Gorjat v Gorjat

The Claimants, Elisabeth Gorjat (“Elizabeth”) Philippe Gorjat (“Philippe”) and Sophie Charriere (“Sophie”) are the three adult children of Jean Eugene Maurice Antoine Gorjat (“Jean”) by his first wife Cecile. They are all French citizens and are resident and domiciled in France. Jean, a French citizen, was domiciled and resident in England. He died intestate in the United States of America on 30 May 2007. The Defendant, Lucrecia de Barelli Gorjat (“Lucrecia”) is Jean’s widow and was his second wife. She is an Argentinian but is domiciled in England.

Jean like his father before him, held a number of accounts with Credit Suisse, Lausanne. In late December 2006, or very early January 2007, he gave instructions to Credit Suisse acting through Antonio Blanco, a banking relationship manager, to effect the transfer of the funds in his accounts held in his sole name, into new accounts to be held in the joint names of himself and Lucrecia. The value at the date of Jean’s death of the funds transferred was £1,823,160. After his death, the funds were transferred from the joint accounts into new accounts with Credit Suisse, Lausanne, held in the sole name of Lucrecia.

Elisabeth, Philippe and Sophie challenge the validity of the transfer instructions given by Jean by which the funds were transferred from accounts in his sole name to joint names. They do so on the basis of lack of mental capacity and the exercise of undue influence by Lucrecia. They no longer pursue a claim that the transfer was merely an arrangement of convenience and was not intended to confer any beneficial ownership upon Lucrecia. They seek a declaration setting aside the transfer instructions and all transactions carried out as a result and an account and order for repayment to Jean’s estate of the sums transferred. Alternatively, they seek a declaration that the effect of the transfer instructions was to render Lucrecia a trustee of the accounts, or at least the balances within them, for the benefit of Jean’s estate, an account and an order for restitution of the monies withdrawn and applied for Lucrecia’s personal use or otherwise retained by her.

Criminal proceedings were commenced against Lucrecia by the Claimants in Switzerland in on 26 February 2008 and were dismissed on appeal on 5 August that year. Civil proceedings were also commenced in Lausanne on 22 July 2008 and a freezing order in respect of the Credit Suisse accounts in Lucrecia’s sole name was first granted on 24 July 2008. That freezing order remains in force subject to variations made by consent on 15 January 2010 and ratified by the court on 20 January 2010. Substantive civil proceedings were commenced in Switzerland on 20 November 2008 and at present are stayed pending acceptance of jurisdiction by the English court and the outcome of these proceedings. These proceedings had been commenced the previous day and were described by Miss Rich on behalf of the Claimants as a “belt and braces” exercise.

It is accepted that Elisabeth, Philippe, Sophie and Lucrecia are the only people entitled on Jean’s intestacy and that if the claim succeeds, the value of the joint account at the date of Jean’s death will fall into his intestate estate. Lucrecia obtained a grant of letters of administration in Jean’s estate on 28 March 2008.

The initial questions therefore, are whether this court has jurisdiction to determine the issues which have arisen in relation to the transfer of the Swiss accounts and if so, whether it is the proper forum. There was no dispute before me about either of the issues, Mr Waterworth on behalf of Lucrecia being happy to accept both the jurisdiction of this court and that it is the proper forum in this case. Nevertheless, as I must be satisfied of these matters, Miss Rich very helpfully referred me to the relevant materials.

In relation to the proper law to be applied to the issues which arise in this matter, I was referred to Dicey Morris & Collins “The Conflict of Laws” 14^th ed and 3^rd cumulative supplement at pages 37-8 at which the fundamental issues arising in choice of law questions are considered. The identification of the proper law was also considered in a different context from the one with which I am concerned, by Mance LJ in Raiffeisen Zentralbank Osterrieich AG v Five Star Trading LLD [2001] 1 QB 825 at paragraph 26. He held that it was a three stage process involving the characterisation of the issue in question, the selection of the rule of conflict of laws which lays down a connecting factor for that issue and the identification of the system of law which is tied by that connecting factor to that issue, the overall aim being to identify the most appropriate law to govern the particular issue. He went on to quote Auld LJ in Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 WLR 387, 407:

“the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and defence. This requires a parallel exercise in classification of the relevant rule of law. However, classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between competing legal systems, should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system. Nor should the issue be defined too narrowly so that it attracts a particular domestic rule under the lex fori which may not be applicable under the other system . . .” (Emphasis added.)”

In this case, although in the Swiss interim injunction proceedings, the tribunal d’arrondissement de Lausanne accepted jurisdiction over interim measures on the grounds that the claim was based on inheritance law, it is now submitted by the Claimants and is not disputed on behalf of Lucrecia, that it is correct to characterise the true issue in question as one of the validity of lifetime instructions notwithstanding that in this case, those instructions have consequences in terms of succession. In other words, the issue should be characterised as a question of the validity of an assignment of intangible property, challenged on two separate grounds, being lack of mental capacity and undue influence. In my judgment this is the appropriate characterisation of the issue in this case.

The English conflict of law rules in relation to the choice of law in respect of an assignment of intangibles are considered at paragraph 24R-050 in Dicey, Morris & Collins. The learned editors refer to the Contracts (Applicable Law) Act 1990, (“the 1990 Act”) which enacts the 1980 Rome Convention on the Law Applicable to Contractual Relations in English law and which applied at the date of the transfer instructions. The preamble and Article 2 of the Rome Convention make clear that it is intended to establish a uniform set of rules and that any law specified under it is to be applied whether or not it is the law of a Contracting State. This is also reinforced by the terms of the Guiliano-Lagarde report which as a result of s3(3)(a) of the 1990 Act may be referred to when determining the meaning and effect of the Convention.

Article 12 of the Rome Convention provides that mutual obligations under a voluntary assignment of a right against a third party are governed by the law which under the Rome Convention applies to the contract between the assignor and the assignee. The editors of Dicey Morris & Collins conclude at paragraph 24-060 that there is no reason why Article 12 should not apply to assignments inter vivos by way of gift and state:

“In such a case, the law applicable to the transfer between donor and donee will be determined as if the transaction were a contract; and questions of the validity of the gift, e.g. whether it may be revoked for ingratitude, will be governed by the law which, according to the Rome Convention, governs the gift.”

Article 4 of the Rome Convention provides that in the absence of an express choice a contract and therefore, in this case, a gift, shall be governed by the law of the country with which it is most closely connected, which is presumed to be the place of the habitual residence of the person who is to effect the performance “which is characteristic to the contract.”

As it is not disputed that the performance which was characteristic to the contract in this case was the unilateral assignment of an interest in intangible property which was effected in England and England was Jean’s country of habitual residence in the sense explained by Munby J in Marinos v Marinos [2007] EWHC 2047 (Fam), in my judgment, English law applies in relation to the assignment itself and questions as to its validity including that of undue influence. In any event, the remedies in relation to undue influence are equitable and operate in personam. There is no doubt in this case that Lucrecia, against whom the allegation is made, has submitted to the jurisdiction of this court.

Matters relating to capacity do not fall within the terms of the Rome Convention: Article 1(2)(a) which refers to Article 11 which is not relevant here. It is necessary, therefore, to fall back upon the common law. The learned editors of Dicey Morris & Collins at rule 209 state:

“(1)

The capacity of an individual to enter into a contract is governed by the law of the country with which the contact is most closely connected or by the law of his domicile and residence.”

In Republica de Guatemala v Nunez [1927] 1 KB 669, a case in which the validity of a gift of funds held in a bank account in London, made between two individuals domiciled and resident in Guatemala, was under consideration, both at first instance and on appeal, the English court held that the validity of the assignment must be determined by the law of Guatemala, either because that was the law of the place of residence and domicile of the parties or because it was the place where the gift was actually made.

Given that it is not disputed that Jean and Lucrecia were both resident and domiciled in England at the date on which the instructions were given, the forms instructing Credit Suisse to establish the joint accounts and the letter authorising the transfer of the funds were actually executed in England and the only the mechanics of the assignment took place in Switzerland, it seems to me that there can be little doubt but that the English conflict of law rules require the issue of mental capacity in relation to the assignment to be determined in accordance with English law.

If I am wrong as to the characterisation of the fundamental issue in the first place, and it should be viewed as one of succession, one arrives at the same conclusion. Succession to movable property is governed by the law of the domicile of the deceased which is indisputably England. Whether by one route or another therefore, I am satisfied that this court has jurisdiction in relation to the validity of the transfer by way of gift made by Jean.

The issue of whether the English court is the appropriate forum has not been put into question. No issue was raised in relation to the service of the proceedings upon Lucrecia. To the extent that the subject matter of this dispute is within the scope of the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters EC 44/2001, (the Judgments Regulation), England is the proper forum. This is on the assumption that Lucrecia is domiciled in England, a matter which has not been disputed: Article 2 of the Judgments Regulation. Furthermore, the English court was the first seised of the substantive claim, proceedings having been issued on 19 November 2008 and this was recognised by the Swiss Court. Switzerland is a signatory to the Lugano Convention which contains parallel provisions to those of the Judgments Regulation. To the extent that the subject matter of the dispute does not fall within the scope of the Judgments Regulation, Lucrecia has been validly served within the jurisdiction has not sought to set aside service on the grounds of forum non conveniens.

Jean was born in Paris in 1930 and was 77 at the time of his death. His family were of Swiss origin. He married his first wife Cecile in 1955 and the Claimants were born in 1955, 1956 and 1960 respectively. Lucrecia was born in 1931. She was widowed in 1973 and had three daughters by her first husband two of whom were adults by the time she married Jean. The third daughter, Paula, came to live with and was brought up by Jean and Lucrecia. There was a dispute about the date on which Jean and Lucrecia became involved with each other and the reason for their marriage but little or nothing turns upon it. There was no doubt that they began to live together in England in 1979, that Jean divorced Cecile in 1983 and that he and Lucrecia were married that year. At the date of Jean’s death they had been married for 24 years.

Jean was an engineer and had a very successful career with a multi- national US based electronics company, AMP. He rose to a senior management position and held a number of senior posts in Latin America, Japan and France. However, Jean and Lucrecia’s matrimonial home was in Harrow on the Hill, first at Ingleby Drive and after 1999 at Kelburn House, Mount Park Avenue, Harrow on the Hill HA1 3JW, (Kelburn House). Jean had chosen Kelburn House without reference to Lucrecia and it remained his principal private residence from 1999 until his death.

Not only did Jean travel both for recreation and on business and also live abroad for periods, but Lucrecia also travelled extensively during her marriage, sometimes for relatively lengthy periods. She did so in order to visit her family in Argentina and to deal with affairs elsewhere in Latin America and in the United States of America where she and Jean had homes. The American house was in Harrisburg, the location of AMP’s headquarters. Jean also owned a property in Buenos Aires which Lucrecia says he bought for her.

There was a dispute as to whether Lucrecia actually lived with Jean whilst he was director of AMP’s Asia-Pacific operations based in Tokyo. However, given that it was accepted by all that she often travelled widely and independently of Jean until the very last months before Jean’s death, little turns on this.

It was common ground that in his prime, Jean was a man of exceptional intellectual ability with wide interests and general knowledge and an eye for detail. He was confident in his own ability to master technical subjects and to make complex decisions and there was evidence that he spoke as many as four or five languages. There was also no dispute about the fact that he had a very strong character and was extremely opinionated to the extent that he always made his own decisions and rarely, if ever, considered it necessary to take advice. Despite having a variety of assets around the world, homes in three countries, children and step-children, he did not take professional advice on the management of his property and affairs nor, in particular, in relation to succession or tax. Mr Dewhurst, a former work colleague and friend, described Jean as not suffering fools gladly.

It was also not in dispute that Jean and Lucrecia had a traditional marriage in which he dealt with their financial affairs and she was respectful and deferential to him and knew how to make him happy. They held each other in great affection. Sophie described her father as doing what he wanted when he wanted to do it and when asked whether she was able to say who took the decisions in their relationship, Elisabeth replied that “My father managed his own affairs.” He was respected by all and Elisabeth at least, was a little afraid of him. The thrust of the evidence was also that Jean was close to his children, that Lucrecia fostered those relationships and that Jean was also very fond of Paula and her daughter Tess.

In 1985, on the death of his mother, Jean inherited half of the reversionary interest in an apartment block at 54 Rue Compans, 75019 Paris. The apartments were sold off individually between 1997 and 1999. In 1993, following the death of his father, Jean had opened accounts in his sole name at Credit Suisse, Lausanne, Switzerland. There were current accounts denominated in different currencies and a US dollar deposit account. Jean granted Philippe a power of attorney over the accounts from their inception and Lucrecia was also granted a power of attorney in respect of the accounts in August 2004, shortly before Jean underwent major heart surgery.

Jean retired in 1995 and whilst maintaining Kelburn House as his principal residence, he continued to travel widely. He had developed a strong interest in vintage cars and motor cycles, purchasing his first model in 1984 and after his retirement, he spent a great deal of time, renovating his cars, attending rallies throughout the world with the friends he had made as a result of their common interest and buying and selling vintage cars. Detailed records of his collection, their specifications and the dates of purchase and sale plus their purchase and sale prices were shown to the court. The records were complete through to 2007 although there was a question as to whether the 2007 entry was in Jean’s handwriting.

It was not disputed that although Lucrecia may have attended a few rallies, for the most part, Jean pursued his interest in cars with a number of male friends some of whom gave evidence. It was also not disputed that Lucrecia had her own interests which she pursued without Jean. It was suggested that Jean had a long standing mistress who sometimes attended rallies with him and also met him on occasion at the house of Jacques Paquereau in France. Little if anything turns on this and I make no findings in this regard.

Jean’s diaries for 2004-2007 were before the Court and despite Jean’s alleged lack of capacity, were relied upon as a tool in cross-examination in relation to events throughout the period in question. But for one or two instances, the entries were made by Jean in neat handwriting. It was accepted by all that Jean liked to keep a meticulous note of his affairs and the diaries reflected this.

In addition to his properties, his cars, motorcycles and other collections and his bank accounts, Jean also maintained two life insurance policies each with a death benefit sum of USD 300,000 of which Lucrecia was the principal beneficiary.

The Claimants and Laurent Charriere

Sophie, Elisabeth and Philippe all gave evidence with the assistance of an interpreter to which they were perfectly entitled. However, it was clear that in particular, Sophie had a good grasp of English and from time to time, corrected the interpreter on the translation of her answers given in cross examination. She also used the opportunity to make lengthy speeches, often at variance from the content of her witness statement to which she was also very careful to refer. Sophie was clearly the most dominant of the siblings and took the lead in this matter. Elisabeth and Philippe were more reticent. For the most part, their evidence complimented that of Sophie. Overall, I found them and in particular, Sophie to be evasive and their evidence at times, to be unreliable, particularly in relation to the will which Sophie and Philippe say that Jean had drafted or made and the events of late June 2007.

Sophie’s husband Laurent, on the other hand gave evidence in English without the assistance of an interpreter. He was a careful witness. However, in cross-examination he tended not only to seek to embellish his witness statement but to deal with matters of which it made no mention. In particular, he sought to embellish his evidence in relation to the alleged discussion between Sophie and Jean about his will which in the light of my evaluation of Sophie’s evidence, the lack of mention of this in his witness statement and the fact that it appears contrary to Philippe’s evidence, I am unable to accept. In cross-examination, Laurent did make a telling remark which was that we would not all be before the court if Jean had not died.

Sophie’s friends Marine Le Guet and Elizabeth Durey

Marine Le Guet is a friend of Sophie’s. Her witness statement was short and related to the period which Jean spent in Paris in the Autumn of 2006. She gave her evidence in a measured and careful way and I found her to be a reliable and truthful witness. However, she spent relatively little time with Jean, a matter which I take into account when evaluating her evidence. She also made no reference to “absences” in her witness statement which was made before M. Blanco’s deposition, but referred to them in cross-examination. In all, I place little weight on her evidence.

Elizabeth Durey is also a friend of Sophie’s who is living in England and was also friendly with Jean and Lucrecia. She was present in court throughout the trial. Her evidence in cross-examination ranged much wider than her witness statement and at times was shown to be inaccurate. She referred in cross-examination to Jean suffering from absences, something which was not mentioned in her witness statement and was also shown to have exaggerated Jean’s lack of ability. In her witness statement she seeks to confirm a conversation between Sophie and Lucrecia described by Sophie. However, in cross-examination she was unable to state in what language it had allegedly been conducted. As a result of these matters and numerous others, I found her evidence in general to be unreliable and place little if no weight upon it.

Lucrecia, Paula and Tim

Lucrecia was cross-examined over a long period. She was a careful and thoughtful witness whom generally, I found credible. However, at times she was evasive and I am unable to accept one important aspect of her evidence. Despite the medical records which record that Jean himself was anxious about his loss of memory, the other medical records which reveal his poor sight and M. Blanco’s evidence that Jean suffered from periods of absence, in cross-examination Lucrecia refused to accept that Jean suffered from any diminution in his mental faculties or his ability to see, or suffered absences of any kind towards the end of his life. She maintained this stance despite being cross-examined about the admission records kept by the Hershey clinic which describe Jean as suffering from progressive dementia and M. Blanco’s evidence in relation to the December 2006 meeting. She did concede in cross-examination that Jean kept a magnifying glass in his study to assist him and that he was seeking to transfer the burden of his paperwork and dealings with his investments to her. The information in the Hershey clinic records can only have been gleaned from Lucrecia herself. Furthermore, M. Blanco had no reason to seek to suggest that Jean was less capable than he actually was, in fact, quite the reverse. In those circumstances, together with the fact that Jean was referred for cataract surgery in mid 2006, I am unable to accept her evidence in this regard and prefer that of other witnesses and the contemporaneous medical records.

Paula and her husband Tim Wheldon, who is a solicitor although no longer in private practice, also sought to place what, in the light of the uncontroverted medical evidence, must at least be an optimistic gloss upon Jean’s mental and physical state in late 2006/early 2007. Paula was quite a theatrical and emotional witness and in cross-examination was proved to be inaccurate on a number of matters. That said, I accept the remainder of their evidence.

Antonio Blanco

As I have already mentioned, Antonio Blanco is a relationship manager on behalf of Credit Suisse and was in charge of Jean’s Credit Suisse accounts from 2001. More importantly, he saw Jean on a regular basis and in particular, was present when the question of joint accounts was mooted and was involved in taking instructions for the joint accounts and the closure of Jean’s accounts in his sole name.

He gave his evidence by deposition under oath in Geneva on 5 March 2010 and his answers to the pre- formulated questions and a translation was before the Court. There was no opportunity to cross-examine him nor to assess his demeanour and I take that into consideration when evaluating the weight to be given to his evidence. I also take account both of the fact that save for his professional integrity, M. Blanco had no financial or other interest in this matter and that he had not come across issues of capacity before. Nevertheless, save where the documentation reveals that M. Blanco’s recollections must have been incorrect, I accept his evidence.

“the Car Friends”

The description and categorisation of Jacques Delamarre, Jacques Paquereau and Michel Poncin as Jean’s “car friends” by Lucrecia and Paula was itself intended to seek to marginalise their evidence in relation to Jean’s mental capacity. I have adopted this heading merely for the sake of brevity and it should not be assumed that its use is significant in any way.

A Civil Evidence Act notice was served in relation to the evidence of Jacques Delamarre as he suffers from Parkinson’s Disease and was unable to travel. He last saw Jean in 2005 and states that after Philippe’s illness, Jean had given him the impression that his children had no cause to worry because he had set up the Credit Suisse accounts for them. He said that when he last spoke to Jean in early 2007, he had been tired but perfectly coherent. In the absence of cross-examination, I am unable to give full weight to M. Delamarre’s evidence.

Michel Poncin was not a convincing witness. When challenged, his recollections were vague and his responses at times, contradictory, and as a result, I am unable to place much weight upon his evidence. Jacques Paquereau was a good friend of Jean’s and I found him to be an honest and straightforward witness.

To some extent, Robert Arscott was also categorised as a car friend. He was the widower of a person who had been brought up by Jean’s parents and was treated as a sister. Jean referred to him as his brother in law. However, they also had a mutual interest in cars and Bob, as he was known, worked on cars for Jean. In his second witness statement he sought to explain and soften various comments made by Paula in her witness statement. A Civil Evidence Act notice was served in relation to his two witness statements and as a result he was not subject to cross- examination, in particular, in relation to the explanations in his second witness statement. Accordingly, I am unable to attach as much weight to his evidence as I would otherwise have done.

Old Work Colleagues

Jeremy Dewhurst and David Tozer were both former work colleagues of Jean’s. Mr Tozer was an accountant and had known Jean since about 1969 or 1970, had worked with him in Japan from 1992 to 1995, saw him regularly in retirement after 1995 and in particular, saw him in early 2007. Mr Dewhurst encountered Jean throughout the 1980s and worked with him closely in the early 1990s in Tokyo where he got to know him very well. After their retirement in 1995, they kept in touch, at least by telephone and both Mr Dewhurst and Mr Tozer last saw Jean in early 2007. Both gentlemen were careful witnesses. Although both only saw Jean for short periods in a social context in 2007 when there was an emphasis on reminiscence and chat, matters which I take into account, there is no reason to assume that their evidence was unreliable.

The Professionals

Joseph Kennedy, Jean’s solicitor based in Harrow on the Hill and his General Practitioner, Dr Fergus McCloghry as one would expect, were both careful witnesses who did their best to recall their relevant encounters with Jean. Dr McCloghry had been Jean’s general medical practitioner for twenty years by the time of Jean’s death and Mr Kennedy first acted for him 1999. Dr McCloghry saw him some sixteen times in the last two years of Jean’s life.

Although Mr Kennedy had refreshed his memory from his files, he had no attendance notes upon which to rely. Nevertheless, I found him to be an accurate and reliable witness. Dr McCloghry was also relying on his memory to some extent but also had very brief contemporaneous surgery notes from which to refer. Although the occasions upon which each gentleman had an opportunity to assess Jean were limited and were in specific circumstances, matters which I take into account, I found their evidence to be truthful and reliable as far as it went.

I should also mention that although Dr McCloghry had experience of assessing the mental abilities of his patients, including those of advancing years, I did not treat his evidence as that of an expert.

An expert’s report was submitted by Professor Jacoby on behalf of the Claimants and by Professor Howard for the Defendant to which I which I shall refer below.

Jean made various gifts to his children and their families during his lifetime. During the 1990s he permitted both Elisabeth and Philippe to live rent free in apartments at Rue Compans and in 2001, he paid off Elisabeth’s outstanding mortgage of FFR 226,300. In 1996, he gave Philippe FFR 400,000 to assist with the purchase of a workshop and in September 1999, loaned him FFR 200,000 to assist in the purchase of his home in Yerres. In March 2003 he paid off Philippe’s mortgage of EUR 60,979.61. In the meantime, on 1 September 2000, he had given his grandsons, Philippe’s sons, an apartment at Rue Compans subject to a usufruit in favour of Philippe. He also supported Philippe by regular payments after Philippe was diagnosed with cancer in 2006.

In the late 1980s he had assisted Sophie to buy her first apartment in Paris by making a gift equivalent to approximately Euros 10,000 or 15,000 and in 1994 assisted her and her husband Laurent to purchase larger accommodation by a gift equivalent to EUR 45,000. In 1999, he gave an apartment to their children Constance and Mathilde and on 8 December 1999, gave Sophie bare ownership subject to a usufruit of a property at St. Fargeau-Ponthierry which he had inherited from his parents.

In 2003, he made a gift of the freehold of Kelburn House, a substantial property, to Elisabeth, Philippe, Sophie and Paula, Lucrecia’s youngest daughter in equal shares, subject to a twenty-five year lease in favour of himself and Lucrecia. It was suggested in cross-examination that the inclusion of Paula may have been evidence of Lucrecia’s influence over him, an issue to which I shall return. However, there was no evidence that Lucrecia had sought to persuade him to include Paula and it was accepted that Jean had helped to bring Paula up and was very fond of her.

Jean opened an account with Credit Suisse on 23 February 1993. Although this is about the time at which his father’s estate was being administered and Philippe states that Jean inherited his father’s Swiss account, there was no documentary evidence before the court as to whether in fact, Jean had inherited the opening balance from his father or whether he had held another account before 1993.

M. Blanco who was a relationship manager with Credit Suisse who had responsibility for Jean’s accounts in the latter years, states in his deposition that he first met Jean in 2001 or 2002. He would meet him in London two or three times a year, generally in a hotel and would also receive instructions by telephone. Their discussions usually related to asset management. M. Blanco deposes to the fact that he met Jean probably twelve or thirteen times in all and that Lucrecia was present at about a third of those meetings, mostly after 2005. He states, “His wife was present because that’s what Mr Gorjat wanted. He told me” and I accept his evidence in this regard.

M. Blanco confirmed that the balance on the accounts tended to grow as a result of good returns on investments and that Jean would deposit the sale proceeds of his vintage cars in the accounts. This accords with Philippe’s evidence who also added that the proceeds of sale of some AMP shares were paid into the account. Lucrecia stated in cross- examination that everything went into the Credit Suisse accounts. As there was no evidence before the court that there were substantial sums in Jean’s other bank accounts, although her comment was no doubt a generalisation, I accept that in principle, this was the case. Withdrawals were generally made when he travelled to the United States.

It was the Claimants’ case that Jean had intended them to inherit the balances in his Credit Suisse accounts particularly in the light of the fact that they believed that the initial balances in those accounts had been inherited from Jean’s father. This was supported by M. Poncin who said that Jean had told him that everything would go to the children. It was Jacques Paquereau’s evidence that Jean had told him that his children would not want on his death and also that he was going to share things, out, the house, by which he meant Kelburn House, already having been given away. Mr Tozer said that Jean gave him the impression that he had provided for his family already and Jacques Paquereau’s evidence in cross-examination supported this. This was also the impression given in an e-mail from Michel Thomas, one of Jean’s oldest friends, to Sophie which was before the court. Although Jean may well have given different impressions at different times, I prefer the evidence of Mr Tozer and M. Paquereau in cross-examination to that of M. Poncin.

Jean underwent a hip replacement in 1999. However, it was not until 2004 that his health deteriorated substantially. In August 2004, Jean underwent heart surgery which was followed by a bout of pneumonia and in October 2004 he suffered a stroke. Jean also suffered from hypertension and non-insulin dependant diabetes mellitus.

It was accepted that in later life Jean had difficulties with his eyesight and used a magnifying glass when working in his study although there was a conflict of evidence about whether he had given up driving towards the end of his life. However, it was agreed that after his stroke in 2004, he was depressed and complained of a failing memory. In their joint statement dated 21 March 2010, Professor Robin Jacoby on behalf of the Claimants and Professor Robert Howard for Lucrecia agreed that the contemporaneous medical evidence showed that Jean was suffering from cerebrovascular cognitive impairment which had a measurable effect on his memory, concentration mood and personality. However, their view of the degree of the impairment differed.

There was certainly no dispute about the fact that after his stroke Jean’s health prevented him from continuing his hobby of maintaining vintage cars and attending rallies, that he had started to sell his collection, placing the proceeds in the Credit Suisse accounts and that he was depressed and frustrated by being unable to continue to enjoy this activity.

Jean had been diagnosed with high blood pressure as early as 1998 and his general practitioner’s records reveal “cognitive function improved” in July 2003. As I have already mentioned, on 25 June 2003 he had created a lease over Kelburn House for a term of 25 years to be held by himself and Lucrecia as beneficial tenants in common in equal shares and the following day had written to his children and Paula stating that he had made a gift of the freehold of Kelburn House to them, enclosing the TR1 form. The gift took effect on 14 July 2003.

The transactions were put into effect by Mr Kennedy, Jean’s solicitor. He had “quickly learned that Jean was not the kind of client who wanted advice on anything other than that which he had asked for” and that Jean “was quite sure in his own mind exactly what he wanted and how it would be achieved”. Nevertheless, he wrote to Jean on 29 September 2004, explaining the risk that the gift and lease would be treated for tax purposes as a gift with a reservation on his death and inviting him to arrange to pay the children a market rent for the property. He received no reply.

Both Mr Dewhurst and Mr Tozer, his old colleagues and friends and Mr Wheldon his son in law commented that Jean as an expatriate who had spent much of his working life in foreign jurisdictions, had a healthy interest in organising his affairs in a tax efficient way and Paula who trained as an accountant used to provide him annually with an up to date tax handbook. It was around 2003 when the gift of the freehold of Kelburn House was made that Mr Wheldon says that he mentioned to Jean about making a will to which Jean responded, “what do I need a will for?” This is consistent with Lucrecia’s recollection and also Mr Kennedy’s understanding of matters to which I shall refer.

As I have already mentioned, Jean had serious medical problems in 2004. He underwent heart surgery in August. A week before his admission to Royal Brompton & Harefield Hospital, he gave a power of attorney over his Credit Suisse Accounts to Lucrecia. That power was never exercised. Very shortly after his heart surgery, Jean suffered a bout of pneumonia and on 7 October 2004, he had a stroke. Dr McCloghry records that he had recovered his mental faculties in October 2004 but by July 2005, Jean was complaining of short term memory loss and low mood. Dr McCloghry had referred him to a Dr Kazim, a trainee counselling psychologist in March and in July referred him to the local memory clinic. He was seen by Dr Bede Smith, a clinical psychologist on 9 September 2005.

Dr Kazim noted:

“It appears that Mr Gorjat holds high standards regarding personal achievement and subsequently his success. He meets his high standards by his belief in his intellectual ability. His standards provide him with a measure of success and happiness. It would seem that the sudden onset of his stroke challenged the way he has coped with difficulties i.e. with his mind, as this was no longer working the way he was used to. As his memory failed and he was unable to meet his standards he became frustrated and fearful and had thoughts of death and dying. In order to cope with this he became withdrawn and isolated in order to concentrate more upon his memory. However, this ensured further withdrawal as he isolated himself from his interests and support. It appears to be a combination of his fearful cognitions and withdrawn and isolated behaviour that is perpetuating his current low mood.”

These conclusions were obviously based on information gleaned in part from Jean himself. They are consistent with the bulk of the evidence that Jean’s standards were very high and that he was depressed and frustrated by any diminution in his mental faculties. They are also consistent with Lucrecia and Paula’s evidence that Jean had begun to withdraw from contact with his “car friends” and sometimes did not want to take telephone calls from them.

Dr. Bede Smith in fact, was a member of the Young Onset Dementia Team which dealt with younger adults meaning those under 65. Nevertheless, he gave Jean various tests the results of which were contained in a letter of 21^st September 2005. It was recorded that Jean felt that his memory had declined since his stroke in 2004. The variety of tests carried out included the Wechsler Memory Test. Jean’s memory functions were recorded as in “the low average to borderline range with the exception of his working memory, (ie. his ability to hold information in his attention which working with it) which is at a high average level.” The doctor described Jean as having a “moderate impairment of memory” but retaining “a good working memory” and concluded that his memory deficits were related to his vascular problems.

He was also seen by Dr Claire Hilton, a consultant old age psychiatrist. In her letter of 29^th September 2005 she noted that a CT scan showed considerable cerebrovascular damage and that Jean had lost interest in his hobbies but was “bored rather than miserable”. Dr Hilton also noted that Lucrecia was abroad visiting the children of her first marriage and that Jean “has disposed of many of his possessions to ensure the tax man does not benefit after his death.” In the circumstances, such information can only have been gleaned from Jean himself.

Dr Hilton also gave Jean an MMSE mini mental test on 29^th September 2005. He scored 29/30 losing one point on a matter which the doctor described as probably cultural rather than cognitive. Dr McCloghry, Jean’s GP, himself did not notice any loss of memory which was sufficient, in his mind, to bring into question Jean’s mental capacity.

Meanwhile, Jean had seen his children in Paris on short visits in August and September 2005 and, in October Philippe visited his father at Kelburn House. It was his evidence that Jean discussed his will with him and indicated that what was in Switzerland by which he meant the Credit Suisse accounts, would be shared between the Claimants. He said in cross-examination that Jean was perfectly able to explain his intentions on this occasion and seemed in control of what he had planned. He also stated that he questioned his father about whether Lucrecia would be left with enough to which Jean responded that she would have the proceeds of the insurance policies and the house in Harrisburg.

The existence of a draft will is disputed by Lucrecia who said that she had no knowledge of Jean ever having drafted a will and that he would have told her if he had. On the contrary, she says that after the gift of Kelburn House in 2003, Jean told her he no longer had need for a will. The conversation Philippe describes is also contrary to the bulk of the evidence that Jean was extremely private about his financial affairs and that they were never aware of detailed plans in relation to succession or that he had or intended to make a will. This includes Mr Kennedy who might be assumed to be most likely to have knowledge of any will. Mr Kennedy confirmed that he was never instructed to draft one and that he had no knowledge of Jean’s succession plans or even if he had any. Overall, on the balance of probabilities having taken account of the evidence as a whole, including what Jean appears to have told Dr. Hilton about disposing of his assets in order to avoid a tax charge on his death, and the gift of Kelburn House which had already taken place, I consider it unlikely that Jean was drafting a will in 2005 or had a conversation of the kind described by Philippe.

Jacques Delamarre visited Jean that autumn and Jean confided in him that he was in poor health and was having trouble driving and navigating. Despite the fact that Lucrecia denied that Jean had any difficulty driving or navigating, I accept Mr Delamarre’s evidence in this regard. Jean and Lucrecia went on a cruise in early 2006 and, thereafter, in February, Dr Hilton noted that she did not plan to see him again because Jean had told her that his memory was improving.

Philippe was diagnosed as having cancer that month and it is not disputed that Jean showed a great deal of concern for his son, telephoned regularly and sent him regular amounts of money. Philippe noted that Jean would often repeat himself during these telephone conversations which I accept. Jean and Lucrecia also visited Philippe in Paris in March 2006 after he had undergone surgery. He went again to Paris alone on this occasion, to see Philippe on 20^th March.

He stayed with Sophie in Paris for two weeks in May that year, having travelled there alone. It was around this time that Sophie says that her father made her read his will which she says was hand-written on three A4 sheets of paper, some of which were notes. Although the English translation of her witness statement states that this happened around 31^st May, the French version refers to 31^st March, the date already mentioned by her husband Laurent in cross-examination. Her evidence was that Jean had set out his assets on the sheet with Elisabeth, Philippe and Sophie’s name beside Kelburn House, French bank accounts, Swiss bank accounts and vintage car collection UK, Paula’s name having been added on the line next to Kelburn House. In cross- examination she said that the sheets had “2000” on the top and were marked “will”.

This evidence is contrary to that of Philippe who says he saw a draft will on large sheets in 2005 which was only in draft at that stage. Furthermore, in cross-examination Sophie seemed unclear whether in fact, the sheets were a will, notes or a draft and she made inconsistent comments about her father’s capacity at that stage and whether in fact, she was contending that the document amounted to a will which could have been registered with a notary. In the light of all of these matters together with the fact that Jean had already made the gift of the freehold of Kelburn House in 2003 and the comment he made to Dr. Hilton about giving away his assets to avoid a tax charge on death, I am unable to accept Sophie’s evidence with regard to the purported will whether in draft or otherwise.

In June, Jean was back in Harrow on the Hill. His GP notes recorded “Patient still very low and memory not so good esp short term but I think more depressed.” In August, Jean complained once again about his memory to his doctor and it was on 16^th August that Dr Zaidi conducted a MMSE test on Jean in which he scored 29/30 and at the end of the month was referred to the memory clinic.

That month Mr Kennedy was instructed to sell four garages on Jean’s behalf. The transaction was completed in November 2006 and it was Mr Kennedy’s evidence that Jean dealt with the matter with the same vigilance and care as ever, although he accepted that the nature of the transaction would have been familiar to him. He noted no mental decline. That very month, Jean had also travelled back to Paris in order to celebrate Philippe’s 50^th birthday.

He also stayed in Paris for a month between 17^th September and 15^th October 2006 because Lucrecia was travelling in North and South America and it was not considered appropriate that he should stay in Harrow on the Hill on his own. He travelled to Paris alone by air and stayed during the week with Sophie and her family in her flat. He was taken to stay with Philippe at the weekends during which time, Elisabeth also helped to look after him.

Sophie described her father during this visit as docile, sleeping a great deal and showing little interest in things, save for his grandchildren whom he helped with homework. She and Laurent stated that Jean had to write everything down in order to remember it and Laurent suggested that Jean paraded himself in the flat partially clad and on occasion made a mess of the lavatory. Laurent accepted however, that he was away from home much of the week and had little opportunity to observe Jean’s behaviour. During this period Lucrecia phoned Jean almost every day and e-mailed Elisabeth to thank her for the devotion and care which the Claimants were providing for their father.

Jean’s diary reveals the same level of detail during this period of a month as it had both before and after this period and in the absence of examples of the further notes which it is alleged that Jean needed to keep, I am unable to accept that he was more dependant upon notes in order to aid his memory at this stage than he had been before.

During this period, M. Poncin says that he saw Jean for lunch in Paris. He describes Jean as being similar to a fine Swiss watch whose battery was run down. Miss Rich laid much emphasis upon this. However, in my judgment, the description was entirely consistent with the bulk of the evidence that by this time, Jean was very tired, had lost interest in most things and found difficulty getting about. I am unable to accept M. Poncin’s evidence that at this stage, Jean suffered absences of as long as ten to fifteen minutes. In the light of all of the evidence including that of the Claimants themselves, this is at best an exaggeration which I reject.

Whilst he was in Paris, Sophie took Jean to see an ophthalmologist and to see Dr Sudaka who referred him to a geriatrician, Dr Acher-Gren. She noted that he was suffering from “moderate cognitive impairment undoubtedly vascular or mixed origin.” Jean had scored 27/30 in the mini mental test which he completed on that occasion. On 29^th September 2006 Dr Anne Marie Jourde –Dhamelincourt carried out a cerebral scan.

Philippe took his father to the optician and noted that his father appeared lost. He also noted that his father’s condition and memory had deteriorated considerably by this time and that he had absences. In cross- examination he went as far as to describe him as a “vegetable” but later explained that he thought his father was very depressed and frustrated that he could no longer indulge his passion for vintage cars. He also noted his father’s physical difficulties and suggested that on one occasion he had defecated in his bed.

A friend of Sophie’s, Elisabeth Durey, who came to Kelburn House in October 2006 described Jean in the same way and Marine Le Guet who met Jean whilst he was staying with Sophie in Paris found that Jean had lost his vivacity and was quite docile. In cross-examination she described him as a tired man who had moments of not “being with us”.

As I have already mentioned, all the evidence points to the fact that during his time in Paris in the Autumn of 2006, Jean was docile, slept a great deal, appeared to have lost interest in life and was depressed. It is clear from an e-mail which Lucrecia sent to Elizabeth from Argentina, dated 2^nd October 2006, that Lucrecia was aware that Jean was in need of care. She stated:

“I know your father is in good hands for a short period of time [who] I am not there: thank you so much . . . I appreciate your dedication and the one from Philippe and Sophie. If everything works as planned I will be in Harrisburg on October the 11^th. I think Phill has not has new passport to acompanie his father . . . I do not know if he is able to go back to London and fly to USA for himself or it he deteriorates more during those days.”

However, the description of Jean as a vegetable and the suggestion that he could not write at this stage are entirely inconsistent with his diary entries which remain detailed and frequent throughout this period and the details of his car transactions. Whilst I accept that Jean’s health and memory may well have deteriorated by this time, that he may have suffered from absences and was not in the best of health on his return to England, in the light of his diary entries, the medical evidence both immediately before his visit to Paris and afterwards and the evidence of his friends to which I shall refer, I am unable to accept either that he was unable to write or that his mental state warranted such an extreme and graphic description as that of “vegetable”.

Sophie brought Jean back from Paris to Kelburn House on 15^th October 2006. There was some confusion about the date on which Lucrecia was to return from her trip and in fact, Sophie who had to return to Paris, arranged for her friend Elisabeth Durey to come to make some meals for her father until Lucrecia’s return. She says that he had forgotten that she was coming but that he was capable of making himself breakfast and being left a cold supper.

On their return Sophie helped her father with the mail and she says that her father handed her a bank statement in respect of his Credit Suisse accounts showing a balance of US$ 2,500,000 and indicated that it was for her, Elisabeth and Philippe. She took a copy of the statement.

Much was made of the suggestion that Jean had not enjoyed his stay in Paris, had returned in a reduced state both physically and mentally from which he recovered under Lucrecia’s care and that he had stated that he had not been looked after properly there. I accept the evidence that Jean was less well on his return from Paris and may not have enjoyed his stay. Otherwise, I make no findings in this regard.

In any event, it was on his return to Harrow on the Hill that it was appreciated by Lucrecia that she would not be able to travel alone again and that it would be necessary either to remain at home or to take Jean with her on her trips. At this stage, she also began to assist him with his paperwork and financial affairs. Lucrecia explained that Jean needed her help and wanted her to learn about financial matters and I accept her evidence in this regard. There were examples of letters which she had written and he had signed before the court. They were written in French which is not Lucrecia’s first language and contained a number of spelling errors. Miss Rich submitted that this was indicative of Jean’s waning mental capacity because it would have been contrary to his meticulous nature to have signed and sent out something containing errors. To the extent that the submission is directed both at Jean’s memory difficulties and his depression recorded in the contemporaneous medical evidence and the observations of lay witnesses, I accept it.

In this regard, Jean was seen at his GP surgery by Dr Beharry on 23^rd October 2006. Dr Beharry recorded “low mood feeling down, anhedonia, reduced motivation and concentration forgets what he did yesterday. Bored. Life not with living – not actively suicidal MMSE 10/10.”

In November 2006, Jean and Lucrecia went to Yorkshire to see Paula and Tim’s new home. The thrust of the evidence was that Jean admired both house and grounds but it was accepted that he had difficulty getting about. They nevertheless visited a restaurant of Jean’s choice and it was Paula, Tim and Lucrecia’s evidence that Jean was able to enter into conversation, which I accept. However, they all tried to play down Jean’s infirmity which led his cataract surgery, scheduled to take place only a few days later, to be cancelled because he was not fit enough for the anaesthetic. Jean wrote a short note of praise for the house and thanks for the hospitality which was accepted to have been in his handwriting. This together with the entries in his continued diary are also inconsistent with the evidence that by the time Jean stayed in Paris in September and October 2006 he could no longer write, which as I have already mentioned, I reject.

Although M. Blanco in his deposition states that he met Jean in London in October or November 2006, Jean’s diary reveals an entry for a meeting with M. Blanco of Credit Suisse at the Capitol Hotel in London on 11^th December 2006, a date which Lucrecia also recalls. M. Blanco’s evidence inevitably was not subject to cross-examination, a matter of which I take account. In any event, both M. Blanco and Lucrecia confirm that it was Jean and M. Blanco’s habit to meet in a restaurant in London and in relation to the date of their meeting in late 2006, I prefer Lucrecia’s evidence supported by Jean’s diary entries to the recollection of M. Blanco.

It was at this meeting on 11^th December 2006, that Jean signed a contract relating to high risk investments which had been printed a few days earlier on 7^th December and was produced by M. Blanco at the meeting. The contract was in standard form and related to Jean’s existing accounts in his sole name.

It was also at this meeting that Lucrecia says that Jean gave instructions to transfer his Credit Suisse accounts into joint names and they were told that they would have to fill in the necessary forms and provide their passports in order to set up the joint account. M. Blanco’s recollection is slightly different. He states in his deposition that at the meeting at which both Jean and Lucrecia were present, Jean asked M. Blanco what he ought to do in order not “to harm” his wife. Jean had mentioned this in the context of “the organisation of his succession”. In response, M. Blanco says that he suggested a joint account or a trust and I accept his evidence in this regard.

Lucrecia’s evidence that Jean had told M. Blanco that the money in his Credit Suisse accounts was “ours” and had been accumulated during their marriage and that he wanted a structure to reflect that is consistent with M. Blanco’s recollection of the way in which the conversation arose and the options he put forward. Lucrecia’s witness statement was sworn before M. Blanco made his deposition and he did not have sight of her evidence which I accept in this regard.

M. Blanco says that Jean did not make up his mind there and then but telephoned him relatively soon thereafter, perhaps a couple of weeks later to say that he had decided on a joint account. In relation to whether a decision was made there and then or was the subject of a subsequent phone call, I prefer the evidence of M. Blanco to that of Lucrecia, despite the absence of cross-examination. M. Blanco’s explanation is consistent with the timing of the production of the necessary documents by Credit Suisse.

There is no evidence as to the date of the telephone conversation. However, Jean and Lucrecia departed on a cruise on 18^th December and returned on 28^th December 2006. On 18^th December 2006, Credit Suisse produced standard form contracts and associated documentation for opening new accounts in joint names and sent these to Jean and Lucrecia in Harrow on the Hill. The documentation was signed by Jean and Lucrecia on 30^th December 2006 on their return from holiday. Lucrecia says that she remembers receiving the envelope and placing it on Jean’s desk. He told her that she should sign and date the contents. In addition, on an unknown date, Jean signed a letter which had been prepared by M. Blanco of Credit Suisse, instructing Credit Suisse to close his accounts in his sole name and transfer the balances and securities to the new joint accounts. M. Blanco dated the letter 3^rd January 2007 on receipt. These instructions were carried into effect between 10^th January and 2^nd February 2007.

By the end of 2006, it was accepted by everyone that it was necessary for Lucrecia to give Jean a great deal of assistance and that Lucrecia was happy to do so. Even Sophie accepted that she had adapted to the increasingly difficult conditions caused by Jean’s health. It was Mr Tozer’s evidence that Jean had told him at some stage towards the end of 2006 that he handed over responsibility for managing his financial affairs to Lucrecia and he seemed pleased no longer to have to be troubled by the burden of it. It was Mr Tozer’s impression that Jean could still have coped with such matters but didn’t want to. Lucrecia said that Jean was teaching her what to do and introducing her to financial matters.

Dr McCloghry saw Jean on 4^th December 2006 and 5^th January 2007 and his evidence was that although Jean’s mood was low and he complained of memory loss which led to the test administered by Dr Lai Ping Thum, a psychiatrist, he gave a clear account of his medical problems and displayed a good understanding of his medication. His overall impression, gained as a result of numerous albeit short consultations, was that whilst suffering from memory impairment, Jean nevertheless had capacity.

There was conflicting evidence about the extent to which Jean was able to enjoy the cruise at the end of 2006. However, it was not disputed that Jean had chosen the itinerary and the cabin, there is a photograph of him and Lucrecia dancing, albeit in a static pose. By contrast it was accepted that they had not left the ship at most of the ports. The Claimants also disputed Lucrecia’s evidence that Jean had taken photographs from the deck. None were before the court. Given the undisputed evidence about Jean’s poor eyesight at that stage, I find it unlikely that he was able to take photographs and I reject her evidence in this regard.

Jean’s failure to send any postcards from the cruise is another circumstance relied upon by the Claimants in support of their contention that their father had lost the ability to write at this stage. However, as I have already mentioned, his diaries continue to contain entries in his handwriting as do his car records. Although there is no evidence of Jean writing anything of any length by the end of 2006, in the face of his diaries, his car records, the note which he wrote to thank Paula and Tim for the weekend spent in Yorkshire in November 2006 and his signature on the investment agreement, I cannot accept that he could not write at all.

In January 2007, Jean and Lucrecia entertained Jean’s old colleagues and friends Jeremy Dewhurst and David Tozer and their wives and both gentlemen gave evidence. Jean made no mention of his financial affairs although both witnesses noted that old age was catching up with Jean. They both accepted in cross-examination that the conversation was no more than pleasant reminiscence and chat, but nevertheless, neither of them noticed any diminution in Jean’s mental capacity on the contrary, they commented that he was mentally active and aware.

In fact, Jean saw David Tozer for lunch on a regular basis, perhaps, two or three times a month. Such appointments were in Jean’s diary for 19^th November and 15^th December 2006 and 7^th and 14^th January 2007. However, Mr Tozer could no longer be certain that they definitely met on those precise occasions. In any event, he noted that on each occasion he met Jean, the last of which was in March 2007, he appeared to him to be “mentally sharp” although slowing down and not as forceful or dominating as he had been. He noted however, that Jean still had a range of strongly held views on topics which interested him but initiated conversation less than he had in the past. Mr Tozer made clear however, that Jean’s contributions to conversations were still thoughtful and intelligent. He also confirmed in cross-examination that he was confident that Jean did not anticipate that would die soon.

Further, in January 2007, for the first time, Lucrecia attended Mr Kennedy’s offices with Jean. Nevertheless, it was Mr Kennedy’s evidence that even at this stage, although Jean said little, he understood and gave appropriate instructions. He stated that his wife did most of the talking but that he indicated his assent or otherwise with nods and waves. Even at this stage, Mr Kennedy said that he had little doubt but that the balance of power in the relationship between husband and wife lay with Jean. Mr Kennedy had no experience of any of the lapses or concentration or absences mentioned by other witnesses. When cross-examined about Jean’s capacity he replied that he wouldn’t have thought it necessary to go as far as the Golden Rule. This was a reference to the procedure adopted by solicitors when taking instructions for a will from a client whom the solicitor is concerned may lack testamentary capacity.

On 31^st January 2007, Dr Thum had written to Dr McCloghry, Jean’s GP, describing his assessment of Jean on 25^th January 2007 at the outpatient clinic at Northwick Park Hospital. The note indicates that Lucrecia had been present at the consultation. Once again he noted Jean’s lack of motivation, poor concentration and low mood. He concluded:

“during the consultation today he participated a lot in the conversation and was quite comical and jokey with his remarks.”

All three of Jean’s children stayed at Kelburn House from 3^rd February 2007 for three days during which Jean made no mention of what he done with the Credit Suisse accounts. The gathering was intended as a substitute for Christmas celebrations, Jean and Lucrecia having been away on their cruise. Paula was also present and says that she was there to help her mother with the extra work which seems perfectly natural. Sophie, Philippe and Elisabeth sought to imply that at the least that it was insensitive of her to have been present, but I draw no inferences from her presence on this occasion.

The Claimants’ evidence was that they noticed a further decline in their father’s health and commented that Lucrecia treated him like a baby and had humiliated him which was denied by Lucrecia. In addition, there was a conflict of evidence about the manner in which the Claimants behaved on their visit. In her witness statement Paula stated that they treated the place as a hotel and that Jean said that he was glad when they left. This is denied by all three of the Claimants. In fact, little if anything turns on this and I make no findings in this regard.

By late February or early March 2007, Robert Arscott noticed that Jean’s health had deteriorated further. He and his wife dined with Jean and Lucrecia at a restaurant in Harrow on the Hill and had to return home early because Jean was tearful and withdrawn.

Jean travelled to the United States of America with Lucrecia in early April 2007 to prepare the house in Harrisburg for sale and to organise the sale of his car collection or possibly its transportation to Europe for that purpose. Sophie visited him there and was able to attend the hospital when Jean became ill. Jean was admitted to the Penn State Milton S. Hershey Medial Centre as an emergency on 13^th May 2007 and the emergency department note, which can only have been compiled with the help of Lucrecia who accompanied him to the Hershey Medical Center, records:

“Mr Gorjat is a 76 year old male with a history of some dementia at baseline, although typically he is able to perform self-care tasks with assistance and reminders.”

Dr DeFlitch recorded:

“They typically visit Harrisburg for 1 to 2 months a year, although on this visit, Mr Gorjat’s wife is attempting to close the house and sell contents because of Mr Gorjat’s progressive dementia and increased need recently for assistance.”

Lucrecia stated that the word dementia was not within her vocabulary. Nevertheless, on the balance of probabilities and taking into account the fact that Jean’s condition was poor on admission, in my judgment, it is more likely than not that Dr De Flitch gained the impression from Lucrecia herself, that they were selling up in the United States as a result of Jean’s diminishing mental capability.

Lucrecia also explained the realisation of Jean’s car collection and the Harrisburg house and the transfer of the funds into joint names as preparation for their old age during which they might well need care which would, inevitably, be expensive. This is consistent with Mr Tozer’s evidence that Jean did not anticipate his imminent death and I accept it.

Jean died on 30^th May 2007 and Jean’s funeral was held in the United States of America on 4^th June 2007. His body was cremated. None of his children attended. Lucrecia returned to England with his ashes on 25^th June 2007 and arrived back on 26^th. She wanted to spread his ashes in the places in which he had enjoyed walking in and around Harrow on the Hill a plan which the Claimants opposed. Sophie visited Kelburn House on 29^th June in order to find a suitable resting place for her father’s ashes and make a search for documentation. It was on this occasion that Lucrecia and Sophie visited Jean’s solicitor in Harrow on the Hill, Mr Kennedy, and it was established that Jean had not left a will and that his estate would be administered in accordance with English law.

In the morning of 29^th June 2007, Sophie was taken by Elisabeth Durey to look at possible cemeteries. They returned and had lunch with Lucrecia and Paula at Kelburn House and in the afternoon whilst Lucrecia and Paula had a nap, Lucrecia gave Sophie permission to investigate Jean’s papers in his office in order to see if, in fact, he had left a will. Sophie says that it was then that she discovered that the Credit Suisse file containing Jean’s bank statements was missing. In her witness statement she states that when Lucrecia awoke from her nap she challenged her about this and that Lucrecia responded that Jean had made a gift of the Credit Suisse accounts as compensation for the gift of the freehold of Kelburn House to the Claimants and Paula and that the papers were in Buenos Aires. She was supported in this by Elisabeth Durey.

Sophie suggests that Lucrecia stated that the gift had been made on 2^nd February 2007, that M. Blanco had come to Kelburn House in order to arrange matters and the balance in the accounts at the time was approximately $300,000. She went on to state that Lucrecia had admitted that she had seen the second and third pages of the “notes” to the will and had said that they were in Harrisburg. Elisabeth Durey says that she was present and heard this conversation and that it became extremely heated. As I have already mentioned, in cross-examination, Elisabeth Durey could not remember the language in which the alleged conversation took place and in the light of the fact that M. Blanco had never attended Jean at Kelburn House and that 2^nd February was of no significance, I find it implausible that that the conversation in this form took place. I reject Sophie and Elisabeth Durey’s evidence in this regard.

In any event, an appointment had been arranged with Mr Kennedy at his office for 4pm on 29^th June 2007. There is a conflict of evidence about whether it was Lucrecia or Elisabeth Durey who drove. In this regard, for the reasons already expressed and because Elisabeth Durey’s evidence which mirrored that of Sophie, was proved in cross-examination to be inaccurate in a number of material ways in this regard, I prefer Lucrecia and Paula’s evidence.

There is no doubt but that Lucrecia and Sophie were informed by Mr Kennedy that he did not have a will for Jean, that he had no knowledge of Jean having made a will and that Jean’s intestate estate would be administered in accordance with English law. Sophie states that the purpose of the meeting had been to obtain a copy of the gift of the freehold of Kelburn House and she was supplied with one by Mr Kennedy.

Sophie stayed that night with Elisabeth Durey rather than at Kelburn House and there is a dispute whether she returned there the following afternoon. She says that on that occasion she returned to her father’s office and noticed that a great many papers were missing. She says that things became heated once again and that Paula asked her to leave. After dinner, she says that Lucrecia drove her back to Elisabeth Durey’s house. As I have mentioned, I found Sophie’s evidence in relation to the events of 29^th and 30^th June 2007 to be unreliable and prefer that of Lucrecia and Paula in this regard.

Letters of administration were granted to Lucrecia on 28 March 2008 and the net estate was sworn at £449,677. Lucrecia was entitled to a statutory legacy of £125,000, the personal chattels and a life interest in half of the remainder of the estate. She conditionally disclaimed her life interest by a deed dated 6^th February 2008. It is clear that after the gift of the freehold interest in Kelburn House, the Credit Suisse accounts were Jean’s main asset by a very substantial margin.

Perhaps inevitably, the only evidence relating to the opening of the joint accounts and the transfer of the balances in Jean’s sole name to those accounts is that of M. Blanco and Lucrecia whom M.Blanco confirmed he had met for the first time in or around 2004. M. Blanco also confirmed that he never met Lucrecia alone in order to discuss Jean’s affairs.

M. Blanco was asked about other people attending the meetings he had with Jean and in particular, the role which Lucrecia played on these occasions. The questions and his responses were as follows:

“3.5

Was anyone else present at these earlier meetings?

There was no-one present apart from his wife and even she wasn’t present every time.

3.5.1

If anyone else was present, who was present and when?

Ditto.

To reply to the Court: I also saw Mr GORJAT a dozen times in all and for about a third of these 12 he was accompanied by his wife. She was present more towards the end, after 2005. I say this without prejudice as regards the noise [rumour] (Footnote: ¹).

3.5.2

Do you know why that person was present and, if so, how do you know this?

His wife was present because that’s what Mr GORJAT wanted. He told me.

3.5.3

What part (if any) did that person or those persons play in the meetings at which they were present?

To reply to the Court, his wife always behaved passively. To reply to the Court, she had the attitude of an observer, she didn’t ask any questions. She never asked her husband any in my presence.

The Court asks me if his wife would intervene in a non-verbal way with regard to her husband: no, this was not the case.

This changed during Mr GORJAT’s moments of absence. I would say this happened very few times before his death. I would say it happened at the last two meetings. There were some long absences.

During these absences, his wife got involved. Then I would address both husband and wife while trying to include Mr GORJAT. At that point there were no longer any instructions.

He was also asked about the reason for Lucrecia’s presence and the part she played. The questions and answers were in the following form:

“19.

When you met Jean and Lucrecia Gorjat together, what part did Lucrecia Gorjat play in the meetings?

19.1

Specifically, did Jean Gorjat consult with Lucrecia Gorjat or seek her advice in relation to matters discussed at meetings with you?

No

19.2

Why did you think that Lucrecia Gorjat was present at your meetings and what makes you think this?

It was what Mr GORJAT wanted. He wanted his wife to be more involved with the relationship with the bank. He told me so. He wanted to be aware of the mechanisms of these investments because she didn’t know anything about investment.”

He was questioned about the quality of Jean’s decision making in the following way:

“8.

In your experience of him, did Jean Gorjat follow advice given to him or did he make up his own mind? Did he ever act against advice received? Would you regard him as a rational and consistent decision maker?

Mr GORJAT would listen to me and then make his own decisions. He could take decisions against my advice. He always acted rationally and following the same logic. For example Mr GORJAT tended to allocate a major part of his portfolio to Nestlé shares, even though I had remarked on it, and he pursued this policy.

All our discussions were rational and logical.

To reply to the Court, between his moments of absence, which I mentioned, Mr GORJAT was perfectly rational.

I would first address myself to Mr GORJAT at his wife’s insistence during his periods of absence.

Mr GORJAT’s remarks were not incoherent and I was not surprised by them.“

Lucrecia’s evidence in relation to the decision to transfer the funds and create the joint account was that Jean did not consult with her but made the decision himself. She said that she did not understand about financial matters and that he made the decision. She remembered that he had said that the money was theirs and that the children had enough.

Lastly, in relation to the meeting at which the idea of the joint account was discussed, M. Blanco’s deposition evidence was as follows:

“The joint account

Although M. Blanco explained that he was a banker and an economist by training rather than a lawyer with a knowledge of private international law and he also admitted that he had never come across a question of capacity in his professional life before, which affects the weight to be given to his evidence, I nevertheless accept it and that of Lucrecia in relation to the decision to create the joint account.

As I have already mentioned the experts agreed that Jean suffered from cerebrovascular cognitive impairment. Professor Howard, who is Professor of Old Age Psychiatry at the Institute of Psychiatry and consultant Old Age Psychiatrist at the Maudsley Hospital in London, on behalf of Lucrecia, had sight of Jean’s general practitioner records and those made at the Hershey Medical Center. Neither he nor Professor Jacoby who gave evidence on behalf of the Claimants, had the opportunity to examine Jean during his lifetime.

Professor Howard concluded that on the balance of probabilities, the degree of Jean’s vascular dementia was not likely to have been sufficiently severe to have been diagnosed as significant vascular dementia in December 2006/January 2007. He stated that his symptoms

“would have had a small and measurable effect upon his mental capacity. However, I do not consider that the nature and degree of these changes by December 2006 and January 2007 were sufficient to have markedly affected his capacity to the point where he could be considered to have lacked capacity to make the transfers of the bank accounts. Specifically, I believe that he would have been able to understand, retain and use information and communicate his decision in relation to the decision to transfer the accounts so that he should be considered to have had adequate capacity to do so at this time.”

He also felt confident in offering the opinion that the mild degree of cognitive impairment suffered by Jean and his low mood would not have been sufficient to render him vulnerable to undue influence as a result of being unaware of what he was being asked to do in relation to the bank accounts.

Professor Jacoby, the Professor Emeritus of Old Age Psychiatry at the University of Oxford, had considered Jean’s medical records and the witness statements on behalf of the Claimants. He concluded that if the Claimants’ evidence were accepted, the evidence was consistent with personality change and impairment of executive function. However, the final conclusion in his report of 3^rd March 2010 was that despite his dementia, Jean would have had the capacity to understand what he was doing with his Credit Suisse accounts and the effect that that would have had on the control of the balances but that “his ability to weigh up the competing claims of those who might have expected to benefit from the money in those accounts, could have been impaired”.

In his second report of 17^th March 2010, he also concluded that if the evidence on behalf of the Claimants were accepted, they suggest that Jean was more compliant than he had been and was “more likely to be swayed by others.” Having had imprecise wording pointed out to him, in a letter of 14^th April 2010, Professor Jacoby stated:

“In the paragraphs quoted from my report I have used what Macfarlanes call “a form of permissive imprecise wording” because it is the Court’s prerogative to decide these matters and not mine. If the Court were to decide that M. Gorjat did lack the specified capacities, it is within my expertise to state that the cause would have been vascular dementia.

I am unwilling to put a percentage on the relative probably because it would be a spurious guess. I am willing to state my opinion that on the balance of probabilities M. Gorjat lacked the specified capacities.”

Professor Jacoby had not been provided with the witness statements made on behalf of Lucrecia or with the deposition made by M. Blanco relating to the transaction itself before writing his reports. In cross- examination, he accepted quite reasonably that on the medical evidence alone he could not say that Jean lacked capacity because he felt unable to give an opinion based on a single cross-sectional observation of the type carried out by Dr. Bede Smith.

Both in his written evidence and in cross-examination, Professor Jacoby made clear that he gave much greater weight to the neuropsychological testing carried out by Dr Bede Smith in September 2005 than to the MMSE scores attained by Jean in the various tests administered between 2005 and 2007. The outcome of those tests had been that Jean had scored in the “the low average to borderline range with the exception of his working memory, (ie. his ability to hold information in his attention which working with it) which is at a high average level.” He had been described as having a “moderate impairment of memory” but retaining “a good working memory”.

Professor Jacoby was critical of the MMSE test which he said had been created on the back of an envelope. In relation to the Wechsler Memory Test one of the tests administered by Dr Bede Smith, Professor Howard noted that the normative sample on which the tests were based was an age range with an average of about 30 and accordingly, as a man in his 70s, Jean had performed well. In fact, it appears that although the average for the previous edition of the test used was 29, the average for the edition actually used on Jean was 36. Therefore, the point was well made and Jean’s scores should be considered in that light.

Professor Howard did agree that the tests administered by Dr Bede Smith were a more sophisticated gauge of executive function than MMSE and that the results were not inconsistent with a lack of capacity. However, whilst acknowledging that the MMSE was not a test of decision making capacity he drew attention to the statistical correlation between capacity assessment and MMSE scores. In cross-examination, Professor Jacoby accepted that the majority of persons with an MMSE score of 20 or more would have testamentary capacity. Professor Howard had also explained that approximately 50% of people scoring between 10/30 and 20/30 were also found to have testamentary capacity. He accepted that the MMSE does not test executive function but added that it was difficult to perform well in an MMSE if one had poor executive function. Although there were one or two blips, in general, Jean’s MMSE scores were perfect. The lowest of his MMSE scores attained when he was in Paris in October 2006 was 27.

Professor Howard also criticised Professor Jacoby’s reliance on a French CT/MRI scan, commenting that not only might the calibrations be different but that in any event, the extent of scarring to the brain would not necessarily correlate with loss of cognitive function. Professor Jacoby was not given an opportunity to comment upon this.

Finally, in cross-examination, when asked whether he had considered whether Jean would have had the ability to balance relevant information including the fact that he was effectively disinheriting his children, Professor Howard replied that in his opinion, Jean would have known that that would be the effect of his decision and that the balances might all go to his step children.

Capacity

It was accepted by both Miss Rich on behalf of the Claimants and Mr Waterworth for Lucrecia that my starting point in relation to the legal test for capacity in respect of an inter vivos transaction should be the case of Re Beaney [1978] 1 WLR 770. In that case, it was held that the test for capacity for the execution of a deed was whether the person making it was capable of understanding the effect of the deed when its general purport had been fully explained. This approach was then refined by Martin Nourse QC sitting as a Deputy High Court Judge, in the following way at 774C-F:

“the principle is –

that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.

In the circumstances, it seems to me that the law is this. The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject matter and value of the gift are trivial in relation to the donor’s other assets a low degree of understanding will suffice. But, at the other extreme, if its effect is to dispose of the donor’s only asset of value and thus for practical purposes to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of.”

Both Miss Rich and Mr Waterworth also agreed that prior to the Mental Capacity Act 2005 coming into force, the well known test for testamentary capacity was found in Banks v Goodfellow [1870] LR 5 QB 549 per Cockburn CJ at 565, and is in the following form:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

As Lewison J pointed out in Perrins v Holland [2009] EWHC 1945 (Ch) the common law test of capacity to make a will in Banks v Goodfellow has been refined and explained over the years:

“First since the test is a common law test it is capable of being influenced by contemporary attitudes. Second, our general understanding of impaired mental capacity of adults has increased enormously since 1870. Third, we now recognise that an adult with impaired mental capacity is capable of making some decisions for himself, given help. Thus fourth, we recognise that the test of mental capacity is not monolithic, but is tailored to the task of in hand: Hoff v Atherton [2005] WTLR 99,109.Fifth, contemporary attitudes toward adults with impaired capacity are more respectful of adult autonomy. Sixth, even the traditional test must be applied in the context of the particular testator and the particular estate. A testator with a complex estate and many potential beneficiaries may need a greater degree of cognitive capability than one with a simple estate and few claimants. In addition as the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

“The criteria in Banks v Goodfellow are not matters that are directly medical question, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording), of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’ assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did no understand these things would overcome the effect of evidence of such a conversation.”

Miss Rich also referred me in her written closing to an extract from the judgment of Briggs J in Key v Key 2010 [WTLR] 623 at 648, paragraph 115 which sets out a further refinement of the Banks v Goodfellow test as follows:

“This is not one of those cases in which it is possible to point simply to a conspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v Goodfellow test. Rather it is a case in which I have been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife’s death to exercise the decision–making powers required of a testator. In any event, the defendants have not discharged the burden of proving that he was. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.”

Lack of mental capacity is now dealt with at sections 2 and 3 Mental Capacity Act 2005 and was used in Professor Howard’s report. Although the Act was not in force at the time and therefore, is not directly relevant in this case, Miss Rich submits that nevertheless, I should use the sections as guidance as to how the question of capacity should be assessed. Mr Waterworth submits that I should not do so and relies upon Scammell v Farmer [2008] WTLR 1261, a decision of Stephen Smith QC sitting as a Deputy High Court Judge in this Division. That was a case concerning testamentary capacity and the application of the 2005 Act to wills made prior to the commencement of the Act. In my judgment, Stephen Smith QC was correct to decide that to apply the provisions of the 2005 Act to dispositions which took place before 2007 would be contrary to the presumption against retrospectivity and accordingly, would not be appropriate.

The Claimants contend that given the value of the funds in the Credit Suisse accounts as well as their value relative to Jean’s other assets, the degree of capacity required for the transfer instructions to be valid is as high as it would have been for the valid execution of a will. On the other hand, Mr Waterworth on behalf of Lucrecia submits that it is important to bear in mind that the transfer of the Credit Suisse balances was not an outright gift depriving Jean altogether of the funds in question. He also says that the transaction should be viewed as the transfer into joint names of matrimonial property.

Further in this regard, he submits that in a case such as this, the test in Re Beaney has an unfortunate and illogical result which must be wrong. He pointed out that a literal application of the test which requires the court to determine the degree of capacity necessary by reference to the value of the gift in relation to the donor’s other assets, would have the result that someone with £2million assets who gave away £1million to one child and seven days later gave away the remaining £1million to their other child would need less capacity to make the first gift than the second. He submits therefore, that where there is evidence that the donor is aware of the existence of previous gift to other donees, one cannot look at the final gift in isolation and it is, therefore, inappropriate to require a higher degree of understanding simply as a result of the chronology.

Lastly, whilst emphasising that he does not accept that the capacity required in this case was of the same level as if Jean had been making a will, Mr Waterworth draws attention to the fact that the standard of mental capacity necessary, even if it is that which would be required for making a will, is not high. He referred me to the judgment of Cockburn CJ in Banks v Goodfellow at 566 where he said:

“In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.”

It seems to me that if the evidence were that a donor had formed an intention at the outset to make a series of gifts which he effected over a relatively short period, it would be appropriate to consider the course of conduct as a whole and as Mr Waterworth suggests, in such circumstances, it should not be necessary to require a higher degree of understanding in relation to the last gift in the intended sequence merely because by that stage, it had greater significance when compared with the donor’s remaining assets which had been diminished by the course of conduct.

However, in this case, although there is some evidence of Jean having concluded that he had already made provision for his children, an issue which is obviously relevant when determining whether he had sufficient capacity to transfer the balances in the Credit Suisse accounts, there is no evidence of a pre-meditated course of conduct executed over a short span of time, encompassing a number of balancing gifts. At best, it is alleged that in a heated exchange with Sophie at the end of June 2007, Lucrecia stated that the transfer was to compensate for the gift of the freehold of Kelburn House to the Claimants and Paula which took place approximately three years earlier. As I have already mentioned, I do not accept Sophie’s evidence in this regard. All the other witnesses including Mr Kennedy denied being aware of Jean having had any pre-meditated plan in relation to succession. Furthermore, in my judgment, the relatively lengthy period between the gift of the freehold and the transfer of the Credit Suisse balances, in itself militates against the likelihood of there having been a pre-meditated plan. Even if a pre-meditated sequence of gifts should be considered together for the purposes of the test in Re Beaney, on the facts, this is not a case of that kind.

In my judgment, the necessary capacity in this case must be judged on the basis that the balances were by far Jean’s greatest asset but that he was not losing entire dominion over them. As Mr Waterworth pointed out Jean remained equally entitled to the balances in the accounts, albeit that the survivor would succeed to the entire balance. The transaction was not an outright gift. In all the circumstances, however, in my judgment, given the potential consequences of the transaction and the value of the balances when compared with the remainder of Jean’s estate, the necessary standard of capacity does not fall far short of that required for testamentary capacity, including the most recent developments of the law in that regard.

Finally, at common law, the burden of proving lack of mental capacity lies on the person alleging it. To put the matter another way, every adult is presumed to have mental capacity to make the full range of lifetime decisions until the reverse is proved. Section 1(2) Mental Capacity Act 2005 which came into force after the decision which is under consideration in this case, put the presumption of mental capacity on a statutory footing. This evidential burden may shift from a claimant to the defendant if a prima facie case of lack of capacity is established: Williams v Williams [2003] WTLR 1371 at 1383.

Miss Rich on behalf of the Claimants submits that the Claimants have discharged the burden of showing a prima facie case of lack of capacity and that accordingly, the positive burden of proving that Jean had capacity shifted to Lucrecia. Mr Waterworth on the other hand, submitted that the Claimants had not advanced a case which was sufficient to cause the evidential burden to shift and described the exercise as sterile in this case. He also submitted that what was necessary was for the Claimants to make out a case that Jean lacked capacity to a sufficient degree to call into question the validity of the transaction in question. He said that it was not enough to bring capacity into question generally. He emphasised that the lack of capacity must be material and relate to the transfer of the Credit Suisse accounts into joint names. In my judgment, this is inevitably correct. However, evidence as to a person’s mental capacity both before and shortly after the transaction in question may well shed light on that person’s capacity at the relevant time.

In the light of the fact that Lucrecia was Jean’s spouse, the transfer of the funds in Jean’s Credit Suisse accounts into joint names with Lucrecia is presumed to have been a gift. That gift will be invalid if it were procured by undue influence. The law in relation to undue influence is comprehensively discussed in the speeches in the House of Lords in Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773. Lewison J summarised the principles relevant to the facts in Thompson v Foy [2009] EWHC 1076 (Ch) in the following way at paragraph 99:

“i)

The objective of the doctrine of undue influence is to ensure that the influence of one person (“the donee”) over another (“the donor”) is not abused;

ii)

If the donor intends to enter into a transaction, but the intention was produced by means which lead to the conclusion that the intention thus procured ought not fairly to be treated as the expression of the donor’s free will, the law will not permit the transaction to stand;

iii)

Broadly, there are two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. The second form arises out of a relationship between two person where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage;

iv)

The principle is not confined to abuse of trust or confidence. It also extends to the exploitation of the vulnerable;

v)

Disadvantage to the donor is not a necessary ingredient of undue influence. However, it may have an evidential value, because it is relevant to the question whether any allegation of abuse of confidence can property be made, and whether any abuse actually occurred;

vi)

Whether a transaction has been brought about by undue influence is a question of fact;

vii)

The legal burden of provision undue influence rests on the person alleging it. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relation, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case;

viii)

If the claimant proves (a) that the donor placed trust and confidence in the donee or that the donee acquired ascendancy over the donor, and (b) that the transaction calls out for explanation, the claimant has discharged an evidential burden, which will also enable an inference of undue influence to be drawn, and thus satisfy the legal burden, unless the donee produces evidence to counter the inference which would otherwise be drawn;

ix)

This is simply a question of evidence and proof. At the end of the day, after trial, there will either be proof of undue influence or that proof will fail and it will be found that there is no undue influence. In the former case, whatever the relationship between the parties and however the influence was exerted, there will have been found to have been an actual case of undue influence. In the latter there will be none.

x)

Proof that the donor received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a donor a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact, to be decided having regard to all the evidence in the case;

xi)

The nature of the advice required is that someone free from the taint of undue influence should put before the donor the nature and consequences of the proposed transaction. It is not necessary for the adviser to recommend the transaction. An adult of competent mind is entitled to enter into a financially unwise transaction if he or she wants to.`’

Lewison J went on at paragraphs 100 and 101 of his judgment to add some observations of his own:

“100 . .First, although in Etridge Lord Nicholls of Birkenhead described the paradigm case of a relationship where influence is presumed as being one in which the complainant reposed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, I do not consider that this description was intended to be exhaustive. To restrict the type of trust and confidence in this way would not be consistent with the authoritative exposition by Lindley LJ in Allcard v Skinner (1887) 36 ChD 145 in which Lindley LJ referred to “cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him.” This very sentence was paraphrased by Lord Nicholls. In addition, when describing the circumstances in which the burden of proof would shift Lord Nicholls used much more general language. Second the requisite trust and confidence can arise in the course of the impugned transaction itself: Turkey v Awadh [2005] 2 P & CR 29. Third although the case (and the textbooks) speak of “presumed undue influence” and “actual undue influence” these are no more than different ways of proving the same thing. In the former case undue influence is proved with the aid of an evidential presumption. In the latter case it must be proved without any such presumption. Fourth, if a relationship of the requisite character is proved, the burden of proof does not shift unless the transaction itself is one that calls for an explanation and is not satisfactorily explained. . . . .

101 Fifth, in order to determine whether a transaction is explicable in terms other than undue influence, it is necessary to look at it in its context and to see what its general nature was and what it was trying to achieve for the parties: Turkey v Awadh . . Sixth, the critical question is whether or not the influence has invaded the free volition of the donor to withstand the influence. The donor may be led but she must not be driven; and her will must be the offspring of her own volition, not a record of someone else’s. There is no undue influence unless the donor if she were free and informed could say “This is not my wish but I must do it”: Drew v Daniel [2005] 2 FCR 365 . . Seventh, it is highly unlikely on the facts that the court would ever be justified in finding that undue influence consisted both of coercion and abuse of trust and confidence. People do not usually trust those who coerce them . . . Eighth, what I must look at is whether Mrs Thompson was caused to enter into the transaction by undue influence; and this necessarily means looking at the situation at the time the impugned transaction was entered into, rather than at subsequent events, save in so far as subsequent events cast light on what was happening before and at the time of the impugned transaction. A transaction into which someone enters of their own free will does not retrospectively become tainted by undue influence merely because the counter-party fails to perform his or her side of the bargain.”

I was also referred to Glanville v Glanville [2002] EWHC 1271 (Ch) decided after the House of Lords decision in Etridge and Simpson v Simpson [1992] FLR 601 which both involved transfers of substantial value from sole to joint names, made by terminally ill husbands in favour of their wives with the effect of excluding the husband’s adult children of an earlier marriage both in relation to the transaction and any later disposition of their estates. In Simpson, the gift was of 80% of the deceased’s estate and in Glanville it was the matrimonial home which was the husband’s only asset of value. Park J accepted Morritt J’s conclusion in Simpson that the husband could be vulnerable to undue influence because of his poor health and dependency on his wife in order to continue to live at home for the remainder of his life.

In closing, Miss Rich also referred me to Goodchild v Bradbury & Anor [2007] WTLR 463 in which the Court of Appeal explored the presumption of undue influence further. That was a case in which the donor had transferred land adjacent to his house to his great-nephew by way of gift. The donor depended upon his great-nephew to be able to continue to live in his own home. The land which had been transferred had development potential and its sale caused the donor detriment by way of a devaluation of his remaining property which was out of proportion to the benefit conferred on the donee. The donor had since become incapable of managing his own affairs but had signed a witness statement in which he said that he did not think that the great-nephew had put him under pressure to make the gift.

The trial judge had held that the donor reposed trust and confidence in the great-nephew who was in a dominant position, that the gift was not explicable on the basis of their relationship or the great-nephew’s marriage and that the gift had caused a substantial reduction in the value of the donor’s property. He nevertheless decided that the gift had not been the product of undue influence as a result of the content of the witness statement.

Applying Hammond v Osborn [2002] WTLR 1125, the Court of Appeal held that the court would interfere with a transaction in circumstances of presumed undue influence on the ground of public policy (rather than on the ground of a wrongful act by the donee) unless it could be shown that the donor had made the transfer after full, free and informed consideration. The requirement of proof that the donor knew and understood what he was doing had not been met. Chadwick LJ explained the issue in the following way at paras [25] to [27]:

“ [25] Hammond v Osborn was a case in which the donee, Mrs Osborn, was given all of the deceased’s investments, an amount equivalent in value to some £395,000. She had not asked for the gift. In the course of his judgment, Sir Martin Nourse said this at para [32]:

“Even if it is correct to say that Mrs Osborn’s conduct was unimpeachable and that there was nothing sinister in it, that would be no answer to an application of the presumption. As Cotton LJ said in Allcard v Skinner, the court does not interfere on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy which requires it to be affirmatively established that the donor’s trust and confidence in the donee has not been betrayed or abused.”

[26] That passage was adopted by Arden LJ in Re Davidge, Jennings v Cairns [2003] WTLR 959,[40]. She said:

“The fact that the conduct of a person exercising influence in unimpeachable is not by itself an answer to a claim in undue influence, though the presumption of undue principle can be rebutted in many ways.”

[27] The circumstances that the donor is vulnerable – in the sense that the relationship between the donor and donee has potential for abuse- and that the gift is one which is not to be explained by the ordinary considerations by which men act lead, as a matter of public policy, as Sir Martin Nourse pointed out in Hammond v Osborn, to the need for the donee to show that the donor really did understand and intend what he was doing. That is why it is necessary to show that the gift was made after full, free and informed consideration. A gift which is made without informed consideration by a person vulnerable to influence, and which he could not have been expected to make if he had been acting in accordance with the ordinary motives which lead men’s actions, needs to be justified on the basis that he donor knew and understood what he was doing.”

I accept Mr Waterworth’s submissions in this regard that there must be influence which has been abused. The influence therefore, must be improper or undue. However, a presumption of undue influence can arise from a relationship of trust and confidence where one person has acquired a measure of ascendancy over the other or one of the parties is vulnerable and reliant and where the transaction is not readily explicable by ordinary motives. In such circumstances, it must be proved that the donor knew and understood what he was doing. The legal burden of proving undue influence lies on the person alleging it but as I have already mentioned, once a relationship of ascendancy and a transaction which calls for explanation because of its very nature or the surrounding circumstances are proved, the onus shifts to the donee to counter the inference of undue influence and prove that the transaction was entered into freely. Whether a transaction has been brought about by undue influence is a question of fact.

The evidence in relation to Jean’s capacity in 2006 and early 2007 comes from a number of sources. Unusually, perhaps, Jean underwent numerous medical mental tests throughout the relevant period, albeit that some were of a rudimentary nature and were not necessarily a direct indicator of executive function. The sheer number of these appear to have stemmed from Jean’s high standards and frustration at his waning memory. In addition, in this regard, I take full account of the lay witnesses who observed Jean, particularly those who saw him in late 2006 and early 2007.

It was accepted that Jean was suffering from cerebrovascular cognitive impairment although the experts did not agree on the extent to which it may have affected his mental capacity. However, the totality of the evidence was finely balanced and even the Claimants in their written and oral closing accepted that this may reasonably be described as a borderline case. In my judgment, whether in fact the Claimants have done enough to put forward a prima facie case of lack of capacity, which shifts the burden to Lucrecia to prove that Jean had capacity, is indeed borderline. In any event, in all the circumstances, even if the burden has shifted, having considered the totality of the evidence, I am satisfied that on the balance of probabilities, Lucrecia has proved that Jean had the requisite capacity in relation to the transaction.

In particular in this regard, I place reliance upon:

In the light of such evidence, I am satisfied that on the balance of probabilities, Jean had sufficient mental capability to understand the nature of the transaction regarding the Credit Suisse accounts and its effect, understand the extent of the property to which the transaction related and the effect which it would have upon his children who might hope to benefit on his death. I also satisfied therefore, that he did not lack sufficient decision making powers in late 2006 and early January 2007.

It was alleged that the undue influence in this case arose from the very nature of the relationship between husband and wife and his illness and dependency upon her. I have found that Jean was increasingly dependant upon Lucrecia towards the end of 2006 and that she had started to assist him with his paperwork. By late October 2006, it had been appreciated that Jean would not be able to travel independently of Lucrecia again and the evidence also shows that he was vulnerable, his mood was low and at times he had absences.

However, given the evidence in relation to the nature of Jean and Lucrecia’s marriage, in which it was accepted by all that Jean led and Lucrecia followed on, that she was deferential to him and even in late 2006 and early 2007, he made the decisions and as Mr Kennedy put it, had the final word, his character and temperament which was dominant and opinionated even in the later periods of his life, on balance and taking into account his dependence, the fact that Lucrecia had begun to take on the burden of Jean’s financial affairs and that numerous witnesses described him as more docile, in my judgment, the facts do not support a finding of ascendancy by Lucrecia over Jean.

In this regard, in addition to the totality of the evidence, I rely in particular upon the evidence of Mr Tozer and Mr Dewhurst, Mr Kennedy and M. Blanco, none of whom paint a picture even in late 2006, of a man who did not know his mind and act upon it. Both the evidence of Mr Kennedy in relation to the meeting at his office in early January 2007 and the evidence of M. Blanco in relation to the December 2006 meeting at which the creation of the joint accounts was discussed are completely inconsistent with a finding that as a result of his waning health and dependency, Lucrecia was in the ascendant.

Even if I am wrong and Lucrecia had gained an ascendancy over Jean in late 2006, as both Chadwick LJ and Lewison J explain, the burden of proof would not shift to Lucrecia to prove that Jean knew and understood what he was doing unless the transaction itself was one which called for explanation and had not been satisfactorily explained.

In this case, as a number of the witnesses put it, instead of being a transaction which needed explanation it was one which they were surprised had not happened before. Jean had granted Lucrecia a power of attorney over the Credit Suisse accounts prior to his heart surgery and in my judgment, the transfer into joint names was a natural step to take in order to make arrangements for their old age. As Laurent put it in cross-examination, the parties were before the court because Jean had died so soon thereafter, not because of the transfer instructions themselves. In this regard, I also place reliance upon the fact that the transaction is naturally explained in the light of Jean’s attitude towards the payment of tax and his belief that he should give away his estate without the need for a will. This is consistent with his own explanation recorded by Dr. Hilton. It is also consistent with the fact that he had already given substantial assistance to his children and was not bound by any system of forced heirship.

Even if I am wrong and Lucrecia was in the ascendancy and the transaction is one which in the circumstances, requires explanation, I am satisfied that it has been proved that Jean knew and understood what he was doing when he instructed M. Blanco to set up the new joint accounts and transfer his Credit Suisse balances to those accounts. In this regard, I rely upon the unequivocal evidence of M. Blanco himself. He stated that Jean fully understood what he was doing, initiated the discussion on the topic of succession and protecting Lucrecia for the future and fully understood implications of what he was doing and the explanations given in relation to the effect which a joint account would have both upon Lucrecia and the rest of his family were he to die. As I mentioned when considering whether Jean had sufficient mental capacity to make the transaction, M. Blanco even records that Jean was aware that the effect of the transfer might be to disinherit his children and fully understood what he was doing and that they discussed that matter. In the light of such evidence, in my judgment, even if the evidential burden had shifted to Lucrecia, it would have been satisfied.

As Arden LJ noted in Re Davidge, Jennings v Cairns [2003] WTLR 959, although the conduct of a person exercising influence is unimpeachable is not by itself an answer to a claim in undue influence, the presumption can be rebutted in many ways. If it were necessary, therefore, in addition to M. Blanco’s unequivocal evidence, I also would rely upon the totality of the evidence in this matter. In particular, the only evidence of any kind of manipulation by Lucrecia was given by Sophie when she said that she got what she wanted by being kind. Furthermore, M. Blanco’s evidence about the meeting in December 2006 is contrary to any suggestion of influence. He was clear that Lucrecia did not interfere, something which was also noted by Mr Kennedy even in January 2007. He also noted that she was present because Jean had told him that he wanted her there. This is consistent with the evidence given by Mr Tozer and Lucrecia that Jean was teaching her about their financial affairs, something which was natural given his state of health. The implication that the transfer was a quid pro quo for Lucrecia’s travelling wings having been clipped, in my judgment, had no real basis. It was accepted by the Claimants that Lucrecia behaved as a proper and dutiful wife.

Furthermore, as Lewison J also points out, in order to establish undue influence it is necessary to be able to show that the victim if free would have said that “this is not my wish but I must do it.” In my judgment, there is no evidence in this case upon which to base such a conclusion in relation to Jean and all the matters to which I have already referred point in the other direction.

Lastly, it is necessary to consider whether Jean was unduly influenced specifically in relation to the transfer which was effected by him in late December 2006 and early January 2007. Although his condition and the behaviour of Lucrecia towards him in February 2007 and thereafter, may cast light on what may have been the situation at the relevant time, such conduct is not relevant in itself. In any event, in this case, in my judgment, the Claimants’ evidence that Lucrecia may have called Jean her baby in February 2007 is wholly insufficient to base a claim in undue influence.

In all therefore, I reject the Claimants’ claim both in relation to undue influence and also in relation to lack of capacity.