Ashman v Thomas

This morning I am going to give judgment on the preliminary issues which I have tried pursuant to the order of Deputy Master Julia Clark of 4th September 2014. The claim in which the preliminary issues arise was begun by claim form issued, on 14th April 2014, for an order revoking the Letters of Administration granted to the defendant on 5th November 2013 to the estate of the deceased, Carmen Elgiva Thomas, who died on 6th May 2013, and also seeking solemn form probate for a will of the deceased. The claimant claims as one of the executors of the will of the deceased.

However, a curious feature of this probate claim, as it is put in the claim form, is that the claimant is the sole executor or one of the executors appointed under the last will of Carmen Elgiva Thomas of 16 Cairns House, Holloway Road, London N7 9SA, the last will bearing the date either 12th March 2008 or 5th November 2011 or 18th May 2012 (my emphasis). So the claimant is not selecting which will he wishes to propound, but instead is putting forward three wills to the court, and saying that he claims as the executor or one of the executors of one of those wills, without specifying which. It is also of interest that the claim form also bears on its face this statement:

"The Claimant is aware that the late Carmen Elgiva Thomas was diagnosed as suffering from Alzheimer's Disease on or about 21st February 2012".

The witness statement of the claimant dated 11th April 2014 gives the usual information about attestation, and refers once more to three wills which I have already mentioned. The defendant acknowledged service and then put in a defence dated 21st May 2014, in which the defendant defends this claim on several different bases. The first is that the claimant is required to prove due execution of the wills: eleven grounds are stated by the defendant for believing that there was not due execution. Secondly, the claim is defended on the basis that the deceased was not of sound mind, memory or understanding at the time of making the wills. Thirdly, there is a plea of want of knowledge and approval. Fourthly, there is a plea of undue influence by the claimant. No counterclaim is made in this defence, but the defendant does go on in the defence to allege various frauds committed by the claimant against the deceased during her life and against her estate after death.

It is a further curious feature of this litigation that there is in fact a second claim, a claim form for which was issued on 10th June 2014, a parallel action so to speak. The claim number for this second claim has a similar number to that in the probate claim, but instead of ending with the numbers 179 it ends with the numbers 178. This is referred to informally in the papers as “the conversion action”. It is a claim brought in the name of the estate of the deceased by Clyde Thomas, who is the defendant in the probate claim, against his uncle, Alastair Ashman, who is the claimant in the probate claim. There the particulars of claim were also dated 10th June 2014 and made various allegations of conversion of property of the deceased or her estate by the defendant, Mr. Ashman.

In the probate claim an application was made on behalf of Clyde Thomas, the defendant, on 10th June 2014, for an order that these two claims should be managed together. Ultimately an order was made to that effect by Deputy Master Bartlett on 21st July 2014. Various other pleadings have been filed in relation to the probate claim, in particular a reply by the claimant, Mr. Ashman, and a defence, again by Mr. Ashman, in the conversion claim.

There have also been a number of orders made by different masters. I need not dwell on these. But I will mention the order of Deputy Master Julia Clarke, made on 4th September 2014. At paragraph 3 it provided that there be a trial of the following preliminary issues: (1) whether the purported will dated 12th March 2008 of Carmen Elgiva Thomas, the deceased, was validly executed in accordance with section 9 of the Wills Act 1837; (2) whether the deceased's purported will dated 7th November 2011 was validly executed in accordance with section 9 of the Wills Act 1837 and (3) whether the deceased's purported will dated 18th May 2012 was validly executed in accordance with section 9 of the Wills Act 1837. It is those preliminary issues that have been tried before me. On 17th February 2016 I gave a direction for the dates for trial.

I have said that there are three wills in this matter. The three wills are all written on printed will forms. However, the three printed will forms, although similar, are different in certain respects from each other. The first will, which bears the date of 12th March 2008, is the shortest. It makes gifts to the deceased's three children including the defendant, Mr. Clyde Thomas, but also directs that her flat at 16 Cairns House, in which she was living up to her death, should be sold and after the payment of various debts the balance of the proceeds of sale should be paid to the claimant, the deceased's brother, Mr. Ashman.

The will form contains a printed attestation clause in ordinary form which has been completed in what appears on the face of the document to be a regular manner. I should also say that the will, and I have seen the original which is present in court, on each of its two substantive pages bears diagonal lines as if to cross out the whole will, two lines on one page and two lines on another.

The second will, dated 5th November 2011, is slightly longer, but not much. Although it contains some different words, it is to a similar effect as the first will. Indeed, some phrases from the first will are to be found in the second. It also contains a printed attestation clause which appears to have been completed regularly.

The third will is dated 18th May 2012. This is the longest will, even disregarding the fact that two pages of the version in the bundle have been copied twice. Again the pattern is similar. There are gifts to the children, and then the flat at 16 Cairns House is directed to be sold, and the named beneficiary of the proceeds is the claimant, the deceased's brother. Once more one sees some different words, but some phrases are repeated verbatim from the earlier wills. Again, just like first two wills, this will contains an attestation clause in standard form which has been regularly completed. An odd feature of this will is that the attestation clause actually appears on several pages. What appears to have happened is that there were alternative last pages in the will form, and several of them have been used, albeit to similar effect. That means that there are in fact three copies of the attestation clause, all of which appear to be regularly signed.

In the course of trying these preliminary issues, I heard oral evidence from three witnesses: from the claimant, from Mrs. Dorothy Smith (who was one of the attesting witnesses of all three wills), and from the defendant. I am going to give my brief assessment of these witnesses now, although I will return to their evidence a little later.

The claimant struck me at first as apparently rather slow, with poor sight and having difficulty in following the documents put to him, but as his evidence went on it became apparent that his mind worked very quickly and he was well aware, not only of what the question was but also what was at stake in dealing with every question.

The quality of his evidence, to my mind, was shown in a number of ways. In particular, he denied some parts of previous sworn statements in other proceedings which now turned out to be inconvenient, for example, as to whether the deceased had stopped going out of her house altogether and, if so, at what point in her life? He also denied obvious truths, such as the question of who wrote the three wills in question, and also as to whether the defendant was living with the deceased and, if so, when? He changed his evidence from one answer to another. He would give an answer at one point and then a few minutes later give a different answer. I will consider his evidence in more detail, but I may say at once that I have reached the conclusion that I cannot rely on the truth of what the claimant says unless it is independently corroborated. Where his account deals with matters with which the defendant also deals, I prefer the account of the defendant.

As for Mrs. Smith, I found her to be a rather slow, straightforward, palpably honest witness, although I have to say she struck me as not very bright. It was very easy for her to become confused, and that may have significance later on. Although in my view she was honest, the fact that she was so easily confused means that her evidence is unreliable except where independently corroborated.

Lastly, there is the defendant. I found the defendant to be slow, to have difficulty in reading and to be rather simple, but his evidence in my view deserves the epithet artless. It was transparently honest. He was careful, and he was clear in his recollection. It is true that he made a few small slips in unimportant matters which were promptly corrected. I prefer his evidence to that of the claimant where they differ.

The evidence of Mr. Ashman, the claimant, is largely contained in his witness statement of 9th October 2014. Not much of this witness statement was actually directed at the preliminary issues which I have to try. In paragraph 2 he states:

"I can confirm that the 3 wills dated 12 March 2008, 7 November 2011 and 18 May 2012 were validly executed in accordance with Section 9 of the Wills Act 1837.

3.

The wills were signed by my sister in front of Mr. and Mrs. Smith ('the witnesses')."

The rest of that paragraph is not relevant to the question of due execution. Paragraph 4 says:

"My sister made three wills and never destroyed any of them. I do not know why she made three wills in the time frame she did."

The remainder of the witness statement deals with other issues such as background, the relationship with the defendant, mental capacity, allegations of fraud, undue influence and so on, I do not need to spend time on those matters now

Mr. Ashman was cross-examined by Mr. Hoare. An earlier witness statement that he had made in relation to the Court of Protection proceedings was put to him and it was said that there was an inconsistency with the evidence he was now giving. There is an issue about a statement that he made in that witness statement using the words "any longer" in relation to deceased's ability to go out to the shops. I will come back to that.

It was only later in the cross-examination that Mr. Ashman was asked directly about the issues of execution. In oral evidence Mr. Ashman said that the deceased had been taken to Willesden, where Mr. and Mrs. Smith lived and where Mr. Ashman himself used to live, to the house where Mr. Ashman rented a room, a house belonging to Mr. and Mrs. Smith, and that the deceased was taken there by the claimant's daughter in her car. The evidence of Mr. Ashman orally was that the deceased had met them just three times. Mr. Ashman in oral evidence accepted that he wrote the third will, but insisted he did not write the first one. He said he did not think he wrote the second. He did not recognise the second as his handwriting.

I will come back to the question of the handwriting and who wrote those wills in a moment. For now, I just observe that, in relation to the evidence about the claimant's daughter having taken the deceased in her car to Willesden, there was no evidence given on behalf of the claimant by the claimant's daughter, and there was no application to call her to give evidence as to taking the deceased in her car to Willesden. I will return to the significance of this absence of evidence a little later.

I do note that, according to the evidence before me, such as it was, the claimant's daughter does not appear to have been present when any of the three wills were said to have been signed by the deceased in the presence of Mr. and Mrs. Smith. So the question arises as to where the claimant's daughter was. She would obviously have had to be close by in order to take the deceased back to Islington afterwards. Was she sitting in her car outside? There is no mention of her being present in the room where the wills were being signed. The answer that Mrs. Dorothy Smith gave to the enquiry agent Carol Smith, which was in the material before me, is as follows: “Question: Can you remember who was present when she signed the wills? Answer: Mr. Val Ashman [that is the claimant}, Carmen Thomas [that is the deceased] and Mr. R. Smith", that is the other attesting witness, the husband of Mrs. Smith. There was no mention of anyone else.

The challenges to Mr. Ashman's evidence included a challenge as to whether the deceased actually left her house. In particular, a passage in a witness statement which Mr. Ashman had made in the Court of Protection proceedings dated 15th April 2013, included in paragraph 16 the words:

"I always visited her at the end of each month to take her shopping ...".

Then in paragraph 17 he says:

"Clyde [that is the defendant] has helped me with groceries when Carmen was not able to go to the shops any longer."

When this was put to him in the witness box Mr. Ashman denied using the words "any longer". In the written form in the Court of Protection proceedings the claimant's evidence would be that the deceased, at a certain point, ceased to be able to go to the shops. Without the words "any longer" there would be no implication of the deceased having ceased to be able to go to the shops, just that sometimes she would not be able to go. The claimant spotted this right away and, therefore, he denied using the words "any longer". However, it was his witness statement. He signed it, and it contains a statement of truth.

Secondly, there was a specialist mental health assessment form completed by Dr. Sinmi Akerele. This was made following a home assessment of the deceased by Dr. Akerele which took place on 1st November 2011. On the second page in this form there is a passage under the heading "Collateral history from her brother", that is to say from the claimant, and it includes these words:

"He told me that she does not go out anymore and she last went out to Waitrose years ago and that was with him."

When that was put to the claimant he denied he had said this and said instead that she last went out on her own some years before. That, of course, is very significantly different.

Mr. Ashman was also challenged on the evidence about whether the defendant, Mr. Thomas, lived with the deceased and her family. The defendant, of course, had said in his witness statement (which he confirmed in oral evidence) that he had lived with the deceased as her carer since 2004. This was, I should say now, challenged by Mr. Hedgman on behalf of the claimant in cross-examination, but in my judgment the defendant's evidence on this point was unshaken, and I accept it.

The specialist assessment form to which I have just referred, completed by Dr. Sinmi Akerele, towards the beginning of the form under ‘Summary and Team Management Plan’ says this:

"She [that is to say the deceased] is cared for by her son, Wes, who lives with her"

That was put to the claimant. He denied that he said that the defendant did not live with her.

In the reply to the defence, put in on behalf of the claimant, containing a statement of truth, signed by the claimant personally, the claimant said it was denied that the defendant resided with the deceased from his arrival in the UK until her death, and that during time he rarely left her property at 16 Cairns House. The claimant’s case was that the defendant in fact originally lived with his cousin, Sophie Samuels. A serious incident had occurred at the cousin’s property which resulted in the defendant being kicked out of the property in 2012, and it was in fact the claimant who suggested to the defendant that he should live with his mother and to look after her, clean her property and stay with her.

In paragraph 11 of the claimant's witness statement in the Court of Protection proceedings, he said this:

"When Clyde came to London, he first moved in with my niece. He did not get on well with her and her family and had to leave. He lived with others before finally coming to live with his mother in her flat. She was not happy about it. The flat has only 1 bedroom and Clyde sleeps in the front room. I was partly responsible for this arrangement as Carmen was reluctant to have him near her."

In that paragraph  the claimant clearly says that the defendant did come to live with the deceased, so the only issue is a question of timing. In the reply the claimant has said that it was only in 2012 that the defendant came to live with his mother.

A third area of challenge to the evidence of Mr. Ashman was in relation to the handwriting on the wills. The claimant agreed that it was his handwriting on the will of 18th May 2012, that is the third will, but his oral evidence was he did not remember whether he himself wrote the two earlier wills. He was shown the will of 5th November 2011 and said, "I do not recognise my handwriting here". He maintained this even when the stylistic similarity, putting some words in capitals, in both wills was drawn to his attention. Subsequently he positively denied in oral evidence writing the first will, and then said, "I do not think I wrote the second will". On the other hand he says he was present when all three wills were signed by the deceased.

The wills are known to contain handwriting of at least three people, that is to say, the signatures of the deceased and the signatures of the two attesting witnesses. Even to my untutored eye it is obvious that the handwriting that is used to fill out the substantive part of the wills is different from any of those three persons' handwriting. As I have already said the evidence, such as it is, contained in the answer by Mrs. Smith to a question put by the enquiry agent, was that the only persons present at the time of the signing of the wills were the deceased, the claimant and the two attesting witnesses.

If the claimant accepts that he wrote one of the wills, but there was no one else present, and the handwriting used is different from the handwriting of the deceased and the two witnesses, there is simply no explanation as to who wrote the first and second wills. In my judgment it is plain as a pikestaff that the claimant wrote all three wills. I have absolutely no doubt, apart from the obvious similarity of style, the copying over of phrases from the earlier to the later wills and the handwriting similarity, that there is no other plausible explanation.

There is evidence, which was not challenged, that the defendant had been asked by the claimant to buy him some will forms, that no one else had access to those forms, and here they are filled out and signed. In my judgment, the refusal by the claimant to admit writing the first and second wills is just a childish lie.

The evidence of Mrs. Dorothy Smith is contained in her witness statement. It is a very short statement, but in court Mrs. Smith confirmed it as her own and her signature at the end of it and that she had had a chance to read it today. She sought to correct something in paragraph 7. Paragraph 7 in the statement reads:

"Carmen was always in good spirit and cheerful and I did not see any signs of illness. Perhaps the occasional headache but nothing concerning."

In court she sought to correct that on the basis that she would not know if the deceased had had a headache, but otherwise she was happy with the statement.

In cross-examination by Mr. Hoare, on behalf of the defendant, she said that she had made her witness statement before she saw the enquiry agent, Carol Smith. She also said that it was about April 2014 when the claimant came to her with a representative of his solicitors, and that she only saw the solicitor once. She agreed she signed the witness statement, but she did not know when. She was not the person who dated it and, indeed, it appears to be the case that the handwriting of the date, whilst similar to that applicable to Mr. Rudyard Smith's witness statement, is, again to my untutored eye, different from that of her signature.

Mrs. Smith said she signed it, however, when the solicitor was there. But she does not know if the solicitor brought it. When the claimant and the solicitor came, he asked her questions which she answered and then she signed something in front of them. She did not remember whether she read it or whether it was read over to her but she did say that this all happened in the same month that her daughter had died after a short illness and that at that time she was in shock.

The witness statement, as I have said, is very short. It is eight paragraphs in total, none of them more than two sentences long. The very basic point is made that she witnessed all three wills. There is no evidence as to how this witness statement came into existence, for example, whether Mrs. Smith drafted it, whether the solicitors drafted it and who, if anyone, asked her questions as a basis for making that statement. Her oral evidence to me was that she could not remember reading it or having it read to her and she signed it when the solicitors came in April 2014, even though it is dated October 2014.

This is very unsatisfactory. No explanation was offered to me. There was no application to me to call any additional evidence to explain the circumstances. It is true that Mrs. Smith said in oral evidence that she had read it and she wanted to correct a small point, but the statement covers events over at least eight years and perhaps more. I observed Mrs. Smith in giving evidence. As I have said, she was easily confused. I do not think that I can place very much weight on this witness statement. That is not unfair to the claimant, who could have applied to call other evidence as to the preparation of the statement which could have dispelled the fog and uncertainty, but no such application was made.

There was also a witness statement put in from Mr. Rudyard Smith. However, it appears that he is no longer a well man, and in the event, after counsel on both sides had spoken to him outside court, he was not tendered for cross-examination. It appears that he is suffering from dementia, and it is accepted on behalf of the defendant that there was no point in seeking to cross-examine him.

I should also mention the questionnaires that were completed by the enquiry agent, Mrs. Carol Smith, and exhibited to her witness statement. The defendant did not in fact call Mrs. Carol Smith, so the question arises whether the claimant or anyone else for that matter, certainly the claimant, is able to rely on that evidence. The Civil Procedure Rules, rule 32.5(5), in such circumstances makes it possible for the claimant to put in her witness statement as hearsay evidence. It is not clear how far CPR Part 33 applies in those circumstances, but it is clear that the court retains a discretion as to whether the hearsay evidence can be put in. Before me no formal application was made by the claimant to put in that witness statement and the exhibits as hearsay evidence, but I was referred to the evidence by the parties without objection on either side. So I treat that as an informal application, to which I informally acceded.

I turn now to the evidence of Mr. Clyde Thomas, the defendant. In his oral evidence, he confirmed his witness statement, but clarified paragraph 9 of it. That paragraph says this:

"I made a statement. which has been served in these proceedings, on 21.3.2013, in proceedings relating to my mother in the Court of Protection. In this statement, I give some brief details about the background to my relationship with my mother and, in particular, that I lived with her as her carer since 2004."

In seeking to clarify paragraph 9, he explained that he had lived with his cousin for six months after arriving in this country, in 2004, before he moved to live with his mother. The evidence given in his witness statement includes a number of important points. In paragraph 18 he says this:

"From 2007 my mother was effectively house-bound. Before this, she would go out on her own for short trips, such as to go to the post-office or to the shops. She never visited friends on her own, however. In fact, I don’t remember her having any friends come to the house, although the neighbour, Tracy (who still lives next door to 16 Cairns House) would occasionally say hello and ask about her to me. From 2007, though, my mother never again left the house on her own."

Paragraph 19 is important too. It says:

"From this time, I would quite often offer to take her for a walk in order to get her out of the house. Although I can’t remember these on a day to day basis, I can remember approximately how often I would take my mother out of the house. This would be around two to three times a month. Apart from going to doctors’ and hospital appointments, we would walk to the park or to the shops."

Paragraph 20:

"The only other person who would ever take my mother out of the house was my Uncle Val [that is to say the claimant]. However, this would not happen very often, only a few times a year. When my mother went out with my uncle, usually neither of them would tell me where she was going. The longest time they would spend out of the house was around two hours. Usually, however, they would spend less time."

In paragraph 26 the defendant says:

"From when I first lived with my mother, my uncle would come and visit my mother around once a month. As I have said, he would only take her out of the house some not all of those times. From the beginning, Uncle Val would sometimes go into my mothers’ [sic] bedroom to talk to her. I remember that he would draw up a chair and sit opposite her, with her sitting on the bed."

In paragraph 30:

"I sometimes asked my mother what she talked about with Val when in her bedroom but she would never tell me. I would sometimes ask why I couldn't hear what they spoke about when I was her first child. One of these times she said ‘don't worry’. I said ‘why are you saying “don’t worry”, that means something is going on’. She would reply ‘you are my children, everything that I have goes to you’. However, she had not ever said anything about her money or property before she said this."

Then in paragraph 33 he says this:

"I note that the date on which the second Purported will was supposed to have been signed, 5.11.2011, was a Saturday. My mother did not go out of the house with Val on any Saturday in 2011. I am sure about this because Saturday is the day after I do the shopping for my mother, with the carer, and I am very clear that Val did not go out with my mother on any Saturday."

Then paragraph 34:

"In 2012, every Friday the carer would come from social services to give my mother a bath. I have to be there to open the door. After the carer gave my mother a bath, the carer would go back to social services to pick up the money for the shopping. She would then go to Iceland to do the shopping. I would sometimes go there. We would never go out for longer than 45 minutes to one hour. This happened every Friday in 2012. Val never came around on Friday in 2012. He would normally come around on Wednesday or Thursday."

In giving oral evidence in response to the evidence of the claimant about the deceased having been given a lift to Willesden by the claimant's daughter, the defendant denies that the deceased ever travelled by car with the claimant's daughter or, indeed, at all since he had been in England. He also said that the deceased was afraid to use the train or the underground and that the last time she had used public transport was in 2011 when she had used the bus.

The defendant was cross-examined on various matters by Mr. Hedgman on behalf of the claimant. He was cross-examined on the allegation that he lived with the deceased since 2004, the allegation that between 2007 and 2011 the deceased left the house only rarely and only with the defendant and that from 2011 the deceased never left the house at all. Indeed, she needed help to get out of bed. As I say the defendant was cross-examined by Mr. Hedgman on all of these points and, in my judgment, his evidence remained unshaken.

It also emerged from the cross-examination of the defendant that the deceased went to the doctor only once in 2011. This is supported, as it happens, by the medical notes which are in evidence, exhibited to the claimant's witness statement. At a certain point on page 4 (of 10, marked at the bottom), there is an entry for 24th October 2011 and it begins with the words:

"pt [patient] worried as she is having nocturnal enuresis" and continues further down the entry with the words "she lives with her son Clyde, came today with her brother. Son does the cooking and the cleaning."

That is the visit to the doctor in October 2011.

There were references in the medical notes also to a number of immunisations, but the defendant said that these were done by the district nurse. It is fair to say that some of the earlier entries up to and including 2009, are references to vaccinations or immunisations being given at a chemist’s, but not after 2009. So, in my judgment, it does not at all point to an attendance at the doctors but rather to a home visit by the district nurse.

The medical records also contain an entry, perhaps the most recent entry, on page 1 (of 10) for 9th January 2013, of a single word, and that is "housebound". It was put to the defendant that the deceased was housebound only from 9th January 2013. Not surprisingly the defendant denied this and said that she had been housebound long before that. I do not attach any particular significance to this. It is obvious, the mere fact that the entry has been put in on one particular date does not show that as the date on which the deceased became housebound, only that that is the date on which it is recorded as being the case. In my judgment it does not prevent me from accepting, as I do, the other evidence to which I have referred, that the deceased was in fact housebound since 2011 and only rarely went out in the period 2007 to 2011.

The defendant was also not shaken on the evidence that he had previously given, that the deceased did not go out with the claimant on a Saturday in 2011. The defendant explained that Saturday was laundry day and he would be in all day and the deceased be would be there watching television, also the allegation that the deceased did not go out with the claimant on a Friday in 2012 for the reasons which he has already given in his witness statement. There was some re-examination of the defendant by Mr. Hoare, referring to the meeting with Dr. Akerele at home on 1st November 2011. This was put to the defendant, who said that he was clear that the deceased did not leave home four days later, on 5th November 2011.

I have earlier referred to the fact that witnesses were not called where they might be expected to have been. There are two particular matters which I wish to mention. The first is that the claimant's daughter was not called to give evidence in relation to the allegation that he made in his evidence that the daughter took the deceased in her car to Willesden on the occasions of the signing of three wills. The second matter is that no evidence was called in relation to the provenance and the preparation of the witness statement of Mrs. Dorothy Smith, one of the two attesting witnesses.

In my judgment, both of those failures are significant as is the absence of any explanation for there not being such evidence. It is a principle of English procedural law that where evidence could easily be given to deal with a point which has arisen, which would be in favour of the case being made by a party, if no credible explanation is given as to why that evidence is not being adduced, the court is entitled to draw adverse inferences, at least in some situations.

This is discussed by Lewison J in the well known case of Thames Valley Housing Association v Elegant Homes (Guernsey) Limited in 2001 where the judge followed the decision of the Court of Appeal in the earlier decision of Wisniewski v Central Manchester Health Authority in 1998. There it is made clear that, as long as some evidence is given the other way, so that in effect there is a case to answer, the failure to call relevant evidence, in this case by the claimant, can be a basis for drawing adverse inferences against the claimant thereby strengthening that other evidence that had been given.

I turn now to the law. The parties cited a number of cases to me. I will mention them briefly here, but for the most part the parties are agreed as to the law that I should apply. I therefore need not spend much time on it, subject to one point which I will come back to.

The cases cited included ReMusgrove [1927] P 264, a decision where the Court of Appeal had to deal with the presumption that a will had been properly executed if it was completed with a proper attestation clause. In that case there were some circumstances which excited suspicion as to whether or not the will had been properly executed The Court of Appeal said that, since those events only occurred after the execution of the Will, and whilst the will was in the hands of the executrix after the death of the testatrix, the presumption that everything had been properly executed was not displaced.

Then there was Re Vere Wardale (deceased) [1949] P 395, a decision of Willmer J. There the judge held that, even if the attesting witnesses were to give evidence that in fact they signed the will before the testator did, it would still be open to the party propounding the will to contradict that evidence by other evidence.

The next case was Re Bercovitz [1961] 2 All ER 481, a decision of Phillimore J. In that case the attestation clause was written at the head of the will, but the testator also signed it at the bottom. In those days section 9 of the Wills Act 1837 required that a will should be signed "at the foot or end thereof". So the question was whether there was due execution. In that case the judge held that the force of the presumption of regular execution or due execution varies in the circumstances. If the document was in regular form it was very strong, but in that particular case it was irregular and, therefore, there was not the same force.

There was then the case of Wood v. Smith [1993] Ch 90. That was a case in which the testator had simply begun with the words: "My will by Percy Winterbone", that being the name of the testator. He had not signed the will at the end. This case, however, dealt with the law as it was changed in 1982 so that it was no longer necessary that there should be a signature at the foot or end thereof. It was held in the circumstances that the will was badly executed because by his signature the testator had intended to give effect to the will provisions(?).

Then there were two Court of Appeal decisions, Sherrington v Sherrington [2005] EWCA Civ. 326, and Channon v Perkins [2005] EWCA Civ. 1808. The first of these two decisions made clear that it was not possible to get over a regular completion of an ordinary attestation clause, which suggested therefore that the will was properly executed, in the absence of the strongest evidence. As the court put it in Sherrington, and I am paraphrasing from paragraph 63, where there is a will signed by the deceased at the foot of the will containing an attestation clause under which the witnesses have signed, the strongest evidence will be needed to rebut the presumption of due execution. That was followed in Channon v. Perkins, a few months later. One of the judges in Sherrington was also in Channon, that is Neuberger LJ. Since then there have been other first instance decisions which have applied the law as stated in Sherrington v Sherrington.

I come now to the point of law on which there was a difference of view between the parties. It is this, that we have here potentially the operation of two quite different principles. The first is the principle, often referred to as that in Barry v Butlin (1838) 2 Moore PC 480, which holds that the burden of proof as to knowledge and approval by the testator of the provisions of the will lies on the propounder of the will, but is discharged by proving the capacity of the testator and the fact of execution.

So, if that burden is discharged then the burden of proving that execution had been produced or procured by undue influence at somebody else, would be on the party so alleging. But, if the circumstances of the preparation of the will were suspicious then the propounder must affirmatively prove knowledge and approval. One example of a circumstance exciting suspicion would be where the beneficiary under the will actually prepared it. That is, if you like, one principle in play.

The other is that which we find in the case of, for example, Re Bercovitz, but also in Sherrington and in Channon, that where an ordinary regular attestation clause has been properly completed there is a presumption of due execution and it requires the strongest evidence in order to rebut it.

The question disputed between the parties is as to the interplay of these two principles. The defendant says that the claimant has first to take away suspicious circumstances. It has to deal with the suspicion before the presumption of due execution can arise from the fact of a regular attestation clause. The claimant says that the presumption of due execution arises all the same, although the circumstances of suspicion will go to the strength or weakness of the presumption.

The cases, certainly the cases cited to me, do not in terms deal with the problem of how these two principles react or interact, although I notice that in Re Musgrove Lord Hanworth MR said at page 281 that:

"The maxim, in my judgment, operates in favour of the will after the proof given of the execution and attestation, to establish that the testatrix knew and approved of its contents."

‘The maxim’ in that quotation refers to the Barry v. Butlin proposition.

It seems to me therefore that that dictum shows that the question of due execution comes first. I do not find it surprising that the cases do not deal with this question of the interplay of the two principles, because it seems to me that they are dealing with different matters. Barry v. Butlin was concerned with the question of want of knowledge and approval, whereas Sherrington was dealing with the question of due execution. These are entirely separate.

Under the Rules of the Supreme Court, the rules which applied before the Civil Procedure Rules came into effect, a party who was alleging want of knowledge and approval had actually to give particulars of the case which the party was running. A distinction was drawn in the rules with failure of due execution, mental capacity and undue influence: see RSC Order 76, rule 9(3). In my judgment there is no requirement that the presumption of due execution cannot arise whilst there are suspicious circumstances in the preparation of the will. The claimant is, however, right to accept that the force of the presumption will vary according to the circumstances: see for example Re Bercovitz. Here the claimant expressly accepted in argument that the presumption is not at its highest, presumably because of the evidence tending to show that the wills might not be properly executed.

I turn to consider what evidence there is which might rebut the resumption of due execution in this case. All three of the wills that I am dealing with are on printed will forms. Each of them contains a standard attestation clause which has been regularly completed. Indeed, in the case of the last will, three times over.

What evidence is there against due execution? First, and it seems to me extremely importantly, there is clear evidence (which I accept) that the deceased was entirely housebound, since 2011, and effectively housebound since 2007. Accordingly there was simply no opportunity for the deceased to go to Willesden and execute these wills there since 2011, that is to say, dealing with the second and the third wills. Although she may have been effectively housebound since 2007, the evidence is not so strong in relation to the first will.

The second point is that, even before 2011, the deceased did not travel on public transport except on buses. That comes from the oral evidence given by the defendant, which I accept.

Third, there is the evidence that the deceased had been incontinent in varying degrees, almost certainly getting worse, since 2004 and doubly incontinent, that is to say incontinent both of urine and of faeces, by November 2011. I see that in the report by Dr. Akerele. An elderly lady who is doubly incontinent is not going to want to go out. She will be embarrassed. She will find it awkward. If she has to go out she will want to be sure that she can find somewhere to go at any time. I think it is therefore much less likely that by 2011 she would want to leave the house at all.

Fourth, there is, and I have referred to this already, the failure by the claimant to cause the daughter to give evidence regarding the lift she is said to have given, or in default of the daughter giving evidence, the failure to give some explanation as to why she could not give evidence.

Fifthly, there is the evidence of private meetings given by the defendant which took place between the claimant and the deceased in her bedroom, thereby giving him an opportunity to obtain the deceased's signature on the Wills. I mention specifically what I regard as the weakness of Mrs. Dorothy Smith's evidence. In my judgment the weakness of that evidence is not evidence against the presumption, it is simply irrelevant. It is not different to the case that would arise if Mrs. Smith were unfortunately dead: we would not be able to hear from her. It does not, therefore, affect the presumption.

I turn to the test which is laid down in the cases as to the strength of the evidence which is needed in order to upset a resumption of due execution. In the Sherrington case, I find this at paragraphs 40-42:

"40.

In so doing we should indicate that we do not agree with the view of Langton J. In Benjamin that the intention of the witness is immaterial if the will is in proper form. He appeared to derive that from the decision of this court in Wright v Sanderson (1884) 9 PD 149. However, what that case demonstrates is the strength of the presumption of due execution when there is an attestation clause and the testator and witnesses sign. ...

41.

To similar effect was Lord Penzance in Wright v Rogers (1869) LR 1 PD 678 at p. 682. In this case the survivor of the attesting witnesses of a will, which was signed by the testator and the witnesses at the foot of an attestation clause, gave evidence a year later that the will was not signed by him in the presence of the testator. Lord Penzance said at p. 682 that the question was whether the court was able to rely on the witness's memory. He continued:

'The Court ought to have in all cases the strongest evidence before it believes that a will, with a perfect attestation clause, and signed by the testator, was not duly executed, otherwise the greatest uncertainty would prevail in the proving of wills. The presumption of law is largely in favour of the due execution of a will, and in that light a perfect attestation clause is a most important element of proof. Where both the witnesses, however, swear that the will was not duly executed, and there is no evidence the other way, there is no footing for the Court to affirm that the will was duly executed.'

42.

It is not in dispute that if the witnesses are dead, the presumption of due execution will prevail. Evidence that the witnesses have no recollection of having witnessed the deceased sign will not be enough to rebut the presumption. Positive evidence that the witness did not see the testator sign may not be enough to rebut the presumption unless the court is satisfied that it has 'the strongest evidence', in Lord Penzance's words. The same approach should, in our judgment, be adopted towards evidence that the witness did not intend to attest that he saw the deceased sign when the will contains the signatures of the deceased and the witness and an attestation clause. That is because of the same policy reason, that otherwise the greatest uncertainty would arise in the proving of wills. In general, if a witness has the capacity to understand, he should be taken to have done what the attestation clause and the signatures of the testator and the witness indicated, viz. that the testator has signed in their presence and they have signed in his presence. In the absence of the strongest evidence, the intention of the witness to attest is inferred from the presence of the testator's signature on the will (particularly where, as in the present case, it is expressly stated that in witness of the will, the testator has signed), the attestation clause and, underneath that clause, the signature of the witness."

So, I must ask myself whether the evidence in this case which I have referred to against the presumption of due execution amounts to “the strongest evidence”. In relation to the first of the three wills, that is the one of 2008, I am unable so to find. It does not seem to me that I can regard the evidence against the presumption as “the strongest”.

However, in relation to the second and the third wills the matter is otherwise. The evidence before me satisfies me that it was impossible for the deceased to have signed the second and third wills in Willesden. Accordingly, I regard this evidence as “the strongest evidence”, sufficient to rebut the presumption that arises because of a regular attestation clause in the second and third wills.

For the purposes of this judgment I find the following facts. The defendant lived with the deceased from 2004, that is, from several months after arriving from Jamaica, having lived elsewhere in the interim with his cousin. The deceased did meet Mrs. Smith on a number of occasions and may have met Mr. Smith also on some others at times when the deceased was not housebound and was willing to travel. The claimant, her brother, was living in his friend's house as a tenant and the claimant was visiting him there. But the deceased did not visit Mr or Mrs Smith in 2011 or thereafter.

The evidence that the deceased was taken to Mr and Mrs Smith's house by the claimant and her daughter in her car in or up to 2011 is a fabrication by the claimant. It is denied by the defendant, who has lived with her since 2004, and the double incontinence makes is extremely unlikely. That is why the evidence of the defendant was that the deceased did not travel in cars. There was a failure to call the daughter who incidentally, as I have already said, is not mentioned as being present when the wills were signed, and there is also evidence (which I accept) from the defendant that the deceased did not leave the house from 2011.

However, because I cannot treat the presumption of due execution as rebutted in relation to the first will of 2008, I find that Mrs. Smith witnessed the deceased executing and attested that will. It is true that Mrs. Smith says that she witnessed the deceased executing three, but I think she is mistaken about the number. She, of course, actually signed three wills in total.

Mr. Smith also signed three wills, although actually in his witness statement he only says two, but he is clearly mistaken about that. I find that he did not see the deceased sign more than one.

The deceased and the claimant sat together on several occasions in the deceased's bedroom to talk. That would have provided the opportunity for the claimant to procure the deceased's signature to two further wills beyond the first. Therefore, I find as a fact that the second and third wills were not executed before the attesting witnesses. Therefore, they were not properly executed within section 9 of the Wills Act.

On the other hand, because I have held that the evidence is not sufficient to overcome a presumption in relation to the first will, the first will was executed before witnesses and, therefore, satisfies the formal requirements of section 9.