Andrew Morris Jenkins & Anor v Sarah Caroline Ingham Evans

This is my judgment following the trial of the claim (initially brought under Part 8 and later transferred to Part 7) brought by Andrew Jenkins (“Mr Jenkins”) and Jennifer Joy Vooght (“Ms Vooght”) for the pronouncement in solemn form of the Will dated 31 March 2017 (“the 2017 Will”) made by the late Robert Glyn Evans (in this judgment, either “the Testator”, as he is on their case, or “Mr Evans”). The judgment also addresses the defendant’s counterclaim so far as it challenges the validity of the 2017 Will.

Mr Jenkins is a solicitor and partner in the firm of Wansbroughs in Devizes. He was named in the 2017 Will as an executor and trustee of the will alongside one of his partners in that firm. Ms Vooght is one of his partners. As the Testator’s wife Sylvia (known as “Sally”) died before him, in November 2003, the residuary legatees under the 2017 Will are his son and daughter: Mr Nicholas Charles Ingham Evans (“Nicholas”) and the defendant, Miss Sarah Caroline Ingham Evans (“Caroline”, as she prefers to be known).

The Testator died on 25 January 2021. Mr Jenkins and Ms Vooght seek to prove the 2017 Will in circumstances where Caroline lodged a caveat against it on 19 March 2021. Mr Jenkins entered a warning to that caveat and Caroline thereafter entered an appearance to that warning on 25 June 2021. This claim was issued on 20 October 2021.

On 25 July 2022 Caroline made her counterclaim. This sought to “revoke” the 2017 Will and to establish that her father died intestate or, alternatively, to uphold his earlier Will dated 17 February 2006 (“the 2006 Will”). Under the 2006 Will, Nicholas and Caroline were named as executors. Her counterclaim also sought relief that the court should “deny claimant/allow residual beneficiaries as trustees/executors irrespective of will granted”. The challenge to the 2017 Will was said to be on the grounds of (lack of) “testamentary capacity and want or knowledge and approval due to his acquiescing in [Nicholas’s] demands without question and [Mr Jenkins’s] collaboration and failure to mitigate this with consistent standards of rigour, resulting in his bias against me.” She also made reference to the fact that the 2017 Will made “11th hour legacies to my brother’s family without any cool-off period”. Her father had made no prior mention of those legacies to her. She also sought to establish a lifetime occupancy right of Mr Evans’s home – 18 Simon’s Hollow, Duck Street, West Lavington, Devizes (“Simon’s Hollow”) - and reimbursement of care costs £30,000 (by reference to State care allowances and her care of her father) out of Nicholas’s share of the estate.

By her counterclaim, Caroline sought to add Nicholas as a defendant to the counterclaim. At the CCMC on 5 April 2023 District Judge Markland struck out the claim against Nicholas as an abuse of process.

Paragraph 4 of the Order made by District Judge Wales on 3 March 2025, also mentioned below, provides that “… for the avoidance of doubt the trial of the claim and counterclaim is to determine the issue whether the [the 2017 Will or the 2006 Will] is the last valid will of Robert Glyn Evans Deceased. Directions for any other outstanding claim contained in the Defendant’s Part 20 claim form are to be considered at the conclusion of the trial of the probate claims.” Paragraph 2 of the order of District Judge Markland dated 25 January 2024 had provided for a Defence and Counterclaim which was limited to responding to Caroline’s 23 page document dated 25 July 2022 (entitled ‘Witness Statement of Sarah Caroline Ingham Evans Defence and Counterclaim to Particulars of CPR Part 7 Claim and CPR Part 20 Claim’) and responding only to those matters set out therein which concern the validity of the 2017 Will.

As Mr Wooding representing the claimants clarified in his skeleton argument, Caroline’s challenge to the 2017 Will is on the basis that the Testator lacked testamentary capacity; did not know and approve of its contents; and that it was procured by undue influence.

As Mr Wooding also pointed out in his opening remarks at trial, it has become necessary for me to address the nature of the interest in Simon’s Hollow in favour of a trust established by Sally’s Will. Nicholas and Caroline are the beneficiaries of the ‘Nil Rate Band Trust’ (“Sally’s Will Trust”) created by her will for Inheritance Tax reasons. Nicholas and Caroline are also its trustees, as was Mr Evans until his death. Nicholas’s position is that, alongside an unsecured debt of £30,000 (linked to the RPI) owed by Mr Evans, the interest of Sally’s Will Trust in Simon’s Hollow takes the form of an equitable charge over the property to secure the sum of £225,000 which is also index-linked. By contrast, in her written argument (‘Caveator’s Submissions for Trial’) and also in her observations and questioning of witness at trial, Caroline made clear her position that, as trustees, she and her brother already owned and controlled one half of the property. For example, she said in her written argument: “…. if [Mr Jenkins’s] claim is successful, he ONLY controls [Mr Evans’s] half of the parental combined estate.”

The court file reveals the significant number of procedural developments since the claim was issued which have meant that it has taken 4 years to come to trial. By her Order dated 5 April 2023, District Judge Markland fixed a trial window of 25 September to 31 October 2023. Caroline sought unsuccessfully to appeal the order. Richards J refused her application for permission to appeal on the papers, ruling that it was totally without merit. A further Order dated 25 January 2024 set revised case management directions and a trial window of 1 September to 31 October 2024. Delay on the part of Caroline in acting upon the direction in relation to expert evidence (in relation to the Testator’s mental capacity) meant that it was necessary for there then to be a further Order dated 1 July 2024 which contained yet further revised directions and provided instead for a trial on the first available date after 29 November 2024. By a further Order dated 3 March 2025, District Judge Wales set a trial date of the first available date after 1 May 2025. The time estimate was reduced to 2 days (plus half a day for judicial pre-reading) from the 4 days previously envisaged for a trial to include expert evidence. His order noted that the permission for Caroline to adduce expert evidence had expired. On the same day, 3 March 2025, a limited civil restraint order was made against Caroline by reference to a number of unmeritorious applications made by her.

The 2006 Will provided:

The disputed 2017 Will provides:

Nicholas supports the claim for the pronouncement of the 2017 Will. Therefore, as Mr Wooding observed, what is at stake for Caroline on the outcome of these lengthy proceedings is £11,500 and the joint appointment, in principle, of herself along with Nicholas as co-executors.

On the basis of Mr Wooding’s skeleton argument and Caroline’s note (‘Caveator’s Note on the Law in Lieu of a Skeleton’) I did not understand there to be any point of significant disagreement between the parties on the legal principles to be applied in this case.

There are four elements to the test for testamentary capacity established by the well-known decision in Banks v Goodfellow (1870) LR 5QB 549, at 565, as reaffirmed with sub-paragraphs by the Court of Appeal in Sharp v Adam [2006] EWCA Civ 449, at [68]. A testator must:

The Banks v Goodfellow test was recently, and once again, confirmed by Falk J. (as she then was) in Re.Clitheroe(Decd) [2021] EWHC 1102 (Ch), at [30], who noted the debate as to whether in truth it has the four limbs identified in Sharp v Adam rather than three, and by the Court of Appeal in Hughes v Pritchard [2022] EWCA Civ 386 at [62]-[63]

It is for the party propounding the will, and bearing the legal burden of proof, to prove capacity. Where a will is rational on its face and duly executed then capacity will be presumed. It is therefore for the objector to raise a “real doubt” as to capacity. If a real doubt is raised, then the evidential burden shifts back to the party propounding the will: see Key v Key [2010] EWHC 405 (Ch), at [97], per Briggs J. (as he then was) as endorsed by Asplin LJ in Hughes v Pritchard at [64].

In Perrins v Holland [2009] EWHC 1945 (Ch), at [40], Lewison J. as he then was, explained how the test is to be applied some 150 years later:

“First, since the test is a common law test it is capable of being influenced by contemporary attitudes. Second, our general understanding of impaired mental capacity of adults has increased enormously since 1870. Third, we now recognise that an adult with impaired mental capacity is capable of making some decisions for himself, given help. Thus fourth, we recognise that the test of mental capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99, 109. Fifth, contemporary attitudes toward adults with impaired capacity are more respectful of adult autonomy. Sixth, even the traditional test must be applied in the context of the particular testator and the particular estate. A testator with a complex estate and many potential beneficiaries may need a greater degree of cognitive capability than one with a simple estate and few claimants.”

In Hoff v Atherton [2004] EWCA Civ 1554, at [35], Peter Gibson LJ observed that the test of capacity is “issue-specific” in that the question must be considered in relation to the particular transaction and its nature and complexity

There can be no proper doubt that Mr Evans’s estate is a simple one involving few claimants upon it (cf. Perrins v Holland) and that the 2017 Will was of a “straightforward nature” (cf. Hoff v Atherton).

Mr Evans turned 90 on 3 March 2017, before he made the 2017 Will some 3 weeks later. The so-called ‘golden rule’ is a rule of solicitors' good practice in relation to the making of a will by an aged testator or one who has suffered a serious illness. It should be witnessed and approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator and records and preserves his findings: see Hughes v Pritchard at [84]. However, compliance with the golden rule does not operate as a "touchstone" of the validity of the will, nor does non-compliance demonstrate its invalidity: see Key v Key, at [8]. In Burns v Burns [2016] EWCA Civ 37, at [47], McCombe LJ endorsed the statement in Williams on Wills (10^th ed) that the golden rule is not a rule of law but instead provides guidance as to a means of avoiding disputes.

In Sharp v Adam, at [27], May LJ (giving the judgment of the court) said:

In the present case, Mr Evans made the 2017 Will in the presence of Mr Jenkins and Janet Linford (who, Mr Jenkins explained, was an experienced legal secretary with his firm). Mr Jenkins had sent Mr Evans a draft of the Will (without the inclusion of the gifts to his grandsons) on 22 March 2017, having taken instructions from him at a meeting with Mr Evans at Wansbroughs’ offices on 14 March 2017. In Hughes v Pritchard, the Court of Appeal addressed the position of evidence of the will draftsman as follows:

“79.

In my judgment, Miss Reed was right not to suggest in her oral submissions that Mummery LJ's dicta in Hawes v Burgess amounts to a true presumption. It seems to me to be no more than a statement of the obvious. Where the will is explicable and rational on its face, the conclusion reached by an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, has met with the testator, is fully aware of the requirements of the law in relation to testamentary capacity and has discussed the draft and read it over to the testator, is likely to be of considerable importance when determining whether a testator has testamentary capacity. It is a very strong thing, as Mummery LJ described it, to find that such a testator was not mentally capable of making a will. It seems to me that Mummery LJ's use of "presumption" was no more than a means of expressing the considerable importance of such evidence particularly in comparison with evidence from a medical expert who did not meet the testator and arrived at his conclusions on the basis of the papers only.

80.

I do not suggest that the evidence of such a solicitor is definitive and nor did Miss Reed. Although it is of very considerable importance and should be given due weight, obviously, the judge must evaluate all of the relevant evidence in relation to capacity. There may be clear evidence contrary to that of the solicitor. Furthermore, it should be borne in mind that the weight to be given to the conclusions reached by the lawyer drafting the will depends on the circumstances. As Christopher Pymont QC, sitting as a deputy high court judge, quite properly pointed out in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43]: "Any view a solicitor may have formed as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless". There may be good reason to place less reliance on the solicitor's evidence, depending on the circumstances.”

In the present case, Caroline has not acted upon the opportunity to adduce expert medical evidence as to the Testator’s mental capacity. Key v Key, at [98], and Hughes v Pritchard, at [64], address the position where such evidence is before the court. Expert evidence may be of great assistance but the issue as to testamentary capacity is a decision for the court. This observation is, of course, entirely consistent with what the Court of Appeal said about the considerable importance of the evidence of the will draftsman in the passages quoted in the preceding paragraph above.

In Reeves v Drew [2022] EWHC 159 (Ch), Michael Green J. summarised the relevant principles as follows:

“[336] The legal principles in relation to knowledge and approval are not seriously in dispute. The propounder of a will, in this case the Claimant, must prove that the testator knew and approved its contents at the time of execution. That burden is normally discharged relatively easily by proof of testamentary capacity and of due execution. If both are proved, there is a presumption of knowledge and approval. In this case, testamentary capacity and due execution are admitted by the Defendants. However if there are suspicious circumstances around the making of the will or as to its contents, the vigilance of the court may be aroused and affirmative proof from the Claimant may be required.

[337] That may be thought to involve a two-stage test of first establishing whether there are facts to “excite the suspicion of the court” as to whether the testator knew and approved the contents of the will and second whether those suspicions are allayed by the propounder of the will. However the Court of Appeal in Gill v Woodall [2011] Ch 380 said that the court should approach these cases holistically and adopt a one stage approach. Lord Neuberger MR (as he then was) approved the approach of Sachs J in In Re Crerar (unreported) that the court should

“consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.””

The burden of proving that a will was executed under undue influence is upon the party who alleges it: Boyse v Rossborough (1857) 6 HL Cas 2 and Wharton v Bancroft [2011] EWHC (Ch) 3250, at [30], per Norris J.

In relation to the making of a will, the principles governing a challenge to its validity based upon undue influence were set out by Morgan J. in Cowderoy v Cranfield [2011] EWHC 1616 (Ch) as follows:

“[140] The law as to undue influence in the case of a will has been helpfully summarised by Lewison J in Edwards v Edwards [2007] WTLR 1387 at [47] in these terms:

“There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:

a.

In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

b.

Whether undue influence has procured the execution of a will is therefore a question of fact;

c.

The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

d.

In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.

e.

Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;

f.

The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A "drip drip" approach may be highly effective in sapping the will;

g.

There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is "fraudulent calumny". The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;

h.

The essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;

i.

The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent. "

[141] Lewison J did not refer to the authorities which supported his summary of the legal principles. I was specifically referred to Craig v Lamoureux [1920] AC 349 and Hall v Hall (1868) LR 1 P & D 481 which plainly provide the source for some parts at least of that summary. In particular, the former of these two cases is the source of the statement that the circumstances must be "inconsistent with a contrary hypothesis", that is, an hypothesis other than the exercise of undue influence: see [1920] AC 349 at 357. In the present case, where I have considerable evidence as to the circumstances in which the disputed will was prepared and executed, I think that it is more appropriate for me simply to ask whether the party asserting undue influence has satisfied me to the requisite standard that the will was executed as a result of undue influence. The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the court that the explanation for what has occurred is that the testator's will has been overborne by coercion rather than there being some other explanation: see how the matter was put by Rimer J in Carapeto v Good [2002] EWHC 640 (Ch) at [124] – [125]. This last case also makes clear that a finding of undue influence can be made by a court drawing inferences from all the circumstances, even in the absence of direct evidence of undue influence: see at [126].”

In Rea v Rea [2024] EWCA Civ 169, at [32], Newey LJ reformulated the “inconsistent with any other hypothesis” test by commenting on a submission that it was overstated as follows:

“I agree. I would accept that undue influence can be proved without demonstrating that the circumstances are necessarily inconsistent with any alternative hypothesis. On the other hand, the circumstances must be such that undue influence is more probable than any other hypothesis. If another possibility is just as likely, undue influence will not have been established. When making that assessment, moreover, it may well be appropriate to proceed on the basis that undue influence is inherently improbable.”

In Schrader v Schrader [2013] EWHC 466 (Ch); [2013] WTLR 701, a decision relied upon by Caroline, Mann J said:, at [96]:

I have mentioned above the need to address in this judgment the nature of the interest in Simon’s Hollow enjoyed by Sally’s Will Trust. It is clear from submissions and observations made by Caroline that she regards her position as a co-trustee of that trust and what she would like to be her co-executorship/trusteeship of the Testator’s estate (if the 2017 Will can be avoided) as conferring significant personal advantage to her. Although her concern about the “open-ended” (as she put it) hourly-based fees that would be payable to Mr Jenkins, if he is to administer the estate, is a significant factor in her opposition to the 2017 Will, the benefit she perceives in an executorship shared with Nicholas is not confined to sparing the estate that expense.

In her written and oral submissions Caroline referred to her concern about the claimants’ executorship infringing a right (said to exist through Sally’s Will Trust) to own and control the asset of Simon’s Hollow. I have mentioned her claim (which this judgment does not address) to lifetime occupancy of Simon’s Hollow and her “domiciliary security”. Her documentation contains numerous references to Nicholas, as equal residuary beneficiary, enjoying an equivalent right and to her attempts to negotiate terms by which he might relinquish it. She perceives Mr Jenkins to represent only the interests of Nicholas. It is therefore clear that her resistance to the claimants’ executorship is linked to her desire to continue living in Simon’s Hollow.

Evidence at trial was given by Mr Jenkins and Nicholas in support of the 2017 Will and by Caroline against it.

Witness summonses that had been served by Caroline upon Karen Evans (Nicholas’s wife) and Dr Helen Osborn (Mr Evans’s GP) were set aside by the Court. This was in circumstances where each of them had provided written answers to questions which had been raised by Caroline in documents filed at court. Quite extensive extracts from Mr Evans’s medical records had already been disclosed by Dr Osborn’s surgery pursuant to an earlier court order and her response to the witness summons elicited more. She said in that response that the records previously provided were those deemed to be relevant and proportionate to the issue of the validity of the 2017 Will and that releasing the whole of the medical records might have an adverse effect on Caroline’s mental wellbeing.

On her application to set aside that summons, Dr Osborn expressed her clear view that the Testator had capacity to make a will in March 2017. As I said to her on hearing that application, I could not treat that observation as evidence of the kind she wished to be excused from giving. In fact, the trial bundle already contained a letter dated 20 July 2021 to Mr Jenkins which said:

“I have reviewed the electronic records of Robert Glyn Evans who was under my care for over 19 years. Based on my knowledge of Mr Evans and review of his medical records, I have no doubts regarding his capacity to make decisions relating to the terms of the Will which was drawn up at his request in March 2017.”

Caroline said in evidence that Dr Osborn had been “deliberately ambiguous” in phrasing the letter in terms of having “no doubts” as no mental capacity assessment was undertaken at the time. I pointed out to Caroline that, if called as witness, Dr Osborn would not have been readily amenable to cross-examination by Caroline. Nevertheless, I bear well in mind that the setting aside of the summons served upon Dr Osborn means that this piece of documented hearsay evidence should, in my judgment, not be relied upon over and above what the disclosed medical records reveal. That said, I do not regard the language of Dr Osborn’s letter as ambiguous. It is her saying, in July 2021, in clear terms that she had no doubts about Mr Evans’s testamentary capacity at the time he made the 2017 Will.

That point about the need to look for corroboration of that view in the contemporaneous medical records (from the perspective of applying the Banks v Goodfellow test upon which Dr Osborn’s understanding has not been tested) is illustrated by an issue at trial about what the medical record of Mr Evans’s visit to Dr Osborn on 28 December 2016 revealed. During that medical appointment she undertook the Six Item Cognitive Impairment Test used for testing for dementia (‘6CIT’, where an inverse scoring method is used, questions are weighted to produce a total out of 28 and where scores of 0-7 are considered normal and 8 of or more as significant). Mr Evans was given a score of 4. In her written response provided in support of her application to set aside the witness summons, Dr Osborn, who recognised that the testing under 6CIT did not equate to testing of capacity to make decisions, said in her written response that the test had included the memory recall phrase. Caroline disputed this and pointed out that “N/A” appeared in the medical record next to the entries relating to Mr Evans remembering a particular address just given to him. I consider that Caroline should be given the benefit of the doubt on this point.

In her written response Dr Osborn also said “I confirm there was no mention of making or changing a will at the appointment on 28.12.2016” when the medical record of that visit says “He is considering appointing independent executor in view of poor relationship between son and dter.” On this aspect, however, giving greater weight to the contemporaneous record is not obviously to Caroline’s benefit.

By way of general comment upon the evidence of Nicholas and Caroline, I made it clear at the trial that I saw no good reason to explore in cross-examination the sensitive and deeply personal issues that have arisen between them and which have led to the painful breakdown in their sibling relationship. There was every good reason not to when getting drawn into those issues, which appear to have begun to surface in around 2013, could only encourage an expectation that the court would then, in a public judgment, attempt to reach a sound and meaningful decision upon the supposed rights and wrongs of their positions on such personal matters, when the nature of them would almost inevitably provoke thoughts as to whether it was either of those things.

Caroline openly recognises that she is aspergic and (as she said in one of her many witness statements) this means she is graphically open about how she feels and considers anyone who is not similarly open, or who does not answer a straight question with a straight answer, to be dishonest. These character traits were evident at the trial. She has made some strong allegations against Nicholas which relate to her personal position rather than the Testator’s making of the 2017 Will. Nicholas, who is a solicitor, regards them as entirely baseless and as a professional man is concerned that they have been made by Caroline in her extensive documentation filed at court. Even without my anticipatory intervention he was obviously reluctant to get drawn into steps which he has taken in what he considered to be best for Caroline’s well-being.

Instead, it is enough for the purposes of this judgment for me to note that each of Nicholas and Caroline is convinced that they have acted properly towards the other and, relevantly, in recognising their father’s own best interests.

As I made clear to Caroline at the trial, the breakdown in the relationship between Nicholas and Caroline is only relevant to the extent that the Testator was aware of it by March 2017. It is common ground between them that he was so aware. Nicholas said it was the reason the 2017 Will provided for a change in the executorship of his estate. In evidence, Caroline said the saddest aspect of the matter is that, in the period 2016-2017, their father blamed himself for the breakdown in the siblings’ relationship.

Mr Jenkins is one of the partners in his firm’s Private Client Department. He is an experienced solicitor, having qualified in the late 1980’s and been with the firm since that time. He began acting for Mr Evans in 2006 in connection with the administration of Sally’s estate and the making of a will around that time. He knew Mr Evans to be a bright and likeable man. Mr Evans had been the Headmaster of Bishop Wordsworth Grammar School in Salisbury which Mr Jenkins’s eldest son attended.

Mr Jenkins was straightforward, clear and courteous in his testimony and I found him to be an impressive witness. Many of the questions put to him by Caroline sought to impugn his professional integrity. She suggested that Mr Jenkins’s actions formed part of the undue influence which she says taints the 2017 Will. This was by reference to what she claimed was the open-ended exposure of the estate to what would be his firm’s charges for his and Ms Vooght’s executorship and also her belief that clause 3 of the 2017 Will contained a bequest of the Testator’s chattels to them personally.

Such suggestions of impropriety on the part of Mr Jenkins are completely baseless. As Mr Jenkins politely pointed out in response, it was for him to put forward the basis upon which he was prepared to act as an executor (which he did in a letter to Mr Evans dated 2 February 2017 which explained his then hourly rate and stated there would be no additional percentage uplift to reflect the value of the estate as might be charged in some cases) and for Mr Evans to agree, which he did. As I pointed out to Caroline, the Solicitors Act 1974 sets out the circumstances in which a beneficiary of an estate might seek to have a solicitor’s fees taxed if the fees later charged are considered to be excessive. So far as clause 3 is concerned, this provides for the chattels to be given to “my Trustees” for distribution (though Mr Jenkins said there was no “existing or future memorandum” of wishes by the Testator of the kind contemplated by the clause) and Mr Jenkins pointed out that, as a witness to the 2017 Will, he could not take any benefit under it: see section 15 of the Wills Act 1837 which results in a bequest to an attesting witness being “utterly null and void”.

There is simply nothing in the suggestion that Mr Jenkins will gain anything under the 2017 Will, as opposed to providing his professional services on terms with which Mr Evans was content.

I address the evidence which Mr Jenkins gave in relation to the Testator’s capacity and his knowledge and approval of the 2017 Will in expressing my findings below.

Nicholas’s evidence was also clear and straightforward and I accept it as truthful on the matters that a relevant to the issue I have to decide. His witness statement also gave his position on the reasons for the breakdown in the relationship with Caroline, about which he feels strongly. He referred to the date of March 2014 as a watershed moment when Caroline told him she wanted no further contact between them.

Nicholas said after that time he discussed that family problem with his father on many occasions and that Mr Evans sought to “mediate a solution between us.” He described it as a stressful time for him and his father, particularly after Caroline took up residence in Simon’s Hollow in 2016, a situation which Nicholas described as “less than ideal”. In answering Caroline in cross-examination he said “you were hideously hostile to me and only marginally less so to him.”

Nicholas said there was only one occasion when he requested that his father consider appointing an independent executor. He did not accept that Mr Evans lacked capacity in March 2017. I return to these matters below when addressing my findings in the case.

Caroline had no involvement in the making of the 2017 Will. That is her basic complaint. It follows that most of what she said in evidence, and in her numerous filings in the case, were matters of contention rather than facts said to be within her own knowledge. She said that the observations in Carapeto and Schrader justify her approach to the case on undue influence which is that it was part of a campaign by Nicholas (strenuously denied by him as “preposterous”) to “marginalise” her from 2016 onwards.

I regret to say that many of Caroline’s contentions were misguided distractions. She described the terms of Sally’s will as “horrendous”, despite her reliance upon Sally’s Will Trust to say that, together with Nicholas, she already owns a half share in Simon’s Hollow. She persisted in her contention that the 2017 Will gave the Testator’s chattels to Mr Jenkins personally, despite his evidently correct response that he would not and, as a witness to it, could not benefit personally under the will even if that is what clause 3 provided. She treats the professional executorship created by the 2017 Will as a position of entitlement, rather than one of fiduciary obligation, and presumes that it would be abused by Mr Jenkins and Ms Vooght through improper charging. This despite her accepting in cross-examination that, in 2017, Mr Jenkins had not only acted for Mr Evans for many years but had been her solicitor too.

Caroline accepted that later, in 2018, she assisted her father in drawing up a new will which would have restored her and Nicholas’s executorship. She said that in late 2017 she stumbled across the 2017 Will and her father could not explain its contents and, she says, did not understand its terms. Her apparent belief that her father was competent to make a will in 2018 does not sit well with her case that he lacked testamentary capacity the previous year.

In relation to testamentary capacity, Caroline referred to Mr Evans’ mental health suffering in the period 2016-17. She attributed this in large part to alarming telephone calls to Simon’s Hollow which were made by her abusive ex-boyfriend. She said that her father had dizzy spells as a result of those calls. She questioned whether her father should have been driving at his age and referred to some mishaps when he was behind the wheel. Such matters, without more, do not provide much insight on the question of testamentary capacity.

I have no doubt that Caroline feels genuinely aggrieved by the terms of the 2017 Will. Although she complained about her share of the estate bearing one half of the pecuniary legacies to Nicholas’s children, I have formed the clear impression that her main grievance is the loss of her co-executorship. Caroline referred to having made many attempts to reach agreement with Nicholas over their respective interests in Simon’s Hollow. How the estate comes to be administered is not relevant to this judgment but it is clear to me that Caroline makes a strong connection between the office of executor and her occupancy of Simon’s Hollow. However, grievances about the effect of the 2017 Will do not necessarily translate into genuine concerns about how it came to be made.

The first finding I make is that the relevant property of Sally’s Will Trust, so far as Simon’s Hollow is concerned, is an equitable charge rather than a beneficial interest (or legal proprietorship) equivalent to that enjoyed by the Testator’s estate.

The charge itself was not in evidence, or included in the trial bundle, but the bundle did contain minutes of the trustees’ meetings for the years 2014 (at the latest) until 2019. Most of these meetings were held by telephone and the minutes were unsigned but Caroline referred in evidence to attending one meeting; and the 2014 minutes were signed by Mr Evans, Caroline and Nicholas. Each set of minutes referred to the two assets of Sally’s Will Trust, the first being “an equitable charge dated 17 June 2005 and varied by a Deed of Rectification dated 13 October 2006”. Each set of minutes recorded the trustees’ resolution not to call in the charge as “they considered the current form of investment acceptable as it allowed Mr Robert Evans to continue to reside at Simon’s Hollow whilst securing the sum for the benefit of the Trust.”

Also in the trial bundle was a letter dated 26 April 2006 from Mr Jenkins to Mr Evans explaining how, in the interests of minimising a future Capital Gains Tax liability, an equitable charge should have been created following Sally’s death, so that, as the residuary beneficiary under her will, her equitable interest in the property would be assigned to him subject to the charge. I infer the above-mentioned Deed of Rectification thereafter clarified the position.

Simon’s Hollow was conveyed to Mr Evans and his wife by a Conveyance dated 27 January 1970 as tenants in common. The property remains unregistered land. It seems clear that, certainly after October 2006, only Mr Evans (and now his executors) would be entitled to be registered as proprietor of the property at the Land Registry on its first registration.

Caroline said in her closing argument that, as trustees (together with Mr Evans until his death) she and Nicholas had “chosen to invest our mother’s half interest in the family home” so as to provide her (and Mr Evans during his lifetime) with “domiciliary security”. That is the position so far as it reflects a decision by the trustees of Sally’s Will Trust not to seek a sale of Simon’s Hollow to obtain repayment of the debt secured by the charge. However, when a testator owes no duty to consult with his putative beneficiaries, there is no basis for Caroline’s contention that her co-trusteeship gave her a right to be consulted and kept informed by Nicholas about what she described as “changes to my asset base.” If Mr Evans had chosen to sell Simon’s Hollow during his lifetime the trustees of Sally’s Will Trust could have had no complaint provided its charge was satisfied out of the sale proceeds.

The second, central finding I make on the evidence is that there are no grounds for impugning the validity of the 2017 Will.

In my judgment, the only point that can be made in support of Caroline’s challenge to the 2017 Will is that the golden rule was not observed. However, the decisions in Key v Key and Sharp v Adam show that establishing Mr Evans’s testamentary capacity is not contingent upon compliance with the rule. On my assessment of it, the evidence of Mr Jenkins in this case carries all the weight which the Court of Appeal in Hughes v Pritchard, at [79], contemplated it might do in a case where the rule has not been observed. Although non-observance of the rule means Caroline has not been guided away from her challenge (per Burns v Burns) nothing else in the evidence seriously supports her case.

In his evidence, Mr Jenkins said he was in no doubt about Mr Evans’s capacity to make a Will in the Spring of 2017.

I note that, when challenged by Caroline in cross-examination as to the reasons for him later, in 2018, declining to make a new will for Mr Evans, which would have reinstated the executorship of Nicholas and Caroline, Mr Jenkins said that his concern at this later point in time was not about his mental capacity but, instead, that influence was being brought to bear by Caroline who by that stage was his principal carer.

In my judgment, Mr Jenkins’s evidence as to the Testator’s capacity in March 2017 is fully supported by his contemporaneous attendance notes and correspondence:

Mr Wooding said the attendance notes addressed the elements of the Banks v Goodfellow test. I agree. They show Mr Evans understood the nature of the act of making the 2017 Will and its effect, that he understood the extent of his estate and what it comprised (even if the value of his interest in Simon’s Hollow was potentially overstated for IHT purposes) and that he was able to comprehend and appreciate the claims to which he ought to give effect. So far as the last limb of the test is concerned, they record him applying rational thought to its terms and, specifically, the reason behind the changes from the 2006 Will.

Mr Jenkins’s testimony and Dr Osborn’s hearsay statement about the Testator’s testamentary capacity in March 2017 are in my judgment supported by the relevant medical records.

Mr Evans’s medical records should not be read, and I do not read them, as a substitute for a solicitor’s attendance note which documents observance of the golden rule; and 6CIT is a test directed at assessing a patient for dementia rather than his testamentary decision-making capacity. Nevertheless, the medical records of Mr Evans’s visits either side of him making the 2017 Will are further indications that he had the competence of mind to make it.

I have already referred above to Mr Evans’s 6CIT score of 4 on his appointment with Dr Osborn on 28 December 2016 to her note that he was “considering” the appointment of an independent executor because of the poor relationship between Nicholas and Caroline. On 10 February 2017 he told Dr Kate Craufurd that his “son and daughter [are] not talking”. In testimony, Caroline accepted that was the case. On 21 June 2017, Mr Evans suffered a fall at home and was taken to A&E at the Great Western Hospital at Swindon. The hospital noted he was “alert and oriented”. Two days before Dr Craufurd had noted that Mr Evans was “slower in speech than in past but not confused, memory ok.” She attended Mr Evans at home 14 July 2017 and noted that “[a]part from being a bit short about his not remembering everyone coming to the house I did not see anything today that concerned me.” On 19 October 2017 Mr Evans scored 0 on the 6CIT.

Mr Evans’s 6CIT scores thereafter fluctuated, with scores of 14 on 19 July 2018, 4 on 12 October 2018, 8 on 14 December 2018, 7 on 19 July 2019, 6 on 19 September 2019 and on the last two of those visits (the last with Caroline present throughout) he mentioned to Dr Osborn the possibility of changing his will again so that his children would be executors.

Almost three years on from the making of the 2017 Will, on 12 March 2020, Mr Evans was visited and assessed by Dr Christopher Dyer MD, FRCP, a consultant geriatrician, in response to Dr Osborn’s writing to Dr Dyer in connection with Mr Evans’s welfare and also mentioning that there had been discussions (involving Caroline) about him making a further will and a lasting power of attorney. As part of his assessment, Dr Dyer concluded:

“With regard to his cognition, he was able to answer all my questions very clearly. He scored 10/10 on his mental test score. Of no doubt he does not have any cognitive issues. I broached the subject of Power of Attorney and Caroline and her brother (from whom she is estranged) both have Power of Attorney for finances but not health and care. Caroline says that a solicitor is now the executor and that her father changed this without her knowing. She would prefer there to be an executor of the will between both her and her brother. When I pointed out that they didn’t get on and it might be better for a solicitor to be in charge, she politely disagreed. However Mr Evans clearly stated to me in front of Caroline that as far as he was concerned, he just wanted all things to be equal between her and her brother.”

In my judgment, a proper assessment of all the relevant evidence in this case therefore points clearly to Mr Evans having had testamentary capacity as at 31 March 2017. Not only is the 2017 Will rational on its face but the rationale behind the changes from the 2006 Will is clear. Of course, the Banks v Goodfellow test falls to be applied to the making of a will as a whole but the unusual nature of this case (so far as the relatively minor impact of those changes upon the distribution of the Testator’s estate is concerned) means that it is sensible to focus on the aspects of the 2017 Will to which Caroline takes exception.

As Nicholas said, and which is obvious from both sides’ evidence in this case, the very nature of the change made by the Testator over the executorship demonstrates that he understood the obvious difficulties between Caroline and Nicholas and that he understood exactly what he was doing. In her testimony, Caroline confirmed that their father was aware of those difficulties by 2016. The change of executorship was an entirely rational and, in hindsight, wise decision on the part of the Testator. The Testator knew this would come at the expense of solicitors’ fees and wanted Nicholas to be aware of the basis of them. Caroline regards this as an opportunity for what she described as “money spinning” which, as mentioned above, she has assumed would go unchecked. There is no reason to attribute to the Testator the same concern give his long-standing relationship with Mr Jenkins but, even if there were, that would not be a basis for doubting his capacity to decide upon professional executors,

So far as the pecuniary legacies are concerned, Mr Jenkins’s attendance notes of 14 March and 31 March 2017 record the Testator’s desire to make them. Caroline did not suggest these reflected any poisoning of his affections and her evidence about her father’s achievements as headmaster of a prestigious grammar school positively supported one of them. The attendance note of 31 March 2017 recorded the Testator’s wishes that the gifts to the grandsons should not come only out of Nicholas’s share as “he knew that individuals wished to leave them this” and, again, Caroline’s submissions at trial (when she mentioned the idea that her nephews might inherit her share of Simon’s Hollow on her own death) are at odds with any notion that he did not have a proper understanding of what he was doing in providing for them. In her evidence, she also said her father “never wavered from broadly wanting to leave everything 50:50” to her and Nicholas (my emphasis). That is what he did.

Caroline’s suggestion that the 2017 Will leaves the Testator’s chattels to Mr Jenkins personally (the language of clause 3 is one of a gift to “my Trustees” for “distribution”) is entirely misconceived. If, as appears to be the case, there is no memorandum of wishes in that regard then they will pass to Nicholas and Caroline as the residuary beneficiaries. Caroline said it was unacceptable for a stranger, with no emotional attachment to them, to be coming into the family home and going through the Testator’s belongings but (to the extent that is required for the purposes of any probate valuation or lack of agreement between Nicholas and Caroline) that is the consequence of the Testator’s informed choice of executor.

My finding that the Testator had testamentary capacity, coupled with the due execution of the 2017 Will, means that this is the normal type of case where the propounder of the will has also established that he knew and approved its contents at the time of execution. On the basis that he had that capacity, the 2017 Will did represent his testamentary intentions.

I reach that conclusion noting that, even though in his attendance note of the previous day (“There was also the question of the Nil Rate Band Trust”) and Mr Jenkins’s letter of 2 February 2017 mentioned Sally’s Will Trust, Mr Jenkins made the assumption that Mr Evans’s estate might be worth in the region of £774,000. This was on the basis that Simon’s Hollow was worth £650,000. As Mr Jenkins volunteered in the witness box, the estimate of £774,000 overlooked the impact of the equitable charge in favour of Sally’s Will Trust.

However, the figure was adopted for the purpose of addressing a potential Inheritance Tax charge upon the estate, which Mr Jenkins was hopeful would be avoided if Mr Evans lived beyond a legislative change on 6 April 2017. I do not regard the potential overstatement in what was then the estimated net value of the estate as raising any serious question over the Testator’s knowledge and approval of the terms of the 2017 Will. Whatever their value might be at his death and whatever IHT (if any) might be payable under the legislation applicable at that time, the evidence shows that in March 2017 he knew what his assets were and who he wished to benefit from them.

There is in my judgment no evidence in this case that the Testator was subjected to undue influence, let alone the kind of cogent evidence described in Edwards v Edwards.

Nicholas’s position, which I accept, is that he did not pressure his father to make the changes effected by the 2017 Will and he was unaware of the bequests to his own sons before the will was executed.

He said there was only one meeting when he broached a change of executorship with his father. He and Karen had met Mr Evans for lunch in a pub when Nicholas expressed concern about how difficult it would be for him and Caroline to take significant decisions together. He said this would have been in the latter part of 2016. He did not accept Caroline’s suggestion that the topic was raised by Nicholas over Christmas of that year because he said he did not mention his father’s will at that time.

Caroline challenged Nicholas on this point. She referred to an occasion in January 2017 when, her father having met Nicholas for lunch, she said Mr Evans told her that Nicholas was insisting on a change in the provision over executors. She said her father was physically shaking and trembling.

I accept Nicholas’s evidence that he raised the topic only once. I also accept his evidence that “I made a request of him to consider the executorship. That was that”. Whatever the approximate date, what he said to his father was, I find, by way of a suggestion, or advice, and probably not even properly to be described as persuasion which (per Wharton v Bancroft at [30]) does not amount to undue influence. It fell a very long way short of coercion.

If Mr Evans displayed the symptoms of anxiety described by Caroline then in my judgment it is more likely that they reflected his concern (the grounds for which have been borne out by her position in these proceedings) about her likely reaction to the change rather than because he was reluctant to make it. Mr Evans’s medical records provide a more general picture of his sensitivity to Caroline’s needs and circumstances as his cohabitee in Simon’s Hollow. That would also explain why, according to Caroline, her father said Nicholas had “insisted” on the change of executorship. It is notable that, once he had made the 2017 Will, Mr Evans asked Mr Jenkins to send a copy of it to Nicholas but not Caroline. Mr Jenkins did so by the letter dated 5 April 2017 which explained the basis on which the estate would be charged for his fees.

Caroline asserted that Mr Jenkins’s letter of 2 February 2017 would not have been understood by Mr Evans, at least so far as the proposal for charging fees on an hourly basis was concerned, and she interpreted the attendance note of 9 February 2017 as Mr Jenkins “persuading him against his children”. Her persistence in the idea that the chattels were to be left to Mr Jenkins personally formed part of this. In relation to the attendance note of 31 March 2017, relating to the execution of the will, she said her father arrived with one version of the will which was then re-drafted with no cooling-off period. She said “I don’t think he was reflecting and thinking it through”. These surprising assertions have no force in the light of Mr Jenkins’s evidence which is fully supported by his correspondence and attendance notes. The fact that the idea of adding pecuniary legacies for his grandchildren came from the Testator shows that he had indeed carefully thought through the terms of the will which he wanted to make.

As Mr Wooding observed, most challenges to a will based on undue influence involve a change in its terms which is significantly detrimental to the financial expectations of the challenger.

This is not such a case. Caroline, as her father’s beneficiary, was not cut out of the 2017 Will and neither was her share of the estate significantly eroded by the pecuniary legacies contained within it. Had that been the case then it might well have been necessary to explore at trial the relationship between Caroline and Nicholas and between each of them and their father (Mr Evans’s medical records providing some insight in relation to the latter and recording communications to the surgery by others beyond those three). I have explained why that was neither necessary nor desirable for the purposes of addressing the claim. Allowing for the £11,500 impact upon Caroline’s share of the estate through the legacies that the Testator chose to introduce, the challenge based upon undue influence is simply met by recognising that, by 31 March 2017 he was fully aware of the breakdown in relations between his children (as Caroline acknowledges) and mindful of the need to address it in his will.

Alongside Mr Jenkins’s attendance notes, which on this particular point is supported by the evidence of all three witnesses at the trial, Mr Evans’s medical records also demonstrate this was the case. The “poor relationship” about which he informed Dr Osborn on 28 December 2016 had become one where by 10 February 2017 (and his appointment with Dr Craufurd) they were “not talking”.

As the person closest to her father, in terms of his day-to-day living, in 2017 it should have been obvious to Caroline why he wanted to make the changes to his will and that he was competent to do so.

I regret to say that instead she has sought to construct this and the other grounds of challenge by reference to what she, as opposed to the Testator, considers to be unpalatable aspects of the 2017 Will. Here, even her own impressions are askew. This is illustrated not only by her strained interpretation of its clause 3 (the chattels) but also her suggestion that Mr Jenkins should have offered the Testator his executorship for a fixed percentage fee instead of the “open-ended” hourly rate (when the documents show that Mr Jenkins was making it clear he would not charge an additional percentage fee); and that, if she and Nicholas had remained executors and required ad hoc legal advice, then Nicholas (as a solicitor himself) would have been able to use his contacts to obtain this gratuitously. Caroline made repeated references in her evidence to Mr Evans’s worsening “mental health” as opposed to decision-making capacity. Other parts of his voluminous medical records, which I have not needed to address, point to the professionals’ concerns about his well-being in light of his circumstances at home but they do not call into question his competence to deal with his assets upon death and still less do they point to any susceptibility at the hands of Nicholas and/or Mr Jenkins.

It follows that the claim succeeds and I pronounce in favour of the 2017 Will. I will make an order in the terms presently summarised in the Claim Form which includes a direction that Caroline’s caveat shall cease to have effect.

Whatever the merits of Caroline’s challenge to the 2017 Will might have been, this result should have been established much quicker than 4 years on from the issue of the claim. Caroline has played a significant part in the procedural delay touched upon in paragraph 9 above and the eventual trial has shown her challenge to be without merit.

In her closing submissions Caroline remarked that, if the 2017 Will was upheld, then Mr Jenkins would have to be replaced as an executor. As noted in the introduction above, she has convinced herself that Mr Jenkins is not sufficiently neutral as between her and Nicholas. I observed a number of times during the trial that her opposition to the claim meant that Mr Jenkins had not yet had the opportunity to demonstrate his impartiality as an executor and that my decision was limited to whether or not the 2017 Will naming him as such was valid. I should also make it clear that nothing in the evidence directed to that issue appears to raise any serious question over the appropriateness and suitability of Mr Jenkins acting as executor. Indeed, the nature of his testimony in this case and his involvement with the Testator’s affairs appear to vindicate him being named as executor.

This judgment will be handed down remotely by email to the parties’ legal representatives and its uploading to The National Archives. The handing down will be adjourned for the purpose of preserving the time for filing any appellant’s notice under CPR 52.12 (only). I invite the parties to agree a form of order which reflects my decision and any consequential matters upon which they are able to agree. In the absence of such agreement, I will determine any outstanding matters either on the papers or at a further hearing.