Rowinska, Re

This is a probate action. It arises out of the death of Mrs Maria Rowinska who died on 10^th April 2002 at the age of 87. The estate comprises a house worth approximately £500,000, savings of £200,000, a property in Poland that has not been valued but is thought to be worth about £50,000 and various items of personal property. It has been estimated that the value of the estate is of the order of £750,000. It will, of course, be subject to Inheritance Tax.

Stanislaw Wyniczenko, the Claimant, is the sole beneficiary named in a will Maria Rowinska is purported to have made on 19^th February 2002 some 7 weeks before she died.

Krysytyna Plucinska-Surowka is the niece of Maria Rowinska. She lives in Poland. She was named as an executor in an earlier will dated 4^th August 1993. It will be necessary to look at the provisions of that will later in this judgment. It made a number of bequests – many of them charitable in favour of Polish Catholic charities. It is also made a number of bequests to relatives in Poland including a gift of £40,000 to Krysytyna Plucinska-Surowka herself.

At the beginning of the trial Krysytyna Plucinska-Surowka sought to challenge the will on 4 grounds.

She contended that Maria Rowinska’s signature on the will was not genuine. She is supported in that view by a handwriting expert - Mrs Phillippa Lavell – who concludes that there is very strong evidence that the signature was produced by someone other than Maria Rowinska. Stanislaw Wyniczenko disputes that the will is forgery. He says he was present when it was signed by Maria Rowinska; so were the 2 attesting witnesses. Furthermore Dr Audrey Giles – the handwriting expert instructed by him – regards the evidence as conflicting.

She contended that Maria Rowinska did not know and approve the contents of the will before she signed it. It is common ground that the will was prepared by Stanislaw Wyniczenko and that he is the sole beneficiary under it. It is thus common ground that this is a case where the suspicion of the Court is aroused. In those circumstances the court must examine all of the circumstances of the case with the utmost care to see whether the testatrix did know and approve the contents of the will. Krysytyna Plucinska-Surowka contends that Stanislaw Wyniczenko has not so satisfied the court. Stanislaw Wyniczenko contends that he has.

She contended that Maria Rowinska did not have the mental capacity to make a will. She relied on the fact that Maria Rowinska was 87, frail, physically incapacitated and suffering from cancer. There is evidence that she was becoming confused. Stanislaw Wyniczenko accepts the evidence of her frailty but contends that it did not affect her mental capacity. He relies on the evidence of her GP – Dr Tailor – who saw her regularly. Dr Tailor in fact saw her on 18^th February 2002 – the day before the will was said to be executed and was able to give evidence as to her mental state then. He also relies on the evidence of the District Nurse – Mrs Phillips – who saw her both before and after the date on which the will was said to have been made.

She contended that Stanislaw Wyniczenko exercised undue influence over Maria Rowinska in order to make her execute the will. Stanislaw Wyniczenko denies the allegations of undue influence.

In the afternoon of the second day of the trial after Dr Tailor and Mrs Phillips had given evidence Mr Noble on behalf of Krysytyna Plucinska-Surowka indicated that he was not pursuing the defences of incapacity and undue influence and abandoned them.

As is by no means uncommon in this sort of case there are significant conflicts of evidence both as to the nature of the relationship between Stanislaw Wyniczenko and Maria Rowinska, the extent to which he was providing caring services and as to precisely what her wishes were at the material time.

Stanislaw Wyniczenko was represented by Mr Giles Harrap; Krysytyna Plucinska-Surowka by Mr Philip Noble. Both Counsel produced full and helpful skeleton arguments containing references to a number of recent authorities. I am most grateful to them.

A number of witnesses were called to give evidence before me. Stanislaw Wyniczenko gave evidence in support of his case. He then called the 2 attesting witnesses Wojciech Zasada and Malgorzata Zasada, Maria Rowinska’s GP, Dr Tailor, and the District Nurse, Mrs Phillips.

Krysytyna Plucinska-Surowka gave evidence. She then called 2 supporting witnesses Irena Abramowicz and Danuta Chomiak both of whom were involved with the care of Maria Rowinska and gave significantly different evidence as to the extent of the care given by Stanislaw Wyniczenko and as to conversations that they had with Maria Rowinska.

Many of the witnesses had a very poor command of English and I was greatly assisted by a really excellent interpreter.

Finally the 2 handwriting experts, Mrs Phillippa Lavell and Dr Audrey Giles, gave evidence in support of their respective views.

Maria Rowinska was born in Poland. She married twice. Her first husband survived the concentration camps but died in Poland fairly soon after the war. She came to England in the 1960’s with her second husband – Zbigniew Rowinska. Polish remained her first language and there are differing accounts of the extent to which she was able to speak and understand English.

It is clear from her earlier wills that she had a number of relatives in Poland. These include her elder sister – Aldona Burkhardt, her niece Krysytyna Plucinska-Surowka, another niece – Barbara Doktorczyk – and the 2 children of Krysytyna Plucinska-Surowka.

Her second husband died in 1986 and she remained living in England on her own thereafter.

There is no doubt she was lonely after her husband died. She talked from time to time about returning to Poland but never did. She was close to her sister who died in October 2001.

She was also in reasonably frequent contact with her niece Krysytyna Plucinska-Surowka. There was regular (monthly) telephone contact and letters from Krysytyna Plucinska-Surowka to her aunt. She had not in fact seen her niece since 1996.

Maria Rowinska made 4 wills before 2002:

Her first will was made in 1979. It is on a home made will form and is in English. In it she makes 4 specific bequests to her husband of what appear to be all of her assets. There is then provision for what would happen if she and her husband die simultaneously. Half of the estate in both of the wills goes to one family the other half goes to Pope John Paul and charity. There is an inference that her husband made a will in equivalent terms on the same day.

This is a short professionally drawn will leaving her whole estate to her husband.

This will is typed in Polish on a home made will form. It is not wholly straightforward to follow in that it contains references to savings in different amounts. One of the references is to date in 1991 – i.e. 3 years after the date of the will.

It appears to give half of the house and her personal belongings and jewellery to her sister - Aldona Burkhardt. It makes small legacies to Krysytyna Plucinska-Surowka, Barbara Doktorcyzk and one other person. The remainder of the estate passes to catholic charities in Poland.

This is a professionally drawn will. It appoints Krysytyna Plucinska-Surowka and a Polish solicitor to be executors. It contains detailed instructions in relation to Maria Rowinska’s remains. She does not want them cremated. She wishes to be transported to Poland to be buried next to her husband. It contains a number of detailed bequests. Many of these are charitable in favour of various catholic churches in Poland. Some are for specific purposes – such as the maintenance of graves or the saying of masses. She makes a number of legacies to relatives in Poland. The 2 largest are legacies of £40,000 each to her sister - Aldona Burkhardt – and niece - Krysytyna Plucinska-Surowka. There are, however small legacies for Barbara Doktorcyzk and one other person. The residue passes to the Catholic University of Lublin for bursaries for students of theology law and philosophy with a proviso for the education of the 2 children of Krysytyna Plucinska-Surowka.

As already noted the allegation of incapacity has been abandoned. The state of health of Maria Rowinska remains relevant both in relation to her ability to sign the will in the way it is alleged that she did, and secondly on the issue of want of knowledge and approval.

Maria Rowinska was born on 29^th December 1914. She was registered as a patient at Hillcrest Surgery, Acton for many years certainly from 1996. By the end of 2001 she was suffering from 2 conditions – polymyalgia rheumatica and hypertension. The polymyalgia affects the upper muscles of the upper limbs – shoulders and arms – the pelvic and upper thigh muscles.

In his witness statement Dr Tailor expressed the opinion that many of Maria Rowinska’s visits to the surgery were because she was lonely and wanted a chat. Her symptoms did not warrant a visit to the doctor. He said that she spoke in English and was able to communicate her symptoms to him. He describes her as complaining that her legs were paralysed when in fact they were not. He says that she was very demanding and wanted things done her way. One of the problems he had with Maria Rowinska was that she would not take her pills.

Maria Rowinska was admitted to hospital on 19^th December 2001 with heart symptoms. Dr Tailor did not know about this but accepted from the notes that they evidenced a serious complaint.

Stanislaw Wyniczenko said that by December 2001 Maria Rowinska was bed bound and needed help with practically everything. She needed help to go to the commode; she was doubly incontinent; she needed her food prepared and cut up for her. She was very unsteady on her feet. She had an old dial type of phone and had difficulty in using it.

She had cataracts in both eyes. On 5^th December 2001 she had a successful cataract operation in her right eye.

Dr Tailor made a home visit on 18^th February 2002; he agreed that she was bed bound on that occasion. His recollection was that she was physically weak and complaining of pain in her legs. He did not carry out a full examination on that day. In his witness statement he said that he thought that she spoke in English. However he agreed that it was possible that Stanislaw Wyniczenko was present and helped to translate. He also agreed that it was possible that she was losing her ability to read English.

District Nurse Phillips became involved in Maria Rowinska’s treatment between December 2001 and March 2002. She initially visited in December 2001 to advise on how to administer eye drops. She formed the view that Maria Rowinska could not do it. Stanislaw Wyniczenko was present and she showed him how to help. Her notes indicate that Maria Rowinska spoke in Polish but that Stanislaw Wyniczenko interpreted.

Maria Rowinska had a fall on 17^th March 2002. Following that fall Mrs Phillips visited her again on 20^th March. She carried out an assessment that gives a good overall picture of her condition at that time. She was bed bound, doubly incontinent and described as speaking Polish. It was said that she had a fair understanding of her illness. She was easily irritated and frustrated by her disabilities.

On 4^th April 2002 she had a further home visit from Dr Tailor. He describes a rapid deterioration from the date of her fall. He arranged admission to hospital. She died 6 days later on 10^th April 2002. One of the cause of death was stated to be lung cancer. It is common ground that the lung cancer was not diagnosed before she went into hospital on the final occasion and that she had no treatment for it.

Stanislaw Wyniczenko came to England from Poland in 1980. He set up business in 1990 installing satellite television receivers. There is apparently a good market from the Polish community who wish to pick up channels from back home.

He is married with 3 children – now aged 26, 13 and 4. In 2000 he only had 2 children. He is the occupier of 2 houses. One was purchased about 5 years ago for about £120,000. There is a mortgage securing a loan of £110,000. He agreed that the mortgage instalments were of the order of £700 per month and the outgoings overall were £900 per month. In addition he is the tenant of a flat owned by a charitable organisation. The rent was £60 per week and the overall outgoings of the order of £300 per month. He thus agreed that he had outgoings of £1,200 per month.

He denied being permanently in debt. He denied telling Maria Rowinska that he was in debt or short of money. He said that his wife used to work and that he had help from his brother who comes over from Poland for periods in the year. From time to time he pays the mortgage.

According to Stanislaw Wyniczenko he met Maria Rowinska in about 1996. He installed a satellite TV so that she could watch the Polish channels. They talked about Poland whilst he installed the equipment. He visited her occasionally after that – initially to deal with her TV later simply to visit. On each occasion they would talk about Poland in Polish. He formed the view that she was lonely. In any event she would offer him tea and cakes. Most of the complaints about the satellite TV were minor. On some occasions he would charge her and sometimes he would not.

The visits started to increase in about 2000 and by 2001 they had increased significantly. Stanislaw Wyniczenko has produced his 2001 diary which gives an indication of the number of times he visited. It can be seen that the visits increased substantially from October. They further increased after December but no detailed list has been kept for the final period of Maria Rowinska’s life.

Stanislaw Wyniczenko says that her condition deteriorated from December 2001. He described himself as a carer. Amongst his tasks was purchasing specific foods that Maria Rowinska had requested him to buy. He agreed that she always paid for the foods. At the end of each visit she would tell him what food to bring and he would bring it on the next visit. He would often prepare the food and they would eat it together whilst talking about Poland. As her condition became worse she needed more help around the house with her mobility. He needed to cut up her food for her. He would also drive her. He took her to hospital on 5^th December for her cataract operation. He visited her on 19^th December and took her to hospital on that day. There is in fact a conflict of evidence between Stanislaw Wyniczenko and Irena Abramowicz in relation to this but I do not feel I need to resolve it. He was present when the District Nurse came on the day after the cataract operation and helped Maria Rowinska with her eye drops. He was present when Dr Tailor called on 18^th February 2002.

He appears to have acted as her interpreter. He agreed that her English was poor but he said that she could understand instructions from doctors. There are a number of examples in the medical notes where her English is so described and he is referred to as an interpreter.

According to Stanislaw Wyniczenko at or around the beginning of December Maria Rowinska asked if he would be prepared to spend Christmas with her. He said that he would normally have spent Christmas with his wife and family in Poland and he was initially unsure about what to do. He said that at about that time Maria Rowinska spoke about rewarding him and said specifically that she could give him her entire estate. In cross-examination Stanislaw Wyniczenko agreed that he knew it was a substantial estate. He did not ask how much money there was but he had seen her bank statements with £200,000 in it. He knew that she had a property in Poland; he had some idea of the value of the house and knew that there were pieces of jewellery and pictures.

According to Stanislaw Wyniczenko she gave him an explanation for her generosity on a number of occasions. She said that her sister - Aldona Burkhardt - was her only relative and that he (Stanislaw Wyniczenko) was her only carer. Her other relatives in Poland were not there when she needed them. In his witness statement he also says that she felt that she had been ignored by her Polish family since her sister’s death.

In any event he agreed to spend Christmas with her. He says that he told her on about 21^st December and cooked and was present during the main celebratory meal on Christmas Eve. During the evening Maria Rowinska again raised the fact that she wanted to reward him. She again said she wanted him to have everything. Stanislaw Wyniczenko asked if she was serious and she said “of course”. Stanislaw Wyniczenko was surprised and pleased. He said that Maria Rowinska told him that there would need to be a new will; she told him to get it prepared and to keep it as simple as possible. She told him that it needed 2 witnesses.

Stanislaw Wyniczenko also spent Christmas Day with Maria Rowinska. There was no further mention of the will on that day. Early in the New Year he saw Maria Rowinska again. He asked if she wanted him to draft a new will. She said that she did. She told him that there were books in the library and at WH Smiths where he could check how to draft a will. He said that she repeated again that she wanted him to have everything because he was looking after her.

During January 2002 Stanislaw Wyniczenko spent some time researching how to draft a will. He typed it in early February on his computer. Sometime at the beginning of February he had to take Maria Rowinska in his van for a routine appointment to hospital. He had the will with him and he showed it to her whilst she was in the passenger seat of the van.

In cross-examination Stanislaw Wyniczenko was naturally asked about was said and what was not said on this occasion. He did not translate the contents of the will into Polish. He did not say that it left everything to him. He did tell her that it was the will and that it contained what was agreed before Christmas.

Stanislaw Wyniczenko was asked a series of questions about whether he invited Maria Rowinska to think carefully about the size of her estate, whether anyone else should benefit, the fact that her house was worth a lot of money, that there was other property in Poland, whether she wanted to be cremated, or whether she wanted to benefit charities or catholic charities. He accepted that he did not ask any questions of this nature. His conversation appears to have been brief and limited to telling Maria Rowinska that the will contained what was discussed before Christmas.

The Purported Will is on a single sheet of paper. It contains 3 clauses. It is written in English. It is headed in bold type “LAST WILL AND TESTAMENT”. Each of the clauses has a heading – also in bold type and capitalised.

Clause 1 appoints Stanislaw Wyniczenko to be the sole executor of the will. Clause 3 provides that the clause headings are for ease of reference only. Clause 2 is headed “GIFT OF MY ESTATE” and is in the following form:

Under clause 3 is a space for the signature of Maria Rowinska and the date. Under that is an attestation clause for 2 witnesses in standard form.

Stanislaw Wyniczenko and the 2 attesting witnesses - Wojciech Zasada and Malgorzata Zasada - gave evidence in relation to the execution of the will. All of the witnesses agree that it was signed in the evening of 19^th February 2002.

It is common ground that Wojciech Zasada is a friend and colleague of Stanislaw Wyniczenko. He was living at his house at the time. Malgorzata Zasada is his wife. They do not live together. Malgorzata Zasada lives in Poland with the children whereas Wojciech Zasada lives in this country. Malgorzata Zasada was visiting this country with the children because it was her eldest son’s half term. This is in fact in dispute because Krysytyna Plucinska-Surowka has made enquiries and been told that half term was finished by 19^th February for all schools in Krakow.

According to Stanislaw Wyniczenko he arrived with his 2 witnesses in the evening. He had a key and was able to get in. Maria Rowinska was in bed. She was watching a Polish channel on TV. He introduced the 2 witnesses and Maria Rowinska was pleased to have more Polish people around. She offered them tea. Stanislaw Wyniczenko passed her the document which he had shown her in the van. He told her to read it. According to Stanislaw Wyniczenko she said she knew what it was. Maria Rowinska looked at the will carefully and said she wanted to sign it. Stanislaw Wyniczenko gave her a pen and a folder to rest the will on. She signed it and dated it. Stanislaw Wyniczenko handed it to Malgorzata Zasada who signed it and handed it to Wojciech Zasada. He then signed it. Stanislaw Wyniczenko told Wojciech Zasada and Malgorzata Zasada that he would meet them down the road for a drink but would stay for a minute or two in order to take a shopping list from Maria Rowinska for him to purchase for the following day. He then said that Maria Rowinska told him what she wanted and then said:

He took that to mean that she did not want him to discuss it with anyone and wanted it kept a secret that she was intending to give her estate to him. In cross examination he largely repeated this evidence. He made the additional point that Maria Rowinska had her glasses on and that she read the will line by line.

Stanislaw Wyniczenko’s evidence was corroborated by the 2 attesting witnesses. Malgorzata Zasada gave evidence first. She said she was in England to see her husband during her son’s holidays. She was asked to be a witness to a will as a favour to Stanislaw Wyniczenko. She agreed. Her children were left with Stanislaw Wyniczenko’s brother. She gives a description of Maria Rowinska’s room and to the conversation there. She says that Stanislaw Wyniczenko gave her a document and told her to read it. She corroborated the signing of the will and her signing the attestation clause. She strongly affirms that that happened. In cross-examination she wrongly said that she had herself dated the will. She had in fact made a similar statement to Krysytyna Plucinska-Surowka when interviewed in Krakow in September 2002 and on two other occasions when she voluntarily made statements under oath before the public prosecutor in Krakow.

Wojciech Zasada also corroborated the signing of the will. He had made 2 previous statements in relation to the will, only one of which was before the court. He gave significantly less detail in that witness statement than in the witness statement that he made in August 2005 some 3½ years after the will was signed. It was accordingly suggested to him that he could not possibly remember matters in the detail he suggested.

It is inevitably common ground that if the will is a forgery both Wojciech Zasada and Malgorzata Zasada are lying and thus part of a conspiracy to pervert the course of justice.

According to Stanislaw Wyniczenko he became concerned towards the end of February that the new will might be challenged on the basis that Maria Rowinska did not understand what she was doing. He says that he had read something in one of the books that the will might be challenged.

He therefore rang up Hillcrest surgery and says he spoke to Dr Tailor. He asked him if he could provide proof that Maria Rowinska was of sound mind. After some prevarication Dr Tailor agreed.

On 8^th March 2002 someone at the surgery typed a letter confirming that Maria Rowinska was of sound mind and able to make decisions with reference to her personal and financial affairs. The letter purported to come from Dr Tailor. It was however signed by Dr Dhatt who had no personal knowledge of Maria Rowinska’s state of mind. Dr Tailor has no recollection of Stanislaw Wyniczenko’s call to the surgery or of dictating the letter. He does not think he did. The fact, however, remains that the letter was written and sent to Stanislaw Wyniczenko at his request.

Following her fall on 17^th March 2002 her condition rapidly deteriorated. She was admitted to hospital on 5^th April and died on 10^th April 2002.

Stanislaw Wyniczenko took it upon himself to organise her cremation. He did not inform her surviving relatives in Poland of her death. When asked about this he said that Maria Rowinska said that her only family was her sister - Aldona Burkhardt. He repeated that Maria Rowinska had felt let down by her other relatives. He knew that she wanted her remains to be transported to Poland to be buried near her husband. He did not know her views on cremation as expressed in the 1993 will.

On 18^th April 2002 he signed an application form for a cremation. The form contains a definition of “near relatives” which would not include any of the relatives in Poland. In it he stated that he had informed the near relatives of the application for a cremation and that none had an objection. In fact he had not informed anyone so that the answer he gave was untrue.

He placed an advertisement in a Polish Newspaper in London announcing a requiem mass followed by a cremation. He described himself as “Friend and Carer with Family”. As I have noted he did not inform the Polish relatives. The cremation took place on 25^th April 2002. Krysytyna Plucinska-Surowka knew nothing about it.

As will appear later in this judgment Krysytyna Plucinska-Surowka kept in regular telephone contact with her aunt. She was unable to contact her after Easter. Eventually in early June 2002 she contacted a relative in London – Mrs Brushett and asked her to make enquiries.

Mrs Brushett discovered that Maria Rowinska had died, that Stanislaw Wyniczenko had taken care of the cremation without informing the family and apparently had access to the house and was arranging to take Maria Rowinska’s ashes to Poland.

There was at least one conversation between Mrs Brushett and Stanislaw Wyniczenko on the phone. Stanislaw Wyniczenko said that they were unpleasant and accused him of sticking his nose into family matters which were not his concern. So he resolved to have nothing more to do with them. He agreed that they had expressed concern at not being contacted about Maria Rowinska’s death.

Mrs Brushett became suspicious of Stanislaw Wyniczenko for a number of reasons. First she was concerned he had not contacted the family following Maria Rowinska’s death; second she felt he was adopting delaying tactics in refusing to meet her and other members of the family. Thirdly she felt he had lied to her in that he had said that he had not been back to the house recently. She felt this was untrue as post appeared to have been collected.

On about 18^th June 2002 there was a phone call between Stanislaw Wyniczenko and Krysytyna Plucinska-Surowka. According to Krysytyna Plucinska-Surowka Stanislaw Wyniczenko introduced himself as his brother and demanded that Stanislaw Wyniczenko should not be bothered by anyone in London asking about Maria Rowinska. Stanislaw Wyniczenko accepts there was a conversation but denies its content. He denies he introduced himself as his brother. He said he wanted to say how much care he had given to Maria Rowinska. He agreed that he might have told her that he did not want to be bothered by anyone.

Krysytyna Plucinska-Surowka’s version of this conversation is contained in a letter she wrote to Stanislaw Wyniczenko in July 2002 and to which he did not reply. It is also corroborated to a limited extent by a letter from Irma Pietron a partner in A Kay Pietron & Paluch (“AKPP”) the firm of Polish solicitors who had drawn up the 1993 will.

Stanislaw Wyniczenko agreed that there was a further conversation in which a meeting was suggested. However he later changed his mind about having a meeting as he regarded Krysytyna Plucinska-Surowka as hostile to him.

On 21^st June 2002 AKPP, who had also spoken to Stanislaw Wyniczenko briefly, wrote to him expressing Krysytyna Plucinska-Surowka’s concern that her aunts wishes as expressed in the 1993 will had not been carried out. It invited Stanislaw Wyniczenko to provide a copy of any later will he might hold.

On 2^nd July 2002 Stanislaw Wyniczenko answered the letter from AKPP. He said:

He also makes the point that Maria Rowinska had told him that she wanted to be buried with her husband in Poland. She never expressed the wish not to be cremated.

It is to be noted that he did not disclose or send a copy of the will. On 10^th July following a telephone conversation on 5^th July AKPP wrote to Stanislaw Wyniczenko again asking for a copy of the will in order to reassure Krysytyna Plucinska-Surowka.

On 9^th July 2002 Krysytyna Plucinska-Surowka wrote to Stanislaw Wyniczenko. In effect she asked for the will to be disclosed. She made the point that his conduct had created an aura of uncertainty and confusion. Stanislaw Wyniczenko did not immediately answer the letter. He had left the will with his former solicitors – Riaz & Co – and had answered AKPP’s letter. He felt he had done enough.

At the end of July 2002 Krysytyna Plucinska-Surowka changed solicitors and thereafter instructed Mr Zaleski to act for her.

On 23^rd August 2002 Krysytyna Plucinska-Surowka, her husband and Mr Zaleski gained entry to Maria Rowinska’s house – 17 Hillcrest Road; the locks were changed and a number of papers were taken away. These included:

A card sent by Krysytyna Plucinska-Surowka dated 18^th April 2002 inviting Maria Rowinska to celebrate the first communion of their son. It had been opened.

A letter dated 22^nd March 2002 from Krysytyna Plucinska-Surowka to her aunt.

An Easter card sent by Krysytyna Plucinska-Surowka.

These were found on her aunt’s bed side table beside her bed. In a chest of drawers close by she found 3 cards – one of these contained the name and address of her solicitor – Irma Pietron, another the name and telephone number of her niece - Krysytyna Plucinska-Surowka; the third contained directions in Polish as to where she kept her valuables and the deeds to her house.

Krysytyna Plucinska-Surowka also found other documents in the lounge. These were mainly historical but she expressed the view that they had been gone through. Krysytyna Plucinska-Surowka took a photograph showing that the pictures had been removed from the walls.

Although he accepted that he had had occasional access after Maria Rowinska’s death Stanislaw Wyniczenko denied that he had been through Maria Rowinska’s papers or read her mail. He made the point that others may have had keys to her house. He pointed out that she had a lodger and other carers. He pointed out that the locks had been changed from shortly after Maria Rowinska’s death. He agreed that he had taken the pictures from the wall. He had retained them for safe-keeping.

On 10^th September 2002 Riaz & Co wrote to Mr Zaleski on Stanislaw Wyniczenko’s behalf. They enclosed a copy of the will and stated that they were applying for probate. Mr Zaleski replied on 13^th September 2002 stating that he was instructed to challenge the will and that he had filed a caveat.

On 27^th September 2002 Stanislaw Wyniczenko replied to Krysytyna Plucinska-Surowka. He made the point that he believed she was prejudiced against him. He stated that thanks to him Maria Rowinska had had good care to the last moment of her life.

Krysytyna Plucinska-Surowka answered that letter on 28^th October 2002. It is not necessary for me to set out her complaints in detail. She complained that the family was not informed of the death, that others were involved in Maria Rowinska’s care and that the will was not disclosed till September 2002.

The correspondence continued but it is not necessary to refer to it in detail. On 22^nd May 2003 the caveat was warned off. On 5^th June 2003 Krysytyna Plucinska-Surowka entered an appearance. These proceedings were instituted on 26^th May 2004.

I have set out above Stanislaw Wyniczenko’s account of his relationship with Maria Rowinska and of her feelings towards her relatives. As I noted in the introduction much of that evidence is controversial. Three witnesses were called on behalf of Krysytyna Plucinska-Surowka.

Krysytyna Plucinska-Surowka is a teacher of history and a librarian. She teaches young persons between 15 to 19 years old in a lycee in Krakow. She was thus able to discover that 19^th February 2002 was not half term for any schools in Krakow.

She gave evidence of her relationship with her aunt. Before 1986 (when her husband died) Maria Rowinska would visit Poland and her niece every year. Sometimes she came with her husband and sometimes without. After her husband died the visits became less frequent. She would visit spa resorts to convalesce. Krysytyna Plucinska-Surowka remembers a visit in 1994 because she remembers being told that she was an executor under the 1993 testament. She also gave evidence of a period before her children were born when she stayed with Maria Rowinska for 6 weeks at her house in London.

The last time Krysytyna Plucinska-Surowka saw Maria Rowinska was in 1996 when she visited Poland. She made the point that she had a young family and that it was not possible for her to visit England.

Although she had not seen her aunt since 1996 she maintained contact in other ways. They spoke on the telephone approximately every month. In her witness statement she refers to a phone call in late 2001 when she informed her aunt of her sister’s death and told her about the funeral.

The last phone call was on 25^th February 2002. She knew about the Polish carers that helped her aunt; she knew who came to do minor repairs. She said that her aunt never mentioned Stanislaw Wyniczenko and that she had never heard of him.

She also wrote her aunt letters regularly. The last letter that she wrote was dated 22^nd March 2002. It is to my mind of importance:

It shows that they discussed the cataract operation and that Maria Rowinska had said that her right eye had improved. Krysytyna Plucinska-Surowka told me that her aunt did not in fact discuss her health at any great length in these phone calls.

It shows that Maria Rowinska still sent Christmas presents to her family. If, as Stanislaw Wyniczenko suggested she had said that she had no family and that she was deserted in her hour of need, this, of itself is somewhat surprising.

It is written in affectionate terms. There is not a hint in this letter of any estrangement between Krysytyna Plucinska-Surowka and her aunt. There is not a hint that Maria Rowinska has asked her to come and look after her in her hour of need.

A similar picture is presented by an Easter card and the invitation to the first communion of her son.

In her witness statement she makes the point that it was and remained her aunt’s strong wish to have the property and money she had gathered distributed among family members, as well as used to pay for her funeral (transporting her body in a coffin to Ostrow Wielkopolski), commissioning a marble tomb and given to charities and used for the maintenance of family graves.

Irena Abramowicz was a paid carer who looked after Maria Rowinska for 3 separate periods – from December 1999 to March 2000, from October 2000 to May 2001 and from August 2001 to March 2002. In her witness statement she describes the services she provided including cooking, changing the bed linen. She told me that from December 2001 she was there almost every day. She was there for 2 – 3 hours every week day, the whole day on Saturdays and on Sundays to prepare a meal and change the bed.

Irena Abramowicz first saw Stanislaw Wyniczenko in about December 2001. She has produced a very long statement setting out the relationship between Maria Rowinska and Stanislaw Wyniczenko, and the relationship between Maria Rowinska and her niece. I shall not set it out in full:

She corroborated the evidence of Krysytyna Plucinska-Surowka as to the family in Poland. She made the point that Maria Rowinska sometimes asked her to read the letters to her. She said that Maria Rowinska often talked about going back to Poland.

She said that despite the operation Maria Rowinska still had poor eyesight. She said she would feel on the tray for the food. She also said that her English deteriorated as she got older.

She agreed that Stanislaw Wyniczenko took Maria Rowinska for rides in the car and to hospital. She said that Maria Rowinska told her that he charged her on every occasion.

She did not accept that Stanislaw Wyniczenko made any substantial contribution to Maria Rowinska’s care. She made the point that she was doing the bulk of the care work. She agreed that he sat with her, bought food for her (some of which Maria Rowinska had thrown away) and translated documents for her.

She said that Maria Rowinska told her that Stanislaw Wyniczenko complained about being in debt, having a wife that did not work, and that he had health problems. Maria Rowinska had said “What does he want? He is a stranger so how can he expect me to leave my whole property to him? I have heirs, I have a family and I have made a will”

She deals with many other matters including Maria Rowinska’s return from hospital on what she now says was Christmas Eve but it is not necessary for me to go into them in detail. She suggested in evidence that it was on Christmas Eve she had an argument with Stanislaw Wyniczenko and took back the keys he had had. I do not find it necessary to make any findings of fact on this conflict.

Danuta Chomiak is Irena Abramowicz’s aunt. She came to know Maria Rowinska in June 2000. She was asked by her niece to take over the care when Irena Abramowicz returned to Poland. She visited Maria Rowinska several times a week till the end of February 2002. She was unpaid for the services she provided.

She, too, has prepared a long statement dealing with a number of incidents. It may be summarised:

She corroborates the evidence about Maria Rowinska’s state of health and the deterioration after Christmas 2001. She also said that Maria Rowinska’s eyesight was poor and that she lost what command she had of English.

She corroborates the relationship between Maria Rowinska and Krysytyna Plucinska-Surowka. She says that the family was a favourite topic of conversation. She said Maria Rowinska said that she wanted to go and live in Poland with her niece.

In her witness statement she said that there was a discussion over her testament at the end of February 2002 before she went to Poland. When she gave evidence she elaborated this piece of evidence. Danuta Chomiak told her that her last will and testament was at the solicitors and that she (Danuta Chomiak) was to let the solicitor know if anything happened because they have the address of her Polish relatives. She said that her niece was an executor, that she had left money for the maintenance of family graves, for some sick children and for monuments to be raised in the family cemetery.

The original will has been examined by 2 experienced and well-known hand-writing experts - Mrs Phillippa Lavell and Dr Audrey Giles. Both have compared the signature on the will with other examples of Maria Rowinska’s signature (Footnote: ¹). Both agree that there are features of the signature which could lead to the conclusion that it is a forgery. However they reach different conclusions.

Mrs Phillippa Lavell regards the features as providing “very strong evidence” that the disputed signature was penned by someone other than Maria Rowinska. Dr Audrey Giles is more cautious. She says that the findings are inconclusive. There are insufficient contemporaneous examples of Maria Rowinska’s true signature for her to say that the signature on the will is a forgery.

In the light of the difference of opinion it is necessary to look in a little more detail at the analysis.

The signature on the will is small and is controlled. The degree of control is in marked contrast with a signature made in April 2002 and in January 2002. Dr Audrey Giles agreed that the degree of control was unusual. However she made the point that forensic document examiners are very cautious in relation to elderly and infirm patients. The signatures from such persons are notoriously variable and changes in fluency are not unusual. Mrs Phillippa Lavell however takes the view that there is such a marked difference in the control shown in this signature, the other contemporaneous signatures and the older signatures that she has examined to enable her to express the view she has.

The reports contain a number of other detailed differences – these relate to the fluency of the signature, the initial “M”, the character “k” at the end of the signature, the diacritic over the “i”.

In her second report Dr Audrey Giles is critical of the qualifications of Mrs Phillippa Lavell; in effect she repeats her view that the two comparisons from 2002 cannot demonstrate the full range of variation in an infirm individual’s signature. She makes the point that the comparables were only available as photocopies. She regards the earlier signatures as irrelevant.

Mrs Phillippa Lavell stuck to her evidence in cross-examination. She made the point that she was trained largely in Europe and has very considerable experience in this field. She adhered to the view that the old signatures were of some relevance though she agreed that they were less relevant than the more modern signatures. As I understood her evidence she took the view that the signature on the will was so much more controlled and fluent than the other contemporaneous signatures as to demonstrate a forgery.

It is common ground that the burden of proof of forgery lies on Krysytyna Plucinska-Surowka. It is equally common ground that the standard of proof is the civil standard. I was however referred to the well- known passage from Lord Nicholls judgment in Re H (Footnote: ²)

An allegation that Stanislaw Wyniczenko has forged the will is a serious allegation. As Mr Harrap put it Stanislaw Wyniczenko is playing for high stakes. He therefore submitted that I should bear in mind the judgment in Re H before concluding that there was a forgery.

It is, of course, trite law that I must take into account all of the evidence before concluding that this will had been forged. That evidence includes the evidence of Stanislaw Wyniczenko, Wojciech Zasada and Malgorzata Zasada.

I remind myself that Malgorzata Zasada has given largely consistent statements on a number of occasions including before the public prosecutor in Krakow and appears to have a reasonably accurate memory of Maria Rowinska’s room.

I am, of course aware that Wojciech Zasada was a friend of Stanislaw Wyniczenko. I am equally aware that Stanislaw Wyniczenko has a lot to gain financially if this will is upheld.

I see the force of Mrs Phillippa Lavell’s points about the fluency and consistency of the signature when compared with the other contemporaneous signatures. I think that there is a real possibility that the will was forged. In the end, however, when I take all the evidence into account I am not satisfied on the balance of probabilities that this will forged by Stanislaw Wyniczenko or at his instruction. I prefer the evidence of Dr Audrey Giles that the expert evidence is inconclusive. I am fortified in this view by being told that 2 further handwriting experts from Poland have looked at this will and reached differing conclusions as to its authenticity.

It follows that the allegation of forgery fails.

There is little dispute as to the law. I was referred by Mr Harrap to the recent judgment of Chadwick LJ in Fuller v Strum (Footnote: ³) He referred me to paragraphs 66, 67 and 72 of the judgment. It is convenient to set it out:

It is common ground that this is case which excites the suspicion of the Court. It is a will prepared by Stanislaw Wyniczenko and under which he and he alone benefits. It is thus common ground that Stanislaw Wyniczenko is under the further burden to satisfy the Court on the balance of probabilities that the document does express the true Will of Maria Rowinska.

In order to resolve this issue I agree with Counsel that it is necessary for me to resolve at least some of the conflicts of evidence that arise in this case.

Mr Harrap submitted that I should – in effect – ignore the evidence of both Irena Abramowicz and Danuta Chomiak. He said that it was exaggerated and at least in the case of Irena Abramowicz demonstrably false. He drew to my attention her evidence about Christmas Eve which she said had occurred in January 2002 in her first statement.

Whilst I agree with Mr Harrap that Irena Abramowicz had a tendency to exaggerate and may well have been inaccurate about dates, I do not think that entitles me to ignore her evidence altogether. She has no financial interest in the outcome of this case. She has no apparent reason to lie. Similar comments can be made about Danuta Chomiak.

To my mind the clue to this case lies in examining the relationship between Maria Rowinska and her niece. In my view there is abundant evidence that Maria Rowinska’s relationship with her niece remained close and strong right up to the end of February. They were talking on the phone every month; Krysytyna Plucinska-Surowka was writing in affectionate terms to her aunt. Maria Rowinska was sending Christmas presents to her niece and the other members of the family in Poland. To my mind there is ample corroboration for this in the letter of 22^nd March to which I have already referred. I also accept the evidence of Danuta Chomiak in relation to the discussions about Krysytyna Plucinska-Surowka.

Accordingly I cannot accept Stanislaw Wyniczenko’s evidence that Maria Rowinska told him that Aldona Burkhardt was her only relative or that she told him she had been ignored by her Polish family since her sister’s death. Equally I cannot accept that she ever said that her niece was not there when she was needed. Stanislaw Wyniczenko said that she said this on a number of occasions. I do not believe that she did. It follows, in my view, that Stanislaw Wyniczenko was lying over that important piece of evidence. If he was lying over that then it seems to me that I have to view the remainder of his evidence with considerable caution including the evidence that she said she wanted to reward him by giving him her entire estate.

To my mind there are a number of suspicious features in this case. In the light of the question that I have to answer it is convenient if I list them:

The 1993 wills contain detailed gifts to charities, for the maintenance of graves, for the saying of masses, and detailed instructions for her burial. The 1988 will also contained gifts for charitable purposes. It is to my mind suspicious that Maria Rowinska should have wished to revoke all of those bequests in favour of Stanislaw Wyniczenko. Mr Harrap pointed out that the 1979 and 1982 wills were in effect gifts of the whole of the estate to her husband. It is to my mind wholly unrealistic to compare the position of Stanislaw Wyniczenko to that of her husband. Even on his own case he was but one of three carers for Maria Rowinska. If she was going to reward him it is to my mind highly suspicious that she chose to ignore the charitable bequests contained in her earlier will. This suspicion is reinforced by the evidence of Danuta Chomiak (which I accept) to the effect that as late as February Maria Rowinska still believed that she was making charitable gifts.

The conversations about the drafting of the will are suspicious. It does not seem to me very likely that someone such as Maria Rowinska would have told Stanislaw Wyniczenko to prepare the will, would have told him that he needed 2 witnesses and that he was to keep it simple. It is also somewhat unlikely that she would have advised him to look up the law in the library and at W H Smiths.

The fact that the will is in English is suspicious. On any view Maria Rowinska’s English was poor even if it was not quite as poor as Irena Abramowicz and Danuta Chomiak seek to make out. It is clear from the medical notes that her English was poor and that Stanislaw Wyniczenko was needed as an interpreter. Whilst it is true that the basic effect of the will is straightforward it is couched in legal terms and would not be easy to understand by someone with a poor command of English.

The fact that even on his own case Stanislaw Wyniczenko never explained the terms of the will to Maria Rowinska is suspicious. He did not explain the terms in the van or when it was executed at her home. Even assuming that there was some improvement in her eyesight following the cataract operation her eyesight was not good.

Stanislaw Wyniczenko’s conduct after the execution of the will is suspicious. He removed the will and did not tell anyone about it. I view with considerable suspicion the evidence that Maria Rowinska told him to keep quiet about it. He misled the funeral director over the relatives and appears deliberately to have refrained from telling them about Maria Rowinska’s death. When they did start making enquiries he (or his brother) told them to mind their own business and delayed sending a copy of the will for 3 months.

The Court is in any event suspicious in a case where someone drafts a will under which he is a substantial beneficiary.

The evidence of Danuta Chomiak about the conversation between herself and Maria Rowinska in February (which I accept) about the contents of her will reinforces the suspicion that Maria Rowinska did not appreciate that she either had or was about to make a new will leaving all her property to Stanislaw Wyniczenko.

I return to the rule in Barry v Butlin. I have to be vigilant and jealous in examining the evidence in support of the will and ought not to pronounce unless the suspicion is removed and I am satisfied on the balance of probabilities that the paper propounded does express the true will of Maria Rowinska.

Far from removing the suspicion the considerations I have set out above have only served to increase it. Indeed and contrary to the submission of Mr Harrap I think this may well be an example of a case where the suspicion is indeed “so grave that it can hardly be removed”.

In any event the suspicion has not been removed in this case. I am far from satisfied that Maria Rowinska knew that what she was signing was a will which left her entire estate to Stanislaw Wyniczenko. I am not accordingly satisfied that she knew and approved the contents of the will. I find against the will and refuse to admit it to probate.

It follows that the claim falls to be dismissed; there is no Counterclaim but I cannot for my part see why probate in common form should not be granted in favour of the 1993 will. It may be that there is some Inheritance Tax that needs to be paid before a grant can be made.