The Vegetarian Society & Anor v Scott

John McKeen died on 23rd November 2007 aged 65. In his lifetime he made five wills. The first three executed on 10th May 1994, 26th February 1996 and 21st April 1998 (which was varied by a codicil executed on 21st May 1999) were all drawn up by his then solicitors Francis & Co. The last two executed on 9th July 2003 and 10th August 2006 were drawn up by Irwin Mitchell Solicitors following instructions given by Mr. McKeen to employees of HSBC, with whom he had banked for many years.

The claimants are the residuary legatees of the 2006 will and, if that will is valid, stand to inherit all but some £150,000 of Mr. McKeen's estate, the gross value of which exceeds £1 million.

Mrs. Jennifer Scott, the defendant, is Mr. McKeen's younger sister. She has three sons all now in their 30s. Robin, Inigo and Rory, who were significant beneficiaries under the 1994, 1996 and 1998 wills, were omitted from the 2003 will and share a bequest of £5,000 under the 2006 will. The defendant is not a beneficiary under any of Mr. McKeen's wills. She is, however, his heir on intestacy.

As now pleaded, the defendant challenges Mr. McKeen's testamentary capacity. The defendant's primary case is that Mr. McKeen lacked testamentary capacity when making the 2003 and the 2006 wills on the grounds that (a) a disorder of the mind prevented the exercise of his natural faculties, and (b) he did not comprehend the claims to which he should give effect. The defendant's alternative case is that all five wills are vitiated by Mr. McKeen's lack of testamentary capacity, the 2003 and the 2006 wills for the reasons stated, and the 1994, 1996 and 1998 wills for the first reason, namely that a disorder of the mind prevented the exercise of Mr. McKeen's natural faculties.

That Mr. McKeen suffered from a disorder of the mind is not in issue. Both Professor Jacoby, who was called to give expert evidence in the field of psychiatry on behalf of the claimants, and Dr. Cutting, who gave expert evidence in the same field on behalf of the defendant, agreed that Mr. McKeen was schizophrenic and that he suffered from logical thought disorder. They disagreed as to the effect of these conditions on Mr. McKeen both generally and, crucially, in respect of the wills.

Mr. McKeen was born on 27th June 1942. His parents were well off and the family is described by the defendant as upper middle class. Mr. McKeen attended public school for four years at which he attained eight O levels. He was particularly interested in and skilled at woodcraft and cabinet making. However, the course of his life changed in March 1962 when he had a cycling accident. He fell from his bicycle and ended up going face down into and down a gravel pit causing multiple lacerations to his face and mouth and damaging his jaw. Mr. McKeen had extensive surgery in March 1962 and on at least two subsequent occasions, but he was left with a badly scarred face. This affected his personality.

Professor Jacoby opined that he probably had an underlying tendency to schizophrenia, and Dr. Cutting agreed with this. Professor Jacoby also noted that in males who develop schizophrenia its onset is very common at or around 20 years of age. Dr. Cutting also agreed with this.

The defendant, her husband Mr. Ronald Scott, their son Rory and acknowledged friends of Mr. McKeen's and his dentist all described behaviour which is unusual to say the least. As to Mr. McKeen's appearance, with one exception, which I shall have to evaluate, Mr. McKeen is described as unkempt or tramp-like. He was said by the defendant and by the defendant's witnesses not to feel the cold and to wear one or two shirts, sleeves torn off at the elbow, one or two pairs of worn trousers held up with string or twine as a belt, no socks, slip-on shoes held together with string, an anorak in inclement weather, and also to wear gardening gloves whether gardening or not. He was said to be cleanly, washing himself outdoors either in a stream or river or a cold water shower which he had rigged up outdoors. He was a keen swimmer, a cyclist and a walker.

While Mr. McKeen's mother was alive, that is until 29th October 2000, and for some time thereafter he lived at her home, alternating with a cottage, Rock Cottage, given to him by his mother shortly after his 21st birthday. Mr. McKeen's mode of entry and exit to and from his mother's house was said by the defendant to be via the first floor bathroom window. For at least the final four years of his life Mr. McKeen's home was a flat in Hereford at 27 John Hader Building.

As to his likes and dislikes, Mr. McKeen is said to have enjoyed music, to have been fond of animals and to have been interested in the environment. It is common ground that he particularly disliked cars and airplanes on the ground of pollution. Mr. McKeen's family describe him as quiet and not engaging when present. His friends, including Mr. Alan Sheppard, who gave evidence for the defendant, and Mr. Michael Osmond, who made a witness statement for the defendant but did not give evidence having suffered a stroke and possibly having died last year, describe long conversations with Mr. McKeen.

It is part of the defendant's case that Mr. McKeen was an alcoholic and there is evidence from the defendant's witnesses that he drank to excess. Mr. Scott, for example, commented upon Mr. McKeen's last purchase at Tesco's being said to be a bottle of cooking sherry. However, shortly before Mr. McKeen's death he was taken ill and admitted to hospital via Accident and Emergency. The tests carried out included liver function which was reported as normal. There was no evidence of alcohol abuse.

I accept that Mr. McKeen enjoyed a drink, but I reject, as not borne out by the evidence, the proposition that he was an alcoholic or a particularly heavy drinker. This finding is reinforced by the photographic record or inventory of Mr. McKeen's flat taken by Mr. Sheppard, a friend of Mr. McKeen's, after his death which shows bottled water, a kettle, jars of Horlicks, tins of food and other food but not even one bottle of alcoholic drink in Mr. McKeen's home at and shortly after the date of his death.

As to Mr. McKeen's character, there is substantial evidence that he was polite, gentle, kind-hearted (sometimes soft-hearted), and that he had a sense of humour. All of this is amply demonstrated by both the witness evidence of social and business relationships and from his correspondence.

Putting aside Mr. McKeen's state of mind for the moment, a bystander observing him might reasonably conclude that he was unconventional and living on the fringe of society. He was at all times able to live much more comfortably than he actually did. After his mother's death there was very little engagement between himself and his family, that is his sister, the defendant, her husband and their sons. Mr. McKeen either shunned or apparently had no need, physically at any rate, for the medical profession between the last of his operations in the 1960s and the short stay in hospital in early November 2007, barely a fortnight before he died.

From 1991, if not earlier, Mr. McKeen did go regularly to a dentist becoming a private patient when that dentist ceased his National Health practice. There is lay witness evidence that Mr. McKeen ground his teeth and had to have his teeth capped or crowned, but this point is not addressed by his dentist in his witness statement and the dental records are not in evidence. Thus, and somewhat unusually in this type of case, there is virtually no medical evidence as to Mr. McKeen's physical wellbeing over the course of his life.

Notwithstanding his unkempt appearance, Mr. McKeen does not appear to have been intimidating or frightening, nor was he a recluse. Indeed, he met one of the lawyers he came to instruct by engaging her in a conversation on a bus. Tenants and friends refer to Mr. McKeen visiting them for coffee, and in the case of Mr. Sheppard also for meals, from time to time.

As to Mr. McKeen's living conditions after his mother's death and at his own property occupied for part of the week during her lifetime, these may be described as more severe than frugal and below basic level. For example, although he at all material times owned a home and it will be remembered died a millionaire, he did not have a fridge. He cooked on a camping gas stove and he slept on a sofa with a sleeping bag for bedding. Factual witnesses describe Mr. McKeen's living conditions as squalid. The evidence does not support a finding that either Mr. McKeen's living conditions or he himself were other than cleanly.

There are six further matters to note and bear in mind in relation to Mr. McKeen at this stage:

As already noted, the central issue in this case is whether Mr. McKeen had testamentary capacity. His capacity at the time he made his wills is the subject of divergent expert psychiatric evidence and conflicting factual evidence. It is convenient at this point to summarise the areas of agreement and disagreement on the part of the expert psychiatrists and the relevant principles of law before turning in some detail to review the expert evidence and to consider the witnesses of fact evidence.

First, the summary of the expert evidence. The joint experts' report signed off by Professor Jacoby, the claimant's expert witness, and Dr. Cutting, the defendant's expert witness at trial, in February 2013, made clear that Mr. McKeen suffered from thought disorder and from schizophrenia. The experts agreed that Mr. McKeen's thought disorder was severe. Dr. Cutting's view, having regard to the geography book in particular, was that Mr. McKeen's logical thought disorder so pervaded his thinking at all times that his capacity was overborne and he was incapable of making a will at any time from 1994, if not earlier, until his death.

Professor Jacoby considered that the evidence of the circumstances in which the wills were made and also of various property transactions conducted at and around the same time, shows that Mr. McKeen's schizophrenia and thought disorder did not prevent him from having logical thoughts, and that he could and did gather his thoughts when he wanted or needed to for "goal directed activity" (a phrase used by Professor Jacoby), such as making a will.

Secondly, as to the principles of law, it is right to observe that there was no disagreement between the parties' counsel, Miss McDonnell for the claimants and Mr. Blackett-Ord for the defendant, as to the relevant principles. However, their submissions revealed that there was a difference of emphasis.

There was no suggestion that the defendant or her sons or anyone else for that matter were financially dependent on Mr. McKeen. Accordingly, there is no legal fetter to the general principle of testamentary freedom by which a person may leave his or her assets as he or she sees fit, whether such disposition be unexpected, inexplicable, unfair and even improper (see Gill v. Woodall [2011] Ch 380, Lord Neuberger, Master of the Rolls (as he then was) p.390 G) or surprising, inconsistent with lifetime statements, vindictive or perverse (the same case and judgment p.390 H) or hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed, (see Hawes v Burges [2013] EWCA Civ 94, Mummery LJ para.14 with whom Patten LJ agreed.

However, the law does require that when exercising testamentary freedom the testator has capacity so to do. Miss McDonnell and Mr. Blackett-Ord both relied upon and cited as the relevant test for capacity that formulated in the Court of Queen's Bench more than 140 years ago in Banks v. Goodfellow [1870] Law Reports 5QB 549 p.565 which is as follows:

In Sharp v. Adam [2006] EWCA Civ 449 the Court of Appeal referred to Banks v. Goodfellow as the leading authority on testamentary capacity. More recently, in Hawes v. Burgess the passage cited above was clearly the foundation for a question-based approach, albeit that that appeal was decided on the issue of want of knowledge or approval and the consideration of testamentary capacity was, therefore, strictly obiter.

It was common ground that capacity is time and task specific. Mr. Blackett-Ord relied on the judgment of Mr. Martin Norse Queen's Counsel (as he then was) in Re Beany [1977] 1WLR 770 p.774 as authority for the proposition that the degree of understanding required by a testator in relation to his or her will is always high. On this point both counsel also refer to Hoff v. Atherton [2004] EWCA Civ 1554. I bear in mind here the judgment of Gibson L at paragraph 35 with whose judgment Chadwick LJ and Lindsay J agreed.

As to the burden of proof, at least initially the burden lies on the party propounding the will. Where the will is rational upon its face, which Mr. Blackett-Ord conceded during his closing submissions is the case here, the burden shifts to the opposing party to raise a real doubt as to capacity. If that occurs the burden then reverts to the propounder of the will. On this point Mr. Blackett-Ord referred to the judgment of Chadwick LJ in Hoff v. Atherton at paragraph 56, and to the judgment of Morgan J. in Cowderoy v. Cranfield [2011] EWHC 1616 (Ch) paragraph 136.

In the case before me counsel were agreed that (1) Mr. McKeen's 2006 will is regular on its face; (2) by reference to the expert evidence the defendant has raised a real doubt as to Mr. McKeen's capacity; and, (3) the burden of proof therefore fell on the claimants.

I now return to the expert evidence to consider that in more detail. Professor Jacoby and Dr. Cutting are both of the opinion, as already stated, that Mr. McKeen's logical thought disorder was severe at all relevant times, that severe thought disorder is a characteristic of schizophrenia, and that Mr. McKeen was schizophrenic.

In closing submissions, Mr. Blackett-Ord drew attention to paragraph 36(8) of Dr. Cutting's report dated 1st September last year as identifying the crucial point of divergence between the experts. There, Dr. Cutting expressed his view that anyone whose thought and language processes were so abnormal at such times (that is the times covered by the geography book, including the jottings) should be deemed to have lacked testamentary capacity. Dr. Cutting also expressed the view that the jottings between 2004 and 2007 showed an undoubted deterioration which rendered the 2006 will particularly suspect in this respect. These documents (the geography book) were the principal platform for Dr. Cutting's opinion.

As Dr. Cutting made clear at the conclusion of his short re-examination by Mr. Blackett-Ord, there are documents written by Mr. McKeen which do show logical thought order and which tend to undermine his view that Mr. McKeen must be taken to have lacked capacity, but Dr Cutting said that those documents did not evidence logical thought to a material or sufficient degree to dislodge his opinion. In Dr. Cutting's opinion, the severity of Mr. McKeen's logical thought disorder overbore his agenda for his will, and the thought disorder pervaded his thinking at all times from the mid to late 1960s until his death.

Professor Jacoby did not share this view. In Professor Jacoby's opinion, it was necessary to distinguish logical thought disorder, which concerns the process or form of thinking, from the content or substance of the thoughts. This was because schizophrenia is time and task specific. Professor Jacoby was of the view that the correspondence in Mr. McKeen's handwriting to solicitors concerning and giving instructions relating to property transactions showed logical thought order, a proposition with which Dr. Cutting agreed when being shown that correspondence in cross-examination by Miss McDonnell. Both experts agreed that this extended to the instructions given by Mr. McKeen to Mr. Gary Ellis of Francis & Co in relation to the 1994, 1996 and 1998 wills, and to HSBC in relation to the 2003 and 2006 wills.

I pause here in this review of the expert evidence to note that Katherine Talbot gave evidence as to Mr. McKeen's instructions for the 2006 will which included that he had obtained a copy of his 2003 will or the will itself and had compiled a list of his assets and of his intended beneficiaries. In addition, the content of Mr. McKeen's will instructions was, it is common ground, materially accurate as to assets and it was clear as to disposition.

This evidence of Mr. McKeen's communications in respect of property matters and his wills, coupled with Professor Jacoby's view as to the likely degree of Mr. McKeen's schizophrenia which was that it was chronic, i.e. "grumbling", not acute and at the milder end of the spectrum, underpinned Professor Jacoby's view that Mr. McKeen was capable of gathering his thoughts if he wanted to, and capable of acting in a logical and rational manner in relation to his affairs.

During cross-examination, Professor Jacoby expressed his strong disagreement with the proposition that Mr. McKeen was incapable of logical thought for the purpose of goal-related activity, as he termed it, which included of course property transactions and making a will.

When challenged in cross-examination about the apparent illogicality of Mr. McKeen's 2006 will in leaving approximately 80% of his estate to two vegetarian charities, notwithstanding that Mr. McKeen was not a vegetarian, and also about his bequests to certain legatees, Professor Jacoby agreed that all such bequests might be illogical, but he declined to express an opinion because he did not know what Mr. McKeen's motivation or thinking actually was at the time of making any of his wills, if other than or different from that expressed by him when giving instructions for and when executing his wills.

In cross-examination, Professor Jacoby was also asked to agree that Mr. McKeen was not able to look after himself. Professor Jacoby did not agree. He accepted that there was evidence that Mr. McKeen was not in fact looking after himself, or at any rate not in a conventional way, but not that Mr. McKeen was incapable of so doing. Professor Jacoby acknowledged that the most likely cause of Mr. McKeen's failure to look after himself was his schizophrenia; but, Professor Jacoby was firmly of the opinion that when Mr. McKeen wanted to he was able to look after himself and his affairs.

Mr. Blackett-Ord asked Professor Jacoby whether his view would be the same if Mr. McKeen's real reason for excluding his family from his will had been an irrational belief that they or his sister had defrauded him. Unsurprisingly perhaps Professor Jacoby's answer was that the real reason was a matter for the court, but if Mr. McKeen was deluded the question would be self-answering.

During cross-examination, Professor Jacoby expressed his opinion that both the nature of Mr. McKeen's property transactions and the instructions he gave, and the organisation and disposition of his assets evident from his will instructions, showed ordered thinking consistent with that of a person having capacity.

In his closing submissions, Mr. Blackett-Ord submitted that Professor Jacoby's opinion as to Mr. McKeen's testamentary capacity was based on inadequate information. Certainly, it seems that the experts were not given agreed instructions or common information, even by the time of their latest reports on the eve of the trial. Any criticism of the instructions as to the experts, and I make no finding that such was justified in relation to Professor Jacoby, falls away in the light of the thorough and testing cross-examination by counsel of the experts.

Mr. Blackett-Ord also submitted in closing that while Mr. McKeen might have had capacity to undertake very simple property transactions and to make a simple will, the expert evidence did not support a conclusion that Mr. McKeen had capacity to make the 2006 will or the 2003 will or any of the earlier wills. I note that even this concession by Mr. Blackett-Ord marked a departure from the view of Dr. Cutting.

Addressing the specific issue of delusional belief and its likely effect on Mr. McKeen, Miss McDonnell referred to the distinction Professor Jacoby drew between a delusion (which he explained as a type of false belief which defies logic) and other false beliefs which might arise for reasons which are not delusional and which, in Professor Jacoby's experience, are commonplace between siblings.

Miss McDonnell challenged Dr. Cutting's evidence on a number of grounds which included :

As to the central issues for the experts, I reject the proposition that Mr. McKeen should be deemed to have been incapable of making a will at all material times. My principal reasons are :

I recognise that both experts faced this case as one presenting particularly difficult challenges because they had not met Mr. McKeen and because there was no available medical history of Mr. McKeen's physical health between the 1960s and a matter of some two weeks before his death, and no medical history at all relating to his mental health. It is in that context that Professor Jacoby's reports and oral evidence reveal a more objective and nuanced approach to the assistance to be given by the experts in this case.

The effect of my conclusion on the expert evidence is that I reject the proposition that Mr. McKeen's thoughts were so severely disordered and his schizophrenia was such that at all times he was or should be taken to have been prevented from exercising his faculties or comprehending the claims to which he should give effect when making a will.

However, the factual challenges to Mr. McKeen's will remain for determination. Accordingly, I now turn to the factual evidence in some detail.

In her pleaded case the defendant lists 11 matters relating to Mr. McKeen she alleges are symptomatic of Mr. McKeen's schizophrenic thought disorder. In cross-examination, Dr. Cutting agreed with Miss McDonnell that only two were in fact symptoms of schizophrenic thought disorder. These were allegations that Mr. McKeen wrote random musings without any consistent thread or meaning, showing incoherence, poverty of context of speech and illogicality in the geography book over several decades, and that Mr. McKeen's speech was devoid of content and that he muttered to himself continuously or to a non-existent person of his imagination.

As to the first of these allegations, it is factually correct, and the experts agree, that the geography book leads to a diagnosis of schizophrenic thought disorder. As to the second of these allegations, the evidence does not justify a finding of continuous muttering to himself or an imaginary person, but it does justify a finding that Mr. McKeen did talk or mutter to himself and argue with himself not only when with his family, but also when in the company of others. I make this qualified finding because there is a substantial body of evidence both written and oral, including from the defendant and the defendant's witnesses, as to normal interaction on Mr. McKeen's part. For example, in cross-examination the defendant accepted that Mr. McKeen enjoyed music, could have a wry sense of humour and might have liked animals and wildlife. Mr. Sheppard classified Mr. McKeen as a friend, and no witness said that Mr. McKeen was incapable of normal social interaction at all times. By "at all times" I mean without exception rather on occasions, even extended and frequent occasions.

Insofar as the other allegations were pursued or developed as part of the defendant's case, they were addressed under 12 headings in Mr. Blackett-Ord's written and oral submissions to which I shall refer. Mr. Blackett-Ord submitted that the defendant's case stood up to cross-examination. Even if it did not, it would not necessarily follow that the claimants had established Mr. McKeen's testamentary capacity because the burden of proof lay with the claimants. Mr. Blackett-Ord's 12 headings chart a helpful route through the factual issues, so I shall consider each of those in turn.

First, Mr. Blackett-Ord referred to Mr. McKeen's wild appearance and behaviour. I have already outlined the thrust of the evidence adduced by the defendant. Mr. Blackett-Ord referred in particular to the evidence of the defendant, of Mr. Scott, of Jock Bruce, of John Moylett and of Michael Osmond. It is clear that the defendant and Mr. Scott and Mr. Moylett had little contact with Mr. McKeen, particularly in the later years, and so their evidence as to his appearance and behaviour must be viewed in that context.

To give one example, Mr. Scott gave clear and unhesitating evidence that Mr. McKeen always wore a worn-out pair of slip-on or Moccasin shoes which were held together and onto Mr. McKeen's feet by string. However, the photographs taken of Mr. McKeen's flat by Mr. Sheppard show a well-heeled and soled and good condition lace-up shoe with the laces in. There is another photograph of Mr. McKeen in the trial bundle showing him visiting a friend of his late mother. Here Mr. McKeen appears clean shaven and kempt, his hair being brushed and in place and he is suitably attired for a casual visit to a long-standing family friend.

Mr. Bruce and Mr. Osmond referred to Mr. McKeen's progressive decline. Mr. Osmond was Mr. McKeen's neighbour for the last four years of his life. On the other hand, Katherine Talbot, an employee of HSBC who took Mr. McKeen's instructions for the 2006 will, described him as smartly dressed for a professional meeting. In cross-examination, Mr. Blackett-Ord suggested that Miss Talbot had mistaken Mr. McKeen for another customer which she did not accept.

Mr. Blackett-Ord submitted that there were no smart clothes in Mr. McKeen's cupboard at the time of his death. Relating to earlier times when Mr. McKeen's mother was alive, Mrs. Gough gave evidence that Mr. McKeen did possess or had possessed smart clothes. As to the time of and shortly before his death, the photographs taken by Mr. Sheppard show clothes including trousers hanging on hangers and, as already mentioned, the shoe photographed in Mr. McKeen's flat is certainly not tramp-like and could be described as smart.

In my judgment, the probability is that Mr. McKeen was able to smarten himself up as and when he chose to, but that most of the time he chose not to dress smartly. I reach the same conclusion in relation to his behaviour, i.e., that as and when he chose to he could and did behave in a way that would not attract attention or comment as being unusual.

The second point raised by Mr. Blackett-Ord was speaking to imaginary people. I have already addressed this point in the context of the defendant's pleaded case, and my finding is that it did happen, but not constantly.

The third point was Mr. McKeen's inability to engage in employment. Certainly, Mr. McKeen was not employed, save possibly for a few days as an apprentice. However, he was an active landlord and he engaged in property-related activities, collecting rents, instructing professionals, raising at least one mortgage for an investment property, and engaging accountants to make his tax returns. His management of his properties was not methodical or organised, but neither was it completely chaotic. Mr. McKeen seems to have suited himself, engaging when and to the extent that he chose or was required to. He was, however, astute enough to apply for grants as and when available. Also in the context of his financial affairs, he instructed KPMG to look into his state pension entitlement which demonstrates an awareness of everyday life around him, and a degree of financial acumen.

The fourth point was that Mr. McKeen engaged purposelessly in buying and selling properties with which he was unable to cope. The defendant and Mr. Scott criticised Mr. McKeen's decisions to sell “good, valuable, pretty country properties and land gifted to him by his mother” and to buy instead “run-down virtual slums in towns like Hereford and Newport”. Another take on this conduct is that Mr. McKeen decided to operate in a different market where the income yield was higher. That the defendant and Mr. Scott misconstrued Mr. McKeen's property dealings is apparent from their evidence that Mr. McKeen simply accepted an £8,000 reduction on a £40,000 agreed sale which they described as a big mistake, whereas in fact Mr. McKeen had accepted an earlier offer of £38,000 for a documented and rational reason.

Mr. McKeen's property dealings, both as to maintenance and rent collection, could be inconsistent and illogical, but overall he maintained and built up both his capital base and his liquid assets. Mr. Blackett-Ord submits that Mr. McKeen's property dealings were pointless and purposeless. I disagree. They were not random. Being a landlord and engaging in property-related transactions was an occupation and a livelihood for Mr. McKeen. That he enjoyed and engaged in this activity is readily apparent from his written instructions to those dealing professionally with his property matters.

The fifth point was Mr. McKeen’s pointless change of spelling of his surname. Mr. Blackett-Ord submitted that such explanations as there are for Mr. McKeen's change of the spelling of his surname came from unreliable sources, principally Sally Conlin-Jones and also Amanda Smith, and are irrational. I agree that Sally Conlin-Jones was an unreliable witness, but I do not have the same view of Amanda Smith. Professor Jacoby considered the change of spelling to be typical behaviour in a schizophrenic. However, it occurred in December 2003, more than five months after the 2003 will and two and a half years before the 2006 will. Both Professor Jacoby and Dr. Cutting referred to schizophrenia as being time and task specific. In my judgment, this point does not signify in relation to any of Mr. McKeen's wills beyond evidencing a rift between himself and the defendant.

The sixth point raised was the role of dominating women, including Mr. McKeen's mother and Sally Conlin-Jones. The defendant and Mr. Scott say that Mr. McKeen was easily influenced, particularly by women. Mr. McKeen may well have been influenced by his mother, whom the defendant and Mr. Scott described as a force for good, but that is unsurprising and is quite normal where a child recognises that a parent can and does give valuable advice and support. It is also pertinent that Mr. McKeen's mother decided to nominate both Mr. McKeen and the defendant as executors of her will together with a solicitor, Mr. Ellis. Had she considered Mr. McKeen incapable of so acting she could easily have nominated only a professional executor, thereby not showing any preference as between her children.

As to Sally Conlin-Jones, certainly she sought to interfere in Mr. McKeen's affairs and to manipulate him, but the evidence, including that of Mr. Sheppard, is that Mr. McKeen saw through Miss Conlin-Jones and disregarded her intermeddling. How Sally Conlin-Jones behaved after Mr. McKeen's death is not an indication of how he permitted her to behave in relation to himself and his affairs.

I do not accept that Mr. McKeen was incapable of extricating himself from the control of manipulative women as Mr. Blackett-Ord has submitted. I also bear in mind that the impact of dominating women on Mr. McKeen was not put to the experts, notwithstanding his schizophrenia and thought disorder. I place no weight on this point.

The seventh point was that Mr. McKeen was not a vegetarian. Mr. Blackett-Ord submitted that in the will of a rational person such a legacy would be capricious, but in the case of Mr. McKeen who was mentally ill a gift of more than 80% of an estate worth more than £1 million was irrational. Mr. Blackett-Ord submitted that Mr. McKeen simply did not know that he was leaving more than £800,000 to a vegetarian organisation. That submission is not borne out by the evidence of Katherine Talbot as to Mr. McKeen's awareness of the composition of his estate or his intentions in relation to beneficiaries, which evidence I accept. This point, in my judgment, puts the cart before the horse. The sanity or otherwise of the bequest turns not on Mr. McKeen's partiality for food such as sausages, a full English breakfast or a traditional roast turkey at Christmas; nor does it turn on the fact that he was schizophrenic with severe thought disorder. It really turns on the rationality or otherwise of his instructions for his wills set in the context of his family relations and other relations at various times.

The eighth point was to characterise Mr. Mckeen’s choice of other legatees as “odd”. Under the 2006 will Amanda Smith is to receive £40,000, Joseph Price and Edward Fitzgerald are each to receive £20,000, Evangeline Richie is to receive £10,000, eight named individuals and the National Antivivisection Society are each to receive £5,000, and the defendant's three sons are to share £5,000. Of the eight individuals Suzanne Wall and Alan Sheppard have made witness statements and Alan Sheppard gave evidence and attended at the trial, as did his wife Lynn, another beneficiary.

None of the beneficiaries wished to participate as parties. That is not surprising because the claimants would fight the battle in any event. Amanda Smith, the largest beneficiary, gave evidence and was cross-examined by Mr. Blackett-Ord. She maintained that she was on good terms with Mr. McKeen notwithstanding that she caused, as the defendant put it, 13 Monk Street to be officially condemned as being unfit for occupation. No doubt, as Mr. Sheppard said, that caused Mr. McKeen to be angry and angry with Miss Smith. However, there is also evidence that he had a forgiving nature and it is entirely possible that in 2006 Mr. McKeen and Amanda Smith were good friends. In my judgment, the question to ask is: Did Mr. McKeen have a reason or reasons for leaving his estate to the claimants and the other legatees rather than to his family?

This leads on to Mr. Blackett-Ord's ninth point : Mr. McKeen believed he had been wronged by the defendant's family. Mr. Blackett-Ord raised two matters in particular under this heading: The dispute between himself and his sister about ownership of 13 Monk Street, and a statement or statements made by Mr. McKeen to Mr. Sheppard that his nephews had been stealing from him and his mother, including his mother's collection of Fabergé eggs said to have been worth £10,000 each.

In his witness statement, which Mr. Sheppard did not read before signing, he said that Mr. McKeen took every opportunity to speak his views about his family (that is the defendant and his nephews) to "all and sundry" which were to the effect that his nephews stole from him and his mother and that the defendant was "no good". Mr. Sheppard stated that he remembered one conversation when Mr. McKeen told him that his mother had a collection of Fabergé eggs on her dressing table at Cobbs Trump, her home, worth £10,000 each and that the three young nephews had taken them all. Originally Mr. Sheppard dated this conversation as 1997, but in his oral evidence he stated that he had signed the statement without reading it through and that the date was shortly after Mr. McKeen's mother's death in 2000.

In cross-examination, Mr. Sheppard said that Mr. McKeen used to speak ill of his nephews when he was grumbling but otherwise spoke well of them. Asked whether he thought Mr. McKeen was exaggerating in the conversation about the Fabergé eggs, Mr. Sheppard agreed that that was most likely.

Clearly, Mr. Sheppard regarded this as a yarn told by Mr. McKeen. What is significant is that there is no suggestion in Mr. Sheppard's evidence that this yarn was repeated; nor is there an indication that it indelibly coloured Mr. McKeen's view of his nephews. In addition, even on Mr. Sheppard's corrected dating of the conversation, that occurred some five and a half years before Mr. McKeen made his 2006 will.

Also on Mr. Sheppard's corrected dating, the three sons were then in their late 20s and reference to them stealing the eggs when they were young would have been to events some years earlier. It is therefore curious that this should only crop up in one conversation after Mr. McKeen's mother's death if it was a matter of genuine belief on his part. The evidence relating to this matter does not support a conclusion that Mr. McKeen believed he had been wronged by the defendant's family.

As to the dispute about the ownership of 13 Monk Street, Mr. Blackett-Ord submitted that there was a genuine dispute between Mr. McKeen and the defendant as to whether Marjorie McKean, that is their mother, had given the title to that property as distinct from the right to receive rental income to Mr. McKeen at any time in her lifetime. Mr. McKeen appears to have caused KPMG to understand that his title documents were lodged at his bank. He also appears to have asserted that the documentation had been stolen from his home. KPMG's understanding is not factually correct. As to the theft from his home, Mr. McKeen apparently said that his title documentation was in a chest at his home. The defendant gave evidence that nearly all the furniture at Rock Cottage (Mr. McKeen's home at the time) was stolen in a burglary in about 1998. So the latter explanation is by no means far-fetched.

At the time of Mr. McKeen's mother's death, the defendant viewed and described Mr. McKeen's assertion that 13 Monk Street was his as a criminal attempt to steal property. There was plainly a significant falling out over this matter during the administration of their mother's estate. This appears to have progressed or developed on the part of the defendant, in the sense that her concern became focused on the accuracy of her mother's estate account with inheritance tax in mind. In the end her instructions to Francis & Co were that she would drop the matter.

In her closing submissions, Miss McDonnell drew attention to the fact that there is no record of either the defendant or Mr. McKeen having mentioned to Mr. Ellis or Robert Allen (another partner at Francis & Co) anything about an alleged oral agreement between himself and his sister by which this dispute was resolved on terms that by his will Mr. McKeen would leave 13 Monk Street to the defendant and "a good whack" to the defendant's sons in addition to the 40% already bequeathed by his then current will. Given that Mr. Ellis had drawn three wills for Mr. McKeen, including his then current will, it is somewhat surprising that such an oral agreement did not surface in discussions with or in instructions to Francis & Co.

The conclusion I reach on the material before me is that Mr. McKeen honestly believed not just that he was entitled to the rents from 13 Monk Street but also that the property was his. The evidence as to the oral agreement viewed in the context of the dispute as relayed to and as involving Mr. Ellis and Francis & Co, leaves me unable to conclude that any such agreement as suggested by the defendant was in fact made. However, what this heading really raises is the relationship between Mr. McKeen and his sister in the round.

The defendant was not a beneficiary under any of Mr. McKeen's wills. There is no evidence that Mr. McKeen and the defendant were close as siblings. Clearly the course of their lives diverged, no doubt at least in part to the effect on Mr. McKeen of his accident. In addition, they had different values and interests. Miss McDonnell submitted that the defendant looked down on Mr. McKeen. I prefer to conclude that she felt that Mr. McKeen's life had moved beyond the range of her reach. However, what is inescapable and important is that for decades Mr. McKeen and the defendant were different and distant in every respect except blood and, until December 2003, name.

The impression I have from the evidence of both the defendant and Mr. Scott is that Mr. McKeen's presence in their company was tolerated rather than welcome. Moreover, one reason for tolerating Mr. McKeen was having an eye to family inheritance. This is apparent from the defendant's oral evidence that Mr. McKeen's estate consisted of or was derived from only family money and assets and, that being so, the estate should be left within the family. The defendant was entirely open about her belief that such an outcome should be encouraged, as indeed it was by her annual e-mail reminders to her sons to send birthday cards to Mr. McKeen.

There is no evidence, or at least none that has been drawn to my attention, that after Mrs. McKean (that is the mother) died, Mr. McKeen was made to feel or felt included within a wider family.

In my judgment, the falling out over Monk Street did not lead to an irrational grudge on Mr. McKeen's part. The reality was that, at that time, there was no sibling bond between Mr. McKeen and the defendant; moreover, there had not been such a bond even before their mother's death.

As an aside, I note that both Mr. McKeen and the defendant formed the view in the course of the administration of their mother's estate that Mr. Ellis was siding with the other party to the Monk Street dispute. On the evidence, there was no basis for this. However, it serves as an illustration of how personal interest can cause misperception and misunderstanding.

My conclusion on this ninth point is that as a matter of family dynamics the relationship between the defendant and Mr. McKeen was distant, even during Mrs. McKean's lifetime, and after her death the gulf certainly did not narrow. This is not a criticism of Mr. McKeen or indeed of the defendant. Rather it is a finding as to the consequential effect on the relationship between these two siblings of their very different lifestyles, interests, social groups and values.

The tenth point was that Mr. McKeen left nothing to the defendant or the defendant's sons notwithstanding that he promised specifically to do so. I have considered the Monk Street agreement or promise under the previous point and make no further finding, and certainly no finding to such effect.

However, a point is also raised by Rory Scott, one of the defendant's sons, in his evidence to the effect that over the years Mr. McKeen had mentioned to him and his brothers that they were his only family and one day his "empire" would be theirs. Mr. McKeen is also said to have told Rory in his (that is Mr. McKeen's) "benign moments long before Marjorie (that is Mr. McKeen's mother) died" that he, Mr. McKeen, had been given everything by his mother and had a duty to pass it on to the next generation in the family. Mrs. McKean died in 2000. Rory was born in 1981. Long before Mrs. McKean died Rory would have been in his early teens or possibly younger.

Such events as stated by Rory are possible, but not readily reconcilable with the other evidence of Mr. McKeen tolerating his nephews while they stayed with his mother during their school holidays, or with the tenor of the defendant's case that Mr. McKeen was unsocial and withdrawn. Moreover, I do not accept that Mr. McKeen was of the view that everything he had had been given to him by his mother. He took conscious decisions about buying and selling properties and he will have known and believed that he had accumulated income by his own efforts.

As noted, the defendant would send e-mails to her sons reminding them to send birthday cards to their uncle because it would "pay dividends". The transparency of this exercise was not lost on at least one of the defendant's sons who responded with an answer to the 2005 annual prompting : "Wrote John a three-page epic today. Job done. Sure he must think, oh, here's another inheritance-laced letter but got to be done."
In my view, the transparency was not lost on Mr. McKeen either.

Point 11 was Mr. McKeen's reverence for his irrational writings in the geography book. It is common ground that the geography book and the jottings were important to Mr. McKeen, and that they evidence his logical thought disorder. In his written submissions, Mr. Blackett-Ord cited the untested witness statement of Mr. Osmond, one of Mr. McKeen's friends, that Mr. McKeen had an obsession to always have the geography book with him and that he must have slept with it every night for over 50 years. Miss McDonnell had wanted to cross-examine Mr. Osmond, but because he was incapacitated by a stroke or possibly dead his evidence was admitted under a Civil Evidence Act notice.

For my part, I accept that the geography book was important to Mr. McKeen, but I am not inclined to accept Mr. Osmond's untested speculation. In my judgment, the importance of the geography book is to be measured by reference to the analysis and opinions of the expert witnesses which I have already considered.

Finally, point 12 was refusing medical help even in desperate circumstances. Following his accident and surgery in the 1960s, Mr. McKeen avoided contact with the medical profession until his admission to hospital through A&E after collapsing in the street on 6th November 2007. As to Mr. McKeen's physical condition over that period, he survived in circumstances, including no heating and self-exposure to the elements, which might have caused him to be taken ill in public or in the presence of his family, particularly his mother while alive, or in the presence of friends, but none of this occurred.

As to his physical condition in 2007, the report from the treating consultant physician and gastroenterologist following Mr. McKeen's three-day stay in hospital refers to him having low blood pressure and an impaired kidney function following two weeks of diarrhoea and vomiting prior to collapse caused by infection from clostridium difficile. The consultant’s report included that, before discharge, tests showed Mr. McKeen's condition to have improved so that his kidney function had returned to normal; blood and liver function tests produced normal results; chest and abdominal X-rays were normal as was an ECG; and that on discharge Mr. McKeen was given a tablet course to complete and advised to register with a GP.

As to his mental condition, that he was schizophrenic and suffered from severe thought disorder has already been established. He did not seek treatment for his mental condition. He did go about in public and his behaviour did not cause him to be referred or to come to the attention of those concerned with mentally ill persons. Mr. McKeen's engagement with strangers while travelling on public transport does not appear to have caused concern, and there is no evidence, save possibly for one incident, where he presented as a danger or threat to himself or to others.

Mr. Blackett-Ord submitted that in a metropolis or a large city Mr. McKeen would have come to the attention of those concerned with mental health, particularly after his mother's death, and, if diagnosed, Mr. McKeen would have been hospitalised. Both of these submissions are speculation. They received support from Dr. Cutting but not from Professor Jacoby. I make no finding to that effect.

Mr. Blackett-Ord's conclusions on drawing these 12 points together prompted submissions that (a) even if the claimants had established that Mr. McKeen could give rational sounding instructions to solicitors and others in respect of the purchase, sale, letting and taking possession of properties and even in respect of his property transactions, his behaviour was however largely irrational; (b) there was ample evidence of irrationality in other aspects of Mr. McKeen's life; (c) even though his instructions to his accountants, KPMG, appeared rational to them, on analysis they were irrational because there was no real information provided as to property expenses, and because Mr. McKeen only informed KPMG about four out of his 10 properties; and, (d) to select and identify a dozen or so beneficiaries for a large estate requires a higher level of cognition than that required merely to instruct a solicitor to perform a simple property transaction, and further the task of selecting beneficiaries of a large estate requires private thought and in this respect Mr. McKeen's thoughts were particularly disordered as evidenced by the geography book.

Addressing the 2003 and the 2006 wills specifically, Mr. Blackett-Ord submitted that the evidence shows that :

Although I have reviewed and rejected much of Mr. Blackett-Ord's submissions and the defendant's case, the burden of proof rests with the claimants. It has not been for Mr. Blackett-Ord to make good the defendant's positive case, but it is for Miss McDonnell to persuade me that her clients' positive case should be upheld.

As to the claimants' case there were three strands to Miss McDonnell's presentation of their case. First, there was the evidence led by the claimants as to Mr. McKeen's dealings with professionals in relation to his property dealings and his wills. Secondly, the claimants relied on the evidence of Professor Jacoby which they submitted was to be preferred to that of Dr. Cutting, which is the conclusion I have reached. Thirdly, the claimants relied on Miss McDonnell's cross-examination of the defendant's witnesses as having fatally undermined the defendant's case.

In relation to Mr. McKeen's properties and wills, until after his mother's death in 2000 Mr. McKeen instructed Mr. Gary Ellis of Francis & Co in relation to his property transactions and his wills of 1994, 1996 and 1998. Mr. Ellis is an experienced solicitor whom Mr. Blackett-Ord described in his closing submission as “a very steady man”. Mr. Ellis did not ever form the view, or even entertain concerns, that Mr. McKeen was incapable of giving instructions in relation to his affairs or his wills.

Between 2002 and 2007 Mr. McKeen turned to other solicitors in respect of his property affairs and to HSBC in respect of his wills. Mr. McKeen instructed Gordon Lutton, solicitors in Hereford, between 2002 and 2007. He dealt in particular with Rebecca Arborne who had then recently joined Gordon Lutton and who qualified as a legal executive in 2004. His instructions to that firm and to her included tenancy transactions, the sale of properties, including 13 Monk Street, and his change of name by Deed Poll, which Miss Arborne did not mention in her statement and apparently had forgotten until reminded in cross-examination. Rebecca Arborne had a vivid recollection of Mr. McKeen as usually unkempt and not looking particularly well cared for, but also as being polite, intelligent and humane. When considering his instructions, including instructions in 2007 to sell Monk Street, which required reconstitution of the title, nothing about Mr. McKeen or his instructions caused her to doubt his capacity.

Also during this period between 2003 and 2006 Mr. McKeen instructed James Warry & Co, solicitors in Coleford, in a dozen or so property transactions. There he dealt with Jeanette Vasey, a legal executive with many years experience. Jeanette Vasey remembers Mr. McKeen as not very well dressed, slightly unkempt, but cleanly. She had no doubt that Mr. McKeen understood the advice that she gave, including in relation to searches which he declined to instruct her to undertake, as did other clients who were cash buyers. Jeanette Vasey formed the view that Mr. McKeen knew what he was about in his property dealings, that he listened to her in discussions, and that, whether orally or in writing, he gave clear and coherent instructions.

There was no evidence from the person at HSBC who took Mr. McKeen's instructions for the 2003 will, because that person's whereabouts have not been traced. However, the evidence of Rebecca Arborne and Jeanette Vasey spanned the period in which those instructions were taken and that will was executed.

Katherine Talbot of HSBC met Mr. McKeen in July 2006. She had a 90-minute meeting with him which was the only occasion on which she met Mr. McKeen. At that meeting she took his instructions for the 2006 will. Katherine Talbot was then in her late 20s and she had been an adviser with HSBC for about five years. Although taking will instructions was not the main part of her role, she had significant experience in this field having, on her evidence, which I accept, taken such instructions from more than 200 HSBC customers.

Her evidence was that Mr. McKeen had come to the meeting well prepared, knowing the size and nature of his estate, and having a clear idea of what was to go to which legatee. He came equipped with a list of his assets, the contact details of his intended legatees and his vast wealth. Miss Talbot and Mr. McKeen discussed Mr. McKeen's family. She said that he caused her to understand that he was not near to his family in terms of relationship. Katherine Talbot was plainly satisfied that Mr. McKeen had capacity to make a will in 2006.

The other witnesses for the claimants were of less direct assistance on the issue of Mr. McKeen's capacity to make a will. Taken in the round, the evidence of Mr. Ellis, Rebecca Arborne, Jeanette Vasey and Katherine Talbot combines to produce a substantial body of professional lay evidence in support of capacity to give coherent and logical instructions concerning his affairs, and in the case of Katherine Talbot actually having capacity when giving instructions for the 2006 will.

When combined with Professor Jacoby's opinion that Mr. McKeen was able to comprehend what was required of him when making a will and to marshal and exercise his faculties in goal-related activity, I have no hesitation in reaching the conclusion that Mr. McKeen's will dated 10th August 2006 is valid. In so doing, I find that the positive case advanced by the defendant has been thoroughly undermined by Miss McDonnell's cross-examination and submissions, which I accept, including many of the criticisms of both the defendant and Mr. Scott set out in bullet point form in Miss McDonnell’s written closing submissions and elaborated upon in her oral submissions, all of which are founded upon evidence but which do not need detailed recitation in this judgment.

The plain fact in this case is that when making his 2006 will Mr. McKeen did not feel the bond of natural love and affection with his blood family that usually exists. Accordingly, he consciously decided to leave his estate elsewhere. That is a decision which the law respects and upholds.