Ashkettle & Anor v Gwinnett

This is a probate action by which the Claimants ask the Court to pronounce against the validity of a will dated 18 January 1999 and the Defendant (by a late counterclaim) seeks a grant of probate of that will in solemn form. The Claimants’ claim also seeks a grant in solemn form of letters of administration with the will annexed in relation to an earlier will dated 2 October 1986. There is no dispute about the 1986 will. The issues I have to determine are as to the validity of the 1999 will. The Claimants say (i) that this will was not properly executed (ii) that the testator did not have testamentary capacity to make it (iii) that the testator did not know and approve the contents of the will and (iv) that, if the testator did have capacity and did know and approve its contents, then it must have been procured by the Defendant’s undue influence.

The testator was Louisa Ann Ashkettle (“Mrs Ashkettle”) who died on 27 September 2007, aged 86. The Claimants are Mrs Ashkettle’s two sons (“Robert” and “Dennis” respectively) and the Defendant (“Rosalind”) is her daughter. The 1986 will left Mrs As hkettle’s estate to Rosalind, Dennis and Robert in equal shares. The 1999 will left her estate to Rosalind alone. The 1999 will contains an explanation of the change in the following terms:

“3.

I have made no provision in this Will for my Son [Dennis] because we do not have a friendly and reasonable Mother and Son relationship and I believe that he has adequate means of his own.”

“4.

I have made no provision in this Will for my Son [Robert] because he has greatly upset me with his attitude towards my house and I believe that he has adequate means of his own”.

I have heard oral evidence from a large number of witnesses. On the Claimants’ side, these include Dennis and Robert, Robert’s wife Jacqueline and his children Richard and Victoria (“Vikki”), and Dennis’s son Colin. The

The evidence before me includes a certain amount of documentary material, particularly as to Mrs Ashkettle’s medical history. On the issue of her capacity at the time of the execution of the 1999 will, I have also heard the expert evidence of Professor Henry Hodkinson (called by the Claimants) and Professor Robin Jacoby (called by the Defendant). By their joint statement dated 18 August 2013, they agreed that Mrs Ashkettle suffered from dementia due to Alzheimer’s disease and that Mrs Ashkettle probably had the capacity to understand the nature and consequences of the act of making a will; but

The evidence includes a number of photographs and home videos. I have found these for the most part unhelpful on the issues I have to determine, with the exception of the video I comment upon below, taken by Rosalind’s son Christopher, which shows Mrs Ashkettle in the garden with Rosalind in 1998.

In the light of the experts’ differences, I therefore proceed to explain my findings on the oral and documentary evidence I have heard and read. I am concerned in the first instance to consider the first three issues raised by the Claimants (whether the 1999 will was duly executed, whether Mrs Ashkettle had testamentary capacity and whether she knew and approved of the contents of the will) because the issue of undue influence only arises if the 1999 will were otherwise regular.

In making my findings, I have sought to allow for the fact that the principal events took place at least fourteen years ago and that memories are bound to have become weaker or less reliable with the passage of time. I have also tried to allow for the strong feelings which this dispute has engendered on both sides and which can be expected to have influenced the principal witnesses’ recollection of events. That said, I have concluded that Rosalind was an unconvincing witness, whose evidence on crucial matters is unreliable. Her attempts to explain away events which might be considered detrimental to her case (such as the consultation with Dr Pandita-Gunawardena, her answers to the questions on the Disability Living Allowance form and other aspects of the written evidence) were not credible. Her purported recollection in cross examination of the significance of an occasion in 1997 when Mrs Ashkettle passed out while walking in the park was unsupported by any contemporaneous medical evidence and lacked all conviction. She was particularly poor on dates: she gave specific dates for certain events, though without explaining how she remembered or identified them, but was otherwise rather vague or equivocal on timing. The question of dates (and thus the precise sequence of events) is of particular importance (as I explain below) when one considers the evidence as to how the 1999 will came to be prepared. In general, I prefer the evidence of Dennis and Robert on disputed issues, though I accept that they (and Robert in particular) feel some bitterness towards their sister and are wont to ascribe to her base motives which she may not deserve. I was also impressed by what I saw of the Claimants’ supporting witnesses and less so by Rosalind’s. These general conclusions have informed my findings below.

Mrs Ashkettle met and married her husband, Jack, during the Second World War and lived for some years in the East End, where they had been brought up. Dennis and Robert describe the marriage as an unhappy one, largely because of Jack’s “raging temper”, though things appear to have improved when, in 1964 they moved away from Jack’s own family to 27 Galahad Road, Downham. However, all her children agree that Mrs Ashkettle herself was a bright and cheerful person and a loving and caring mother who was very attached to all of them. Robert was particularly close to her. He explained that he suffered a life-threatening illness in 1965, when he was 14, and was in hospital for four months and then convalescing for another six. During that time he and his mother drew very close. Mrs Ashkettle continued to dote on him in later years. Robert, his wife Jacqueline and daughter Vikki all recall the way she fussed over him, sometimes to the point of embarrassment.

Jack Ashkettle died in 1990. Jack’s family were not told of his death because (as Dennis explained) Jack himself had had no desire to see his family and would not have even attended his own mother’s funeral to avoid them. Dennis recalls that as being a family decision (that is, agreed by Mrs Ashkettle and all her children) though Rosalind says it was Dennis’s decision. Dennis must be right on this as he could not have prevented Mrs Ashkettle or Rosalind from passing on the news had they wanted to. Mrs Ashkettle’s physical health began to decline thereafter, so that by 1993 she was living permanently with Rosalind. The arrangement appears to have been that Mrs Ashkettle would stay overnight at Rosalind’s home in Bromley but would spend the days, or part of the days, at her own home. Mrs Ashkettle’s deteriorating eyesight was a particular worry in that she would often fall. She was also already suffering from loss of memory and concentration, sometimes with potentially dangerous consequences, such as leaving the gas on unlit and putting an electric kettle on the hob (as Dennis and Robert recall). Concerns for Mrs Ashkettle’s safety

Mrs Ashkettle’s mental health thereafter declined further. Robert, Jacqueline and Vikki recall being told by Rosalind that Mrs Ashkettle’s trousers had fallen down while she was at The Glades shopping centre and she was walking around unaware of the fact. On a separate occasion, Rosalind told them that Mrs Ashkettle had eaten a lipstick she had been given. Rosalind disputed these events but I accept the evidence I heard from Robert, Jacqueline and Vikki.

Whatever the precise circumstances of these, and other, reported incidents, it is clear that by 1997 even Rosalind had become concerned by her mother’s mental condition. By this time, Mrs Ashkettle had had laser treatment on both eyes and cataract surgery on her left eye, following which her consultant ophthalmic surgeon, Mr Hugkulstone, wrote to her GP, Dr Israel, on 4 April

Rosalind took Mrs Ashkettle to see Dr Israel on 18 August 1997. Dr Israel’s

In her oral evidence before me, Rosalind advanced the hypothesis that her mother’s problems must have stemmed from a minor stroke she had suffered in the spring (or possibly July - her evidence is inconsistent here) of 1997.

On 4 September 1997, Rosalind and Robert together took Mrs Ashkettle to see Dr Gunawardena. That they both accompanied their mother on this visit reflects the seriousness of their concerns. I have heard evidence from each of the surviving participants in this consultation and I have considered Dr

In his letter the same day to Dr Israel, Dr Gunawardena repeated the information he had recorded in his notes. He told Dr Israel that he had told

Rosalind failed to provide an explanation in her witness statement as to what lay behind the decision to consult Dr Israel and subsequently Dr Gunawardena. In cross examination, she said she was concerned about her mother’s slurred speech but there is no other evidence for a symptom of this kind and Rosalind may have been trying to fit the facts to her theory that her mother had suffered a stroke when she had a black-out in the park; at all events, I reject this evidence. More significantly, Rosalind accepted that she was concerned that her mother was asking “what is wrong with me?” and was “not herself”, which seems to point to a more general concern of a kind with which Dr Gunawardena’s diagnosis is entirely consistent.

As to the severity of Mrs Ashkettle’s condition at this time, there is, first, the evidence that the family thought it sufficiently serious to be seeking medical advice, with Rosalind and Robert both attending the consultation with Dr Gunawardena. That suggests that there had been a serious deterioration in her condition over the 2 year period referred to in Dr Gunawardena’s notes. These notes also record Mrs Ashkettle’s inability to answer Dr Gunawardena’s questions at the consultation as to the day, date and year; a separate piece of evidence in this connection is that, in a letter to her own solicitors dated 1 August 2003, Rosalind recalled that Dr Gunawardena had also asked her mother how old she was, what her name was and what the Queen’s name was, but that her mother “just froze”. It would therefore appear that Dr Gunawardena had asked six simple questions without getting any response at all. Professor Hodkinson thought that the inability to answer questions of this kind would, of itself, put the degree of dementia on the borderline between mild and moderate. Professor Jacoby agreed that inability to answer questions

Rosalind sought to explain Mrs Ashkettle’s failure to answer Dr Gunawardena’s questions by saying that his accent was too thick for her mother (and even Rosalind) to understand. Robert disagreed with this explanation and, having heard Dr Gunawardena give evidence, I reject it. It is in any case difficult to see how Dr Gunawardena’s practice could have been as successful as it was over 30 years if he had had any difficulty in making himself understood by elderly patients. Rosalind was here, in my judgment, seeking to explain away, rather than to explain, evidence which damaged her case and the attempt is another reason why I find her evidence unreliable.

Rosalind also criticised Dr Gunawardena for his failure to carry out appropriate tests but a series of tests had been ordered by Dr Israel and the results were referred to in Dr Gunawardena’s letter to her (“I note that her haematology and biochemistry are all normal”). It was, in part, the absence of any alternative explanation for Mrs Ashkettle’s condition that led Dr Gunawardena to his diagnosis of “probable Alzheimer’s”. Rosalind also complains that she was seeking a brain scan for her mother but Dr Gunawardena explained that brain scans were not routine for Alzheimer’s disease at the time and were only carried out if there were a possibility of another diagnosis such as a brain tumour or subdural haematoma (which was not the case with Mrs Ashkettle). In the absence of any alternative explanation, Dr Gunawardena’s diagnosis should in my judgment be taken as accurate.

Rosalind’s son Christopher was married in October 1997. Robert accompanied his mother during the ceremony and sat with her throughout the reception but she did not engage with anyone and maintained what Robert describes as “a blank, fixed expression for everyone.” I accept Robert’s evidence on this point.

On 19 January 1998, Rosalind signed a document entitled “Disability Living

Dr BN Gupta’s clinical findings were as follows:

“Mentally not orientated. She doe s not remember her birth date, month or year. Pleasant otherwise. No physical disability noted or found. Walks normally. [?] finger count at 3 metres. Her general condition is good …

She is mentally confused and needs supervision.”

Rosalind has disputed much of this report in her solicitors’ letter of 8 June 2009 and later (in slightly different terms) in her witness statement and cross examination. Her principal objection seems to be that Dr Gupta was an elderly foreign man with poor English whom Mrs Ashkettle could not understand and who had made mistakes in writing down what she told him.

For the rest of 1998, there appear to have been no further visits to the doctor.

It would seem that Mrs Ashkettle was unaware that in October 1998, she became great-grandmother to twin girls born to Robert’s son, Richard: Robert,

The evidence of Mr Gear (Mrs Ashkettle’s neighbour) as to short

A home video has been produced which was taken by Christopher Gwinnett in

An important incident took place around the same time (i.e. the summer of 1998). Richard’s partner was discovered to be expecting twins sometime around June and Robert was concerned that there would not be space in their current home for the whole family. Robert therefore suggested to Rosalind, in a telephone call, that Richard rent Mrs Ashkettle’s house for around £700 a month; this would provide Richard and his family with a home at the same time as giving Mrs Ashkettle some extra income. Coincidentally, Dennis was at Rosalind’s house when this telephone call was made and Rosalind spoke to him about it. Dennis did not see any problem with the suggestion but Rosalind was adamant that she would not allow it. Neither Robert nor Dennis raised this request with Mrs Ashkettle directly because they both believed that she was unaware of her surroundings by this time and unable to make a decision. Having heard Rosalind’s refusal, Robert says he did not press the matter and Richard made alternative arrangements for his new family.

I turn to the circumstances in which the 1999 will came to be prepared. The evidence for this consists of the statements and oral evidence of Rosalind and

To begin with, there is some confusion as to the dates upon which Mrs

The attendance note of 25 November 1998 records that Mrs Ashkettle had attended (with Rosalind) to make a new will but that Mr Stanger had taken the opportunity to explain about an EPA which, according to the note, Mrs

The attendance note also records that there was “a separate attendance note about the will”. However, as I have said , the will file (if there was one) has

What does survive is, of course, the 1999 will itself. This includes the express explanation I have quoted above as to why Mrs Ashkettle was cutting out her two sons. However, these provisions cannot, in my judgment, truly reflect the actual circumstances at the time. On the evidence I have heard (and broadly accepted) it was quite wrong for the will to suggest that Mrs Ashkettle and

I hesitate to make any findings about how these express comments about Dennis and Robert came to be included in the will. The suspicion on the evidence I have heard must be that they represent Rosalind’s instructions rather than Mrs Ashkettle’s. In the absence of a will file, or any full explanation from Rosalind or Mr Stanger as to how the instructions were given before, during or after the meetings on 25 November 1998 and 6 January 1999, it is impossible to reach any final conclusion. I am satisfied, however, that Mrs Ashkettle was not at that time in a position to appreciate the extent of her estate or the moral claims of those (namely Dennis and Robert) who might have expected to benefit from her bounty.

The will was executed on 18 January 1999. Mr Stanger signed it on Mrs Ashkettle’s behalf, having read it to her. However, I regard Mrs Ashkettle’s inability to sign as an indication of her lack of capacity rather than her poor eyesight or physical frailty. Mrs Mears was one of the witnesses and claimed in her statement to have had no doubts about Mrs Ashkettle’s capacity. But her dealings with Mrs Ashkettle were fleeting and she did not give any details as to how she could have reached such a conclusion. On the contrary, her description of the will being read to her ascribes a rather passive role to Mrs

Mr Stanger’s firm’s invoices for preparing the EPA and the 1999 will are in evidence and show charges of £40 and £60 for each respectively (plus VAT). The latter was dated 12 January 1999 and so must have been available for 18

On 19 January 1999, the day after the will was executed, Mrs Ashkettle visited the doctor’s surgery. This was no longer the practice with which Dr Israel was connected but a new practice, further away, where Rosalind had had her mother registered on 19 November 1998. It is wholly unclear on Rosalind’s evidence why she thought such a move would be appropriate at this time. Be that as it may, the medical records show that, on this visit, Mrs Ashkettle saw

Mrs Ashkettle’s later medical history supports the conclusion that her eyesight had deteriorated again. Mrs Ashkettle also appears to have suffered confusion in mid-2000 which was attributable to a urinary tract infection. Two letters from Lewisham health care workers in August and September 2000 confirm that Rosalind was Mrs Ashkettle’s carer and the extent of Mrs Ashkettle’s dependence on her and also show Rosalind refusing or avoiding assistance.

Towards the end of December 2002, Mrs Ashkettle was admitted to hospital, having been aspirating food and mucus, as seen on a barium swallow. It is agreed that, from this point on, Mrs Ashkettle was bedbound for the rest of her life and never spoke again. Gregory Gwinnett described his grandmother as deteriorating slowly from this point onwards but I reject that evidence, given the sudden change in her condition. It may be that this evidence is accurate though wrongly dated but, in the absence of any other reliable evidence from him as to the date of what he observed, it is impossible to derive anything material from it.

There is little dispute between the parties as to the applicable law.

On the issue of execution of the 1999 will, the Claimants’ initial contention was that Rosalind had not obtained a statement from either witness to its execution, which would usually be required for proof of a will. That point was

As for the issue of testamentary capacity, I have been referred to the wellknown statement of principle in Banks v Goodfellow (1870) LR 5 QB 549 and the more recent glosses on its application in cases such as Key v Key [2010] 1 WLR 2020 and Cowderoy v Cranfield [2011] EWHC 1616. In the latter case, Morgan J (at paras 130-137) summarised the relevant authorities in terms which I would gratefully adopt. As Morgan J emphasises, the question is not as to whether or not the will is a fair one in all the circumstances of the case because a valid will can be unfair, vindictive or perverse; but if the terms of a will are surprising, that may be material to the court’s assessment of the testator’s capacity (or indeed his knowledge and approval of the terms of the will). Morgan J also adopts what was said by Briggs J in Key v Key, above, as to the evidential burden shifting to the propounder if the objector raises a real doubt about capacity.

I have also been taken to Hawes v Burgess [2013] EWCA Civ 94, where the Court of Appeal recently expressed the view that it is “a very strong thing” for a judge to find lack of testamentary capacity when the will has been prepared by an experienced and independent solicitor following a meeting with the testator, when it had been read through and explained to her and when the solicitor had formed the view that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational (see per Mummery LJ at paras 57 and 60 and per Scott Baker LJ at para 69). I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and (as Mummery LJ acknowledges) the terms of the will may themselves suggest that the solicitor’s assessment was not soundly based.

On my findings in this judgment, the evidence as a whole shows that, by 18 January 1999, Mrs Ashkettle had lost testamentary capacity. She had been suffering from a progressive form of dementia since at least 1997 (when it was diagnosed by Dr Gunawardena) and (from his notes) at least two years before. Other evidence suggests that the problem had emerged even earlier. By the end of 1998, Mrs Ashkettle was unable to communicate in any meaningful way, though she may have retained a sufficient “social façade” to mask her mental deterioration from an incurious interlocutor. Mr Stanger’s evidence does not contradict this conclusion because he does not say, and it is impossible to recover, how and from whom he took his instructions or what he

As for the plea of want of knowledge and approval, I have been taken to cases such as Fuller v Strum [2002] 1 WLR 1097, Hoff v Atherton [2004] EWCA Civ 1554 and Gill v Woodall [2011] Ch 380. This question only arises if, contrary to my conclusion above, Mrs Ashkettle had had testamentary capacity: the question would be whether, in those circumstances, she actually knew and approved the terms of the will. If I am wrong on the issue of testamentary capacity, I would still conclude, for similar reasons, that Mrs Ashkettle did not know and approve the terms of the will. She did not read it for herself and, in my judgment, would have found it difficult to concentrate when it was read to her or to absorb what was being said to her. There is no evidence that she understood what property she had to which the will would apply or, for that matter, that she genuinely understood what its effect was. The evidence of Mrs Mears and Mr Stanger does not establish that Mrs Ashkettle actually understood and approved what she was executing or that Mr Stanger’s signature would have the effect of binding her; and Mr Stanger’s evidence is anyway inadequate in explaining how, from whom and in what terms he received his instructions. The terms of the will as regards Dennis and Robert were irrational and inexplicable and indicate that Mrs Ashkettle did not understand what she was doing. Mrs Ashkettle’s powers of understanding were not, on the evidence I have heard, sufficient to enable her to know and approve the terms of this will, even if she had retained capacity; that was

I need not, in the circumstances, deal with the further issue of undue influence which would only arise if the 1999 will were otherwise valid.