Jonathan Henry Leonard & Ors v Margaret Rose Leonard & Ors

Liz did not accept that Jack’s health problems (identified when he attended the GP in early July 2015) had been going on for six weeks (as Margaret had informed the GP) and gave the example of looking at Ordnance Survey maps with Jack while on holiday in France. Whilst this general recollection might have been true and whilst Liz might well (as she said) have “felt that [Jack] was able to understand very well” what she was saying to him, nevertheless, I consider that this evidence was apt to give the wrong impression, particularly having regard to the contemporaneous account of Jack’s health given by Margaret to his GP on 6 July 2015 and in an email to her niece, Helen Smith, on 15 July 2015. Further and in any event, it would seem that Margaret had sought to keep the full details of Jack’s illness from Liz so as not to worry her.

Liz gave evidence that in her view Jack was “still very rational even after his diagnosis and after the EPA even”, notwithstanding that by this time Jack plainly did not have the capacity to manage his own financial affairs. Whilst Jack may still have been able to function and interact with others in a domestic setting at this time, I consider this evidence likely to give something of a misleading impression of his overall capabilities, again having regard to the available contemporaneous evidence.

Liz expressed the view in cross-examination (no doubt genuinely held having experienced something similar with Andy’s mother, who she says has experienced a series of “mini strokes”) that Jack may have been fluctuating between periods of lucidity and periods of confusion at certain times, based on her evidence that “there were lots of occasions when we saw Jack in [2015] when he was fine”. It appears to me to be important that she qualified this evidence with the words “it was very dependent on the situation”, which seemed to me suggestive of an acknowledgement that there were certain tasks or activities which revealed that Jack was “not fine”.

Liz gave (unlikely) evidence as to the possibility that Margaret had accessed relevant emails and forwarded them to Liz after she had been deemed to lack capacity to litigate owing to her own mental decline in February 2020. This appeared to me to display a level of optimism about her mother’s likely capabilities which also tainted her evidence about Jack’s cognitive abilities.

The Expert Evidence

The Documents

Testamentary Capacity

as Banks itself makes clear at 564, freedom of testamentary disposition will sometimes produce the result that a testator makes a valid will which is influenced by caprice or passion or the power of new ties. However, as Lord Neuberger MR said in Gill v Woodall [2011] Ch 380 (CA) at [26]:

“the law in this country permits people to leave their assets as they see fit, and experience of human nature generally, and of wills in particular, demonstrates that people’s wishes can be unexpected, inexplicable, unfair and even improper”.

Nevertheless, if the provisions of a will and its outcome are surprising, inexplicable or irrational that may be material to the court’s assessment of whether the testator did have capacity, or indeed, knew and approved the terms of the will (see Sharp v Adam; Cowdery v Cranfield at [133] and Hughes v Pritchard [2022] Ch 339 (CA) at [95] and [101]). In general terms this is because, as the judgment in Banks at 563 makes clear, and the Court of Appeal in Sharp v Adams reiterates at [67], the exercise of a testator’s power to make a will involves “a moral responsibility of no ordinary importance”.

It is not the law that a person suffering from reduced cognitive abilities owing to a mental illness has no testamentary capacity. The enquiry is whether, in a particular case, the mind is so unsound that “the testator cannot understand what he is about…or his ability to make a rational decision is absent”: Gardiner v Tabet [2021] EWHC 563 (Ch) per Fancourt J at [91].

the Banks test concerns the ability or capacity to understand the matters identified therein; it does not require actual understanding or recollection and it is not to be equated with a test of memory. There is no requirement that the testator actually remembers the extent of his property and deficiencies of memory are not the equivalent of incapacity. If there is evidence of actual understanding and recall then that would prove the requisite capacity, but there will often be no such evidence, and the court must then look at all the evidence to see what inferences can properly be drawn as to capacity. (See Hoff v Atherton [2004] EWCA Civ 1554 per Peter Gibson LJ at [33]-[34]; Simon v Byford at [40]-[41] and Hughes v Pritchard at [98]-[99]).

Relevant evidence may relate to the execution of the will, “but it may also relate to prior or subsequent events” (Hoff v Atherton at [34]).

When considering testamentary capacity, the court is concerned with the ability to make decisions, not merely the ability to understand a given transaction, or a particular choice that has already been made, which are issues to be considered under “knowledge and approval” (see Perrins v Holland [2010] EWCA Civ 840 at [64] and Simon v Byford [2014] EWCA Civ 2080 at [47]).

When evaluating limb 2 of the Banks test, there is no need for the testator to be able to compile a mental inventory or valuation of all his assets disposed of by his will, but merely to have “a general idea” of those assets (see Todd v Parsons [2019] EWHC 3366 (Ch) per HHJ Paul Matthews at [144]). He does not lack testamentary capacity because he is mistaken about, or fails to ascertain full details of his property (see Minns v Foster Ch, 13 December 2002 (unreported) at [115]). Furthermore, there is no need for knowledge of the actual value of assets (see Blackman v Man [2007] EWHC 3162 at [118] per Sir Donald Rattee J and Schrader v Schrader [2013] EWHC 466 (Ch) per Mann J at [81]).

When evaluating limb 3 of the Banks test, the testator must have capacity to comprehend the nature of the claims of others, whom by his will he is excluding from all participation in his property (See Banks at 568-70 where Cockburn CJ refers with approval to Harwood v Baker (1840) 3 Moo PCC 282 at 291). Reference to the terms of a previous will may be a helpful safeguard when seeking to confirm that the third limb is satisfied, but the relevance of any changes and hence the enquiry about them will depend on the facts of the case (Hughes v Pritchard at [94]). A testator who forgets family members’ names will not necessarily lack testamentary capacity (Edkins v Hopkins [2016] EWHC 2542 (Ch) at [46]), although a testator who could not remember the identity of close friends or family members, or could not recognise them, has been found to lack it (Couwenbergh v Valkova [2008] EWHC 2451 at [278]-[279]).

A testator is not required to be able to recall the terms of a past will, or the reasons why it provided as it did, provided he is capable of accessing that information (if needed) and understanding it if reminded of it (see Hughes v Pritchard at [99]). The fact that a testator forgets a promise previously made about the disposition of his estate does not mean that he does not have capacity to appreciate moral claims on his estate (see Todd v Parsons [2019] EWHC 3366 (Ch) at [147]).

There is no requirement that a testator understands the collateral consequences of a disposition, as opposed to its immediate consequences (Simon v Byford at [45]), just as there is no requirement that the testator should understand or remember the extent of anyone else’s property or the significance of his assets to other people (Simon v Byford at [46]).

The question with which the court is concerned when considering the Banks test is transaction and issue specific. The testator must have the mental capacity (with the assistance of such explanation as he may have been given) to understand “the particular transaction and its nature and complexity” (see Hoff v Atherton at [33] and Hughes v Pritchard [2022] Ch 339 at [65]). This would appear to encompass not only the complexities in the will itself (limb 1), but also the complexity of the testator’s property (limb 2) and of the moral claims on his estate (limb 3).

Burden of Proof and evidence

Although the non-compliance with this rule does not operate as a touchstone as to the invalidity of a will, nonetheless, it is the Claimants’ submission that the failure to follow the Golden Rule by Ms Wells is startling given Jack’s age and the alarm bells that it is suggested should have been ringing.

The rule in Parker v Felgate

Knowledge and Approval

Chronological Narrative and Findings of Fact

September 2011-June 2013

13 February 2012 (to which I have referred above);

2 October 2012 (evidencing forward planning on Jack’s part in respect of the use of his debit card whilst on holiday together with a request for the transfer of US$1,300 to Andrew’s account);

28 February-1 March 2013 (evidencing flexibility and problem solving on Jack’s part in liaising with Deloitte over a request from the US Tax authorities for an additional payment); and

12 March 2013 (evidencing forward planning by Jack in respect of funds needed to pay bills).

Summer 2013 and Sara’s wedding

It would affect Jack’s property worldwide save in the US and would revoke previous wills to the extent they affect property other than in the US;

It was not mutual with Margaret’s will and there was a reservation of right to revoke or amend their wills;

Sara and Robert were appointed executors and trustees,

Robert was to receive £5000 free of tax if he proved the will,

Margaret was to receive Jack’s personal chattels;

Jack’s interest in LTH was to pass to Jack’s children in equal shares. In her covering letter Ms Wells noted that if the company were to be wound up this provision would cease to apply and the proceeds would fall into residue. She expressly queried how Jack wanted this to be dealt with;

The Findon Property was to be held on trust for Marjorie rent free for life, remainder to Sara (consistent with the 2007 Will);

A discretionary trust was established to make use of two unused nil rate bands. The beneficiaries were to be Margaret, Jack’s children, Margaret’s children, Jack’s grandchildren and Jack’s “step grandchildren” including Melanie’s children.

The residue was to be held:

what she described as a “broad” provision for capital to be paid to Margaret in order to meet any shortfall in her provision, which she mentioned in her covering letter and made detailed provision for in Jack’s draft letter of wishes, but did not recall in cross examination whether this had been discussed with Jack and Margaret.

a revocation clause in respect of all former wills which was expressly said to exclude the US Property. Ms Wells also did not recall discussing this revocation clause with Jack (albeit it is mentioned in the covering letter) and nor did she recall any discussion with him when it was later expanded so as also to exclude from revocation the provisions of the 2007 Will in relation to the French Property (about which it was Ms Wells’ evidence that she had no information at the time of the First Draft Wills).

The February 2014 Meeting with Ms Wells

Jack was cleared as fit to fly by the FAA on 24 January 2014.

By an exchange of emails on 10 January 2014, Jack arranged to meet with Ms Wells on 3 February 2014 to discuss the First Draft Wills (“the February 2014 Meeting”). It was Ms Wells’ recollection, which I accept, that Jack wanted to go through the trust provisions which were complicated and caused him “the most difficulty”. It was also her recollection, borne out by the documents, that Jack and Margaret regarded the will making process as “a joint enterprise”.

The February 2014 Meeting (the first of only two face-to-face meetings with Ms Wells) duly took place at Irwin Mitchell’s offices in Holborn and Ms Wells made a detailed typed attendance note (which it appears she prepared based on her own handwritten notes). I accept that Ms Wells is able independently to remember certain details about this meeting including her general impression of Jack and Margaret and the fact that Jack spoke in warm terms about Margaret’s family of whom he was plainly fond. I do not need to recite in detail the lengthy discussion at the meeting but it is clear from the typed note that:

Ms Wells says in her statement that at no stage at this meeting did she think either Jack or Margaret lacked capacity, an assessment with which, on balance, and based on my assessment of all of the evidence, I agree. However, in my judgment there were a number of errors made by Jack at this meeting which tend to support the proposition that he was suffering from memory lapses. Key amongst these are:

Following the February 2014 Meeting, Jack immediately sent an email to Barclays asking whether his understanding that he and Margaret only had one “joint” account was correct. Mr Hamid of Barclays confirmed his understanding.

Ms Wells sent a letter to Jack and Margaret on 7 February 2014, following the meeting, asking for a schedule of assets to address her concern that the “majority” of their assets may be in joint names and expressly advising on the risks of Inheritance Act claims by Jack’s children in the event of a failure to address this issue. Ms Wells advised that “Jack’s Will also needs to make some provision for Andrew otherwise he could well have a claim against the estate”. She erroneously asked whether any consideration had been given to transferring the US Property “to Jack” now, albeit it is clear from the context that she meant Andrew, a mistake that Jack appears to have identified as is clear from his reply. Finally she noted that the matter had become more complex and that her fees would have to increase.

On 18 February 2014, Jack wrote to Ms Wells emphasising that in the event he was the first to die, he was “most anxious that Margaret will not have an impaired lifestyle, hence my earlier expressed wish that I change my Will to leave her everything”. He observed that he appreciated the need to obtain advice from American lawyers in relation to Andrew and he said that he did not want Andrew to be worried about repairs. He accepted the fee position.

Jack attached the requested list of assets, identifying the couple’s joint bank account at Barclays and their joint ownership of 2 Hutton Place, which Jack says Margaret will “assume possession of” in the event of his death and that he will leave “to Margaret’s family in my will should Margaret die first”. He also identified that Margaret had a trust fund of £500,000 (i.e. the DGT) which would accumulate tax free funds together with a private bank account of £1,897,233. This latter information as to Margaret’s bank account was wrong and may have been a typo, but may equally have been the product of Jack copying a sum in respect of his own wealth into this paragraph. Jack gave a valuation of his assets at £2,906,799 (a figure which appears to include his £1 million debt from the DGLT, although that is not made express in the document) and identified his ownership of the French Property, the Findon Property and the US Property.

On 6 March 2014, Ms Wells wrote to Jack and Margaret setting out her recommendations as to the structure of their wills and observing that she had sought to “find an equitable way of structuring your wills, which balances the desire to mitigate inheritance tax, with the need to protect each other and your respective children”. Amongst other things, the letter

Jack replied on 10 March 2014, apologising that he had omitted reference to his DGLT in his List of Assets (the first time he had drawn Ms Wells’ attention to the existence of his DGLT), and correctly referring to the fact that as Margaret was the joint owner of 2 Hutton Place “I assume she inherits it anyway”. He also correctly referred to his understanding that Margaret would receive his entire pension in excess of £100,000 per annum, but noted that owing to Eurotherm having been taken over by a German firm “there may be changes in store”, which I infer indicates a concern that Margaret may not be able to rely on his pension, at least in full. Jack again expressed his overriding concern that Margaret would not have to change her lifestyle in the event of his decease and that “she should inherit the maximum amount possible, my children can wait”. He said that he and Margaret agreed with the remainder of the letter, including the annuity for Andrew (which was to be taken into hotchpot), save that “we don’t understand paragraph 4”.

On balance, I infer that this lack of understanding encompassed the whole of paragraph 4, which concerned the operation of the life interest trust and the power to appoint capital. This broad interpretation is consistent with the words used and with the difficulty that Jack had previously identified with his understanding of the trust provisions. I do not accept the Defendants’ suggestion that this phrase was merely intended to express confusion over the reference in paragraph 4 to Margaret’s fund of £1.8m. In so far as Ms Wells had that “impression” as she said in cross examination, I consider her impression to have been mistaken.

On 28 March 2014, Jack emailed Ms Wells following up on a promise he had made in his 10 March 2014 letter to check the amount he had given to Sara. In his email he said he had failed to find a cheque stub for the amount he had given Sara in 1980 and Barclays had been unable to help but he had found an amount in his Barclays statements of £211,000 “which I am nearly certain relates to this transaction”, although there was no payee name or reference given. It is unclear how an entry in his statement in around 1980 for the sum of £211,000 could possibly relate to the purchase of the Brighton Property. No money exchanged hands when the property passed from Jack to Sara some 16 years later and the agreed value of the property at that time was less than half that amount. Even if Jack confused the 1996 conveyance with his purchase of the Brighton Property in the 1980s, Sara was still at school in 1980. Jack nevertheless instructed Ms Wells that “[i]f we make it £200k it will suffice”. Given the absence of any reference to the email of 19 February 2014 from Deloitte (suggesting that the correct figure was £100,000) and given the lack of any reference to a conversation with Sara (which would potentially have resolved the point), I infer that Jack had forgotten that he had asked Deloitte for their assistance (which he had received) and that he had also not checked the position with Sara, despite an email he sent to Deloitte on 24 February 2014 indicating that he would do so.

As at this point, Jack had provided Ms Wells with his 2007 Will identifying a figure of £100,000, an estimate of £400,000 and then a rounded down figure of £200,000 from an apparently uncertain figure in a bank statement apparently dating back to 1980. That he appears to have been trying to go back as far as 1980 also suggests that he had forgotten the circumstances of the purchase of the Teddington Property in 2000, when he had required Sara to repay him the proceeds of sale of the Brighton property. In that context, I do not attach any weight to the Defendants’ submissions that the final hotchpot figure Jack settled on for Sara of £200,000 was “pretty accurate”. It appears to have been pure coincidence that he got to a roughly correct amount and I consider that his attempts to get to a correct figure clearly evidence (at least) significant memory lapse, including as to whether he could obtain the relevant information.

On 23 December 2013, Jack sent an email to Barclays saying that he and Margaret wished to give “my step-granddaughter” (i.e. Charlotte) £150,000 for a deposit on a house. Jack said that “at the moment we plan half to come from my wife…and half from me” but he indicated that it might be convenient to tell the estate agent that all of the money was coming from him. Jack asked Barclays to send to the estate agent a letter confirming that he was good for this amount, adding that the money would not be needed until mid-January, by which time he should have received £390,000 from the sale of the Tally Ho! so that his investments would be unaffected. It is clear from the documents that the £150,000 was intended as a non-refundable gift and that Jack did not intend to hold any interest in, or charge over, the new house. This is entirely consistent with what Jack told Ms Wells at the 3 February 2014 meeting to which I have already referred.

It appears that Jack may have forgotten to send details to enable the necessary transfer of funds to be made, because on 5 February 2014, Charlotte emailed Margaret telling her that the funds for her deposit had not been received. This prompted Jack to send the necessary details on to Barclays who completed the transfer of the £30,000 deposit on the same day. Thereafter, on 20 February 2014, Jack had an email exchange with Barclays in which he requested a further transfer of £120,000, which Barclays confirmed would happen the following day. Completion on the property took place on 11 March 2014.

The 2014 Gift is no longer the subject of a claim, but as it is another staging post in the period prior to the 2015 Will, I should address it briefly. Dr Warner now agrees with Dr Series in the second expert joint statement that Jack “probably had the requisite mental capacity” to make this gift in light of additional evidence that he had seen. I would go rather further. I consider it to be clear from the evidence that, notwithstanding the memory lapses that Jack was plainly suffering from at this time, he did have the capacity to make the 2014 Gift.

Not only did I find Charlotte’s detailed evidence on the 2014 Gift compelling, but I also consider it to be clear from the contemporaneous documents that Jack knew exactly what he was doing. The experts agree that the email of 23 December 2013 shows both coherence and forward planning. It appears from Charlotte’s evidence that Jack originally wished to retain an interest in the property as an investment but, upon resistance from Charlotte’s partner, Howard, he and Margaret eventually decided that they wished to gift the money. I do not find this in any way surprising and I agree with Charlotte that there is no evidence that Jack misunderstood, or was not aware of, the nature of this gift. Although Charlotte was (rather surprisingly perhaps) cross-examined at some length about her statement, I did not detect that there was any real resistance to her evidence. At most it was put to her that Jack might have been prepared to make the gift because he viewed it as essentially a gift to Margaret, but beyond explaining why Jonathan was, in my judgment, mistaken in his oral evidence when he described this gift as “highly unusual” and “out of character”, I do not consider this to take matters further. I find that Jack’s preparedness to make the gift was entirely consistent with his generosity of spirit and love for both Margaret and Charlotte.

That Jack’s cognitive abilities appeared to be functioning reasonably well at around this time is also supported by:

There is clear evidence of memory lapses both in his dealings with Ms Wells (to which I have already referred) and in his domestic relationships (for example Jonathan’s evidence that Jack had difficulty remembering names and locations in a family tree “going way back” at a dinner in March 2014 and an email from Jonathan to Sara of 9 May 2014 implying forgetfulness on Jack’s part). Nevertheless I accept Jonathan’s evidence that at around this time “in transactional conversations he seems to understand and be normal”.

During his visit to the UK in March 2014 to attend the football match, Jonathan’s evidence, which I accept, is that Jack informed him that he was thinking about changing his will to further provide for Margaret, which Jonathan considered to be at odds with previous discussions during which Jack had said that “everyone would be treated equally” (i.e. under the 2007 Will). Jonathan now considers Jack’s change of heart to be “vastly out of character”. Sara sent Jonathan an email on 22 March 2014, discussing the same topic. Sara reports in the email that Jack had told her that he “just wants to be fair and doesn’t want to see Margaret penniless” but that “he wouldn’t give [the money left by Audrey] to Margaret’s kids”. She also reports that Jack had told her that he would show his children his will before he did anything, although Sara told him there was no need.

On balance, I reject the suggestion that Jack’s desire to change his will was out of character. Jack was of course free to change his will, if he wanted to, as Jonathan and Sara both realistically accepted in cross-examination. It is clear from Jack’s communications with Barclays and Ms Wells that his overriding concern at this stage in his life was to ensure that, in the event of his death, his wife was properly provided for and, to my mind, given his character, this is entirely unsurprising. As I have said, he appears to have had grounds for being concerned that Margaret might not benefit from his full pension. However, running alongside his wish to ensure that Margaret was properly provided for, Jack plainly continued to have a strong desire to provide equitably for his children, a desire that I accept he considered to be a moral obligation. His attempts at this time to balance making appropriate provision for Margaret with his children’s claims on his estate seem to me to be the natural response of an affectionate and caring man.

By May 2014, there is contemporaneous evidence that, although Jack “seemed OK”, conversation with him had become “difficult” (referred to in an email from Sara to Jonathan of 6 May 2014) and that his stated intentions were not always consistent with his actions (referred to in an email from Sara to Robert of 20 July 2014 “What he says and what he does, however, are two different things”).

As I shall now address, although he continued to engage with the arrangements necessary in connection with his will (and was able to identify a spam email purporting to have been sent from lawyer Jonathan Ginsburg on 30 June 2014, to engage in detail with Deloitte over his tax return in August 2014 and to enjoy a holiday with Mark and Diana in September 2014) Jack continued to exhibit signs of memory loss.

Interactions with Deloitte and Ms Wells – July 2014-August 2014

In July 2014, Jack instructed Christopher Horton of Deloitte to advise him on US estate law in connection with the US Property, albeit apparently giving Mr Horton an incorrect valuation of that property (US$250,000). Mr Horton provided his advice to Jack in an email of 15 July 2014 in which he noted Jack’s plan to transfer the US Property to Andrew on his death and advised that Jack would be subject to a combined US estate tax and UK inheritance tax charge of US$100,000 based on a US$250,000 valuation. The alternative suggested by Mr Horton was to transfer the US Property to Andrew for fair market value prior to Jack’s death, albeit that given Andrew’s circumstances (about which Mr Horton had no information) this was not a realistic possibility.

Jack appears to have read and understood this advice, because on 24 July 2014 he sent an email to Mr Horton identifying that the valuation of the US Property was a “mistake”, noting that he had paid US$415,000 for that property in 2001 and saying that in the circumstances he assumed that the tax charge would be higher. He observed that “…it is unlikely that [Andrew] will be able to pay this”. Mr Horton responded that if Jack could let him know the current value of the US Property he could recalculate the estimated tax liability. Jack responded saying that he needed to make some enquiries and would get back to Mr Horton.

On 23 July 2014, Jack sent an email to Ms Wells forwarding Mr Horton’s email of 15 July 2014 and instructing her that given the substantial tax that would be payable on the US Property on his death it would be best to give Andrew a choice as to whether to inherit it “as in my previous will”. Ms Wells accepted in cross examination that this was a testamentary instruction and that she had not actioned it because she was “still working under the impression that he was going to deal with it via a US will”. She also accepted that this instruction meant that there was no longer any need for a US will.

Also in the email of 23 July 2014, Jack provided a new figure for Margaret’s individual assets (£160,000 rather than £1.89m together with joint ownership of 2 Hutton Place) and informed Ms Wells (i) that his assets were about £3m (which appears to include the sum he was owed under the DGLT) together with the French Property and his helicopter worth about £350,000 (this had not been mentioned in the list of assets provided on 18 February 2014); (ii) that he had just sold the Tally Ho! for £390,000 and was awaiting liquidation of LTH; (iii) that he owned the Findon Property for which he had paid £80,000. Jack observed, in common with his earlier instructions, that “I don’t wish to leave it to [Susan] but I don’t wish to worry [Marjorie] at this stage of her life – she is 86”; and (iv) that he had given $10,000 to Jonathan “some years ago” (this was inaccurate as the figure was US$60,000 in July 1997), that he had reported his gift to Sara and that Andrew had received US$15,000 a year for the past 15 years (there is no explanation for this period, which is inaccurate). Jack instructed Ms Wells that he wished “to take these gifts into account when writing my will”. Jack ended the email by saying that he hoped Ms Wells could now proceed to write a will. Although Ms Wells accepted in cross-examination that this email amounted to testamentary instructions, she did not in fact take these instructions fully into account in the next draft of the will.

A handwritten note on the copy of Jack’s 23 July 2014 email on the Will File confirms that Ms Wells spoke to Jack over the phone shortly after receipt of the email. She provided him with costs information and her note records that he “[a]ccepts that things have developed and need to be finalised”.

Under cover of a letter dated 19 September 2014, Ms Wells sent to Jack and Margaret further drafts of their wills (“the Second Draft Wills”, “Jack’s Second Draft Will” and “Margaret’s Second Draft Will”) for their review and comment. In the letter, Ms Wells noted the inconsistent information that she had been given as to the ownership of Jack and Margaret’s savings and again explained the operation of survivorship in respect of joint assets, noting the potential for a claim by Jack’s children if joint assets passed by survivorship to Margaret. Ms Wells “urged” Jack and Margaret to discuss this with Barclays, explaining in her oral evidence that “they needed some assistance with explaining all the assets and the trusts which are relatively complex structures”.

Ms Wells explained that the intention behind Margaret’s Second Draft Will was that she would leave her estate direct to her children and Melanie’s children, but that to achieve Jack’s intentions (of making provision for Andrew and Marjorie but for Margaret to benefit from the estate with Jack’s children benefitting following Margaret’s death) it was necessary to create trusts in the will.

Ms Wells summarised the effect of Jack’s Second Draft Will in her covering letter, explaining that

It is common ground that Ms Wells omitted to address Jack’s instructions that gifts to Jonathan and Andrew should be brought into hotchpot. Ms Wells made reference in Jack’s Second Draft Will to a US will, despite her evidence that she now thought that Jack would not need a US Will and that he wanted Andrew to be given a choice as to whether to purchase the US Property. Again, the Second Draft Will included a revocation clause in respect of the 2007 Will, albeit that it was now drafted so as to exclude both the US and the French Properties. Again the will was expressed not to be mutual. Barclays and Margaret were to act as executors and trustees.

On 20 September 2014, Ms Wells sent to Jack a summary of assets that should have been included with the Second Draft Wills, which Jack said he would take with him on holiday “to study”. In this summary the US Property is valued (incorrectly) at US$250,000.

On 3 October 2014, Jack created a document on his laptop saved under the name “Jack and Margaret’s Wills” which appears to have been used to gather together information as to his and Margaret’s assets which he then reproduced in an email sent to Ms Wells on the same day. The assets identified are roughly in line with his 23 July 2014 email, albeit that some of the figures have now changed; the US Property is now valued at US$600,000. There is no dispute that the figures Jack gave at this time, which were not formal market valuations, were roughly correct. Jack now appears to express the view (contrary to information he had received over a year before) that Margaret would only receive half his pension “minimum” (albeit there is an internal inconsistency in the email in this regard). Jack says that he does not want to leave Andrew homeless and that he would rather pay the inheritance tax, by which I infer he meant that he wanted to ensure that Andrew inherited the US Property and would not have to pay inheritance tax in the US, something he said he was “researching”. Jack finished the email by reiterating that he wanted Margaret to be able to continue with her lifestyle and posing the question:

“[I]s it possible to leave everything to Margaret and specify, when she dies, the distribution of our respective wealth to our respective children? As two of my children live in the US, I am not concerned about tax”.

Pausing there, this email appears to me to confirm that Jack remained of the view at this time, consistent with the document he had prepared for his meeting with Barclays in September 2013 and his instructions in October 2013, that he wanted a simple will and that his ultimate ambition was to ensure that he left everything to Margaret and that, on her death, their separate estates would pass to their respective families. I infer that he continued to feel uncomfortable with the trust structure that Ms Wells was recommending. His instructions in relation to Andrew appear to have changed from his previous instruction that he wanted to ensure that Andrew had an option to purchase the US Property in accordance with the 2007 Will.

In an exchange of emails at the end of September 2014, Andrew informed Jack that he was looking at alternative properties, to which Jack replied:

“I am presently researching how to get you a house when I am gone!

At present you will have to pay a minimum estate duty of 40 per cent of value which is not on. I’m researching forming a trust and am awaiting a report – it looks hopeful!”

Jack’s reference to a report appears to be a reference to a further report from Mr Horton. At some stage Jack informed Mr Horton that the US Property was worth between US$415,000 and US$450,000 (not US$600,000) because Mr Horton emailed Jack on 9 October 2014 referring to this valuation and noting that Jack had told him that he planned “on transferring the property [to Andrew] at death”. Mr Horton advised that given this valuation, the combined UK and US tax charge would be up to US$180,000 (including US tax liability of US$120,000). Mr Horton again suggested some alternatives including selling the US Property to Andrew, gifting cash to Andrew to enable him to purchase the US Property and transferring the US Property to Andrew in the near future. Finally, Mr Horton advised that he was not sure that there would be much to be gained from transferring the US Property into a trust, but that it would probably make sense “to build the US analysis into the wider inheritance tax planning project” and that he would be happy to discuss this further. There is no evidence that Jack forwarded this advice on to Ms Wells.

Ms Wells responded to Jack’s email of 3 October 2014 on 23 October 2014, proposing again that, so as to utilise all available tax allowances, 2 Hutton Place should be held by Jack and Margaret as tenants in common and that Margaret should have a discretionary trust for two nil rate bands if she died first. Alternatively, Ms Wells informed Jack that if he wanted a simpler will he would need to transfer “around £500,000 to Margaret” in case she died first. She reiterated her view, however, that the trust arrangement (including a discretionary trust arrangement for Margaret) was the “most practical option”, concentrating on the available inheritance tax saving (something that Jack had said the previous month that he was not concerned about). Ms Wells asked for instructions as to how to proceed. It seems that Ms Wells also made some internal amendments to the Second Draft Wills in anticipation of Jack and Margaret accepting her proposals in the 23 October 2014 email (“the Internal Drafts”). These were not, however, sent to Jack and Margaret at this time, so they had no opportunity to consider the specific drafting changes made by Ms Wells in the Internal Drafts designed to implement her suggestions.

About an hour after receipt of this email, Jack forwarded it to Ms Bultitude at Barclays observing that “[t]hings are not as bad as I thought and may be workable”. Although it is unclear from the evidence what prompted this observation, and although Ms Bultitude said in evidence that it was unclear what Jack was referring to, I infer that, given Jack’s anxiety to ensure a “simple will”, the optimism he expresses in this email refers to the fact that Ms Wells has finally identified an “alternative” to the trust structures.

That this is the case is borne out by instructions Jack then provided on the Second Draft Wills in an email to Ms Wells dated 24 October 2014. He said this:

“Margaret and I have reviewed the draft wills and they don’t take account of ‘who dies first’.

I would not want Margaret’s lifestyle to be affected in any way should I die first – which is likely because I am five years older. In these circumstances I want Margaret to inherit everything. Margaret inherits half my pension.

Should Margaret die first she has agreed to a Will which splits everything seven ways (among my and her children from our first marriages with the exception of Melanie, Margaret’s daughter who is deceased, in which case Melanie’s three children inherit).

Tax is not a concern.

I’m afraid this means redrafting both Wills”.

Although it is clear from this email that Jack continued to want a simple will leaving everything to Margaret outright and dispensing with the trusts, that tax was not a concern and that he and Margaret therefore thought that a redrafting exercise was required, the remainder of the email is ambiguous (as Ms Wells accepted in cross-examination) and, to my mind shows a lack of understanding of the detailed terms of the Second Draft Wills, together with the advice provided to date by Ms Wells. The purpose of the trust structure set forth in the Second Draft Wills was to take account of “who dies first”, something I can only infer that Jack did not understand. He appears to have had a more simplistic view that his will should simply provide that Margaret received everything if he died first, albeit it is unclear from this what he intended to do in relation to, for example, the Findon Property.

This email appears to be the genesis of the idea that there should be a seven-way split of the residuary estate, but it is unclear whether Jack intended this to apply only to Margaret’s will, or whether the seven-way split was also to apply to his will. The reference to Margaret inheriting half of Jack’s pension was inaccurate and appears to involve no nuanced thinking (of the sort Jack had exhibited in earlier documents) around the fact that he had been told she would inherit his full pension, albeit that there were reasons to be sceptical about this – points which Jack appears to have forgotten.

This email is, to my mind, an important piece of evidence which suggests that Jack was, by now, having increasing difficulty understanding the proposals that were being made in respect of his will and that he was also having difficulty recollecting instructions he had previously given. Ms Wells accepted in cross examination that the wills were “not necessarily easy documents to follow” and that the content of the email left her “clearly concerned enough that they needed to have a further discussion about the mechanics of the wills”, from which I infer that she understood Jack to be having difficulties understanding aspects of the Second Draft Wills. She understood Jack’s instructions to involve a big change which would require her to go “back to the drawing board”.

On 27 October 2014, Jack emailed Ms Wells again, informing her that he had been talking to Ms Bultitude about the draft will “which she thinks is fine” and asking if Ms Wells would be agreeable to a three way conversation, a proposal to which Ms Wells subsequently agreed. Ms Bultitude’s evidence was that she would have wanted a meeting to resolve “confusion” around the nature of the trusts set up by Barclays and Jack’s longer term tax planning. Given that Jack had obviously also discussed the Second Draft Wills with Ms Bultitude and given that Jack apparently had difficulties understanding those wills, I also infer that Ms Bultitude considered that a meeting was necessary to clarify the content of the wills.

On 28 October 2014, Ms Bultitude emailed Jack and Margaret about the proposed meeting (copying in Ms Wells and Mr Mutsuddi). The purpose of the meeting (which was to take place as a conference call) was said to be “to discuss your Wills” with a view to providing “an opportunity for us all to address your questions and ensure we have resolved any outstanding issues preventing you from getting the documents formally executed”. Ms Bultitude noted that she, Ms Wells and Mr Mutsuddi would dial in slightly ahead of the meeting time to ensure they were “on the same page” and able to address Jack’s concerns about the Second Draft Wills.

The telephone conference call took place on 29 October 2014 and is evidenced by an attendance note taken by Ms Wells, which expressly records its purpose as being to discuss the wills to “allay concerns” that Jack and Margaret may have. Neither Ms Bultitude nor Mr Mutsuddi sought to challenge the content of this note. The note records that there was discussion of Jack’s DGLT and Margaret’s DGT, described by Mr Mutsuddi in his evidence as “complex structures”. Ms Wells said (wrongly) that she had not been made aware of these trusts and referred to the conflicting information she had received as to Jack and Margaret’s assets (information which by this stage had been clarified). Ms Wells appears then to have explained her proposed tax saving mechanisms (probably including reference to proposals in the internal draft that she had prepared but not sent to Jack). Ms Wells reiterated concerns around leaving the entire estate to Margaret, which Barclays agreed with, pointing out that the existing arrangements made adequate provision for Margaret and reiterating her concerns that Margaret could change her will after Jack’s death and leave everything to her children, thereby creating the potential for a claim (under the Inheritance Act 1975) by Jack’s children. Ms Wells advised that the life interest trust arrangements in the Second Draft Wills were therefore “the only viable solution”. The note does not record any instructions from Jack and Margaret on this point.

Ms Wells then took Jack through his draft will “in broad outline” and the note of the call records that “he was struggling to understand some of the provisions notwithstanding that they have been explained to him previously”. Ms Wells accepted in cross examination that he was “particularly” struggling to understand the trust structures. This caused Ms Wells, Ms Bultitude and Mr Mutsuddi to have a further discussion after Jack and Margaret had left the call during which the note records that it was accepted that “it is a difficult situation to go through with Jack because he doesn’t seem to understand the situation or the potential threats of litigation if everything is left to Margaret”. The note ends with the words “It was agreed that [Ms Wells] would send [Ms Bultitude and Mr Mutsuddi] copies of the current draft wills and keep them updated following the meeting in November”.

It is the Defendants’ case that it was unsurprising that Jack, as a layperson, was struggling with (what they accept were) complex trust mechanisms over the telephone in circumstances where he had not yet seen the Internal Draft and that this note raises no issues around Jack’s capacity. I disagree. It is clear from the note that the purpose of the meeting was to consider the “latest draft Wills”, which, on balance, was a reference to the Second Draft Wills that had in fact been sent to Jack and Margaret and also seen by Barclays. Although during the course of the meeting Ms Wells appears to have raised some new suggestions which had not been included in the Second Draft Wills (and may well have confused Jack further), I find that when Ms Wells took Jack through his “Will in broad outline”, she did so by reference to the terms of Jack’s Second Draft Will, which he had a copy of (and not by reference to the Internal Draft). The reference in the note to “provisions” which had been explained previously makes this abundantly clear.

Accordingly, it is plain that Jack was struggling to understand “some of the provisions” of Jack’s Second Draft Will and in particular the trust structures. However, it seems that he was also having a more general difficulty in “understanding the situation”, which I infer to be the advantages of the trust structure as drafted by Ms Wells by comparison with the simple will he wanted. He was not simply having difficulty understanding the risks of litigation (although that was certainly something that he could not comprehend). To my mind, although this lack of understanding on Jack’s part may very well have been exacerbated by the fact that this meeting was taking place over the telephone, this note is nevertheless evidence of Jack’s continuing and progressive cognitive decline. Ms Wells had discussed her proposals for tax saving trusts with Jack before but had never previously formed the impression (or recorded) that he was “struggling to understand” her advice. Mr Mutsuddi had no recollection of this aspect of the conversation but said he had no reason to doubt what was written in Ms Wells’ attendance note. His evidence in his statement went no further than to say that “if” he had had concerns about Jack’s capacity, he thinks he “would have remembered that”. However, to my mind, the fact that the note records Jack “struggling” to understand ought immediately to have given rise to such concerns. In so far as Ms Bultitude appeared to suggest during her evidence (apparently based on “interpretation” of the note) that there was no issue with Jack’s understanding of the provisions of the Second Draft Will, I reject that evidence, which in my judgment is inconsistent with the terms of the note.

Jack’s difficulties appear to have prompted Ms Wells to recognise the need for a face-to-face meeting (“I thought it would be beneficial to go through it in more detail”) because, as is clear from the final sentence of the note, it was agreed that this should take place in November 2014. She did not, however, think it necessary to apply the Golden Rule and obtain medical assistance, as I consider would have been the prudent course of action at this time.

On 29 October 2014, Ms Wells sent to Ms Bultitude and Mr Mutsuddi the Internal Draft of Jack’s will, which was not in fact a draft that had yet been provided to Jack. Indeed there is no evidence that this draft was ever provided to Jack. On 30 October 2014, Ms Wells wrote to Jack and Margaret confirming the next meeting at her office on 18 November 2014 and saying that “[h]opefully in advance of that meeting you will be able to provide me with a list of your current concerns so that we can hopefully try to finalise the Wills to your mutual satisfaction”.

The November 2014 Meeting with Ms Wells and provision of the Third Draft Wills

On 30 October 2014, seemingly in anticipation of the 18 November meeting, Jack prepared a document on the iMac entitled “Jack Leonard Wishes”. This document (which was never sent to Ms Wells) reads as follows:

“Margaret to inherit everything, including the House (2 Hutton Place)

My wealth to pass to my wife, Margaret.

She will abide by wishes.

Should Margaret die before me, the Estate reverts to me. This to include the House in Hutton Place. After my death, the Estate is to be divided into seven My (four children and the three children of Margaret) [sic]

I will address the problem of the House in France and America

Monies already given to my children

Sara Leonard: £152,080 in 2000, £34,000

Jonathan Leonard, $10,000. Towards a house

Andrew Leonard. House £400,000. Income paid $12,000 per month for 14 years plus Expenses.

Megan Leonard: (memory jogger) £100,000”.

It is clear from this that Jack was continuing to think along the lines of a simple will – leaving everything to Margaret on the understanding that she would abide by his wishes, but that if Margaret died first then on Jack’s death there would be a seven-way split. This does not appear to be compatible with Ms Wells’ proposed trust structure and I infer that Jack intended this to be an alternative to the trust structure proposed by Ms Wells. The hotchpot figure for Sara is remarkably accurate in the sense that it provides a correct net figure for the transaction involving the purchase of the Teddington Property in 2000, albeit where the additional figure of £34,000 comes from is unclear. The Defendants suggest that it is not quite half of the agreed value of the Brighton Property but there is no evidence one way or the other as to how any of these figures was arrived at. As I shall return to in a moment, Jack does not appear to have regarded the £34,000 as referable to the Brighton Property and its inclusion is therefore a mystery.

For the first time, Jack appears to make a mistake about Margaret’s children (referring to her three children, rather than recognising Melanie’s death). Given that Jack had not made a similar mistake in his email of 24 October 2014, only a few days earlier, and did not make a similar mistake at the meeting on 18 November 2014, I infer that (as the Defendants suggest) this was likely just a slip or intended as shorthand for Liz, Mark and the children of Melanie.

The note repeats an earlier error in relation to the gift to Jonathan (US$10,000 rather than US$60,000) and makes an entirely new error in respect of the amount of money paid to Andrew on a monthly basis, which I accept could have been a typo, Jack’s intention being perhaps to refer to US$1,200 or US$2,000 per month (figures which sit more comfortably with the sort of monthly figures he was in fact paying to Andrew) and not US$12,000. However, notwithstanding that Jack appears to have advised Mr Horton earlier in October that the US Property was worth between US$415,000 and US$450,000, Jack mistakenly refers to £400,000. The reference to 14 years is the length of time Jack has been married to Margaret but does not begin to reflect the period of time during which Jack had in fact been supporting Andrew, perhaps an indicator that Margaret was providing Jack with assistance in the preparation of this note.

For the first time, the note also suggests that £100,000 has been given to Megan, albeit that, if this figure refers to a hotchpot provision to be made in respect of the sale of the Tally Ho! pub, there appears to be scope for this to be extremely unfair to Megan who had left the pub in circumstances involving the breakdown of her marriage. Furthermore, Jack had made a cashflow profit on the pub over many years (which he seems to have forgotten) and it is not clear why any capital losses made on selling the pub would not be borne by Jack as the majority shareholder. In any event, he also appears to have forgotten that he had been advised by Barclays on at least two previous occasions that any losses he had made on the pub could be set off against gains made on his portfolio for capital gains tax purposes. The Defendants disputed that this was accurate as a matter of fact in closing, but this is what Jack had been told by Barclays. It is notable that Jack himself considered that he required a “memory jogger” in relation to this figure, suggesting that he thought it was something he might not recall.

In early November Jack and Margaret holidayed in the Maldives.

The meeting of 18 November 2014 (“the November 2014 Meeting”) was attended by Jack, Margaret and Ms Wells. This meeting was only the second face-to-face meeting that Ms Wells had had with Jack and Margaret and it was also the last. Ms Wells took handwritten notes during the meeting and subsequently prepared a detailed typed attendance note which records in its second paragraph:

“Although on the telephone Jack seems very slow and unsure of things face to face it is clear that he does understand things and I had no concerns either in respect of his mental capacity to make decisions or him being under any undue influence of Margaret.”

Ms Wells accepted that she had recorded this in the note because Jack’s mental capacity had “obviously” crossed her mind. Nevertheless, Ms Wells does not appear to have consulted her supervisor or to have attempted to speak to Jack and Margaret individually to try to assess whether they were each individually capable of understanding what was going on. No third party was invited to observe. Although her evidence was that at the meeting “it was clear that [Jack] did understand things”, in my judgment that evidence can carry no weight in light of these obvious failures.

It is unclear from the attendance note whether Jack had access to his aide memoire document created on 30 October 2014, although it seems likely that he did, because he instructed Ms Wells at the outset that he wanted to leave everything to Margaret and (later) that “he would want to leave his estate in seven shares” (this time apparently without repetition of the error in his own document). He also instructed Ms Wells:

Ms Wells accepted in evidence that the figure of £180,000 for Sara was an entirely new figure and that, given Jack’s decision that the current figure of £200,000 in Jack’s Second Draft Will “should be adequate” as recorded in the note of the meeting, the process of calculating Sara’s hotchpot provision was “unscientific” and “could create unfairness”. However, she appears not to have been concerned about it at the time, notwithstanding that it is now her evidence that her own assessment of testamentary capacity would have involved “looking for contradictions [and] irregularities” or “unexplained departures from previous testamentary wishes”.

As for the value of the US Property, Jack appears to have told Ms Wells, despite the figure in his aide memoire document, that it was worth US$600,000 – considerably more than the sum he had given to Mr Horton only a few weeks previously.

The typed note of the meeting records that there ensued a “very forthright conversation” about using trusts to avoid the risk of litigation, with which Jack ultimately agreed “provided that Margaret was in agreement”, and it was the Defendants’ submission in closing that this was evidence of the provisions of the draft will and its effect being “drummed into” Jack at this meeting. I disagree. Neither the handwritten note nor the typed note provides any detail about this conversation from which it could be inferred that Jack’s difficulty in understanding the nature of the trust structures and their effect, evident during the previous telephone meeting, had been overcome (as opposed to, for example, his having made a decision to rely upon Margaret’s understanding and agreement). It is clear that Ms Wells treated Jack’s instructions as to the division of his estate into seven shares (provided at this meeting for the first time) as being made in the context of the trust structures that she was proposing, albeit that Jack’s own aide memoire had assumed this division in the absence of a trust structure and appeared to be his attempt to find an alternative solution to the trust structure. To my mind this raises a significant concern over whether Jack and Ms Wells really understood each other’s intentions and approach at this meeting.

That concern is not dispelled by the way in which Ms Wells’ note summarises various aspects of the draft wills which were discussed, including that “the residue of the estate is to be left on an immediate post death interest Trust for Margaret’s benefit and on her death to be divided in the seven shares”. This is neither a simple nor user-friendly description of what Ms Wells was seeking to achieve, as the Defendants appeared to recognise in closing when Mr Dumont suggested that Ms Wells probably did not in fact use these terms, a submission which finds no support in the evidence.

Aside from his instructions about the gifts to Sara and Megan, and aside from pointing out that there should be no adjustment in respect of gifts that had been made to Andrew and instructing that (as her own handwritten note records) Andrew’s annuity should be “remove[d]” (an instruction that Ms Wells apparently did not query), the note records the following “discussion”:

Furthermore, Jack instructed Ms Wells that he would take advice in the US about the US Property, albeit he did not mention that he had already consulted Mr Horton of Deloitte. Margaret agreed that her estate would also be split seven ways.

During the course of the meeting, Ms Wells advised that the gifts to Jack’s children could be dealt with “by dividing the residue so that a total of £300,000 is given to each of Jack’s children taking into account the prior gifts and then any remaining residue and the property would then be divided into seven shares as discussed”. Ms Wells accepted in cross examination that this proposal was approved by Jack and Margaret, but it never found its way into any draft will.

The November 2014 Meeting ended with Jack confirming that “as long as Margaret was happy that she was going to be OK following his death” then he would agree to the trust arrangements being included in his will. Ms Wells confirmed that she would prepare amended wills so that the matter could be concluded.

On 19 November 2014, Jack sent an email to Ms Bultitude referring to the November Meeting and saying “I think I now understand wha’t [sic] she is doing and we sorted out details”. I do not read this as a clear and unequivocal statement that Jack now understood, or was comfortable with, the proposals discussed at the November 2014 Meeting. Subsequent events suggest that he did not understand those proposals.

Under cover of a letter dated 21 November 2014, Ms Wells sent to Jack and Margaret further drafts of their wills (“the Third Draft Wills”, “Jack’s Third Draft Will” and “Margaret’s Third Draft Will”) “for your consideration and if approved signature” together with draft letters to the Executors and Trustees and a draft Notice of Severance

Jack’s Third Draft Will provided in summary that:

The Third Draft Wills omitted accurately to put in place the instructions discussed at the November 2014 Meeting. In particular, (i) the provision in relation to the Findon Property did not leave it in sevenths on Marjorie’s death, as instructed, a mistake Ms Wells accepted in cross-examination; (ii) there was no hotchpot relating to the gift to Jonathan; and (iii) Ms Wells’ own suggestion that there should be a £300,000 provision for each of Jack’s children out of residue before division of the balance into seven shares (which was approved) was omitted, as Ms Wells also accepted in cross-examination. Furthermore, although the covering letter stated that the remainder of Margaret’s estate was to be divided into seven shares (in accordance with Margaret’s instructions at the November 2014 Meeting), Margaret’s Third Draft Will continued to identify a three way split between Margaret’s family. These omissions are important because, if Jack had fully understood all that had been discussed and agreed at the November 2014 Meeting, it is difficult to see why he would not have identified these errors and queried them with Ms Wells. However, at no stage did Jack get back to Ms Wells to point out that she had failed to implement his and Margaret’s instructions. The Notice of Severance was never returned to Ms Wells and she never mentioned it again.

At some point in November or early December, it appears that Jack had a meeting with Mr Horton of Deloitte. There is no note of this meeting but I infer that Jack was seeking further advice in respect of the US Property. He mentioned obtaining this advice in an email to Ms Wells of 28 November 2014 in which he also confirmed receipt of the Third Draft Wills (albeit making no comment on their content). The email confirmed that “I am seeking advice on Andrew…as the [sic] is a danger of him having too much”. Given that the proposed annuity to Andrew had now been removed from the draft will, on Jack’s instructions, it is unclear what Jack meant by this.

By late 2014, early 2015, it is clear from the witness evidence (and I accept) that outward signs of Jack’s cognitive decline were becoming more obvious. In her witness statement, Sara refers to a family event to celebrate her uncle’s birthday in November 2014 at which she describes Jack as appearing “vague and disorientated” and “slurring his words”. She also says that she was so concerned about him that she left the dinner to walk him and Margaret back to their hotel to make sure they arrived safely. Sara’s evidence is corroborated by (i) Pamela (who says that at this same event she found it hard to get Jack to engage with her, that Margaret did most of the talking and that Jack was “more distant in conversation again”); (ii) Paula (who says that Jack “didn’t really seem with it and wasn’t speaking clearly” and records in her statement that she asked Sara if Jack had suffered a stroke); and (iii) Keith who says that his father told him that he found Jack “at the hotel the following morning, confused and trying to find a bus towards Reading”.

In similar vein, Jonathan recalls that by early 2015, Jack’s speech had “noticeably deteriorated”, that he was struggling to speak and that, when he did, his voice was “raspy and slurred”. Jonathan describes a visit he made to the UK in February 2015 to attend a football match in Newcastle during which he met Jack, Margaret and Sara at the Renaissance Hotel Heathrow for dinner. He says that Jack seemed easily confused, that he was struggling to remember his room number and that Jonathan paid for dinner because he did not think that Jack “could manage” the bill – evidence which went unchallenged. Jonathan says that “[t]his for me was notable as Dad would always insist on paying at restaurants. This time, he didn’t even notice I’d paid”. Jonathan also describes how, the following day, Jack did not understand how to purchase a train ticket, observing that “[t]his is a vivid memory for me as [Jack] was hugely intelligent, very technical and could fly through any device”.

I accept this evidence which appears to me to be consistent with Jack “struggling” to understand the complexities of his will during his telephone conversation in October 2014 with Ms Wells, Ms Bultitude and Mr Mutsuddi and also the evidence of his condition at the birthday celebration in November 2014. Jonathan’s evidence about Jack’s difficulty coping with technology is reflected in Susan’s evidence that he had difficulty understanding a keyless system for a car, albeit that Susan is unable to date that incident with any specificity beyond saying that it took place “around 2013 or 2014”. Given my analysis of the evidence to date, I am inclined to think that, on balance, this is likely to have occurred late in 2014.

It is clear that Jack was becoming more physically frail at this time, but the evidence to which I have referred is also consistent with ongoing progression of his mental illness. Given the expert evidence as to the fluctuating nature of cognitive decline, I do not regard this ongoing progression as inconsistent with evidence of (apparently coherent) emails that Jack was able to write at around this time (for example in relation to his holiday in the Maldives on 17 November 2014) or evidence that in December 2014 Sara had a “nice lunch” with him (as was suggested in cross examination) or that he and Margaret were able to check themselves in online for flights to Cancun over New Year, or indeed that in March/April 2015 he purchased a car in France with Andy’s assistance. Although it is true that Jack was able to obtain tickets for Jonathan to go to the football match in February 2014, I accept Jonathan’s additional evidence in cross examination that the process of obtaining the tickets was difficult and that Jack had originally obtained two hotel rooms only, rather than tickets for the match. Jonathan said, and I accept, that Jack’s “thought process was very slow”. The emails from that time between Jonathan and Sara (on which Sara was not cross examined) discuss Jack’s physical decline (his difficulty travelling) together with confusion and difficulty in communicating. An email from Sara to Jonathan on 11 February 2015 referring to the planned dinner with Jack records that “Dad just rang me and thought dinner was for tomorrow – honestly communication is soooo difficult”. No doubt with these communication difficulties in mind, Sara sent Jack an email on the same day using red text, underlining and bold font to highlight key information about the location, time and date of the dinner.

It is common ground between the experts that slow or slurred speech is not necessarily caused by cognitive impairment. However, Dr Warner regarded it as “a red flag”. Dr Series said that one of its causes is dementia “and so that could be a relevant thing to consider as part of the assessment of the degree of dementia”, although he said he did not consider that it was directly related to capacity. In this case, I find that given my determination as to Jack’s sudden confusion in the summer of 2013, his continual memory lapses and his later diagnosis of mild to moderate dementia, Jack’s slurred and slow speech at the end of 2014/early 2015 is likely to have been an outward manifestation of the ongoing progression of his illness. I infer (particularly from the evidence of confusion on Jack’s part) that Jack was also suffering from progressing cognitive impairment. It is possible that Jack himself understood the potential significance of what was happening to him. In an email to Andy in March 2015, responding to a query about a holiday in Jamaica the following December, Jack said “Don’t know if I’ll make it”. Andy’s response “Of course you will” no doubt expresses the optimistic response of many members of Margaret’s family to his state of health at this time – perhaps not really wanting to see or acknowledge Jack’s slow decline.

In so far as the evidence of Margaret’s family suggested that Jack was showing no signs of any cognitive impairment (including confusion or memory lapses) in this period, I consider them to have been mistaken. As I have already said, the fact that many members of Margaret’s family were seeing Jack very frequently may have made it a great deal more difficult for them to pinpoint the start of Jack’s decline or, indeed, to remember specific incidents and dates. The Defendants rely on evidence of a Well Man Medical on 4 March 2015 which described Jack as “overall” in very good health, but I have no evidence whatever as to the tests to which Jack was subject during this medical. From the letter to him of the 5 March 2015, it is clear that the medical involved blood tests and that it “looked at” four medical issues, none of which concerned cognitive deterioration. In the circumstances I can attach no weight to this in the context of my consideration of Jack’s cognitive decline. In this context I note the admission in the Defence that by 2015 Jack’s cognitive facilities had declined “such that he was no longer as sharp as he had previously been”.

There is no evidence of Jack getting back to Ms Wells as to the substance of the Third Draft Wills in December 2014 or early 2015. Indeed there is no evidence of them being mentioned in any material way again. That he did not do so is confirmed by an email from Ms Wells’ secretary to him on 24 February 2015 referring to his exchange of emails with Ms Wells in November 2014 and asking whether he is yet in a position to finalise the wills. Jack’s response to this query explains that he is “awaiting a response from Deloitte regarding the USA” and that once he has received that response he is hopeful of being able to proceed.

In the meantime, however, Ms Bultitude contacted Jack by phone on 5 January 2015 to obtain his instructions on an investment that he had purchased in 2008. The attendance note evidences Ms Bultitude giving detailed advice about the investment and records the fact that Jack’s “speech can be a little impaired from time to time” when speaking over the phone. Ms Bultitude raised with Jack the Barclays “elderly and vulnerable” policy but the note records that he was “adamant and clear” that he did not require a third party present when receiving investment advice and making investment decisions. Although the note describes Jack as still very much engaged when it came to his investments, Ms Bultitude accepted in cross-examination that “Jack’s interaction with her would have been brief” and may have been limited to single word responses. On balance, I do not consider the note of this meeting to evidence engagement on Jack’s part in the particular conversation; there is no suggestion that he questioned any aspect of the advice he was being given. That Jack himself was not prepared to accept that he needed the assistance of a third party does not, to my mind, carry any real weight for obvious reasons.

On 30 January 2015, Deloitte sent Jack his 2013/14 tax return together with an amended 2012/2013 return which he was asked to approve by the following day. Jack sent a brief email on 31 January 2015 confirming that there were “no major (or minor) omissions” and asking for the return to be submitted. These exchanges do not evidence anything other than Jack following the instructions he had been given by Deloitte. On 23 February 2015, Deloitte submitted their invoice to Jack for the period to 31 January 2015, which, amongst other things, mentioned (and charged for) their review of his files “to confirm details of a gift you made to your daughter, Sara, for the purposes of reviewing your will”. This reference does not appear to have prompted Jack to reconsider the latest instructions provided to Ms Wells.

On 2 March 2015, Mr Horton provided Jack with a report in relation to the US Property, noting in his covering email “the level of complexity involved”. The report confirms Jack and Margaret’s agreement to divide their assets seven ways, identifies the value of the US Property as “between $450,000 and $500,000” and records Jack’s wish that, on his death, Andrew would be able to continue to reside in the US Property. The report also records Jack’s instructions that “due to Andrew’s health issues”, he did not want to make an outright transfer to him of the US Property and nor did he want to transfer a significant amount of money to him which might enable him to acquire his own property. Instead, Jack now wanted advice on whether a trust might be appropriate to hold the US property for Andrew’s benefit during his life, notwithstanding that this might not be the most optimal result from a tax perspective. The possibility of a trust had been raised by Mr Horton in his email of 14 October 2014.

Under the heading “The Importance of Wills”, the report advised that “it is important to ensure that you have a US will in place to ensure that this asset is directed to the correct beneficiaries on your death”. It also advised that because Jack was likely therefore to have multiple wills in place “it is important to ensure that each will recognises the existence of the other” and that this was a matter that would need to be addressed with the solicitors responsible for drawing up the wills. On the subject of a trust, the report advised that it would be possible to transfer the US Property into trust on Jack’s death and to provide Andrew with a life interest in the trust but recommended that if this approach were to be taken there would need to be provision in Jack’s UK will that the US tax charges associated with the transfer of property at his death be settled out of his wider estate before any other distributions to the beneficiaries of the UK will.

Jack met with Mr Horton on 18 March 2015, although there is no note of that meeting. An email of the following day from Oliver Burton of Deloitte followed up on a request made to him at the meeting to send information which would enable Deloitte to prepare his 2014 tax return. Jack did this under cover of an email on 20 March 2015.

In an email of 26 March 2015 to Mr Horton, Jack explained that he had decided “it will be too expensive to set up a trust” in respect of the US Property and that he had abandoned the idea – presumably the costs had been explained to him at the meeting on 18 March 2015. In a departure from his earlier thinking about tax, he observed that “I will, instead, leave the property to Andrew and, if he keeps it, he will have to pay the 40% tax”. Jack says he will tell Andrew this “in due course”. This prompted two emails from Mr Horton providing advice as to how this should be dealt with in Jack’s will (“it would be prudent to outline how you wish the UK/US tax in relation to the property to be funded”) and reminding him of the possibility of selling the US Property and then gifting the proceeds to Andrew, together with calculations as to the “economics” associated with this possibility. Jack responded on 28 March 2015 thanking Mr Horton for “spelling it out so clearly” and saying that he would “give it some thought and let you know”.

There is no evidence that Jack told Ms Wells of this decision, told Andrew of his intentions, or passed Mr Horton’s emails on to any of his other advisers. In an email to Mr Horton of 1 April 2015, Jack wrote “[i]n fairness to my other children I will leave the house to Andrew and no [sic] give him anything. He can then borrow against house to pay the tax or downsize – I can’t go on living his life for him! I will however start researching a US Will!”. This is suggestive of a change in Jack’s approach to Andrew, perhaps suggestive of a growing lack of empathy. However, it is clear that Jack was still keen to leave the US Property to Andrew. There is again no evidence that this was communicated to Ms Wells.

On 8 April 2015, Jack emailed Fettmann Ginsburg PC seeking to follow up on his decision to research obtaining a US will and asking for a contact that he could use. He did not attach Mr Horton’s latest report or their email exchanges but said that his sons now reside in the US. Patricia Fettmann, an American attorney, replied indicating that she might be able to help and that she could also provide a referral to a lawyer specialising in estate planning. Jack replied in an email that was full of typos (described by Ms Fettmann’s law partner and husband, Jonathan Ginsburg, in an email of 8 April 2015 as “cryptic”) as follows (errors in the original):

“I have plenty of advice on Estate planning, but I’m Told I need aUS will or those that live in the US. I remaares when my dirst wife died and for many years was a US resident with my Company, Eurotherm, thanks to Jonathan (who was with Ginsberg, Feldman & Bress at the time”.

Pausing there, Jack’s email appears to me to evidence a substantial degree of confusion. He does not mention the US Property, Andrew’s financial position or the advice he has received from Deloitte (or, much earlier, from Buzzacott). Later that same day he sent a further one line email saying simply “I am resident in England”, again not addressing the central issue.

On 9 April 2015, Jack appears to have organised his thoughts more clearly, because he sent another email to Ms Fettmann explaining that he needed a US will because:

“I have given up my Green Card and my sons (2) are resident in the USA…I am having a UK will drawn up...I should mention that I own the house where Andrew lives but I intend to leave it to him. He will have to downsize to pay the tax, which he hasn’t realised”.

On 10 April 2015, Jack provided Ms Fettmann with what he described as a “summary of requirements”, an apparently more coherent document albeit containing information of no relevance to Ms Fettmann (about his assets outside the US). Notably in this context Jack identifies the general position as being “[m]y wife inherits if I am the first to die”, without any reference to the trust structure he has been advised to put in place. Jack set out his understanding in this document that “there is a tax complication at the moment involving the English Wills which are being rewritten”. This was incorrect – there was no tax complication in relation to the English wills. The information he provides in relation to the US Property did not make clear his specific instructions for his US will. He said only this:

“I own the house my son, Andrew, lives in and he is due to inherit it. I gather he will have to pay some $200k (the house is worth $500k) and will probably have to downsize. Alternatively he may borrow money on the house”.

Jack’s final paragraph said that he needed to prepare English and US wills and that he was looking for someone to prepare the US will. He asked “Are you appropriate”, by which I infer that he wished to know whether the preparation of the US will was a task that Ms Fettmann was able to undertake on his behalf.

Jack and Margaret attended another meeting with Barclays (this time at Barclays’ offices) on 29 April 2015. There are at least two notes of this meeting but neither records any attempt on the part of Barclays to check whether Jack and Margaret required a third person present and Ms Bultitude’s evidence in chief was that (as is evident from the notes) Jack was involved in the discussions. During the course of the meeting Jack said that “[h]e would be adding [Margaret’s] children to his will” and that he was “not entirely happy with Andrew inheriting the US property, he has thoughts in place to have Andrew downsize”. He informed Barclays that he was considering writing an American will and that he may also consider writing a new French will. He does not appear to have provided any information as to his advice from Deloitte or his recent contact with Ms Fettmann. The note records that there was also a discussion about Jack’s investments.

Following the meeting, there is evidence that Ms Bultitude was concerned about a change in Jack. In a note of a second meeting signed by Ms Glimond (who had also attended the meeting on 29 April 2015) on 5 May 2015, the following conversation between Ms Glimond and Ms Bultitude is recorded:

“SB also advised that [Jack] has macular degeneration and appears to have ‘slowed down’ since she last met him. His understanding is still evident but he struggles a little to make himself understood. DG had noted that his speech is a little slurred”.

When asked about this note during examination-in-chief, Ms Bultitude did not attempt to suggest that it was incorrect. She confirmed that it had also been signed by another of her colleagues at Barclays. Upon it being put to her in cross-examination that there had been some kind of cognitive deterioration since she last met Jack she responded that she “could not remember”. However, she accepted that “to an extent” the reason she had refused to take immediate instructions from Jack, instead asking him to go away and discuss his decision with Margaret, was because “there were concerns about capacity”, albeit she subsequently appeared to row back from this concession.

I find that this note is important evidence from Jack’s professional advisers that it was obvious to them that he was slowing down, that his speech was slurred, he was having difficulty making himself understood and that this gave rise to concerns around his capacity. Dr Series expressed the view in the second joint statement that this note was evidence of “reduced flow of speech in line with [Jack’s] dementia”. In so far as the note expresses the view that Jack’s “understanding” was still evident, it is entirely unclear what this view was based on or how it was arrived at, and, in the circumstances, I am unable to place any real weight on it. On balance I consider it to be much more likely that Jack was engaging with Ms Bultitude only on a relatively superficial level at this stage, perhaps appearing to understand the advice he was being given, but in fact not able to engage with it on a detailed or complex level.

Ms Bultitude followed up on Jack’s instructions in an email dated 13 May 2015, asking about his intentions in relation to the transfer of excess cash into his DGLT and requesting information about the intended beneficiaries under both his and Margaret’s trusts. Jack did not reply to the former question, leading Ms Bultitude to send him a chasing email on 30 July 2015.

At the beginning of May 2015, Jack emailed Ms Fettmann apologising for being “vague” and asking if she wanted “the job of writing my will”. Ms Fettmann replied suggesting a call (at no charge) and it seems that Jack tried to call her on 4 May 2015, but she was not available. There is no direct evidence of a conversation between Jack and Ms Fettmann.

On 6 May 2015, Jack sent to Ms Fettmann a document entitled “Carol Wells”. His covering email was blank. The document, which was presumably intended to assist in the preparation of a US will, said this (typing errors included):

“My UK lawyer is Carol Wells.

\Carol works for Irwin Mitchell…There are existing wills which will be superseded.

I should explain my first wife died of breast cancer in 1998. I remarried a lady I met on the Web whose husband had died some five years earlier. Margaret is five years younger than me. I am eighty three.

I want to save Tax, if possible, because neither my wife nor I paid any tax on the death of our first respected spouses, and believe it possible.

Any further questions, please ask”.

On 7 May 2015, several months after his last contact with her, Jack emailed Ms Wells saying that he had “appointed” Ms Fettmann “to work on an American will” and that she would be in contact. This appears to be entirely inaccurate in that (as Ms Fettmann points out in an email to Ms Wells later the same day) Ms Fettmann had been neither formally retained nor instructed (certainly not in any clear terms) to do anything. Indeed Ms Fettmann’s email of 7 May 2015 (also copied to Jack) evidences her confusion around Jack’s requirements; amongst other things she says that she has been “unable to determine whether he wants the US will for only the US property or for his entire estate (which made no sense to me)” and she also says that she understands Jack to want the US Property to be sold “so that the proceeds can be equally divided between all his children”, something which appears consistent with what Jack had said to Barclays on 29 April 2015, and which might suggest that Jack and Ms Fettmann had managed to speak (albeit it is inconsistent with Jack’s written instructions to Ms Fettmann). Curiously Ms Wells appears never to have responded to this email, notwithstanding that, in my judgment, this episode should have served as another warning flag as to Jack’s capacity.

In an email sent to Ms Fettmann the following day, Jack identified that she had made “errors” in her email to Ms Wells but he described these as follows:

“I the house where we live in England is jointly owned with there is a property in Plan-de-la-Tour in the South of France which I also own about 1,0m Euros. My apologies”.

Ms Fettmann replied to Jack on 8 May 2015 saying that she was waiting to hear from Ms Wells before responding and that “[t]hose items [which I infer to be the assets identified in Jack’s email] should not affect the basic question or her response”. Jack had no further contact with Ms Fettmann and took no further steps to try to pursue the preparation of a US will.

Ms Bultitude’s request of 13 May 2015 for details of the beneficiaries of the trust appeared to prompt Jack into creating documents on his laptop designed to set out this information. Altogether he appears to have created five documents (saved as “Children D”; “Children &”; “Children&Grndchildren”; “Children & Grnadchildren” [sic] and “Jack Leonard’s Children”) between 17 and 18 May 2015. The final version (entitled “Jack Leonard’s Children”) was sent to Ms Bultitude under cover of an email from Jack dated 18 May 2015. This was an important document for obvious reasons, but it is littered with errors. Jonathan and Andrew’s dates of birth are both incorrect, Jonathan and Andrew’s zip codes are both incorrect, Sara’s house number is incorrect and his youngest grandson Henry is omitted entirely from the list. Under cross-examination, when this document was drawn to his attention, Dr Series confirmed that Henry’s omission gave him “a little more cause for thought that that could be a memory error” and said that the other errors would “possibly” exacerbate those concerns albeit that it would depend on why Jack prepared the document and how important it was that it was absolutely accurate. I accept the Claimants’ submission that Dr Series’ testimony supports the conclusion that this document is further evidence of a progressive cognitive decline, particularly in relation to Jack’s memory. It seems to me to corroborate the evidence given by Robert that at a family dinner for Passover in April 2015, “Jack’s mental health and speech capacity had markedly deteriorated”.

Between 23 and 29 June 2015, Jack was involved in correspondence concerning the renewal of his private healthcare cover with BUPA, which Schneider Electric (the successor company to Eurotherm) were responsible for paying. It is the Defendants’ case that this shows Jack using initiative and demonstrating good cognitive skills, but on close analysis I disagree. In fact detailed analysis of these documents (which I need not set out at length here) shows that Jack persisted in sending emails to the wrong address and that having received confirmation that Ms Chang at Schneider Electric would pay the renewal sum, he nevertheless paid it himself around 20 July 2015. To my mind this appears consistent with deteriorating cognitive abilities.

On 25 June 2015, Jack created a document on his laptop saved as “letter to carol carr” (presumably an incorrect reference to Ms Wells). The court was shown four versions of this document. Version 1 (last modified on 26 June), which reverts back to the need for simplicity in his will, reads as follows:

“I now wish the Wills to be written.

The first thing to define is that, if Margaret survives me she inherits everything. I suppose Tax to be a consideration. The Will is to be written to minimise Taxation.

Everything except the house we live in is to be divided seven ways with a seventh going to each of my four children and a seventh to Margaret’s three surviving children and their offspring.

The reason for this is my wife who doesn’t want my children to inherit any part of the place where she has been living.

The value of the property in France is to be similarly split seven ways.

The residence at Findon Valley…is for the life time use of my first Wife’s sister, Marjories, and is not to be sold until her death. Then the proceeds of the sale can be split seven ways.

The house currently occupied by my Son Andrew is to be inherited by him alone. He will probably have to downsize after paying the inheritance tax” (emphasis added).

This document was the subject of a considerable amount of scrutiny at trial, in particular as to the error in Jack’s reference to Margaret’s “three surviving children”; an error which repeats the similar error made in his aide memoire document of 30 October 2014. On this occasion however, this phraseology (together with other evidence from around this time) does not suggest to me a mere slip or “shorthand” for Mark and Liz and Melanie’s children. I infer from the reference to “three surviving children” that Jack understood that there had been a death but it is not clear that he was able to identify who had died. His identification of three surviving children was plainly wrong. Margaret only has two surviving children. Furthermore, the suggestion that one seventh was to go to the offspring of all of Margaret’s children was wrong.

At this remove of time it is impossible for me to say with any certainty why Jack made such an error – Melanie’s death had plainly been extremely traumatic for everyone. There would appear to be three possible explanations: (i) that when drafting the document he made serious and fundamental typographical errors which entirely changed the intended meaning of the sentence without noticing them; (ii) that he believed what he had written to reflect the true position (i.e. he believed it to be accurate) without appreciating that what he had written in fact meant something entirely different – in other words he was very confused; or (iii) he had forgotten or was unable fully to understand who the members of Margaret’s family were and their relationships to each other.

I consider the first possibility, effectively that this is simply an example of poor draftsmanship, as the Defendants contend, to be unlikely. This document was of considerable importance to Jack; it was setting out his testamentary intentions. In that context it is difficult to believe that he would not have taken care in drafting it, including reading it over to check for errors. I reject the suggestion that this is simply an example of “loose terms”. In my judgment it is, on balance, more likely that when he wrote this document he was either extremely confused and finding it difficult to articulate in writing his thoughts, or he had actually forgotten the identity of the member of Margaret’s family who had died. Dr Series accepted in cross examination that if Jack had forgotten Melanie’s death “that raises quite a question about his memory”. He also explained that following strokes or various kinds of brain injury the “ability to express in words what you are thinking is damaged”. In either event, I consider that this casts serious doubt over Jack’s cognitive powers.

On 2 July 2015, Jack sent an email to Ms Wells with no content but an attachment entitled “I now wish the Wills to be written”. This was Version 4 of his “letter to carol carr” document, albeit found on the iMac. The document was created on the iMac on 2 July at 11:19 and last saved/modified at 11:49 on the same day. It was then sent from the iMac to Jack’s email address by Margaret at 11:53 (Version 3) and 17 minutes later a very slightly amended version of it (Version 4) was sent to Ms Wells under cover of Jack’s email. I do not need to decide that anyone other than Jack was responsible for this document (he may have had his own reasons for working on this document on the iMac); however, I infer (based on the inherent probabilities) that Margaret read it on her iMac and suggested that he correct the error he had previously made because the reference to “Margaret’s three surviving children” in the third paragraph is now amended to “Margaret’s two surviving children and Melanie’s (deceased) three children”, thereby reflecting the true position. The other more minor amendments do not change the intention expressed in Version 1 but clarify that the French Property will be put on the market.

Pausing here, these instructions to Ms Wells clearly revert to the desire for a will leaving everything to Margaret – a rejection of the trust structure that Ms Wells had included in the Third Draft Will and a reiteration of instructions that Jack had been giving all along: he literally wanted everything to be left to Margaret should he die first, with the exception of the Findon Property and the US Property which were to be provided for separately. This was accepted by Ms Wells in evidence who acknowledged that these instructions were a “reversion by Jack to the quite simple structure that he and Margaret had come up with, that everything [apart from 2 Hutton Place] that belonged to both of them goes seven ways”. Furthermore, these instructions:

I reject the Defendants’ submissions that these instructions were plainly referring to a life interest trust as discussed at the November 2014 Meeting and further that it was “clear” from these instructions that Andrew would have to give credit against his interest in the residue under the UK will should he receive the US Property as intended via a US Will.

On 3 July 2015, the day after sending his instructions to Ms Wells, Jack sent an email to Ms Fettmann attaching another very similar version of the document he had sent to Ms Wells the previous day, this time saved as “leonards will”. The metadata shows that this document was created on 1 July 2015 on Jack’s laptop (i.e. this was Version 2, created before the document saved as “I now wish the Wills to be written” was created). It was last saved/modified at 11:54 on 2 July 2015 – in other words, Jack appears to have worked on it within a few minutes of finalising Version 3. Given its similarities to Version 1, also created on his laptop, it seems likely that Version 2 was created either by re-saving Version 1 under a different name or by copying the text into a new document. In either case, it is clear that the third main paragraph has now been amended to read:

“Everything except the house we live in is to be divided seven ways with a seventh going to each of my four children and a seventh to Margaret’s surviving children and to be split equally between Margaret’s three surviving grandchildren” (emphasis added).

It is impossible to say whether this amendment was made to Version 2 before or after Version 3 was created on the iMac, although it seems from the metadata to be more likely that it was made before. However, what is clear is that Jack made a serious error on 25 June 2015 and that although he subsequently appears to have appreciated a need to amend his drafting, he was totally incapable of properly correcting that error when he worked on Version 2. Inexplicably (and as the Defendants accepted in closing “somewhat bizarrely”) , he then chose to send Version 2 to Ms Fettmann rather than sending Version 4 which he had provided by way of instructions on the previous day to Ms Wells (which did not contain the error), without apparently appreciating the continuing inaccuracy in the information he had provided. To my mind this again evidences a considerable degree of memory loss and confusion on Jack’s part and cannot simply be explained away, as the Defendants suggest, as a “simple mistake”.

Jack’s covering email to Ms Fettmann said this:

“I would now like you to proceed with our Wills, if you are willing.

The subjects are all those living in VA, my two sons. Further explanation is carried in the attached letter”.

That Jack was, on balance, suffering from confusion when he prepared the various instruction documents to which I have referred is borne out by his GP’s notes from 6 July 2015. On that day Jack attended at his local surgery to obtain a prescription from his GP, Dr Patrick Ward, who records in the notes that “of most concern” was his “apparent confused state, really quite vacant”. Jack was recorded as “extremely hesitant with speech”, unable “to follow simple instructions during cranial nerve exam for example” and forgetful in that, having left Dr Ward’s room for a short time, when called back in he appeared “to have forgotten the previous conversation”. Margaret told Dr Ward that there had been a “sudden change” in Jack which had happened “about six weeks ago”, that it had maybe worsened since then but that she “thought it was just age”.

Dr Ward asked Margaret to take Jack to Basildon University Hospital, where he was admitted and spent three nights under observation.

Jack’s inpatient letter from the hospital records that he was admitted with “expressive dysphasia, dysarthria and slurred speech”, which the experts explained as difficulty in producing and understanding language (including written language) (dysphasia), difficulty in expressing the right word (expressive dysphasia) and difficulty in the mechanical production of speech resulting in slurring or lack of proper articulation of speech (dysarthria). The letter describes these symptoms as “longstanding” and I reject the Defendants’ attempts to suggest otherwise by reference to a letter to Jack’s GP from Dr Khorshid, a consultant dermatologist, dated 6 July 2015 which refers to his attendance at a clinic on 3 July 2015 and says that aside from a severe itch he is “otherwise well”. Dr Khorshid was plainly focussed on a skin condition from which Jack was suffering and I infer that he would have had no reason to focus on or explore entirely different symptoms which were unrelated to that condition and fell well outside his area of expertise.

During his time in hospital, Jack had CT and MRI Scans, which showed, in summary, abnormalities involving generalised cerebral involutional changes (described by Dr Series as shrinkage of the whole brain which tends to be a feature of ageing rather than an indicator of dementia). There were signs of chronic small vessel ischaemic disease, but no sign of a substantial haemorrhage or stroke. The CT scan reported a “moderate burden of chronic small vessel disease”, which Dr Series explained as the “furring up, narrowing” of the small blood vessels in the brain, effectively resulting in poor blood supply to the brain. The description of this condition as “moderate” was in his view “getting to a level where it is likely to be having some impact on cognitive function”.

An imaging report (and an Addendum) by Dr Chawda described Jack’s MRI scan as showing “a moderate to severe degree of generalised cerebral and hippocampal atrophy as well as a moderate degree of cerebellar atrophy”. Dr Series explained that Alzheimer’s disease pathology usually starts in the hippocampus (a particular part of the brain) and that “hippocampal atrophy” was an indicator of Alzheimer’s pathology in Jack’s brain (with which Dr Warner agreed), while “cerebellar atrophy” together with the identification in the imaging report of “hypertensities scattered in white matter of both cerebral hemispheres and at the basal ganglia” were indicators of vascular dementia. Dr Warner explained in his report that the problems with blood supply to Jack’s brain were both in the cortex (outer surfaces) and in the deeper structures (basal ganglia). Dr Series said that hypertensities could indicate small bleeds, alternatively small areas where the blood flow has diminished. Dr Warner’s evidence was that this presentation was compatible with an acute vascular event (stroke) which was not so severe as to cause any problems with motor function. I did not understand there to be any significant disagreement between the experts on any of these points.

At around this time, Margaret told Isabelle that Jack had suffered a “funny turn” whilst on holiday in France. In an email to Helen Smith, sent on 15 July 2015, Margaret explained that Jack “was very confused and unsteady on his feet. It started when we were in France”. I infer that it is very likely that once again Jack had suffered from a small bleed (in layman’s terms, a small “stroke”), possibly in France. I note, however, that Margaret’s description of his being “very confused” across the six week period tends to indicate that if there was such an episode in France, it was not something that Jack immediately recovered from. It appears equally likely that Jack suffered a similar episode on or around 6 July 2015. As Dr Series said in his evidence, such episodes are “very typical of a person in the course of vascular dementia” and vascular problems will cause “periodic changes”.

Jack was discharged on 9 July 2015 and appears to have seen or spoken to Dr Ward again upon discharge. Dr Ward’s notes record his view that Jack “will need a neurology follow up no matter what”. On 12 July 2015, Sara sent Margaret an email asking Margaret to keep her posted on Jack’s condition and observing that she had “been worried about his speech for a while now”, an email on which Sara was not challenged.

On 15 July 2015, it appears that Jack left a voicemail message for Ms Wells chasing up his draft will, because she sent him an email apologising for the delay in getting back to him and saying “I will proceed with the drafting of your Wills and get back to you as soon as possible”. Although Ms Wells gave no evidence about what Jack said to her in his voicemail, I can only infer that he made no mention of his illness or admission to hospital because Ms Wells herself does not mention it, either in her email or in her statement. Notwithstanding Jack’s failure to engage with the Third Draft Wills, to mention any advice about a US Will (which had originally been his explanation for the delay in getting back to Ms Wells) and his reversion to a “simple will” structure, Ms Wells apparently did not see any need to arrange a meeting with him before preparing the next drafts.

Also on 15 July 2015, Margaret wrote an email to Helen Smith to which I have already referred. She expressed the view that since Jack had been home from hospital “he is much better and back to his normal self”. Whilst Jack may have improved somewhat since his discharge from hospital, on balance I do not consider he was back to “his normal self”, which appears unlikely given his medical condition, his six weeks of confusion, and the agreement between the experts that dementia is a disease that gets worse. It is also inconsistent with the evidence of his behaviour on a trip to London on 18 July 2015 and the evidence of Mr Marks and Dr Zach to which I shall return in a moment. In any event, Margaret’s assessment is somewhat relative – it is difficult to know what she might have meant by “his normal self”.

I also consider the contemporaneous evidence (in particular an email from Margaret to Andy on 12 July 2015 and an email from Sara to Jonathan of the same date reporting a conversation she had had with Margaret) to suggest that Margaret was not keen to tell members of her own, or Jack’s family, about his condition because she “did not want to worry” them – during her discussion with Sara she said that Jack’s GP had been concerned about his speech but did not mention his confusion. Furthermore I consider it likely that her view that there was “nothing wrong” was based on her personal feeling that Jack was merely suffering from “old age”. Sara records in her email to Jonathan that “clearly Margaret thinks there’s nothing wrong and…Mark came round to see [Jack] this morning and thinks its old age”. Sara observes that in her view “there’s definitely an issue that needs looking into”. In an email to Helen Smith on 22 September 2015, Margaret expressly says that what she describes as Jack having “slowed down considerably” could be “down to old age”. There is some (unchallenged) evidence from Sara that Margaret was in the habit of dismissing Jack’s falls and concerns about his health and on balance I find that she was generally keen to “play down” the events surrounding 6 July 2015.

On 18 July 2015, Jack and Margaret met up with Sara, Julie and their son Henry, Jonathan and his sons and Keith and his daughters. During the course of a visit to HMS Belfast, Keith noticed that Jack spent most of the time sitting with Margaret on a bench and, although he was frail, expressed surprise that he had not wanted to explore the ship. The group went to a pub for lunch and Keith remembers that Jack’s communication was very vague, that he appeared “a little distant” and that Margaret would tend to answer for him. This is consistent with Sara’s evidence of this occasion. She also describes him as “very gaunt and frail”, looking “terrible” and as “unusually quiet” and apparently “disorientated”, needing help in the pub in choosing a drink and something to eat. Jonathan remembers his speech as very poor, limiting him to the occasional sentence and describes Jack as failing to say hello to his grandson, Gareth, which he says would have been normal. I accept this evidence which appears entirely consistent with the medical episode that Jack had just experienced.

Following a review of Jack at an outpatient appointment, Professor Christopher Hawkes, a consultant neurologist, wrote a letter dated 28 July 2015 commenting on Jack’s CT and MRI scan results and recording the results of his own examination of Jack, including observing, amongst other things, that Jack had a “scanning dysarthria” (i.e. as Dr Series explained, that his flow of speech was interrupted and jerky) that his speech was “not actually slurred, more jerky” and that “[t]here was a clear impairment of cognitive function”, although he said that this had not been tested. Dr Series explained that he read this observation as indicating that Professor Hawkes had observed impairment of cognitive function in the way that Jack had dealt with his questions and answers. Professor Hawkes diagnosed “[d]iffuse cerebrovascular disease with maximum impact on the cerebellum and frontal lobes”, opining that this was “probably secondary in part to hypertension”. The cerebellum is a lobe at the back of the brain that controls fine motor movements. Professor Hawkes identified a prominent pout reflex which Dr Warner described as indicative of frontal lobe damage. Professor Hawkes referred Jack to Dr Charlotte Fuller, a consultant neuropsychologist, for a neuropsychological assessment.

On 30 July 2015, Ms Bultitude wrote to Jack with a view to chasing up a decision on the question of whether he wished to transfer additional funds into his DGLT, something that had been raised with him at the meeting on 29 April 2015. Jack never replied to this email and Ms Bultitude eventually telephoned him on 28 August 2015 apparently obtaining then his confirmation that he wished to invest approximately £600,000 of liquid funds (a combination of maturing investments, the proceeds of sale of the Tally Ho! pub and the sale of his helicopter) into his investment portfolio with Barclays rather than transferring them into his DGLT. There is no note of this call and no evidence that Ms Bultitude was aware of Jack’s illness at this stage. Ms Bultitude had no recollection of it. Ms Bultitude sent an email on 16 September 2015 to her line manager entitled “Elderly and Vulnerable Approval” referring to Jack’s decision to invest in his discretionary portfolio, rather than to transfer money into his DGLT, but I do not regard this as evidence that Barclays took any appropriate steps to determine whether Jack understood the advice he was being given about these funds and nor do I accept that Ms Bultitude could have been satisfied from her conversation with Jack that he fully understood the ramifications of his decision. On balance I doubt that he did understand the advice he was being given about this considerable sum of money. The inherent probability seems to me to be that if Jack had understood the alternatives, he would have chosen to transfer the sum into his DGLT, thereby ensuring maximum efficiency from an inheritance tax perspective. I note that Jack never drew the existence of these substantial additional funds to Ms Wells’ attention.

On 1 August 2015, Jack and Margaret had lunch at their home with Mr Marks and Dr Zach who were visiting the UK from Philadelphia. Although two emails from Jack to Mr Marks of 30 July 2015 liaising with Mr Marks over the arrangements for the lunch and providing detailed (Dr Warner described them as “meticulous”) travel instructions appear to show good cognitive function on Jack’s part (including flexible thinking and problem solving, as Dr Warner accepted), their evidence (which I have already said I accept in full) leads to a very different conclusion. They both referred to their shock at Jack’s altered appearance. Dr Zach said he was almost “unrecognisable”, saying he “looked terrible” and describing his uncharacteristically “sloppy” clothes. They remember that his speech was slurred and that he had little sense of balance. Mr Marks says that at some point “it was not completely clear that he knew who we were”, while Dr Zach remembered that Jack “did not seem to know who [Mr Marks] was” saying that “he kept sort of looking aside and I had the impression it was like ‘who are these people, what are they doing in my house?’”. Dr Zach’s evidence was that she and Margaret had been forced to keep up conversation. They both gave evidence to the effect that Jack was clearly not the Jack Leonard they had known in the past. Dr Zach said that while driving back to Arundel, she distinctly remembered that she and her husband had discussed their feelings that Jack “looked and acted like someone who had had a stroke”. In his witness statement, Mr Marks expressed the opinion that on the day of their lunch, Jack would not have been in any condition to make important legal decisions. An email to Jack of 2 November 2015 from Mr Marks clearly shows the anxiety that this visit caused, whilst a second email of 2 July 2016 confirms Mr Marks’ views at the time of his visit that “there had been some trauma, perhaps a stroke”.

Dr Fuller saw Jack at an appointment on 5 August 2015. She carried out various tests designed to indicate the level of Jack’s intellectual, attention and speed processing, executive and language function, together with other tests of memory and visual perception. In summary, Jack performed reasonably well in some tests and less well in others.

Dr Fuller recorded her conclusions in her subsequent report as follows:

“Dr Leonard currently performs within the average to superior range on measures of general intellectual ability. Compared to his estimated optimal level, these findings suggest a mild degree of inefficiency in his verbal skills, due to relatively weak verbal abstract reasoning. His auditory immediate attention/working memory is patchy and overall a little weaker than expected. He presents with very mild word retrieval

difficulties on naming. There is a verbal-visual memory discrepancy, with relatively weak visual memory apparently reflecting organisational difficulties but no indication of rapid forgetting. Overall he performed unevenly and weaker than expected on measures of executive function and there is evidence of marked cognitive and motor slowing.

The predominant pattern in Dr Leonard's neuropsychological profile is one of subcortical/frontal cerebral dysfunction, which would be in keeping with the indication of a vascular process. His cognitive impairment can be best described within the mild to moderate range at this juncture”.

Dr Fuller observed that Jack was aware that this assessment would provide a baseline for future comparison, if required. I have already said that, together with the results of the scans conducted on Jack in July 2015, it also serves as a useful evidential anchor prior to the signing of the 2015 Will.

Dr Series observed in his evidence that it was fair to concede from the outcome of the tests conducted by Dr Fuller that Jack’s executive function (i.e. his ability to bring knowledge of the world and memory of events to bear in planning outcomes and in decision making) was impaired – this condition was referred to by Dr Warner as “dysexecutive function”. This was something upon which the experts agreed in the second joint statement. In his report, Dr Series opined that an impairment of executive function could be relevant to testamentary capacity because it affects decision-making, albeit during his oral evidence he cautioned that it was not in itself an indicator of testamentary capacity. Dr Warner opined that Dr Fuller’s tests evidenced an impaired working memory compared with his premorbid expectation, weak verbal abstract reasoning, organisational difficulties and “impaired executive function with marked cognitive slowing”. I did not understand Dr Series to disagree.

On 8 August 2015, Jack and Margaret attended the wedding of Carolyn, who is Mark and Diana’s youngest daughter. Mark, Diana and Liz’s evidence is that at this event, Jack was effectively “back to his usual self” and “in fine form” chatting to people, but, given the evidence from Mr Marks and Dr Zach of only eight days earlier, and the evidence of Mr and Mrs Roberts of a meeting on 24 August 2015, a couple of weeks later, I consider that to be highly unlikely. It would appear that Jack may have been feeling physically stronger on this day, and that, in so far as he may have been experiencing good days and bad days, this was a relatively “good day”, but I attach no weight to the suggestion that he was his “usual self”.

On 11 August 2015, Jack sent an email to Haywards Aviation Ltd, insurers, informing them that he had sold his helicopter on 10^th July and providing details of the purchaser and sale price.

On 12 August 2015, Jack saw Dr Ward at his local surgery. Dr Ward reviewed his history, noted that he was now being seen by Professor Hawkes and prescribed some medication

On 13 August 2015, Margaret sent an email seeking to change a medical appointment for Jack, from which I infer that he was not sufficiently well to organise his own diary.

On 14 August 2015, for the first time, Margaret sent an email to Ms Wells saying that Jack had passed on her last message, that time was dragging on and that “we would like to reach a finality of the wills”. Margaret said that she and Jack “would like to discuss the present situation with you and complete as soon as possible”. She then stated incorrectly that “it is almost twelve months since we first approached you”. Margaret made no mention of Jack’s admission to hospital or the fact that he had been undergoing neurological tests. There is no evidence that Jack sent Ms Wells’ email of 15 July 2015 to Margaret and I infer that by this stage Margaret was probably reading Jack’s emails. There is no evidence that Jack was aware that Margaret had chased Ms Wells in these terms.

Ms Wells replied to Margaret’s email address on 17 August 2015 apologising for the delay caused by her own husband’s illness and saying that she would “progress” the wills “this week” and would be in touch shortly. Ms Wells made no mention of setting up any meeting or telephone call as requested. Margaret responded the following day, again from her own email address, expressing regret at Ms Wells’ husband’s illness but saying that she and Jack looked forward to hearing from her. Margaret signed the email “yours sincerely Margaret and Jack”, but it was not copied to Jack.

On 24 August 2015, Jack and Margaret had lunch in Edinburgh with Gordon and Tessa Roberts, whilst visiting the Fringe. Gordon remembers in his statement that he was surprised that they appeared to have “lost their bearings” in a taxi on the way to the house as Jack knew the area intimately. He also recalls that Margaret was focused on looking after Jack who was slurring his words a lot and was hard to follow, evidence which is corroborated by an email sent by his wife Tessa to their daughter Christa the following day. Given this (and the other evidence to which I have already referred), I have no difficulty in accepting Robert Behrens’ evidence that he saw Jack and Margaret twice on their visit to Edinburgh, that Jack’s decline in speech, conversation and intellectual skills were marked on each occasion and that when Jack went to pay the bill after dinner, he was “unable to manage the transaction and Margaret had to do it for him”, which fits with Jonathan’s evidence about a similar incident earlier in the year. That Gordon Roberts sent an email to Jack on 26 August 2015 describing Jack and Margaret’s visit as “just like old times”, seems likely to me to be the product of a fondness and sensitivity towards Jack rather than an accurate statement of his observations on Jack’s state of health.

On 26 August 2015, Ms Wells sent to Jack and Margaret updated wills “for their approval” (“the Fourth Draft Wills”, “Jack’s Fourth Draft Will” and “Margaret’s Fourth Draft Will”). In the covering letter, which continued to emphasise the importance of putting Jack’s estate into trust, Ms Wells summarised Jack’s Fourth Draft Will as follows:

“1.

Jack's half share of the house is left to Margaret, but if Margaret predeceases you then it goes in 7 shares as discussed.

2.

Marjorie's house is left in trust for Marjorie's benefit until she either dies or leaves the property. At that point the property passes to the seven children/step-children in equal shares.

3.

All personal belongings pass to Margaret.

4.

The remainder of the estate is then held in trust for Margaret's benefit for her lifetime. Margaret is entitled to the income arising on the estate and the Trustees have power to appoint capital to Margaret should she need it to ensure that all her living costs and if appropriate care costs are met. Margaret would therefore have full access to income and capital to the extent that it is required.

5.

On Margaret's death the trust fund after the payment of any inheritance tax due is then divided into 7 shares as discussed, but with Sara and Megan being deemed to have received £200,000 and £100,000 respectively during Jack's lifetime, and Andrew's US property being taken into account as part of his share”.

Jack’s Fourth Draft Will is in the same terms as the Third Draft Will save that:

Margaret’s Fourth Draft Will removed the discretionary trust provision and now provided for the residue of Margaret’s estate to be split seven ways.

On 1 September 2015, Margaret responded to Ms Wells by email saying: “[a]ll looks acceptable except we would like it to be made clear that the family house be left to my children after our demise”. She made no reference to the US Property and did not attempt to address the query as to Jack’s instructions in relation to that property. Ms Wells replied the same day, copying Jack in, and seeking clarification in relation to the instructions for 2 Hutton Place, which she said had changed. She did not try to follow up on her query as to the US Property.

On 3 September 2015, Margaret responded to Ms Wells’ query (again not copying Jack in) saying “Yes I would wish for the family house, 2 Hutton Place, to be left to my children. Jack has agreed to this, also upon his demise this house will be left to my children”. Margaret said that Jack would send a confirmatory email. Later that same day, Jack sent an email from his iPad saying: “I must support my wife in that my instructions specified that the house we live in will pass to Margaret’s family because she doesn’t want my family involved in any way with that house”. I accept the Claimants’ submission that it seems likely given the evidence and the inherent probabilities that Margaret assisted Jack with this email, although there is no doubt that Jack’s intentions were consistent with the terms of his document of 2 July 2015. Despite the evidence of this email (to the effect that Jack was potentially being passive in his intentions for 2 Hutton Place) and despite the fact that Ms Wells had been corresponding primarily with Margaret, she did not seek a meeting or a phone call with Jack to confirm his instructions. Her evidence was that she took Jack’s email at face value in the context of conversations she had been having with Jack and Margaret over a long period of time. In my judgment, this was very far from being a prudent approach. I note however, that Ms Wells’ husband was, at this stage, in the final weeks of his life.

On 7 September 2015, Ms Wells sent finalised Wills to Jack and Margaret for their signature, correcting the position in relation to 2 Hutton Place in accordance with their instructions (“the Fifth Draft Wills”). She also enclosed Letters of Wishes for them to sign. Ms Wells advised in her covering letter that:

“You will need to take further action in the US with regard to Andrew’s property. The advice there seems to be that you should transfer the US property to a revocable trust which will specify what will happen to the property on your death. This apparently avoids the need to file for probate in the US and is a faster and less expensive process. I will email Patricia Fettmann to confirm that you wish to proceed with this if you would like me to do so. Jack please confirm your instructions on this” (emphasis in original).

At the beginning of September 2015 Jack and Margaret were away on holiday in Italy, returning on 12 September. On 13 September 2015, Francesca recalls meeting Margaret and Jack at the Langham Hotel for tea to celebrate her 21^st birthday. She remembers little about this occasion, but in her statement she said that she recalled Jack being involved in the conversation albeit that she needed to repeat herself “when there was background noise” and his replies were “fairly short”. Under cross examination she maintained that Jack’s only difficulty was with background noise (i.e. a hearing issue), but that is not consistent with the wealth of evidence to the effect that, by now, Jack was suffering difficulties that went beyond mere trouble with his hearing and, in so far as Francesca is genuinely able to recollect anything about Jack’s state of health at this tea, I consider her to have been mistaken.

On 15 September 2015 a letter was sent to Dr Rangasamy apologising for Jack having missed an outpatient appointment on 7 September 2015 and asking for all further appointments to be cancelled in light of the fact that Jack was now being seen by Professor Hawkes. The circumstances in which this letter (signed “Dr J.L. Leonard”) came to be written are unclear. There is a copy of it on Jack’s laptop but also a copy on the iMac. On 24 September 2015, Jack paid an online bill and also signed Deloitte’s engagement letter in respect of their tax compliance services. The letter identified both Ms Patricia Mock and Mr King Mills as personnel assigned to provide these services. I do not consider that these events are in any way probative of his cognitive faculties at the time.

On 2 October 2015, in an email sent from Margaret’s email address, Jack wrote to Ms Wells on the subject of “Our Wills”. He made no reference to the US Property or to Ms Wells’ request for his instructions on this topic, but instead said this:

“I am as anxious as no doubt are to have the draft Wills signed and witnessed as soon as possible. but there is one point that is obscure; is it enough to state I give to my spouse, Margaret Rose Leonard absolutely all my personal chattels as defined in Section 55 (1) (X).of the Administration Estates Act 1925.

Perhaps you could clarify if I predecease Margaret will all the wishes stated in my Will be Margaret's responsibility” (emphasis added).

To my mind this was a most curious question to be asking at this point in the will making process. The Defendants’ case is that this query (which they say shows that Jack has been carefully reading the draft wills) is properly to be understood as picking up on a sophisticated point to the effect that the chattels clause at paragraph 4 in each will was different. Furthermore, the Defendants say that it is entirely natural that Jack should be seeking to clarify the role of executor which is hedged around in the will with “legal mumbo-jumbo”. On balance, I reject these explanations which do not appear to me to be consistent with the evidence and inherent probabilities.

The words in bold to which I have referred are the exact words which appear in paragraph 4 of Jack’s Fourth Draft Will and they are words which had been repeated in every previous draft. They appear to have been pasted into this email, as the Defendants accepted in closing. To my mind, given Jack’s instructions that he wished to leave everything to Margaret and given his question as to whether those words are “enough”, I consider that this was a query from him as to whether paragraph 4 of his will achieved what he had in mind. This interpretation of his query finds support in his request that Ms Wells clarify whether all the wishes in his will are to be Margaret’s responsibility, something he had long wished to be the case. Ms Wells’ response of the 6 October 2015 (sent only to Margaret’s email albeit addressed to “Jack and Margaret”) addressed only the issue of Margaret’s role as executor: “Margaret and Barclays are appointed as the Executors of the Will so it is their joint responsibility to ensure that all the provisions of the will are carried out. No one else has any control over anything in the estate”. There is no evidence as to whether Jack ever saw this email, but even if he did (and I infer that Margaret would have shown it to him), it failed to address the more fundamental premise of his query.

I agree with the Claimants that a request at this stage as to the role of Margaret as executor goes to the very heart of Jack’s understanding of the will. As far back as February 2014, Ms Wells had stated that she was satisfied that Jack and Margaret understood the role of an executor. To my mind this is clear evidence that Jack either had not in fact understood her explanations or (perhaps more likely) had not retained any understanding he may originally have had. Certainly it suggests that while Jack likely read the draft will, or parts of it, he was unable now to understand how his testamentary wishes were to be effected. Furthermore, I consider that this request evidences Jack’s continuing desire for a simple will together with an inability to understand the trust structure – his intention (which had not been implemented in the final draft) remained to leave everything to Margaret on the basis that she would thereafter distribute his assets in accordance with his wishes.

Margaret emailed Ms Wells from her address on 7 October 2015 to thank her for her reply to Jack’s query (she did not suggest that Ms Wells had failed to answer the question posed). She noted that she and Jack would now “get the wills signed over the weekend and send them to you”. The email is signed “Jack and Margaret”, albeit it is plainly written by Margaret from her own email address. A subsequent email from Margaret’s email address to Ms Wells on 12 October 2015 correcting an error in the letter of wishes and indicating that she and Jack hope that their neighbours would “find the time today or tomorrow to sign the wills” took the same form.

On 13 October 2015, Sara met with Jack for a hot chocolate, recording in her statement that the walk to the local Costa was very slow, that Jack was unsteady on his feet, that his speech was slow “so conversation wasn’t easy”. In cross examination Sara explained that the conversation was difficult, “superficial” and not what it had been in the past. Jack was having problems with his eyesight and dizziness was making him fall. He had fallen the previous week whilst taking the bins out. It appears that there was a conversation about what might be causing the dizziness.

Later that day, Sara sent Jack an email with the subject “Hi Dad – PLEASE READ THIS BEFORE YOU DELETE IT”, reflecting a suspicion that Jack would not even read the email, Sara’s evidence being that “he kept deleting emails”. In the email, Sara records that she had mentioned the possibility of Jack having a condition known as benign paroxysmal positional vertigo, which she thought might be causing his falls, saying “[t]his could be worth looking into”. She sent a link to the website of a golfer with the condition and also set out in bold her understanding of the condition. It was suggested to her that she expected Jack to be able to understand, absorb and consider her email, which she denied, saying that she thought he could potentially print it off and take it to a doctor. Whilst I accept that the evidence as a whole supports Sara’s description of Jack’s condition when she met him on 13 October 2015, I do not accept her explanation of this email. Had she thought that Jack would be entirely unable to understand what she had said, I have no doubt that she would have expressly told her father to print off the email and take it to his GP. On balance I consider that although Sara was concerned at the possibility that Jack would delete her email without reading it (perhaps because he did not want to have to engage with anything complex) nevertheless she thought that he could still read what she had said, an understanding which is consistent with the fact that Jack was still apparently responding to emails at this time and engaging in administrative tasks.

On 16 October 2015 Jack sent an email to Andrew entitled “MONEY” indicating that he was aware that Andrew had received a quote for “the tidy up that needs doing” (which I infer is a reference to the US Property) and asking “How much?”. Jack also confirms that “Medical Money sent”.

On 19 October 2015, Margaret sent to Ms Wells an email from her address saying that she and Jack had arranged for their wills to be witnessed that day but that she had mistakenly signed Jack’s will. Margaret asked for another copy of the last page. Once again, the email was signed “Margaret and Jack”. Ms Wells posted further copies of both wills for signature on 21 October 2015.

Margaret in fact signed her own will on 19 October 2015, as I have already said. It was witnessed by Ms Julia Ebdon, a neighbour, and Christopher. Curiously given that Margaret apparently made the mistake of signing the wrong document, Christopher was unable to remember witnessing the signing of her will and was also unable to explain why he and Melissa would have visited Jack and Margaret twice in the space of 10 days so as to witness both Margaret’s, and later Jack’s, wills. It may be, as the Claimants suggest, that Christopher only visited Jack and Margaret on the day that Jack signed his will (i.e. 28 October 2015) and signed Margaret’s will at the same time. However, I need not make any finding about this.

On 21 October 2015, Jack sent to Margaret a letter on Findon Air Services paper for the attention of Mr Smart. The letter appears coherent, apologising for the late reply and referring to the sale of the helicopter. The intention of the letter appears to be to send to Mr Smart “all relevant invoices”. However, there is no evidence that the letter was ever sent and there is no evidence of the relevant invoices having been provided.

In his statement, Mark gave evidence that in late October 2015, on a date he could not recall, he and Diana visited Jack and Margaret at 2 Hutton Place and Jack suddenly announced that he had included Mark in his new will, information which Mark said was wholly unexpected. Under cross-examination Mark was apparently able, for the first time, to put a specific date on this visit of 25 October 2015, i.e. only three days before the signing of the 2015 Will. When challenged about his evidence, Mark insisted that “Diana was there”, albeit that Diana’s statement says nothing about this incident and she gave no oral evidence about it. On balance, while I consider that Jack may well have made an observation of this sort to Mark at some point, I think it extremely unlikely, given the totality of his evidence, that Mark has a clear recollection of the date on which it was made.

On 26 October 2015, Jack sent to Patricia Mock of Deloitte an email entitled “working for me” which said:

“Please can you give the name, address and phone number of whoever will be working with me on Taxes. Jack Leonard”

Jack executed his 2015 Will in the presence of Mr Sisley and Mr Ward on 28 October 2015. Neither Ms Wells nor any other professional adviser was present to assist him and there is no evidence that he read the will at the time of execution, or that anyone else went through it with him. Christopher recalls that the will signing took place in the dining room at 2 Hutton Place and that Jack signed the will whilst he and Mr Sisley were in the room. However, besides a strong memory that he sat next to Jack when he placed his signature as witness on the will, he remembers little else. He believes Melissa to have been present in the house (which she corroborates) but he cannot remember if Margaret was in the room, he cannot remember how long he stayed or what time of day it was. Melissa was equally unable to recall any details, including whether she was in the room when the will was signed. She also could not remember seeing Mr Sisley at the house. There is no evidence as to whether Jack might have been experiencing a “good day” or a “bad day” and, even if the former, there is no evidence that he would have been able to understand matters which had consistently confused him previously. On balance, in my judgment, he would not.

By her own admission Melissa did not see much of Jack in 2015 and does not even mention in her statement that she was aware of his admission to hospital. She says that she recalls talking to Margaret and Jack about Jack “not being in good health” but she cannot recall “why or what happened”. It appears from her statement that she was under the impression at the time that he had had “a couple of small falls”. It may be that the true facts were kept from her by Margaret in order not to worry her and it may equally be that, in the circumstances, it is unsurprising that she had “no concerns about Jack’s mental capacity”. However, I cannot place any weight on this evidence in forming a view as to Jack’s true mental state at the time of signing his will. Christopher was candid in confirming in cross examination that he did not know anything about Jack’s health.

Strangely, Jack never signed the Letter of Wishes that Ms Wells had prepared for him and I can only infer that he did not appreciate the need to do so. It appears never to have been chased up by Ms Wells.

There are a number of events on which the Defendants rely after the signing of Jack’s will and so I shall go on to deal with them now (together with other contemporaneous evidence from around the same time) in the overall chronology for the sake of completeness.

On 30 October 2015, Jack sent his VAT Account to HMRC, observing that if they wished to contact him he would be away until 12 November. On the same day he spoke to a representative of Oxford Instruments plc, apparently asking for a dividend summary in respect of his shareholding (information he needed in order to send his “tax booklet” to Deloitte). A one-page document showing “Shareholding Dividends” (represented in tabular form with eight lines of data identifying in columns the date of payments made, the dividend rate, the tax and the amount paid) was then sent through to him by email. However, it appears that he had difficulty identifying the information that he required because his email response was “I may be dim but how do I access what I need?”. He received a detailed email back explaining that he could find the information about his dividend “in the right hand column” on the attachment, but he continued to have difficulty. His response was “There are many pages. How do I get to the right page?”. To my mind this is clear evidence that Jack was not only unable to understand a simple table which clearly set out the amounts he had received by way of dividend, but he was also having difficulty describing what he was looking at, referring to “pages” rather than “lines” in the payment summary.

Also on 30 October 2015, Jack provided to Ms Mock the tax booklet to which I have already referred. This included a document headed “JL Leonard.Tax Information for the year to 15 April 2015”. On its face, this document appears, as the Defendants submitted and Dr Warner accepted, to show a good level of cognitive function. It includes details as to Jack’s income (his pension, his dividends in relation to Oxford Instruments) and expenses (in relation to the Findon Property and various covenants). However, as was not made clear to Dr Warner when he was cross-examined about this document, it contains a number of inaccuracies in the figures themselves, the most significant perhaps being that instead of deducting tax from his gross pension figure, Jack added it (as is clear from a letter subsequently sent to him by Deloitte on 29 January 2016). I agree with the Claimants that for a man who has filled out this type of tax information schedule every year, this is a surprising mistake and I accept Dr Series’ evidence (which appears to me to accord with the inherent probabilities) that such a mistake “supports what we perhaps already knew from the neuropsychological tests, that there was an impairment of cognitive function”. Although Dr Series appeared to soften this view in re-examination, I do not consider this document to have the significance attached to it by the Defendants. I find that it shows a level of cognition in terms of Jack producing an organised picture of his financial position, but that his mistake in relation to the calculation of tax illustrates a lack of understanding and confusion about, something that to Jack, would ordinarily have been a familiar concept – the treatment of tax.

On 31 October 2015, Sara drove to Essex and walked with Margaret and Jack to the nearby pub for lunch. Sara’s evidence, which appears to me to fit with other contemporaneous evidence, is that Jack said he was feeling better but that he was “still very shuffly”, he had difficulty speaking and was very tired, falling asleep after lunch. Jack made no mention of having signed a new will only three days earlier.

On 2 November 2015, Jack’s 84^th birthday, he and Margaret flew to Langkawi for a holiday. Sara emailed Jonathan reminding him that it was their father’s birthday and saying: “I’ve seen him a couple of times in the last couple of weeks. He seems better than he was, although very unsteady on his feet and quite frail. His speech is very slow, but he knows what he is talking about, for the most part. He’s happy enough and looking forward to the holiday”. In cross examination, Sara explained (and I accept) that her reference to Jack understanding “for the most part” meant that “I thought that he kind of understood what he was talking about, given the conversation topics, but they would have been very superficial I think”.

On 14 November 2015, Jack and Margaret flew back from Langkawi and Jack had a fall at Heathrow airport. He was admitted to Hillingdon Hospital with a fractured right femur. On admission, the orthopaedic consultant recorded that he had been having slow speech for 3-4 months together with “dizzy spells”. Jack scored 10/10 on an Abbreviated Mental Test (“AMTS”), which Dr Series described as a “ten-item test very widely used in general hospitals…it is quite a crude test and it is unlikely to pick up things like the executive function problems”. In their joint statement, the experts agreed that performance on simple tests of cognition “does not always reveal executive dysfunction”.

Jack had an operation on his hip on 15 November 2015. On 16 November 2015 Jack was screened for dementia and underwent a further AMTS on which he scored 10/10 together with a Confusion Assessment Method (“CAM”) on which he scored 0/10 (the best mark). The experts agreed that a CAM test is designed to screen for delirium, i.e. an impairment of cognitive function that arises over a short period of time. Thus it is testing for something different from dementia and, accordingly, Dr Series expressed the view, which I accept, that “the fact that [Jack] did well on it does not tell us that he did not have dementia”. A Nuffield Health risk assessment document records that “[Jack] appears to have short-term memory loss, so forgets instructions. To refer to ward manager to have constant supervision especially at night”.

Jack was discharged to Essex Nuffield Hospital on 20 November 2015 and went home on 23 November 2015. His discharge summary refers to “NEW neurology symptoms 3-4 month”. It also refers to “slow speech” which it records had been investigated “but no pathology found at Basildon hospital”, which I infer is shorthand for recording that Basildon University Hospital found no evidence of a stroke on Jack’s admission in July 2015.

Sara and Megan visited their father in hospital and, in circumstances where Margaret appears to have been having difficulty coping, Sara began to communicate with Liz over a care plan. On 7 December 2015, Jack’s medical records show that Dr Ward spoke to Sara over her concerns about his health, noting that Dr Ward had not seen Jack at the surgery since August and suggesting that he book in for a double appointment to allow time for “multiple issues”.

That appointment appears to have taken place on 18 December 2015 according to Jack’s medical records. Dr Ward’s note reads “no significant change in symptoms” and identifies the need for Jack to be followed up by Professor Hawkes. Given that Jack had not been seen by Dr Ward since August, I infer from this that the symptoms being reported in July and August remained very much the same.

On 5 January 2016 Professor Hawkes wrote to Dr Ward recording that: “[t]he psychometric tests show a moderate degree of executive dysfunction along with cognitive and motor slowing, in keeping with subcortical and frontal cerebral dysfunction”. He observed that “[t]his would fit in well with the MRI scan findings”. Professor Hawkes wrote again on 19 January 2016, dealing primarily with blood test results and advising that Jack’s blood pressure needed treating.

On 3 February 2016, Dr Ward recorded in Jack’s notes that he was “awaiting review with Dr Hawkes re speech and confused state, which is unaltered”, from which I infer (given his entry in December 2015) that he considered Jack to be presenting with the same symptoms that he had been suffering from since the summer of 2015. Dr Ward also recorded that Jack “managed to understand and make himself understood well”, although I infer from this only that Jack was able to maintain some level of social norms, as opposed to any comment on his detailed cognitive abilities.

On 16 February 2016 Professor Hawkes, who by now appears to have been seeing Jack regularly, recorded that “overall his balance is slightly worse” and that he remained “concerned about the possibility of cerebral vasculitis”. On 23 February 2016, Professor Hawkes dismissed the possibility of cranial arteritis (which he again ruled out in a letter of 22 March 2016), expressing his “final diagnosis” of “diffuse cerebrovascular disease with maximum impact of the frontal lobes and cerebellum”. In a letter dated 15 March 2016, Professor Hawkes described Jack as “very much the same”, now describing his “final diagnosis” as “vascular dementia”. Professor Hawkes raised a question as to whether Jack should be given medication “in an attempt to improve his memory”.

On 4 March 2016, Andrew emailed Jack noting that he had not received “Med Money” for “3 months going on 4” and that he had understood Jack would also be sending money “to refurbish basement”. The evidence suggests that Jack’s last payment to Andrew had been made on 29 December 2015. Andrew said “I hope you are OK, but don’t know why we do not hear from you”. Jack appears to have made one further payment to Andrew on 14 March 2016, but thereafter the payments appear to have ceased.

On 7 April 2016, Jack’s GP record states that he has been diagnosed with “advanced vascular dementia” and prescribed Rivastigmine, a cholinesterase inhibitor used in the treatment of dementia.

On 26 April 2016, in an email to Ms Wells sent from Margaret’s address and entitled “My Will”, apparently somewhat out of the blue, Jack wrote this:

“I am sorry to bother you again, I have been thinking about your suggestion and am in favour of same.

I have just received a Bill for Council Tax regarding Andrew's house in America. I think it would be better if on my death a Trust Fund is set up to take care of the house and pay any bills. On his death the house would be sold, the proceeds to be divided among named beneficiaries.

Aside from the extra work involved what do you think?

I will pay expenses incurred”.

The following day, Jack sent a yet further email to Ms Wells with the subject line “Another Will” from his own email address making materially the same points, albeit using slightly different language. It is difficult to know why Jack felt it necessary to send these two emails. If they were both intended for Ms Wells, he may finally have been responding to her request for instructions on the US Property in her email of 7 September 2015, albeit that any “suggestion” in fact came from Ms Fettmann, which he does not appear to understand or recall. Furthermore, if the emails were correctly addressed to Ms Wells then his reference to “Another Will” in the second email betrays a lack of understanding as to the scope of Ms Wells’ role and as to what she had been seeking from him. If, on the other hand, as seems more likely, one or both of these emails were intended for Ms Fettmann, then they demonstrate a failure to recall or understand which professional advisor was dealing with which aspect of his estate.

I need not determine which of these possibilities is correct. Although the emails appear to evidence a degree of executive function, in my judgment, in either case, Jack was exhibiting clear signs of continuing significant memory loss and confusion. Importantly he appears to have forgotten entirely that he has already received extensive advice on the possibility of setting up a trust. Ms Wells’ evidence (which referred only to one of these emails) asserted that it seemed clear to her that Jack could recall signing a will and that he recollected the advice she had given previously in September. In light of the detailed findings on the evidence that I have made above, I consider this view to have been mistaken. The differing subject lines for these emails suggest confusion about whether Jack is dealing with “My Will” or “Another Will” and there is nothing in the body of either email to provide comfort that Jack could recollect the details of advice he had been given previously. On the contrary, he appears to have forgotten the important fact that Ms Fettmann needed to be involved in any further action in the US.

On 27 April 2016, Ms Wells responded to Jack’s emails observing essentially that it was not advisable to bequeath property to Andrew or to a trust via an English will and that he would need to take advice in the US. On 1 May 2016, Jack responded from his own email address, “I will make a US Will!”. Thereafter, he never contacted either Ms Wells or Ms Fettmann again.

On 18 May 2016, Jack replied to an email from Jonathan raising questions about memories from his youth, which Jonathan’s son, Gavin, needed for a history project. The questions and answers (which are in italics) were as follows:

On 26 May 2016 a note of a telephone call between HMRC, Mr Smart and Mr Mills of Deloitte (concerning a tax investigation into Jack’s affairs) records Mr Smart telling HMRC that “Dr Leonard had major health problems over the last few years – possibly a bleed on the brain – which has left him with memory and speech problems”. In an email dated 21 July 2016, Margaret informed HMRC that Jack was unable to respond to a notice requesting the provision of information: “[h]e is currently in a rehabilitation centre recovering from a serious fall and is suffering from vascular dementia”. Ms Mock wrote to HMRC on 26 July 2016 recording information from Margaret that Jack was “very unwell” and that “she would not use the term lucid to describe his health”. This understanding of the state of Jack’s health appears to have led to Deloitte’s letter to HMRC of 22 September 2016 explaining that because of health challenges “especially with his memory” Jack was not in a position to find documents or provide answers to requests made to him.

In his statement, Mr Smart says that he met with Jack and the tax inspector from HMRC at some time during the tax investigation and he appears to suggest that on this occasion, Jack was “as intelligent and financially astute as he always had been” and that there was no indication that Jack was incapable of managing his affairs. This evidence does not fit with the information that was being provided to HMRC at the time, or with other evidence as to Jack’s condition. Mr Smart did not give evidence and I am unable to attach any weight to this assertion.

At the end of May 2016 Jack again suffered a fall, breaking his hip. His medical notes from his time in hospital record (amongst other things) that he was “very confused, trying to get out of the bed most of the time” that he was “at very high risk of delirium” and that he was “confused on and off”. He was said now to be presenting with “decreased facial expression and blinking” together with a monotonous voice and ongoing slurred speech. It was proposed that he should be reviewed for a possible diagnosis of Parkinsons.

On 11 August 2016, Jack attended a meeting with Barclays together with Margaret which took place at 2 Hutton Place. Ms Bultitude and Ms Glimond attended on behalf of Barclays. Mark and Liz were also in attendance, apparently at Barclays’ suggestion. No doubt this meeting went ahead because, as Ms Bultitude explained, from Barclays’ perspective “until we have a power of attorney appointed to say that somebody has lost mental capacity, to an extent we have to work within the scenario [we] are in”.

An attendance note made by Ms Glimond in advance of the meeting (on 25 July 2016) records that Ms Bultitude planned to discuss whether Jack had a Lasting Power of Attorney in place. A note of the meeting on 11 August 2016 records that Margaret had recently advised Ms Bultitude that Jack had been diagnosed with vascular dementia. The note records, somewhat tentatively, that Jack “appeared to remember [Ms Bultitude] and managed to keep up with what was happening at the meeting” albeit that there is no indication in the note that he said anything at all. Mark’s evidence, albeit he did not appear to recall much about the meeting, was that Jack had been “passive”. All input appears to have come from Margaret. Ms Bultitude’s evidence was that there were moments when Jack fell to sleep, and she explained in general terms that it is hard to deal with someone who has moments of lucidity and moments of “less lucidity”, from which I infer that this was the view she took of Jack at the meeting. Consistent with this is Liz’s evidence, which I accept, that at the end of the meeting Ms Bultitude spoke directly to Jack, indicating that Barclays would no longer be able to deal with him.

On 29 September 2016 Dr Ward wrote to Wortley Byers confirming that he had examined Jack the previous day and that Jack “is suffering from Vascular Dementia which is impairing his mental ability and therefore would satisfy the statement that he is mentally incapable of managing his affairs thus triggering the Enduring Power of Attorney”. Jack’s Enduring Power of Attorney was registered on 22 November 2016.

Given the evidence to which I have referred as to Jack’s condition in 2016, I reject the evidence of Margaret’s family to the effect that at this time, although physically frail, Jack was still “on the ball” (as Mark and Andy both suggested) and that he was “very much the same old Jack” (as Andy and Diana said or suggested). Liz appears to me to have been attempting to give accurate evidence when she said in her statement that in 2016, Jack “seemed to deteriorate”, which he did, although on balance if this evidence was intended to suggest that he had no real cognitive difficulties prior to 2016, I consider it to have been inaccurate. In light of these findings, there is no need for me to consider further the evidence given by Margaret’s family as to other events in 2016 and 2017.

Conclusions on testamentary capacity

The question for the court, as I have already identified, is whether Jack had the ability to understand the 2015 Will and its effect, always bearing in mind that this question is transaction specific. The question of Jack’s testamentary capacity falls to be determined as at 28 October 2015, when he made his will, however the events leading up to the making of that will, together with the events in the following year are of relevance to that evaluation.

The Evidence of Jack’s Professional Advisers

The Defendants rely heavily upon the evidence of Jack’s professional advisers as to his capacity on dates prior to the execution of the 2015 Will, inviting me to draw the inference from that evidence that the mental impairment from which he was suffering did not affect his testamentary capacity. As I have said, Dr Series also relied on their evidence, in particular the evidence of Ms Wells, to support his view that, on balance, Jack had testamentary capacity when he signed the 2015 Will, saying in his third report that he found the statement of Ms Wells “particularly relevant to the assessment of Jack’s capacity”.

However, I have already observed that I am unable to attach any weight to Ms Wells’ evidence that she was “totally satisfied” that Jack had testamentary capacity. Ms Wells did not think to consult her supervisor, to see Jack alone or to apply the Golden Rule, even when it was clear that Jack was “struggling” to understand the provisions of the Second Draft Will. I have already dealt with many of the deficiencies in her approach, but concentrating for present purposes on the months leading up to the signing of Jack’s 2015 Will (i) she neither suggested a meeting with Jack and Margaret when she received changed instructions in July 2015 out of the blue (which made no mention of the Third Draft Wills) nor when, having sent the Fourth Draft Wills to Jack and Margaret on 26 August 2015, Margaret expressly asked for a discussion; (ii) she did not apparently pick up on the fact that communications from Jack and Margaret now appeared largely to be emanating from Margaret; (iii) she did not see any warning signs in the email from Jack of 2 October 2015 and (iv) she made no suggestion that she should take Jack and Margaret through the Fifth Draft Wills in advance of their signature or that she should attend at the signing of those wills, notwithstanding that by this stage it had been nearly a year since she had last seen Jack. I accept the Claimants’ submission that this total lack of awareness on her part of the obvious need for caution in dealing with an elderly testator renders her views as to Jack’s capacity worthless.

Furthermore, I agree with the Claimants that Ms Wells’ failures almost certainly had a negative impact on Jack’s will-making ability and overall understanding of the complex task in which he was engaged; regrettably they have also increased the difficulties to which this dispute has given rise. As the evidence to which I have referred illustrates, Ms Wells frequently made mistakes in dealing with the draft wills, amongst other things, failing to pick up on, and address, “warning signs” that Jack was struggling with his comprehension of the more complex provisions in his will, failing to ensure consistency between her covering letters and her drafts and failing to ensure consistency between Jack and Margaret’s instructions and her drafts. Jack consistently instructed Ms Wells that he wanted a simple will, something which she consistently failed to provide.

Turning to the Barclays advisers, I accept the Claimants’ submission that the evidence from Mr Mutsuddi as to Jack’s capacity (i.e. that during his involvement with Jack, he had capacity) carries no weight in connection with the assessment of Jack’s capacity in October 2015. Mr Mutsuddi had no contact with Jack after 2014 in any event and it is striking that neither he, nor Ms Bultitude, appreciated the need to take any precautionary steps after the telephone meeting on 29 October 2014. Indeed Ms Bultitude appears to have forgotten or ignored the fact that Jack had struggled to understand his will during that telephone call when she conducted another meeting with Jack over the telephone on 5 January 2015 to discuss his investments. There is no evidence that either witness received formal training in identifying capacity issues in their clients, or how to manage such issues. Barclays’ own policies were, as I have said, self-certifying.

It is of significance that when Ms Bultitude subsequently saw Jack at the face-to-face meeting on 29 April 2015, she recognised a potential problem, albeit took no real steps to address it beyond giving Jack time to consider his instructions with Margaret after the meeting. That she had to chase up instructions from Jack on an important issue concerning the use of over £500,000 of free funds (an issue that Jack, as an experienced investor and businessman would no doubt have wanted to address quickly, had he been fully in charge of his faculties) is, to my mind a strong indication that he was no longer able to appreciate the need to take action and to carry through with an appropriate and rational decision.

The Medical Evidence

As I have said, the detailed neuropsychological assessment carried out by Dr Fuller on 5 August 2015 forms a particularly important evidential anchor, from which it is clear that (as the experts agree) Jack was suffering from dementia, probably due to a combination of vascular dementia and Alzheimer’s Disease, at the time he made the 2015 Will. It is common ground that these conditions are processes established in the brain many years before the symptoms become apparent. Version 11 (2022) of the International Classification of Diseases issued by the World Health Organisation includes the following relevant definitions:

The evidence establishes that Jack was suffering from “marked cognitive and motor slowing” with Jack’s cognitive impairment described in August 2015 as “mild to moderate”. The experts agree that Jack had a dysexecutive syndrome, in other words an impairment of executive function. The medical evidence and my factual findings are consistent with Jack having been suffering from dementia for a number of years by the time he signed the 2015 Will. He likely suffered a small stroke (sometimes called a transient ischemic attack (“TIA”) or bleed on the brain) in the summer of 2013 and one or more in the six weeks during which he suffered a sustained period of confusion in the lead up to his admission to hospital on 6 July 2015. That his TIA was not expressly picked up by the hospital on 6 July 2015 is unsurprising in light of Dr Series’ evidence that because mini-strokes are often very short lived, it quite often happens that they are not identified upon admission to hospital.

It appears to be common ground between the experts that dementia is a progressive condition so that as the disease progresses, cognitive function will tend to decline. I find that Jack had been experiencing this decline since (at least) the summer of 2013, when its effects became evident at Sara’s wedding and during his period of confusion whilst flying (as he reported to Professor Hawkes). I also find that the progressive nature of Jack’s disease (i) renders it probable that there were other occasions between the summer of 2013 and July 2015 when he suffered similar events; (ii) means that his cognitive abilities will have been deteriorating over that period and will have continued to deteriorate between July 2015 and October 2015; but (iii) does not preclude the possibility that Jack nevertheless experienced periods of improved function, as both experts acknowledged (notwithstanding, as Dr Warner said, that Jack’s brain was “peppered with evidence of more diffuse cerebrovascular disease”), including that he may have had “better days” and “worse days”. From July 2015 onward, there is clear evidence of an outward manifestation of his condition in the form of (amongst other things) confusion, with his GP noting that his condition appeared very much the same in February 2016.

Dr Warner explained that dysexecutive syndrome can affect testamentary capacity in various ways. Individuals may lose the ability to weigh the consequences of their actions, such that they may make unreasoned or impulsive decisions. They may suffer from a cognitive inflexibility which means that ideas or decisions become fixed. They may also lose empathic reasoning, affecting the ability to gauge the relative merits of claims on the estate and they may experience apathy. I did not understand Dr Series to disagree with this assessment, as he described in his report (in more general terms) the potential for poor executive function to impact decision-making. I detected that he took a slightly different view to the question of empathic reasoning – explaining instead that dysexecutive syndrome may result in the loss of ability to consider who potential beneficiaries might be and the type of relationship the testator has had with them, including its history, and pointing out that some people do not have much empathy in any event. However, I do not consider that this difference is of significance in the context of this case.

It was Dr Series’ evidence that the slowing of cognitive functions does not necessarily mean that the ability to understand and make judgments is reduced, but that it could be associated with other neuropsychological deficits which do affect understanding and judgment. Both experts were agreed that a diagnosis of dementia or dysexecutive syndrome does not necessarily mean that a patient does not have testamentary capacity. It is important to look at the whole pattern of cognitive impairment.

Against that background, the key disagreement between the experts, based (as I have said) on their differing assessment of the available contemporaneous evidence, is the impact of Jack’s dysexecutive syndrome on his testamentary capacity, dysexecutive syndrome being a matter of degree, not an all or nothing change.

In my judgment, it is clear from my findings on the evidence as a whole that by 28 October 2015, Jack was suffering from periods of confusion, probably related to mini strokes and that his ability to make rational, reasoned decisions in respect of transactions that required “complex attention” and to understand in connection with such matters “what he was about” had deteriorated. The difficulties he quite clearly experienced in understanding the purpose of his contact with Ms Fettmann, together with the confusion evident in the documents he created on or around 2 July 2015 are testament to his declining mental capabilities and support Dr Warner’s assessment of a “step-change” in Jack at this time. That Margaret appears (for the first time) to have (largely) taken over from Jack in dealing with correspondence with Ms Wells in the summer of 2015 supports an inference that he was not always capable of undertaking this correspondence for himself. Furthermore, Jack’s own email of 2 October 2015 evidences an inability to understand concepts going to the heart of the will-making process. On balance, these events, when seen in context with all of the evidence to which I have referred in the chronological section of this judgment, support a finding that Jack lacked the mental flexibility to understand and apply rational thought to the exercise of finalising his will.

The Defendants rely heavily upon Jack’s Tax Information document completed on 30 October 2015, albeit that I have already explained why I do not consider it to have the significance they seek to place on it. Indeed the fact that only two days after signing the 2015 Will Jack was unable to understand the need to deduct tax from his gross pension receipts, rather than to add it, seems to me to support the proposition that on a task requiring understanding of a concept (which would once have been very familiar to him) Jack was not exhibiting the necessary levels of executive function.

That Jack was also suffering from frequent and, over time, increasing degrees of memory lapse (memory being a component of executive function) is clear from the evidence, notwithstanding the Defendants’ submissions in closing that memory was not an issue in this case. As Dr Series observed in his oral evidence, memory lapses are relevant to the question of testamentary capacity, albeit that they are not determinative because the question is whether Jack would have been able to understand matters about which he had forgotten if he had been reminded of them. Here it is common ground that Jack had no assistance as at the time of signing the 2015 Will in understanding its content and, even had he been taken through the draft on 28 October 2015, I consider, on balance, that he would not have been able to understand the complexities of its provisions, as I address further in a moment.

However, my determination in this case has not been straightforward. As the Defendants correctly point out, notwithstanding his medical condition, Jack was able to carry out tasks requiring varying degrees of executive function in the months immediately prior to and following the signing of the 2015 Will. The experts identified a number of these in their joint statement (albeit that at that stage they did not have access to all of the documents). Particularly striking examples appear to me to be Jack’s email communications with Mr Marks on 30 July 2015, Jack’s email to Haywards Aviation Ltd on 11 August 2015, Jack’s email to Andrew on 16 October 2015 and his letter on Findon Air Services paper to Mr Smart of 21 October 2015. There is also evidence that Jack was able to make a travel booking for the trip to Langkawi, pay bills and respond to a request for information from Deloitte about his address.

Overall I find (having regard to my evaluation of the totality of the evidence) that even after his admission to hospital in July 2015, Jack was able (at least) from time to time, to engage in correspondence about his financial affairs and was also able to carry out administrative tasks and made domestic arrangements. This is perhaps consistent with Dr Fuller’s finding (by reference to cognitive tests) that Jack was able to perform within “the average to superior range on measures of general intellectual ability”. Jack was, as I have said an extremely intelligent man, and his dementia had apparently not deprived him of the ability to undertake various tasks requiring a level of executive function. This is also consistent with the fact that (as I have found) Sara plainly took the view in October 2015 that Jack was able to read an email she had sent him, albeit that he might be prone to “delete” it.

However, I cannot consider this evidence in a vacuum. It is to be viewed in the context of the other findings I have made and, in particular my findings about Jack’s communications in relation to the making of his will – which, after all, is the transaction with which I am concerned. That he was able to provide directions to Mr Marks or information to his insurers about his helicopter or to chat with his family about day to day things, does not appear to me to weigh heavily in the balance when one considers the complexity of the will making task with which he was concerned and the evidence of his communications with Ms Wells and Ms Fettmann in the last few months before signing the 2015 Will in connection with that specific task. As Dr Warner said, there is a difference in cognitive dexterity between these things, a difference which is a function of the level of complexity involved.

The 2015 Will was regarded by Ms Wells herself as complex. It contained devises of two different properties, one with default beneficiaries and one with subject to a right to occupy, each with different beneficiaries, and a life interest trust of the residue with a power to apply capital to Margaret. It also contained three hotchpot provisions (one of which presupposed the existence of a will in the US such that it would apply only in circumstances where Andrew had inherited the US Property). It included the express exclusion and non-revocation of any previous will relating to US and French assets. Furthermore, the complexity of the situation in which Jack found himself was enhanced by the number of “moral claims” from members of his own family (described by Dr Series as giving rise to a “difficult emotional task”), including his children (and in particular Andrew, who had been largely dependent upon him financially, including for the provision of a home, for many years), Margaret, his sister in law, Marjorie, and her daughter, Susan.

I accept Dr Warner’s evidence that the more complex the transaction and the greater the nuance, the harder it will be for someone suffering from dysexecutive syndrome to achieve capacity:

“Capacity is affected by complexity of the issue and degree of nuance. Especially in peoples with dysexecutive syndrome, impaired executive function may prevent individuals assimilating and weighing information. The more information and nuance in a decision, the harder it is to achieve capacity. As complexity rises even low levels of cognitive impairment may lead to incapacity.”

I turn then to apply the test in Banks, having regard to the questions that I formulated earlier in this judgment. In doing so, I observe that I have not gained any real assistance from the views of the experts as to compliance with the four limbs of Banks in circumstances where they (i) did not have access to all of the relevant evidence at the time of forming the views expressed in their reports; (ii) were dependent for their views on the findings of the court as to the evidence and (iii) accepted in any event that this question is a matter for the court. In opening and in reliance upon the experts’ agreement that Jack satisfied limb 3 of the Banks test, the Claimants contended that Jack did not satisfy limbs 1, 2 and 4. However in light of the additional evidence that came to light during the trial, the Claimants now contend that all four limbs of the Banks test are not satisfied as at the date of the 2015 Will.

First, was Jack able to understand the nature of the act of making the 2015 Will and its effect? In light of the evidence, I am satisfied that Jack understood the nature of the act of making a will, in the sense that he understood that he was making provision for his estate after his death; he had been engaged in providing instructions to Ms Wells for over two years by the time he signed his will and although his own correspondence in the months leading up to the signing of the will evidences, in my judgment, increasing confusion, there is no evidence from which to infer that Jack lost the ability to understand the plain fact that he was making a will.

However, given the findings I have made, I consider that, on balance, as at the 28 October 2015:

Although it was not necessary for Jack to be able to understand (in a lawyerly way) the detail of the provisions of the 2015 Will, or each clause in isolation from another, it was necessary for him to be able to understand what the 2015 Will was in fact doing, what its effect was – or as described in Banks itself “the business in which he was engaged”. Thus he needed to be able to understand, for example, the role of Barclays and Margaret as Executors, that he was giving 2 Hutton Place to Margaret outright, that he was setting up a life interest trust for Marjorie in the Findon Property with the remainder left over on Marjorie’s death which would be split seven ways, that he was creating a life interest trust for Margaret in the residue with a power to apply capital, that after Margaret’s death the residue would be split seven ways and that his intentions in relation to the US Property would not be achieved by the 2015 Will (which effectively presupposed the making of a US will) and that the 2015 Will revoked his 2007 Will subject to a “carve out” in relation to the US Property and the French Property. He also needed to be able to understand the potential consequences of the broad provision granting power to his trustees to apply capital to Margaret.

I consider that, on balance, by October 2015, Jack’s cognitive decline and dysexecutive syndrome caused by the combination of vascular dementia and Alzheimer’s Disease had deprived him of the ability to understand the nature and effect of a number of the provisions in the 2015 Will.

From as early as the February 2014 Meeting, Jack was alluding to difficulties in understanding the trust provisions included in his First Draft Will, as was evident from his email of 6 March 2014. By 24 October 2014 (as is evidenced by his email of that date), Jack was having similar difficulties with his Second Draft Will. On 29 October 2014, Jack was plainly “struggling” to understand various of the more complex provisions in the draft will (as was recorded in the attendance note of the call), complexities which were never removed by Ms Wells in any subsequent draft. I reject her evidence that her interactions with Jack thereafter (including at the November 2014 Meeting) provided confidence that he “does understand things”. As I have already said, Ms Wells’ evidence overall gives me no comfort that this assessment is likely to be accurate. I consider that it was Jack’s lack of understanding of the complex provisions drafted by Ms Wells that led to his original proposal to split his estate seven ways, which he proposed as an alternative to the trust structures that Ms Wells was suggesting and repeated in his instructions on 2 July 2015.

It is of significance that following the provision to Jack of the Third Draft Wills on 21 November 2014, Jack never provided any comments on the drafts. Thus there is no evidence that his difficulties in understanding the more complex provisions contained in the drafts had genuinely been overcome and no evidence that he had been able to identify that instructions he had given at the November 2014 Meeting (as recorded in Ms Wells’ attendance notes) had been omitted from the draft. Had Jack fully understood the suggestions made by Ms Wells at the November 2014 Meeting as to additions to be made to his will (suggestions with which he had apparently agreed) and, had he been able fully to understand the provisions of his Third Draft Will, he would surely have pointed out Ms Wells’ omissions.

Importantly, the evidence concerning Jack’s interactions with Ms Fettmann together with his own attempts to formulate his wishes on or around 2 July 2015 provide clear evidence of significant confusion in respect of what he was seeking to achieve. It is not even clear that Jack had any recollection of the existence of his Third Draft Will, or its detailed provisions. I agree with the Claimants that these documents alone support the proposition that by now, Jack had lost testamentary capacity.

Even assuming that Jack’s condition may have stabilised after his six weeks of confusion in the lead up to his admission to hospital on 6 July 2015, his subsequent communication with Ms Wells in his email of 2 October 2015 asking whether clause 4 of the 2015 Will was “enough” and raising a question about Margaret’s role as executor in the context of a clause that had been included in every draft of the 2015 Will from the outset (a query which was not, in the event, fully answered by Ms Wells) provides strong support for the conclusion that Jack did not have the necessary cognitive ability to understand the nature and effect of the 2015 Will.

I accept that Jack would probably have understood ‘the big picture’ in simple terms that Margaret would occupy 2 Hutton Place until her death and that his estate would then be split seven ways – this after all, is what he wanted. But there were various different ways in which this ‘big picture’ could be achieved and, importantly, the consequences of choosing one or other method of bringing the ‘big picture’ about were very different. In my judgment, Jack was unable to understand why the outcome he desired needed to be achieved by way of a trust, he was unable to understand the potential for disputes between his and Margaret’s family and he was unable to understand what the direct consequences of putting in place a trust would be, including the need for administration of the trust and how that administration would be carried out, including the respective roles of Barclays and Margaret. Further, in circumstances where it had never been explained to him, he was unable to understand the effect of the broad provision granting power to apply capital, which could potentially enable Margaret to exhaust his assets before her death.

In the circumstances, having already rejected the Defendants’ submission that Jack’s instructions of 2 July 2015 to Ms Wells (the “I now wish the wills to be written” document) clearly referred to a life interest trust, I also reject their submission that limb 1 of Banks is satisfied in this case because the complex trust provisions were, on analysis, entirely consistent with those instructions. The use of trust provisions had implications which went beyond any understanding Jack had as to the ‘big picture’ and I do not consider that he was able to understand those implications.

In any event, to my mind, Jack’s inability to understand the nature and effect of the 2015 Will as at 28 October 2015 went far beyond the trust provisions.

The 2007 Will made provision for Andrew (at his option) to purchase the US Property for the sterling equivalent of US$425,000 (and pay any inheritance tax) out of his share of Jack’s estate, which would have been available to him almost immediately. The option was to be offered to Andrew within four weeks after the grant of probate and was to be exercised within three months, failing which, it would lapse. There was no provision for any hotchpot in relation to the US Property. The 2015 Will, as drafted by Ms Wells, excluded the US Property from the revocation provision (thereby leaving the provisions of the 2007 Will intact) but provided that Andrew was to “account for” the purported gift of the US Property “which he shall have inherited” net of any tax (something that the Defendants accepted in closing had not been explained to him). However, by the time of the 2015 Will, Jack had stopped investigating a US Will and had failed to respond to Ms Wells’ request for instructions on what to do in respect of the US Property.

Importantly, the 2015 Will gave Margaret a life interest in Jack’s estate which meant that on Jack’s death, Andrew would not have access to the funds he would need to complete the purchase prior to Margaret’s death, if he were to exercise the option given to him by the 2007 Will (even assuming that his share of the inheritance was now sufficient for those purposes). Although the 2007 Will also provided that Andrew w ould not be required to complete the purchase until sufficient funds had been distributed to him out of his share of the residuary estate to cover the purchase price, the reality of the seven way split in the 2015 Will meant that his ability to do this was seriously in doubt. It is entirely unclear how he would have been in a position to pay any tax levied in the US “in respect of any element of gift which the option may contain” (Footnote: ²) where Margaret’s life interest gave him no ready access to any funds.

At best, the interaction between the provisions of the 2015 Will and the 2007 Will created considerable uncertainty in respect of Andrew’s position (and, on balance, I consider that Jack would not have been able to understand this), at worst it meant that (absent a US Will) Andrew would not inherit the US Property because of one or more of the following (i) Margaret’s life interest depleting the estate; (ii) the seven-way split potentially leaving him with insufficient funds to complete the purchase; (iii) Andrew being unable to afford the estate tax due on the US Property, particularly if the tax were to become due upon the exercise of the option rather than on completion (on which I had no submissions but note the provisions of clause 5(viii) of the 2007 Will). In the circumstances I agree with the Claimants that absent a US Will, the effect of the revocation clause in the 2015 Will was capable of having a remarkably detrimental effect on Andrew which I have no doubt that Jack was incapable of understanding, certainly without a clear and simple explanation from Ms Wells. It is common ground that he never received any such explanation.

Jack’s exchanges with Ms Wells in April 2016, quite out of the blue, support the proposition that he had not been able to understand the effect of the 2015 Will in relation to the US Property or, in particular, the requirement and urgency that he make a US Will (as his initial question appears to be concerned with the inclusion of a provision in his English Will).

As to the effect of Jack’s condition on his decision-making, to my mind, Jack’s failure to respond to Ms Wells’ request for instructions in relation to the US Property in her email of 7 September 2015, supports the proposition that by the date of signing the 2015 Will, Jack had lost the ability to make a rational decision in connection with complex subject matter. Indeed he appears to have lost this ability sometime before that date because he had apparently been unable to provide instructions to Ms Bultitude in relation to the investment of his “free” capital, despite her chasing emails in the summer of 2015. The topic of the US Property had been causing Jack significant difficulty for some time, notwithstanding that he had received a considerable amount of advice from various professional advisers. By the time he contacted Ms Fettmann in the spring of 2015, he was plainly unable to understand what assistance he really required from her, or clearly to articulate a decision about the treatment of the US Property. It is, in my judgment, inconceivable that if he had been able to understand the provisions of the 2015 Will in relation to Andrew he would not have followed up on Ms Wells’ request for instructions and sought to put in place a US Will as soon as possible.

Further, I agree with the Claimants that it is of some significance that Jack’s professional advisers identified potential issues with his capacity during the telephone call with him on 29 October 2014, almost exactly one year before he signed the 2015 Will. After that date there can be no doubt that his mental capacity will have deteriorated further, a factor which militates in favour of the findings I have already made. Over that time, Jack’s difficulties in understanding the nature and effect of the specific will-making task with which he was engaged will not have been ameliorated by the continued production of draft wills by Ms Wells which apparently did not reflect his instructions together with the failure on the part of Ms Wells to explain critical aspects of the 2015 Will. This included (i) the purpose and effect of the trust provisions (including the role of the executors); (ii) the potential consequences of the “power to apply capital” clause; (iii) the effect of the revocation clause; (iv) the meaning and effect of the hotchpot provision in relation to Andrew; and (v) the interaction between Andrew’s hotchpot provision and the revocation clause. Without full and careful explanation, I find that, on balance, Jack was unable to understand the true nature and effect of these provisions.

For all the reasons I have given, I find a failure in respect of limb 1 of Banks. Specifically, I am not satisfied that, on balance, Jack understood the nature and effect of the 2015 Will.

Second, was Jack able to understand the extent of the property of which he was disposing? In closing, the Claimants put their submissions on this limb no higher than that Jack’s lapses of memory in his dealings with Ms Wells “cause one to question” whether or not he understood the extent of the property of which he was disposing.

Whilst it is true that Jack was inconsistent and erratic in his provision of information to Ms Wells about his assets, making mistakes as to value and omitting to include relevant details from time to time (mistakes which add to the picture of the progression of his condition), nevertheless the touchstone under this limb is that Jack has a “general idea” of his assets. It is not that Jack was able to recall in the moment all of his assets and their values accurately. Deficiencies of memory do not equal incapacity. Jack was clearly able to understand that his estate included chattels and property in the form of 2 Hutton Place and the Findon Property, which he continued to mention in his own documents in the months leading up to the 2015 Will. I am satisfied he was also able to understand that he owned the US Property and the French Property (to which he had referred in his 2 July 2015 documents and which were mentioned in the 2015 Will itself); Andrew lived in the US Property and Jack had enjoyed many happy family holidays at the French Property. As for his financial investments, I consider that he would, at the very least, have had a “general idea” of the existence of his portfolio of investments with Barclays (with whom he was in fairly regular contact) together with the existence of the DGLT. Certainly he would have understood that he owned these assets had he been reminded of them. I am satisfied that, on balance, Jack was able to understand that 2 Hutton Place was owned jointly with Margaret.

On balance I consider that Jack was able to understand the extent of the property of which he was disposing.

Third, was Jack able to comprehend and appreciate the claims to which he ought to give effect? Although the Claimants submitted that Jack was not able to appreciate the claims to which he ought to give effect, I am satisfied that, despite his obvious confusion in the months before the signing of his 2015 Will, he was able to comprehend and appreciate claims to which he ought to give effect as at 28 October 2015. As with his property, I consider that it is likely that he would have remembered those claims had he been reminded of them. In any event, Jack did in fact give effect to the claims of his children, Margaret’s children and grandchildren and Marjorie in his 2015 Will. I note that (albeit without having had access to all of the evidence) the experts were in agreement in their second joint statement that, on balance, Jack “probably understood who may have had a claim on his estate”.

The Claimants rely, first, upon Jack’s alleged inability to comprehend the claims of Margaret’s family and, in particular, of Melanie’s children. Although there is strong evidence in the documents created around 2 July 2015 that Jack was very confused about the structure of Margaret’s family, he was in general terms aware of their claim. Even if he had forgotten Melanie’s death, he still appreciated that members of Margaret’s family had a moral claim on his estate. Melanie’s death was such a traumatic event for the family that I have little doubt that Jack would have remembered it had he been reminded of it, just as he would have remembered that she had three children had he been reminded of them – the evidence is that he saw these children regularly and that their photos were on display at 2 Hutton Place. On my findings in respect of the 2 July 2015 documents, Jack had Margaret’s assistance in sending instructions on that day to Ms Wells, but there is no reason to suppose that he did not understand those instructions in the moment when the error in his original draft was identified and corrected. This is not a case in which Jack was unable to understand the moral claims of potential beneficiaries on Margaret’s side of the family and, of course, he did in fact make provision for them in his will.

That Jack omitted to mention his youngest grandchild, Henry, in the document he created on 18 May 2015 (an important document in respect of which it is to be expected that he took considerable care), is evidence of memory lapse and confusion, certainly relevant to limb 1 of Banks, but not directly probative, in my judgment, in respect of limb 3. Jack was never intending to benefit his grandchildren directly in his 2015 Will and the Claimants do not suggest that those grandchildren were potential beneficiaries with claims to which Jack should have appreciated he needed to give effect.

Next, the Claimants rely upon Jack’s failure to understand and appreciate Andrew’s claim on his estate. However, I do not doubt that Jack remained able to comprehend that Andrew had a moral claim on him, although he appears to have begun to exhibit signs of reduced empathy towards him in the months leading up to the signing of the 2015 Will, perhaps consistent with his dysexecutive syndrome.

It is clear from the evidence that at the outset of the will-making process Jack considered himself to have a moral obligation to Andrew as his financial dependent; he had, after all, been providing him with funding for many years, paying for his medication and was the provider of the roof over Andrew’s head. As I have found, Jack had acknowledged his sense of obligation to Andrew during conversations with him and in his email of 30 September 2014. As part of the will drafting process for the 2015 Will he had even considered providing Andrew with an annuity. His instructions of 2 July 2015 to Ms Wells included express provision for Andrew. Even after the signing of the 2015 Will, Jack continued to make payments to Andrew for another couple of months, including on 29 December 2015 and 14 March 2016, thereby recognising the need to provide financially for him. To my mind, the problem here was not that Jack was unable to understand that Andrew had a moral claim, but rather that he was unable to understand the provisions of the 2015 Will that were designed to give effect to that moral claim – hence my decision in relation to limb 1 of Banks.

Finally, the Claimants also rely upon Jack’s failure to make provision for Susan in the 2015 Will, submitting that this failure clearly evidences an inability to appreciate a genuine moral claim to which Jack ought to have given effect. If the 2007 Will had made provision for Susan, this argument might have had more traction. However, where the 2007 Will made no provision for her (albeit that it was understood that Sara would “do the right thing”) it is difficult to see that a failure to make provision for her in the 2015 Will must lead to a failure on this score in respect of limb 3. In providing instructions to Ms Wells, Jack had certainly shown a lack of empathy for Susan’s position (perhaps consistent with his advancing dysexecutive syndrome) but, on balance, I am satisfied that on 28 October 2015 he was able to comprehend that Susan had a claim on him by reason of her occupation of the Findon Property. Even assuming that he had forgotten the existence of her claim as at that date and had forgotten that he had reassured her about remaining in her home, I am satisfied that he could have understood her claim, had he been reminded of it. His 2 July 2015 instructions to Ms Wells expressly referred to the Findon Property and to Marjorie’s entitlement to continue to occupy that property and the evidence suggests that Jack would readily have understood both that Susan was also occupying that property and that she therefore had a claim on his estate. There is no requirement for the purposes of this limb that he should be able to understand or remember that Susan had nowhere else to live.

On balance I consider that Jack was able to understand the claims to which he ought to give effect.

Fourth, was Jack suffering from a disorder of the mind which poisoned his affections, perverted his sense of right or prevented the exercise of his natural faculties thereby causing him to bring about a disposal of his property which, if his mind had been sound, would not have been made? In my judgment, Jack would not have executed a will which left Andrew’s future in an uncertain state had he not been suffering from a disorder of the mind (namely dementia) which prevented the exercise of his natural faculties. To use the language of Banks, the provisions relating to Andrew’s inheritance and the treatment of the US Property, evidence a perversion of Jack’s moral sense of obligation which can only have been caused by his mental disease. The provision for Andrew in the 2015 Will was not rational for the reasons I have given, particularly bearing in mind that by the date of signing the 2015 Will, Jack had apparently given up pursuing the making of a US Will. This is enough, in itself to give rise to a failure in respect of limb 4 of Banks.

Perhaps unsurprisingly, I gained no real assistance on limb 4 from the experts, whose inevitable focus was on cognition. Dr Series was right to say in his first report that there is nothing to suggest that Jack’s mind was poisoned by delusions, but that is not an accurate description of the test to be applied under limb 4. Interestingly, Dr Warner expressed the view in his second report that the phrase “disorder of mind” as used in Banks “is taken to mean functional mental illness such as depression or psychosis”, noting that whilst dementia is also “a disorder of mind” it was his understanding that its impacts were usually considered under limbs 1-3 of Banks. Dr Warner noted however, that he considered this to be an “arbitrary and…somewhat unsatisfactory distinction”. For reasons I have already explained, I consider that Dr Warner’s understanding of the scope of limb 4 of Banks is erroneous (albeit that his instincts are right). In any event this is, of course, a matter for the court.

It was suggested to me that various other provisions in the 2015 Will, including the hotchpot provisions, the failure to provide for Susan and the decision to split his estate seven ways were irreconcilable with Jack being able to exercise his natural faculties, but on balance, I disagree. Dealing with each of these in turn:

For the reasons I have given, I consider that Jack did not have testamentary capacity as at 28 October 2015.

Parker v Felgate

I do not consider the Defendants’ reliance on the rule in Parker v Felgate to assist them. I do not need to consider the Claimants’ submission that the point has not, in any event, been properly pleaded. In my judgment, it fails for the following reasons:

Knowledge and Approval

It will already be clear from what I have said, that I do not consider, based on my evaluation of the evidence, that the Defendants have discharged the burden of establishing that Jack knew and approved of the 2015 Will. I repeat the points I make above in relation to testamentary capacity and the Parker v Felgate argument. Those points appear to me to compel a conclusion that Jack did not know and approve the 2015 Will.

However, even approaching this issue on the hypothetical (and rather artificial) basis that Jack had testamentary capacity, I consider that an holistic approach (as approved by the Court of Appeal in Gill v Woodall at [22]) to the available evidence as set out at length above establishes that, on balance, Jack did not know or approve of the 2015 Will. If it were necessary to establish the existence of facts which “excite the suspicion of the court” so as to displace the “strong presumption” in the Defendants’ favour flowing from capacity and due execution (see Reeves v Drew [2022] EWHC 159 (Ch) per Michael Green J at [404]) I consider that the following facts, when taken together, are plainly sufficient to raise a well-grounded suspicion: (i) Jack’s age; (ii) his dementia; (iii) the fact that Ms Wells was not a solicitor and did not assist him at the time of execution of the Will by reading it through; (iv) the lack of evidence as to whether Jack in fact read through his will on 28 October 2015; (v) the inconsistency between Jack’s final instructions on 2 July 2015 and the provisions of the 2015 Will, including, in particular, (vi) the inclusion of clause 9(f), which it is accepted had not been discussed with, or explained to, Jack; and (vii) the confusion likely caused by Ms Wells’ various failures to implement Jack’s instructions. The Defendants have failed to discharge the burden of establishing that, on the balance of probabilities, the 2015 Will represents Jack’s testamentary wishes.

The evidence shows that various of the provisions of the 2015 Will had not been explained to Jack and so did not reflect choices he had already made. He neither understood what was in the 2015 Will when he signed it, nor what the effect of key provisions would be. The revocation clause, the hotchpot provision at 9(f) relating to the US Property and the interaction of those two provisions is an obvious example. These provisions did not reflect Jack’s testamentary intentions in relation to Andrew and accordingly, he cannot have known or approved of the contents of the 2015 Will.

Mr Dumont suggested that Jack could be taken to know and approve of the hotchpot provision at clause 9(f) because that clause was necessary in order to give effect to his instructions that the estate be split seven ways. I disagree. Clause 9(f) was new to the Fourth Draft Will and Jack’s instructions made no mention of any such provision. It was a complex provision which required the urgent making of a US Will if Andrew was not to be left in an uncertain and detrimental position. In my judgment, clause 9(f) is very far from being a pure technicality inserted into the will so as better to reflect Jack’s testamentary intentions.

Towards the end of their closing, the Defendants appeared to acknowledge the potential difficulty caused to their case by reason of the provisions in the 2015 Will relating to Andrew, because Mr Dumont first submitted that the hotchpot provision made for Andrew was “inoperative” (submitting that because Jack has died without making a US Will, the hotchpot provision in relation to the US Property has no effect) and then, secondly, that it would be open to the court to omit, or strike through, that provision if it was nonetheless satisfied that Jack knew and approved of the remainder of the 2015 Will. This argument was not foreshadowed in the Defence and had not previously been suggested to the Claimants.

In their reply, the Claimants acknowledged that the court has jurisdiction to admit a will to probate with the omission of words that did not reflect the testator’s intentions (see for example the discussion in Mundil-Williams v Williams [2021] EWHC 586 (Ch) per HHJ Keyser QC at [67]-[79]), albeit they submitted that it should only be done sparingly (drawing my attention after the close of trial to Fuller v Strum [2002] 1 WLR 1097, per Peter Gibson LJ at [36]). In their submission it should not be done in this case.

In circumstances where I have found an absence of testamentary capacity, there is no real need for me to consider these submissions in any detail. However, whilst I accept that clause 9(f) of the 2015 Will would have been inoperative if the will had been admitted to probate (essentially because it was a condition precedent of clause 9(f) that Andrew had inherited the US Property), I reject the submission that the 2015 Will could be “saved” if that provision were to be removed and I further reject Mr Dumont’s submission that it would be “bizarre” to find a lack of knowledge and approval simply because of the inclusion of a clause that would have been inoperative in any event. My reasons are as follows.

First, given my evaluation of the evidence, I consider it to be unreal to suggest (for reasons I have already given) that the hotchpot provision relating to Andrew is the only provision that Jack did not know or approve of such that its removal would leave a will which more closely represents his testamentary intentions. In this regard, I note the observations of Peter Gibson LJ in Fuller v Strum at [36] to the effect that while it is possible for a court to find that part of a will did have the knowledge and approval of the deceased, while another part did not, “the circumstances in which it will be proper to find such a curate’s egg of a will are likely to be rare”. I agree with the Claimants that (even leaving aside the position in relation to his testamentary capacity) Jack’s inability to know and approve of clause 9(f) casts serious doubt over his ability to know and approve of the remainder of the 2015 Will.

In any event, the removal of clause 9(f) would leave intact the revocation clause, which I have found was also not explained to Jack. The effect of the revocation clause would be that the option to purchase the US Property in the 2007 Will would apply, a state of affairs which was contrary to Jack’s intentions as stated on 2 July 2015 (that Andrew should inherit outright). The effect of this provision was not known to Jack and, in my judgment, the revocation clause also does not therefore reflect Jack’s testamentary intentions. He did not know or approve of its contents.

In light of my conclusions in this judgment I shall pronounce in favour of the 2007 Will and against the force and validity of the 2015 Will.

By way of postscript, I wish to make it clear that I know how difficult this judgment will be for Margaret’s family, who saw far more of Jack in the final years of his life, took on many of the caring responsibilities and plainly had a deep love and affection for him, which he reciprocated. Relatively little of this judgment has turned on what they would (perhaps) regard to be the central difference between the 2015 and 2007 Wills, namely whether Jack sought a seven-way or five-way split of the trust of the residuary estate. Although on my application of the law I have found in the Claimants’ favour, I have also accepted that a desire for a seven-way split was not obviously irrational or out of character for Jack.

I consider it to be extremely regrettable that, knowing Jack’s affection for both sides of the family, the parties were unable to find a means of resolving this claim without a trial. Parties to cases of this sort should be under no illusions as to the emotional and financial toll they extract and the considerable ordeal for both sides of contesting the matter to a final judgment.

If the parties are able to agree upon an order then I invite them to do so.