Ferneley v Napier & Ors

This is a probate action in which the principal question is whether or not the Defendants have suppressed a validly executed will. If they have not then there may be an intestacy. If they have, and if the contents of that will can be sufficiently determined, then I am invited to grant a probate of that will notwithstanding that no copy of it exists. The Claimant is, or claims to be, the lover of the deceased, Charles Napier. I say “claims to be” because the family dispute the depth of her relationship with Charles. She claims that she was. The First Defendant (Stephen) is Charles’ son; the Second Defendant (Catherine) is his daughter. The Third Defendant (Derrick) is Charles’ brother.

For the purposes of what follows it will be useful to start with an outline of the parties’ respective cases. Charles died of cancer in a hospice in Esher on 16^th November 2008. He had recently bought a house on the Isle of Wight to which he had intended to move but into which he had not yet moved (Toby Cottage). At the date of his death, the family did not know for certain whether or not he had left a will. On 19^th November Derrick, Derrick’s then girlfriend (Susan Coben), Stephen and Stephen’s wife Fiona all went to Toby Cottage to look for a will or other relevant documents. Charles’ effects were still in a range of boxes and other storage mechanisms. They went through them trying to find a will.

What happened next is the subject of the central dispute in this case. An electrician called Steve McQuaid was working in the house at the time. He claims that he heard someone (probably Stephen) announce that he had “found it”, and that a will was then read out. Mr McQuaid was able to recall a lot of the detail of what he then overheard. For the purposes of this outline the most important point is that the Claimant was given the residue (which is the bulk of the estate including Toby Cottage). The Claimant says later that Derrick rang her and reported that they had found “two wills”. Susan Coben, whose relationship with Derrick broke up soon after that event, supports the case that a signed will was found. The Defendants dispute that. They accept that the four individuals named went to the cottage to look for testamentary and other documents; they accept that they went through various boxes and when a relevant document was found it was read out; and they accept that they found an unsigned will bearing a date of 2002 in a briefcase. They also accept that this document was read out, or at least part of it was. This document, further, gives the residue to a former mistress, namely Terry Hayden. It was in any event unsigned and therefore not valid as a will. They deny that a signed will was found.

That is the core of the dispute, but there is some surrounding detail which I will have to consider in due course. That account will suffice for present purposes.

No one is seeking to have this will admitted to probate as such, but it is necessary to set out the terms of this will because of the evidence of Mr McQuaid and the family that this document was read out at Toby Cottage. On the factual side it is important to compare the terms of this document with what Mr McQuaid says he heard, and on the legal side it contains terms which Mrs Ferneley says should be admitted to probate if I find in her favour that Charles did leave an executed will which benefited her. Rather than set it out in the body of the judgment it is more convenient to attach its terms in an appendix, to which reference can be made from time to time.

Susan Coben

Stephen McQuaid

Mr Paul White

Mr Michael Angel

She and Charles had had a relationship some years ago, and remained friends. She gave evidence under witness summons, called by the Claimant. Although she was obviously a reluctant witness, when she came to give evidence she was, in my view, mindful of her obligation to give accurate and complete evidence. She was at all times straightforward and credible.

She is currently the partner of Derrick. She was called by the Claimant under a witness summons in order to give evidence in relation to an allegation that she witnessed the disputed will. She denied that she did. I consider her to have been a reliable and conscientious witness and, in particular, I do not consider that her evidence was tainted by any loyalty to Derrick.

Mrs Ferneley was cross-examined for well over a day. She is clearly, and not surprisingly, very emotionally caught up in the events of this case. She feels things very deeply, and is emotionally and intellectually convinced that she should have, in particular, Toby Cottage. Despite attempts to suggest otherwise in this litigation, I am convinced that she had a full and deep relationship with Charles, and that she has been grieving since his death. At least until Charles’ death, she was not in my view an obviously strong person. She has kept diaries of which a small sample was available in the litigation. The diaries show her anxieties. She had clearly familiarised herself with, or reminded herself of, an enormous amount of detail in this case from those diaries, which detail she often had at her fingertips. That enabled her to be a bit more combative in her cross-examination than her demeanour might otherwise suggest she would be. She was a witness who sometimes demonstrated that she could see where a particular answer to a question would take her, and therefore would answer a slightly different one, or try to head off what she thought was the next question. However, I do not think that in the end she was a dishonest witness. She did not come to court to say things which she thought were untrue. I think that sometimes her evidence contained a gloss of wishful thinking but she was, by her own lights, truthful. Of one particular thing, however, I acquit her at this stage. She presented to the court two pieces of paper which she said contained contemporaneous notes of telephone conversations. Their contemporaneity was challenged by Mr Wells for the Defendants, but I find that she told the truth about them. They are not later fabrications.

He is the first Defendant and the son of Charles. Currently he is a Major in the Parachute Regiment. He gave evidence of the relationship between him and his father and of the events of 19^th November. I regret to say that he was from time to time a witness who gave evidence that it is difficult to accept he gave accurately or honestly. He gave some contradictory and surprising evidence about his relationship with his father (which was fractured) and his attempts to renew contacts after many years of breach. He was cross-examined about two text messages that he sent to Ms Coben when he knew she was going to give evidence. It was put to him that those messages were threatening. I do not think that they were threatening, but they did indicate that he wished to talk about the case with her in such terms that suggested that he wanted to try to influence the evidence she gave or at least influence her in not giving evidence which might harm his case. He sought to say that he did not know what evidence she was going to give, but I find that incredible bearing in mind that the year before she had told his solicitors that she was not prepared to sign a witness statement supporting his case because her evidence was to support the Claimant. He sought to say that he wanted to make contact in order to safeguard the health of Ms Coben (because for historical reasons she would be very anxious about giving evidence in court); I do not accept that explanation. His attitude to such matters causes me to view with particular care and reserve his evidence on the facts and matters central to this case.

Derrick is the brother of Charles and the third Defendant. In the witness box he did not strike me as being a sophisticated man, and judging him by what I saw I would not have thought he was the sort of person who would initiate any conspiracy to suppress a will. He presented as a straightforward person, though he gave some curious evidence explaining why it was that he did suggest at one point that Mrs Ferneley might be able to have Toby Cottage. His personal credibility was not much dented in his cross-examination.

She is the second Defendant (having changed her name on marriage). She gave short evidence on the last day. In truth, she did not have very much relevant evidence to give and, so far as she gave relevant evidence, she was a credible witness.

She is Stephen’s wife, but they are now going through the process of a divorce. She was one of the search party at the cottage, and gave limited evidence of what happened on that day, though her recollection seemed less detailed than that of the others. I consider that she was doing the best she could honestly to recall what happened.

In the narrative that follows up to the point where I consider the account of the individual witnesses themselves of the events of and after 19^th November any recitation of fact should be taken as a finding of fact by me unless the contrary appears. The Claimant met the deceased in June 2005 when she started work at Spelthorne Volunteer Bureau. Charles was the manager of Spelthorne Citizens’ Advice Bureau next door. The Claimant says that at the time her marriage was unhappy; her husband Martin was (and is) rather older and very dominant. He seriously diminished her self-esteem. However, she lacked the courage to leave him. It was not until nine months after they met that the Claimant and Charles acknowledged, and expressed to each other, their mutual attraction. Thereafter they commenced a rather closer relationship. They would see each other several times a week. Charles’ planning diary entries for the period suggests that they met only three or four times a month. The Claimant denied that it was that infrequent, and I find that she is correct in that. They saw each other one or two days a week depending on the week. They were nonetheless in contact every day, very often by text message. They took to going out on Charles’ boat together.

The Claimant’s evidence was that they planned a life together. She did not, however, leave her husband and move into the house owned by Charles (a bungalow in Ashford, Surrey). She suggested that it was not really big enough; I do not accept that particular piece of evidence. It was a bungalow in which the deceased’s parents had themselves lived, and although it apparently only had one bedroom I do not find that it was too small for the two of them. She also said that they did not wish to set up home together until they had identified a property which would provide a new home for both of them. Bearing in mind the Claimant’s circumstances, I find this surprising too, but having seen the type of person that the Claimant is, I accept that she might have formed this point of view when others would not.

Mrs Ferneley gave evidence of two occasions in which she said that she and Charles discussed his will. The first was said to have been at the end of April 2007, shortly before he was due to go into hospital for a hip replacement operation. She says that Charles asked her what she would do if he died during his operation. She did not want to talk about that and he said that he meant would she try to keep going along the new course in life which she had adopted when she met him. He asked whether she would want to leave her husband and she replied that she would want to but did not see how she could do it economically. She was then very surprised when Charles said that was good because he had changed his will so that she could leave Martin and continue in a new direction. She said she was stunned and no further conversation took place. I am unable to be sufficiently sure of these protestations, for reasons appearing in the last section of this judgment.

Nothing did go wrong in that operation and their relationship continued. The second occasion on which a will was said to have been mentioned was on 2^nd November 2008 when Charles was in the hospice. They were discussing their life together and she asked him (not in these precise terms) what he would want her to do if they had no more time together. In particular she asked him whether he wanted her to go to Toby Cottage by herself “and try to live the dream alone?” She needed to know whether he wanted her to try. He remarked that legally there would be no problem because he had left everything to her but it would not be easy.

If accepted, these accounts of the two conversations would be strong corroborative evidence for a finding that Charles did leave a will in favour of Mrs Ferneley. Having seen Mrs Ferneley in the witness box and having read certain extracts from her diaries, I think it is plausible that conversations in the emotionally intense terms in which she described them did take place. It is, of itself, also plausible that Charles might speak of leaving things to her in his will. What poses an obstacle to acceptance of this evidence is that there is no reference to it in Mrs Ferneley’s diary entries for the relevant dates. She has records for those two dates and, especially in relation to the latter, the record confirms some of the terms of the conversation that she says they had. There is, however, no hint in either of the diary entries that Charles had said anything about leaving everything (or Toby Cottage) to her in his will. Mrs Ferneley’s explanation for that was that she had to write her diary in oblique terms lest her husband read it and discover the full scope of the relationship between her and Charles. In accordance with that policy, she would never make an entry referring to Charles leaving property to her. The trouble with that piece of evidence is that I do not think that the entries are particularly oblique. They say what they say, and they are not always full, but I do not think that “oblique” is a correct description for them so far as describing her relationship with Charles goes. Particularly in the later period, it seems to me that there was material which would indicate to a spouse who happened to read it that the writer was in a serious relationship with another person. Furthermore, bearing in mind the relationship that Mrs Ferneley had with her diary, her “best friend” (as she put it in the witness box), it is a bit surprising that there is no hint at all of the momentous occasion (which is what she thought it was) when Charles first told her he had left her everything in his will. That omission detracts significantly from the strength of the evidence that Charles had left a will with the bequest that Mrs Ferneley relied on.

Toby Cottage on the Isle of Wight was purchased by the deceased in his sole name on 16^th July 2008. More or less immediately dry rot was discovered and that, amongst other things, prevented Charles and the claimant from moving in together, but in fact Charles had not quite retired by then anyway. Dealing with that rot, and other works, was carried out by Mr White’s firm (Island Treatments), and it was in the context of carrying out that work that Mr McQuaid was at the premises on 19^th November.

Charles and the Claimant had planned to go over to the Isle of Wight on 30^th October to sort out various things at Toby Cottage. However, on 28^th October, concerns arose about Charles’ health and he had to go into a hospice on the next day. He never emerged from either the hospice or the hospital, and died on 16^th November.

During the last few days of Charles’ life the Claimant was at his bedside. She was alone with him when he died. In the preceding weeks Charles had needed assistance in his house; from time to time he was unable to look after himself in practical ways. When he needed urgent assistance in the middle of the night he did not telephone the Claimant; he telephoned Terry Hayden, and on various occasions she went to assist him. By September 2008 he had actually moved in with Terry Hayden and he stayed there for a couple of weeks before moving into the hospice.

Stephen, Catherine and Derrick were on the mainland when Charles died. Stephen and Derrick spoke to each other and arranged that they would go over to the island to check his belongings. In particular it seems they went to check whether he had left a will. So on the morning of 19^th November a party attended at Toby Cottage. The party comprised Stephen, his wife Fiona, Derrick and Derrick’s girlfriend Susan Coben. Mr McQuaid was already there working on the electrical circuit in the house, installing sockets in the lounge. It seems that a radio was playing. Mr McQuaid says that that is probably right – when he had turned on some of the circuits a radio, belonging to someone else, had started playing in the kitchen where it was plugged in. He says the radio was not his; he did not have a radio on with him when he was working. He says he turned it off when the party arrived. Stephen and Derrick dispute that it was turned off. This is advanced as a reason why Mr McQuaid cannot have overheard what he then says he overheard. I find that Mr McQuaid’s evidence is to be accepted on this – in other words he turned the radio off. He said that, whether or not he would have wanted it on, he would have turned it off as a courtesy to the other visitors to the premises.

The search party set about looking through Charles’ documents and effects. They were all in boxes in various of the upstairs rooms, but in particular in a bedroom described on an estate agent’s plan as bedroom 2. Bedroom 2 is a bedroom which is wholly over the connected garage at the end of the building. Mr McQuaid was working in the lounge which is not directly below that bedroom; it is horizontally displaced so as to be under the adjacent bedroom. This positioning goes to whether Mr McQuaid can have overheard what he says he overheard.

There was a dispute as to the construction of the ceilings and floors of the cottage. Mr McQuaid and Mr White both say that there was no separate ceiling to the downstairs of the cottage other than that which was formed directly by the floorboards of the floor above. If one looked up from the lounge one would see exposed beams and the bottom of the floorboards. The Defendants’ case is that there was an additional ceiling layer as well. I find the evidence of Mr McQuaid and Mr White more convincing on this. As people whose jobs involve them noting and working on the structure of buildings, I think they are more likely to have noticed and remembered accurately the construction of this part of the building. Mr White says, and I accept, that this construction was not untypical of various cottages on the Island. Again this goes to the ability of Mr McQuaid to overhear what was happening on the floor above.

From now on it will be convenient to divide the narrative as between the various people who gave evidence.

While he was working downstairs he was able to hear the family moving around upstairs. The family were upstairs. After 20 minutes or half an hour, he heard someone announce that they had found the will. He wasn’t actually listening much at this stage, and he was unable to give any evidence of anything else that he heard going on upstairs up to this point except someone asking where the toilet was. He heard them start to read out the terms of a will. He says he may have heard other things but only started concentrating when the will was read. What particularly attracted his interest was a clause which said that the testator’s children were not receiving anything because they were estranged.

The will was read out by Derrick who said that it had been signed and that there was a witness, or that it was witnessed. Derrick said that it was the final will and testament of Charles Reginald Napier and his address was given. Derrick was to receive £10,000 as executor. Charles’ boat was mentioned – a lock-keeper, or somebody like that, would receive it. Mrs Ferneley was to receive the house and property and pensions. At the end a voice asked whether it was witnessed and signed, and the answer came “Yes”. Witness names were given – he thought there was the name Hitchkins and a Margaret. He got an Ashford address, a north London address and an address in the Milton Keynes area. Because of the time that had elapsed he could not remember the details of the date. There was a request that Charles’ ashes be spread on a birch tree; a tree was to be planted and the ashes spread on the roots in a graveyard where Charles “first met God”. There was £2,000 in a cabinet in the bathroom and a “lady called Terry” was to receive the Kleeneze business. The date of the document was given as 2007.

All that detail was given without reference to his witness statement. He proved his witness statement at the end of his examination-in-chief. That gives another couple of pieces of detail of the conversation. It refers to £2,000 which was to go to a church which he assumed Charles worshipped in, and he wanted to pay the vicar to plant “an ash tree next to a style where he said he first met God.” The property which was to go to Mrs Ferneley included two or three pensions.

After that the two ladies came downstairs. They seemed upset and distraught and they tried to get out of the back door into the garden to get some fresh air. The door was stiff and he opened it for them. Then he went out, feeling a little numb and embarrassed at what he had heard and had a cigarette in his vehicle. He went back in and finished his job as quickly as he could.

After some uncertainty, his view was that the search party was in the bedroom over the garage when Derrick was reading out the will. He claimed he could hear clearly what was being said even though the part he was working in was not directly underneath that bedroom. The nature of the property was such that things could be overheard clearly, and he did hear.

Having finished his work for the day Mr McQuaid left. His route took him past Mr White’s house and he saw the latter’s car in the drive as he passed at about 2.30 pm. On an impulse he pulled in to talk to him. He told him what he had overheard and asked what he should do. Mr White said he should tell Mrs Ferneley what he had heard. When asked why he thought he should tell her he said it was because he knew that Mr White had not been paid for work done and since Mr McQuaid had been paid the sum that was due to him by Mrs Ferneley, he thought she might do the same for Mr White.

He called Mrs Ferneley five or six times that evening before he eventually got hold of her. He told her what he had heard, but she told him that she actually knew because Derrick had already rung and said she would inherit the property but there had been a bad signal which kept breaking up and Derrick had said he would call her back when he was back on the mainland. Mr McQuaid was confirming what Mrs Ferneley already knew. She seemed relieved. In Mrs Ferneley’s evidence to me she told me that she made a note of what she was told in her conversation with Mr McQuaid. I shall deal with that when I deal with the detail of her evidence.

In January 2009 Mrs Ferneley asked Mr McQuaid to write down what had happened at the cottage so that it could be submitted to solicitors. He addressed a letter “To whom it may concern” on 20^th January 2009. His account in that letter reads as follows:

“[Derrick] began to read the will ‘This is the will and final testament of Mr Charles Reginald Napier’. The will was dated some time in 2007. I am sorry I cannot remember the full date. He went on to say that Charles wanted all his worthy belongings, e.g. property, money and three pensions to go to Rowena, £10,000 to his brother as payment as executor of the will, £2,000 [the copy in evidence said “£2,00”, but the original had the extra “0”] to a church and payment towards his ashes being spread over a tree he wished to be planted next to a style where he first met god and his share of the Kleeneze business to go to someone called Terry. It also stated that under no circumstances must any of his wealth go to his estranged children, and that there was a sum of cash in the bottom of the bathroom cabinet. Mr Napier’s brother said that the will had been signed and a lady with the name of Margaret was the witness (sorry I can’t remember the full name.) The brother’s partner and son’s wife came downstairs and appeared very upset by what they had [heard] in the will and went outside to get some fresh air. They were unable to open the back door and asked me to assist.”

He was challenged on discrepancies between this letter and the details he put in his witness statement and ultimately deposed to in his evidence-in-chief. For example, in this letter he was able to provide Charles’ middle name, whereas he had otherwise said he could not remember it. This letter refers to three pensions; his other evidence refers to two or three (and Mrs Ferneley says he reported that there were four). Other points were made. His explanation for the difference was that he was able to supply more detail when he later came to think about the matter because he was sitting down in the context of having to make a formal witness statement rather than writing a letter at the request of Mrs Ferneley. I consider that his explanation of the discrepancies is convincing. I think it is plausible and likely that, when reconstructing events with the assistance of solicitors, even though much more removed from the actual events than the January 2009 letter, more detail would come to him.

I shall make some more findings about the quality of this evidence in due course in this judgment, but for the moment will make the following observation. It may seem implausible that a “will” should be read out by the family in a property, and that a legally untrained person such as Mr McQuaid should first overhear clearly what was being said, second that he should pay attention, and third should remember so much detail. However, I am quite satisfied that the family did read out documents, and that the documents included at least one document in the form of a will (executed or not) because the detail that Mr McQuaid was able to put in his letter of 20^th January coincided with the detail of the document which the family says was read out. There is no way in which he can have found out about that detail unless he was able to hear, and did hear what the family were doing upstairs. The question therefore becomes what was the document that Mr McQuaid heard being read.

Mr White gave evidence of the visit by Mr McQuaid. Mr McQuaid told him what he had overheard at the cottage. He said that Mr McQuaid told him he had overheard a conversation between Charles’ brother and son in which Charles’ will was read and he was aware that under the terms of Charles’ will Mrs Ferneley was going to get all the money, that pretty much everything had been left to her and there was £2,000 in the bathroom cabinet in the house. Charles had said that under no circumstances was it to be left to his children. Mr McQuaid asked Mr White if he should pass the information on to Mrs Ferneley and Mr White said he certainly should. It was in the will and that was what he wanted.

Mr White did not put the visit by Mr McQuaid on quite the same date as Mr McQuaid. However, I am satisfied that there was such a visit and (if it matters) that Mr McQuaid was right in saying that it was on the same day as he heard the conversation. I accept everything that Mr White says about the conversation between him and Mr McQuaid. The significance of this is that it supports the fact that Mr McQuaid overheard something, and that at the time Mr McQuaid thought he had overheard the reading of a will under which Mrs Ferneley took the bulk of the estate. It rebuts any suggestion of later fabrication (though no such suggestion was really made).

Mr Angel was a financial adviser who gave advice to Charles in 2003 and 2008. He had advised Charles on pension arrangements and latterly on investment arrangements. According to his evidence during his later discussions Charles indicated he was very concerned to ensure that in the event of his death Rowena would benefit from the annuity policy under his pensions. He told him that he had made contact with his various pension schemes for Mrs Ferneley to be recognised as his spouse/dependant. He had four pension arrangements. He was quite clear from what he was told by his client that Charles was waiting for Mrs Ferneley to get a divorce and then they would be married. He was also sure that in 2008 Charles expressed his intention to live at his Isle of Wight property with Mrs Ferneley as husband and wife. However, Charles was anxious not to cloud the position on Mrs Ferneley’s divorce by putting any assets in her name before that time. Mr Angel discussed with Charles the fact that any asset in her name would be brought into account in her divorce.

There was at least one, if not more, discussion about wills between the two men. Charles apparently told Mr Angel that he (Charles) had written a will using a do-it-yourself will pack of the sort you get from W H Smith’s. That is likely to have been one of the meetings in 2003. It was Mr Angel’s general practice to advise clients to make a will, and he was sure that he would have said the same to Charles, and that he would have advised him to get a proper solicitor-drawn will. He was entirely confident in his own mind that he and Charles had a conversation about making a will which benefited Mrs Ferneley, though he had no notes which he could produce to prove it and he did not depose to a recollection of actually being told that a will had been made in her favour. He claimed to have had a conversation to the effect that the previous will did not include her, and they discussed taking steps to make sure she benefited in the event of his death.

Mr Angel was a careful and conscientious witness, who did not in any way embellish his evidence. He was able to make clear when he was remembering and when he was reconstructing. I accept his evidence. From this evidence the following significant points emerge:

Ms Hayden and Charles had a relationship as a couple between 1990 and about 1999. In the latter year they moved from that relationship to being just good friends. They obviously remained good friends because she was the person whom he called on a couple of occasions in autumn 2008 when he needed immediate assistance in the early hours of the morning. In his last couple of months she was in effect his primary carer. This was despite the fact that she knew of his relationship with Mrs Ferneley, and she knew that Charles’ idea was for Mrs Ferneley to leave her husband and to move to the Isle of Wight with Charles.

She seemed to remember a conversation with Derrick after Derrick returned from the Isle of Wight in which she was told that they had found some papers. However, Derrick did not tell her that there was a will under which she was a recipient. She only found that out (presumably a reference to the draft will) later. She did, however, recall a conversation when she was told that the family were going to give Mrs Ferneley the house. She thinks they changed their mind when they found out about inheritance tax. She was upset to find that she had been made executor under the draft will (or under any will) because she had spent 18 years looking after him. I think that what she meant by this was that she thought it was a bit much being appointed executor in the light of the fact that she had spent the previous 18 years looking after him anyway. She said that her attitude to being an executor would have been different if she had been told that she was a beneficiary but she would still have been upset. Her evidence on this was (understandably) rather confused but she did not say that she was told in the early stages of this matter that a document had been found apparently leaving everything to her, whether draft or otherwise. I think that had she been told that, her attitude to being executor would indeed have been different. She did not give any evidence which supported the evidence of Ms Coben to the effect that she (Ms Hayden) told Ms Coben that she knew of a signed will.

She had obviously known Charles for many years. He was a very, very organised man. She knew that there had “originally” been a will and was able to identify the solicitors at which it was lodged. The solicitor retired and the will can no longer be traced. The will was many years ago – it would have been some time in the early 1990s that Charles had told her that he had made a will. The day after she had heard that Charles had died she spent some time ringing round solicitors in the Staines/Ashford/Feltham areas to see if any of those solicitors had Charles’ will; she described this as a distraction exercise. It was an unsatisfactory exercise, and she probably did not ring every one of them. Charles had at one stage, when they first got together, shown her where he kept his will in the bungalow. This was presumably before he lodged it with solicitors. She would have been very surprised if Charles had died without leaving a will.

Ms Hayden’s evidence was, entirely understandably, not clear in a lot of the detail. However, it painted a significant picture of Charles being a very organised man and I find that her evidence that she was told that Charles had made a will in the early 1990s was true and accurate. Charles did tell her that. Her evidence on this was strikingly clear. I also find that Derrick did not ring her and tell her that she had apparently got the bulk of Charles’ estate under his will, as Derrick says she did. I think that she would have remembered, and it would have softened the blow of her being appointed executor.

He says that after Charles’ death he agreed with Derrick that they should go to Toby Cottage to search through Charles’ belongings. Fiona and Ms Coben went with them. They arrived at around 11.00 am. Mr McQuaid was there doing some work in the kitchen. He thought he was moving some plugs. Charles’ belongings were in boxes. There were boxes upstairs and some of them were marked “office”. They started to look through them. They probably looked in about 20 boxes and the state of the paperwork reflected the fact that Charles had been “particularly meticulous with his affairs”. They found many different types of document and each time one of them found a document which looked important they would read it out loud. A number of documents were read out in this way; they were there for about 1½ to 2 hours altogether.

While they were looking through boxes, Stephen found a briefcase which was locked. He broke the code and opened the briefcase. Inside were Charles’ glasses and a draft will, which he says was a document in the terms which are shown in the annex to this judgment. He handed it to Derrick and Derrick started to read it out loud. Derrick stopped when he came to the clause relating to the estrangement of children and passed it to Stephen to look at and read himself. Stephen was upset but read it out loud. Then he passed it to Derrick who read out the rest of the document. After Derrick had read out that document Fiona and Sue said they were going downstairs to go out into the garden. Ms Coben thought that he (Stephen) would be a bit upset so she took Fiona downstairs. They were only down there a few minutes during which time Derrick and Stephen continued to look through the boxes.

After about two hours the searching stopped and they went off to a pub for lunch.

Stephen confirmed that no second will was found at the property, and no other will of Charles’ had been found before or since. He denies that there was any mention of three pensions or any mention of a stash of cash in the bathroom cabinet or of anyone named Margaret. No cash was found in the bathroom cabinet or anywhere else.

He described how the search party went to Toby Cottage. Just before they arrived he received a telephone call from Mrs Ferneley. He did not give any specific evidence about this actual call, but said it was one of a series of calls which she had made to him to check that he was all right and they talked about how they both loved Charles. They arrived at Toby Cottage about 11.00 am. There was an electrician working in the kitchen with the radio on. He looked round the house specifically looking for documents relating to his brother’s financial affairs. The documents, like the other belongings, were in boxes. They found several boxes marked “office”. He, Stephen, Fiona and Ms Coben went through the boxes. Whenever they found an important document, such as paperwork on Charles’ pension, or boat, they would read it out loud so that each knew what the document was and what it said. They read out between 20 and 30 documents that day. The documents were well-organised. As well as looking for a will, Derrick wanted to see if there were any documents relating to a trust which had been intended for Peter, their brother.

In one of the boxes they found a locked briefcase. Stephen broke the code, and inside there was a white envelope which contained the draft will. He passed it to Derrick and he read it out. He said he did not read out all of the draft will word for word; some parts he summarised and other parts he read out in full. When he got to the part of the draft will referring to Stephen and Catherine and the estrangement, he handed it to Stephen to read for himself. When Stephen had read it Fiona and Ms Coben went downstairs into the garden to get some fresh air.

At the time he noticed that the draft will was not signed but did not appreciate the significance of it. He had a “hunch” that the draft will was probably not valid but he did not know for sure. They did not find a properly signed will anywhere in the cottage on that day (or at all).

Having spent the morning looking through the paperwork the search party went off to lunch at a local pub. Whilst there he rang Mrs Ferneley on his mobile phone as he had previously told her he would keep her informed. The reception was poor. He explained that they had found an unsigned will under which everything went to Terry. He also suggested that his initial reaction was that perhaps there was a second will because the one they had found was unsigned. He did not say that they had found two wills. Nor did he say that they had found a will leaving everything to Mrs Ferneley. However, he had understood from his brother that Mrs Ferneley was unhappy in her marriage and did consider that if she was getting divorced it might be easier for her to move out if she had somewhere else to live. He therefore suggested that she might be able to have Toby Cottage. However, he went on to say that other matters needed to be addressed such as whether provision should be made for Stephen, Catherine and Terry Hayden. He also wanted to ensure that provision had been made for his brother Peter. However, the relevant paragraph in his witness statement says that he suffers from a form of dyslexia which causes him to get some words muddled up, and as a result Mrs Ferneley may have misunderstood what he was trying to tell her.

That was his evidence-in-chief. In cross-examination he claimed to have a fair amount of recollection about the telephone call before they went to the cottage. However, its content was no different from that set out above. He elaborated on why it was that he said to Mrs Ferneley, after they had searched the cottage, that he would have liked her to have the cottage. He considered himself the head of the family, and as head of the family, if any decisions came to him, that was his wish. He believed that if the draft will had been signed it would not have been up to him to decide whether she could have the cottage. When the draft will went to the solicitors, the solicitors told him that, as head of the family, he had no right to do anything. He denied saying to Mrs Ferneley that she had got “too much”. In response to my questions he elaborated on his state of mind when he had the conversation after the search of the cottage. He had not gathered from his brother that his brother and Mrs Ferneley were as close as Mrs Ferneley now says that they were. He thought that they were just good friends, and if they had been as close as she said then he thought she ought to have been, and would have been caring for him more than she did in the period before he went into the hospice and hospital. He was therefore surprised at her protestations of love for Charles after he had died. However, having read some of Mr Angel’s papers he came to accept that their relationship was closer. There were a number of people who had touched Charles’ life, and he wanted to help everybody that was concerned with his brother out of his brother’s estate. That was said to explain why it was that he gave the indication that she might be able to have the cottage.

Ms Coben was one of the search party at the cottage. She was at the time in a relationship with Derrick. A month later that relationship came to an end. She described arriving at the property and how they found boxes in the various rooms. She saw that there was an electrician there and he had a radio on in the kitchen. It seemed to her as though all Charles’ paperwork and personal things were upstairs; he had written on boxes to identify what they contained. Derrick told them to look through the boxes and bring out anything that looked important. They went through many boxes. She had gone into a different room to check what was in there but had found nothing of interest. She therefore went back to the room that Derrick and the others were in and was told they had found something. It was an unsigned will and Derrick read it out. She confirmed that that unsigned will was the document that I have described above. The reaction from everyone was that it was not signed and they should carry on looking. Shortly afterwards another will was found – she is not sure by whom but thought it was by Derrick. Again, Derrick read that will out.

Derrick said that the will this time had been signed by Charles. Nothing was mentioned about the witnesses at this time, but she remembered specifically that Derrick said he was the executor and was left a £10,000-legacy. Charles’ boat was mentioned and there were legacies to the church and a cancer charity. Whereas in the unsigned will everything else had been left to Terry Hayden, it was now left to Mrs Ferneley. It also contained a reference to scattering ashes at an oak tree somewhere in Arundel, and referred to Charles not wanting his estranged children to receive anything. This last point upset her as she was divorced with children herself and she wanted to go down to get some fresh air. She did so with Fiona and the electrician (obviously Mr McQuaid) let them out. Fiona too was shocked.

They then left the cottage and went to a pub to find lunch. Derrick went outside to the car park to use his mobile phone. He came back saying that the line was bad. There was some discussion as to what they had found and Stephen was extremely upset and angry. His anger was directed towards his father more than anything. She did not elaborate on what she meant in this context by “what they had found”, and was not cross-examined on it. She certainly did not say that a plot was hatched to suppress any signed will.

At some later date Terry Hayden told her she knew about the signed will. Her witness statement also claimed that she (Ms Coben) had seen it later in Derrick’s house and was able to read it herself; Derrick had left it out. There were three signatures on the will. One was Charles’ (or at least there was a signature next to his name). She could not remember the other signatures but one had an Ashford address. The final signature was said to be Mrs Barbara McMahon.

She was pressed in cross-examination on the circumstances of this later viewing of the allegedly signed will. Her evidence fluctuated enormously in the manner I have described above. Her account of what she saw on this last occasion is so confused that I can place little reliance upon it. In the circumstances, of more significance is her account of what happened at the house, which I shall have to measure against the accounts of others.

Her evidence of the visit to Toby Cottage starts with evidence which is the same as everyone else’s – they found everything boxed up there and had a look around. They were marked according to where they needed to go. Everything appeared to be well organised and labelled. They all went upstairs and found boxes marked “office” in the bedroom over the garage. They looked through a number of the boxes. She and Ms Coben then went into the adjacent bedroom to look through some more boxes, leaving Derrick and Stephen in the first bedroom. They found some more boxes labelled “office” which they opened and found contained house deeds. They went back to the first bedroom, and Derrick had found a draft will in an envelope and wanted to read it out to them. He started to read it out. Before he got to “the part mentioning Catherine and Steve” he stopped and handed the will to Steve to read himself. He did not want to read this part out loud as he thought it might upset Steve. Steve was visibly upset after reading the reference to estrangement. She asked him if he was all right and, to give him space to digest what he had read, she and Ms Coben went downstairs and out into the garden. They stayed out there for about twenty minutes. Then they went back in and they all left for lunch. She did not elaborate on what happened at the pub, and was not cross-examined about it.

It should be noted that she gives evidence of the reading of one document only. She does not refer to any other document being read out loud. Furthermore, she did not give evidence of any part of the draft will being read out after the estrangement clause; indeed she did not give evidence that that was read out. She denied going through any of the documents herself because she did not consider it was her place. Her evidence differs materially from Ms Coben’s in that the latter says that two wills were read out, and that she and Mrs Napier did not go out into the garden until after the second one had been read.

Mrs Napier did not strike me as being the sort of person who would be paying a lot of attention to the detail of what was going on. That is not a criticism; it is an observation. Now that she is distancing herself from her husband, I think it less likely that details of the day would stick in her mind. Nonetheless, it is striking that she gives no evidence of the finding of an actual will; one would have thought that that would stick in her mind if she was there when it was found, and according to Ms Coben’s evidence she ought to have been. That is something to which I must pay particularly careful attention, since I find Mrs Napier to be a completely honest witness.

On 17^th November, the day after Charles’ death, she went to the hospice to meet staff and family. She met Derrick, Ms Coben, Stephen and Fiona Napier. Derrick said that he was Charles’ executor so it was now a family matter. He asked if she knew where Charles’ will was and she said that she did not. He said he would be going to the Isle of Wight the following weekend and would look in the cottage; Charles had shown him where he kept his will at the bungalow, so he had some idea of where to look.

As the other witnesses said, the visit took place before the following weekend. It was on the 19^th. Mrs Ferneley’s telephone records show that she called Derrick at 10.50 am. For most of her evidence she sought to maintain that this was a conversation which took place after the search party had searched the cottage and in which she was told the results of the search by Derrick. I find that she is mistaken in that. I accept the evidence of the other witnesses that the search took place later than 10.50. This was a telephone call which preceded the search. That does not matter much in the overall context of this case, but it does demonstrate a somewhat dogged attempt by Mrs Ferneley to make her evidence fit what she believed documents showed.

However, whenever it took place, she gave evidence of a telephone call. Her witness statement said that Derrick told them that they were on the island and they had found the will, “well, two wills actually” (that is what he is alleged to have said). He said that Mrs Ferneley got the cottage, which they were happy with, but there were things that he wanted to discuss with her because she got “too much” and other people, including Terry, Stephen and Catherine, got nothing. It was a homemade will and not one made through a solicitor, and he wanted a meeting to discuss a fairer allocation of Charles’ estate. He also told her of the funeral arrangements. Later that day he sent her a text message saying he would ring her the next day in order to arrange a meeting.

Mrs Ferneley says that she made a contemporaneous note at the time of the conversation, that is to say a note on which she scribbled things during the conversation. It is still available. It is a slightly curiously-shaped document because the relevant notes are made on the bottom half or third of a larger piece of paper and she has cut away the top part in a very irregular line with a curious flag-shaped piece on the right. She says that that was to exclude irrelevant material. I was told very firmly in opening, on instructions, that Mrs Ferneley had thrown away the top part. It was never produced during the main body of the trial. However, on the last day, immediately at the beginning of final speeches, I was told that it had been found. Mrs Ferneley had apparently found it a couple of nights before, but it was not produced to anyone until the morning of the last day. This particular incident is a curious one and does not help Mrs Ferneley’s credibility. However, I was allowed to see the top part of the note, and it clearly fitted the bottom half. The material on it is indeed irrelevant to the issues in this action, save that nothing in the contents of that top part apparently dents the assertion that the bottom part was a contemporaneous note.

The note is not an easy one to read, because it is written in small difficult handwriting and in faint pencil, and individual elements are scattered around the paper in an almost random manner. It is said to contain notes of the conversation with Derrick and a later conversation with Mr McQuaid. In the centre it contains the date “Nov 19^th” written in biro; that date was obviously written later, as Mrs Ferneley concedes. However, she says that the rest of the note was written at the time. On the left-hand side of the page there are some notes about the funeral (time, place, a reference to flowers and so on); that is all said to have come from Derrick. Immediately to the right of that are four names, three of them with ticks against them, which are said to be people whom Mrs Ferneley intended to ring about the funeral arrangements. In the middle there is a short reference to where the wake was to take place (Wetherspoons in Godalming) – again this was said to have been provided by Derrick. Immediately below that and to the left there is a note of something that came from Mr McQuaid and with which I will deal later. Immediately to the right of that there is the word “will” circled, below that the words “not will thro’ solicitor” boxed, and below that the word “Peter” (Charles and Derrick had a brother called Peter who was disabled), and below that the words “2 wills”. On the right-hand side of the note, separated by a squiggly line, are a couple of “sections” divided by lines creating irregular boxes. In the top box is the following:

“Left Terry Kleeneze business

Pwr [power] supply >> alarm

Legal things”

I pause to observe that the second of those is written in a smaller handwriting than the first two and gives the impression that it was placed there at a different point in time from the first and third. Then below those items was a bullet point against each of the following points:

•

“nthing [nothing] to Terry

•

Want > hv [have] hse [house],

•

Pension a/cs”

The second of those boxes contains what Mrs Ferneley says is a note of what Derrick said to her; the upper box contains what she says was part of what Mr McQuaid said to her in a later conversation.

Mrs Ferneley says that Mr McQuaid telephoned her later in the day to let her know that “they” had found the will and he thought he had better phone just in case they claimed they hadn’t. She told him it was all right, Derrick had phoned earlier and told her. Mr McQuaid ran through what he had heard. Her witness statement described him talking about a gift of £10,000 to Derrick, £2,000 to a charity, £2,000 to a church and £22,000 cash in a bathroom cabinet.

Mrs Ferneley claimed to have noted these things on the same piece of paper as the one on which she claims to have made notes of the conversation with Derrick. There is a marked-off box on the bottom of that piece of paper in which the following lines occur:

“£10k > Derrick Children hv [have] nthing [nothing]

£2k > Ch all 4 pensions > me

£2k > charity - cash ewhere £22k”

Between the two entries on the first line she has written the words “- my estrngd”; the expanded word is obviously intended to be estranged. The presentation of that part of the note on the page makes it look as though she wrote it in after the entry immediately to the right (“children hv nthing”).

Farther up the page, to the left of where she has written “will”, the following appears laid out in this fashion:

“(ashes spread)

Copper beech

Tree planted

Spot where 1^st met God”

To the left of the reference to the “£10k > Derrick”, and to the left of a vertical line marking a box on the page, she has written “ething [everything] > me”.

The contemporaneous quality of this note was challenged. Mr Wells submitted, and put, that it was in fact made on a date after 19^th November (pointing out that the date was, on Mrs Ferneley’s own admission, written after the note was created), and was either a deliberate fabrication or was jottings of something which was not her recollection of the events of the day. I find that Mr Wells’ submission fails. I find that most of the entries were notes that she made on the day as she had conversations with the two gentlemen in question and not later fabrications. In so finding I rely on the following:

I say “most” of the notes were made at the time, because there are indications that one or two aspects of them were made subsequently. Thus the names of the four people whom she intended to contact, and ticks by three of their names, must have been written after the event. The fact that they are written by the details of the funeral suggests that the funeral details came first. She would have needed to write down those funeral details when given them over the phone by Derrick (as I find she was), and this is where she wrote them. I also think it likely that one or two bits of the notes were squashed in afterwards, perhaps when she reflected on the note. Thus the “my estranged” appearing before the reference to the children looks to have been written afterwards and squashed in between the two entries on the same line. However, those points do not detract from the fact that the bulk of the note was written as she said it was, in my view.

She also made a reference to the telephone conversations in her diary entry for 19^th November. In that entry she records some of the things she did earlier in the day. Then she records:

“Cried most of morning. M [Martin, her husband] home. Then Derrick called from Toby. Found will, implication that contest it as I get too much, but bad line. Then Steve McQuaid phoned – had been there when Derrick reading it, so more detail, inc. C wanted ashes scattered under copper beech (to be planted) in churchyard where 1^st met with God. Talked and talked and talked to M but C still dead and [?] still awful.”

She was not cross-examined as to what time of day it was that she made the note, but looking at the other entries it seems likely that it was written at the end of the day or even at the beginning of the next, when she was reflecting back on the matters of the day. It is therefore not as contemporaneous a note as the piece of paper to which I have referred above. It was, however, a result of perhaps a little more reflection.

Her diary for 20^th Thursday contains another short reference to wills. It says:

“Steve [i.e. Stephen Napier] phoned – ‘unsigned’ will – copy ?”

In her witness statement she amplified on this conversation. She says she called Stephen and Stephen had said that Derrick’s phone battery had gone flat. Even though the will (now one of them) was unsigned, they (presumably the family) still wanted her to have the cottage, but she would need to deal with Derrick for the details.

On Friday 21^st she tried to call Derrick again. When he picked up the phone he observed to someone “it’s Rowena” and a woman’s voice in the background urged him not to talk to her, and to send her a text. Derrick put the phone down. This incident is also recorded in her diary where she records the background urging as coming from “Sue”, i.e. Ms Coben. She then received a text from Derrick saying that the unsigned will was at the solicitors’. Her diary records:

“Decided just have to fight for Toby.”

Charles’ funeral was on Monday 1^st December at Guildford Crematorium. At the wake afterwards Mrs Ferneley asked Derrick whether it was all right for her to visit Toby Cottage, and he said yes, of course. She could visit as much as she liked and stay overnight if she wanted, and take anything she liked, but unfortunately she would not be getting Toby Cottage after all. When she asked why, Derrick said that the will was unsigned so she could not have the cottage after all. It was up to him as the new head of the family to make decisions and he took all the family interests into account. Peter, Stephen and Catherine should get something and Terry should have enough to “have a good holiday”. He would make sure that she got enough to leave her husband and buy a small flat, but she would have to get a proper full-time job. She was young and attractive enough to find someone else, but she should pick someone her own age. There were other parts of her evidence of this conversation which I do not need to record, or make findings about, in this judgment.

Her diary records the funeral events thus:

“Funeral – [certain individuals] all there. Sat at front … I’m not getting Toby but can visit it meantime…

Basically giving up on Toby now would be premature and an insult to Charles, I need to visit SOON & see how I feel – whether I still love it and want to be there or whether it would be a mistake without C. And negotiate my premium bonds, make up with M etc (or, as I said to Mum, M might even die and make it all possible). Trouble is, I am still in fighting-for-Toby-for-us mode and it masks C being dead.

But I just don’t want to stay here for the rest of my life. It’s definitely time for a change – just not the one I was planning.”

Her diary entry for 2^nd December records:

“Talked to M re fighting Derrick’s splitting of estate … Derrick is not bloody stamping on my dream without a fight.”

On 3^rd December she had another conversation with Mr McQuaid. She had rung him and left a message on his answerphone to let him know she would not be getting the cottage; she was making contact with him about keys. He phoned her back when he got in from work and asked why she wasn’t getting the cottage. She said it was apparently because the will was not signed. He said that was not true; when Derrick had read the will out one of the others had said “Is it signed?” and Derrick had said “Yes, it’s signed”, quoting “signed by Charles [R] Napier” (she said that Steve said he had not caught the middle name) and the name of some witnesses. He recalled hearing the name “Margaret” and thought a surname was there, possibly “Hitchkins”. He was particularly struck by the fact that the witnesses lived some way away from each other. He was pretty certain that one witness came from Ashford, Surrey.

Her diary entry for 3^rd December records this event thus:

“Phoned solicitors etc. inc. Derrick’s, then Steve McQuaid – and discovered from latter that will he heard read was signed & witnessed & has mysteriously disappeared!”

She claims to have kept a manuscript note of this conversation too, on a separate piece of paper. Again the original was made available at the hearing. The top two-thirds related to irrelevant matters. Just over two-thirds of the way down, there is “Steve 3.12.2008” in a box. To the right of that there are words which coincide with the detail of witnesses (so far as supplied) that I have referred to. The words “Ashford, Surrey”, MK [Milton Keynes], Watf [Watford], N9/E19, Hitchkins all appear. References to Watford and Milton Keynes appear lower down the page to the right of the words “signed by Charles Napier, witness Margaret Hitchkins 2007”. Below that to the left are the words “call as witness”, and to the left of that, somewhat squashed in, the words “is it sgnd [signed] yes it’s sgn”. Below that are the words “£10 > brother”. On the right-hand side of the page are the words “3 distant addresses”.

At the bottom of the piece of paper are the following words:

“all his property and belongings

Probate – letter – 6 months

Caveat £15 > local probate office

Stops anything being released

Keep informed.”

[I have expanded some abbreviations].

In the upper left-hand corner of this note the following is written in small, somewhat squashed handwriting.

“Bedroom above lounge

Immediately after read

- open back door > get fresh air

- both upset”.

and to the left of that entry there is “£10k”. On the right-hand side of the page is “left all > me”. In the centre at the top are the words “2 will”, but it has been scored out diagonally in two directions several times. Mrs Ferneley sought to explain this by saying that she had written the words as a reminder to her to ask whether there were 2 wills, and having got confirmation she deleted the words. I did not find this convincing, but no alternative suggestion was put, and in particular no sinister connotation was attributed to it.

I have not set out every last bit of detail of the note, but the above is sufficient for present purposes. In the main it certainly looks as though it is capable of being a record of a telephone conversation with Mr McQuaid, and there is really no other plausible explanation for what it might be. It is important corroborative detail for Mr McQuaid’s evidence, because in my view it reflects what he said to her on 3^rd December. I do not think it is a fabrication.

On 3rd December she had two conversations with the solicitor at Penningtons who had, by now, been instructed by Derrick. In the first she is recorded as having described herself as “one of the major beneficiaries under his unsigned will”, asked questions as to whether Penningtons had “searched any solicitors” (presumably for an executed will) and asked how long it would be before Letters of Administration were obtained. She explained that the property had been a dream of hers and meant a lot to her; she thought it would be shared jointly but in fact it was put into Charles’ name because she would be married and would be leaving her husband. Derrick had given her the first option to buy it. In this conversation she made no mention of an executed will in her favour.

In the second conversation she is recorded as having reported that she had spoken to “the electrician” who was surprised that the search party had been unable to find a signed will as he had been in the room next door when they had found a will and read it out. It was dated 2007 and witnessed by two people. Three addresses were given. This conversation must have taken place after the conversation that she noted in the manner referred to above.

Mr Wells for the Defendants accepted that as a matter of principle a will could be proved even if the piece of paper on which it was written could not be produced. It could be proved if its terms and execution were properly demonstrated by acceptable evidence. However, he said that the party seeking to propound such a will must make out his or her case, not on the balance on probabilities, but beyond reasonable doubt. He starts by relying on the speech of Lord Herschell LC in Woodward v Goulstone [1886] 11 App Cas 469 at 475:

“Now I cannot but be alive to the extreme danger of establishing a will merely by parol evidence of its contents. The legislature has endeavoured to safeguard the interests and rights of testators by requiring that the expression of their testamentary intentions shall be authenticated in such a manner as to leave no doubt, if possible, that the Court has before it that which really expresses the will and intention of the testator. It is not enough that it is in his own handwriting; it must, even if in his own handwriting, be authenticated by witnesses who must be present and see the testator sign, and must sign in each other’s presence. But if upon mere loose statements of the recollection of witnesses as to what has been said to them at some time or other, you were to grant probate of, and to establish as the will of the testator, something which no one had ever seen or purported to be able to depose to from recollection, it seems to me that you would be doing that which would be in the highest degree dangerous, and the more so when those statements are statements of witnesses (and one knows how fallible human memory is even when there is no interest to bias it) who have the strongest possible interest in remembering what they remember and in forgetting what they forget. I think, therefore, that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator.”

Mr Wells accepts that this view was not apparently shared by the other members of the judicial committee (they said nothing about it) but he says it is a significant starting point.

In Young v Holloway [1895] P87 at page 91, Sir Francis Jeune P cited Lord Herschell with apparent approval. However, his case did not turn on that point. The question before the President in that case was whether the plaintiff in an action for revocation of an existing grant was bound by the result of a previous action or whether, by virtue of his ignorance of the matters on which he newly relied, he was not bound. On the facts he held that the latter was the case. His remarks about standard of proof were made in the context of considering whether or not the plaintiff’s claims were frivolous. He seems to have held that, notwithstanding the high standard of proof which he held to exist, they were not. In the circumstances I do not think that his apparent views on the standard of proof were part of the ratio of the case. However, his apparent views are obviously entitled to some weight, particularly when combined with the fact they were apparently the views of Lord Herschell as well.

The same view was ostensibly shared by Lindley LJ in Harris v Knight [1890] 15PD 170 at 179 where he said:

“A person who propounds for probate an alleged will, and who is unable to produce it, or any copy or draft of it, or any written evidence of its contents, is bound to prove its contents and its due execution and attestation by evidence which is so clear and satisfactory as to remove, not all possible, but all reasonable doubts on those points.

If he can do this, he is entitled to probate as is shown by the case of Sugden v Lord St Leonards 1PD 154. But it is obvious that any laxity or want of vigilance on the part of the court in a case of this kind would encourage the fabrication of wills, and lead to perjury, which it would be extremely difficult to detect.”

He went on to find that there was no basis for challenging the findings of fact made by the judge below (Butt J) who had found the destroyed will to be proved by oral evidence. He does not debate how and to what extent the evidence fulfils the apparent stringent test which he had referred to in his first paragraph; he merely considers the judge’s findings to be justified.

Lopes LJ, who agreed with Lindley LJ in the result, does not take a point on burden of proof. However, I think it is to be inferred from his judgment that he would not have gone so far as to apply the strict burden of proof ostensibly referred to by Lindley LJ. At pages 183-4 he considers the crucial question of attestation. He concludes that the presumption “omnia rite esse acta” applied in the case, and, while it is not expressed in his judgment, I think it is clear enough that he was implicitly proceeding on a balance of probabilities basis rather than a beyond reasonable doubt basis. Cotton LJ dissented, but interestingly did not do so on the express basis that the highest standard of proof was not fulfilled.

The report in the Law Reports also sets out the judgment of Butt J below. He does not set himself any particular standard of proof, though it is fair to say that he expresses most of his critical findings of fact to be ones as to which he has no doubt. I do not think that one can read into that that he thought he was applying the “beyond reasonable doubt” test; he was merely reflecting the fact that the courts must be particularly careful in making findings about the contents of wills which are not before them, and about the fact of their due execution.

All in all I consider that Harris v Knight is not a case of which the ratio was that it was necessary for the propounder of a missing will to establish his case beyond reasonable doubt. The most that can be said is that one of the three judges expressed that view.

The point was expressly considered by Pearce J in Re Wipperman, deceased [1955] P59. He referred to Woodward v Goulstone; no other authority seems to have been cited to him. At page 66 he said:

“No authority other than the dictum of Lord Herschell has been cited to show that the standard of proof required in the reconstruction of a lost will by parol evidence differs from that in other cases. In my opinion that dictum was not intended to have universal application but only to apply to the facts of that case.

Sugden v Lord St Leonards seems to suggest no such difference. In my view, the standard of proof in such a case as this is the ordinary standard of proof in civil cases, namely a reasonable balance of probabilities.”

The point came up again in Re Yelland, deceased [1975] 119 Sol Jo 562. This is not a full report of that case but it records a reference to Sugden and Woodward v Goulstone and goes on to say:

“… but his Lordship [Oliver J] saw no reason why the accepted standard of proof in civil cases, namely, on the reasonable balance of probabilities, should not apply.”

Mr Wells accepted that there was no authority binding on me which requires that I impose the stricter standard of proof, but he said that I nonetheless should follow the earlier cases not least because of the eminence of the judges who expressed themselves as they did. The two judges who considered the point in the last century did not give reasons for departing from what had been said earlier. I decline to take that course and propose to follow the approach of Pearce J and Oliver J. The earlier cases are indeed not binding on me, and to impose what is effectively the criminal standard of proof would not be justified as a matter of principle. Mr Wells was unable to point to any other area of the civil law in which the criminal standard was imposed, and I can see no reason why the case of a suppressed, lost or destroyed will should be different. The case remains a civil one, and not a criminal one. (I acknowledge that in a civil context the criminal burden of proof applies, or might apply, to some aspects of the contempt jurisdiction, but insofar as that is true that is because of the quasi-criminal nature of the proceedings.)

I suspect that the earlier judges expressed themselves in the way that they did not because they wished to raise the barrier of the standard of proof, but because they wished to reflect the fact that the substitution of parol evidence for the sort of physical evidence which underlies the policy of the Wills Act 1837 provisions requires clear proof, and it is not to be lightly done. To that extent I agree with them and approach the present case in the same way. It is akin to the principle that more serious allegations, such as fraud, require clearer proof – see Hornalv NeubergerProducts Ltd [1957] 1QB 247 and the line of cases stemming from it in which the principle is expressed in different ways. In the present case the high standard which the claimant must satisfy arises not only from the fact that she is seeking to propound a will which, as a piece of paper, has not been produced, but also from the fact that her case involves an allegation of an extremely serious kind against at least some members of Charles’ family, and that latter factor too requires an appropriately strong case to be made out. Mr Rowell did not dispute the application of this principle to this case, so it is not necessary for me to go into the line of cases to which I have just referred. I merely record that I acknowledge that the serious allegations in this case must be fully and properly proved, albeit still to the civil standard of proof.

If the claimant is to succeed she essentially has to establish a conspiracy to suppress a will, and that at least some of the defendants (at least Derrick and Stephen) have lied in the witness box about the search of the house. Those are serious allegations requiring an appropriately high level of proof, albeit still on the balance of probabilities. She must also prove the missing will from oral evidence, which raises its own significant evidential and burden of proof hurdles in line with the cases referred to above. I bear all that in mind in the findings which follow.

The case of the claimant rests on two pillars. The first is the evidence of Mr McQuaid; the second is the evidence of Mrs Ferneley. Mr McQuaid gives evidence of the reading of the will; Mrs Ferneley corroborates that (via what he reported to her) and adds her own evidence of what Derrick said to her after the search which, if accepted, supports her case. She also relies on pre-death indications that a will had been made in her favour. I set out below some of the most significant considerations in weighing that evidence against other factors.

Mr McQuaid’s evidence is striking in its nature. It involves a house in which one can clearly hear words being read out on the floor above; a completely untrained man (in legal terms) being able to understand what was being read out; and then remembering a lot of that detail so that he could write it down a month and a half later and give further evidence about it two years after that. One would naturally approach such evidence with the greatest caution. He did not have the benefit of as many repetitions as Lord St Leonards’ daughter.

However, it turns out that most of the inherent implausibility of that evidence falls away because much of his evidence tallies with the evidence in the documents and in the testimony of the defendants. I have already adverted to this point when I set out the evidence of Mr McQuaid. The relevant defendants all say that the draft will was read out. Despite their scepticism as to whether or not they could have been overheard, they must have been because at the end of January 2009 Mr McQuaid was able to list various items which he says he overheard being read out. This was at a time when the draft will had not been provided to Mrs Ferneley. Most of his narrative coincides with some of the items in the draft will. He cannot have made them up. The relevant defendants themselves say that the draft will was read out. The only sensible conclusion is that, at least so far as the terms coinciding with the draft will are concerned, Mr McQuaid must have overheard and remembered those items from something that was passing above his head. So the implausibility point goes - even if the defendants are correct in their evidence, Mr McQuaid has good hearing and a good memory.

So the question becomes what did he overhear, and has he remembered all the salient details correctly?

Various matters can be said to support the thesis that what he heard was not the draft will:

So far as Mrs Ferneley's evidence is concerned, that itself has two principal limbs. The first is her evidence as to what Charles said about having left a will in her favour; the second is what she says she was told by Derrick after the search.

All that makes or supports a plausible case for saying that what Mr McQuaid heard, and what was read out upstairs, was an executed will. However, each of those main pillars has its problems. Thus, so far as Mr McQuaid's evidence is concerned the following difficulties arise:

Other points were made by Mr Wells. I do not set them all out here, but I have them all in mind.

So far as corroboration from Ms Coben’s evidence is concerned, I am afraid that in the end I can attribute little weight to it. I have referred above to the difficulties that her credibility presents. She gave evidence of two “wills” being read out, but that is not particularly likely. If the draft was found first, as she says, and the executed will later, then it is unlikely that the whole of the executed will would be read out where it coincides with the draft. And if both contain the reference to estrangement, then she and Fiona ought to have been upset at the first reference, and not at the second. If they were upset at that point then that is when they would have gone downstairs, and they would not have been there to hear the executed will. All in all, her evidence has so many question-marks hanging over it that it has little force, even as corroboration.

So far as Mrs Ferneley's evidence is concerned, it suffers from the following problems:

The effect of this analysis is that the principal evidence on Mrs Ferneley’s side is Mr McQuaid’s. Mrs Ferneley’s evidence is not highly probative on the main issue.

Had matters rested there the evidence might still have been sufficient to enable Mrs Ferneley to succeed in discharging the serious burdens that her case imposes on her. However, in order to complete the picture she would have to satisfy me that the suppression conspiracy is sufficiently likely. In my view there is a serious problem in reconstructing a sufficiently plausible scenario as to what was happening on the other side of the fence if Mrs Ferneley is right about the conspiracy. If one treats Mr McQuaid's and Mrs Ferneley's evidence as being accurate for these purposes, the following must have happened:

But this leaves a number of serious loose ends.

First, the ladies present at the search are apparently not drawn into the plot. One would have thought that they would have had to have been drawn in at some point because it would be dangerous just to suppress a will which (on the hypothesis being tested) they knew about without at least some reference to them, but neither of them gave evidence of that as a process. It would also mean that Fiona Napier gave knowingly false evidence, and her demeanour suggested otherwise. I have found her to be honest. Ms Coben gave evidence against the defendants, but even she did not describe a process in which she was told what was going on.

Second, the conspirators also have to hope that no copy of the later will turns up. This is a small point, because they might have decided to run the risk that it would. They would only be back to square one if one were found, and in theory they might have thought about that too. But that makes the conspiracy more complicated, and the more complicated it is the less likely it becomes, bearing in mind the personalities of the individuals involved.

The third is more significant. There is only any point in a change of heart about the will if the conspirators know that in the absence of a will there is an intestacy from which they can benefit. If they decided to suppress a 2007 will, they would still know that there was a 2002 draft will. They do not yet know there is no executed copy of that somewhere. So they do not know if their plot will succeed. Again, they could be trying it on, and hope that one did not emerge, but again this begins to assume a level of complexity in the conspiracy that it is not easy to imagine Derrick and Stephen being capable of.

The fourth problem is also a very significant one. In order for the suppression plot to succeed in the family’s favour they would have to believe that suppression would result in an intestacy. However, they could not be sure that it would. They had the unexecuted 2002 document. For all they knew it represented a copy of a will which was executed somewhere. If they wanted to generate an intestacy, why not suppress that one too? Why show it to the solicitors? The natural thing would be to suppress that too. At that stage they did not know they had been overheard. If they produced a draft of a will which did not benefit them (or did not benefit them enough) there would be a risk it would prompt a search which would throw up an executed version, which would frustrate their plans. All this is a very serious flaw in the conspiracy theory.

There is also the question as to why the copy of the 2002 will exists at all. If Charles was a careful orderly man, which it seems he was, it is likely he would keep a copy of an executed will, if the original was elsewhere. But it is much less likely that he would keep a copy of an old will if he had executed a new one. This is particularly the case where he was packing up his papers to move. He would be more likely to throw away the draft of the earlier will as an irrelevant piece of paper. Yet it was there. This was either because it was a copy of an executed will which was kept elsewhere, or it was his last expressed testamentary intention albeit that he did not put it in final form. If it had been superseded there is no obvious explanation of why he would keep it.

I have weighed all these matters, and have considered the rest of the evidence carefully, including the reliability of the witnesses. I do not think that all the necessary conspirators would be capable of, or willing to enter into, the conspiracy which would be required for Mrs Ferneley to succeed. Of particular significance is the burden of proof. At the end of the day I have come to the conclusion that Mrs Ferneley has not made out her case to the sufficient standard of proof. The suppression conspiracy has not been sufficiently established, and I am not satisfied that the relevant standard of proof applicable to a finding of a missing valid will has been reached either. There are unexplained facts on each side of the case, whatever hypothesis one is testing, but the question for me is whether the claimant has proved her case to a sufficient standard. I find that she has not.

What I think happened is as follows. The search party found the draft will. It was read and overheard by Mr McQuaid. Despite his obviously good memory and keen hearing, he did not hear or remember every bit of it. He misheard the reference to a cabinet. He misheard other things too. That is not surprising. He misheard, or misunderstood, a reference to Mrs Ferneley and to execution. No other will was found. The search party left the cottage and at lunchtime Derrick rang Mrs Ferneley on a poor line. He did not say that they had found a will which left her the bulk of the estate - she would have noted it if he had. There was a discussion as to whether Mrs Ferneley could have the cottage. In her own mind, which in my view is prone to wishful thinking, she has come to believe that this conversation contained things that were not said, perhaps assisted by the poor line. When she received Mr McQuaid’s telephone call she did not think that he was confirming clear statements by Derrick, though she noted the content of his call correctly. It undoubtedly raised her hopes, but it did not clearly confirm what she had been told earlier. If she had thought that it confirmed what she had been clearly told then I think that she would have referred to it in her conversation with Stephen the next day, but it does not seem that she did. I think that she did become more convinced as time went on that she had been told of an executed will by Derrick, but that is a product of her own thought processes and mistaken interpretation. In her own mind she has turned statements by Derrick as to his wish that she should have the cottage, conveyed over a bad line, into a statement that she was entitled to the cottage, or the estate. This is, I think, a more likely chain of events than that which would be necessary to justify the finding of an executed will and the suppression of its contents.

I confess that this is a conclusion which I reach without enthusiasm. The evidence of Charles’s character and concern about wills is such as to make it likely that there was, or is, a valid will somewhere. However, whatever it may say, I do not think it was found and read in Toby Cottage on 19th November.

In the circumstances I shall dismiss the claim to prove the 2007 will. However, I am not yet quite satisfied that I should pronounce in favour of an intestacy. I have referred above to the possibility that the 2002 draft is a draft of an executed will. That point was not fully debated before me, and I would not wish, at this stage, to rule that out without giving to those who might be interested under such a will the chance to consider the case in its favour. I would wish to debate this point with counsel before deciding on the final form of order.