Alastair James Bowerman v Ian Benjamin Bowerman & Ors

This is my judgment of the part of this Part 8 claim which challenges:

The claimant, Alastair Bowerman, the first defendant, Ian Benjamin (Ben) Bowerman, and the Third Defendant, David Bowerman are brothers and the adult children of John and Jean Bowerman. I shall refer, without intending any disrespect, to the members of the Bowerman family by the first names used in the family.

The fourth defendant, John Andrews (“the administrator”), is a solicitor in the firm Steele Raymond LLP, to whom letters of administration with Jean’s will annexed, for the use and benefit of David and Ben, were granted on 11 August 2017.

The claim was commenced on 5 August 2022 as a claim for an account. My order dated 16 March 2023 granted permission to amend to add the claim challenging the wills and provided for formal statements of case.

The grounds on which John’s 1999 will is challenged are lack of testamentary capacity and lack of knowledge and approval. If that will is invalid, then John’s last valid will would be his will dated 7 April 1988 (“John’s 1988 will”).

The grounds on which Jean’s will is challenged are lack of knowledge and approval and undue influence. If that will is invalid, then Jean’s last valid will would be her will dated 7 April 1988 (“Jean’s 1988 will”).

David and the administrator have both filed acknowledgements of service stating that they do not intend to defend the claim. By my order dated 2 February 2024, the administrator was expressly excused from complying with the trial directions, and from attending the trial.

Ben is therefore the only active defendant to the claim. His defence asserts that Alastair is barred by laches and acquiescence from challenging both wills. In addition, Ben asserts that John had testamentary capacity and knew and approved the contents of his will; and that Jean knew and approved the contents of her will, and that it was not procured by undue influence. By his counterclaim, he seeks an order that the court pronounce in solemn form for the 1999 wills.

Alastair has acted in person throughout, including at the trial, although his trial skeleton argument was prepared by counsel. Ben was represented by counsel throughout. His counsel up to close of evidence was Amy Berry. She was replaced by Marcus Croskell at short notice, who made closing submissions on Ben’s behalf. The court has had the benefit of a transcript of the first 3 days of the trial.

Alastair called the following witnesses:

None of these witnesses was present when John and Jean gave instructions for their wills, or executed them. Their evidence was therefore limited to their knowledge of John and Jean outside that context.

Catherine was compelled to attend by a witness summons. She filed a very late witness statement dated 24 April 2025, the admission of which Alastair did not object to. She was declared a hostile witness and cross-examined by Alastair.

Catherine was cross-examined as to whether she was involved in the drafting and execution of John’s will. There was nothing about her evidence that caused me to doubt its truth on that issue.

Ms Davidson is a friend of Alastair. Her evidence was that following his stroke, John did not have the mental capacity to fully understand and coherently make meaningful decisions. She was doing her best to help the court, but it was not clear from her evidence whether the way she described John behaving was due to cognitive impairment or his inability to express himself.

Julie Bowerman is David’s wife. Again, she did her best to help the court. I accept her evidence that questions had to be formulated carefully to get yes or no answers from John, and that sometimes he did not understand what he was being asked.

Ms Dean is Alastair’s current partner. She gave her evidence straightforwardly. Her interactions with John and Jean were largely social ones. She said that when she interacted with him, she could not be sure whether he understood what she was talking about or whether he was just smiling and being polite.

Mr Frembgen is a friend of Alastair. His interactions with John were also largely social. He was not able to give any specific instances showing that John’s ability to understand (as opposed to his ability to speak) was impaired. His evidence therefore was of limited help to the court.

Ms Moffat is a niece of John and therefore a cousin of his sons. She visited the family in 1994 in the immediate aftermath of John’s stroke, and after that 4-5 times a year. She described him as again only being able to say “yes”, “no” or “um”; and that he would be inconsistent and confused in his responses to simple questions. She gave her evidence in a straightforward way, and I accept it.

Ms Carpenter also gave unchallenged evidence of domineering and verbally abusive behaviour by Ben towards her mother; and her mother’s view that Ben was bullying and belittling of Jean.

Mr Carpenter is Ms Moffat’s brother and a nephew of John. He is the CEO of a small business in the field of carbon technology, and lives in Norway. He confirmed John’s severe difficulties in communicating and his resultant frustration. His evidence was that John would then seem to give up or lose his train of thought. Mr Carpenter also described trying to tell John about his studies in geology and quickly realising that he wasn’t following what was being said, wasn’t keeping track. Again, he gave his evidence in a straightforward way, and I accept it.

Alastair is dyslexic and was under the additional pressure of representing himself at the trial. Nonetheless, his evidence was discursive and argumentative. He was reluctant to accept matters that were clear on the face of the documents. For example, his evidence was that he did not seek his parents’ wills until 2005, after John’s death. However, the evidence includes a letter dated 26 April 1999 from his solicitor, Pauline Twist, concerning the wills and enclosing photocopies of “all the documents”. Alistair’s initial evidence was that he was not living at the address where the letter was sent (Godlingston Manor Farm), but he later accepted that he would have received the letter in 1999. I approach his evidence with caution.

Although neutral, David made a witness statement and was cross-examined by Alastair and Ben’s counsel.

David was a straightforward witness who answered questions directly. His cross-examination did not cause me to doubt his evidence.

Ben called the following witnesses:

Mr Robinson is an agricultural land agent and RICS chartered surveyor. He has worked with the Bowerman family since about 1981 or 1982. He gave evidence of discussions about farm matters with John both before and after his stroke. His evidence was that John was involved and able to follow those meetings even after his stroke. He did his best to help the court.

Dr Caruana worked as a GP in Swanage, at the Swanage Medical Practice, from 1996 to 2012, and was the doctor for the Bowerman family throughout that time. He was a straightforward and wholly disinterested witness, who had at the relevant time a long standing knowledge of John and his medical conditions.

Ms Randall was, in 1999, a trainee solicitor employed by Humphries Kirk (“HK”), the firm who drafted and arranged the execution of the wills. She attended John and Jean at their home on 22 April 1999 with draft wills, and arranged the execution of the temporary will executed by John that day. Understandably, her recollection was largely based on her attendance note at the time. However, in her oral evidence, she expanded on her witness statement in a way that made it unclear whether she was remembering or reconstructing from her usual practice with clients.

Mr Mount was an employed solicitor at HK who drafted the 1999 wills and arranged the execution of the engrossed copy of John’s 1999 will on the same day. His evidence was that he probably had not met John before, although he knew Ben, Catherine and David.

Mr Mount had re-read the will file several times, and frankly admitted that it was difficult to remember which parts of his evidence were based on the file and which were from memory. He was aware that John was very unwell, and for that reason, sought Dr Caruana’s opinion as to John’s testamentary capacity.

Ms Brierley is a chartered accountant, formerly a partner in Saffery Champness (now Saffery Accountants) and now as consultant. Her evidence was that John understood the reasons and consented to the decision to sell the farm’s dairy herd, which was made at least partly on the basis of accountancy advice given by her, and other advice including a detailed business report written by an agricultural land and business consultant.

She also gave evidence that Jean was a strong and independent person, referring to the eulogy she delivered at John’s funeral; and to her understanding of the significance of her retiring from the partnership being that she was no longer liable for its debts.

Ms Le Cras is a former carer who worked for Dorset County Council and provided care for John. She has also worked as a P.A. for Ben. Her evidence as to Jean’s relationship with Ben did not reflect Jean’s diaries and the evidence of other witnesses, and I place little weight on it.

Ben was the last witness to give evidence and cross-examined by Alastair largely after court hours at the end of the third day of the hearing. He was a very confident, dismissive witness. I cannot accept the interpretation he gave to certain passages in Jean’s diaries, which show that she considered herself demeaned and controlled by him, and that he was capable of angry and verbally abusive outbursts.

John was born on 28 January 1928 and Jean was born on 25 August 1927.

Godlingston Manor Farm (“the farm”) is a 460 acre farm in the Isle of Purbeck, Dorset now owned by the National Trust. It includes a Grade 1 listed manor house (“Godlingston Manor”).

From 1949 until 1994 (when John suffered his debilitating stroke), the farm was run as a mixed arable and dairy farm by John (as a tenant) in partnership with Jean (“the partnership”).

John’s 1988 will appointed David, Ben and Jan Bridle (a solicitor) as executors. In summary, it:

Jean’s 1988 will appointed John, David, Ben and Mr Bridle as executors. In summary, it:

During 1990, a decision was taken to diversify the farming business. Godlingston Manor Springs Limited (Company No. 02490409) (“GMS”) was incorporated on 9 April 1990 with a view to profiting from the natural springs within the ancient woodlands at Godlingston Manor Farm. The directors of GMS following incorporation were John (who also acted as company secretary) and Ben along with Michael and Carolyn Holmes. Mr and Mrs Holmes resigned on 30 June 1994.

John remained a director and company secretary until his resignation on 5 January 1998, with Catherine being appointed as company secretary upon John’s resignation, and as a director on 24 August 2006.

On 25 March 1991, GMS entered into a lease with the National Trust in respect of the land which comprised the water bottling plant. On the same day, John and Ben entered into a new lease with the National Trust of the farm.

In 1994, John suffered a severe and debilitating stroke. This left him with significant physical disabilities, including being unable to use his right hand and severely limited mobility. He had expressive dysphasia, and could only say “yes”, “no” or one other neutral word, such as "well”, “um” or “aha”. He also suffered from periodic episodes of heart failure (about once a month), during which he was very unwell and at risk of dying.

In a letter dated 19 November 2015 from HK to Mr Andrews (presumably on instructions from Ben) the effect of the stroke on John was described:

“Mr John Bowerman suffered a stroke in 1994 which caused him to be under considerable disability. He could not say any words other than “yes” and “no” and very short words such as “aha”. He was unable to walk properly. He could not express himself. The stroke affected the right side of his body so he could not use his right hand properly – he was right handed. He could not initiate a conversation but he could respond to a conversation to him, but only by using the words “yes” and “no” and “aha”. He could not write a letter and he could not type a letter.

Accordingly we submit that he was indeed "incapable of managing and administering his property and affairs”.

Mr John Bowerman’s condition immediately after the stroke was much worse than his condition some years later - as time went by his condition improved somewhat. Certainly in 1994 after the stroke itself he was in no position whatsoever to have any prospect of telling the family what the arrangement that had been agreed with Mr David Bowerman in relation to Number 62 Ulwell Village actually was.”

(emphasis added)

In addition, Dr Caruana’s evidence, which I accept, was that during episodes of heart failure, John’s cognitive abilities were severely impaired, and that he would not have had capacity to make a will.

The above explains to a degree the differing views that the witnesses had of John’s capacity and understanding. First, immediately after the stroke, John was worse than he was later on. Secondly, as Dr Caruana put it, he was in a state of flux, depending on whether he was having an episode of heart failure. Different people may have seen him in different states.

In any event, he suffered from difficulties in reading, which were partly due to visual impairment. In her diary for Saturday 7 October 2000, Jean records her aspiration: “Get John to start reading large print a line at a time OUT LOUD”.

On about 27 May 1998, John and Jean entered into:

John’s 1999 will:

By this time, John owned only 1% of the partnership. The main difference between his 1999 will and his 1988 will is that no provision is made for his sons: there are no immediate gifts, and his residuary estate is left to Jean absolutely, rather than as a life interest. There are no provisions as to the distribution of any inheritance from John’s father so as to achieve equality between the 3 sons (but there was no evidence as the effect of this).

Jean’s 1999 will:

Again, by this time, Jean only owned 1% of the partnership. The main difference between her 1999 will and her 1988 will is that in the 1999 will her residuary estate is no longer given to Alastair and David, but is left to John absolutely, with all 3 sons sharing in it if John predeceases her. However, similarly to the 1988 will, there are provisions in the 1999 will as to the distribution of any inheritance from Jean’s parents so as to achieve equality between the 3 sons. There was no evidence as to whether Jean inherited from her father; the attendance note set out (in para 53 below) indicates that shortly before making the 199 will, Jean inherited about £120,000 from her mother.

On 2 December 1998, Ben telephoned HK and spoke to Mr Mount, telling him that his parents wanted to make a new will. HK were not solicitors which John had used before. They were Ben’s solicitors. The first reason Ben gave was that one of the executors was a partner in a firm of solicitors that John and Jean no longer used.

However, the attendance note continues:

“There (sic) situation has changed considerably because they sold the farm to Ben in March this year. The price was only £1 but Ben says it was a true figure because he had to take on a £100,000 worth of debts. Apparently there was a proper valuation of stock etc at the time Darrell in the Wareham office dealt with it

Apparently his parents still have 2% of the farm

Assets

Apart from the small interest in the farm which really is worth nothing his mother inherited £120,000 recently There are some other assets but not of great value. His father has an insurance policy worth about £100,000

Insurance policy

It was originally planned that the insurance policy should be divided between David and Alastair because the farm was being given to Ben. Obviously everything has changed now.

He volunteers to come to a meeting to be able to give information about the assets. I said it would be preferable if he completed a Will Information form to help his parents and them to give it to me. I would them make arrangements to go and see them myself without him being present Obviously it is important that I obtain direct instructions from them.

I said I would give the Will Information form to Catherine to take home to him.”

Catherine was a qualified solicitor at this time, working as an assistant solicitor in the conveyancing department in HK’s offices in Swanage. Her office was on the second floor, and the Private Client department was on the ground floor. She had previously worked as a trainee under Mr Mount’s supervision in the Private Client department; and then in various other HK offices in other locations. However, in December 1998 she was no longer working directly with Mr Mount, or on wills and probate files, except where a property in an estate was to be sold.

On 1 April 1999, Catherine took maternity leave, and her son was born on 12 May 1999.

The Will Information Form was completed by Ben.

On 16 April 1999, Dr Caruana visited John at home and recorded: “worsening heart failure”. His manuscript note records: “Breathing worse, cyanosed, marked Cheyne-Stokes (Footnote: ¹)” He returned on 19 April and recorded “subjectively no better”.

On 20 April 1999, Ben contacted HK again, 3 months after his initial conversation with Mr Mount. His attendance note records:

“Ben phoned me. He said he would drop in copy wills today + Will Information Form.

He said that the whole situation is too complicated for his father and mother to change their wills in any detail but they would like to change the executor from the previous solicitor.

I said that I agreed that if his father was seriously ill it was unfair to spend hours with him discussing a new will.

He asked me to propose codicil to change the executor only.”

The attendance note then continues, apparently after Mr Mount has seen the 1988 wills:

“Considering Wills

•

Both very complicated. I think this is unnecessary.

•

Now that gift of farming stock made I think that John and Jean will want to look after each other and then divide =ly between children

•

it doesn’t seem there is any IHT problem

•

the insurance policy for £100,000 should be checked whether it is outside the estate or else there would be IHT

•

I will do codicils and then discuss with John + Jean

•

if they understand present Wills and want to change them I should get further information form Darrell/accountant to confirm the gift of the partnership

•

check position about Godlingston.

On the same day, Mr Mount went to the farm to see John and Jean to take instructions. His attendance note records:

“I said I had been asked to prepare a codicil to remove the solicitor executor. They confirmed that it what they wanted. I gave the codicils to them and they both signed.

I then talked to them about the present Wills generally. I said they perhaps did not reflect the present position.

They agreed their main priority was to look after each other and after disposing of the farm to Ben (which they said was more of a liability than an asset), they want to treat each of their sons equally. I offered to prepare draft wills for them to consider. I suggested they show them to the family.”

There is nothing in Mr Mount’s written or oral evidence to suggest either that he discussed the existing wills in any detail, or took instructions as to the changes to be made to them. Indeed the initiative for changing them came from Mr Mount and not from John and Jean.

Mr Mount then completed a document entitled “Will Attendance Note and Drafting Form”, in which he proposed the following gift for both wills:

“I give to my son Ian Benjamin Bowerman my share in the farm stock and equipment together with any share of mine in at the date of my death in the partnership in Godlingston Manor Farm, Swanage.”

On 21 April 1999, he drafted a letter to John and Jean:

“Your Wills

When I saw you on Tuesday I suggested that it would be a good idea to modernise your Wills. I do not think that your present Wills take account of your situation now. As agreed with you, I have therefore drafted new Wills for you to consider and I enclose a copy of each of these. I would like to mention a number of points –

1.

I have made the draft Wills on the assumption that your total assets from all sources come to about £234,000 This is on the basis of information given to me by Ben. This means, therefore, that there is no need to consider Inheritance Tax as this will be minimal.

2.

You told me when we met that your main concern in the Wills is to look after each other and then for your three sons to be treated equally.

3.

You told me about the gift to Ben of the farming business last year. In case this was not fully effective, I have included a clause in your draft Wills to make sure that Ben has the benefit of the farming business as you wanted. You told me that in fact, because of the liabilities and problems of farming you did not really consider the gift of the farming business actually being of any value I understand that the accountant is also of that opinion.

…

As I explained, I am concerned that I do not know much of the background of the family and the business I think, therefore, that it would be a very good idea if you showed the draft Wills to your three sons. We can then be sure that everyone is happy with what you are proposing to do.

When you have had the chance to do this, can you please let me know and I will come again to see you to finalise the various clauses.”

The following day, 22 April (Thursday), Mr Mount (as his attendance note records), checked the draft wills and amended them. He then phoned the farm. Ben answered. Mr Mount asked if it was OK for Louise (Ms Randall) to deliver a letter. Mr Mount said it was urgent that his parents considered the wills that day and he go to see them to discuss the details. He added that it was best to get the wills done before the weekend in case John died.

That day, Ms Randall went to Godlingston Manor to deliver the letter of 21 April and the draft wills. She arrived at 11:30am. John had been very ill in the night, and had had little sleep. John, Jean, Ben and David were there. Her attendance note continues:

“I went through the provisions of the will and explained that the wills for John and Jean mirrored each other in that the interests in the business are left to Ben and the residue of the estate went direct to the surviving spouse. I said that should the surviving spouse die within thirty days then the estate would be split equally between Alastair, Ben and David.

Any interests in the farm would go to Ben. They agreed that this would not be favouritism to him - as Ben has incurred a great deal of debts and liabilities from the farm. It is thought that John and Jean have only retained 1% each of the farm business following a gift of the business from John and Jean to Ben last year.

…

David asked whether Alastair ought to be an executor as well I said that he could be if that is what John and Jean wanted. Jean said that she did not think that Alastair wanted to be an executor. Ben suggested that we telephone and double check with Alastair and ask him whether he would wish to be an executor.

Ben telephoned Alastair. Alastair said that he did not wish to be an executor in either of John or Jean’s wills. Ben read the suggested will over to Alastair over the telephone and offered to fax a copy of the draft to him (on the provision that it was a confidential fax).

Ben, David and Jean then spoke to Alastair on the telephone.

I understand that Alastair was concerned about the draft wills and asked that the existing and draft wills be faxed to his solicitor Pauline Twist in Canford Cliffs. Jean agreed Ben then faxed copies of the existing wills and Derek was telephoned later and asked to fax the draft wills over.”

Ms Randall then telephoned Mr Mount to suggest that John should execute the draft will while she was there. He agreed and said he would return with an engrossed version that afternoon. This, he said, would allow the opportunity to discuss the will with Alastair’s solicitor and protect John should anything happen in the meantime.

Ms Randall then met with John on his own. Her attendance note records:

“I went through the draft will and explained what the provisions are. I asked John whether the will reflected his wishes and whether he was happy with it and he said that he was I asked him if he had any questions and he said no.

Obviously John has had a severe stroke. I was careful to ensure that he was mentally capable of making a will. I said to John that I understand that he had not had much sleep last night. He said that was correct. I asked him how he was getting on with his jigsaw puzzle. He showed me that he had progressed from last Tuesday. I am convinced that John understood what was in the will and that the will was carrying out his wishes. He was concerned that Jean is looked after when he dies.

I arranged the execution of the will (using the draft that I had taken and discussed with him.”

Ms Randall did not attempt any structured assessment of John’s capacity. Her attendance note does not record that John could only interact by giving one of his 3 monosyllabic replies.

Dr Caruana visited John at lunchtime. He was acutely ill. Dr Caruana arranged for him to be admitted to hospital as a medical emergency later that afternoon. His manuscript notes record “Still struggling [with] CCF (Footnote: ²) … Admitted to [Swanage Hospital] for Rx (Footnote: ³)”

Later that day, Ben phoned Mr Mount to say that Alastair was unhappy and wanted a copy of the will to be sent to his solicitor, Pauline Twist. Mr Mount then faxed John’s will as drafted by him directly to Ms Twist. He then phoned Jean who confirmed that he could discuss the will freely with Ms Twist.

Mr Mount then spoke to Ms Twist at 2.15pm. Ms Twist told him that Alastair did not agree with the gift of the farm business. Mr Mount’s response (as recorded in his attendance note) was:

“my understanding was that the gift had been made about a year ago in any case. I had recommended to J and J that this gift was still included in the will for 2 reasons:

I . In case my instructions were not correct and the gift had not been made

2 That I understood that John and Jean each retained a 1% share in the farm business”

Ms Twist asked Mr Mount whether he was sure that John had sufficient mental capacity to make a will and he said that he was sure from his conversation with John. Ms Twist suggested a small change to clause 5 so that it referred to “farming stock” rather than “farm stock” which Mr Mount implemented. Her manuscript notes on a draft of Jean’s will were in evidence reflecting that change and other comments reflecting her discussions with Mr Mount. Alastair’s evidence was that these notes were made at a much later stage, shortly before Ms Twist’s death in 2020 or 2021. I reject that evidence as not credible, given the close correlation between the notes and Mr Mount’s attendance note of his conversation with her.

Perhaps as a result of his conversation with Ms Twist, Mr Mount phoned the Swanage Surgery to speak to Dr Caruana. He was out on visits, so he left a message with a member of staff identified as Jackie. Jackie called him back later to say she had spoken to Dr Caruana, and he had said that John Bowerman would have no problem with understanding and signing a will.

Mr Mount then amended the draft will in the way Ms Twist had suggested, and took the engrossed draft to Godlingston Manor, where he saw John and Jean. Ms Randall accompanied him. His manuscript attendance note records:

“I gave the Will to Mr Bowerman and he read through it.

I then went through it carefully. He confirmed that it was exactly what he wanted.

He told me that he was only appointing David and Ben because Alastair did not want to be an executor.

He confirmed that he had given the farming business to Ben already but that he had retained a small interest in it – 1% he thought. He said he thought that the gift to Ben was not worth anything in any case.

He then signed the Will and Louise and I witnessed it.

…

I then talked to Jean about her Will. She is considering the draft Will but is not ready to give me instructions. She will phone me when she is ready. She told me that the ambulance was taking John to Swanage Hospital at 4pm (John signed his Will at 3.30).”

Although the file records Mr Mount returning to the office and dictating attendance notes, there was no typed version of the attendance note of Mr Mount’s visit in evidence. Possibly because he had been reassured by the message from Jackie, Mr Mount also did not attempt any structured assessment of John’s capacity. His attendance note does not record that John could only interact by giving one of his 3 monosyllabic replies. In his oral evidence, he said that John was able to have a conversation and talk about ordinary things. In my judgment, Mr Mount’s attendance note was coloured by the information which he had received from the Will Information Form and directly from Ben. John could not have expressed himself in the way recorded in the note. I am not therefore satisfied that took sufficient steps to find out whether John had testamentary capacity.

The following day, 23 April, Mr Mount wrote to Dr Caruana:

“I am very grateful to you for your message yesterday which Jackie gave me confirming that you did not think that there was any problem with John Bowerman understanding and signing his Will. This meant that I was able to go and see him immediately and he has now in fact signed his Will.

I would very much appreciate it if you could send me a letter confirming that, having visited John Bowerman at lunch-time on the 22^nd April, you are convinced that he was capable of making and signing his Will.”

Dr Caruana provided a letter some 3½ weeks later, on 18 May 1999:

“I hereby testify that Mr. John Colin Bowerman has full testamentary capacity and is capable of understanding the implications of making and signing a Will. I believe his speech incapacities are limited to verbal disability only and that he has no problems with comprehension.”

In his oral evidence, Dr Caruana gave clear evidence of the following:

Jean did not sign her will on 22 April 1999.

On 26 April 1999, Ms Twist wrote to Alastair:

“On Friday, I was urgently telephoned by your brother, Ben, with reference to new Wills that were being executed by your parents.

I was asked to look at the old Wills and the new Wills that had been prepared by Mr Derek Mount of Humphries Kirk and these were faxed to my office and I studied them on your behalf. The situation as outlined to me by your brother was that you wanted me to ensure that your position was not in any way prejudiced.

…

I enclose photocopies of all of the documents and you will wish to know how much your parents are worth - this was expressed to me by Derek Mount as being in the region of £234,000 without reference to any business interests.

No doubt you will contact me about this if you have any specific enquiries.”

Alastair accepted in his oral evidence that he received this letter, not immediately after it was posted, but at some time in 1999. I find that he received the copy documents referred to in the letter. Alastair also accepted that he had discussions with Ms Twist in 1999 about his parents’ wills.

On 24 May 1999, Mr Mount went to see Jean at Godlingston Manor. His attendance note records that he discussed with her at length the clauses to go in her Will. He then prepared a revised draft will.

On 26 May 1999, Jean went to HK’s offices to sign the will. Mr Mount’s pro forma attendance note records that “Client has read copy at home so I gave original to them to check it was the same.” Mr Mount and a secretary at HK witnessed the execution of the will.

Nearly 4 years later, on 21 March 2002, John, Jean and Ben entered into a deed of partnership by which they agreed that the 3 of them would carry on the partnership business. This was followed by signed (undated) minutes of a meeting where it was resolved that from the commencement of the partnership on 1 April 2002 the profits and losses of the partnership would be divided/borne as to 98% for Ben and 1% for Jean and John.

On 20 September 2004, sadly, John died. On 26 October 2004, Jean, David, Ben and Alastair met at Mr Mount’s offices. Alastair asked whether John was fit when he made his will. Mr Mount replied that when he went to see John he was perfectly capable of making a will despite having suffered a stroke. He also said that the present Will seemed non-controversial as apart from giving a 1% share in the partnership (which Ben has said was not worth very much) to Ben, everything else was given to Jean. If she had died before John it was then to be divided between the three sons. The note records that Alastair accepted these replies, and said he had no intention of challenging the will.

On 7 March 2005, Jean contacted Mr Mount by telephone and told him she wanted to make some adjustments to her will. An appointment was made for Mr Mount to visit her at home on 10 March 20025, and she completed a Will Information Form. On 9 March, Jean phoned to cancel the appointment (confirming it in another telephone call on 25 May 2005), saying that she wanted to wait until after probate to John’s estate had been granted. Probate of John’s will was granted to Ben and David on 22 August 2005.

After some gentle chasers from Mr Mount, Jean eventually saw him on 6 March 2006, to discuss changes to her will, primarily changing its executors. On 10 March 2006, she phoned to say that she would probably make all 3 sons executors but had not decided yet. Again, after a chaser from Mr Mount, she met with him on 5 October 2006. She told him that changing her will might cause a problem, and that she had decided to leave it as it was in 1999.

The administration of John’s estate has been completed.

Over the following years, Alastair obtained legal advice from various professional legal advisers:

None of this resulted in a letter before claim, let alone proceedings.

Jean died on 9 June 2012. The administration of her estate remains uncompleted.

On 26 May 2015, following a criminal conviction for arson (setting fire to Ben’s car), a restraining order was made against Alastair. Paragraph 1 of this order ordered him:

“Not to contact directly or indirectly Ian Benjamin BOWERMAN, Catherine BOWERMAN, Isabel BOWERMAN and George BOWERMAN in any manner directly, indirectly, or indirectly save through solicitors - save by indirect communication with Ian Benjamin BOWERMAN alone through Messrs Steele Raymond, Solicitors, by email or post, solely in respect of matters concerning the probate of Jean Mary Bowerman and John Colin Bowerman.”

The applicable test as to testamentary capacity is set out in Banks v Goodfellow (1869-70) LR 5 QB 549:

“It is essential to the exercise of such a power that a testator [a] shall

understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

As to the burden of proof:

As HHJ Paul Matthews explained in his recent decision of Burgess v Whittle [2025] EWHC 2633 (Ch), the policy of the law is to enable persons who may be elderly, of modest or even limited intelligence, and even suffering from illness, and taking medication, to make wills.

The legal principles applicable to the issue of whether the testator knew and approved of the contents of the 2010 will are set out in the judgment of Lord Neuberger MR in Gill v Woodall [2011] Ch 380 at [14]:

“Knowing and approving of the contents of one's will is traditional language for saying that the will “represented [one's] testamentary intentions” see per Chadwick LJ in Fuller v Strum [2002] 1 WLR 1097, para 59. …”

Previous case law (going back to the 19^th century) approached the issue of knowledge and approval on a two stage basis. The court first asked whether the person challenging the will had established sufficient facts to “excite the suspicion of the court”, i.e. whether they had made out a prima facie case that the testator did not in fact know of and approve the contents of the will. Secondly, if the court held that the person challenging the will had excited the suspicion of the court, it then turned to consider whether or not those suspicions were allayed by the propounder of the will.

However, in Gill vWoodall, Lord Neuberger approved a one stage or holistic approach, in which 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.” [21]

Also in Gill v Woodall at [71], Lloyd LJ held that the question was whether the testator understood: (a) what was in the will when she signed it; and (b) what its effect would be.

As is explained in Theobald on Wills (19^th edn) at para 4-043, that is not to say that a testator needs to understand the detailed provisions or nuances or trust law:

“In some cases where the testator employs an expert draftsman to provide the appropriate wording to give effect in law to the testator’s intentions, the testator has to accept the phraseology selected by the draftsman without himself really understanding its esoteric meaning and in such a case he adopts it and knowledge and approval is imputed to him.”:

Greaves v Stolkin at [2013] EWHC 1140 (Ch); [2013] W.T.L.R. 73 at [73]

The requirement is that the testator understands at least the broad effect: Fitzgerald v Henerty [2016] EWCA Civ 701 at [29], [31]. HHJ Paul Matthews’ remarks as to capacity apply equally to knowledge and approval. A testator need not be a lawyer or even well educated to be able to know and approve the contents of their will.

The law was summarised by Lewison J (as he then was) in Re Edwards [2007] EWHC 1119 (Ch) at para. 47 as follows (so far as relevant):

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

i)

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

ii)

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

iii)

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;

iv)

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;

v)

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;

vi)

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;

…

ix)

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.”

Ben relies upon the doctrine of laches as a defence to the claim. The application of the doctrine is summarised in Snell’s Equity (35th edn., 2024) at [5-012] under the heading: ‘Delay Defeats Equities (etc)’ (citations omitted):

“This maxim must also be treated with caution. It can be seen as underpinning, in a general sense, the doctrine of laches, which acts as a bar to equitable relief. That doctrine is not based, however, on the mere fact of delay. Something more than mere delay, more even than extremely lengthy delay, is required before B will be denied equitable rights under the doctrine of laches, as the question is whether the lapse of time has given rise to circumstances that now mean it would not be inequitable to deny relief to B. The principal example occurs where, perhaps as a result of having relied on a mistaken belief that B has no relevant right, A would now suffer an irreversible detriment, as a result of B’s delay, if B were permitted relief. The doctrine will therefore apply if the delay has resulted in the destruction or loss of evidence by which B’s claim might have been resisted, or if B can be said to have released or abandoned any right. There can be no abandonment of a right without full knowledge, legal capacity and free will, so that ignorance or disability or undue influence will be a satisfactory explanation of delay. Laches is also a personal disqualification and will not bind successors in title, although if the circumstances are such as to give rise to a contract between A and B, or a proprietary estoppel based on B’s acquiescence, a third party may be bound.”

In Re McElroy [2023] EWHC 109 (Ch), it was held, following a thorough review of the authorities, that laches can be a reason to dismiss a probate claim if that claim is made only for the purposes of claiming equitable relief, and so has been rendered “utterly academic” by the applicability of laches to such relief.

In James v Scudamore [2023] EWHC 996 (Ch), also after an extensive review of the authorities, HHJ Paul Matthew held, so far as relevant to this case:

“(2)

Explicable delay, even when coupled with taking a legacy under a will proved in common form, is not generally enough to bar a claimant from taking probate proceedings: Bell v Armstrong 1 Add 365; Merryweather v Turner 3 Curt 802.

(3)

But unjustified delay, possibly on its own (see dicta in Merryweather v Turner at pp 813 and 814, and also now Wahab v Khan (Footnote: ⁴)) , and certainly when coupled with acts amounting to waiver of the claimant's right, will bar the claim: Hoffman v Norris 2 Phil 230n ; Braham v Burchell 3 Add 243.

(4)

Similarly where the delay has led to others’ detrimental reliance on the inaction, such as distribution of the estate: Williams v Evans [1911] P 175.

Whether the propositions at (3) and (4) should be referred to as a probate version of the doctrine of laches, or by some other name, does not much matter.”

The primary witnesses as John’s capacity to make his 1999 will are the people who saw him on 22 April 1999. Mr Mount and Ms Randall were concerned to establish that John had capacity, and believed that he had. Dr Caruana saw him that day, and, as set out, above, gave clear evidence that he was so severely unwell that he could not have had capacity.

However, as noted above, neither Ms Randall nor Ms Mount undertook a formal assessment of John’s capacity. It is, in my judgment, clear that if they had spoken to Dr Caruana on that day, he would have told them that John’s current state meant he lacked capacity. I find therefore that John did not have capacity to execute his 1999 will.

It follows from the above that John also did not know and approve the content of his 1999 will. In addition, I find that John was not able to read and understand the contents of Mr Mount’s letter dated 21 April 1999 or the 1999 will itself. This is particularly significant because John did not initiate or give instructions for the substantive changes to his will, which originated from Mr Mount. I note, however, that John survived for another 5 years, and took no steps to redraft his 1999 will.

As set out above, Alastair knew the contents of John’s 1999 will around the time it was made. Alastair confirmed this in his letter dated 16 January 2017 to the administrator, in which he referred to “conversations surrounding the changing of my parents’ wills”.

In any event, he was told its contents shortly after John died, at the meeting (referred to in paragraph 85 above) on 26 October 2004. The length of the delay in bringing the claim is therefore 18½ years.

As set out above, Alastair took legal advice in relation to his parents’ estates but took no steps to challenge the wills. He sought to explain this by reference to his health (he had a spinal operation in 2006) and the Restraining Order. As to the first, this cannot in my judgment explain the lengthy period before the challenge to the wills was brought. As to the Restraining Order, this specifically exempted communication through solicitors and did not therefore prevent a claim from being brought. I consider therefore there is no proper explanation for the delay in bringing the claim and it is, in the words of James v Scudamore, inexplicable.

Alastair, has not therefore, in my judgment, shown any justification for his delay in challenging John’s 1999 will. Coupled with this is his express disavowal at the meeting on 26 October 2004 of intending to challenge the will. A further factor is that in reliance on that disavowal, John’s executors have administered his estate. This detrimental reliance also bars the claim.

In addition, if John’s 1999 will were declared invalid, that could only be given effect by a claim against Jean’s estate to recover the assets she received under the will. That recovery claim would be a claim for equitable relief, which would itself be bound to fail on the ground of laches. As in McElroy (see para 60), it would be contrary to the overriding objective of saving expense and avoiding delay to allow the challenge to John’s will in circumstances where it would serve no useful purpose.

There is no challenge to Jean’s testamentary capacity. Alastair relied upon the fact that Jean was not a business woman, and was reliant upon those around her to advise on legal and financial matters.

However, Mr Mount’s letter of 21 April 1999 explained the effect of the 1999 wills. Ms Randall went through the provisions of the wills and explained their effect on 22 April 1999. On 24 May 1999, Mr Mount discussed with at length the clauses to go in her will. Jean attended his offices to execute it. There is nothing about the circumstances of the preparation or execution of the will that is suspicious. I am satisfied that Jean knew and approved its contents.

Alastair’s case as to undue influence may be taken from his counsel’s skeleton argument, in which he submitted:

This, Alastair submitted, establishes that Ben’s conductwas of a type that overbore Jean’s free will such that when entering into the 1999 Willshe cannot be properly considered as having exercised her own free will.

In making these submissions, Alastair relied primarily on Jean’s diary entries. A complete copy of the diary was not in evidence, and the extracts must therefore be seen as giving an incomplete picture. They show Jean as an intelligent, thoughtful, sensitive and highly religious person. She was prone to anxiety and self-doubt, but also capable of standing up for herself. For example, on 2 January 2001, she wrote:

“Tie up loose ends! Pay bills and see to DAMART correspondence. Don’t get embroiled in fruitless arguments trust Gillian’s little book!! Be responsible and take control of the situation, if you do what God asks of you, there’ll be no feeling of domination by the rest of the family.”

and on 6 September 2002:

“So angry with Ben for his utter rudeness to Sally Ann K and me this morning. He must be under considerable pressure to rant on like that. How to deal with it?? I’ve handed him over, but Sally was obviously very hurt and I hope Ben apologises to her tomorrow – in fact I shall insist that he does.”

The diary also records incidents between Ben and his mother which affected her self-esteem:

“29 May 2004

Sad aggro (again) with Ben over hoist for bathroom. I seem toe be like red rag to a bull to him”

“Sunday 20 June 2004

To my astonishment and distress when handed the phone to Ben he threw it back at me and stormed out obviously upset that I’d (again apparently) forgotten what he and Ian had arranged. What concerns me is the fact that he is under great stress and I seem to cause a lot of it unwittingly.”

“March 10^th Thursday [2005]

Can’t believe that Ben could be so hurtful over me asking Derek Mount to come as I want to put A.J.B. as an executor. His mood swings are very worrying, and make me feel reduced to something that’s crawled from under a stone.”

“May 12^th Saturday [2005]

I never thought I’d be the sort of mother who’d feel slighted by her son, I obviously have been very stupid and disorganised not to have understood that EVERYTHING to do with the farm is now under Ben’s jurisdiction and control”

“Monday 15^th August 05 Morning Pages

… This dread of confrontation with B is always there (is it???). Didn’t realise but it is … the financial help is a 2 edged sword which I’ve been relying on, but resenting – B feels honestly he’s helping me and God knows he got me out of a helluva mess – I’ve been so irresponsible over money matters in the past – Because of a big IF ONLY regards the past (tears coming up??) In hindsight I see that John and Daddy spoilt me, they probably didn’t realise it, but because I’m such a nincompoop with figures and money they took me over and carried me financially.”

The first thing to note is that these entries post-date Jean’s 1999 will by 5 to 6 years. The 1999 will was made when John was still alive, and Jean had his support. The diary entries are made after his death, and a significantly later stage in Jean’s life. Secondly, there is no suggestion in them that the 1999 will was obtained by any sort of pressure or that Jean regretted executing it. Thirdly and most importantly, none of the incidents described in the diary in my judgment show pressure being exerted sufficient to amount to coercion in the sense of Jean’s will being overborne.

In addition, the circumstances in which Jean’s 1999 will was prepared and executed are inconsistent with coercion having been exercised by Ben. The changes to the 1988 wills were suggested by Mr Mount, and he drafted the new wills. Jean could have executed her will on 22 April 1999, but she chose not to. She discussed her will with Mr Mount at a meeting at which Ben was not present. She executed the will in HK’s offices, with Mr Mount and his secretary as witnesses.

I am not therefore satisfied that Jean’s 1999 will was procured by undue influence, and Alastair’s challenge to it on that ground fails.

For the reasons set out above, therefore, I dismiss Alastair’s claims in respect of the 1999 wills and pronounce for those wills in solemn form.