B e f o r e :
MR JUSTICE NORRIS
|| Maureen Wharton
||- and -
||(1) Timothy John Bancroft
(2) JamesWilliam Douglas Bancroft
(3) Victoria Wharton
(4) Gina Fagan
(5) Amanda Wharton
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Constance McDonnell (instructed by Furley Page) for the Claimant
The First Defendant appeared in person.
The Second Defendant did not appear.
Mr Jeremy Cousins QC and Ms Michelle Stevens-Hoare (instructed by Wright Hassall LLP) for the Third Fourth and Fifth Defendants
Hearing dates: 19-22 and 26-28 July 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Norris:
- At the end of this judgment I pronounce in favour of the Will dated 23 September 2008.
- On the morning of 23 September 2008 78 year-old George Wharton ("Mr Wharton") was discharged from hospital, knowing that he suffered from terminal cancer of the eye and liver and believing that he had only a very short time to live. He returned to "Chimneys" in Minster, Sheerness, Kent, a property which belonged to his company, White Horse Leisure Centres Ltd ("White Horse"), and which he shared with his partner of 32 years Maureen Wharton ("Maureen"). She was then aged 63. Although free to marry Maureen, Mr Wharton had not done so. She had formally adopted his surname in February 1982.
- At home during the evening of 23 September 2008 Mr Wharton made, with the assistance of Mr Timothy Bancroft, a will ("the 2008 Will") in contemplation of his intended marriage to Maureen: and immediately afterwards Mr Wharton married Maureen at a ceremony conducted before two Registrars who attended the house.
- At 10:40 pm on 26 September 2008 Mr Wharton died. By the 2008 Will he left the entirety of his estate to Maureen absolutely. He accordingly made no provision for either of the daughters born to him by the wife from whom he was divorced (the Third and Fourth Defendants, respectively "Vicki" (52) and "Gina" (48)), or for the daughter of another relationship (the Fifth Defendant, "Amanda" (39)). (I will refer to these defendants together as "the Daughters"). Nor did he make any provision for his grandchildren, even for the one of whose educational achievements he was most proud – Vicki's daughter, Prisca.
- The principal asset in the estate was Mr Wharton's holding of 24,950 (99.8%) of the 25,000 issued shares in White Horse. White Horse traded as a holiday camp operator from two freehold caravan parks (Central Beach and Warden Bay on the Isle of Sheppey). These caravan parks had a combined open market value of £3.85 million. White Horse also owned other parcels of land: one was "Chimneys", and on another a "car boot fair" was regularly held. These assets underpinned the value of Mr Wharton's holding in White Horse, which was professionally valued for probate purposes at £4 million. Mr Wharton personally also owned another parcel of land in his own right, and some Spanish property which he had made the subject of a Spanish will (though that was revoked by the 2008 Will). But for his deathbed marriage, the entirety of Mr Wharton's estate would have been subject to inheritance tax, for which he had made no provision: but because of the marriage and the terms of the 2008 Will, none of it is so subject.
- In November 2008 solicitors acting for Vicki and Gina indicated their intention to challenge the 2008 Will on the grounds of lack of testamentary capacity and undue influence: and in due course a caveat was lodged. That has led to the commencement of the present proceedings in which Maureen seeks to prove the 2008 Will in solemn form; and the Daughters assert by their Re-Re-Amended Defence and Counterclaim that at the time the 2008 Will was executed Mr Wharton did not know and approve its contents, or alternatively that its execution was obtained by the undue influence of Maureen, so that Mr Wharton executed a document that was contrary to his true wishes. Because the Daughters accept that Mr Wharton had the capacity to marry Maureen and lawfully did so, it is common ground that that marriage revoked all former wills: accordingly, if the 2008 Will is not admitted to probate then Mr Wharton will have died intestate.
- It will be observed that the challenge to capacity has been abandoned. But the argument continues to be run in a shadowy form as appears from paragraph 7 of the current statement of case of the Daughters, which is in these terms:-
" At the time the 2008 Will was executed the Deceased did not know or approve of the contents of the same. In particular the Deceased did not understand the nature and effect of his execution of the 2008 Will, the extent of the property he would be disposing of by executing the same or the claims which he ought to give effect and the potential beneficiaries he ought to consider ."
- A deathbed marriage, a deathbed will, a large estate and the absence of any provision for issue may be expected to heighten family tension, to provoke indignation at a sense of unfairness, to encourage a trawl through family history (either to justify the provision made or to demonstrate that the will cannot really embody the testator's genuine wishes), and to encourage witnesses to become advocates in support of one side or the other. Each of those features was present in the instant case. I received the evidence of almost 40 witnesses. I concluded the hearing by commending Ms McDonnell and Mr Cousins QC on their conduct of the trial: and I would at the outset of the judgment restate my opinion. But for their sensible agreement to admit some evidence unchallenged (in the correct anticipation that I would regard it as peripheral) and their focused cross-examination and pertinent argument the parties might have been exposed to much greater trial costs: and without any benefit, because I am satisfied that all proper points were taken and each sides' case thoroughly tested by the other.
- The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost.
- I propose to deal first with the form and terms of the 2008 Will and then to deal with the circumstances of its production.
- The text of the 2008 Will is in the hand of Mr Tim Bancroft and is written on both sides of a single sheet of paper. Clause 1 revokes all former wills and declares that the 2008 Will is made in expectation of Mr Wharton's intended marriage to Maureen. Clause 2 appoints the partners in Mr Bancroft's firm to be Mr Wharton's executors (and clause 7 contains a charging clause). In clause 3 Mr Wharton expresses the wish that his body be buried at his plot at Halfway Cemetery, Sheerness. Clause 4 is in these terms:-
"I give all my estate both moveable and immoveable whatsoever and wheresoever situated after payment of debts funeral and testamentary expenses ("my residuary estate") to Maureen Wharton absolutely ."
In clause 5 Mr Wharton declared that he had made no provision "for either of my daughters Vicki Wharton and Jeanna Fagan" because he believed them to be adequately provided for. In clause 6 he declared that he had not maintained for many years any person other than Maureen. That completes the front of the page: on the back is the solicitors' charging clause and an attestation clause in these terms:-
"Signed by George Wharton in our presence and attested by us in the presence of him and of each other he having had this will read to him and having approved its contents"
Alongside that clause is the undoubted signature of George Wharton: and underneath it the signatures of Carole Hales (one of the Registrars) and of Joanna Bancroft (who was Mr Bancroft's wife and a managing clerk at his firm) as witnesses.
- The process of creating and signing this document was overseen by Mr Bancroft. He and his brother James are the two partners in the firm of John Copland & Son, Solicitors. He attended upon Mr Wharton on 23 September 2008 and took instructions for the 2008 Will. He made some brief manuscript notes as he did so. Taking instructions, handwriting the will and overseeing the signature and attestation of the 2008 Will took about 45 minutes. The following morning Mr Bancroft spent one hour and 10 minutes preparing a detailed attendance note, in the course of which he had the opportunity to consult the files he maintained for White Horse concerning instructions given by Mr Wharton in connection with land transactions and employment issues. After the Daughters mounted a challenge to the 2008 Will Mr Bancroft was periodically quizzed by the different solicitors they from time to time retained (and his answers were recorded in correspondence from and attendance notes by those solicitors). He made a witness statement on 9 March 2010, and an expanded witness statement on 22 November 2010 (on which he had worked since the preceding August). He was cross examined for about three hours.
- Mr Bancroft has a small financial interest in the outcome of this case: if the 2008 Will is upheld he and his brother will be the executors and will benefit from the charging clause. Mr Bancroft undoubtedly has a reputational interest in the outcome of this case: he is (amongst other things) a probate practitioner and must want to be seen to have done a good and effective job. Mr Bancroft had the opportunity when preparing his detailed attendance note unconsciously to embellish what actually occurred. Mr Bancroft has not always given the same account of particular events about which he has been asked. Mr Bancroft's most detailed witness statement has been prepared late in the proceedings and must run the risk of containing false memories prompted by the questions he has been asked and the issues that have been debated with him. He himself very fairly acknowledged that following Mr Wharton's death he has had to think over things many times and that "you get an overlay over your memory". I have weighed all of these possible risks (not all of which were relied upon by Mr Cousins QC) but I have reached the conclusion that Mr Bancroft's account of the central events is reliable. I place particular reliance upon the contemporaneous and the near contemporaneous attendance notes, the authenticity of which was not challenged.
- The other witness of (but not a participant in) the full will-making process was Joanna Bancroft. From her oral evidence it was clear that she could recollect little in the witness box, and had not refreshed her memory. In cross-examination she simply directed the questioner to what she had said in her witness statement, being evidently fearful that she might now say something different. But she was entirely unable to recollect how her witness statement dated 22 November 2010 had been prepared, or to what material she had referred in setting down her then-current recollection of a meeting that had taken place in September 2008 (at which she had taken no notes). Mr Bancroft told me (and I accept) that in asking his wife to prepare her witness statement he was careful not to prompt the content of her recollection but simply to direct her attention to the matters that were likely to be in issue. Nonetheless because Joanna Bancroft cannot recollect the process through which she went in preparing her witness statement and the material upon which she relied, and her evident lack of recollection eight months later, I consider that I must approach the detail of her statement with a measure of caution, save insofar as it deals with her standard practice and that of the firm (where she is clearly on strong ground).
- The other professional who observed part of the process was Carole Hales of the Canterbury Registry Office. She arrived at a time when Mr Wharton was sitting with Mr Bancroft in the lounge at "Chimneys" (she called it "a great big lounge"), and she was invited in by Joanna Bancroft to read a will through to Mr Wharton as his eyesight was bad; after she had done so she was asked to witness that will. She was first asked to recollect the relevant events by the then current solicitor acting for the Daughters, and she did so in a letter dated 28 May 2009. She made a full statement on behalf of the Claimant on 15 February 2010. She was an entirely reliable witness.
- I find that the making of the 2008 Will came about in this way. Mr Bancroft was acting for White Horse in connection with a land swap. On 23 September 2008 he received a letter on which he needed to take instructions. In the afternoon of that day Mr Bancroft telephoned "Chimneys" for that purpose. When asked by the Daughter's solicitor on 30th November 2009 of his recollection of that call, Mr Bancroft said that Maureen answered the telephone and that he could not remember if he spoke to Mr Wharton. But his detailed attendance note of 24 September 2008 refers to his having spoken to each of Mr Wharton and Maureen on the telephone, and this is the account given in his witness statements of 9 March 2010 and 22 November 2010, the truth of which he affirmed. I find that he spoke to both Mr Wharton and Maureen. He learned from Maureen that Mr Wharton had only days to live and that they intended to marry that evening. Neither Mr Wharton nor Maureen immediately appreciated that marriage would revoke their existing wills, and Mr Bancroft advised each of them individually of this consequence. Once the issue had been identified it was agreed that Mr Bancroft would attend immediately with a view to preparing a new will for Mr Wharton. Mr Bancroft was aware of the terms of one earlier will (one apparently made in 2006) but of no others: and he had never been specifically instructed by Mr Wharton to consider estate planning (though there had been what he described as "personal conversations" in the course of taking instructions on White Horse matters because of the obvious business succession and inheritance tax issues that arose out of the way Mr Wharton had organised his affairs).
- Mr Bancroft appreciated that because Mr Wharton was terminally ill and was possessed of a substantial estate it was very likely that there would be competing claims from Maureen and Mr Wharton's daughters Vicki and Gina. That is why Mr Bancroft followed his brief handwritten notes, made whilst taking instructions, with the full and detailed attendance note he prepared the following day. He took Joanna Bancroft with him because she was herself a probate clerk, and could provide a second opinion if necessary.
- Mr Bancroft and Joanna Bancroft arrived at about 7 pm and were shown into the large lounge. Mr Wharton was sitting in an armchair and wearing a dressing gown and pyjamas. Mr Bancroft explained that he was aware that Mr Wharton had made a will, that he understood that Mr Wharton and Maureen were imminently to marry, and that the effect of that marriage would be to revoke the existing will in Maureen's favour. Mr Bancroft then asked Maureen to leave, and she did so. There was some brief social chat about Mr Bancroft's father, and instructions were taken about the land swap. Mr Wharton spoke in a very clear voice, his sentences were grammatical, and everything he said was sensible and relevant and in context. Mr Bancroft judged him to have testamentary capacity (and that judgment is not challenged in these proceedings). Mr Bancroft asked Mr Wharton briefly to confirm the extent of his property, and was told of Mr Wharton's 99% shareholding in White Horse (and the assets it owned) and of some other land. Mr Bancroft's detailed attendance note records that Mr Wharton
"… confirmed that he had already made a will leaving everything to Maureen a while ago and that he was unchanged in his wishes…".
- Mr Bancroft asked about Mr Wharton's other relatives, initially by asking open questions. As recorded in Mr Bancroft's contemporaneous manuscript note (and expanded upon in his detailed attendance note) during this process Mr Wharton said that he had two daughters Vicki (who lived in Manchester and whom he saw every few months) and Gina (Mr Bancroft wrote "Jeanna" in his manuscript note and in the will he prepared, only correcting the spelling the following day). "Jeanna" is recorded as living at Iwade, not far from "Chimneys", but the manuscript note records "on bad terms". In a telephone interview that Mr Bancroft gave to the Daughters' solicitor on 29 September 2009 Mr Bancroft indicated that when Gina was mentioned Mr Wharton seemed "to close up" and that it was evident that he felt deep animosity towards her: I accept the accuracy of that recollection. Mr Wharton said there was to be no financial provision for either of them: the subsequent full attendance note adds the explanation that they were "both independent". In his second witness statement Mr Bancroft gave an expanded account of how provision for Vicki and "Jeanna" came to be considered. Mr Bancroft said that it was he who had raised the question of provision for them ("I threw names at him"), and that Mr Wharton himself had been unwilling to talk of his family and had seemed upset. I considered whether this might be retrospective elaboration: but the language in which the virtually contemporaneous detailed attendance note is couched suggests the recollection is probably right ("I specifically asked him about his other relatives and he told me that Vicki lived in Manchester ... When asked about his other daughter Gina…."). There is, of course, no mention of Amanda in the attendance notes. Mr Bancroft explains that he was unaware of her existence, since she had never been mentioned to him by Mr Wharton, and therefore he did not raise her name: and Mr Wharton did not volunteer it.
- Mr Bancroft's detailed note also records (and I accept) that Mr Wharton was then asked if he wanted to leave any specific legacies to other people, and he stated that he did not. Mr Wharton confirmed that he had not provided financial support to anyone else. The manuscript note then records "all to Maureen". The course of the discussion then dealt with a Spanish house in joint ownership, with the appointment of executors and with directions for burial. Mr Bancroft described Mr Wharton's overall instructions as "not complex and very clear".
- Mr Bancroft then wrote out a manuscript will. The tenor of his evidence is that he provided some sort of commentary as he was doing so, and that as he got to the part of the 2008 Will that explained the absence of provision for Vicki and "Jeanna" Mr Wharton seemed to lose concentration and get a bit tired: but by the time Mr Bancroft had finished writing out the attestation clause Mr Wharton seemed to have recovered completely and his attention became more focused. Mr Bancroft had forgotten that due to Mr Wharton's deteriorating eyesight the 2008 Will would have to be read over to him. When he passed the will to Mr Wharton for signature Mr Wharton commented upon this, and Mr Bancroft recollects that he took the will back and amended the attestation clause to confirm that the will was to be read to the testator and that he understood and approved its contents. I again considered whether this might be Mr Bancroft embroidering the evidence: but the form of the attestation clause corroborates his recollection, for the bracket alongside it does not include that part of the attestation provision which recites the reading of the will and the acknowledgement that the testator approves it. I therefore accept Mr Bancroft's account entirely.
- Mr Bancroft decided that an independent person should read over the 2008 Will to Mr Wharton, and Carole Hales was invited to discharge that duty. She had been waiting in the kitchen. She came into the lounge and read the will through to Mr Wharton in the presence of Mr Bancroft and Joanna Bancroft. Mr Bancroft records in his detailed attendance note (and I accept) that she did so slowly and clearly, sitting three or four feet away from Mr Wharton and directly in front of him. Mr Wharton seemed to be listening carefully. When she had finished Mr Wharton was asked by Mr Bancroft "if everything was OK" and Mr Wharton confirmed that it was. Mrs Hales was then asked to be a witness to Mr Wharton's signature along with Joanna Bancroft. The 2008 Will was duly executed. The only people who knew its contents were Mr Wharton, Mr Bancroft, Joanna Bancroft and Mrs Hales. The original was kept by Mr Bancroft. No copies were taken. If anybody else came to know of the tenor of Mr Wharton's will before his death the probability is that they had been told by Mr Wharton himself.
- Mrs Hales and Mrs Masters (who was the Superintendent Registrar) then conducted the marriage ceremony in the lounge (Mrs Masters having confirmed with each of Mr Wharton and Maureen separately that they wished to marry, and Mrs Hales and Mrs Masters each being satisfied that Mr Wharton had capacity, notwithstanding his terminal illness). In order to be granted a Registrar-General's licence to conduct the ceremony at "Chimneys" Mrs Hales and Mrs Masters had obtained the certificate of Dr Witts that Mr Wharton was terminally ill, that the doctor was in medical attendance, that Mr Wharton understood what was involved in marriage and had capacity.
- At the ceremony itself Mr Wharton was alert but quiet: he stood to take his vows, and at the end of the ceremony walked across the room to sign the register. In response to questions from solicitors acting for the Daughters, both registrars confirmed that there was no suggestion whatsoever that Mr Wharton fell asleep during the ceremony, and that had there been any trouble in his staying awake the registrars would not have conducted the ceremony. One of the witnesses to the ceremony was Daniel Lee, a retired businessman with whom Mr Wharton had a neighbourly friendship. He recalls that Mr Wharton remembered and repeated his lines clearly during the ceremony and, as he was signing the register, spoke clearly and precisely to the registrar. After the ceremony he and Mr Wharton shared a glass or two of whisky for between half an hour and three quarters of an hour and had a free-flowing and normal discussion. In the course of it Mr Lee, who had hitherto thought that Mr Wharton and Maureen were already married, asked Mr Wharton why he got married at that point in his life: to that enquiry Mr Wharton responded "It had to be done" in the sense that it was a loose end that needed to be tied up before he passed away.
- Mrs Hales, Mrs Masters and Mr Lee (who gave evidence at trial about the wedding) were independent and impressive witnesses whose evidence I have accepted without qualm. The other witness to the wedding was Zena Zuckzok (Maureen's daughter): as such she might not be thought to be independent. But she had an "on and off" relationship with her mother and I consider that she gave her evidence in a very fair and non-partisan way. It was she who gave evidence that Mr Wharton "adored" Prisca and "frequently" helped with her education, and that in the course of the wedding ceremony Mr Wharton was physically tired. She too is a reliable witness who confirms Mr Wharton's ability, his independent desire to marry Maureen ("Obviously I love her and I don't want to give the taxman my money as I have done all my life"), and his mental acuity.
- This is the key evidence concerning the production of the 2008 Will. It seems to be founded on the testimony of reliable witnesses and supported by contemporaneous or near-contemporaneous documentary material. The issue in this action is to what extent other material causes me to question whether I can confidently conclude that the process so evidenced resulted in the last true will of a free testator.
- The overall burden lies on the claimant to produce evidence sufficient to prove the 2008 Will. Certain evidential presumptions may assist in the discharge of that burden: but the circumstances may indicate that the propounder is required positively to prove what in other circumstances might be presumed or inferred from the proof of other facts.
- The Daughters in their Re-Re-Re-Amended Defence and Counterclaim assert that Mr Wharton did not know or approve the contents of the 2008 Will. My approach to that issue (informed by the familiar authorities as reviewed and commented upon by the Court of Appeal in Gill v Woodall  EWCA Civ 1430) is as follows:-
(a) The assertion that Mr Wharton did not "know and approve" of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.
(b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense.
(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute).
(d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph , that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator's intentions at the relevant time.
(e) But proof of the reading over of a will does not necessarily establish "knowledge and approval". Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.
(f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.
(g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.
(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.
- A challenge on the grounds of want of knowledge and approval is not precluded by the Daughter's admission of testamentary capacity. There are plainly cases in which the Court will accept that the testator was able to understand what he was doing and its effect at the time when he signed the document but needs to be satisfied (by something other than inference from the fact of capacity and due execution of the will) that he did in fact know and approve the contents, i.e. understand what he was doing and its effect: see Hoff v Atherton  EWCA Civ 1554 at .
- The Daughters have from the outset asserted that the execution of the 2008 Will was obtained by the undue influence of Maureen so that Mr Wharton executed a document that was contrary to his wishes. The relevant principles have recently been summarised by Lewison J in Edwards v Edwards  WTLR 1387 and by Morgan J in Cowderoy v Cranfield  EWHC 1616, and it may be taken that I have their summaries well in mind. In the instant case I have had particular regard to the following:-
(a) Execution of a will as a result of undue influence is a fact that must be proved by those who assert it.
(b) They must establish that there was coercion, pressure that has overpowered the freedom of action of the testator without having convinced the will of the testator. If the evidence only establishes persuasion, then a case of undue influence will not be made out.
(c) Where the line between "persuasion" and "coercion" is to be drawn will in each case depend in part upon the physical and mental strength of the testator at the time when the instructions for the will are given. Was the testator then free and able to express his own wishes? Or was the testator then in such a condition that he felt compelled to express the wishes of another?
(d) In many cases the fact of undue influence cannot be proved by the direct evidence of witnesses but is an inference to be drawn from other proven facts. It is sometimes said that an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis. The danger of that formulation is that it may cause one to lose sight of the relevant standard of proof: so I have paid particular attention to what was said by Morgan J at paragraph  of Cowderoy:-
"The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the Court that the explanation for what has occurred is that the testator's will has been overborne by coercion rather than there being some other explanation"
(e) The fact of undue influence is in truth a complex of facts involving the establishment (by proof or inference) of the opportunity to exercise influence, the actual exercise of influence, the actual exercise of influence in relation to the will, the demonstration that the influence was "undue" (i.e. went beyond persuasion), and that the will before the Court was brought about by these means.
- I turn to my findings of fact. I received the evidence of 40 (often partisan) witnesses. There were times when the case seemed simply to be a vehicle for the settlement of every grudge that anybody had against White Horse and its participants. It will readily be understood that in order to reach a properly founded legal conclusion in this case I do not need to determine each of the manifold factual issues that divided the respective camps (and without the good sense of Counsel there would have been many more): indeed, the quality of the evidence would not enable me to do so in many cases. I shall determine only facts legally relevant to a conclusion: and I shall not refer to the evidence of every witness. This is not a shortcut. I have re-read all witness statements and the transcript of the cross-examination, and taken full advantage of my detailed notes in reaching my recorded views.
- Mr Wharton first married Dorothy: the children of that marriage were Vicki (born 1956) and Gina (born 1960). From about 1967 Mr Wharton's employment involved a great deal of travelling and he appears to have lived a double life with his lawful family and with Nora Clayton. Amanda (born 1969) was the child of that extra-marital relationship. In about 1974 Mr Wharton suddenly severed contact with his lawful family and moved permanently to live with Nora (who took his name). Mr Wharton made a professionally-drawn will in 1974 leaving everything to Nora. This shows that he was at that date willing to leave everything to his common law wife (to the exclusion of his lawful wife and all of his children).
- Mr Wharton bought a caravan park on the Isle of Sheppey sometime in 1974. In June 1976 he met Maureen (married but separated) who was staying there with her parents: and in November 1976 they set up home together. Mr Wharton and Nora split up, though initially he maintained contact with Amanda. Maureen started to work in the caravan business, and continued to do so after White Horse was incorporated in 1978.
- In 1977 Dorothy divorced Mr Wharton: but some contact with her remained because there was an informal arrangement under which Mr Wharton paid maintenance to Dorothy. Mr Wharton had very sporadic contact by telephone with Vicki, no contact with Gina, and reducing contact with Amanda.
- In 1979 Maureen divorced her husband and informally took Mr Wharton's name. On 22 May 1979 Mr Wharton made a professionally-drawn will leaving Maureen the house in which they lived and the residue of his estate. Amongst the other gifts he made were legacies of £10,000 to each of Vicki, Gina and Amanda and the same sum to one of Maureen's daughters (Zoe). This shows that he was at that date (three years into his relationship with Maureen) wishing to make substantial provision for her, but not to the exclusion of his children (although he regarded one of Maureen's children as his own).
- On 14 June 1982 Mr Wharton made another professionally drawn will, apparently prepared by Mr Bancroft's father. This left the house in which Mr Wharton and Maureen then lived and all personal chattels to her absolutely, together with the residue of the estate. Amongst the gifts made by this will were legacies of £10,000 to each of Vicki, Gina and Amanda and a legacy of £20,000 to Zoe. This shows that Mr Wharton was at that date still desirous of making substantial provision for Maureen but not to the exclusion of his children (though he made double provision for Maureen's child). By the time of the 1982 will all contact with Amanda had ceased.
- By April 1984 Mr Wharton had indicated that he wished to alter this will, and Mr Bancroft's father sought instructions for the preparation of a codicil: but there is nothing to indicate that these instructions were taken forward. There is little to be gained by speculating what change Mr Wharton had in mind: but it is worth noting that at the end of 1983 he had bought "Chimneys" and given beneficial ownership of what became his and Maureen's home to White Horse (so that the gift of the "matrimonial home" had become ineffective).
- In 1986 Mr Wharton re-established contact with Gina, to whom he had not spoken for 12 years. She had then recently married. There were telephone conversations, and Mr Wharton and Maureen visited Gina and her family at Manchester. The re-established contact had come about because of a degree of reconciliation between Mr Wharton and Dorothy, his former wife: but there was no improvement in relations with Vicki. Gina recollects that Dorothy told her that Mr Wharton had promised to leave "all of his assets" to Vicki and Gina another day. There are no grounds for thinking that this was a genuine statement of testamentary intention: and Mr Wharton did not implement it. He did however help Gina by buying her a car for £2000 in 1993.
- Mr Wharton did not make a new will until 8 February 1995. It was professionally drawn but not by Mr Bancroft's firm. This will gave 50 of Mr Wharton's then 99 shares in White Horse to Maureen, together with the right to use "Chimneys" as a personal residence and the right to use the assets of White Horse as she thought fit. He gave his remaining 49 shares to Gina. The residue of the estate was equally divisible between Vicki, Gina and Maureen. This will accordingly recognises that Mr Wharton's principal wealth was concentrated in White Horse; and it is otherwise notable for the extent of the provision made for Gina, (who is treated almost as generously as Maureen) and for the complete exclusion of Amanda.
- The re-establishment of the relationship between Mr Wharton and Gina (evidenced by the provisions of the 1995 will) is also evidenced by the fact that in 1996 Mr Wharton arranged for White Horse to purchase a property near Sheerness into which Gina and her family moved as tenants at a notional rent. Gina says that Mr Wharton promised it to her as her inheritance. I accept that evidence as being the very sort of thing that Mr Wharton would say to salve his conscience: but it was not of course in his gift, since it belonged to White Horse. Following Dorothy's death in 1999 Mr Wharton's relationship with Vicki also improved and she and her daughter Prisca began to visit the Warden Bay Caravan Park and to visit Gina during the school holidays. There was no improvement in relations with Amanda.
- Unfortunately the relationship between Mr Wharton and Gina deteriorated and eventually broke down completely in 2003. As with most family rows it is impossible 8 years after the event to identify the cause or causes or to apportion blame: nor is it necessary to do so. The simple fact is that Gina did not speak to her father from about August 2003 until the day before he died. There was a body of evidence (which I accept) that Mr Wharton regarded Gina with bitterness. Despite that evident rift Mr Wharton did not immediately revise his 1995 will. I do not regard this lack of activity as some form of positive affirmation of his recorded testamentary wishes.
- On 13 December 2004 Mr Wharton was diagnosed with a malignant melanoma in his left eye and surgery was performed within days. That prompted him to consider making a new will. The accountants acting for White Horse (and as personal accountants to Mr Wharton and Maureen) were Reeves & Neylan of Chatham ("Reeves"). One of the partners who had conduct of those affairs was Clive Stevens ("Mr Stevens"). He recommended Mr Wharton to go to Caroline Brooks-Johnson of Stephens & Co, Solicitors, also of Chatham ("Ms Brooks-Johnson"). She attended upon Mr Wharton and Maureen at "Chimneys" for about two hours on 19 January 2005.
- From Ms Brooks-Johnson's attendance note it is clear that Mr Wharton explained:
(a) that he had three daughters, but that he did not speak to Gina because he had "bought her house and she threw it back" and had "walked away";
(b) that he had not married Maureen but that they had decided to get married if there was a serious problem with himself (but not in the near future);
(c) that Maureen and he each wished to grant the other an enduring power of attorney;
(d) that ideally they wished on the first death for the entire estate to be passed to the other "then" one fifth to each of the "four daughters" (that is Mr Wharton's daughters Vicki and Amanda, and Maureen's daughters Zoe and Zena) and one fifth between all of the grandchildren and great grandchildren (including the issue of the two estranged children, Gina and Maureen's son Ricky).
- Ms Brooks-Johnson provided both written and oral evidence at trial: she was an essentially reliable witness, though I was not always confident that her elaboration of material in her files was prompted by genuine recollection rather than an undoubted desire to be helpful.
- She approached her retainer on the footing that neither Mr Wharton nor Maureen had made wills. She advised (in the light of the instruction she had received) as to the wisdom of their marrying both from a succession and an inheritance tax viewpoint, but was told by Mr Wharton that he would only marry on his deathbed. Ms Brooks-Johnson considered that there were serious inheritance tax problems to be addressed (particularly in the light of an Inland Revenue investigation to which White Horse was then subject): so she decided to formulate a strategy with Mr Stevens.
- Whilst she did so Mr Wharton went ahead with the making of a Spanish will on 8 February 2005. He declared that he had two daughters (Vicki and Gina) and that he was currently married to Maureen: neither of these statements was strictly true. He "appoint[ed] and institute[d] as [his] sole and exclusive heir to his estate" Maureen, with a substitutionary gift in favour of his and her grandchildren. He declared that he had not constituted either of his daughters heir to any part of his Spanish estate
"As I consider that any legitimate portion that might be their due has or will be left to them through disposal of part of my assets situated outside of Spain".
Apart from Mr Wharton's refusal to recognise Amanda as one of his daughters I do not think that the terms of the Spanish will dealing with a discrete pool of Spanish assets is of significance in divining Mr Wharton's intentions as to his general estate.
- As to that general estate, Ms Brooks-Johnson spoke with Mr Stevens on 14 February 2005. The agreed strategy was to prepare "holding wills" which would at least enable the communicated wishes to be carried out (although it did not improve the long term inheritance tax position). Ms Brooks-Johnson commented that the last thing the Whartons wanted was for the children to be benefiting on the first death and getting involved at that stage. It is clear from the form of the draft wills that she sent to Mr Wharton and Maureen that she had understood her instructions to be that the first to die was to make an absolute gift of the entire estate to the survivor, and that it was only in the event of a failure to survive a contingency period that gifts to children and grandchildren would come into effect. The intention was not to create life interests and remainders over.
- Draft wills in that form were prepared and dispatched on 18 February 2005. On receipt Mr Wharton telephoned Ms Brooks-Johnson. A note of the call (so far as relevant) reads:-
"If he gave everything to [Maureen] she could change her mind and disinherit his children. He said that she is 15 years younger than he is and could get married to someone else. He has been around a long time and does not want to see his children suffer. He had this problem with his grandmother who remarried and then left everything to her husband who then in turn left it to his children. ... He thought it would be a good idea to have some sort of prenuptial agreement ... He asked that I leave it with him and he will think about it……."
- Mr Wharton's decision to take his time over making the new will evidently caused Maureen to telephone Ms Brooks-Johnson to enquire as to her own position should Mr Wharton die. In the course of the 30 minute call there was a lengthy discussion about Amanda, consideration whether Maureen might have a claim against Mr Wharton's estate, and consideration of whether a trust might afford another option. But the two separate telephone calls had caused alarm bells to ring, and Ms Brooks Johnson advised that Maureen needed to sort things out with Mr Wharton and that if there was a conflict of interest she would not be able to act for either of them.
- Ms Brooks-Johnson did not receive any further instructions from Mr Wharton. But Mr Wharton did speak to Mr Stevens. The evidence of Mr Stevens (which I accept) is that Mr Wharton had some doubts as to how he should leave his estate for Maureen's benefit, whether it should be in trust or left absolutely, and that he wanted time to think about matters. According to Ms Brooks-Johnson's record of Mr Steven's account of that conversation with Mr Wharton (upon which I can rely in preference to Mr Stevens' much shorter and more ambiguous note):-
" Mr Wharton [was] keen to see now that Maureen [was] protected for her life and that perhaps everything is placed in trust for her benefit and then on to his children. As they [were] more or less decided that they will not be marrying unless Mr Wharton is on his deathbed, inheritance tax would need to be paid anyway.."
Ms Brooks-Johnson and Mr Stevens (who were the proposed executors) agreed that they would need a very comprehensive letter of instruction if they were to act as trustees under such a trust arrangement, and that Mr Wharton needed to set out exactly what he wanted to happen and to update it regularly. Her attendance note concludes with the observation:
"We were confident that we had both given the best and same advice and it is obviously a matter for our clients whether they wish to take this".
There is in fact no evidence that Ms Brooks Johnson had advised Mr Wharton about trusts (as opposed to prenuptial agreements). There is evidence that she had discussed trusts with Maureen. So the probability is that there was discussion between Mr Wharton and Maureen about disposing of his estate.
- I do not consider that at the beginning of March 2005 Mr Wharton had any settled intention as to how to dispose of his estate: in particular he had not decided to leave it to Maureen for her life with the remainder to "his children" (whoever might have comprised that class). Such an arrangement was a possibility: but no more. The evidence of Mr Stevens is clear that Mr Wharton was in doubt: and Ms Brooks-Johnson's attendance note introduces the trust concept with the crucial word "perhaps". Both professionals have correctly recorded Mr Wharton's then current attitude.
- Ms Brooks Johnson then wrote to Mr Wharton alone on 7 March 2005 recording her understanding
"… that you would now be interested (sic) in preparing a will on the basis that Maureen is protected for her lifetime and that your assets are put in trust for this purpose"
She said there would be no problem in preparing documentation on that basis provided that no conflict arose between Mr Wharton and Maureen: and she invited him to telephone and discuss the way forward.
- Mr Wharton could so easily have done so. But he did not. So Ms Brooks-Johnson telephoned him on 24 March 2005. He confirmed that he was discussing matters with Maureen and had told her exactly what he had told Ms Brooks-Johnson. He was adamant that he was not going to get married unless he was dying imminently. When the subject of the draft wills was broached according to the attendance note
".. he kept saying that these were next to useless as they did not protect his family in any way"
Ms Brooks-Johnson fairly and accurately said that such a consideration had not formed part of her instructions at their initial meeting. It was left that Mr Wharton would revert to Ms Brooks-Johnson.
- He could easily have done so: but he never did. So Ms Brooks Johnson chased on 10 May 2005, 11 October 2005 and 22 November 2005, eventually submitting an invoice. Mr Wharton indicated that he would not pay it as "the draft will [bore] no resemblance to what he wanted". It was left that Mr Wharton would mark up the draft will with the bits that he was not happy about. But although it was a simple task, once again he did not do so. Ms Brooks-Johnson made two further attempts to obtain instructions as to Mr Wharton's and Maureen's testamentary wishes on 6 and 23 February 2006: but she received no instructions. She made a final and equally unsuccessful attempt on 17 May 2006. Mr Cousins QC submits that this inactivity is to be accounted for by Mr Wharton's refusal to contemplate his mortality: but this is not a satisfying answer where the opportunity to state his testamentary wishes is being pressed upon him within the context of a will-making process that he himself had initiated. I find that at this stage Mr Wharton had no settled intention as to what his testamentary wishes were: he did not know what to do.
- In May 2006 Mr Wharton was diagnosed as possibly having cancer of the liver. Maureen had a breakdown and was admitted to a psychiatric hospital. It was at this point (mid June 2006) that Mr Wharton instructed Mr Bancroft's firm to carry out transactional and advisory business for White Horse. Mr Bancroft immediately advised that attention be given to business succession and inheritance tax planning since it was unrealistic to look at Mr Wharton's business affairs without considering these issues.
- Out of the blue Mr Stevens of Reeves then received from Maureen (on 5 July 2006) two original wills prepared on a retailer's standard will form. Mr Wharton's ("the 2006 Will") had been completed in his handwriting. It has been inexpertly completed. It appoints Mr Stevens and "Reeves & Naylan" (sic) to be executors. In the section with the rubric "Specific Gifts and Legacies", after the printed words "I give" Mr Wharton has simply written "all my estate", but not identified a donee. In the section with the rubric "Residuary Gift" he has added after the printed words "I give the residue of my estate to" in his own hand "Maureen Wharton". He has completed the part relating to Funeral Directions with instructions that he be buried with Maureen Wharton. The will is dated in Mr Wharton's hand "3 July 2006" and appears to bear his signature. It is witnessed by Karen Jeffrey (a cash controller then employed by White Horse) and by Leon Maas (a chef whose mother worked for the Whartons).
- The other will was that of Maureen and had been completed in exactly the same way (save that she named Mr Wharton as her sole beneficiary), bore the same date, and was witnessed by the same witnesses.
- At trial the 2006 Will was a hotly contested document. Indeed at trial the Daughters obtained permission to re-re-amend their Defence and Counterclaim to re-plead their case about it. Their original case had been that Mr Wharton's signature on the 2006 Will had been forged. This allegation was later withdrawn, though the Daughters maintained that the 2006 Will had not been properly witnessed. By amendment at trial the Daughters asserted that the 2006 Will had been procured by the undue influence of Maureen.
- As I have explained, because the Daughters accept that the marriage between Mr Wharton and Maureen is valid, the 2006 Will was revoked by that marriage. There can be no question of it governing the disposition of Mr Wharton's estate in any circumstances. So it could be left on one side. The reason it was hotly contested was because Maureen said that it could, and the Daughters said that it could not, be treated as a reliable indication of Mr Wharton's testamentary wishes in July 2006 (and both sides thought that this had some relevance to whether the 2008 Will could be treated as the last true will of Mr Wharton).
- For my own part I do not invest it with this significance. Mr Bancroft's attendance note of 24 September 2008 records that
"…when discussing the will Mr Wharton confirmed that he had already made a will leaving everything to Maureen a while ago and he was unchanged in his wishes".
So whether the 2006 Will can be treated as accurately recording Mr Wharton's testamentary wishes at the time it was made seems beside the point: by 2008 he undoubtedly regarded it as having done so. But out of respect for the argument advanced I will briefly address the issue.
- How did the 2006 Will come about? Maureen is not a witness on whose evidence I feel that I can confidently rely (unless it derives support from some document, some other testimony, or some proper inference or inherent probability) because of her tendency to exaggerate and embellish, to flatly deny propositions in which there must have been more than a grain of truth, and to evade the areas of difficulty by having a lapse of memory. No doubt this was in part an unconscious reaction to the gravity of the charges laid against her by the Daughters. It is perhaps fortunate that her case does not depend upon her own unsupported evidence. In her witness statement Maureen says that the initiative for the 2006 Will lay entirely with Mr Wharton, who told her (when she returned from a spell in a clinic) that he had decided to make his own will and leave everything to her: but that she now has no clear recollection of how the Will forms were prepared and signed. I doubt that this is a full and entirely accurate account of events (because within a matter of weeks Mr Wharton was writing to Ms Brooks-Johnson saying that the draft will which her firm had prepared, and which left everything to Maureen, was not what he wanted).
- I am satisfied that the actual acquisition of the blank will forms was arranged by Mr Wharton. Mrs Jean Maas gave evidence that Mr Wharton asked her to get two "Will Packs" for him from Tesco. She had been Mr Wharton and Maureen's housekeeper for many years; and she was evidently loyal to Maureen. Further, she tended to embellish her oral evidence with details not apparent in her witness statement. However, I doubt that this elderly lady came to Court consciously and deliberately to lie about events which simply did not occur, or in her somewhat frail state to expose herself to cross-examination by quick-witted counsel. So I find that Mr Wharton procured the will forms.
- I find that Mr Wharton completed the will form in his own hand and himself signed it. After the abandonment of the forgery allegation that was not really in issue.
- The case that the 2006 Will had not been properly witnessed has its origin in two pieces of evidence. First (as I shall recount) Maureen later had a concern that it may not have been properly witnessed and discussed that with Mr Bancroft. Second, in June 2009 (and so well after the death) Maureen's son Ricky wrote to Gina to say that in July 2008 Maureen had asked Karen Jeffrey to sign some papers as a witness, but at the time Karen Jeffrey witnessed the documents Maureen had said that two witnesses should be present, but that the other witness Leon Maas would sign later. For reasons into which I need not go Ricky was in June 2009 very hostile towards his mother. Since the 2006 Will was undoubtedly produced in 2006 (and not in 2008) this account is deeply suspect: and I regard it as pure mischief making. I accept Ricky's acknowledgement at trial that this was so. I do not regard Maureen's evident concern that the 2006 Will may not have been properly witnessed as evidence that it was not so witnessed.
- I must address the issue now that it has been raised. One of the witnesses to the 2006 Will (Karen Jeffrey) was not called by either side. The other witness (Leon Maas) gave evidence which (if believed) establishes due execution. His great difficulty is that on 3 July 2006 there came into being not only the 2006 Will but also a mirror will for Maureen, signed by her and also witnessed by Karen Jeffrey and Leon Maas allegedly in her presence (although Maureen is insistent, and Mrs Maas and Leon Maas agree with her, that she was not present when Mr Wharton signed). Mr Cousins QC submitted that Leon Maas therefore faces the dilemma of either accepting that his evidence about the absence of Maureen is wrong, or accepting that he signed something that was untruthful (viz. that Maureen had signed her will in his presence): and on either account his credibility was in tatters. Leon Maas himself could recollect nothing about the signing of Maureen's will, and could suggest only that he and Karen Jeffrey had signed both wills in Mr Wharton's presence believing Maureen's to be a duplicate of Mr Wharton's. But whatever the difficulties in relation to the signing of Maureen's will, so far as concerns the witnessing of the 2006 Will I do not think Leon Maas came to court to tell me deliberate lies. So, for example, when he gave evidence that Mr Wharton told him off for starting to write his address in the place designated for his signature, I do not think that this was either a fabrication (the mistake is borne out by the document) or the deliberate and dishonest substitution of Mr Wharton for somebody else. In the same way I do not think that Leon Maas' evidence that Karen Jeffrey was present was a fabrication or a deliberately dishonest statement. I find on the balance of probabilities that the 2006 Will was correctly witnessed. Certainly the case against accepting the truthfulness of the statement as to due attestation on the face of the 2006 Will itself is very weak: I have in mind here the observations of Arden LJ in paragraph  of her judgment in Channon v Perkins  EWCA Civ 1808.
- The case that the 2006 Will was brought about by the undue influence of Maureen, who compelled Mr Wharton to sign it against his own wishes, is also weak. When the 2006 Will was signed Maureen had just come out of a clinic following a breakdown: she was hardly at the peak of mental strength. Mr Wharton undoubtedly completed the will form in his own hand and himself signed it in circumstances in which neither Karen Jeffrey nor Leon Maas could force him to do so. The 2006 Will was not kept under Maureen's control at "Chimneys": it was openly sent to Mr Wharton's accountant, who wrote to Mr Wharton about on 13 July 2006 in a letter dealing with other matters (including pressing tax issues) and it was the subject of subsequent discussion at a meeting with Reeves' staff on 21 August 2006. But Mr Wharton never repudiated the 2006 Will as having been forced upon him: indeed on his deathbed he affirmed that at that point that it represented his wishes.
- The undue influence case essentially rests (although notably this is not the way the case is pleaded) on the fact that shortly after signing the 2006 Will Mr Wharton was writing to the solicitor who had prepared a draft will for him asserting that a will leaving everything to Maureen was not what he wanted. But I do not regard those events as inconsistent. When the 2006 Will was made Mr Wharton's then current effective will left a significant gift to Gina, with whom he was now at odds, and would have made the functioning of White Horse difficult. He had been advised to make a "holding" will whilst tax was sorted out. He was in dispute with the solicitor who had prepared such a draft will over her bill: and he was a stubborn man who would not back down. Mr Bancroft (whom he had just instructed on business matters) was also saying that there was a tax problem. There was a scare over the liver cancer diagnosis which must have caused him to confront his mortality. Even allowing for the probability that in her fragile state and in the light of Mr Wharton's own condition Maureen pleaded that Mr Wharton do something to secure her future, it remains more likely that Mr Wharton decided himself to make a simple "holding" will than that he was unduly influenced to make a will in Maureen's favour: in other words, it is likely that he was persuaded but not coerced. So viewing the 2006 Will as a "holding" will until something else was prepared under advice is another reason why I do not invest the circumstances in which the 2006 Will was made with great importance in deciding the validity of the 2008 Will.
- On 8 July 2006 Mr Wharton and Maureen went on a "cruise in company" along the South Coast in their boat. While still they were away Ms Brooks-Johnson wrote demanding payment of her bill. Immediately upon his return Mr Wharton wrote to her stating that the Will she had sent him did not comply with his requirements and he was not prepared to pay her to amend it. When Ms Brooks-Johnson wrote to explain that the Will she had prepared accorded with his initial instructions, but that his instructions had apparently now changed, and that she would deal with any revised instructions for her usual charges, Mr Wharton responded (on 21st of August 2006 in a letter in Maureen's handwriting) reiterating that the Will she had prepared did "not include what I specifically asked you to do". I regard this as clear evidence that (as at July/August 2006) in the long term Mr Wharton did not see an outright gift of the entire estate to Maureen as meeting all of his requirements if his professional advisers could suggest alternative arrangements: but, of course, it provides no accurate guide as to what his requirements actually were or what professional advice he would regard as acceptable.
- Mr Wharton maintained his stance that he would not pay, but nonetheless arranged to meet Ms Brooks-Johnson in two month's time i.e. November 2006. But she declined to accept the instructions (on the footing that there had been a breakdown in the solicitor and client relationship) and she wrote off her bill.
- Nothing further occurred until November 2007 when Maureen herself sought advice as to what would happen on Mr Wharton's death, given that he appeared to be in denial over his mortality. She went to see Mr Bancroft, both as to her own position and also how White Horse could continue to function after Mr Wharton's death. She told Mr Bancroft of the 1995 Will and of a "home-made will" which Mr Bancroft recorded as having been made in about 2003 (though he thinks that is a simple typing error) and which left everything to her. He records that Maureen had a worry in her mind that the 2006 Will may not have been witnessed properly and at some point in the interview Mr Bancroft appears to have given a warning about the frequency with which home-made wills were invalidly executed. Mr Bancroft was asked by Maureen to keep her visit and her concerns confidential and not to disclose them to Mr Wharton or anyone connected with White Horse.
- He was much taxed in cross-examination with the alleged impropriety of his seeing Mrs Wharton on her own and of discussing with her the will of another client. In my judgment he was too ready to accept criticism. Maureen appears only to have sought advice about the validity of the 2006 Will (which Mr Wharton had given to her and which she had given to Mr Stevens) and to share her concern about her own position and that of the business. She did not retain Mr Bancroft to do anything and I do not think that by listening to the concerns of one of his three clients (Mr Wharton, Maureen and White Horse) Mr Bancroft thereby placed himself in a position of conflict which prevented him from acting for anybody ever again. What he did was share his thoughts as to the potential inheritance tax bill for Mr Wharton with Mr Stevens of Reeves, and to raise the possibility of stripping out of White Horse any freehold property holdings with no conceivable business use. He concluded his letter to Mr Stevens of 12 November 2007:
"I very much doubt that Mr Wharton can be persuaded to do anything constructive in this regard during his life and I have never used a deed of variation or family arrangement to attempt to asset strip a company and am very dubious as to whether it could be done. I also feel that trying to persuade Mr Wharton to do anything this complicated or indeed anything at all is probably going to be a hopeless task. I also believe that the relatively simple solution of marrying Maureen and then making a new Will giving everything to her since the old Will will be revoked by marriage is equally unlikely to be successful".
He then asked Mr Stevens to comment on his "rather rough and ready look at the availability of inheritance tax business and property relief".
- This contact led to a discussion with Mr Stevens. Mr Stevens confirmed Mr Bancroft's appreciation of the position. In his witness statement Mr Steven's says that he understood Mr Bancroft was to speak with Mr Wharton about the "simple solution" (but there is no suggestion that this was on Maureen's instructions). He may have done so, because in his detailed attendance note Mr Bancroft records that at some point he did broach with Mr Wharton that he should consider making a will and that for inheritance tax planning purposes it would be extremely beneficial if he married Maureen (assuming that provision was to be made for her): Mr Wharton had indicated that he intended to live forever and would not contemplate what was to happen after his death. Mr Bancroft spoke to Maureen and was "not instructed to do anything further". At the trial Mr Bancroft told me (and I accept) that Maureen was asking for advice, not action; and a lot of what she asked for concerned tax planning and White Horse.
- Turning from contact with professionals I should briefly advert to the evidence of various witnesses who told me that they were privy to Mr Wharton's testamentary intentions. Mr Burns tendered written evidence under the Civil Evidence Act that in August 2008 Mr Wharton was talking about paying Prisca's university fees; but his evidence does not specifically relate to testamentary provision. Mr Cooper (a combative and aggressive witness firmly in the Daughters' camp) said that Vicki and Gina had a good relationship with Mr Wharton and that from discussions which Mr Cooper had had with Mr Wharton there was no reason why he would have wanted to exclude them from his will. He was not a credible witness. Mr Fagan (Gina's husband) said that between 1996 and 1999 Mr Wharton had told him that he wished to leave a significant part of his estate to Gina and that they would inherit the cottage in which they lived.: this was, of course, before the rift. In 2004 Mr Wharton told Ms Shiels that the money she was to pay him for some land "was going away for [the kids]" and that they would be "sorted". On the other hand, in 2005/2006 Mrs English was told by Mr Wharton that, apart from Maureen, Maureen's daughter Zena was the only one he would leave anything to and that his own children would get nothing. Mr Paterson was of opinion that Mr Wharton loved his three daughters and spoke fondly of them on a number of occasions and it was his understanding that if anything happened to Mr Wharton then his daughters would inherit most of his estate (including White Horse). Mr William Peek made a witness statement (on which he was not cross-examined) in which he recounted how in May 2008 Mr Wharton had on several occasions indicated that his daughters would be inheriting the caravan parks, on one occasion saying that "they would all get a surprise when I go as I have (sic) left most of it to my daughters and my granddaughter": there is, of course, no will in these terms or anything approaching them. Clare Heward likewise made a statement on which she was not cross-examined: and it was to the same effect. Vicki gave evidence that over Whitsun 2008 Mr Wharton said to that she had absolutely nothing to worry about as she "had" (sic) been left a lot and Prisca's university fees "had" (sic) been taken care of. Having noted that this sort of evidence was given I should make clear that I do not regard it as of great weight. What testators or intending testators are recollected as having said in casual conversation about wills they have made or are intending to make is a notoriously unreliable indicator of true testamentary intention, being often tailored to the audience or said for some temporary advantage in family relationships. In the instant case there is no evidence at all that Mr Wharton had ever made dispositions of the type indicated or had ever given instructions to any professional adviser that he intended to do so. But I do think that he adored Prisca and that he did make known a genuine intention to help her with her university fees (though he would not have intended, at the time he made those statements, to have done so by will).
- It is possible to move forward to the summer of 2008 when three events of minor importance occurred. First there was the sale of a parcel of land adjoining Leysdown Road to the Kent County Council: this involved Mr Cooper (who at trial called Maureen a greedy and jealous person) vacating part of the boot fair land (for which he received compensation): but there was an ongoing dispute with White Horse about some unpaid rent. As late as 27 August 2008 Mr Wharton was giving instructions to and receiving legal advice from Mr Bancroft in relation to the issues arising. The sale also involved Mr Conebar moving his horses from the grazing on the boot fair land. According to Mr Conebar (who after Mr Wharton's death also had a dispute with Maureen) Mr Wharton blamed Maureen for his having to do so. Insofar as these witnesses sought to portray Mr Wharton as a bullied man submitting to the demands of Maureen against his will I unhesitatingly reject their evidence. The documentary evidence does, however, show Mr Wharton managing his business right up to his final days.
- Second, in the last week of August and the first week of September 2008 Mr Wharton was in the process of appointing Mr Maxstead to be the club or park manager at Warden Bay. Mr Wharton entrusted him with several tasks and continued to do so up until 25 September 2008. This was Mr Wharton's doing.
- Third, at the beginning of September 2008 Mr Wharton began arranging for a disciplinary meeting to be held to review the conduct of Karen Jeffrey (the bookkeeper who witnessed the 2006 Will and partner of Maureen's son Ricky) in relation to the accounts of White Horse. He conducted an investigatory meeting on the afternoon of 9 September 2008 and arranged to chair a disciplinary meeting on 18 September 2008. But on 14 September 2008 he suffered abdominal pain and withdrew from chairing the panel. Mr Wharton was admitted to hospital on the evening of 15 September 2008. On the 16, 18 and 19 September 2008 he then gave instructions to Mr Maxstead as to how the disciplinary hearing was to be approached. Mr Maxstead (who by reason of a subsequent falling out with Maureen was no friend of hers at trial, and attended pursuant to a witness summons) said in written evidence that Mr Wharton was "determined, headstrong and clear as he ever was" and at trial that he was "coherent and clear". Mr Patterson (who at trial betrayed a personal antipathy towards Maureen because he too had a dispute with White Horse) told me that on 20 September he had visited Mr Wharton in hospital taking several draft White Horse letters for his consideration: but that on that occasion Mr Wharton was heavily medicated and that it took four or five readings of the drafts before Mr Wharton understood the content. Insofar as this conflicts with the picture painted by Mr Maxstead I regard the evidence of the latter as more reliable. But it demonstrates that Mr Wharton was still regarded as "in charge" even though he was in hospital. On 21 September 2008 Mr Wharton told Mr Maxtead that he intended to marry Maureen and asked him to arrange for flowers to be delivered for 24 September 2008 (which he anticipated would be the day of the wedding).
- The diagnosis of terminal liver cancer came on 22 September 2008. At 6 pm that evening Mr Khan, the consultant surgeon attending Mr Wharton at the Spire Alexandra Hospital saw Mr Wharton to advise him of the seriousness of his condition, namely that he had between three and ten days to live. Mr Khan is of the opinion that Mr Wharton's capacity was not impaired. Judging from Mr Wharton's drug regime, Mr Khan considers that the levels of pain suffered by Mr Wharton would not have been extreme on 23 September 2008; and he does not believe that any of the prescribed medication would have affected Mr Wharton's knowledge and understanding on that day (23rd). This evidence was not challenged. I find the assessment accurate.
- Mr Wharton was discharged on 23 September 2008 for palliative care at home. The journey home was clearly stressful, and he arrived in the early afternoon in a weakened condition. His general practitioner was Dr Simon Witts. Dr Witts was informed by the hospital of the discharge and was also contacted by the Registrar of Marriages with a request that Dr Witts attend upon Mr Wharton to assess his capacity to marry. Dr Witts attended at about 5.30pm by which time the stress of the journey appears to have worn off; there was no doubt in his mind as to Mr Wharton's capacity to marry. (I should record that capacity to marry does not establish testamentary capacity). Mr Wharton explained to Dr Witts that he wanted to marry Maureen "to make sure that the taxman didn't get everything": and he also informed Dr Witts that he had arranged to make a will and was ensuring that everything was in order. (It is not established that Mr Wharton knew the inheritance tax consequences of giving a life interest: but it is established that he knew he would avoid tax by making a will in favour of his wife. So this comment to Dr Witts may fairly be taken as an indication of an intention to make a substantial outright gift to Maureen: though not, of course, to the exclusion of others).
- Mr Wharton was suffering some pain in the abdomen and back. The hospital had already prescribed Tramadol (an opoid analgesic which derives from morphine) in low and intermittent doses; Dr Witts increased that to a "full dose" and discussed administering Oramorph (based on a morphine salt) the following day, and Co-codamol (a form of codeine) immediately. Tramadol can have a number of side effects (including drowsiness, mood changes and dependence upon the drug), but Dr Witts saw no such side-effects. His evidence confirms that Mr Wharton was not "woozy" and was of sound mind. He expresses the opinion that the medication would not have interfered with Mr Wharton's ability to make a will. His attendance on Mr Wharton lasted some 30 minutes and included a discussion of the "end of life" drug regime to ensure that Mr Wharton did not suffer pain.
- The evidence does not establish to my entire satisfaction exactly when the prescription for full dose Tramadol or Co-codamol was collected or administered; but I consider it unlikely (having regard to the general timings) that either was administered before Mr Bancroft attended. Both the increased dosage of Tramadol and the Co-codamol had been taken by the time Dr Witts visited on 24 September 2008. The drugs in combination can accentuate the side-effects of Tramadol. But even though both were then being taken Dr Witts assessed Mr Wharton on that day as "fine" and not suffering any possible symptoms or side-effects from the medication, with no impairment of mental capacity.
- The unchallenged expert evidence of Mr Robin Jacoby, Professor Emeritus of Old Age Psychiatry at the University of Oxford, was that the medication Mr Wharton was receiving to alleviate his symptoms would not have caused a disorder of the mind (confusion by delirium) that could have impaired capacity: nor was there any medical reason why Mr Wharton would have needed things to be read over to him several times to be able to understand them; nor was there any medical reason why he should necessarily have been subject to the influence of others. When asked by the Daughters what effect Mr Jacoby would expect the taking of medication to have upon Mr Wharton's ability to concentrate, assimilate information and/or get confused, Mr Jacoby responded:-
"In my opinion he was not confused i.e. not delirious due to medication. If his ability to concentrate was at all impaired, and I cannot say whether it was or was not, tasks and decisions that would have had emotional impact or importance, such as getting married or making a will, could have had the effect of raising his level of concentration. Conversely, tasks or decisions of a trivial nature, such as whether or not to drink a cup of coffee, might have been affected by poor concentration."
- The actual making of the 2008 Will I have covered as a discrete topic at the outset of this judgement: and also the marriage ceremony.
- I can deal with subsequent events very shortly. After his drink with Mr Lee Mr Wharton telephoned Vicki to say that he had got married. She expressed astonishment. It was in that conversation that Mr Wharton told Vicki that she was not to worry and that he had taken care of everything including Prisca's fees. That night Mr Wharton slept well. Dr Witts visited him the following day. The family gathered (including Vicki and Gina). Amanda was not contacted by anybody. There were tensions amongst family members but none throws any light on what I have to decide. Mr Wharton died at 10:40pm on 26 September 2008.
- His death and the consequent funeral arrangements caused further stresses within his family. The evidence about these does not help me decide the case.
- On 2 October 2008 Mr Bancroft (on Maureen's instructions) published the contents of the 2008 Will to the family generally (but not including Amanda). It caused upset and by 26 November 2008 Vicki and Gina had caused a solicitors' letter to be sent challenging Mr Wharton's testamentary capacity, alleging undue influence and claiming entitlement by virtue of "mutual wills" or "estoppel" and making claims for family provision. The measure of their distress at Mr Wharton's treatment of them may be gauged from the tenor of that letter: it is a cry of anguish dressed up in legal language. Amanda eventually learned of Mr Wharton's death and she too joined in.
- Given the size of this estate, the unused nil rate tax band, the ready availability of specialist probate mediators at the Chancery Bar, and the ease with which CPR57 enables wills to be proved consensually, one might have hoped that a Deed of Family Arrangement might have facilitated a measure of reconciliation and healing between Mr Wharton's two (or three) families. But whatever steps were taken (and of course I do not know and do not in this judgement direct criticism at anyone) they were unsuccessful, and I must decide the case on the law.
- I therefore turn to my analysis of the pleaded issues. I shall express my conclusions on the totality of the evidence without tracing the shifting evidential burden.
- I say at once that there is nothing in the least suspicious about the deathbed marriage. Mr Wharton and Maureen regarded themselves as husband and wife. I have referred to the Spanish will and to the evidence of some of those who were surprised to learn that the couple were not in fact married. But there was a mass of other material (cards passing between them, the evidence of friends and family). It was always Mr Wharton's intention to marry on his deathbed. As he approached death he announced his intention to marry. He quite plainly understood marriage as a solution to the inheritance tax problem which overhung the business he and Maureen had created and for which he had made no provision. There is not the slightest doubt that he had capacity to marry. There is not the slightest doubt that he chose to get married and that his marriage was valid.
- It is also clear that Mr Wharton understood that by marrying Maureen he would (unless other arrangements were made) thereby revoke his existing will and die intestate. He had been engaged in the will making process since early 2005. The fact of making a will on his deathbed is therefore not of itself suspicious, or such as to raise the inference that Mr Wharton was only making a will because he was subject to illegitimate pressure.
- It is quite plain that Mr Wharton thoroughly understood that he was making a will (and was not engaged in some other process). Accordingly, the focus of the challenge has to be the terms of the will that he signed. Did Mr Wharton understand and sanction those terms? If he did understand and sanction those terms, was that sanction the product of volition or coercion?
- The key term is the single disposition that the 2008 Will makes. One begins with the compelling point that the gift was virtually dictated by the testator himself a very short while before it was written out by the solicitor as a clause in the will. It was a simple gift. Nobody suggests Mr Bancroft misheard what was said. Nobody suggests that the words he wrote down in the testamentary document have an effect different from the words which the testator spoke by way of instruction.
- So the essence of the Daughters' case is that Mr Wharton (although of capacity to make a will) did not understand what he told Mr Bancroft to do, and if only the solicitor had probed a bit he would have found out the testator's real intention (which was to do something other than leave everything to Maureen absolutely).
- The Daughters' case involves weaving together a number of threads.
- The first is that Mr Wharton's drug regime affected his ability to understand what he himself was saying and what others were saying to him: so although capable of making a will he did not in making this particular will in fact understand the gift he told the solicitor to make or (notwithstanding that the will was clearly read over to him) appreciate what Mr Bancroft had in fact done. This case is set out in paragraphs (i) (iii) (iv) and (v) of the Particulars of paragraph 7 of the Re-re-Amended Defence.
- The Daughters accept that Mr Wharton had testamentary capacity. A case based on actual impairment of understanding caused by medication requires proper expert medical evidence which considers the precise medication which the testator is proved to have taken before embarking on the will making process. The Daughters adduce none. Mr Cousins QC attempted to elicit some expert opinion evidence from Dr Witts (a witness of fact) in the course of cross-examination. The process was not satisfactory because Dr Witts had no opportunity to give a considered response. But in any event the questioning centred on Mr Wharton's drowsiness (which intervened after he had given instructions about the gift to Maureen and had terminated before the reading over of the will). It established that Dr Witts thought that drowsiness might affect concentration and that Dr Witts could not specifically confirm that any confusion would be dispelled by rousing. But the actual evidence in the present case is clear. After his short loss of concentration whilst clause 5 was written out and Mr Bancroft gave his commentary Mr Wharton recovered completely, reminded Mr Bancroft that he could not read the document which had been prepared for him and then heard the will clearly and distinctly read over to him, giving the appearance of listening carefully. In the light of the medical evidence that is adduced I find that the drugs did not cause any impairment of understanding either of what Mr Wharton himself was saying or of what others were saying to him.
- The second thread is the argument that the court must be very astute to be sure that Mr Wharton understood the gift he was making because Maureen had participated in the will making process. This case is set out in paragraph (v) of the Particulars of paragraph 7 of the Re-re-amended Defence. The evidence is clear and I find (a) that she was not present when Mr Bancroft took instructions for the 2008 Will (b) that the sole source of Mr Bancroft's instructions was Mr Wharton himself. Faced with the inevitability of that conclusion the Daughters' case became that Maureen had arranged for her solicitor to make a will for Mr Wharton. In my judgment this argument is empty. Maureen became "involved" only because she answered the telephone when Mr Bancroft sought instructions about the land swap. Mr Bancroft was not "her" solicitor. Mr Bancroft was the solicitor whom Mr Wharton had selected to act for White Horse in business and conveyancing transactions and from whom he received advice (along with Maureen) in relation to his personal affairs. The mere fact that Maureen had on one occasion in 2007 confidentially sought Mr Bancroft's advice about the validity of the 2006 Will did not make Mr Bancroft "her" solicitor.
- The third thread is the argument that whether or not Mr Bancroft is to be regarded as Maureen's solicitor he came to take instructions with a preconceived notion as to what sort of will Mr Wharton should make, and so he failed to explain to Mr Wharton the effect of what Mr Wharton appeared to be telling him to do and thereby failed to elicit Mr Wharton's true intentions. This is not pleaded in quite the way it was argued but relevant allegations are contained in paragraphs (viii) to (xii) of the Particulars of paragraph 7 of the Re-re-amended Defence, and paragraphs 8A and 8B. In closing it was submitted that Mr Bancroft was not a proper person to undertake the role of impartial adviser to Mr Wharton.
- The "preconceived notion" about the form of an appropriate will is said to be that set out in the concluding paragraph of Mr Bancroft's letter to Mr Stevens of 12 November 2007 (the simple solution to the inheritance tax problem of Mr Wharton marrying Maureen and then making a new Will giving everything to her). The true intentions are said to be that Maureen should have only a life interest in the estate and it should then pass to "the children" with some provision being made for Prisca (although of course the Daughters do not have to establish an exact scheme of alternative disposition).
- I find that Mr Bancroft did not approach the task of taking instructions from Mr Wharton with any preconceived notion deriving from the events of 2007. Those events simply were not present to his mind. That was his evidence and I believe it. He had an entirely open mind as to what the 2008 Will might contain but he knew (because Mr Wharton had just told him) that the will that would be revoked by the marriage was in favour of Maureen absolutely and that this still represented Mr Wharton's wishes. To that extent what he heard by way of instruction would have confirmed what he otherwise knew.
- In this connection it was submitted that Mr Bancroft suffered from a further misconception, since although he knew about the 2006 Will he did not know about the correspondence with Ms Brooks-Johnson in which Mr Wharton had expressed the view that a will leaving everything to Maureen was not what he wanted. But this argument completely fails to address the fact that Mr Wharton told Mr Bancroft on 23 September 2008 that the 2006 Will did represent his then current testamentary intentions.
- Nor did Mr Bancroft assume the role of "impartial adviser". He was not there to advise Mr Wharton how Mr Wharton should dispose of his estate. He was there to receive Mr Wharton's instructions as to how Mr Wharton intended to dispose of his estate, to ensure that the instructions were clear, and (in the light of those instructions) to ensure that the will was expressed in terms which minimised the possibility of dispute. For that reason he took specific instructions concerning the principal potential claimants (Mr Wharton's daughters and anyone whom he may have maintained).
- I further find that it was not Mr Wharton's true intention at the date of the 2008 Will that Maureen should have only a life interest in the estate. On his deathbed he decided that what had originally probably stood as a "holding" will should in fact represent his final wishes. No doubt the perspective from the deathbed is very different. Perhaps the dying recognise with clarity that there are some things they must do even if there are other things which (if time afforded) they might have done. But I am in no doubt that on his deathbed Mr Wharton had no intention other than that which is recorded in his 2008 Will. I am equally in no doubt that he expected Maureen to remember both his earlier concerns (which she herself had noted in the letter she wrote on his behalf to Ms Brooks-Johnson) and his desire to help Prisca, and hoped that she would by her own choice act accordingly out of respect for his memory.
- On 29 September 2009 Mr Bancroft was interviewed by the solicitor acting for the Daughters. Mr Bancroft had not had the opportunity to consult his files: so his responses were unassisted bare recollection. The solicitor asked what words Mr Bancroft would use now to reflect the instructions he had received. His record of the answer was:
"Just put all to M, executors and body clause". M to provide to Vicki on her death as G saw it (and also Vicki's daughter). No trust mentioned."
Mr Bancroft volunteered that this record was fairly accurate: but he did say (in a letter dated 17th February 2011) that the interview was more like cross-examination, with the solicitor trying to get Mr Bancroft to agree to various statements of the solicitor's making. He explained that his view that Maureen would provide for Vicki and her daughter was an impression only formed following a conversation with Maureen after Mr Wharton's death to the effect that they had discussed this matter. This manuscript note of Mr Bancroft's telephone conversation was at trial used to suggest that Mr Bancroft (had he thought about it) should either have understood that what Mr Wharton really wanted was a trust and not an absolute gift or alternatively that Mr Wharton's instructions were ambiguous and that Mr Bancroft had failed to pick this up: and that his subsequent comment that the idea of providing in some way for Vicki and Prisca had derived from something that Maureen said was an attempt to cover up this failure. I reject this analysis. The evidence is clear that Mr Wharton understood his earlier will to give everything to Maureen, that that was what his 2008 Will was to do, and that he would have understood from the reading-over that that was what his 2008 Will did do. Mr Wharton did not hint at a trust nor did he give ambiguous instructions.
- The failure to explain the effect of the will was said to be a failure to make sure that Mr Wharton understood that by leaving everything to Maureen he was leaving nothing to Vicki or Gina. It was said that Mr Wharton's drowsiness occurred at the very time when Mr Bancroft read out (as he drafted) the terms of clause 5. I find that Mr Wharton well understood that by giving "all to Maureen" he was not giving anything to anybody else: and that there had been specific enquiries about other relatives (which provoked conversation about both Vicki and Gina) which meant that Mr Wharton fully understood that he was not leaving them anything.
- The fourth thread of the Daughters' argument is that Mr Wharton cannot have understood the 2008 Will because if he had understood it then he would have recognised claims to which he ought to give effect and made provision for beneficiaries he ought to consider, in particular Amanda whom he did not mention. This allegation is set out in paragraphs (ix) to (xii) of the Particulars of paragraph 7 of the Re-re-Amended Defence. I find that the absence of any mention of Amanda in the 2008 Will was brought about because Mr Bancroft (in common with a number of others with whom Mr Wharton had dealings) did not know of Amanda's existence: and that Mr Wharton (well knowing of her existence and not forgetting her during the will-making process) deliberately decided not to mention her to Mr Wharton. This is far more probable (and more consistent with his earlier behaviour) than simply forgetting that he had fathered Amanda.
- The final thread was Mr Wharton's comment to Vicki two hours after he had made the will that he had made provision for Prisca. It was said that this clearly demonstrated that Mr Wharton did not understand what he had in fact done. But I do not agree. Assuming it to be a reference to provision by will Mr Wharton was probably, in his dying hours, simply avoiding creating tension between himself and Vicki (whom he had telephoned to tell of the marriage). But it may not have been a reference to provision by Will at all: perhaps the provision was by way of the confidence that he placed in Maureen to do what was right. So this evidence is not of the quality to persuade me that the probability is that Mr Wharton did not know and approve the principal disposition in his will.
- I have dealt with these threads separately: but of course they intertwine. Taking them together and placing them in the context of all the evidence I am satisfied that Mr Wharton knew and approved, understood and sanctioned the terms of the 2008 Will. I consider the evidence concerning the willmaking process which I set out at the beginning of this judgment is compelling on this issue.
- The question is whether that sanction was voluntary or the product of coercion: so I turn to the question of undue influence. This is pleaded in paragraphs 8 to 8D of the Re-re-amended Defence. There was simply no attempt to prove some of the allegations there made. For example (a) that since Mr Wharton's eyesight had failed him he was dependent upon Maureen to deal with his affairs; or (b) that since his mobility had failed in late 2007 Mr Wharton was dependent upon Maureen to move him or arrange for him to move around or (c) that when Mr Bancroft attended Mr Wharton on 23 September 2008 Maureen presented him with a copy of the 2006 Will and represented that it was Mr Wharton's established testamentary wishes. It is regrettable that these allegations continued to be made in the Re-re-Amended Defence when there was plainly no evidence to support them.
- The case is that Maureen arranged and joined in initially instructing Mr Bancroft to prepare the 2008 Will and to do so on the basis that Mr Wharton's testamentary wishes remained as set out in the 2006 Will, and that she was present with Mr Wharton at all times that Mr Bancroft and his wife were attending upon Mr Wharton in connection with the 2008 Will. None of this borne out by the evidence. The true course of events is that set out in the evidence of Mr Bancroft, Joanna Bancroft and Mrs Hales. So at trial the case was presented rather differently.
- First, it was submitted that Mr Wharton's terminally ill condition and the drug regime to which he was subject made him vulnerable to the exercise of coercive power so that very little pressure was required to bring about the desired result. I was referred to the familiar passage in Wingrove v Wingrove (1885) 11 PD 81 at 82-3 and to Key v Key  1 WLR 2020 at para . In this connection it was observed that Mr Bancroft had failed to observe the "golden rule" of having the testator's medical attendant satisfy himself as the capacity and understanding of the testator and make a contemporaneous record of his examination and findings, because the medical attendant may detect defects in mental capacity which may not be apparent to a friend or professional person. But testamentary capacity is not in issue in this case. I consider the criticism of Mr Bancroft for a failure to follow "the golden rule" to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client's consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator's own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client's agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that "the golden rule" has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.
- The fact that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken, and whether (if taken) it in fact produced the 2008 Will. But I shall bear in mind the opportunity.
- Second, it was submitted that statements by Mr Wharton as to how he intended to leave his estate found the inference that the actual disposition effected by the 2008 Will must have been brought about by undue influence. I have already expressed views about the unreliability of such evidence as establishing testamentary intention but I readdress the point here. Is evidence of a departure from imprecisely expressed intentions evidence which is sufficiently cogent to persuade me that the explanation for the departure is that Mr Wharton's volition was overborne by coercion, rather than that on his deathbed he saw things differently than he had in life? I answer that question in the negative. The imminence of death undoubtedly caused Mr Wharton to reassess matters. That is why he intended to get married. It was in the light of that intention that he made the 2008 Will. I do not regard it as suspicious that a "husband" should leave to his "wife" of 32 years the entirety of his estate, even if he is a rich man. The difference between the former indications and the actual terms of the 2008 Will are not in this case sufficiently cogent evidence to found the inference of coercion (particularly in the light of the consistent advice Mr Wharton had received as to the way of mitigating the now-imminent tax charge). I see no reason to treat Mr Wharton's statements to Mr Bancroft (and the implication of his statement to Zena) about leaving his estate to Maureen as anything other than expressions of free will.
- Third, the same argument was advanced in the context of the terms of the earlier Wills. But these do not disclose anything like a consistent pattern of dispositions, and the last undisputed will (the 1995 Will) cannot be taken as representing anything like his intentions in 2008 (with its extensive provision for Gina from whom he was then estranged). Moreover, of course, I have found that the 2006 Will was a genuine expression of testamentary intention: and it is to this will that Mr Wharton specifically alluded in giving his instructions in 2008. The difference between former Wills and the 2008 Will does not provide cogent evidence founding the inference of coercion.
- Fourth, it was said that the events surrounding the 2006 Will justify an inference that undue influence was used in relation to the 2008 Will. It was submitted that Maureen had revealed herself to be utterly unscrupulous in the pursuit of her attempts to vindicate her case, and that her desire to distance herself from the 2006 Will and to obscure the true circumstances of its creation was designed to give a false impression that the 2006 Will was nothing to do with her, so that she could not have applied any improper pressure. It was submitted that if I rejected that case, then the proper inference to draw was that she knew she had applied pressure in relation to the 2006 Will; and having done so it may be inferred that she did the same thing in 2008.
- I have already expressed the view that I do not think Maureen's account of the creation of the 2006 Will is complete. I have also found, looking at the inherent probabilities, that she may well have sought to persuade Mr Wharton to do something about his will. But I have concluded that Mr Wharton was not coerced into making his 2006 Will. Maureen's reluctance to acknowledge any part in the creation of the 2006 Will cannot in my judgment sustain the inference that undue influence was exercised by her in relation to the 2008 Will.
- Fifth it was said that Maureen's dealings with some monies in a Spanish bank account after the death of Mr Wharton were matters which called for explanation and that in reaching its conclusions about undue influence " the court should take into account…. the concerns (as yet unexplained) as to the Spanish accounts and [Maureen's] inaccurate statements with regard to them". It is not necessary to examine the detail of dealings with the various joint Spanish bank accounts after Mr Wharton's death or what Maureen said about them and to whom. So far as it constituted an attack on Maureen's credibility, her credibility is not a central feature of this case (as my findings demonstrate). So far as it amounted to the portrayal of a greedy character (and so rendered the exercise of undue influence more likely) it failed. So far as it was said to be "a factor" in deciding undue influence (like the financial dealings recounted in Killick v Pountney  WTLR 41 at p. 72) I regard the Spanish account dealings as being of a wholly different character and as providing no comparable assistance.
- Sixth, reliance was placed on all of the matters argued as evidencing want of knowledge and approval. I have addressed those grounds already: and such of them as truly bear on the issue of undue influence are no more sustainable in that context than they are in relation to knowledge and approval itself.
- Is Mr Wharton's death bed will in favour of the woman he had treated as his wife for 32 years and whom he had just chosen to marry to be explained as probably the result of coercive pressure which deprived him of free choice? On the evidence and the inferences properly to be drawn from the proved facts I unhesitatingly answer that question in the negative.
- Neither challenge succeeds. I am satisfied that the will-making process resulted in a document containing the last true wishes of a free and competent testator.
- For these reasons I will pronounce for the validity of the 2008 Will and dismiss the counterclaim
Mr Justice Norris……………………………………………………1 December 2011