Blackman & Ors. v Man

This case concerns the validity of two wills made by Golda Bechal (“Mrs. Bechal”), who was born on 1^st February 1915 and died, at the age of 88 years, on 5^th January 2004. She had one child only, a son, Peter, who died in 1974. She was a widow at her death.

The claimants, who are challenging the validity of two wills she made in 1994, are nephews and nieces of Mrs. Bechal. Together with one other nephew, who lives abroad, and has been notified of, but has taken no part in, these proceedings, the claimants are the next of kin of Mrs. Bechal, who would be entitled to her estate on intestacy.

The first two defendants, Mr. and Mrs. Man, are the residuary legatees under the wills in question. They are not members of Mrs. Bechal’s family, but are a Chinese couple, a husband and wife, with whom Mrs. Bechal became very friendly in the latter years of her life.

The third defendant is the executor appointed by the wills.

The fourth defendant, Her Majesty’s Attorney General, has taken no part in the proceedings before me, but I understand may be interested on behalf of charity if the two wills under challenge are found to be invalid.

I have no evidence of the value of Mrs. Bechal’s estate, but am told by agreement that it is believed to be worth in excess of £10 million. Its value was of the order of £8 million in 1994, when the two wills in question were made.

Of the two wills in issue, the first in time was made on 19^th May 1994. It purported to revoke a will made by Mrs. Bechal in 1988, of which no copy or written evidence survives, but which probably divided Mrs. Bechal’s estate between members of her family and Jewish charities, with the major part being given to the charities.

The second will was made on 5^th August 1994. That will revoked the May will, but repeated its provisions with minor adjustments to the pecuniary legacies.

There is one other earlier will, to which I should refer. That was made by Mrs. Bechal in about 1980. Again, no copy or documentary evidence of it survives, but it appears from evidence given by its draftsman that it divided Mrs. Bechal’s estate between members of her family.

The claimants challenge the validity of both wills on the grounds of lack of testamentary capacity and want of knowledge and approval, with the result that the burden of proving validity falls on Mr. and Mrs. Man. This they have sought to discharge in this action.

The claimants make no allegation of undue influence against them.

As I have said, Mrs. Bechal was born on 1^st February 1915. She had two sisters and a brother, all of whom predeceased her. Her brother, Philip, died without children in 1986. Her sister, Fay, the mother of the first and second claimants, died on 5^th April 1999, and her sister, Maisie, the mother of the third, fourth and fifth claimants, died on 30^th March 2003.

Mrs. Bechal had one child only, a son, Peter, who died at the age of only 28 on 1^st December 1974. Mrs. Bechal married, and her husband built up a successful business of property dealing and investment, and built up a substantial portfolio of properties which was the source of Mrs. Bechal’s substantial estate. He died in 1971.

Mr. Man first met Mrs. Bechal and her husband in 1967, when Mr. Man was 13 years old and had recently come from Hong Kong to live in England. His father was a tenant of restaurant premises in Essex owned by one of the property companies run by Mr. Bechal.

A friendship grew up between Mr. Man senior and Mr. Bechal – partly because Mr. Bechal could speak Cantonese. Mr. and Mrs. Bechal would visit the restaurant in Essex three or four times a year. Mrs. Bechal continued her visits to the Man’s premises after her husband’s death in 1971 and after her son’s death in 1974.

Mr. Man’s evidence, which I accept, was that Mrs. Bechal, who lived in Grosvenor Square in London, asked him to call on her when he visited London to buy provisions for the restaurant. This he did on a regular basis, and used to do odd jobs around her flat for her on his visits. It is clear that Mrs. Bechal was very lonely after the death of her husband and son. Indeed, the evidence shows that she never really recovered emotionally from that double bereavement.

In 1977 Mr. Man introduced the second defendant -- whom he married some two years later, in 1979 – to Mrs. Bechal. There is no doubt that Mrs. Bechal and Mrs. Man became close friends, to the point where, eventually, Mrs. Bechal, as she told Mr. and Mrs. Man, regarded Mrs. Man as the daughter she had never had.

Mr. and Mrs. Man have three children, the first of whom was born in 1982. The Mans used to visit Mrs. Bechal as a family as their children grew up and, once they started going to a Chinese school, the visits used to take place regularly on a Sunday, and came to include family outings with Mrs. Bechal. The Mans visited Mrs. Bechal every Christmas Day. In addition to the weekly visits to Mrs. Bechal in London, Mrs. Man used to speak to her regularly on the telephone during the week.

The Mans from time to time took Mrs. Bechal out into the country on family outings with them. She went abroad on holiday with Mrs. Man in 1983 and on several occasions after that.

It is clear that Mr. and Mrs. Man, and Mrs. Man in particular, came to do a great deal to help Mrs. Bechal in her loneliness after she lost her own husband and son; and that Mrs. Bechal did regard them as part of her family.

It is also clear that, until the last years of her life, Mrs. Bechal was on good terms with her sisters, brothers in law, nephews and nieces, and used to take part in family occasions and Jewish celebrations with them. She regularly went on holiday with her sister, Maisie, and her (Maisie’s) husband, Gerald Lebor, for many years until 1991 when, for some reason, her relationship with her brother in law, Mr. Gerald Lebor, seems to have cooled over a disagreement she had with him concerning the administration of her late brother, Philip’s, estate.

I find that, certainly by the time she made her will in May 1994, Mrs. Bechal’s relationship with the Man family had become closer than that with her own family. She saw far more of the Mans.

Unfortunately, in the last years of her life, by which I mean from 1996 onwards, Mrs. Bechal became very antagonistic to members of her family, but it seems clear that this was largely the result of her increasing dementia, about which I shall have to say more later in this judgment.

It is also clear that from the time of the death of her only child Mrs. Bechal was always a very lonely and sad person, who came to find solace in her developing relationship with Mr. and Mrs. Man and their children.

I must now say a little about the management of the property portfolio which had been built up by Mrs. Bechal’s husband. All these properties, of which there were about 30, except one, were held by companies, of which all the shares were apparently beneficially owned by Mrs. Bechal. One property was in her own name. All the properties were managed by agents. Mrs. Bechal became disillusioned about the agents who had been managing them, and in early 1993 the management of those properties was taken over by a new managing agent, Mr. Benjamin Tobin.

He gave evidence before me, and explained that, when he first took over such management, the properties concerned, apart from that held by Mrs. Bechal herself, were held by several companies, including in particular two called respectively “Judy Properties Limited” and “Spebek Properties Limited”, but that it was decided, for some reason and by some manner not entirely clear to me, to transfer all the properties, other than that held by Mrs. Bechal, into the one company, Judy Properties Limited.

Mr. Tobin, whose evidence I accept, said that from the time he took over the management, in about spring 1993, Mrs. Bechal had some difficulty fully comprehending lengthy written reports which he produced on the properties. So he adopted a practice of holding quarterly meetings with her and her accountant, at which he would go through the current position relating to each of the properties with Mrs. Bechal, and take instructions from her as necessary. Mr. Tobin described how, at these meetings, Mrs. Bechal would become confused at times, and he would have to repeat a point he was making to her on several occasions. However, she did ask him appropriate questions at these meetings, but seemed to rely very heavily on her accountant, Mr. Esterson’s, views in making any decision she was asked by Mr. Tobin to make.

Mr. Tobin was satisfied she was competent to give him instructions, though she was frequently emotional and crying on occasions. He said she seemed to feel alone and unable to get over the deaths of her husband and son.

Mr. Tobin said that such meetings took place on Quarter Days in 1993, but that he had no record of any regular meetings in 1994 or thereafter. His recollection was that he received a telephone call from Mr. Esterson, telling him that Mrs. Bechal was not well enough to continue the meetings.

However, although the regular meetings between Mrs. Bechal and Mr. Tobin concerning the property portfolio do not appear to have continued into 1994 because of Mrs. Bechal’s state of health, included in the documentary evidence before the court are letters written by Mrs. Bechal in 1994 and into the first half of 1995, in which Mrs. Bechal was clearly still taking an interest in the tenancies of her properties and what Mr. Tobin’s firm were charging for their management, and giving instructions relating to their management.

At the same time, it is clear that Mrs. Bechal’s state of health, and in particular, her mental state, was giving cause for concern by 1993. Her GP from January 1989 was Dr. Geoffrey Dymond. In July 1991 Mrs. Bechal consulted Dr. Dymond, complaining of dizziness and back pain. Dr. Dymond referred her to a consultant orthopaedic surgeon, Mr. Ransford. On 22^nd August 1991, Mr. Ransford reported to Dr. Dymond that Mrs. Bechal’s symptoms had abated since Dr. Dymond had seen her, but also reported that Mrs. Bechal showed signs of high blood pressure, and that she was, “a bit forgetful”.

On 1^st December 1992, Mrs. Bechal saw Dr. Dymond again, when she complained that (and I quote Dr. Dymond):

“She did not know if she was going the right way or not, and she felt like a sleepyhead”.

At a further consultation on 9^th December 1992, Mrs. Bechal said she still “felt dazed, depressed”. Dr. Dymond prescribed an antidepressant for her. At a consultation on 31^st August 1993, Dr. Dymond recorded a comment that Mrs. Bechal “gets very confused and nervous”, and on 13^th September 1993 he made an appointment for her to see Dr. Monica Greenwood, a consultant psychiatrist.

Mrs. Bechal failed to keep this and other appointments with Dr. Greenwood before eventually seeing her on 5^th November 1993. Dr. Greenwood gave her various cognitive tests and reported to Dr. Dymond that:

“My impression of this lady is that she is very anxious, may possibly be depressed, but probably has a mild dementing illness”.

Dr. Greenwood also told Dr. Dymond that she had made an appointment to see Mrs. Bechal again.

On 18^th November 1993 Dr. Dymond wrote to Dr. Greenwood a letter including the following:

“To summarise, she [that is Mrs. Bechal] is a somewhat agitated depressive since the deaths, very close together, of her husband and her son about sixteen years ago from which her niece feels she has never properly recovered.

Added to this is an increasing confusion over dates, times and tablets -- in fact anything which could be confused! She telephones me about three times a week about her various tablets, and telephoned me last night about 10 pm thinking that it was 10 am the following day; as you know we have made various appointments for her to attend you, most of which have been cancelled because she has either forgotten or lost the appointment card.

She herself feels that she is somewhat depressed but not really confused for her age, but I feel that her confusion is much more than is suitable for her age and she cannot manage without help in the home and out of it”.

Mrs. Bechal attended the further appointment with Dr. Greenwood on 19^th November, accompanied this time by her niece, the first claimant. By the time of this appointment Dr. Greenwood had received the results of an MRI scan which Mrs. Bechal had undergone. In her subsequent report to Dr. Dymond, on 24^th November 1993, Dr. Greenwood said this:

“The brain scan showed some minor ischaemic changes predominantly in the frontal region, but nil else of significance.

Mrs. Bechal did not recognise me when I greeted her and did not recognise which room to go to for our interview. She was unaware of the date and said she was shaky because she had not slept. She repeatedly said how competent she was and how she manages her business with the help of her agent and accountant. She did however add that at times she feels muddled and tries to write everything down. She also admitted that she would like to have someone with her in the evening. She had put an advert in the paper for a carer, and was interviewing someone.

Mrs. Blackman [that is the first claimant] told me that her aunt had been overwhelmed by the deaths of her son and husband some 16 years ago and had never managed to work through her grief. Nevertheless she had been functioning. She has a business manager who has been running her affairs for a long time and apparently also pays the bills and runs her own personal financial affairs. She appears to have very little social life but was always very secretive. The niece thought there had been no support at home other than that provided by au pairs in the past. She also reported that her aunt had been worried that she might be leaving the gas on. Mrs. Bechal was reported to have been the jolliest person in the family and that her more negative approach recently was not the way she used to be.

On examination, Mrs. Bechal obviously had some nominal difficulty and was very repetitive”.

Dr. Greenwood prescribed an antidepressant drug for Mrs. Bechal, and advised that Mrs. Bechal should have a live-in carer.

Dr. Greenwood saw Mrs. Bechal again on 16^th December 1993, when she was again accompanied by Mrs. Blackman, the first claimant. Dr. Greenwood in her further report to Dr. Dymond said that she was told that attempts to recruit a live-in carer had not yet been successful, but that an au pair would shortly be going to live in Mrs. Bechal’s flat.

Dr. Greenwood further records Mrs. Blackman as saying that her aunt seemed to have slowed up a great deal, and was increasingly repetitive, but that Mrs. Blackman thought she was less depressed. Dr. Greenwood went on to report that:

“On examination Mrs. Bechal seemed rather vague and disorientated. She has absolutely no insight into her difficulties”.

Dr. Greenwood advised that Mrs. Bechal should continue taking the antidepressant drug.

Dr. Dymond did not record any further significant change in Mrs. Bechal’s health during 1994 and 1995, but on 5^th December 1994 his note commented that she was still very tired and depressed; and he said in his evidence that he recalled that throughout 1995 she remained depressed. His only other relevant comments in his evidence were that in 1997 Mrs. Bechal deteriorated seriously, and that in 1999 he made a note that she became abusive and difficult.

At this point, it is convenient to refer to evidence given by other non-medical witnesses called by the claimants as to forgetfulness or confusion on the part of Mrs. Bechal before or about the time she made her will in 1994.

The fifth claimant, Mervin Lebor gave evidence which I accept, of an occasion in December 1992 or January 1993 when Mrs. Bechal confused him with his brother, Laurence, despite the fact that Mr. Mervyn Lebor considered he was particularly close to her. He also said that on another occasion, slightly later, Mrs. Bechal did not appear to recognise his daughters.

Dr. Simon Barnard, the husband of the fourth claimant, is an optometrist who looked after Mrs. Bechal’s sight between 1990 and 1994. He gave undisputed evidence of Mrs. Bechal missing appointments with him, for no reason other than that she forgot them, and of what he regarded as irrational behaviour on Mrs. Bechal’s part in refusing to have reading glasses prescribed for her, although it was Dr. Barnard’s view that she would have considerable difficulty reading normal as opposed to headline-size print.

The fourth claimant herself gave evidence which, again, I accept, of occasions on which Mrs. Bechal just apparently forgot to attend family gatherings to which she was invited and which she had said she would attend.

The third claimant, Mr. Laurence Lebor, made a witness statement which was admitted in evidence but he was unable to attend for cross-examination because of his health. In the statement he described an occasion in about May 1994 when he and his wife and daughters called unannounced on Mrs. Bechal to say goodbye to her, as they were about to emigrate to Israel. She recognised and talked to him, but did not seem to recognise his wife or daughters, despite having seen them frequently, and she did not seem able to comprehend the concept of their emigrating to Israel. She seemed disorientated.

Although Mr. Lebor was not cross-examined, his wife, who had confirmed her husband’s evidence about this occasion, was cross-examined by video-link. She gave a graphic and wholly convincing picture of the occasion. She said in the course of her cross-examination that Mrs. Bechal appeared disorientated. She recognised Mr. Laurence Lebor but:

“Did not seem to engage with me in any particular way at all. It was just as if the lights were out”.

Her behaviour was really out of character, according to Mrs. Lebor. Mrs. Bechal’s rabbi, Rabbi Vogel, and her former accountant, Mr. Esterson, gave evidence of confusion on her part. But, understandably, their recollection of the relevant dates was not very reliable.

Meanwhile Mrs. Bechal’s relationship with the Man family, and particularly Mrs. Man, grew closer. In fact, in September 1992 both Mr. and Mrs. Man had been made bankrupt and their restaurant company wound up on the petition of Her Majesty’s Customs & Excise.

There is no doubt that Mr. Man did a great deal to help Mrs. Bechal. Mrs. Man recalled one occasion of such help for which Mrs. Bechal seemed especially grateful, being when Mrs. Man accompanied her on her visit to hospital for the MRI scan which I have already mentioned, and comforted Mrs. Bechal in her understandable fear.

I am also satisfied that, by 1994, Mrs. Bechal did regard Mrs. Man with all the affection she would have felt for her own daughter, had she had one. Mrs. Man gave evidence, which I accept, of an occasion in April 1994 when she was in Jerusalem with Mrs. Bechal, and I should read that evidence:

“In April 1994 when we were visiting the Wailing Wall in Jerusalem she [that is Mrs. Bechal] held my hand on the wall and said, ‘I wish you will have everything you ever want’. The same evening in the hotel she said she wanted to sort out her will when she returned home. She said Kim and I [that is Mr. Man and Mrs. Man] had been so good to her and cared for her. She mentioned the day she had her scan, and she said she was grateful to us for our help. She said I was a daughter she never had”.

This brings me to the circumstances surrounding the actual making of the May 1994 will. Mrs. Bechal banked at the Park Lane branch of Barclays. That bank offered its customers a will writing service. A customer could obtain a will instruction form from a branch of the bank. On completion of the form, the customer would send the form to the bank’s will writing department. If the will writing team at Barclays considered the instructions in the form, with or without clarification by telephone, were appropriate to allow the will to be drafted, a will draftsman employed by the bank would draft a will and send it to the proposed testator, usually at his or her branch of the bank, for execution.

Mrs. Bechal obtained one of these instruction forms. There is no evidence as to whether she went herself to the Park Lane branch of Barclays, or whether someone else obtained the form for her. Mr. and Mrs. Man deny they played any part in the obtaining or indeed completion of the form, and I believe them.

However she obtained the form, Mrs. Bechal completed it and sent if off to the Barclays will writing department. I must refer to the terms of the form and how she completed it in some detail.

Section 1 of the form required Mrs. Bechal’s personal details, which she completed accurately.

Section 2 required details of any spouse or partner, which she correctly simply deleted.

Section 3 required details of possible dependants, and in that section Mrs. Bechal correctly answered each question in the appropriate box on the form.

Section 4 required details of Mrs. Bechal’s assets and liabilities. In the sub-section for “Assets”, Mrs. Bechal indicated that she had the following:

It is not possible from the available evidence to determine the degree of accuracy or otherwise of these estimates of assets at the time the will form was completed; but it seems unlikely that they are entirely accurate, though the specificity of the answers indicates that Mrs. Bechal was giving the questions some thought.

Another sub-section of section 4 of the form required details of business assets. Mrs. Bechal wrote simply “SPEBEK” and “JUDY” in capital letters. They were certainly by that date the names of her two principle property holding companies.

Section 5 of the form required a choice of executor. Mrs. Bechal ticked the box marked

“I wish Barclays to act as my sole executor”.

Section 6 is headed “Funeral instructions”. Mrs. Bechal crossed the box marked “Cremation” and ticked the box marked “Burial”. Under “Special instructions”, she put the name and address of her Rabbi, Rabbi Vogel, though she wrongly spelt Rabbi R-A-B-I, and Vogel and also misspelt part of his address.

Section 8 of the form required the testatrix to fill in the names of up to four pecuniary or specific legatees and the subject matter of the legacy in each case, and indicated that further legacies could be set out on a separate sheet of paper. In the four numbered boxes Mrs. Bechal included the following pecuniary legacies:

“1

To Rab Vocal R-A-B V-O-C-A-L, £5,000

2

To Alana Cohen, of an address in Israel £500

3

To Maisie Lebor [Mrs. Bechal’ sister] £3,000

4

To Laurence Lebor [Laurence spelt L-A-U-R-A-N-C-E, Lebor, the third claimant] £500”

Mrs. Bechal underlined the words

“A separate sheet of paper”

and put a tick against them – no doubt intended to indicate, as was the fact, that she did include a separate sheet when she sent the form off to the bank.

Section 8 of the form required details of residuary bequests. Under “Beneficiary 1”, Mrs. Bechal wrote what was clearly intended to be the name and address of Mrs. Man, although she gave her forenames as “B. Leanne”, and her surname as Man. In fact this is understandable in that Mrs. Man does not use her first name “Bee”. Mrs. Bechal described Mrs. Man as “best friend”, and stated that she was to receive a half share.

Under “Beneficiary 2”, Mrs. Bechal correctly wrote the name of Mr. Man, described him as her “best friend”, and indicated that the share he was to receive was also half.

Below the names of the intended residuary legatees the form asked the testatrix to tick one of three boxes to indicate what should happen to the share of a legatee who predeceased her; and Mrs. Bechal ticked the box marked

“Please pay to the beneficiary’s children, if any, as survive me”.

In section 9 of the form headed “Declaration”, Mrs. Bechal indicated that she enclosed her cheque for £47 for Barclays’ fee, stated that she banked at the Mayfair branch of Barclays, and indicated that she wished the will to be sent to the Park Lane branch of Barclays for signature. I was told that in fact the Mayfair and Park Lane branches are one and the same branch.

Mrs. Bechal signed the form and dated it 1^st May 1994. Accompanying the completed form which Mrs. Bechal sent to the Barclays will writing department was a separate sheet of paper containing seven further pecuniary legacies which there was no space to include on the form itself. These additional legacies were:

On the same sheet of paper, under the legacies to individuals, Mrs. Bechal wrote:

“My brother Philip Harbour had provided for my sisters’ families, so I only give certain cash to nephews and nieces”.

The claimants sought to draw support for their case that Mrs. Bechal lacked testamentary capacity from the fact that she used this impersonal means of making her new will, rather than instructing her solicitors who had made her previous will.

I accept the explanation suggested on behalf of Mr. and Mrs. Man, namely, that the reason, good or bad, she did not go back to her previous or other solicitors was that, particularly in the light of her intention to give the vast majority of her estate away from her family, she was anxious that her family should not know of her testamentary intentions, and thought the use of the Barclays service the best hope of achieving that.

There is no doubt Mrs. Bechal was a very private person, who did not like disclosing her affairs unnecessarily. This was no doubt a misguided reason on her part, particularly having regard to the size of her estate, but I accept that it probably was her reason.

I am satisfied, despite Dr. Barnard’s evidence of Mrs. Bechal’s poor sight, that she completed the will instruction form herself and that she must, by some means, have been able to read it herself in order to complete it as she did. I accept evidence given by Mrs. Man to the effect that Mrs. Bechal was able to and did read newspapers, despite her impaired sight.

On 9^th May 1994, a Mr. Couling of Barclays will writing service telephoned Mrs. Bechal, and clarified some of the spellings and names in the will instruction form. Barclays then drew a will complying with Mrs. Bechal instructions on the form and the attached sheet of paper, and sent it to the Park Lane branch of the bank for Mrs. Bechal’s signature.

On being notified that the will was at her bank ready for her signature, Mrs. Bechal asked Mrs. Man if she would go with her to the bank. She said she was going to sign her will. She did not at that stage tell Mrs. Man what was in the will. Mrs. Man walked with her to the bank. Mrs. Bechal went with staff of the bank to sign the will while Mrs. Man sat and waited some way away from Mrs. Bechal, from where she was unable to see or hear what Mrs. Bechal was doing, or what anyone was saying.

Mrs. Bechal signed the will in the presence of two bank employees as witnesses. She then went downstairs to her safe deposit box and deposited the will there. Unfortunately the third defendant, the banks’ trustee company appointed executor of the will, has apparently been unable to provide any evidence from either witness to Mrs. Bechal’s signature of her will.

After the visit to the bank Mrs. Bechal had lunch with Mrs. Man and over lunch said to Mrs. Man,

“I am very grateful to Kim and you. You are both very lucky”.

About a week later she told Mrs. Man that she had left money and property to Mr. and Mrs. Man in her will. She told Mrs. Man she wanted Mr. and Mrs. Man’s son to have her flat, and that she would leave it to Mrs. Man to make sure that happened. She also told Mrs. Man that her nephew and nieces would give her, Mrs. Man, trouble over the will, and that Mrs. Man would have to be strong.

In July 1994, Mrs. Bechal told Mr. Man she wanted to buy a new car, and that she wanted him to order a Mercedes “E” class car for her in place of a Rover car she had which she no longer liked. Mr. Man had arranged test drives in a Jaguar and the Mercedes “E” class for her. She liked the Mercedes. It cost something in excess of £30,000. She used to allow Mr. Man to take it home for his own use sometimes. Later, in 1996, she also gave Mrs. Man a car costing about £30,000 for her own use, and in 1995 wanted Mrs. Man to accept substantial gifts, including jewellery, from her.

I accept that such expenditure and largesse represented a change of attitude on the part of Mrs. Bechal, who had been unusually careful in her expenditure of money during her life; but I really do not find this point of any materiality on the question of her testamentary capacity in 1994.

In June 1994 Mrs. Bechal indicated to Mrs. Man that she had lost confidence in her accountant, Mr. Esterson, because she was concerned about certain investments he had suggested to her – one of which involved another client of Mr. Esterson. I am satisfied, from the evidence I have heard and seen that, had she fully understood it, Mr. Esterson’s advice should not have given Mrs. Bechal cause for concern. But concerned she was, to the point that she dismissed Mr. Esterson in a very abrupt and antagonistic manner. He had acted for her and her husband since 1962.

She then asked Mrs. Man to telephone the accountancy firm of Stoy-Hayward because she wanted to instruct them in place of Mr. Esterson. A Mr. Templeman of Stoy-Hayward accepted instructions to act for Mrs. Bechal. As a result of her parting company with Mr. Esterson, she wanted to make a codicil to her will to remove the pecuniary legacy she had given to him in her May 1994 will. She asked Mrs. Man to type a letter to Barclays which she, Mrs. Bechal, dictated to her. Mrs. Man habitually typed letters for Mrs. Bechal at her dictation. The letter was dated 29^th July 1994 and was in these terms. It was addressed to Barclays will writing service, and it said this:

“I will like to make a codicil to add to my Will I made with you and signed at Barclays Bank in Park Lane in May 1994.

I want to cancell my gift of £3,000 to Maurice Esterson, Sarah and Sachal Estersion, of 9 Ridgeway Place, Wimbledon, SW19. I will like to make a gift of £10,000 to British, Federation of Women Zionist of Great Britain & Ireland, 107 Gloucester Place, London [and the post code is given].

I will sign the codicil at Park Lane, Barclays Bank,

Yours faithfully”,

and then Mrs. Bechal signed it.

There was, of course, no gift to Sarah or Sachal Esterson in the May 1994 will. This clearly shows a lapse of memory on Mrs. Bechal’s part.

On 3^rd August 1994, Mr. Couling, of the Barclays will writing service, wrote to Mrs. Bechal enclosing a copy of a draft new will rather than a codicil, incorporating Mrs. Bechal’s proposed amendments and telling her that the original had been sent to her branch of the bank for her signature. The draft was in the same form as the May 1994 will, save that the pecuniary legacy to Mr. Esterson was omitted and the legacy of £10,000 to the Society of Federation of Women Zionists of Great Britain and Ireland was added.

Mrs. Bechal asked Mrs. Man to go with her to the bank on 5^th August 1994. Mrs. Man and her son did so. Mrs. Man and her son, as did Mrs. Man on the occasion of the visit to the bank in May, sat and waited for Mrs. Bechal while she went with bank staff to sign her will. The Mans could not see or hear what Mrs. Bechal was doing or saying. Mrs. Bechal signed the will on that day, 5^th August 1994, in the presence of two members of the bank staff. Again, no evidence has been adduced from either witness.

In November 1994, Mr. Templeman of Stoy Hayward, Mrs. Bechal’s new accountants, introduced her to a Mrs. McVittie, a solicitor, with a view to her acting for Mrs. Bechal. Mrs. McVittie gave evidence, which I accept, to the effect that her recollection is that when she first acted for Mrs. Bechal and discussed her affairs with her,

“She had a very good recollection of the property she owned”.

Mrs. McVittie felt no doubt about Mrs. Bechal’s capacity to give instructions to her at that time, that is the end of 1994, or that she had testamentary capacity. She considered the latter because she felt it would be wise for Mrs. Bechal to execute another will in the light of medical advice as to her capacity, to avoid the risk of the August 1994 will being attacked on the grounds of the various spelling errors in it and the fact that it had been made without legal or medical advice.

Also Mrs. Bechal indicated to Mrs. McVittie that she wanted to make a few additional pecuniary legacies to family members, and a gift to the West Marble Arch synagogue for the erection of a memorial window to honour her late husband.

When Mrs. McVittie advised Mrs. Bechal that the new will should be signed in the presence of a medical practitioner who could confirm her capacity to make a will, Mrs. Bechal told Mrs. McVittie that she did not wish the doctor to be Dr. Dymond, her GP, because she believed members of her family had been in touch with Dr. Dymond and she did not want her family to learn about her plans.

So Mrs. McVittie arranged for Mrs. Bechal to see a Dr. Vanessa Moonie, a GP, at the Cromwell Hospital. This she did on 27^th March 1995, when Dr. Moonie reported as follows:

“This lady was brought to me in the company of a Solicitor and a Banker to see if she was fit to sign a new will. I found her to be in a confused state. She was unaware of the day, time or month and was unaware of the name of the Prime Minister of this country. She had a standard screening test done initially. She also did not seem to know why she was here.

My feeling was that this woman was not in a fit state to be changing plans of her will at present. My recommendations are that, if there are any further problems, she should be fully assessed by Mr. Alan Braverman at the Lister Hospital, who is a Consultant Geriatrician with an interest in memory loss”.

Mrs. McVittie was surprised at how distressed Mrs. Bechal seemed to be on this visit to the Cromwell Hospital. However, clearly, in the light of Dr. Moonie’s opinion, plans for the new will had to be dropped.

In the first half of the following year, 1996, consideration was given to Mrs. Bechal’s executing an Enduring Power of Attorney but, on 26^th June 1996, a Dr. Bergman advised that she did not have sufficient understanding of the effect and implications of such a power to have capacity to grant it.

On 10^th December 1996, at the request of Dr. Dymond, Dr. Greenwood saw Mrs. Bechal at her home for the purpose of assessing her ability to grant an Enduring Power of Attorney. In her resultant report dated 11^th December 1996, Dr. Greenwood said this:

“I attempted to assess her testamentary capacity: she understood what was meant by Will but was unable to give any indication of the extent of her property or who might have a claim upon it. She did not express any frank delusional ideas. She does, however, show signs of marked cognitive impairment which might affect her judgment.

Comparison of her current mental … [I think the word ‘state’ must have been omitted] with that described in my letter to you of 8^th November 1993, shows there has been quite a marked deterioration.

We discussed the matter with the lawyer present and were all agreed that Mrs. Bechal is not able to give a meaningful power of attorney. In my view, she is not of testamentary capacity either”.

Dr. Greenwood concluded her report by advising that Mrs. Bechal should become a patient of the Court of Protection.

An application was made to the Court of Protection on 20^th December 1996 by the first claimant, Mrs. Blackman, for her own appointment as Mrs. Bechal’s Receiver. On 6^th May 1997 the Court of Protection appointed Mrs. Bechal’s accountant, Mr. Templeman, as her Receiver.

There is no doubt that during 1996 there was very marked deterioration in Mrs. Bechal’s mental state. Complaints have been made in evidence by members of her family who, I accept, were genuinely concerned about her welfare, that they were prevented from getting in touch with her. They were not allowed into her flat when they called, and every time they tried to speak to her on the telephone all they got was an answerphone message.

I accept that this was a real problem for them from 1996 onwards, for at that time Mrs. Bechal had a very domineering housekeeper and an answerphone was indeed installed in the flat some time in 1996. It is also clear that, for no apparently good reason, Mrs. Bechal had, by this time, developed an increasingly intense suspicion of her family’s motives. She was, with no justification, convinced that they were anxious to interfere in her affairs. This developed into a serious antagonism to her family in the later post 1996 stages of her dementia.

It is common ground that the test of testamentary capacity is still that formulated in Banks v Goodfellow (1869-70) LR 5 QB at 549. This was helpfully expressed by Miss Reed, counsel for Mr. and Mrs. Man, in her closing submission as follows:

“The testator

However, Miss Reed also rightly reminded me that it is clear from the decision of the Court of Appeal in Hoff v Atherton [2005] Wills & Trusts Law Report 999, and in particular per Lord Justice Peter Gibson at para.33, that the court has to be satisfied that a would-be testator had the capacity to understand and recognise the matters referred to under the Banks v Goodfellow test, not that he actually did understand or recognise them.

A large volume of medical evidence was adduced by both sides on the question of Mrs. Bechal’s testamentary capacity when she made her two wills made in 1994. Unfortunately no medical expert saw her with a view to assessing her capacity at or near the dates of those wills. The only expert witness who had seen Mrs. Bechal at all was Dr. Greenwood, who saw her at the end of 1993, though not for the purpose of assessing her testamentary capacity, when Dr. Greenwood diagnosed a mild form of dementia and again, in December 1996, when Dr. Greenwood found Mrs. Bechal to have suffered quite a marked deterioration and to lack testamentary capacity.

In her evidence in these proceedings, Dr. Greenwood expressed the view, which I accept, that on the balance of probability Mrs. Bechal’s mental state when Dr. Greenwood saw her in December 1993:

“… was not such that Mrs. Bechal did not have testamentary capacity in December 1993”.

In her report to this court, Dr. Greenwood, having considered her own reports in 1993 and 1996, and Dr. Moonie’s report in March 1995, went on to consider the question of Mrs. Bechal’s testamentary capacity in 1994. She said this, and I quote from her report:

“The problem is to extrapolate Mrs. Bechal’s mental state between December 1993 and March 1995, with special reference to 1994.

Mrs. Bechal was mildly demented in 1993. She was significantly disabled by March 1995, two years later. I consider that on the balance of probabilities, by August 1994 Mrs. Bechal was not of testamentary capacity.

It is more difficult to be certain about her state in May 1994. The likelihood is that her condition deteriorated in the five months from December 1993 and continued to deteriorate. This would not necessarily have been a smooth decline. My best guess, on the balance of probabilities having reviewed all the evidence available to me, is that Mrs. Bechal was not of testamentary capacity in May 1994”.

In the course of cross-examination, Dr. Greenwood accepted that, although she felt she had no clear reason for saying that Mrs. Bechal lacked testamentary capacity in 1993, she clearly did not know whether she did. She may have had such capacity then: she may not. She was not asked, of course, in 1993 to consider the question. Again, Dr. Greenwood realistically accepted that in the passage of her report I have quoted, she was “only making a clinical guess” about Mrs. Bechal’s testamentary capacity in May 1994. She accepted that she did not really know whether she had capacity then.

Included in the documentary evidence before the court is a report made to Mr. and Mrs. Man’s former solicitors by a Professor Howard, of the Institute of Psychiatry at King’s College, London. He was not called to give evidence. His opinion expressed in his report was that the fact that in 1994 Mrs. Bechal was -- as he considered from reading other earlier medical reports, and in particular those of Dr. Greenwood and Dr. Dymond in 1993 and 1996 -- suffering from dementia caused by Alzheimer’s disease did not mean that she lacked testamentary capacity.

He realistically, and commendably frankly, said that he could not offer a firm opinion as to whether or not Mrs. Bechal had testamentary capacity in August 1994. However, he also said that whether Mrs. Bechal was able to complete the will instruction form herself and attend unaccompanied and unprompted at the bank for execution of the will would be two definite pointers to her having had testamentary capacity.

The claimants also adduced a report by Professor Robin Jacobi, Professor Emeritus at the University of Oxford in old age psychiatry, who never saw Mrs. Bechal. He agreed with Professor Howard’s diagnosis of dementia due to Alzheimer’s disease. His summary conclusion was expressed thus in his report:

“In my opinion, by reason of dementia due to Alzheimer’s disease Golda Bechal lacked the necessary capacity to make a will when she executed the two Wills in 1994, because: first, she would have failed to appreciate the extent and financial complexities of her large estate; and secondly, that her judgment and opinion of her relatives could have been significantly distorted. Furthermore, also due to dementia, she would not have been able fully to understand the consequences, eg inheritance tax liabilities, of making the wills that she did execute”.

Earlier in his report, Professor Jacobi, who had had the advantage of reading the witness statements of the claimants and other family members, expressed the view that there is no evidence that Mrs. Bechal suffered from insane delusions within the meaning of the Banks v Goodfellow test at the time she made the disputed wills in 1994.

On the other hand, Professor Jacobi placed importance on the fact that, despite having an estate as large as some £8 million, Mrs. Bechal chose not to consult solicitors about her new will and instead, without any advice on inheritance tax or anything else, used a bank will writing service not designed for estates of the nature of hers. He thought the lack of judgement thus shown by her was an indicator of how little she was capable of understanding the extent of her estate and its implications.

I have already mentioned a possible explanation for Mrs. Bechal having made this choice, which I was given on behalf of Mr. and Mrs. Man and I accept.

In the course of his oral evidence Professor Jacobi confirmed that there was no evidence that in 1994 Mrs. Bechal was developing delusions about her family, and that his view that she lacked testamentary capacity in 1994 was based mainly on what he thought was her inability to appreciate the extent of her estate. He did not draw any distinction between the respective dates of the two 1994 wills.

Mr. and Mrs. Man adduced expert evidence from Dr. Claire Royston, a consultant in old age psychiatry, who also never saw Mrs. Bechal. She had read the earlier medical reports and letters of Dr. Dymond and Dr. Greenwood. She applied the published results of various studies of the rate of deterioration of Alzheimer’s disease and concluded that:

“Mrs. Bechal was at the early stages of her experience of Alzheimer's disease in May and August 1994. Based on this information I consider it more probable than not that Mrs. Bechal did have testamentary capacity at this time”.

Dr. Royston considered the Barclays will instruction form as completed by Mrs. Bechal and the separate sheet containing the additional pecuniary legacies. Of those documents she said this:

“The information that is to be recorded on this form is relevant to three components of the test of an individual’s testamentary capacity:

Understanding the nature of the act and its effects

Understanding the extent of property

Appreciation of those who might be expected to benefit from the estate.

As I have already commented I am not clear regarding the circumstances in which Mrs. Bechal completed this form – in particular whether she was alone or had any assistance in terms of understanding the questions. She has indicated her choice of burial and referred to her Rabi. This suggests that Mrs. Bechal understood that the Will would come into action following her death.

Mrs. Bechal has completed the section regarding her assets but it is not clear whether this is a reasonable assessment of her assets or not. There is no indication whether or not she appreciated the extent of her wealth.

Mrs. Bechal made a number of specific legacies to individuals and specified the amount of these. In this document Mrs. Bechal was able to give relevant addresses and the amount of each bequest was varied between £300 and £5,000. She divided the residue of her estate between two further individuals who she names as ‘best friends’. Furthermore, Mrs. Bechal indicates some of the reasoning behind her determination of who to leave a bequest to as indicated on the handwritten document by the statement, ‘My Brother Philip Harbour had provided for my sisters families so I only give certain cash to my nephew and nieces’. Clearly a competent individual has the right to dispose of their assets to whoever the individual chooses and the information on the form does address Mrs. Bechal’s reasoning behind her choice.

It is my opinion that this documentation indicates that Mrs. Bechal did have an understanding of the extent of her property and an appreciation of those who might be expected to benefit from her estate. Moreover, she indicated her reasoning behind some of the decisions she made in regard to the distribution of her estate. Taking this information into account I am of the opinion that it is very probable that Mrs. Bechal did have testamentary capacity on the key dates of May and August 1994”.

Not surprisingly in the light of this conclusion, in her oral evidence Dr. Royston expressed agreement with Professor Howard’s view of the significance of the obtaining and completion by Mrs. Bechal of the will instruction form.

In my judgment, the court must be wary of placing much reliance on the theoretical conclusions of medical witnesses, however eminent, who have not seen the testatrix but base their views on inferences from other evidence – inferences as to which ultimately it is for the court and not an expert witness to decide whether they should be drawn. It is greatly to be regretted that there is no direct evidence of Mrs. Bechal’s mental state in 1994.

However, I respectfully agree with the views expressed by Professor Howard and Dr. Royston as to the significance of:

Of course there were spelling errors and minor inaccuracies in both, which are consistent with the mild degree of dementia found in her by Dr. Greenwood in December 1993. But, in my judgment, of the various heads in the Banks v Goodfellow test, the contents of the form and the separate sheet of further legacies show that Mrs. Bechal:

As to the latter, her reference in the addendum sheet to not providing further for her nephews and nieces because her brother, Philip, had provided for her sisters’ families, as in fact had happened by his intestacy, is clear evidence that she had the claims of her family in mind.

As for charity, she made certain charitable gifts, and I am persuaded that it was not in any sense irrational for her to give the great bulk of her estate to Mrs. Man, who she clearly regarded as the daughter whom she would dearly have liked to have, and her husband.

As for understanding the extent of the property she was disposing of, she did on the form refer to the two companies which held the vast bulk of “her” property portfolio. There is, it is true, no evidence what value she thought that portfolio had, but actual knowledge of value is not necessary for testamentary capacity.

I am satisfied by the evidence in particular of Mr. Tobin and Mrs. McVittie, that Mrs. Bechal understood that she had, through the companies, a substantial property portfolio to dispose of. In my judgment that is sufficient in the circumstances of this case, to satisfy this head of the Banks v Goodfellow test.

As for the last head, that no disorder of the mind should poison the testatrix’s affections, pervert her sense of right or prevent the exercise of her natural faculties, and no insane delusion should influence her will or poison her mind -- bearing in mind Professor Jacobi’s evidence, I am satisfied that, as at May or August 1994, Mrs. Bechal passed this test. The position may well have been very different in 1996 and later.

It is, of course, true that the will instruction form is evidence of Mrs. Bechal’s state of mind in May 1994, and not of her state of mind in August 1994. However, none of the medical witnesses found any basis on which to reach a conclusion as to testamentary capacity in May 1994 different from that which they reached in relation to August 1994, although Dr. Greenwood felt more doubt about the position in May than she did about August. I do not consider that the available evidence justifies any such distinction. Accordingly, in my judgment, on the balance of probabilities, Mrs. Bechal had testamentary capacity when she made the August will, as well as when she made the May will.

Again, it is agreed that the burden is on Mr. and Mrs. Man to establish that Mrs. Bechal knew and approved the contents of the 1994 wills, or one of them. It is common ground that prima facie all the propounder of a will has to prove to establish knowledge and approval is testamentary capacity and due execution of the will. In this case Mr. and Mrs. Man have proved both. However, the claimants rely on the principle that where the circumstances surrounding the execution of a will are such as to arouse suspicion, then the propounder of the will must prove actual knowledge and approval in the sense that the will does represent the wishes of the deceased. See, for example, Fuller v Strom [2002] 1 WLR 1097.

Mr. Lloyd, on behalf of the claimants, strove hard to persuade me that this is a case within the latter principle. He failed. I am not satisfied that the facts as I have found them surrounding the execution of either of the 1994 wills are such as to arouse suspicion. However, were I wrong on that, it seems to me that the fact that the will signed by Mrs. Bechal in May 1994 accurately effected the instructions given by her in the will instruction form and its attached addendum sheet is clear evidence that Mrs. Bechal knew and approved of the contents of the May 1994 will.

So far as the August 1994 will is concerned, that again accurately gave effect to the instructions which Mrs. Bechal had given to Barclays, namely that her May will should continue in effect, save to the extent of the one legacy she said she wanted omitted, and with the addition of the new charitable legacy she said she wanted included. That seems to me quite sufficient to prove knowledge and approval of the contents of the August 1994 will.

Accordingly, in my judgment, the will executed by Mrs. Bechal in August 1994 is her valid last will, and I will make the appropriate orders to give effect to that conclusion.

MR. HENDERSON: Then para.7:

“What is meant, for the purposes of the first exception, by saying that the testator has been ‘really the cause of the litigation’? And what is meant for the purposes of the second exception, by saying that ‘the circumstances lead reasonably to an investigation of the matter’? There are at least four earlier cases … “.

I will not take your Lordship through those cases.

MR. HENDERSON: The judge comments on the first of the cases:

“Although Sir James Wilde framed his first rule in terms of blame and fault, it is in my view reasonably clear that he did not necessarily mean moral fault or culpability, but rather that the touchstone should be whether it was the testator’s own conduct which had led to his will ‘being surrounded with confusion or uncertainty in law or fact’. If that causal test is satisfied, it should not in my judgment matter for the purposes of the first rule whether the problem is one relating to the state in which the deceased has left his testamentary papers (for example where a will cannot be found, or where there is a question whether a will has been revoked), or whether the problem relates to the capacity of the deceased to make a will”.

MR. HENDERSON: And, flipping fairly swiftly on in this paragraph 15, the judge refers to Twist v Tye as being an example on the other side of the line where, really, it was effectively hostile litigation all the way through and he ordered costs to follow the event. He said that three gentlemen who were the executors and residuary beneficiaries under the will in question:

“… had not acted improperly, but they had taken a view about the testatrix which turned out to be mistaken … Nor was it a case where there should be no order as to costs, because the truth of the matter was that the executors had taken a view and acted upon it, in circumstances where they stood to benefit if the will was upheld. There was accordingly nothing to warrant a departure from the general rule that costs should follow the event”.

MISS REED: Is that the statement of principle that is referred to in Spiers v English in the previous para.5 that your Lordship was taken to, makes it clear:

“… that a positive case has to be made out before departing from the general rule that costs should follow the event, and also that ‘the two great principles upon which the court acts’ are neither exhaustive nor rigidly prescriptive. They are guidelines, not straightjackets, and their applications will depend on the facts of the particular case”.

And, my Lord, it is for the claimant and the Attorney General, if they are arguing for their costs to come out of the estate, to make a positive case to that effect.