Turner v Phythian & Anor

Mrs Iris Wilson (‘Iris’) died on about 6 October 2010 in her flat in Poplar in East London. She was a widow, her husband of many years, Alf, having died in September 2007. Iris and Alf had no children but were members of a large extended family. Iris was one of the five children of Joe Jolly and his wife Liz (nee Watson). Iris and her twin brother John were the youngest of these children. John Jolly married Jesse Jolly in 1960 and they had four children. One of those children, Lynda Turner, is the Claimant in these proceedings.

Iris died leaving the will which is contested by the Claimant (‘Mrs Turner’). The will is dated 31 August 2010. It appoints the First Defendant (‘Mr Phythian’) as the sole executor and makes the following disposal of Iris’ estate:

Mrs Turner, with the support of several members of the Jolly family, asserts that the will is invalid on three grounds. The first ground is lack of proper execution. It is alleged that the will was not signed by Iris in the joint presence of the witnesses. Those witnesses were Jean Naden, who is Iris’s sister and Jean Naden’s long-standing friend and neighbour Barbara Leslie, both of whom have given evidence on behalf of Mrs Turner. Mr Phythian who organised the signing of the will and was there at the time says that the will was properly attested.

The second ground is that Iris lacked mental capacity to make the will. There is evidence from family members describing Iris’ mental state generally and from friends of the family describing how frail Iris appeared when attending the funeral of her brother John on 25 June 2010, that is a few months before the will was made. There is also some medical evidence including a report from Professor Robin Jacoby DM FRCP FRCPsych, Professor Emeritus of Old Age Psychiatry at the University of Oxford. Mr and Mrs Phythian’s case is that although Iris was physically frail at the end of her life, she was mentally alert and in control of her financial and household affairs. They say that there is no reason to doubt that Iris knew what she was doing and that she intended to leave her estate to them.

The third ground is that Iris did not know or approve of the contents of the will. Broadly speaking, the case put forward by Mrs Turner is that Iris was part of a close knit and loving family who cared for her and looked after her for many years. She and her cousin Pat Jolly (the daughter of Iris’ older brother Billy) devoted much time and energy to looking after Iris over many years. In contrast, they say, Mr and Mrs Phythian only became involved in helping take care of Iris after Alf’s death in 2007 and their help, though welcomed by the family at the time, was not substantial - certainly not of a scale or nature that could explain Iris’ apparent decision to leave all her estate to them. They say that it is therefore highly improbable that Iris realised that she was leaving all her possessions to the Phythians.

Further in relation to this third ground, Mrs Turner relies on evidence as to what happened when Mr Phythian became involved in the drafting of a will for Jean Naden (Iris’ sister). In that will, Mrs Naden bequeathed a number of shares to him but it appears that she did not realise how valuable those shares were. When, following Iris’ death and the start of this dispute, Mrs Naden revoked the will. This event is relied on by Mrs Turner as evidence that ‘Mr Phythian was not a man to miss an opportunity for making suggestions for his own advancement’ as Mr Blackett-Ord, appearing for Mrs Turner, put it in his written submissions.

Mr and Mrs Phythian say that Iris’ relationship with her family was not as loving and warm as the Jollys have portrayed it and that, particularly towards the end of her life, Iris’ contact with her family had fallen off. Iris had become, they say, dependent on their help for her daily living and for friendship. Her intention to leave them the property North Lodge was of long-standing and given the role that they had come to play in her life, not at all surprising.

The main evidence challenging the will came from Mrs Turner and her cousin Mrs Pat Jolly, both of whom were Iris’ nieces. In their written evidence they gave a vivid description of the history and character of the Jolly family, their aunt Iris and their relationship with her from the time they were small children to the time of Iris’ death. Some of this was uncontested.

Iris’s parents, Joe Jolly and Liz Watson both came from large families and were third generation East London greengrocers. Iris never went into the family business but from an early age she was devoted to looking after her parents and their home. Pat Jolly’s evidence was that:

“The Jolly family, brothers and sisters, mother and father uncles and aunts, have always remained close because they were all in the same business. Members of the family would swap produce or help each other out picking produce up from the market, so they had to call on each other on a regular basis and saw each other every day at Stratford Market.”

Mrs Jolly describes Christmas and New Year in the Jolly household involving parties for the extended Jolly and Watson families converging on the flat in Poplar where Iris lived with her parents. She also describes family days out to the seaside, to attend the races at the Derby and Royal Ascot and how the family would frequently holiday together in their caravans.

Iris’ father Joe died in November 1960 and her mother died of a stroke in 1978. According to Mrs Jolly, after Liz Jolly’s death, Iris and Alf, who had married in 1956, lived at the Poplar flat but spent a great deal of time with John’s family both when they lived in Barking and later when they moved to Sadlers Hall Farm, a house in the countryside which could accommodate long visits from relatives as well as provide a venue for many family gatherings over the years.

The main item in Iris’ estate when she died was a property called North Lodge. This had been bought by Iris and Alf in the early 1970s. According to Mrs Jolly, it was paid for with money from Iris’ brothers and mother. The property was very cheap because the only building on it was a small broken down structure which subsequently burnt down and had to be demolished. The rebuilding of a house on the property took many years and it was completed in the 1980s. After Alf s death Iris did not regularly stay at North Lodge and the family encouraged her to sell it and use the money to buy a more comfortable and convenient home to live in. But she refused and both sides in this dispute have described North Lodge as having been kept on by Iris as ‘a shrine’ to Alf.

Iris’ husband Alf became ill in August 2007 and died in September of that year. Thereafter Iris lived by herself in the flat in Poplar.

Mrs Phythian (then Pamela Rance) met the Jollys in the 1950s when she became engaged to John Jolly. Her family was also in the greengrocery business. She became friendly with Iris at this time and was a bridesmaid at Iris’ and Alf s wedding. However, John was at the same time also involved with Jesse and when Jesse fell pregnant, John broke off his engagement to Pamela and married Jesse. Pamela later met and married Mr Phythian and they have one grown up son. Mr and Mrs Phythian are now approaching or in their 80s.

After they married, the Phythians maintained occasional contact with Mrs Naden and with Iris over the following decades but for many years this was limited to an exchange of Christmas cards.

The Phythians’ greater involvement with Iris started after Alf’s death. From the end of 2007 Mr and Mrs Phythian began visiting Iris and taking her on outings with them. Mr Phythian began to take over managing some of Iris’ finances. Particularly relevant to this case is his involvement with the upkeep of North Lodge which was situated not far from his own home. Initially North Lodge needed some repair work and there was also on-going general maintenance of both the house and the garden. Iris gave Mr Phythian instructions as to what should be done when he took on organising this in about April 2008. Thereafter Mr Phythian hired and supervised the people working at North Lodge and he paid the workmen from his own funds to be reimbursed by money from Iris. At first the repayment of his outlay on North Lodge was effected by him or Iris drawing cash out of a bank account in lots of £250, the maximum that could be drawn at one time. This arrangement lasted for most of 2008. In early 2009 it was decided that £16,000 would be transferred to Mr Phythian by Mrs Naden and that he would pay for Iris’ expenses out of that. Detailed records and reconciliations were kept over the whole period by Mr Phythian retaining all the cash slips and invoices and showing how each lot of £250 cash had been spent and then how the £16,000 was being drawn down. The money was not only used for North Lodge. In February 2009 an arrangement was put in place whereby Mr Phythian would order groceries online to be delivered to Iris’ flat and he would pay for those groceries out of the £16,000.

Mr Phythian’s assistance with Iris was not limited to financial matters. He was on hand to drive Iris round to and from family events or to a place where she liked to stay for holiday breaks. He organised the purchase and installation of a cooker in the Poplar flat and he and Mrs Phythian spent many hours there keeping Iris company.

Both Mrs Turner and Pat Jolly gave evidence and were cross-examined on their witness statements. On the whole I found them to be truthful and straightforward witnesses as regards the purely factual matters on which they gave evidence. My impression is that they were genuinely shocked by the existence and terms of Iris’ will and by what then emerged about the proposed bequest of shares to Mr Phythian in Mrs Naden’s will. Their upset at what has happened has caused them to reassess the Phythians’ relationship with their aunts and to look back at their involvement with the family since 2007 with considerable suspicion. This may have coloured their evidence particularly in minimising the scale of the assistance that the Phythians provided to Iris. It was a striking feature of this case that, in her witness statement, Mrs Turner alleged that Mr Phythian abused the trust placed in him by Iris as regards the use of the £16,000 given to him in 2009 and that he had pocketed some of the money that was not needed to pay for disbursements at North Lodge. Mr Phythian was cross-examined vigorously about the expenditure and about the appropriateness of the arrangements made for the transfer to him of £16,000 in 2009. But in the event it was accepted by the Jolly family that in fact the outgoings on the property roughly equalled the money received by Mr Phythian to pay for them and that none of the money had gone astray. The fact that these serious allegations were pursued but turned out to be baseless makes me cautious about accepting what Mrs Turner and Mrs Jolly say as regards the extent of Mr and Mrs Phythian’s contact with Iris.

Thanks to the prevalence of email as a means of informal communication, there is some contemporaneous correspondence available particularly from Pat Jolly. I regard this as valuable as it is not affected by the subsequent dispute and shows what the parties were thinking and doing at the time.

Some other members and friends of the Jolly family also gave evidence in support of the Claimant about the Jolly family generally or about particular incidents that are alleged to have occurred. There was evidence from Jean Naden, George Miller (a long-standing friend of Alf Wilson), Annie Spicer (the daughter of Iris’ mother’s sister Maud and hence Iris’ first cousin), Joan Knight (also a first cousin of Iris) and Elizabeth Lacey (Iris’ niece and sister of Pat Jolly).

Mrs Naden’s evidence calls for comment. Her witness statements covered two matters. The first was the witnessing of Iris’ will by her and Barbara Leslie. The second concerned the making of her own will and the gift of shares to Mr Phythian. Mrs Naden is now 89 years old and, according to a medical report provided to me by her GP, suffers from severe hearing and sight loss. She had considerable difficulty giving evidence in court as she could only understand questions if they were put to her loudly by an intermediary sitting right in front of her and looking at her full in the face. Once the extent of her physical difficulties became clear at the hearing, questions arose as to how her much more fluent witness statements had been prepared. It emerged that rather than a solicitor attending Mrs Naden to ask her questions and then drawing up a draft witness statement based on her answers, this had been done instead by Mrs Jolly without a solicitor being present. I consider that it is unlikely that Mrs Naden has any independent recollection of the events that are key to this case. Certainly as regards the detailed choreography of the execution of Iris’ will, as I describe below, it is not safe to rely on what she now says. There were some factual matters about which she expressed a consistent and emphatic view such as the assertion, disputed by Mr Phythian, that it was Mr Phythian’s suggestion that she leave the shares to him in her will rather than her own unprompted decision. In the event, I do not consider that it matters whether that was true or not. I note that she was equally emphatic in her recollection that Iris and Alf had not attended the Phythians’ wedding and yet at the hearing Mrs Phythian produced a photograph of the wedding party clearly showing not only Mrs Naden but Iris and Alf present as well. I intend no criticism of either Mrs Naden or Mrs Jolly in concluding that it would not be wise to place weight on Mrs Naden’s evidence.

Both Mr and Mrs Phythian gave evidence. I should say straight away that I do not regard Mr Phythian as a dishonest person. I do not believe that he decided to befriend Mrs Naden and Iris with the cynical intention at the outset of eventually drawing up their wills to his own benefit. I accept that both the Phythians devoted a great deal of time to helping and caring for Iris. This extended beyond control of her finances and dealing with North Lodge to visiting and chatting with her. I find that Mr Phythian was meticulous as regards the handling of Iris’ money which was used to reimburse him for the monies that he laid out for work done at North Lodge and for Iris’ grocery deliveries. I do not regard the way that the £16,000 was transferred to his personal bank account, instead of into a separate bank account in his name in January 2009, as suspicious or improper.

However, I find that he has exaggerated his connection with the Jolly family when it suited his purposes. In an email to Mr Murdoch, Mrs Naden’s solicitor, in the course of the initial discussions about Mrs Naden’s will Mr Phythian said that he and his wife “have been part of the Jolly family for over 50 years” as a reason why he, rather than any member of Mrs Naden’s family, was dealing with her will. This he had to accept in cross examination was not true. He agreed that he had never been invited to the many Jolly family weddings and other celebrations. He did not really see any of the members of the Jolly family other than Jean and Iris.

I have concluded that the help that he and Mrs Phythian gave Iris, as well as his rather judgemental and disapproving attitude towards her family, have generated in Mr Phythian’s mind an inappropriate sense of entitlement to Iris’ property. This has in turn affected some of Mr Phythian’s evidence. In particular, I found that his attempts to downplay Pat Jolly’s role in caring for Iris as evidenced by her contemporaneous emails to him and his description of Mrs Jolly as ‘pushy’ were entirely unwarranted.

Mrs Phythian’s evidence was of more limited scope than Mr Phythian’s. She is of course the major beneficiary of the will that she and Mr Phythian are propounding. I accept her evidence, broadly speaking, about how often she visited Iris and I am sure that Iris valued her friendship and company. However, I found the expression of her supposed distaste at the way in which Mrs Jolly wrote, in confidence, to Iris’ doctor about Iris’ health problems was contrived and unconvincing. In the end I have not found it necessary to resolve the various disputes of fact between Mrs Phythian and the Jolly family for example as to whether she ever met Mrs Turner at Iris’ flat or not.

It is common ground that this was the first will that Iris had made. Evidence about how the will came to be drawn up came entirely from Mr Phythian. He said that Iris first mentioned her wish to make a will when Mr Phythian was driving her home from her brother John’s funeral on 25 June 2010. She referred particularly to the arrangements that she wanted to make for her own funeral. Mr Phythian then prepared a ‘work sheet’ for use in taking her instructions. He met Iris at her flat in early August 2010 and went through the work sheet with her. There had not been any discussion about the will between the journey back from John’s funeral and the meeting at Iris’ flat.

The work sheet is a single piece of paper on which Mr Phythian had typed six questions dealing with the various provisions that would need to be included in her will. Mr Phythian says that he read out the questions and wrote down Iris’ answers in manuscript on the form. Under the question whether she wanted to leave any cash gifts there is a dash. Under the question ‘Detail gifts (chattels) other than cash i.e. personal domestic household and furniture items and who is to have them?’ Mr Phythian wrote ‘Furniture to Pam’. Under the question ‘Who do you wish to gift North Lodge to?’ Mr Phythian wrote ‘Pam & Richard’ and under the question ‘Who do you wish the residue of your estate to go to after funeral and administration charges have been paid out i.e. savings?’ he has written ‘Pam’. He also made a note of some details of the funeral arrangements although he had already typed in answers based on what Iris had told him in the car in June. Mr Phythian took the work sheet with him after the meeting.

On the basis of this conversation Mr Phythian drafted a will in which, as I described, all Iris’ property was left to him and his wife. Mr Phythian’s evidence was that this was the first will he had ever drafted. He took the draft will to Iris’ flat when he was visiting her for another purpose on 23 August 2010. He says that he read the will out to her and left it with her unsigned. Mr Phythian then made arrangements for the will to be signed at Mrs Naden’s home. Mr Phythian went to collect Iris from her (Iris’) flat on 31 August 2010. At the flat, he says that he again read the will out to her and that she ‘expressed satisfaction with the content which, she said, accorded with her wishes’. He then took her to Mrs Naden’s home in Ilford where the will was signed.

Mr Phythian emphasised both in his witness statement and in cross-examination that he had strongly encouraged Iris to seek advice from a solicitor and told her that he could arrange this. She refused to do so - it seems to be common ground that Iris never liked to seek any kind of professional help whether from doctors or lawyers.

Section 9 of the Wills Act 1837, as substituted by the Administration of Justice Act 1982, provides that no will shall be valid unless the testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

The dispute between the parties, turns on a tiny detail of who was standing where at the precise moment that Iris signed the will. Mr Phythian’s evidence is that at the time the will was signed, Mrs Naden and Iris were not on good terms. He says that Mrs Naden was therefore standing in the kitchen when he and Iris were in the sitting room, but that she came into the sitting room when Mrs Leslie arrived and stood by them at the table when Iris signed the will. He says in his witness statement:

“There was only one chair in place at the end of the table for signatories of the Will and Iris signed in the presence of both witnesses followed by Barbara and then Jean in Iris’s presence and in each others presence. I distinctly recall Jean turning to Barbara to ask if she should enter her occupation as ‘Housewife’ to which Barbara replied in the affirmative. I can categorically say that at the execution of the Will all the signatories were present in the living room and knew the purpose of the meeting.”

Mrs Leslie says in her witness statement that she went over to Jean Naden’s house on 31 August 2010 and that when she arrived there, Iris and Mr Phythian were seated at the table. After a few minutes chat, Mr Phythian asked Iris to sign the will. At this stage, she says, Mrs Naden was not sitting at the table but was in and out of the room making tea. Mrs Leslie saw Iris sign the will and then she signed it herself. Mr Phythian then called Mrs Naden over to sign the will and she did sign it. Mrs Leslie says that Mr Phythian then went into the kitchen with Mrs Naden to finish making the tea and Mrs Leslie had a short conversation with Iris about the plan that Mr Phythian was going to help her buy a new cooker.

When she was cross-examined Mrs Leslie was not so sure. She said that when she arrived Mrs Naden was going backwards and forwards to the kitchen and that once the will had been signed, Mr Phythian went out to the kitchen to help Mrs Naden make tea for everyone. She then said that she could not say what Mrs Naden had seen when she (Iris) signed the will.

Mrs Naden’s evidence is that when she was called over to the table by Mr Phythian to add her signature, the will had already been signed by Iris and Mrs Leslie. However, as I have explained, I very much doubt that she has any independent recollection of who was standing where at the precise moment that Iris signed her will.

On balance therefore I have concluded that the will was properly attested. Mr Phythian, in undertaking to help Mrs Naden and Iris make their wills, had made it his business to understand the attendant formalities and he had been present at the execution of Mrs Naden’s will a few weeks earlier. I am sure he understood what was required and of course he had every interest in seeing that the formalities were properly adhered to. I therefore reject the allegation that the will was not properly attested.

As regards the test for mental capacity in making a will, I was referred both to the common law cases and to the statutory test in the Mental Capacity Act 2005.

So far as the case law is concerned, the test for whether a testator has capacity to make a will is set out in Banks v Goodfellow (1870) LR 5QB 549. The testator must be able (a) to understand the nature of her act, that is, making a will, and its effects, (b) to understand the extent of the property of which she is disposing, and (c) to comprehend and appreciate the claims to which she ought to give effect. She must not be subject to any disorder of mind as shall "poison [her] affections, pervert [her] sense of right, or prevent the exercise of [her] natural faculties".

Section 2 of the Mental Capacity Act 2005 provides so far as relevant:

“People who lack capacity.

2.

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)

It does not matter whether the impairment or disturbance is permanent or temporary.

(3)

A lack of capacity cannot be established merely by reference to—

(a)

a person's age or appearance, or

(b)

a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.”

I did not hear any submissions as to whether this test differed from the common law test, though the latter is more expressly tailored to the issue in this case.

The burden of proof as regards mental capacity was considered by Briggs J in Key & another v Key and others [2010] EWHC 408 (Ch) where he said:

“The burden of proof in relation to testamentary capacity is subject to the following rules:

(i)

While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears

rational on its face, then a court will presume capacity.

(ii)

In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.

(iii)

If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.”

Although Iris’ will was duly executed and appears rational on its face, I find that there is ample evidence produced by Mrs Turner and the Jolly family to raise a real doubt about Iris’ capacity at the time she made her will and to shift the burden of proving capacity to Mr Phythian.

First, she was a person whose mental state was fragile throughout her adult life, particularly in response to bereavement. This is evidenced by the fact that she became depressed after her nephew, Mrs Turner’s youngest brother known as Little John, was killed in a road accident just outside John and Jesse’s home in 1974 when he was four years old. In 1977 Iris was seen at an emergency psychiatric clinic where the doctor recorded that she was suffering a reactive depression. Shortly after that visit Iris was admitted to a psychiatric hospital where she stayed between 20 May and 10 June 1977 suffering from reactive depression. In her medical notes there is a letter dated 28 January 1987 from a consultant cardiologist at the London Hospital to Iris’ GP who was treating Iris for hypertension. He records ‘it sounds as if she has had a severe depression in the past year and at the moment she remains moderately depressed, introspective and anxious’. In 2007 Iris suffered a strong bereavement reaction on Alf’s death and was prescribed amitriptyline, an anti-depressant drug.

Secondly there is evidence in the correspondence between Mrs Jolly and Iris’ GP in May 2010 in which Mrs Jolly expresses her concern about her aunt’s mental health, describing her as having become reclusive, spending a lot of time in bed and receiving no visitors. Mrs Jolly was also in contact with the Adult Care team at TowerHamlets Social Services. In the initial email of 21 May 2010 seeking help from them, Mrs Jolly wrote:

“I know she is physically unwell, but I now believe that she has some mental issues, which she hides extremely well. She’ll talk to a stranger quietly and calmly and come over as being in control. However, we as her family see her other side which is nasty to say the least.”

Following John’s death in June 2010, the correspondence focused on trying to arrange a visit of the social worker to Iris. After the social worker reported to Mrs Jolly that she had attended Iris’ flat but received no response when she knocked at the door, Mrs Jolly wrote:

On 18 August 2010 (that is shortly after Mr Phythian visited Iris with the work sheet and she had, he says, given instructions as to the will) Mrs Jolly wrote to an electrician who was supposed to be visiting Iris to correct an electrical fault with the emergency pendent she had been provided with. She wrote:

“I tried calling my aunt this evening to tell her about our conversation, but she has taken the phone off the hook. This is what she does when she gets upset about anything. I told you she lost her husband 3 years ago, well the anniversary of that is coming up soon. Also she lost her twin brother in June so she is grieving over him as well. She really is very fragile mentally.

... So when Iris goes into this mode it’s difficult to say when I will be able to speak to her. So can I call you as soon as I have got through to her and explained to her what the intentions are. But obviously I don’t know when that will be. I usually call every day till I get through to her. Sorry Dave, this is a bit of a pain trying to organise anything with her and for her. Can I get back to you whenever??????????”

In my view, therefore in August 2010, when the will was made, Iris’ past history, her severe reaction to Alf’s death in 2007 and the contemporary evidence in Mrs Jolly’s emails indicate that Iris was likely to be undergoing a severe grief reaction to John’s death.

Thirdly there is the evidence of the people who saw Iris at John’s funeral on 25 June 2010, shortly before she made the will:

I have seen photographs taken at the funeral which show a rather dishevelled and very thin elderly woman being supported by family members.

Mr Phythian challenged this evidence and said that although Iris was physically frail she was not vague or confused. On this point, though, I prefer the evidence of the Jolly family witnesses to his evidence.

Finally there is the Medical report of Prof Jacoby to whom I referred earlier. He did not examine Iris at any stage so his opinion is based solely on reading the same material that has been placed before me. He states that the evidence of the lay witnesses that I have set out above is ‘consistent with a severe, even psychotic depression or pathological bereavement reaction suffered by the testatrix’. He continues:

“The features consistent with a severe affective disorder include: marked weight loss, cognitive impairment, such as failure to recognise relatives at John’s funeral; social isolation and deterioration in self-care.”

This evidence is certainly sufficient ‘to raise a real doubt as to capacity’ to adopt the phrase of Briggs J. in Key v Key.

Is there any evidence put forward by Mr Phythian then to establish that Iris did have capacity to make the will? His evidence is that Iris did not seem particularly distressed over John’s death. She was calm when she spoke to him on the phone on the morning of the funeral to ask him to drive her to the funeral and she was able to speak to him calmly in the car afterwards. I do not accept that this is evidence that Iris was not deeply affected by John’s death. People in bereavement are often able to maintain a semblance of calm when talking with friends. Mr Phythian was wrong, in my judgment, to interpret Iris’ composure as an absence of feeling about John’s death.

Mr Phythian also recalled that Iris had told him about various angry rows that she had had with John over the years. Iris had, he said, mentioned an incident when John ‘threw her out of the house’ and another time when, in a fit of anger at her flat, John had kicked a holdall that contained Alf’s clothes that had been brought back from the hospital after Alf died. I have formed no firm view as to whether these events actually occurred. Mrs Jolly’s evidence also indicated that John was not without his faults. But again, Mr Phythian would have to have very little understanding of human nature to interpret Iris’ complaints about John’s behaviour as meaning that Iris would be unperturbed by her twin brother’s death. It does not follow from the fact that Mr and Mrs Phythian clearly took a strong dislike to John or considered him unworthy of Iris’ affection that Iris too had become so disenchanted with her brother that her mental equilibrium would be unaffected by his sudden death. On the contrary, there is plenty of evidence to show that Iris was devoted to John and his children, even though she may on occasion have complained to the Phythians about him or have recounted to them incidents of misconduct on John’s part.

Various other minor comments made by Iris have been recalled by Mr Phythian to cast doubt on the closeness of her relationship with John. It was suggested that she resented John’s decision to sell his house in Barking in 2004 because she and Alf wanted the house. As to this latter point, I accept the evidence of Mrs Jolly that, although Iris very much wanted to have the house and was upset that this was not possible, she did not blame John for this. She realised that she and Alf did not have the money to buy the house themselves and that John could not afford to service a bridging loan to keep that property going as well as the house he needed for his own family. Further, the decision to sell the house was triggered by the tragedy of Little John being killed on the busy road just outside the house. I do not accept that in those circumstances, Iris would have resented John’s decision to sell the house.

Mr Phythian also relied on some of the emails from Mrs Jolly which I set out below recording that Iris had expressed the wish to have a washing machine installed at the flat in Poplar and that she was objecting to having the keys in a box outside her flat as part of the arrangements for the emergency pendant. This showed, Mr Phythian asserted, that Iris had a firm grasp of her affairs and was able to resist what he saw as Mrs Jolly’s attempts to push Iris about. I do not see that the emails bear that interpretation. On the contrary the emails show that Iris was struggling to manage fairly simple household tasks; that she was easily upset and distressed by small domestic travails such as running out of bread (something about which there was also considerable email correspondence between Mrs Jolly and Mr Phythian). They do not give a picture of someone in control of her own affairs.

Taking all this evidence together I conclude that at the time the will was executed Iris was suffering from an affective disorder brought about by her deep grief at the death of her brother, combined with her continuing fragile mental state arising from her advanced age, her physical frailty and her continuing grief for her husband.

I therefore find that Iris did not have mental capacity to make the will.

The fact that I have found that Iris did not have mental capacity to make the will means that she did not know or approve of the contents of the will either: see the comment of Briggs J in Key v Key, paragraph 116. However, since most of the evidence dealt with at the hearing has been directed at this ground of challenge I will set out my findings on it, without descending into some of the detail of the disputed facts.

So far as the burden of proof on this ground is concerned, the most significant factor here is that it was Mr Phythian who drew up the will under which he and his wife were the exclusive beneficiaries. In Barry v Butlin (1838) 2 Moore’s Privy Cases 480, at 482-3, Baron Parke described the rules that apply in such a situation in the following terms:

“These rules are two; the first that the onus probandi lies in every case on the party propounding a will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator.

The second is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought

generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased”.

This is, in my judgment, the clearest possible example of a situation where the court must be ‘vigilant and jealous in examining the evidence in support of the instrument’.

First there are the circumstances surrounding the preparation of Iris’ will itself. There is no evidence other than that of Mr Phythian of any intention expressed by Iris of leaving any property to the Phythians. He accepts that she did not mention to any other member of the family that she intended to make a will or to leave anything to Mr Phythian beyond North Lodge. The only written record of any instructions given by Iris about her will is the work sheet prepared by My Phythian and on which Mr Phythian has made the entries in his own hand.

There is no evidence from anyone other than Mr Phythian that Iris ever read the will or had the will read out to her; he accepts that that she did not read the will in Mrs Naden’s flat before she signed it and Mr Phythian does not assert that there was any explanation or discussion of the contents of the will or acknowledgement of the content by Iris in the presence of Mrs Naden or Mrs Leslie.

All discussions between Mr Phythian and Iris about her will took place when only the two of them were present and no notes were taken by either of them other than the work sheet I have described. Iris did not receive any independent advice on the making of her will although I accept that Iris refused to see a solicitor when it was suggested by Mr Phythian.

In addition, there is the earlier incident when Mrs Naden made provision in her will leaving all her stocks and shares to Mr Phythian. As to how this bequest came about, again, Mr Phythian’s evidence is that Mrs Naden enlisted his help in drafting her will in April 2009 when it became clear that her husband Frank was intent on leaving his half of their home to his niece in his own will. Discussions between Mrs Phythian and Mrs Naden were suspended following Frank’s death in January 2010 and were picked up again in June 2010. Mrs Naden signed her will on 2 August 2010, that is at about the same time that Mr Phythian went through the work sheet with Iris.

The gift of shares in the will was supposed to be in recompense for Mr Phythian’s future help in dealing with her estate and was in addition to a legacy of £2,000 for Mrs Phythian bequeathed separately by Mrs Naden as thanks for Mr Phythian’s work in helping her draw up the will and more generally. Mr Phythian accepts that in June 2010, when instructions for the will were given, Mrs Naden had no idea of the value of the shares. Mrs Naden’s evidence which was not challenged was that she thought they would be worth £100 - £200. In fact Mr Phythian knew in June 2010, because he had seen a note of their value during their earlier discussions about her will in January, that the shares were worth about £18,800.

Mr Phythian must have realised therefore that the bequest that Mrs Naden was proposing to make to him was much larger than could possibly be justified by the work that would be involved in such a small estate. It was also of far greater value than any bequests she had made to any other specific legatees in the will, including the gift of £5,000 made to her long time friend and neighbour Mrs Leslie.

Mr Phythian’s answer to this is that Mrs Naden took independent advice on the making of her will from a solicitor, John Murdoch. Mr Murdoch was introduced to Mrs Naden by Mr Phythian. There is considerable email traffic between Mr Murdoch and Mr Phythian about the formalities of the drafting of Mrs Naden’s will and the proper wording of the different clauses but not about the options open to Mrs Naden as to who should be her beneficiaries. There is no evidence that Mr Murdoch took any steps to ensure that Mrs Naden understood the value of the bequest of shares. Mr Phythian’s evidence was that he was present whenever Mr Murdoch was speaking to Mrs Naden and that in fact he acted as intermediary on these visits, conveying Mr Murdoch’s questions to Mrs Naden. I consider that it is unlikely that Mr Murdoch would have felt able to query with Mrs Naden the wisdom leaving this significant bequest to Mr Phythian at such a meeting. I reject the suggestion that Mr Murdoch’s involvement in drawing up and executing Mrs Naden’s will amounted to independent advice as to the appropriateness of the bequest to Mr Phythian. I also reject Mr Phythian’s evidence that once Mr Murdoch had been introduced to Mrs Naden, his own role in the making of the will was more limited. That is not borne out by the email exchanges I have seen.

I find that the circumstances of the making of Mrs Naden’s will show a serious lack of judgement on the part of Mr Phythian as regards the appropriateness of the gift under Mrs Naden’s will. This is an additional factor that adds to the need to be vigilant as regards the dispositions to him under Iris’ will.

The third aspect which has caused me concern is the paucity of the instructions, even on Mr Phythian’s evidence, given to him by Iris as to the provisions of her will. He said that when they went through the work sheet together in Poplar, he asked her what she wanted to do with her belongings in the flat. He said that she looked around her, ‘shrugged her shoulders and said “there is nothing of any value here’”. Iris went on to say that Mrs Phythian could have what she wanted because the furniture was more to her taste than it was to Mrs Turner’s. That prompted Mr Phythian to write “Furniture to Pam” in the relevant place on the work sheet.

As to the value of the furniture that was left to Mrs Phythian, I note that in the email of 10 October 2010 from Mr Phythian to Mrs Turner and Mrs Jolly shortly after Iris’s death, Mr Phythian wrote, among other things:

“As already advised when we last met, Pam wants the antique furniture from the flat and she has listed these as the chaise- longue, the matching carver chairs, the davenports, several items in the second bedroom including a large circular table and 2 tables in the hallway. I shall arrange for collection of these items from the flat later this week”.

It seems that Mrs Phythian did not share Iris’ apparently dismissive attitude to the furniture in the flat.

I asked Mr Phythian in the course of his evidence whether there had been any discussion between him and Iris about specific items other than the furniture and North Lodge and he said there had not. Yet Mr Phythian treated this discussion as Iris’ instructions to him to draw up a will in which all her personal belongings and all the residue of her estate went to him and his wife. In the event there were other items of significance in Iris’ estate. She left £24,000 in her bank account as well as some cash in the flat. There were various items of memorabilia that were of great importance to the Jolly family but of little meaning to Mr and Mrs Phythian. Foremost among these were Alf’s war medals from Burma. Mrs Jolly’s evidence about Alf’s war medals in particular was that:

“Alf served in Burma during the war, but John always said that Alf was telling lies, he didn’t go to Burma. When Alf died I asked Iris if she would like me to get Alf’s medals from the MOD and she agreed, so we did. When we got the medals, there were four in total and one was the Burma Star. Iris took great pleasure in telling John this fact. Alf did not lie about his service. I am the keeper of the family history and I asked Iris “Please, if anything ever happens, can I have Alf’s medals?” and Iris said “Pat of course you can have them, you are the only one who believed about Alf and helped me get his medals to prove it”. So I know Iris would at least have left me those medals if nothing else”.

Although it is agreed that the Burma medals at least were on display in the flat, Mr Phythian did not draw these to Iris’ attention.

Mrs Jolly also refers to family photographs, Iris’ parents’ and grandparents’ jewellery and porcelain figurines that had belonged to Iris’ grandmother and other items such as Little John’s baby clothes and a family cot used for several generations of babies in the Jolly family. Mrs Spicer’s evidence was:

“My gran gave my mum a pair of earrings. My mum asked her sister Liz to look after them, when my aunt Liz died, Iris had them because she told me. They were blue and looked like blackberries. Iris had all the jewellery, I wasn’t worried that she had it. There was a lot of jewellery that she had, all my uncle Joe’s gold watches that he used to wear on a chain. She would not have left these items to people who were not part of the family”.

It is clear that Iris did not have these items in mind at any time when she was giving instructions for her will or supposedly approving the content of the will. I do not accept that by shrugging her shoulders and saying that there was nothing of value in the flat, Iris was in fact giving instructions that all her money, jewellery, family memorabilia and other personal effects should be left to Mrs Phythian.

The Phythians’ case is that Iris decided to leave all her property to them because she was not on good terms with her family and that they neglected her during her final years. Mr Phythian said that once the family saw that he and Mrs Phythian were helping Iris, ‘everyone seemed to walk away’. Iris then became entirely dependent on the Phythians. He described the contact between the Jollys (other than Jean Naden) and Iris as ‘fleeting and irregular’.

There are various aspects of the relationships that need to be considered. The first is how strong the bond was between Iris and the rest of the Jollys throughout her life. This is relevant because a testator’s disposition of property is not usually based only on the behaviour of their family over the months just before the will is made but on the relationship over a lifetime. The second aspect is as to the situation in the year or so immediately before Iris’ death. Is it true that the attention paid to her particularly by Pat Jolly and Mrs Turner dwindled and if so, does this, contrasted with the care and attention given to her by the Phythians explain why Iris decided to leave her whole estate to the Phythians ?

I have already described the Jolly family in general. What was her relationship with Mrs Turner and Mrs Jolly? Mrs Turner’s evidence was that when she was a young child, she lived with her family close to Iris and Alf and that they were a constant part of her life. Even after Mrs Turner moved out of central London with her family, Iris and Alf would come to stay with them for long periods. After Mrs Turner married, she and her husband continued to spend a great deal of time at her parents before purchasing their own home or while their own home was being renovated. After she and Mr Turner moved to Billericay she continued to see Iris all the time when visiting her parents. When Iris and Alf were staying in Poplar, Mrs Turner would go to visit them regularly - at least once a week and would speak to her regularly on the phone. She concludes in her witness statement by saying:

“Iris always has been and remained until her death a vital part of the family and she was much more than an aunt to me. She has been someone who had been involved in my life from the outset and was very much like a second mother to me. I loved her dearly.”

So far as concerns Mrs Jolly’s involvement with Iris, she described in her witness statement how she was often taken care of by Iris when she was a child because her parents, Billy and Bette were running a market stall. More recently she has lived near Maidstone in Kent and does not have a car so that her ability to visit Iris in Poplar was more limited. However I have already referred to the emails that she sent to TowerHamlets Social Services about trying to organise various things for Iris - help that Iris was clearly aware of.

Mrs Spicer, (Iris’ cousin) said in her witness statement that Pat went to the hospital every day with Iris during Alf’s last illness. She said “Pat was in regular contact with Iris throughout her life and was her friend and companion, as well as helping to look after her, in the last years before Iris died”. She also says that she knew that Iris loved Mrs Turner very much and was exceptionally close to her brother John and ‘adored his children’. Mrs Knight said that in her view, because Iris and Alf never had children of their own, they doted on her brother John’s children. She says “Iris was very close to Pat and adored Lynda who both stood by her and cared for her for the last few years of her life.”

Mr Phythian, it appears to me, has fastened on particular small events and elevated them in his own mind to evidence of neglect of Iris by her family. For example, he suggested that Mrs Turner’s family refused to make arrangements for Iris to attend John’s funeral or that she was excluded in some way from attending the wake afterwards. He says that she felt ‘shunned’ by the family. On this point I accept the evidence of Mrs Jolly and Mrs Turner that the decision to ask Mr Phythian to bring Iris and collect her was simply one of many elements of the day’s arrangements that had to be organised and that since he said he would drive her, the family were happy for him to do so. It did not necessarily mean that the family were otherwise refusing to accommodate her. The pictures I have seen of the funeral show Iris very much in the centre of the proceedings and being comforted and cared for by the family.

Further, although there is evidence of ups and downs in the relationships between members of the Jolly family, there is no evidence that this was reflected in Iris’ decisions about the disposition of her estate. I have already noted that this was Iris’s first will - she was not someone in the habit of frequently remaking her will to benefit or disinherit relatives as they fell in and out of her favour. There is no evidence here of anything approaching the kind of rift between Iris and the family that might have prompted her to decide to disinherit them in favour of Mr and Mrs Phythian.

After Alf’s death in 2007, Mrs Turner recalls that Iris became weaker and frailer and lost a great deal of weight. Mrs Turner says that she continued to see her regularly at her parents’ house where Mrs Turner was helping to run John’s business and also visited her in Poplar at least once a week. After John’s death, Mrs Turner continued to support Iris by visiting her and providing shopping when required.

Mrs Jolly said in her witness statement:

“As Iris stayed at Sadlers Hall Farm regularly, Lynda would often take Iris up to the cemetery to visit Alf’s grave. Once Iris returned to her flat, Lynda would still continue to visit her and on special occasions like Alf’s birthday and Christmas time and the Anniversary of his death Lynda would continue to collect Iris and take her back to Sadler’s Hall Farm. As Alf’s birthday was in the November, Iris would remain there through to Christmas time and then Iris would ask to go back to her flat.”

So far as Mrs Jolly’s continued contact with Iris is concerned, in addition to the emails she sent to TowerHamlets social services, she also wrote to Mr Phythian between July 2010 and Iris’ death in October 2010. In these emails Mrs Jolly explains to him the different kinds of help she was trying to organise for Iris. For example in an email of 7 July 2010 Mrs Jolly told Mr Phythian about her discussions with Iris about who should be the listed contacts in the event that Iris activated her emergency pendant. Mrs Jolly wrote:

“... I have just come off the phone from Iris and all she talks about is Lynda and yourself helping her. ... Just recently I came home to a message on my answering machine where she was in a right state babbling about all kinds of things, the main thing being she couldn’t contact anybody, no one was answering their phones. What she really meant was Lynda wasn’t answering her phone. She was in a real panic. I called her and calmed her down. Half the time Lynda answers or calls her back because she is busy dealing with other things, that’s not a sleight on Lynda, it is just the way it is, she has a lot on her plate, more so than ever now.”

In the same email Mrs Jolly expresses her concern that if they pursue the idea suggested by TowerHamlets of arranging counselling for Iris, ‘Iris would go back into shut down mode’.

There are also emails sent on 16th and 18th August 2010 where Mrs Jolly sends Mr Phythian a shopping list for Iris and then deals at some length with keeping him up to date and ‘in the loop’ about various matters including the visit of the electrician to solve the electrical problems caused by the emergency pendant. She goes on to write:

“I have emailed Lynda to bring her up to date, and push her along to get the flat screen TV for Iris’s bedroom that she asked for, so that can be one job ticked off the list. And once we get this ‘electrickery’ sorted out I think I will try to talk Iris into having a frost free fridge freezer. Maybe next time you are up there Richard if it’s before me, you could take the width and depth measurements. I can try to get that in, then get the local authority ... to arrange to get rid of the old fridge freezer. I’ll look into that one in the meantime”.

There is considerable correspondence about Mrs Jolly’s and Mr Phythian’s collaboration in buying a new cooker for Iris and subsequently with Mrs Jolly’s attempts to explain to Iris how to use the new cooker once it was installed. She writes:

“Iris called me today, still talking about not being able to work the cooker. I told her, just to switch one knob on and work out from that which plate is hotting up and if it is the oven, then when she’s worked that out, to go onto the second knob and so on and so on. ...

THEN she told me that it is getting harder to do her washing, and that she thinks perhaps she would like a washing machine.

I told her that they are nearly all computerised and that if she

couldn’t work out 3 knobs on a cooker, how the hell does she think she can work a washing machine. Then she said that she has a washing machine down the house. I dunno what’s gonna happen now.”

These emails were, of course, written at a time when, unknown to Mrs Jolly, Mr Phythian was in the course of preparing Iris’ will. They cannot have been affected by the dispute that has later emerged. Far from showing that Iris was being neglected by her family, they show that Mrs Jolly and Mrs Turner were in regular touch with Iris and persisted in trying to help her despite the frustrations that Iris’ sometimes uncooperative behaviour generated.

Mr Phythian’s case that Mrs Jolly and Mrs Turner were not in fact visiting or helping Iris seems to have been based on three matters. First, when he asked Iris whether she had heard from Mrs Jolly or Mrs Turner she said she had not. I am prepared to accept that this is true. Indeed Mrs Turner’s evidence was that she would sometimes be given a long update on Iris’ condition by Mrs Jolly over the phone but then Iris would tell Mrs Turner that she had not heard from or seen anyone from the family. Perhaps Iris really believed what she was saying or perhaps she realised that people were likely to pay her more attention and visit her more often if they thought she was being neglected by everyone else. This latter tactic, if such it was, certainly appears to have been successful with the Phythians. Whatever the reason, most people would have recognised that Iris’ complaints should be taken with a pinch of salt, particularly given the emails that Mr Phythian was receiving from Mrs Jolly. No reasonable person would have concluded, as the Phythians claim to have done, that Mrs Jolly was deliberately painting a false picture of her aunt’s situation in her correspondence with the TowerHamlets social services or with the Phythians.

Mr Phythian also relies on the fact that it appears from the Post Office bank account into which Iris’ pension was paid that the withdrawals from the account occurred less frequently in the year or so before Iris’ death than previously. Since it was generally Lynda Turner who withdrew the pension to take to Iris, Mr Phythian invited me to infer from the drop in frequency of the withdrawals that Lynda’s visits to Iris had become correspondingly less frequent.

However, Mrs Turner’s evidence which I accept was that her visits to Iris were not only concerned with taking her the cash from her pension; she visited her for other reasons as well. Mrs Turner also told me that she took money to Iris that her father John wanted to give to Iris. Mrs Jolly referred to the fact that Iris had lived a very frugal life from when she was a young girl and that various members of the family ‘had subsidised her’, first her parents, and then her brother John and sister Mrs Naden. There was evidence both from the Jolly family witnesses and Mr Phythian that Iris kept substantial amounts of cash in the flat. It does not seem that she was dependent on the pension being drawn out and taken to her.

Finally, much was made at the hearing of the allegation that Iris spent the Christmasses between Alf’s death and her own death by herself in the flat in Poplar. Mr Phythian relied on this as showing that the family callously left their elderly and grieving relative on her own at that difficult time of year. In fact it seems that one of the Christmasses Iris did spend with Mrs Turner and the family at Sadlers Hall Farm. As to the first Christmas, Mrs Turner’s evidence on this point was that Iris would have been invited to stay with members of the family but:

“... she could be very stubborn and when she was very sad or depressed she preferred to be on her own. She was the kind of woman who would think of past things and think of certain times when she had not conducted herself properly with Alf and it was a kind of punishment to herself to stay at home”

This is consistent with the contemporaneous evidence about Iris’ state of mind generally and I find that it is not the case that Iris was left by herself at Christmas because of neglect on the part of the Jolly family.

The focus of Mr Phythian’s evidence was on North Lodge which was the main asset in Iris’ estate. In his witness statement Mr Phythian said that when she told him in early August 2010 that she wanted to leave North Lodge to him and Pam:

In cross-examination he accepted that the first that he had heard about this intention was a comment from Mrs Naden in January 2009 when Mrs Naden told him that she was aware of Iris’ intention to leave North Lodge to him and that she approved of this. I find the suggestion that Mrs Naden would, unprompted, have started discussing Iris’ intentions with Mr Phythian goes against everything that I have heard in this case about the Jolly family. Mr Phythian himself relies on the fact that they are a very private family and do not want other people to know their business. That is why, he says, he never mentioned to Mrs Jolly or Mrs Turner that Iris had made a will. As at January 2009, Iris had not discussed making a will with Mr Phythian. I do not believe that Mrs Naden would have raised this matter with Mr Phythian. I am sure that Iris expressed her gratitude to Mr Phythian for all his help with the upkeep of North Lodge and that Mr Phythian has himself formed the view that in fairness he should inherit the house. I do not believe that Iris ever linked her gratitude for his help with an intention to leave him the property in her will before the discussion of the work sheet in early August 2010.

There is the further point that North Lodge was bought with funds provided by other members of the family rather than by Iris and Alf themselves. I accept the Jolly family’s evidence that this is another reason why it is very unlikely that Iris would have consented to leave the house to someone outside the family.

I therefore find that Mr Phythian has not provided any cogent evidence that Iris understood what she was doing when she responded to the questions posed to her on the work sheet and then signed the will that Mr Phythian drew up. Taking into account all the evidence I have heard about how the will came to be made and the relationship between Iris and her family on the one hand and the relationship between Iris and the Phythians on the other hand, I am sure that Iris could not have known or approved of the contents of her will. That is a second reason why the will must be set aside.

As an alternative claim, Mr Phythian argued that a proprietary estoppel arose from Iris’ promise to leave North Lodge to him such that even if the will fails, he is entitled to a share of the value of North Lodge as against Iris’ estate. He submits that although he was reimbursed for all his expenditure on the house, he spent money on petrol, road tolls and so forth in visiting Iris and dealing with North Lodge. I was referred to the case of Jennings v Rice [2002] EWCA Civ 159 as establishing that once the elements of proprietary estoppel are established, an equity arises. The value of that equity will depend on all the circumstances including the expectation created and the detriment suffered by the claimant.

I can dispose of this submission shortly since in my judgment there is no evidence that either of the elements needed for an estoppel was present here. I have already found that Iris did not indicate an intention to leave North Lodge to Mr Phythian at any time before August 2010. Mr Phythian’s evidence did not go so far as to assert that there was any serious promise made to him about the property. His evidence was that there was nothing firm about what Iris wanted to do with the house. She could have changed her mind overnight or she could have died without a will at any time between the period when Mr Phythian was most concerned with repairs to the house and August 2010 when she made her will.

Further, there was also no reliance here. Mr Phythian did not claim that he had visited Iris in reliance on any such promise. On the contrary his evidence and that of Mrs Phythian was that they visited Iris out of an altruistic desire to be helpful and provide her with companionship.

I find therefore that the contested will is invalid on two grounds; that Iris did not have mental capacity to make the will in August 2010 and that she did not know or approve the contents of the will. I will grant the relief sought by the Claimant namely:

The revocation of the grant of probate of Iris Wilson’s estate obtained by Mr Phythian;

A declaration that Iris Wilson died intestate;

The grant of letters of administration of the estate to Mrs Turner and Pat Jolly;

Rectification of the entries at HM Land Registry relating to Title No K 389528 to remove Mr and Mrs Phythian as registered proprietors and to name Mrs Turner and Mrs Jolly as joint proprietors of Iris Wilson’s estate in their capacity as administrators;

An enquiry into the assets of the estate in the hands of Mr and Mrs Phythian.