 2006
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Hart :
- This claim concerns the validity of a Will dated 31st August 2004 of the late Marjorie Hodges ("Marjorie") who died aged 80 on 10th September 2004 of a heart attack. By that Will, which was made in manuscript on a stationers' will form, Marjorie appointed the claimants (her son-in-law Mark and her daughter Jill) to be executors, left the whole of her estate to:
"My daughter Jill Westendorp to do with as she pleases"
- That Will, if valid, revoked an earlier Will made on 20th August 2003 which had made provision for her sister's children out of the half share which she owned in a bungalow called "Kingsmead" in Norfolk, and which left her residue in equal third shares to Jill, to Kenneth Pimbley (who was Jill's first husband and father of one of Jill's four children) and Michael Hodges (who was the son of her late husband Richard by his first marriage). The defendant (Mr Warwick), who is her sister's husband, was appointed executor under that Will.
- Mr Warwick had had an extensive involvement in the affairs of Marjorie and her late husband Richard at least from the early 1990s. Both Richard and Marjorie suffered from ill-health. In Richard's case this stemmed from TB which he had contracted as a teenager and which left him with acute respiratory problems throughout his life. In Marjorie's case the health problem was psychological. She suffered badly, from quite an early age, from depression for which she received treatment intermittently throughout their married life.
- In the 1980s Richard and Marjorie went to live in Norfolk, having previously lived in London. Marjorie, however, found it hard to settle. They moved from one residence to another in Norfolk. Then, they conceived the idea of moving into a new-build development in Gloucestershire. That quickly proved unsatisfactory and they moved back to East Anglia. With their money tied up in the Gloucestershire property they were now in somewhat strained financial circumstances and considered moving into a mobile home in a caravan park. This seemed to Mr and Mrs Warwick to be a disastrous idea. So Mr and Mrs Warwick offered to help them buy Kingsmead. There they settled successfully in 1993.
- Kingsmead cost £45,000. Of that, £20,000 was contributed by Mr and Mrs Warwick. Richard and Marjorie executed a Deed of Trust under which they held the property as to half for themselves as beneficial joint tenants and as to half for Mr and Mrs Warwick's three children. There was provision entitling Richard and Marjorie to live there rent free and preventing the property being sold without their consent or the consent of the survivor so long as it remained their home. The Deed envisaged similar provisions as applicable to any substitute residence. The Deed also recited Richard and Marjorie's intention to make wills leaving their share in the bungalow to Mr and Mrs Warwick's three children, and provided that, if they should not do so, the children would be entitled out of the sale proceeds to a sum calculated as simple interest (it would seem on the £20,000) at Halifax Building Society rate.
- For reasons which have not been explored in the evidence before me Richard and Marjorie had for very many years an estranged relationship with their daughter Jill. Mr Warwick's evidence was that "right from the time when Jill was a teenager Marjorie never had a good word to say for Jill". Jill told me that, until the events with which I am concerned, she had not visited her mother since 1991. When Richard died in January 2003 she had gone to the funeral but had not gone back with Marjorie to Kingsmead. Jill's first husband Ken Pimbley (from whom she was separated in 1984 and divorced in 1986) had, however, kept in touch with Richard and Marjorie. He visited them both in Gloucestershire and subsequently Norfolk with Jamie (Jill and Ken's son) and his new partner, Julia. It is clear that Marjorie was fond of Ken.
- In 2001 Richard's physical health declined. Marjorie had also began to show signs of loss of short term memory and had ceased to be able to deal as reliably as she had in the past with the management of mail and household accounts. Richard then moved into sheltered accommodation. Marjorie declined to do so saying that she did not wish to leave Kingsmead and would never move into sheltered accommodation of her own free will. Her ability to continue living at Kingsmead on her own was facilitated by carers provided partly by a housing association and partly by Royal United Kingdom Benevolent Association (RUKBA). RUKBA also gave direct financial support to her and Richard.
- Richard died on 9th January 2003. The RUKBA assistance then terminated. Thereafter, Mr and Mrs Warwick helped organise additional help for Marjorie from Norfolk Social Services, and Marjorie executed an enduring power of attorney in favour of Mr Warwick on 28th January 2003, so that he could deal with all her financial affairs. This he appears to have done with scrupulous efficiency thereafter. Marjorie's short term memory problems continued and if anything worsened. She was continuing to drive her own car, and there was more than one occasion on which she became lost on the road and the police had to be called in to find her. As well as having her memory problems she was incontinent. She seems to have been unwilling to admit to either of those problems, and particularly the latter. It is not suggested, however, that she was in any relevant sense incapable either when she executed the enduring power of attorney in January 2003, the Will in August 2003 or, subsequently, a letter of wishes which she signed in March 2004.
- The August 2003 Will was a relatively elaborate document. It settled the half share in the bungalow on trusts for Mr and Mrs Warwick's' three children for life with gifts over to their respective children. The residue was given to Jill, Ken and Michael in equal shares, with provision that if Jill predeceased her share was to go to Ken and Jamie, if Ken predeceased his share was to go to Jamie and Julie, and if Michael predeceased his share was to go to Jill and Ken. All these provisions repeated the effect of an earlier Will which she had made in 1998 (which did not mention Jill at all) as supplemented by a codicil which she later made which had brought Jill in. It was clear from Mr Warwick's evidence that he was to a degree instrumental in encouraging Marjorie to make the 2003 Will. He was also responsible for successfully coaxing her, over a considerable period of months, to finalise the letter of wishes which she signed in March 2004.
- Contact between Jill and Marjorie seems to have been re-established at about the same time, i.e. March 2004. This contact was entirely by telephone. Jill lives in Bridport, a 7 hour drive away, with her husband Mark and their daughter Star, and Jill's son (by a different relationship) John Turner. To the astonishment of all those who had had close contact with her over the past few years, Marjorie went off to stay with Jill and Mark in Bridport on 5th August 2004. In that short space of time between then and her sudden death she revoked Mr Warwick's enduring power of attorney, executed a new one in Jill's favour, applied for sheltered housing to a Housing Association in Bridport and made the disputed Will.
- These developments caused the astonishment which they did because they all seemed quite inconsistent with her previously stated wishes. She had apparently been happy and settled at Kingsmead. She had always previously expressed a dislike of living in too close proximity to children. She had always previously resisted the idea of going into sheltered accommodation. Moreover she had shown no wish to be reconciled with Jill and had never even met Mark or Star.
- Two events in her life appear to have played a part in precipitating this sudden move. First, mounting concerns amongst her carers as to her safety on the road had led in about June 2004 to her being medically assessed as unfit to drive. This was very upsetting for her. In younger days at one stage she had driven cabs for a living. Kingsmead is an isolated property and being deprived of her car represented a blow, both practical and psychological, to her sense of independence. There was also a change at about this time to the way in which she received her old age pension. The system whereby she had a pension book and could collect her pension from the post office changed. The pension now became payable into her bank account, and Mr Warwick therefore took to sending her the money every fortnight by registered mail. He would accompany these mailings with letters reminding her of what the money represented, and where to put it and so forth. These letters, written in a spirit of the most genuine care, could have been seen by her, and very probably were, as patronising. She conceived the notion that Mr Warwick had in some way been responsible for her having been deprived of her driving licence, and that he was over-controlling in his handling of her finances.
- Notes made by the Norfolk Social Services carers during July 2004 give an indication of the direction in which her mind was then moving. On 15th July Ms Gillies the Community Mental Health Nurse recorded:
"Marj seemed cheerful and pleased to have a visitor. She told me that she is not permitted to drive and whilst feeling angry about that was accepting of the reasons. Marj remembered the arrangements for carers to do her shopping etc. She also mentioned being a little unhappy with Mr Warwick but didn't go into detail. Marj is planning to have a holiday with her daughter in Bridport from 5 Aug – family will collect Marj and bring her back when she wants to.
Phone call from R Ewen, concerned that the daughter had phoned yesterday. Saying due to Marj's current unhappiness with Mr Warwick, the family intend to take Marj to a solicitor to change Power of Attorney status. They would also like Marj to move to Dorset a.s.a.p.
I will discuss with J Weatherley, Psychologist as to whether she is able to give an opinion on Marjorie's decision making abilities."
On 27th July, Ms Reynolds, a Dementia Support worker, recorded of her visit on 23rd July as follows:
"Marjorie informed me of her plans to visit daughter in Bridport and maybe moving in with daughter for good, if visit goes well.
Marjorie said that whilst she is there her daughter is seeking legal advice to change her Power of Attorney. I discussed the reason for this and Marjorie said that (Mr Warwick) John was buying a new 3 piece suite, and made her feel belittled, dishing out money to Marjorie as if she were a child. Marjorie indicated she mistrusted John and when I asked her she said he had control of all of her money and believed John was spending it. I asked Marjorie about her sudden reconciliation with her daughter as on previous visits Marjorie had said that her and her daughter had not got on and that Jill was always after her money. Marjorie said that her daughter had visited, and telephoned every day. Marjorie said a roof space was being done out for her to stay.
Marjorie said that if she liked it that a rented (old peoples) bungalow which her daughter had said was reserved for posh people could be found for Marjorie to live. I advised Marjorie to be very sure that the move was the right one and Marjorie said she could stay in Brisley because she no longer could drive. I reassured Marjorie that if she wanted to stay any homecare requirements including shopping could be met and if she needed to move nearer shops i.e. [?] that sheltered accommodation was a possibility. Marjorie said that her daughter Jill had said that if she moved in with her they could see a doctor in the area who could allow Marjorie to drive again. Because of what Marjorie had said about her daughter being after her money (on previous visits), I asked Marjorie tactfully if she was sure this wasn't the reason for Jill's keenness for her to move. Marjorie said that the house if sold would be split between John Warwick, her stepson and daughter and if Marjorie died, her daughter would have the money, so Marjorie felt that Jill wasn't after her money because she would get it anyway when she died.
I asked Marjorie if she had told John or her close friends of her reunion and decision to move and she said she hadn't. When I asked why, she said it was because she didn't want them to be against the idea.
I advised Marjorie to speak to her trusted friends about the move for their advice and to think carefully before making any major changes including power of attorney reassuring her that if fraud was taking place it would be found out. I wished Marjorie well for her holiday on 6th August and said I would contact her shortly after her return – I will discuss this with Julie Gillies key worker A.S.A.P."
On 2nd August, Ms Gillies recorded:
"Home visit today. Discussed Marj's holiday from 4th Aug to daughter in Bridport. She maintained that she does not trust J Warwick Power of Attorney not to spend/utilise her money on anything other than her needs. Son in law has said 'if he lays a finger on you I'll smash his face in'. Explained that I found that a strange thing to say when Mr Warwick himself live 150+ miles away. Marj has no explanation for these remarks other than son in law distrusts Mr Warwick.
Daughter Jill is in daily contact and wants Marj to move down to Bridport after their holiday arrangement. I stated my surprise at Marj's change of thinking as last visit she was adamant that Brisley was is and will remain her home until she 'is too unwell to live there alone'. Marj said that since not being allowed to drive she has not felt happy being reliant on others and sees moving to Bridport as being a solution to this.
Despite her feelings towards Mr Warwick she did not mention ideas of changing Power of Attorney from him to her daughter.
Agreed that Marj will phone me in 2 weeks to let me know where she is – diary appointment. If I do not hear from her then I shall endeavour to contact her and maintain input and support."
- Shortly before she left for Bridport on 5th August Marjorie had a phone conversation with John Warwick in which he sought to explain to her that he had not been responsible for the loss of her driving licence or why her pension was now being paid in the way it was. She appeared to accept the explanation. However it is clear that the idea of revoking his power of attorney was still in her mind. Following her arrival in Bridport Jill made an appointment for 9th August for her to see a firm of local solicitors Austen Wetham & Guest where she saw a partner, a Mr Salt. A further appointment was fixed for 17th August.
- There were several telephone communications with Mr Warwick during this period. His account of them, which I accept, was as follows:
"39. On Sunday 8th August Jill telephoned me to say they needed more money for clothes etc for Marjorie. I suggest that £200.00 might be enough and she replied 'that will do for now'. We settled amicably for £300.00 which I addressed to Marjorie the next day.
40. On Monday 9th August Mark telephoned to say 'are you sitting down Marjorie has decided to stay'. They had been taking her out in their car and she had sat on the beach and was enjoying herself. There was plenty of sheltered accommodation nearby and a friend had promised to show Marjorie over his flat. This was entirely against Marjorie's well known desires which I voiced to Mark but he said they would visit her frequently and take her out for drives etc.
41. I assessed this to be a very short term novelty for Marjorie which would culminate in disaster once she moved into sheltered accommodation. Mark asked if I would like to speak to her, which I did. She seemed perfectly happy with the situation and I asked her what should happen to 'Kingsmead'. She answered 'well sell it I suppose'. I pointed out that if that happened there could be no turning back if she ever had second thoughts. She appeared non-committal.
42. On Wednesday 11th August Mark telephoned for a copy of my Power of Attorney as Marjorie wanted Jill to take this over. We discussed the sale of the bungalow and I pointed out that when the Declaration of Trust was made none of the participants seriously anticipated a premature sale prior to the death of Richard and Marjorie as the whole object of the exercise would be defeated if this occurred. Sale of the bungalow at this time could, therefore, lead to complications. Mark asked for a copy of the Declaration of Trust and I asked for Marjorie's request for a copy of my Power of Attorney to be in writing. Both items were dispatched in the following day's post.
43. During our telephone conversation the discussion had been entirely amicable and Mark's opinion was that Marjorie should gain very little from the sale of 'Kingsmead' having lived rent and mortgage free. He also said that he hoped our dealing would be on a man to man basis regardless of 'women's interference' and without the involvement of solicitors. 'After all, we're family – you're my uncle'. I informed him, however, that I would have to consult my solicitor regarding advice on certain aspects of the Deed of Trust, and that I had made an appointment to see my solicitor on Thursday 19th August.
44. On Thursday 19th August I discussed the Deed of Trust with Mr Frankl of Hood Vores & Allwood. Upon my arrival at his office he told me that Mark had already telephoned him that morning to state that I was not allowed on the premises of 'Kingsmead' and that my Power of Attorney had been revoked. We discussed the options which were open to me."
- In fact Mr Warwick's power of attorney had not at that stage been revoked. On 17th August Marjorie had kept the appointment with Austin Wetham & Guest and had been seen and interviewed by another partner in that firm, Mr Warner. He spent some 45 minutes alone with her discussing her reasons for wishing to revoke the power of attorney and to grant a new one to Jill. He formed the impression that she had capacity to execute a power of attorney. He described her to me as having presented as being "clear minded, lively, intelligent". He learned from her that she had about £22,000 savings in bank accounts, and had made a will but was unsure where it was. She mentioned nothing about any desire to make a new will. Given what he perceived to be the potentially contentious nature of the step she was taking he advised that the documents he was to draft should be witnessed by her general practitioner. Subsequently an appointment was made for Mr Warner and Marjorie to attend on the G.P. (Dr Platt) for this purpose on 26th August.
- Further independent evidence as to Marjorie's state of mind at this period is provided by a note made by Ms Gillies on 16th August:
"Phone conversation with Marjorie: She continues to have a holiday with her daughter in Dorset. She sounded very happy and expressed a wish to stay there. I spoke to son-in-law Mark Westendorp who explained that 'he is keeping Marjorie". The holiday has gone well and the family + Marjorie plan for her to stay in Dorset. A social worker called Mike Mills is due to visit tomorrow [Mr Mills' telephone number] to help them to look for sheltered accommodation. Son in law says Marjorie will not be returning to Norfolk unless she wishes to collect some belongings. The family are registering Marjorie with a local G.P. and have spoken to Mr Warwick about changing Power of Attorney over to Jill the daughter. According to Mr Westendorp he has no objections to this."
- When Marjorie saw Dr Platt on 26h August, he asked her sufficient questions to satisfy himself that she understood the nature of the power of attorney which she was granting to Jill. The documents were then signed and witnessed.
- On the following day Marjorie succumbed to a nasty chest infection and had to take to her bed. She was visited on 27th August by a Dr Miller who diagnosed a lower respiratory tract infection with crepitations and prescribed some antibiotics. She was visited the following day by a Dr Skellern who prescribed further (different) antibiotics. Jill's diary contains a note "shaky crying short of breath legs ache". By 30th August (Bank Holiday Monday) Marjorie seemed to have at one point been well enough to try sitting out in the garden, for a short time, but then felt ill again and retired to her bed. Jill's diary has a note "Bad day – Mum ill too". At about 6.30 p.m. on that day Mark was telephoned with the news that his father had died.
- Marjorie was not well enough to leave her bed on Tuesday 31st August. Jill's diary has a note in it on this day which reads "Mum ill. Refused to go to hospital". At about 11 a.m. she signed the Will which is in issue in this action. She did so in the presence of two witnesses, Louise Wilson and Christopher Jackson, and of Mark. This happened in Marjorie's bedroom, Marjorie still being in bed. It seems more probable than not that the two witnesses attested Marjorie's signature in her presence. Doubt was cast on this by Mark's evidence that after Marjorie had signed he and the witnesses had then gone downstairs and the witnesses had then signed. Mrs Wilson's evidence was that the witnesses had signed in the bedroom and that the writing which had taken place downstairs had been the addition of their addresses.
- By 7th September 2004 Marjorie had recovered sufficiently to undertake a trip with Jill and Mark to look at mobility scooters. However, on 10th September 2004 she collapsed and died.
- The issues which I have to resolve are whether Marjorie had testamentary capacity on 31st August 2004 and whether she knew and approved the contents of the Will which she then executed. There are several reasons to have doubt on one or other of those issues. First, the inherent nature of Marjorie's medical condition, especially when coupled with the effect of the illness from which she was still suffering on 31st August 2004, raises a real question as to her capacity on that day. Secondly there is the fact that the will was drafted, and its contents conceived, by Mark. Thirdly, both Mark and Jill claim that the will did not in fact, and was not intended to, record Marjorie's real testamentary intentions. These had, according to them, been communicated to them by Marjorie before Mark had drafted the Will, and had included certain instructions to Jill as to certain specific legacies which she wished to make. According to Mark and Jill this was to be what they described as a "secret codicil" to the will. Fourthly the will as executed (with or without the secret codicil) marked a significant departure by Marjorie from all her previous wills so far as her share in Kingsmead was concerned.
- On the question of her mental capacity the disinterested witnesses consisted of Mr Warner, Dr Platt, Mrs Wilson and two expert witnesses, Dr Campbell MB, BS, BMed Sc (Hons) FRC Psych, MAE, a consultant forensic psychiatrist, and Professor Robert Howard, MA MB BS MD MRCPsych, Professor of Old Age Psychiatry and Psychopathology at the Institute of Psychiatry and Consultant Old Age Psychiatrist at the Maudsley. I have already recorded, so far as material, Mr Warner's and Dr Platt's evidence. While recognising that the test of capacity to execute (or revoke) an enduring power of attorney is different from that in relation to testamentary capacity, both Dr Campbell and Professor Howard agreed that, on the basis of their evidence and the other medical records and social worker reports, they could conclude that Marjorie would have had testamentary capacity on 26th August 2004.
- Professor Howard's report opined:
"Because there are no records of examinations made of Mrs Hodges' cognitive function on 31/8/2004 we cannot know what effect, if any, her apparent physical ill health on that day had on her cognition. But it would be usual for patients with Alzheimer's disease to become measurably more confused when they have a chest infection that is serious enough to restrict them to bed, make them appear tired and cause breathlessness even when they are at rest. So it would be my opinion that it is not safe to assume that Mrs Hodges' cognitive abilities on 31/8/04 would have been the same as when……………….she was seen by [Mr Warner and Dr Platt]. Her cognitive abilities would I believe, on the balance of probabilities, have been considerably worse..
[I]f one factors in the additional degree of confusion that would be reasonably expected to accompany a serious chest infection as documented in the GP record for 27/8/04 and the accounts of the witnesses of Mrs Hodges' condition at the time that she signed the Will, it would be my opinion that on the balance of probabilities Mrs Hodges cannot be safely assumed to have had testamentary capacity at the time she signed the Will on 31/8/2004"
- Dr Cambell's report agreed that on 31st August 2004
"Mrs Hodges may have experienced some short-term impairment of cognitive capacity as a consequence of her then state of physical health. This could potentially have been sufficient to compromise her Testamentary Capacity. Of course this point is purely speculative as the medical records are silent as to Mrs Hodges' mental condition on 31st August 2004".
- In a joint statement they recorded the extent of their disagreement in the following formulation:
"Professor Howard considers that there are reasonable medical grounds for concluding that on 31st August 2004 Mrs Hodges would have been in a state of mental confusion (arising from the effects of a chest infection superimposed upon the baseline difficulties caused by her Alzheimer's disease) sufficient on the balance of the probabilities to have caused a loss of Testamentary Capacity. Dr Campbell considers that on the basis of such documentation as has been disclosed to him there is insufficient information regarding Mrs Hodges' overall mental condition on 31st August 2004 to allow him to form a concluded opinion as to whether or not she would have possessed Testamentary Capacity on that date…".
- In his evidence to me Dr Campbell expressed some surprise that Professor Howard had thus expressed himself. Dr Campbell had not perceived Professor Howard's report as having contained anything with which he necessarily disagreed. He regarded Professor Howard as having shifted his position. I think there was some justification for that reaction. There is a difference between saying that it is not safe to assume that Marjorie had testamentary capacity, and saying that on a balance of probabilities she did not have capacity. As I understood his oral evidence, Professor Howard recognised the shift involved. His later statement was intended to be an indication of which way he would tilt, on the balance of probabilities, if pressed for a conclusion one way or the other on a matter which inevitably involved speculation.
- At the time of their respective reports Professor Howard had, but Dr Campbell had not, seen the witness statements of Mark Jill and Mrs Wilson as to Marjorie's condition on 31st August. Jill's written evidence was that on that day Marjorie "was not very well…bad again on 31st…..very short of breath" and that she had signed the will "lying in bed but propped up". She added "To the best of my knowledge and belief my mother's mind was fine on the 31st although physically she was getting very frail." In her oral evidence she said that Marjorie was not well on 31st August but was not as ill as she had been ("she had started to get a bit of liquid down her"). She sought to deny that the note she had made in her diary (see paragraph 20 above) related to 31st August. I did not find this denial convincing.
- Mark's written evidence as to Marjorie's state of health on 31st August does not descend to any detail. He simply said that "I recall Marge was in bed at the time as she had not been very well". In his oral evidence he described her as "not particularly well on 31st..didn't want to get out of bed..but fine mentally".
- Mrs Wilson (who had not previously met Marjorie") recalled being briefly introduced to Marjorie and that she "said hello in reply but she wasn't very chatty and was clearly tired". She said that Marjorie appeared to be taking in what Mark explained to her about the will and that when asked whether she wanted to sign the will Marjorie "said yes she did and was quite clear about this." She recalled Marjorie as having been "very shaky" and "clearly getting tired". Her oral evidence was to similar effect, namely that Marjorie was clearly not well but appeared to know what was going on around her.
- The evidence that Marjorie was "very shaky" on 31st August 2004 is vividly corroborated by the form of her signature on the will. A comparison of that signature with her signature on the enduring power of attorney (on the 26th August) and with that on a letter written by Jill to Mr Warwick on 4th September gives indicates a marked physical deterioration on 31st August: the signatures on 26th August and 4th September are clear and reasonably firm, while that on the will is barely recognisable.
- No evidence was called from either of the medical practitioners who had seen Marjorie on the 27th and 28th August 2004. I found this somewhat surprising. The inference I draw, in the absence of any other explanation, from their evidence not having been tendered is that neither would have been able to support a case for testamentary capacity on either of those days. If that is right then a positive conclusion that Marjorie did have testamentary capacity on 31st August depends to a large degree on the weight which I can attach to Mark and Jill's assertions as to the extent of her recovery by that date. That needs to be considered in the context of their evidence in relation to the will making process as a whole. This presented a far from coherent picture.
- Jill's written evidence was that it was only after the enduring power of attorney had been executed (on 26th August 2004) that her mother said she wanted to make a new will, but that there had not appeared to be any urgency about this until, on 30th August, Mark's father had died "and this prompted us, including my mother, to start talking about wills". She then recounted how, because of the bill which they had received in connection with the power of attorney, Mark purchased a will kit from WH Smith. She said:
"My mother wanted to make a simple will leaving everything to me but on the understanding that I would use part of the money to remember some people, namely my first husband Kenneth Pimbley whom she wanted to have £10,000, my half-brother Michael Hodges (also £10,000) and small gifts to her carers and helpers and her gardener in Norfolk. She wanted her four grandchildren to have something. My mother also said that she wanted nothing to be paid to Mr Warwick, his wife or his children. She was very definite about this. As far as I was concerned she said to me "I don't want you ever to worry about money again.."
- Mark's written evidence was not precise as to the date when the question of making a will arose, but confirmed that he had purchased the will pack and written out the will for her. He said
"She wanted to remember some people in Norfolk and the way it was done was by leaving the money to Jill on the basis that Jill would pay the people herself. One of them was the Social Worker Barbara who had looked after her in Norfolk.
I did not influence Marge as to what went into the Will. She talked about it a great deal and eventually we reached the point when she wanted to sign the document."
- In their oral evidence, however, both Mark and Jill were insistent that the will, and its proposed contents, had been the subject of discussion between them and Marjorie from an early date following her arrival in Bridport. Jill could give no satisfactory explanation as to why her written evidence had suggested that the subject had only been raised after the enduring power of attorney had been executed. Her attempts to locate the date at which the subject had been first raised were not convincing. Mark did not try to put a date on it, but said that it had been raised on "almost a daily basis" or at any rate on "four or five occasions". Both lit upon August 23rd as the date on which the will kit had been purchased, identifying that date as a day on which they had visited WH Smith to buy a birthday card and had then seen kits for will making and enduring powers for sale at a price which seemed trifling compared with the costs which were being charged to them by the solicitors. Mark said that Marjorie had no idea what her existing will said, and that he therefore came up with the idea of giving it all to Jill. In that way Jill could do whatever Marjorie wanted so far as specific legacies were concerned, and Marjorie would be able to change her mind later without having to make a new will. He said that he and Marjorie spoke about the will a lot and that she was adamant that Mr Warwick should not have a penny and that Jill should not have to worry about money again. But he also gave evidence that it was never intended that Jill should have everything.
- Mark, while clear that the idea of leaving everything to Jill had been his idea, was very unclear as to when exactly the will had been drawn up by him. In supplemental evidence in chief he said that he had drafted it "the day before or the day before that". In cross-examination this became "Probably the day before or a few days before." He also said, however, "With father dying and her being unwell…we thought it might be expedient to get it signed". He then described how he had taken the will to her in her bedroom on 31st and said "Do you think we ought to sign the will? I explained to her again – and how she could change her mind whenever she wanted." Having obtained her assent he had then asked the witnesses to come in, introduced them to Marjorie, and explained the will again to Marjorie. She had then signed the will.
- The hypothesis which most readily reconciles, so far as possible, the internal inconsistencies in the testimony of Mark and Jill and the other evidence in the case is that no serious thought was given to will making until the evening of 30th August when the news was received of Mark's father's death. That concentrated Mark and Jill's minds on the need to do something quickly in relation to Marjorie's will. Her physical condition was sufficiently serious for the question of her hospitalisation to be under discussion. I am prepared to accept that there may well have been earlier discussions with Marjorie about the need for her to make a new will. It appears that neither Jill nor Mark had appreciated that she had a disposable interest in Kingsmead until after the Trust Deed had been received on or about the 12th August. That showed that she did have such an interest, and it was a reasonable inference that Marjorie would have made an existing will leaving her interest to Mr Warwick's children. Given her attitude at this period to Mr Warwick, it is probable that she had indicated that she wanted to make sure that any existing will was changed so that Mr Warwick's family would no longer benefit. I am not, however, satisfied that she had (before her illness) expressed any settled alternative testamentary intentions to Mark and Jill although she may well have mentioned persons whom she wished to benefit in addition to Jill. The picture I am left with is of Mark and Jill, on the evening of 30th August, feeling an urgent need to get Marjorie to sign a will before her condition deteriorated further, but of Marjorie not being well enough to give her mind to the detail of her testamentary intentions at that time. Mark therefore came up with the idea of the "secret codicil" by which Marjorie could be reassured that, whatever the document she was signing might actually say, her wishes would be carried out at her death.
- This sequence of events gets some support from Mrs Wilson's oral evidence that it was only on the morning of the 31st August that she was asked by Mark to witness the will. Mark's evidence had sought to suggest that the witnesses had been lined up some days previously.
- If I have correctly imagined the sequence of events, I am not satisfied on the balance of probabilities either that Marjorie had testamentary capacity on 31st August 2004 or that she knew and approved the contents of the will when she signed it. The two tests are conceptually distinct: see in particular the judgment of Chadwick LJ in Hoff v Atherton  EWCA Civ 1554 at paragraphs 62-64. In the present case the medical evidence raises a doubt as to capacity which the lay evidence ("she seemed to know what was going on") does not dispel. The explanations which she received from Mark on the morning of 31st August as to the nature and effect of the will were potentially confusing, and (so far as they consisted of reassurances about the nature and effect of the "secret codicil") contradicted by the terms of the will itself. Even were I satisfied that Marjorie had had sufficient capacity on 31st August to make a will in the very simple terms of the will in this case, I am not satisfied that, given the explanations which she was given as to its effect, that she knew and approved its actual contents.
- For those reasons I pronounce against the alleged will dated 31st August 2004.
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