Gary Alexander MacDougall v Lloyd Philip Thomas & Ors

Jeanne Emily MacDougall (“Jeanne”), the wealthy widow of Alexander MacDougall (“Alec”), died on 30 April 2020 aged 91, sadly after having suffered from Alzheimer’s disease for a number of years.

Jeanne and Alec had two children, a son, Gary MacDougall (“Gary”), the Claimant in this case, and a daughter, Sandra Thomas née MacDougall (“Sandra”), the Second Defendant in this case, and they also had eight grandchildren. I will refer throughout this judgment to all the family members by their first names, as the parties have done, with no disrespect intended.

This case focuses on the validity of a will signed by Jeanne on 14 March 2011 (“the 2011 Will”). Sandra and her husband Lloyd Philip Thomas (“Philip”), the First Defendant, invite the court to pronounce in favour of the 2011 Will and admit it to probate. Gary invites the court to pronounce against that will and instead to admit to probate an earlier will made by Jeanne on 18 November 2008 (“the 2008 Will”).

In addition however, Gary challenges the validity of a number of other substantial gifts and transactions carried out over the period 2005 – 2020, either by Jeanne herself, or by Sandra and/or Philip using a Lasting Power of Attorney registered on 17 January 2012 (“the LPA”), on grounds of alleged undue influence, lack of capacity and/or breach of an attorney’s duties. Gary makes those claims by a derivative action, as explained below.

During his lifetime Alec had built a successful property development business in the Acton area of London, in partnership with Jeanne’s father, George Savage (“George”), which traded as “MacDougall & Savage”. Alec and George bought and developed residential properties which they sold on, or let out for a rental income. Gary joined the partnership in the early 1980’s. In 1990, Alec and George retired and divided the properties owned by the partnership between them, leaving only its business premises. Alec gifted his share in the business to Gary. Subsequently Gary also acquired George’s share, although whether this was by gift or purchase is disputed. Since 1993 Gary has been the sole owner of MacDougall & Savage, continuing to run it successfully. Jeanne also worked in the business’s office for most of her life, notably until she was in her mid-80’s, and has been described by Gary as the “business matriarch”.

Alec died in 2002, leaving his entire estate to Jeanne. This included his interests in several rental properties, as well as the matrimonial home and a holiday home used by all the extended family in Peacehaven. Prior to his death, Alec and Jeanne had gifted other properties to their son and daughter, including a first home for each. Alec in particular was insistent on a principle of equal benefit to each of his children, which extended to requiring Gary to transfer to his sister roughly half of some properties which Gary had been involved in developing. Alec and Jeanne’s original 1993 wills simply left their estates to each other, with the survivor’s estate passing to Gary and Sandra in equal shares.

There can be no doubt that the whole extended family has benefited from this substantial property wealth (aided by rapidly increasing London property prices). It is also clear that Jeanne, like Alec, was a generous person, who took great pleasure in sharing her wealth with her family, including for example paying for them to travel with her on holidays abroad.

Separately, several properties were settled on a “Grandchildren’s Trust” in 1993. Gary had married Anna in 1979, and they had five children: Iain, Andrew, Robert, Sarah and Hannah. Sandra had married Philip in 1982 and they had three children: Laura, Emma and Gregory. Although it is not of direct relevance to the issues, Gary and Sandra have each separated from their respective spouses. All the grandchildren were beneficiaries of the Grandchildren’s Trust, on a pro rata basis. That trust was wound up in September 2013 and the properties (by then worth a total of around £2.06M) were divided between the grandchildren on a per capita basis.

Alec’s death hit Jeanne hard, and she began intermittently living at Sandra and Philip’s home, 1 Beaufort Close, with them. Then between 2005 and 2007 a luxury basement flat was built and fitted out for Jeanne at 1 Beaufort Close, entirely paid for by her. She sold her matrimonial home at 47 Beaufort Road in 2007. For many years she then lived very happily at 1 Beaufort Close with Sandra’s family, cared for by them as her needs increased. In October 2012 Jeanne received a formal diagnosis of dementia, although there is a dispute as to when and how rapidly Jeanne’s mental condition deteriorated as a result of that dementia. By April 2016 Jeanne’s condition had made it impossible for her to continue living at home, and she moved to Torkington House care home, where she remained until her death in 2020.

Both the 2008 Will and the 2011 Will provided for legacies of specific, identified rental properties owned by Jeanne. The only difference between the two wills was that under the 2008 Will, two properties (21 Avenue Crescent and 45 Berrymead Gardens) were left to Gary or his children, whereas under the 2011 Will, all four of the named properties were left to Sandra and Philip. Otherwise the bequests in the two wills were in identical terms, with each providing for Jeanne’s chattels to go to Sandra, monies in accounts held with four specified institutions to go to Sandra, certain specified shares to go to Philip, and the residuary estate to go to Gary and Sandra in equal shares. Gary and Sandra were appointed as the executors. In practical terms, the 2011 Will left all of Jeanne’s estate to Sandra and Philip, since the specific legacies essentially exhausted her estate. Although Gary says he has doubts about the circumstances in which Jeanne created the 2008 Will, he accepts the validity of it on the basis that he says it represented broad equality between his and Sandra’s families.

Both wills were prepared by Mr Terry Jordan (“Mr Jordan”), a chartered tax adviser, following meetings with Jeanne. Mr Jordan’s practice was not to keep any attendance notes of his meetings with clients, but instead to rely on his correspondence with them as records. Jeanne’s signature to each will was witnessed by lay third parties, no solicitor was present on either occasion and Jeanne’s capacity to make a will was not assessed by any doctor at any stage. Overall there is, as a matter of simple fact, very little contemporaneous documentary evidence as to the preparation of the 2011 Will or as to Jeanne’s instructions or awareness as to its contents.

A key document, albeit one whose provenance and significance is disputed, was a handwritten letter from Jeanne, dated 10 November 2011, i.e. some 8 months after the 2011 Will, and addressed to Gary and Sandra, which gave an explanation as to why she had left her estate to Sandra and Philip (“the November 2011 Letter”).

In April 2013 Jeanne executed a codicil to her will (“the 2013 Codicil”) the sole effect of which was to replace Gary with Philip as an executor. Sandra and Philip claim that this was as a result of an altercation in March 2013 during which Sandra and Jeanne told Gary that Jeanne was leaving everything to Sandra, and Gary said he would sue Sandra when Jeanne was dead. Gary denies this altercation occurred, that he was told that this was the effect of any will, or indeed that he knew about either the 2008 Will or the 2011 Will, before Jeanne’s death.

During Jeanne’s lifetime, several of the properties which were the subject of specific legacies under the wills were either gifted by Jeanne to Sandra and Philip, or sold by Sandra and/or Philip using the LPA. Various issues arise as to whether those legacies have been adeemed and if so, what are the consequences.

Gary also challenges, on grounds of alleged undue influence, two earlier property transfers made by Jeanne in 2008, and also Jeanne’s payment for the basement flat at 1 Beaufort Close.

Including the challenge to the 2011 Will itself, there are nine transactions or groups of transactions in all which are challenged by Gary, on a multiplicity of grounds. The transactions are as follows:

For ease of exposition, in this judgment I have addressed the transactions in chronological order, sometimes in groups, making findings of fact and determining the various grounds of challenge to relation to each transaction.

This judgment is therefore structured as follows (with paragraph references for main headings):

This Claim was issued on 28 March 2022, with an Amended Claim Form sealed on 21 July 2022. Particulars of Claim, making all of the claims now pursued, were served dated 25 July 2022. An Amended Defence and Counterclaim was served dated 24 May 2023. This denied the claims in substance, although Sandra and Philip accept that they exceeded their authority as attorneys in some respects. Sandra and Philip sought an order pronouncing in favour of the 2011 Will and a grant of probate to them. An Amended Reply and Defence to Counterclaim was served dated 30 June 2023.

On 21 March 2023 Master McQuail ordered there to be a single trial of all issues in the claim. She also ordered the appointment of an interim administrator, to be joined as a defendant but not to take any active role. Instead she ordered that the proceedings be litigated between Gary on the one hand, in respect of his own claims and those vested in Jeanne’s estate as a derivative claimant, and Philip and Sandra on the other, at their own cost, subject to any costs orders made by the court. References to “the Defendants” in this judgment accordingly mean Philip and Sandra.

Thomson Snell & Passmore Trust Corporation (“TSP”) was appointed on 23 May 2023 as interim administrator, and it has accordingly taken no active part in the proceedings. It is currently anticipated by the parties that either way, this trial will resolve the issues in such a way that it will be unnecessary for TSP to act, although it may still be contended that TSP should be appointed to administer the estate pursuant to a full grant.

On 23 October 2023 Master McQuail ordered that the trial should be of liability and of any issues of principle as to quantum, but that the taking of any inventory, account or inquiry as to quantum should be dealt with subsequent to the trial. That has therefore been the basis on which the trial was conducted before me. In addition Master McQuail gave permission to both sides to call expert evidence in old age psychiatry, as to mental capacity, and vulnerability to undue influence. She also gave permission for written valuations, and if necessary evidence by report from a single joint expert in property valuation, in respect of the open market capital and rental values, at material dates, of a number of the disputed properties.

On 13 October 2025, Master McQuail heard two cross applications for additional disclosure, both of which she dismissed, albeit some documents were provided voluntarily. The Defendants’ application sought wide disclosure of information as to Gary’s income from MacDougall & Savage, which was refused on the basis that such disclosure was not reasonable or proportionate. The learned Master’s reasoning was that once Gary had been given his father’s share of the business and had acquired the other half, the benefits to him stopped, subject to allowing for the value of the goodwill in 1990-91. Gary’s application sought disclosure of Sandra and Philip’s bank statements from 2010 onwards. This was refused on the basis that the Defendants were very likely to be ordered to account for their full conduct as attorneys, but that depending on the outcome of the trial, the ordering of an account might prove unnecessary.

I note that both counsel accept that as trial judge I am not bound by Master McQuail’s conclusions or observations when dismissing those applications.

On 9 December 2025, a Pre Trial Review (“PTR”) took place before me. Among other things I made further orders in respect of the written property valuation evidence which had been obtained from CoreProp Group (“CoreProp”) as single joint expert. The final position is that some but not all of the valuations are agreed. That evidence was provided by written report only.

At trial Gary was represented by counsel Mr Harry Martin, and Sandra and Philip by leading counsel Mr Alexander Learmonth KC. I am very grateful to both counsel for their able oral and written submissions and for their excellent management of the trial and marshalling of the evidence and law, in this multi-faceted case.

Over the course of the trial, I heard oral evidence from a total of 22 witnesses of fact, and received written statements from several more. The witnesses included key professionals who had been involved in the transactions. I also heard oral evidence from the two experts in old age psychiatry, as well as receiving their reports and joint statement. The documentary evidence included contemporaneous correspondence, documents relating to each of the transactions, Jeanne’s medical records and bank statements, and also photographs and videos of Jeanne, which were with one exception on social occasions.

However, with the exception of the November 2011 Letter (the truth of which is contested), it is striking that there was very little correspondence emanating directly from Jeanne herself. I was told she could not use a computer and stuck to her trusty typewriter, so there are no emails or word processed documents from her. Most of the correspondence concerning the transactions comes from Philip on Jeanne’s behalf, including where letters had been addressed to Jeanne. This is a point of contention between the parties, in that Gary relies on this feature in support of his undue influence case and in saying that Philip was the driving force behind the transactions, whereas Philip and Sandra say that Philip was simply acting as a normal, supportive son in law.

One of Mr Martin’s overarching submissions was as to the lack of Jeanne’s voice in all the documents. He said that she appears to have been a bystander in these transactions, that they were being done to her not by her, and that Philip’s influence was pervasive. In response, Mr Learmonth said this was a probate claim so inevitably the star of the show was not present. He emphasised that the court should be striving to recognise her autonomy as what he said was a well, 77 – 81-year-old woman. He said freedom of testamentary disposition is a key principle of English law, and indeed a testator is free to behave unreasonably or capriciously, without needing to have regard to relevant circumstances, unlike a trustee.

This principle of respect for testamentary freedom - where a testator has capacity and is not subject to undue influence, the latter having a different, more stringent test in the context of wills - was recently highlighted by the Court of Appeal in Rea v. Rea [2024] EWCA Civ 169; [2024] W.T.L.R. 701 (“Rea”). There the Court of Appeal overturned a first instance finding of undue influence. There is a similar principle of freedom to make gifts, although undue influence principles are different in that context, and the mental capacity test is a sliding scale depending on the circumstances, as I outline below.

Nevertheless, finding Jeanne’s voice in this case has not been easy. It is clear that she was happy with her living arrangements in her later years, and that she was very generous, especially towards her family. It is clear that working in the business for as long as she could was an important part of her identity, but also that she had been content to leave financial decision-making to Alec during their marriage. It is also clear to me that over the years after Alec’s death she became much closer to Sandra’s family than to Gary’s, but that she was never estranged from the latter. Ultimately I have simply had to piece together the fuller picture, and how it changed over time, from multiple sources of evidence, and to consider the available evidence on each of the transactions in turn, which was often limited and contested.

This evidence includes the witness evidence, but as is so often the case in probate disputes, evidence from family members has clearly become polarised and coloured by the emotions of litigation. Furthermore, the professionals understandably had virtually no independent recollection of events given the lapse of time, and in most cases had kept few notes. Indeed, as more than 10 years had elapsed since many of the major events, the evidence of most of the witnesses was significantly affected by erosion of memory, confusion over dates and/or a tendency to mix memories with inference from documents. Both counsel referred me to the remarks of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [2020] 1 CLC on the best approach to the recollections of witnesses, there in a commercial case, and his reasons for giving precedence to the available documentary evidence and inherent likelihood of events.

A significant amount of guidance has been given by the courts in recent years on assessing witness evidence, and the relative value of contemporaneous documents. This is potentially just as relevant to probate cases as commercial ones. The most recent guidance is mainly to the effect that witness evidence should not be discounted but should be carefully weighed against the available documents and inherent probability of events, but that much will depend on what evidence is available to the judge. In the recent case of Mohammed v Daji [2024] EWCA Civ 1247 Newey LJ (giving the lead judgment in the Court of Appeal) summarised the guidance as follows, at [45]:

“The significance of evidence as to recollection:

[45] Judges have for many years remarked on the vulnerabilities of evidence as to what witnesses remember. Popplewell LJ recently discussed human memory and how witnesses can come to give mistaken evidence in his 2023 COMBAR lecture, Judging Truth from Memory: The Science. In Gestmin… at paragraph 22, Leggatt J went so far as to suggest that ‘the best approach for a judge to adopt in the trial of a commercial case is… to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’. However, Popplewell LJ explained in his lecture that he did not himself wholly agree with this remark and in Natwest Markets plc v Bilta (UK) Ltd [2021] EWCA Civ 680 the Court of Appeal pointed out at paragraph 50 that ‘it is important to bear in mind that there may be situations in which the approach advocated in Gestmin will not be open to a judge, or, even if it is, will be of limited assistance’. In Kogan v Martin [2019] EWCA Civ 1645, [2020] FSR 3, the Court of Appeal said at paragraph 88 that ‘a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence’” [emphasis in original].

I have therefore carefully considered the documentary evidence, and the inherent probability of events, in testing the accounts of the witnesses. I have borne in mind how the lapse of time and effects of litigation may have affected them. I have also sought to take account of each witness’s evidence as a whole when assessing them. Even where I have rejected the evidence of a witness on one point, this does not mean I have rejected everything they say.

I will record at this stage my general observations about each of the witnesses or groups of witnesses for the two sides. However these should be read together with my fact-findings on particular issues later in this judgment, when I also set out the detailed history.

I note that the trial witness statements were required to be prepared in accordance with Practice Direction 57AC (para. 17 of the case management order of 23 October 2023). Sometimes, on both sides, the witness statements gave the impression of having had significant legal involvement in the drafting. I say no more about that, but on contentious issues I have placed significant reliance on what witnesses said when they were giving their oral evidence, rather than what was in their statements (which were mostly prepared and served in about February 2025).

Prior to turning to the individual witnesses, I should mention an issue which arose during the trial as to the statements of four witnesses where notices of intention to rely on hearsay evidence were served under Civil Evidence Act 1995 (“CEA”). No issue arose as to the statement from David Hill, served on behalf of the Defendants, who had sadly died. His statement dated 24 January 2023 was admitted into evidence without objection.

The other three statements had been served on behalf of the Claimant. They were from Sarah MacDougall, Gary’s daughter; Laura MacDougall, Iain’s wife; and Malcolm Wilson, who had worked at MacDougall & Savage. CEA notices were served in relation to each shortly before trial. In each case, the witness relied on medical reasons for not attending to give evidence, and did not consider that giving remote evidence was an acceptable reasonable adjustment. While Mr Learmonth did not take issue with the medical reasons themselves, he submitted that I should exclude the statements as being of very limited value if the witnesses could not be cross examined. This was because their evidence went primarily to the key contentious issue of Jeanne’s capacity over time.

In a judgment given on the third sitting day, I allowed the statements in, reflecting the fact that appropriate medical explanations had been provided as to why the witnesses were unable to come to court, but I said that their inability to attend inevitably went very much to the weight I could give their evidence. It was and remains my view that on a highly contentious issue, namely whether Jeanne had capacity at specific points in time, when on any view her mental state declined over time so that she did ultimately lose capacity, I would have to be extremely cautious with any such untested evidence. I concluded in particular that I would not be able to rely upon statements that had not been tested in cross-examination as corroboration of other statements on the question of exactly what capacity she had at any particular time.

Gary and Anna both gave oral evidence, as did four of their children: Iain, Andrew, Robert and Hannah. I also heard from Robert’s partner, Ella Sinton. A statement from one of the business’s employees, Roland Orton, was accepted into evidence without him being required to attend for cross examination. The Claimant also relied on the evidence of Keith Rogers, an accountant who acted for Gary, Alec and at one stage Jeanne, and was one of the professionals giving tax advice to Jeanne during the period 2004 to 2013.

Gary gave evidence over about a day. He was a forceful, dominating personality who has been successful in running his business, and who clearly believed strongly in the correctness of his own position. He was inclined to argue, but his bulletproof self-confidence also led him to make admissions against his interests that a more cautious person would have resisted. As such he was quite easy to read. He is someone who is entirely comfortable having confrontations and does not seek to avoid them, but I have no doubt that others avoid telling him things because they do not want a confrontation.

In my view Gary is entirely convinced in his own mind that his mother’s estate should have been divided equally between himself and his sister, as his father by all accounts would have wanted, and since this has not happened, that this must be because Jeanne lost mental capacity and/or because Philip and Sandra manipulated her to leave everything to them.

Mr Learmonth described Gary as insensitive, overbearing and combative, a description which finds support in both uncontested evidence and some of Gary’s own responses in the witness box. This included as to a scene at Jeanne’s funeral, when he handed Sandra a letter setting out his case that Jeanne’s estate should have been divided equally and threatening legal action if this was not achieved. It is not disputed that this led to a difficult and emotional confrontation with him at the funeral. While he accepted this was not the best time “from a grief point of view”, he said it was during the Covid lockdown, he wanted to avoid Sandra denying receipt, and it had achieved the desired result of starting the litigation process, so he was “patting himself on the back.” There was also an incident at Christmas 2003 at which Gary made what I accept were Islamophobic remarks to Ita Coffey-Aladdin, Philip’s half-sister, who had converted to Islam, which was upsetting and confrontational, although Gary treated it as amusing (Ita’s written evidence on this was not challenged). Gary also admitted making a cut-throat gesture to Philip outside court on the first day of proceedings.

I do accept Gary’s consistent evidence that he was fond of his mother and that in many respects they had a good relationship. However I also accept the evidence from several of the Defendants’ witnesses, including Emma, that Gary became annoyed with his mother and sometimes shouted at her at work, because she was becoming less capable as she got older and as her mental abilities declined, and that this upset Jeanne and made her tearful. Given Gary’s clear propensity for rejecting, arguing with or ignoring views different from his own, it is also credible that Jeanne would have avoided telling him things that she believed he did not want to hear.

I further accept Mr Learmonth’s submission that Gary’s evidence, especially in his witness statement, displayed a lot of wishful thinking. This was undoubtedly related to his conviction in the rightness of his own position. For example, the Particulars of Claim pleaded in terms at para. 9 that “...it was the long-standing intention of the Deceased and Mr MacDougall, which they expressed to the Claimant and the Defendants, that the Claimant would inherit 21 Avenue Crescent… and 45 Berrymead Gardens…”. However, in cross examination Gary admitted that Alec had not promised him any specific property at all. Further, although he initially said his mother had, he then said that the promise was that 45 Berrymead Gardens would go to “the MacDougall family” (because that was what the 2008 Will provided) and later that Jeanne had actually promised him one out of a pair of properties in two cases (21 Avenue Crescent/22 Avenue Gardens and 45 Berrymead Gardens/9 Stuart Road). In my view this lack of clarity about what exactly he claims was promised shows that this was really about Gary’s belief that there should have been a 50/50 split, and possibly his mother wanting to avoid a confrontation with him as far as possible, if she decided to do anything else.

There is one point on which I reject Gary’s evidence completely. This concerns a meeting at Sandra’s home on 7 March 2013, when Sandra and Emma say that Gary was told, by Sandra and by Jeanne, that Jeanne was leaving everything to Sandra, and Gary responded angrily that he would sue Sandra when Jeanne was dead. I deal with this in more detail below, but the Defendants’ account is supported by a note of the event prepared by Philip and signed by Jeanne and Sandra and dated the same day, on the advice of their solicitor David Tracey, to whom Philip reported the matter. The Defendants’ case is that this also led to the execution of the 2013 Codicil replacing Gary an executor with Philip, which took place shortly afterwards. Gary denies that this altercation occurred at all, claiming that he did not know about the 2011 Will until after Jeanne’s death. The Defendants’ case on this point is strongly supported by the contemporaneous documentary evidence and I reject Gary’s account as not credible. It follows that I have concluded that Gary knew certainly from March 2013 onwards that Jeanne had essentially left her estate to Sandra (or to Sandra and Philip).

More generally I have treated Gary’s evidence with significant caution. It is strongly coloured by his perception of the merits of his case, and in at least this one respect he must know it is untrue. However in many respects he was telling his truth as he saw it and he was often frank enough to make admissions against interest (as I set out in my fact-finding on specific transactions below), which has helped me build a fuller picture. Where his evidence is consistent with the available contemporaneous evidence or inherent likelihood of events, I also accept it.

Anna, who is married to Gary but from whom she is separated, was a straightforward witness who came across as very genuine. Where she had made an error in her evidence, she readily accepted it, seeming grateful for the correction, for example over the date of an incident on holiday when Jeanne behaved oddly during the sale of a car by Gary. Unsurprisingly, her recollection was hazy on many matters from such a long time ago, especially as to the dates of particular events, but she readily acknowledged both when she could not remember something and when she could. She said at one point that she never really had serious one-to-one conversations with Jeanne because it was not that sort of dynamic.

Anna gave evidence that both Sandra and Jeanne had been supportive of her in August 2008 when she discovered Gary was having an affair. This affair was relied on by the Defendants as contributing to Jeanne’s reasons for making the 2008 Will, and they also contended that Jeanne believed in 2011 that Gary was “up to his old tricks”, and that this was part of the reason for his effective exclusion in the 2011 Will.

Anna firmly denied any knowledge of any affair other than the one in 2008, and I accept her evidence on that. Indeed, having heard all of the evidence, my assessment is that it is unlikely that any affair of Gary’s, or perception of Jeanne’s to that effect, was a factor in her making either of her wills. It simply does not fit with the timeline, other contemporaneous documentary evidence or indeed with my assessment of Jeanne, who I do not perceive as punitive in that way. I therefore discount this as a factor or explanation.

Ultimately Anna’s evidence as to her interactions with Jeanne was limited, and this, combined with her unsurprising difficulty with exact dates, means it was of limited assistance to me on the capacity issues. I do however accept her evidence that by 2014, Jeanne’s engagement with Iain’s new baby daughter Isobel, Jeanne’s first grandchild, came across as Jeanne simply appreciating her as a lovely baby (which in my view is consistent with the photos taken on that occasion), rather than Jeanne really knowing who the baby was.

Accordingly, I accept Anna’s evidence as far as it went, but it was of limited assistance on the difficult issue of the precise timeline of Jeanne’s capacity.

Iain was a thoughtful, intense, and slightly anxious and defensive witness, who came across as doing his best to assist the court. Unlike many of the wider family, he has moved away from the Acton area, to Cheltenham, with his own family. He described Jeanne as “deflated” after Alec’s death, which I accept as accurate. He said that when he returned to the UK in 2008, after a year abroad in Australia, Jeanne was different and had slowed down, and was not as competent in the office as she had been. By 2009 he moved away and saw less of her.

Iain was clearly hurt and annoyed by what he perceived as Sandra and Philip having made the relationship between Jeanne and the MacDougalls more distant over time, including claiming that the MacDougalls did not get anything of sentimental value of Alec’s. His particular focus was on his wedding in March 2013, not so much because Jeanne did not attend it (in New York) but because he was given a letter, which he said had clearly been written by Sandra, said to enclose a snuff box, which he said was just a trinket. Overall his perception was that by this time Jeanne was not really engaging with him.

I accept Iain’s evidence, which was consistent with other evidence but downplayed by the Defendants, that from 2008 onwards, Jeanne became gradually more distant from the MacDougall side of the family, although they were never estranged. I also accept that he and others had a genuine perception that Sandra was acting as a “gatekeeper” and making it harder for those on the MacDougall side to maintain a real relationship with Jeanne, and that this was so even though Jeanne continued working at MacDougall & Savage until late 2012/early 2013. This also meant his opportunities for interaction with Jeanne at the critical times in 2008 to 2013 was limited, and his evidence as to her capacity was really limited to 2008 and late 2012/early 2013.

Iain clearly identified with and supported his father. I nevertheless accept his evidence as far as it went, albeit I consider that this support to some extent affected his evidence and recollections of Jeanne’s capacity.

Gary’s second son, Andrew, has worked in the MacDougall & Savage business since the early/mid 2000’s. He lives at 4 Launders Gate, part of a development built by MacDougall & Savage, and owned by Gary. He therefore saw Jeanne frequently while she was still working.

In January 2008 Andrew was appointed as a director of Acton Mill Hill Development Company Limited (“AMH”) and in the same year Jeanne’s 50% shareholding (which had been Alec’s) was transferred to him. The other 50% of the shares were held by Gary, who was also a director. AMH was a company associated with the MacDougall & Savage business, from which George had resigned in or around 1990 when he and Alec retired. The Defendants rely on these transactions as showing that Jeanne was also making gifts to Gary’s side of the family in 2008. On 16 April 2013 Jeanne executed a transfer of a property known as 84 St Margaret’s Road to AMH. Gary claims, but the Defendants dispute, that this property was always beneficially owned by AMH anyway. The transaction is not directly in issue, but is relied on by the Defendants as evidence of Jeanne’s capacity in 2013. Andrew’s belief, which I accept because it is the most likely inference from the facts, is that it was Alec and Gary’s longstanding intention that this property should effectively be transferred to Andrew. I also consider that the 2013 transfer of 84 St Margaret’s Road was regarded by all concerned as a formality and therefore is weak evidence of Jeanne’s capacity at that time.

Andrew came across as having a strong and longstanding animus against Sandra and Philip, and as firmly identified with his father. He had a strong belief that Sandra had for many years wanted to help her family at the expense of Gary’s. This manifested for example in a dispute in 2013 over what had been Alec’s private number plate. Andrew said that he had tried to ask Jeanne if it could be transferred to him for his new car, but said Sandra had taken over the conversation and insisted it should go to Gregory, even though Gregory had not yet passed his driving test. In the witness box Andrew also claimed, for the first time, that after Alec’s death Sandra and Philip went through Alec’s property taking everything of value. I am not asked to make any finding about the truth of this allegation and do not do so, but it illustrates the strength of Andrew’s negative feelings towards the Defendants.

Andrew’s evidence was that when he visited Jeanne at 1 Beaufort Close, it felt like a supervised visit, because when he spoke to Jeanne, the answers would come from Sandra or Philip, and they appeared to be very clearly in control. The specific examples he gives of Jeanne’s difficulties date from 2011 onwards. He relates an occasion when she got lost while driving to or from work in 2011. He also said that in around 2011 he noticed she was “blagging” her way through the office, and no longer challenged tenants’ excuses as she would have done in the past. When he challenged her, he said she said she knew what she was doing. He also said she started making mistakes like paying cheques twice.

This evidence was persuasive in its detail, and sounded like Jeanne masking her difficulties. I have accepted it especially because it fits with other timeline evidence, this being a period when on the medical evidence Jeanne’s mental abilities would have been gradually declining.

Overall, although I consider Andrew’s perceptions to have been strongly coloured by his resentment of what he sees as Sandra and Philip’s poor behaviour, his identification with Gary, and by this litigation, I have accepted his evidence around Jeanne’s difficulties because it is consistent with other available material or inherently likely to be true.

Robert and his partner Ella Sinton both gave evidence. Both came across as slightly combative and neither was undermined by cross examination, although I consider that their evidence was coloured by the polarisation of this litigation.

Their relevant experience of Jeanne was quite limited. Robert’s evidence was that from about 2012 his conversations with Jeanne became more vague, and later there was an incident when she made inappropriate remarks to him for a grandmother.

Ella said that after she got together with Robert in June 2012, she met Jeanne, who she said had clear signs of Alzheimer’s. She said Jeanne always thought she was Hannah. She said Jeanne’s conversations were very generic.

I accept their evidence as far as it went, which was that by about mid-2012, Jeanne was showing signs of dementia during conversations with her, but was still able to maintain a conversation.

Hannah was the youngest grandchild, having been born in 1995. As such she was a teenager at the time of most of the events in this case. She gave evidence remotely from Sydney, Australia. She also has a home at 6 Launders Gate, owned by Gary.

Although Hannah said Jeanne mentally deteriorated, she was quite non-specific as to dates, though her evidence really related to a period from about 2013. She said that at her brother’s wedding party in 2013, they took funny photos with Jeanne who did not seem mentally well. She said Jeanne sang inappropriate songs at Hannah’s birthday in 2015.

Again, while I accept Hannah’s evidence that she noticed Jeanne’s mental abilities and behaviour control deteriorate over time in the period from 2013, this does not give much specific assistance over the timeline of Jeanne’s decline. I also consider that her written evidence in particular was coloured by identification with her father’s case.

Keith Rogers is an accountant who began working for Alec a couple of years before Alec’s death, and who acted for Jeanne until 2012. He prepared her tax returns up to 2012. Jeanne changed accountants to GKP Partnership (“GKP”), who also acted for Philip and Sandra, sometime between June and September 2013. Mr Rogers also worked for Gary and the MacDougall & Savage business, and he is and was a friend of Gary’s.

Mr Rogers asserted that Jeanne was having problems at work from as early as 2004 to 2006, and compared these to his mother’s dementia, which he said was not as bad as Jeanne’s. He said that she started missing details at work from 2006. He accepted in cross examination that this could be natural aging. These dates are considerably out of line with those from other witnesses, on both sides, as to when Jeanne started showing signs of dementia. In my view Mr Rogers was mixing up dates and/or was confusing signs of ordinary aging with dementia. I do not accept his evidence, such as it was, that Jeanne had apparent signs of dementia this early.

Mr Rogers did not have attendance notes and had refreshed his memory only from the available correspondence, which was quite limited.

His evidence was that in about 2005/6 Jeanne wanted to give one of 21 Avenue Crescent and 22 Avenue Gardens to Gary and one to Sandra, as lifetime gifts, although he was not sure which way round. He said conversations between him and Jeanne about gifting properties went on for years and eventually he realised he would only be able to sort it out by seeing Jeanne at home with Sandra and Philip. He said his impression was that Jeanne might be saying different things to Gary in the office and to the others at home, and he wanted clear instructions. He arranged a visit to Jeanne at 1 Beaufort Close in late 2011/early 2012, but he said Sandra and Philip would not engage with him, and he could see Jeanne was suffering from dementia, so after that he gave up trying to get instructions on any property gifts. He said nobody mentioned the 2011 Will on that occasion.

Overall I found Mr Rogers somewhat underwhelming as a witness, but I do consider that he was seeking to assist the court as far as he could. He came across as vague and unreliable about dates, non-specific about details of conversations and seems to have been curiously passive as a professional adviser. I accept his evidence that this meeting in late 2011/early 2012 happened, and that Sandra and Philip were disengaged, but this is not inconsistent with either side’s case. I also accept his evidence in relation to the hotel meeting to discuss the Grandchildren’s Trust on 14 December 2012, which is relevant to my assessment below of Philip’s evidence.

Gary also relied on a witness statement from Roland Orton, an employee of MacDougall & Savage from 1987. He was not required to attend for cross examination.

In his statement Mr Orton said that Jeanne’s health deteriorated, with things starting to change in around 2010. Among other things he said he recalled that she started regularly not signing cheques; that on occasions when he gave her cash payments of rent from tenants, she looked glazed and did not seem to recall who the tenants were, and that on one occasion in 2011 she drove to the old office by mistake. He confirmed that Jeanne and Gary worked together most days and they got on well.

Philip and Sandra both gave evidence. In addition I heard evidence (or received uncontested statements) from: two of their children, Laura and Emma; several other family members plus one other employee; and the witnesses to the 2011 Will and 2013 Codicil. As to professionals, I heard from solicitor Mr Tracey, tax adviser Mr Jordan (who prepared the 2008 Will, the 2011 Will and the 2013 Codicil), accountant Clare Carter, and consultant psychiatrist Dr Sujoy Mukherjee, who assessed Jeanne’s mental capacity in February 2015 in relation to the transfer of 21 Avenue Crescent.

Although Sandra and Philip separated shortly before Jeanne died, Sandra said they remain on good terms. She confirmed that Philip was now living at 21 Avenue Crescent.

Sandra had quite a flat affect giving evidence. She appeared almost entirely unfamiliar with the detail of the transactions when cross examined. She readily confirmed that she left matters concerning her properties and finances to Philip, as she had previously done with Alec. In response to many questions relating to the transactions she simply said that she did not know. As to the basement works, for example, she said she did not really take any notice of the costs.

She said, albeit non-specifically, that Jeanne had entered into transactions because she wanted to, and because she was part of their family. Sandra accepted that Philip had been the one who arranged the transactions, but she said this was probably because Jeanne asked or wanted him to do so. She claimed Jeanne thought Gary had “had enough”, because he had received MacDougall & Savage.

The drafting of Sandra’s witness statement gave the impression that she knew far more than she was able to confirm in evidence. For example, in her statement she commented on what was happening in the MacDougall & Savage business, but then said orally she knew nothing about it. Her statement included an account of a conversation with Jeanne said to have occurred shortly before the 2011 Will, but she said orally that she could not remember the conversation or when it happened. She also said in oral evidence that she was unaware that the 2011 Will provided for the residuary estate to be divided between her and Gary, or what this meant.

In substantial respects, Sandra was therefore a witness who simply did not come up to proof. She said that she did not know, or could not remember, large parts of what was in her statement when asked about its contents in cross examination. I find myself unable therefore to accept any of her witness statement as evidence, except where the contents are not in dispute or are otherwise confirmed. There are nevertheless parts of her oral evidence that I have accepted, as I make clear in my fact-finding below.

Sandra’s lack of knowledge or recall was especially striking in relation to the use of Jeanne’s HSBC bank accounts, to which Sandra had been added as a joint account holder in April 2013, and where she must have been an active participant. For some transactions, such as shopping and cash withdrawals in October 2013, she claimed Jeanne undertook them. Mostly though she said she could not remember, even for very large transactions, or said Jeanne had always paid and would have been happy to continue to do so.

The spending included very substantial sums in about 2017 on Laura’s and Emma’s weddings, and on cars and on holidays, including after Jeanne had moved to Torkington House. It included a withdrawal of £125,000 from Jeanne’s Barclays account on 12 February 2014, recorded simply as being a payment to Sandra and Philip, and a further payment of £50,000 on the same day, both of which Sandra said she knew nothing about.

On the use of the LPA, Sandra’s oral evidence was that Jeanne had always used her money to pay for things for all of Sandra’s family, so Sandra assumed that she could just continue doing this herself. She said she did not realise she should take any advice on what she could do.

Sandra was unable to explain why, in an inheritance tax (“IHT”) declaration made on 10 July 2020, following Jeanne’s death, she and Philip had stated that the only gifts Jeanne had made in the previous 7 years were of 21 Avenue Crescent and a car purchase, despite all of this extensive gifting to themselves and their family, including for the weddings.

I found Sandra a problematic witness overall. I accept her evidence that she left all financial and property matters to Philip, which was patently obvious. It is not in dispute that she took on the lion’s share of responsibility for caring for Jeanne as Jeanne became increasingly infirm, with the assistance of her family. It is also plain that Sandra and Philip and their children had come to rely heavily on Jeanne’s generosity, indeed I would go so far as to say, to take it for granted. In connection with this, I accept Gary’s assertion that essentially neither Philip nor Sandra worked from when Jeanne moved in with them until her death, because they lived off Jeanne’s, and their own, capital and rental income.

However, I also consider that often when Sandra said she did not know or could not remember in answer to a question, especially in relation to the Bank Transactions after 2012 or the IHT return, she was just blanking in panic because she knew that what she had done could not be justified. As such, I cannot find her to be a reliable witness.

However, if Sandra was problematic as a witness, this was nothing compared to Philip. Like Sandra he repeatedly gave answers in cross examination that he could not remember or did not know, but in his case this was in relation to matters for which he was personally responsible, in particular across the many financial and property transactions. In his case I simply do not believe he was telling the truth on many of the occasions when he claimed not to be able to remember. They were far too wide-ranging and convenient for him. I also consider that Philip’s answers were often calculated to present him in the best light and were frequently evasive.

It is obvious from the contemporaneous documents that Philip took a detailed and hands-on interest in all of Jeanne’s financial and property affairs, at the latest from 2007 when Jeanne was living with them, and in reality probably earlier from after Alec died in 2002. As Mr Martin submitted, it is striking how this correspondence was entirely handled by Philip on her behalf, even when addressed to Jeanne (whether the correct interpretation is benign or malign). This was not a bit of occasional helping out; the documents support the conclusion that Philip essentially managed Jeanne’s property and financial affairs at home, even during the period when she was still able to work in the office. I do note it was uncontested that Jeanne left such matters to Alec when he was alive. Furthermore, Sandra agreed that Jeanne trusted Philip and Sandra to look after Jeanne’s financial affairs, which I accept.

However in Philip’s oral evidence, having initially agreed that Jeanne left her finances and property matters to him after Alec died, he then changed his position at least twice, first saying that she managed her own affairs straight after Alec died, implying this later changed, then saying he only collected rent and “did not really manage Jeanne's financial affairs”, and finally replying, in response to the question, “Q. So you say you never managed her financial affairs?”, “A. I do not know to what detail you mean, I am sorry.” This latter was frankly an evasive answer. One could see in real time Philip giving an initial honest answer, then realising it was against his interest, retracting it, and then substituting an evasive one. This was a pattern which characterised his evidence.

Another example related to the handling of Alec’s estate by solicitors, Redferns. The correspondence on this was addressed to Philip, although it related to Jeanne, but he claimed not to know why the solicitors were writing to him, which is simply not credible.

I also reject Philip’s evidence that there was an altercation between him and Gary at the end of the meeting at the Double Tree Hilton hotel on 14 December 2012, witnessed by Mr Rogers, in which Gary said that he was “not rolling over on this [the Grandchildren’s Trust] because I’m not being left anything in Mum’s will,” and that this was witnessed by Mr Rogers, who apologised on behalf of Gary. Mr Rogers denies that any such exchange took place or that he gave any such apology. I consider that such an exchange would have been memorable to Mr Rogers if it had happened, and as already indicated I accept Mr Rogers’ evidence that it did not. That there was no such altercation is also supported by the exchanges of emails between Gary and Philip which followed shortly this meeting, about which properties should be allocated to which children, the tone of which is not consistent with such an altercation having happened. Finally, I have accepted that an altercation in which Gary was told about Jeanne’s will happened later, on 7 March 2013. I accept Mr Martin’s submission that Philip’s evidence is internally inconsistent in alleging that altercations happened on both dates, since it is unlikely that Gary would have reacted as alleged on the later date if the earlier incident had also happened. My conclusion is that no such incident occurred in December 2012.

Mr Martin submitted that Philip had also demonstrated a propensity not to tell the truth and to behave reprehensibly. In particular he relied on the following additional matters:

Of these, my assessment is that the first two do indeed support an inference that Philip is willing to make false statements when this is convenient for him. This is especially striking in relation to the IHT return, which I consider he must have realised was untrue given the many very substantial transactions made through Jeanne’s bank account. He accepted in evidence that the statement on the return was false, but said it was not an intentional lie. When it was put to him that he must have known that his daughters’ weddings were paid for through that account, he was unable to give any explanation, again just saying that he did not know. In my view he probably realised when the return was prepared that he should declare the large bank transactions, but decided it was too complicated to open this up, especially when Gary was already threatening litigation.

I consider that the salience of Mr Martin’s other two points is more that they illustrate how Philip and Sandra treated Jeanne’s assets as their own, certainly after 2012.

Overall my conclusion is that I do not consider that Philip was an honest witness. Rather than giving evidence in a manner intended to assist the court, I consider it was directed at protecting his own interests as he saw them in the moment. This was why many of his answers were evasive and why he frequently said he did not know things when in my view he could have been much more forthcoming. This assessment is relevant to a number of my conclusions later in this judgment on specific transactions. It follows that I have essentially only accepted his evidence where it is corroborated by reliable evidence, or is inherently likely to be true.

Laura is Sandra and Philip’s eldest child. She married Henry Hill in August 2017, the costs of the wedding being paid for from Jeanne’s account. On 30 March 2016 Philip granted a lease of the GFF 22AG to Laura and Henry, using the LPA, for a premium of £400,000. Separately, Laura disclosed a 10-minute video of an interview she conducted of Jeanne in 2010 for a university project, which I viewed.

In my view Laura’s evidence was strongly coloured by her identification with her parents’ side in this litigation and by defensiveness in relation to both the GFF 22AG transaction and the payment of the wedding costs. I consider that this led her to overstate Jeanne’s capacity, especially in 2016 and 2017, although she may well have persuaded herself that what she was saying was true. I do not consider therefore that her evidence was reliable on the capacity issues.

Overall, while I accept she believed she was assisting the court, I am cautious about accepting her evidence on contentious issues, except where it was supported by other, reliable material. Laura said that Jeanne had said she intended to pay for Laura’s wedding, and I accept that this as true, as it is inherently likely.

Henry provided an unchallenged statement as to his relationship with Laura, general interactions with Jeanne and as to the purchase of the GFF 22AG. He did not comment on Jeanne’s capacity. I accept his evidence as far as it went.

Emma is Sandra and Philip’s younger daughter. Sandra and Philip granted a lease of a ground floor flat at Argyle Road to Emma and her partner in September 2016, and it was then substantially refurbished over the next 18 months. The costs of Emma’s wedding were paid for from Jeanne’s account in 2017/2018.

Like Laura, I consider that Emma’s evidence was coloured by her identification with her parents in this litigation. This was especially true with her evidence as to capacity, where Emma resisted almost all suggestions in cross examination that Jeanne had not been capable of making decisions, even as at 2017, until she was taken to medical records from February 2017 which forced her to concede that this could not have been the case. She claimed not to know whether her wedding had been funded from Jeanne’s money or by her parents, which is inherently unconvincing given what she must have known about the family’s circumstances and Jeanne’s previous generosity.

Emma also gave evidence about Jeanne being upset at home after Gary had been angry with her at work. She also witnessed the end of the altercation on 7 March 2013 involving Gary. On these points I essentially accept her evidence, as inherently likely to be true or supported by other evidence.

Overall, while I accept she was seeking to assist the court, I am cautious about accepting her evidence on issues in dispute, especially around capacity, except where it is supported by other material or is inherently likely to be true. Emma said Jeanne had always wanted to help with the costs of their weddings, and again I accept this as very likely and so true.

Jane Thomas is Philip’s older sister. She is a psychotherapist and has lived in Ireland since 2000. She saw Jeanne and Philip’s family periodically and looked after Jeanne for a week in what might have been either 2012 or 2013.

Jane clearly disliked Gary, who she described as racist and misogynist, in particular as a result of the 2003 incident involving Ita, which she did not agree was not intended to cause offence.

Jane said she was not aware of the 2011 Will at the time, which I accept. While she commented on Jeanne’s apparent capacity, this was with hindsight and it was not easy for her to be clear about dates, as well as relating to periodic visits. Her evidence also came across as coloured by her identification with Philip’s side. She resisted making any concessions, even clearly reasonable ones. In the round, her evidence did not really assist me in determining the matters in dispute.

Jane became quite upset at one stage when it was pointed out that she had received a payment of about £800 from Jeanne’s account in April 2017. She was unable to explain what it was and expressed forcefully that it would have been wrong to have taken money off someone who was then in a care home. I accept what she said about this.

Edyta worked as a cleaner at the MacDougall & Savage offices. She was a native Polish speaker who spoke some English. She gave evidence with the assistance of an interpreter.

Edyta’s evidence was that Jeanne appeared to cope very well at work, including speaking to clients. She also said that originally Gary and Jeanne had got on well at work but that later there was a pretty unpleasant incident because of the way he acted towards her. She acknowledged that she could not be sure about dates at this distance in time.

Edyta’s evidence was challenged by Mr Martin because Gary had dismissed her then husband for misconduct, who also worked for MacDougall & Savage.

I accept Edyta’s evidence that the working relationship between Gary and Jeanne worsened over time, which is also supported by other evidence. I do not consider that the evidence as to Jeanne’s ability to work adds much, given its limitations as to dates.

Julia was Jeanne’s niece. As such, she was the only family member giving evidence who was essentially independent and not obviously aligned with either side of the family.

Julia was an open and straightforward witness who came across as simply seeking to assist the court. I accept what she said in both her witness statement and oral evidence, although her meetings with Jeanne were only periodic. Julia referred in her statement to a meeting with Jeanne in September 2012, at her own parents’ wedding anniversary, when she says there was nothing to suggest Jeanne was in cognitive decline and that she seemed very happy to be engaged with other people. However at a later meeting in Christmas 2014, Julia said she noted a decline in Jeanne, who was less chatty and spontaneous, and although Jeanne showed an interest in Julia’s family, she seemed tired and confused.

Julia said that Jeanne had a very close relationship with Gary, Anna and their family.

The Cliffords witnessed the 2011 Will. They are good friends of Philip and Sandra, and Lloyd also did some handyman work for MacDougall & Savage. Lloyd gave evidence remotely from British Columbia, Canada.

Lloyd recalled visiting 1 Beaufort Close, specifically for the purpose of witnessing Jeanne’s will, and that she answered the door. He could not recall how the arrangements were made, but said it was possible this was by Philip or Sandra. He could recall witnessing Jeanne signing the will. He said there was no other discussion at all about the will. He was not sure if Sandra and Philip were present, but assumed they were. The whole thing took about five minutes. Lloyd was a straightforward, forthright witness whose evidence I accept.

Anita had no real recollection of the occasion at all, so in reality could not really assist.

Lloyd also confirmed that signatures on a TR1 transfer of Argyle Road on 27 October 2008 were his, although he had no recollection of the occasion.

Jane and David Hill are the parents of Laura’s husband, Henry. As mentioned above, David’s statement was received under a CEA Notice, as he has died. They witnessed the signature of the 2013 Codicil by Jeanne.

Jane Hill is a recently retired solicitor. She could recall witnessing Jeanne signing the codicil at a birthday lunch, but not much more. She said it was most likely this was the first time she had met Jeanne, that she did not believe she was aware Jeanne had been diagnosed with dementia in 2012 and she did not take steps to assess Jeanne’s capacity. She did not know what was in the codicil and there was no discussion of it.

David’s statement says that he and his wife witnessed Jeanne signing the codicil, the main provisions of which he believed were covered by a sheet of paper. He says he could not remember the details.

I accept the evidence of them both as to the execution of the 2013 Codicil and that there was no other discussion at the time. Jane gave oral evidence clearly and straightforwardly and I accept it. I am however cautious about accepting all of David’s statement as to what Jeanne said and her appearance on that day, given his evidence could not be challenged.

Ita’s statement was accepted in evidence unchallenged. As already indicated, her evidence includes reference to an unpleasant interaction with Gary at Christmas 2003.

Ita made sporadic visits to see Philip and Sandra and she refers to three interactions with Jeanne, in September/October 2011, December 2012/January 2013 and December 2015. She describes Jeanne as having been her normal self in autumn 2011, her “usual fabulous self” in late 2012/early 2013, but says that in December 2015 Jeanne was different. She describes Jeanne as clingy to Sandra and less chatty but says Jeanne still recognised Ita. I accept that evidence as part of the overall picture.

Mr Jordan is a tax adviser, who acted for an extended period from 2007 until at least 2014 for Jeanne, Philip and Sandra. He was responsible for preparing the 2008 Will and the 2011 Will for Jeanne, and also the 2013 Codicil. He also advised her in connection with the creation of the Thomas family trust for Peacehaven in 2008, and handled the creation of the LPA in 2011. He is a member of STEP (the Society of Trust and Estate Practitioners), a professional body for, among others, accountants and tax advisers specialising in inheritance and wills. He gave oral evidence for the best part of a day.

Mr Jordan’s practice was not to take attendance notes, and to rely only on his correspondence with clients to record any discussions or instructions. At no stage did he arrange or propose any medical assessment of Jeanne’s capacity to execute either of the wills or the codicil, despite her age and increasing infirmity.

Mr Jordan had little independent recollection of his meetings with Jeanne in 2008 and 2011 or of the preparation of the wills or codicil. He found it difficult in his evidence to distinguish between what he could remember and what he was deducing from the contemporaneous documents. He showed a strong tendency to surmise what must have happened and what he would have done, without making it clear that he was doing this rather than remembering things.

Mr Jordan’s failure to keep attendance notes significantly limited the extent and quality of the contemporaneous records, and has certainly hampered my task. It has made it much harder than one would expect in a case where there was professional involvement to divine exactly what happened around the execution of the 2011 Will. This is a classic example of a case where the failure to keep attendance notes has fuelled the dispute.

Given Mr Jordan’s limited recollection and difficulties in distinguishing recollection from reconstruction, I have concluded that I must be careful about taking much from his evidence beyond what can be inferred from the contemporaneous documents. He was confident he had a good recollection that when he met Jeanne on 10 March 2011 to discuss the terms of her 2011 Will, this was in the kitchen and that Philip and Sandra withdrew from the room. I accept his evidence on that. But many of his other assertions about the occasion sounded like reconstruction with hindsight and I am not inclined to give these weight beyond what can be inferred from the documents.

Ms Carter was an accountant at GKP, which took over handling Jeanne’s accountancy affairs from Mr Rogers in about September 2013. GKP also acted for Philip and Sandra. Her evidence was that it was likely she recommended Mr Jordan to Jeanne. She was unclear whether this was in 2007 or 2013 although she recalled one meeting with Jeanne, Philip and Sandra. Given that Mr Jordan started acting for Jeanne in 2007 I infer that it is more likely that the recommendation was in 2007.

Ms Carter was unable to offer any view on Jeanne’s capacity at any stage, among other things because her recollection was very limited, and I do not rely on her evidence for that purpose. I accept her evidence as far as it goes, which was to outline the general approach she would take to advising an elderly client on tax matters, but in her oral evidence she quite properly avoided endorsing generalised statements about what advice might be given.

Mr Tracey is a solicitor who acted for Jeanne on some of the transactions. He is a longstanding friend and business associate of Philip, and he acted regularly for Philip and Sandra.

Mr Tracey gave evidence about the advice he gave to Philip on 7 March 2013 to make a dated note about the altercation with Gary earlier that day. He also gave evidence about arrangements he made around the gift of 21 Avenue Crescent in 2014 - 2015, including for the medical assessment of Jeanne by Dr Mukherjee. He accepted in hindsight that he had had a conflict of interest in acting for both Jeanne and for Philip and Sandra on that gift transaction. His attendance notes were in evidence. He also gave some evidence in his statement about social meetings with Jeanne on holiday in 2013 and 2014.

Mr Tracey came across as rather defensive, but he was quite straightforward and made appropriate concessions. He was very dependent on his attendance notes and correspondence and had little independent recollection of events, which is unsurprising.

Dr Sujoy Mukherjee is a Consultant Old Age Psychiatrist. He was very experienced with a high degree of expertise. He gave his evidence clearly, carefully and thoughtfully.

Dr Mukherjee was instructed to carry out an assessment of Jeanne’s mental capacity to carry out the gift of 21 Avenue Crescent to Sandra and Philip. The assessment and his report were made in February 2015. He said that due to the passage of time he had no independent recollection of his meeting with Jeanne and so he was heavily reliant on the report, of which there was a draft and a final version, and on his instructions from Mr Tracey at Redferns solicitors. His report was notably amended following comments from Mr Tracey, as I discuss below. It is apparent from the report that he spoke to Sandra and Philip immediately after his assessment. I set out separately below my fact-findings as to the assessment, how the final version of the report was reached and so my conclusions as to Jeanne’s capacity.

The Claimant and the Defendants each called expert evidence in the field of old age psychiatry. The Claimant relied upon evidence from Professor Alistair Burns CBE MD FRCP FRCPsych and the Defendants on evidence from Dr Hugh Series DM, FRCPsych, LLM, MA BS. Professor Burns’ report was dated 16 June 2025. Dr Series produced three reports, dated 15 September 2022, 12 June 2025 (his main report) and a very short addendum report dated 27 August 2025. The experts met for a joint meeting and produced a joint statement dated 21 August 2025. Both experts gave oral evidence and were cross examined. Dr Series also included a very helpful summary of the material medical records (and key events) in his main report.

Their evidence was directed to the issues of testamentary capacity in respect of the 2011 Will and 2013 Codicil, and also Jeanne’s vulnerability to undue influence. Although the experts also addressed whether Jeanne had testamentary capacity in respect of her 1993 will and the 2008 Will, there is no dispute that she did.

This is a case where no medical assessment was carried out at or close to the time of the index events, i.e. instruction and execution of the 2011 Will and 2013 Codicil by Jeanne. Accordingly the experts were both having to undertake a retrospective analysis of medical records and other available material, without the benefit of any contemporaneous examination of Jeanne. Similarly, although a number of cognitive tests and an MRI scan were carried out in early October 2012, leading to the diagnosis of dementia due to Alzheimer’s disease on 26 October 2012, this was about 18 months after the 2011 Will. Both experts were therefore having to reconstruct the likely position with Jeanne’s condition and its development over time, from this historical material.

Both experts were extremely impressive, clearly highly experienced and knowledgeable in their field and their evidence was of great assistance to me, both in understanding how this disease develops and its typical effects, and in drawing the best conclusions from the available medical records and other evidence. There was a high degree of agreement between them, apparent both from the joint statement and their oral evidence. They also knew and respected each other. There were some differences between them but these were essentially of degree and nuance. I found both experts’ evidence equally useful, have drawn on both and have not generally found it necessary to differentiate between them. Where I have done so on individual points, I have explained why.

I have accepted their evidence, but ultimately decisions as to capacity and undue influence on particular occasions are of course for the court, based on all of the available material, including documentary and factual witness evidence as well as expert evidence.

I also received expert evidence as to property valuation from CoreProp, by way of written report only. CoreProp was jointly instructed. Although there were some issues around the valuations, and whether questions from the Defendants had been properly answered by the Claimant, I understand these to have fallen away so there is now no real issue on them. In those circumstances I accept CoreProp’s valuation figures insofar as relevant to the issues before me.

CoreProp’s capital valuations were as follows, on the following dates. (CoreProp also provided rental valuations, but I do not understand those to be relevant to the issues before me, of liability and of principle as to quantum.)

The key documents before me were: the 2008 Will, the 2011 Will and the 2013 Codicil; the November 2011 Letter; and the LPA.

In addition the available material included the following categories of contemporaneous documents: correspondence concerning the 2008 Will and 2011 Will, each of the disputed transactions and other transactions, including solicitors and tax advice; other relevant correspondence with advisers; emails and text messages (although not from Jeanne herself); Jeanne’s bank statements (from 2012 only) and financial records; medical and nursing home records; correspondence between the parties; company documents regarding AMH; and IHT and tax returns. There were also photographs and videos of Jeanne, essentially on social occasions, but including the interview of her by Laura in 2010.

Where I was taken to these documents during evidence and/or submissions and they are material, I have relied on them as appropriate, but the material was otherwise too extensive for me to have reviewed it all. I have used this material, with the witness evidence, to piece together as full a picture as possible. However, as I have already noted, there are notably few attendance notes in this case. There are some from Mr Tracey and Redferns, but they were only involved in a few of the transactions.

There was considerable agreement between Mr Martin and Mr Learmonth as to the applicable principles of law as to testamentary capacity, knowledge and approval, undue influence (as to wills and as to gifts), mental capacity as to gifts, duties of attorneys and proprietary estoppel. There were significant differences between them as to how principles of ademption should be applied in this case. In addition Mr Martin sought rescission of the 2011 Will on grounds of mistake, which Mr Learmonth submitted was not a cause of action known to law.

Since many of these principles were relied upon by Gary to challenge more than one transaction, I will set out all of the legal principles together in this section.

The law as to testamentary capacity was recently conveniently summarised by Joanna Smith J in Leonard v Leonard [2024] EWHC 321 (Ch) at [149]-[152], in a summary which has been adopted on several occasions since in the High Court, was commended to me by both counsel, and which I gratefully adopt. She commenced as follows:

“149.

In addition to the procedural formalities with which a will must comply, a will must also be substantively valid. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death (see Hawes v Burgess [2013] EWCA Civ 19 per Mummery LJ at [14]). Thus a will lacks validity if (i) the testator lacks testamentary capacity; (ii) the testator does not know and approve of the contents of the will at the time of execution; (iii) the execution of the will has been procured by undue influence; or (iv) the will, or particular bequests in the will, has been obtained by fraud...”

Pausing there, in the case before me, all of (i) testamentary capacity; (ii) knowledge and approval; and (iii) undue influence, are in dispute, but the fourth, fraud, is not alleged.

As to testamentary capacity, Joanna Smith J continued:

“150.

It is common ground that the correct legal test for testamentary capacity in a case such as this, where the Court is assessing the capacity of a deceased testator retrospectively, is the common law test first articulated in Banks v Goodfellow (1870) LR 5 QB 549 per Cockburn CJ at 565:

“It is essential…that a testator (i) shall understand the nature of the act and its effects, (ii) shall understand the extent of the property of which he is disposing; (iii) shall be able to comprehend and appreciate the claims to which he ought to give effect; (iv) and, with a view to the latter object, 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”.

I have inserted the numbering (i)-(iv) into this passage for ease of reference.

151.

The Banks test, which is generally treated (as I have indicated) as divisible into four elements, or “limbs” as the parties before me put it, was described by the Court of Appeal in Sharp v Adam [2006] EWCA Civ 449 at [66] as having “stood the test of time”, and was re-affirmed recently by Falk J (as she then was) in Clitheroe v Bond [2021] EWHC 1102 (Ch), who described the Banks test as “very well settled” and one “which has proved sufficiently flexible to take account of developments, in particular developments in medical understanding” [81].

152.

Drawing together the strings of the authorities in which the scope and application of the Banks test has been considered, the following additional features appear to me to be worth restating:

a.

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

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

Thus the question for the court is not whether the will is a fair one in all the circumstances of the case (see also Cowderoy v Cranfield [2011] EWHC 1616 (Ch) per Morgan J at [133]).

b.

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

c.

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

d.

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

e.

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

f.

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

g.

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

h.

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

i.

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

j.

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

k.

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

Joanna Smith J also emphasised at [140]:

“Furthermore, the criteria in Banks v Goodfellow are not matters that are directly medical questions, but are matters for common sense judicial judgment depending, as they do, upon an analysis of the entirety of the evidence, including, importantly, the complexity of the relevant will…”.

I note that this final point about complexity of the will is one which is only accepted by Mr Learmonth on the current state of the authorities.

As to the burden of proof, in Key v Key [2010] EWHC 408 (Ch) (“Key”) Briggs J (as he then was) explained at [97]:

“The burden of proof in relation to testamentary capacity is subject to the following rules. (i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. (ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. (iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less: see generally Ledger v Wootton [2008] WTLR 235, para 5, per Judge Norris QC.”

Reference was made several times by Mr Martin during the trial and in cross examination to the so-called “golden rule” articulated by Templeman J (as he then was) in Re Simpson (1971) 121 SJ 244:

It is clear that the “golden rule” is a guide to good practice to avoid disputes, not a requirement. As Briggs J said in Key at [8], in words which could have been written for the present case:

“Compliance with the golden rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope…”

Both counsel also drew my attention to Hawes v Burgess [2013] EWCA Civ 94; [2013] WTLR 453, in which at [57] Mummery LJ said that it was:

“… a very strong thing for the judge to find that the deceased was not mentally capable of making the 2007 will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.”

He went on to say at [60]

“… If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity…”

Of course, these observations are explicitly premised on the professional being experienced and following good practice. It seems to me that the point as to professional involvement must be significantly weaker where such steps were not taken, where there are no attendance notes to show what was done, and where the professional has virtually no independent recollection of what he did.

“Knowledge and approval” by the testator of the contents of the will means that the will represented their testamentary intentions – Gill v Woodall [2010] EWCA Civ 1430; [2011] WTRL 251 (“Gill”), per the Master of Rolls, Lord Neuberger at [14]. The testator must know and approve the effect of the will.

This is a factual question which is distinct from whether the testator had the testamentary capacity to make the will: see Lloyd LJ in Gill at [69] – [70]. Chadwick LJ explained the interaction between the two principles in Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTRL 99 at [62] – [64] in the following terms:

Mr Martin drew my attention to a number of cases where the court had held that there was no knowledge and approval even though a professional had been involved with the will preparation. Mr Learmonth retorted that they were cases with special facts. For the most part these cases seem to me simply to illustrate that this issue is very fact-specific.

Traditionally knowledge and approval is a two-stage test: the burden of establishing knowledge and approval is on the person propounding the will (here Philip and Sandra), but is generally presumed where the will has been duly executed by a person with testamentary capacity. The evidential burden then passes to the person challenging the will to show suspicious circumstances attending the execution of the will, and if these are shown then the Court will pronounce against it unless those suspicions are dispelled, the evidential burden having switched back to the propounder to do so.

Peter Gibson LJ explained this, and the approach to “suspicious circumstances”, as follows in Fuller v Strum [2001] EWCA Civ 1879,[2002] 1 WLR 1097 at [32] – [33]:

“32 Probate proceedings peculiarly pose problems for the court because the protagonist, the testator, is dead and those who wish to challenge the will are often not able to give evidence of the circumstances of the will. The doctrine of “the righteousness of the transaction” whereby the law places a burden on the propounder of the will, in circumstances where the suspicion of the court is aroused, to prove affirmatively that the deceased knew and approved of the will which he was executing, is a salutary one which enables the court in an appropriate case properly to hold that the burden has not been discharged.

33 But “the righteousness of the transaction” is perhaps an unfortunate term, suggestive as it is that some moral judgment by the court is required. What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be “vigilant and jealous” in examining the evidence in support of the will: Barry v Butlin (1838) 2 Moo PC 480,483 per Parke B.”

At [34] Peter Gibson LJ went on to illustrate the point with the case of Hart v Dabbs (unreported) 6 July 2000, in which Lloyd J admitted a will to probate after hearing full evidence, even though the propounder was an executor and sole residuary legatee who was alleged to have unlawfully killed the testator, had played an active part in the preparation of the will and had organised the signing process, all without any professional involvement. The judge concluded that knowledge and approval was to be inferred from all the circumstances because there was positive evidence that during the signing ceremony the deceased was not deceived as to what he was signing, had been alert, was unlikely to have been persuaded to do something he did not want to do, had had the opportunity to see the will, and the terms were not complex or difficult to understand.

In Gill the Master of the Rolls suggested that instead of this two-stage test, the court might better approach the question of knowledge and approval in a more holistic way, saying at [22]:

“Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix' s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in the unreported case of Crerar v Crerar, cited and followed by Latey J in Morris [1971] P 62, 78E-G, namely 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 trial before me was just such a case, where I heard extensive evidence of fact and expert opinion over several days, relating to Jeanne’s personality, wishes and state of mind, as well as the circumstances in which the 2011 Will was drafted and executed. Mr Learmonth submitted that Gill had made my life easier by taking the emphasis away from a formalistic application of the burden of proof. However he also properly drew my attention to the recent Privy Council decision Pascall v Graham [2025] UKPC 26, in which at [10] Lord Briggs said of Lord Neuberger’s one-stage approach in Gill:

“10.

As will appear, and in sharp contrast with Gill v Woodall, this is not a case where there is copious evidence to examine about the testator’s intentions, or about the circumstances of the preparation of the will. Even such evidence as there was (from one of the attesting witnesses) was largely struck out of his witness statement on a pre-trial application by the appellant, on the extraordinary ground that it was hearsay. The Board is therefore content to proceed on the traditional two stage approach, and leave the question whether it should be departed from in evidence-rich cases to a case where it may matter.”

Mr Learmonth also relied on the following passage in Gill at [16] – [17] where Lord Neuberger explained the policy reasons in favour of upholding wills:

Given what I have already found about Gary’s propensity for wishful thinking, and the animosity between the two sides, these are obvious dangers in the present case.

Overall, my conclusion is that given the extent of the trial, and the piecemeal nature of much of the evidence, this is a case where it would be simpler for me to consider all of that evidence, drawing such inferences as I can, to reach a conclusion as to whether Philip and Sandra have discharged the burden of establishing that Jeanne knew and approved the contents of the 2011 Will. However, as Mr Martin submitted, it is unlikely that which approach I take will make any difference to the outcome. It is also apparent from the authorities that judges have continued to find it helpful both to consider whether a straightforward inference can be drawn from a finding of testamentary capacity and due execution, and to consider whether there are “suspicious circumstances” requiring a more in-depth investigation.

The law on testamentary undue influence was recently definitively set out by the Court of Appeal decision in Rea. In a probate context, undue influence means coercion, that is pressure which overpowered the testator’s will without convincing their judgment. As Mr Learmonth submitted, it is therefore a very serious allegation to make, is normally inherently improbable, and requires convincing evidence. It is also very different from the test for undue influence in lifetime gifts and transactions. In this judgment I have used the phrase “testamentary undue influence” to distinguish it from the undue influence test which applies to lifetime gifts, and is alleged in respect of other transactions in this case.

Newey LJ outlined the principles in Rea in the following terms:

“[20] As Lord Penzance pointed out in Parfitt v Lawless (1869-72) LR 2 P&D 462, at 469, ‘the influence which is undue in the cases of gifts inter vivos is very different from that which is required to set aside a will’. In the context of wills, as Lord Penzance went on to say at 471, ‘undue influence ... raises the question of coercion, and that only’.

[21] As Sir J.P. Wilde, the future Lord Penzance had summarised the relevant law as follows in Hall v Hall (1865-69) LR 1 P&D 481 when directing a jury on a question of undue influence:

'To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.' …

[23] In a similar vein, Sir James Hannen P explained to a jury in Wingrove v Wingrove (1885) 11 PD 81, at 82, that ‘if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal’. ‘It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do,’ … As, however, Sir James Hannen P said at 82-83, coercion may be ‘of different kinds’: ‘it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result’…

[24] Another point made in Wingrove v Wingrove… is that ‘it is not sufficient to establish that a person has the power unduly to overbear the will of the testator’: see 83. As Sir James Hannen P observed:

‘It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.’

[25] The burden is on a person alleging undue influence to prove it to the civil standard. Lord Hoffmann said this about that standard in Home Secretary v Rehman [2001] UKHL 47, [2003] 1 AC 153, at para 55:

‘The civil standard of proof always means more likely than not. The only higher degree of probability required by the law is the criminal standard. But ... some things are inherently more likely than others… On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.’ …

[27] The extent, if any, to which it is appropriate to have regard to inherent probabilities will thus be affected by the particular facts. Even so, it seems to me that it will commonly be appropriate to proceed on the basis that undue influence is inherently improbable. As I have said, ‘undue influence’ signifies coercion in this context, and potential beneficiaries are surely less likely to resort to coercion than to rely on affection, gratitude or even persuasion.

[28] Undue influence can be established without direct evidence of it. In this connection, Mann J said in Schrader v Schrader [2013] EWHC 466 (Ch), [2013] WTLR 701, at para 96:

'It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence.'…

[31] Theobald on Wills, 19th ed., says this in para 4-060:

‘It has often been said that it must be shown that the circumstances attending the execution must be inconsistent with any hypothesis other than its having been procured by undue influence, but this is overstating the position; the standard of proof is the balance of probabilities. Certainly, it is not enough to show merely that the facts are consistent with undue influence, or that there was an opportunity to exercise undue influence; but the true test is whether undue influence is the most likely hypothesis, having regard to the inherent unlikelihood of someone practising undue influence on a testator.’

[32] 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.”

As Mr Learmonth pointed out, in Rea the Court of Appeal concluded at [45] – [56] that none of the following findings were inconsistent with legitimate persuasion or normal circumstances, and they did not provide a sustainable evidential basis for inferring undue influence, either individually or collectively:

As noted above in Rea, the burden of proof on testamentary undue influence is on Gary, as the person alleging it.

Mr Martin submitted that I also had the power to rescind the 2011 Will on the grounds of mistake. He submitted that the court had a general equitable jurisdiction to rescind any voluntary disposition on the grounds of mistake, and that this extended to wills. He said the same test applied as for mistake in other contexts, that there had been a causative mistake, of fact or law as to the nature of the transaction, or some matter which was basic to it, which was of sufficient gravity that the disposition would not have been made in the terms in which it was but for the mistake. This is the test articulated by Lord Walker in the Supreme Court in Pitt v Holt [2013] UKSC 26; [2013] 2 AC 108 at [122], there in the context of a discretionary trust. It must also be unconscionable to leave the mistaken disposition uncorrected, evaluated objectively – Lord Walker at [126].

Mr Martin relied by analogy on the lifetime trust case of Lady Hood of Avalon v Mackinnon [1909] 1 Ch 476. In that case Lady Hood appointed half of her trust fund for her elder daughter, and then some 15 years later appointed a further sum to her younger daughter and, forgetting about the earlier appointment and intending to achieve equality, the same amount to her elder daughter. The further appointment to the elder daughter was set aside by Eve J on the basis that Lady Hood must have been labouring under a mistake that this would achieve equality, whereas in fact the effect was to bring about a result she never intended or contemplated.

Mr Martin accepted that in Ball v Ball [2017] EWHC 1750 (Ch) HHJ Matthews (sitting as a judge of the High Court) had said at [57] that mistake could not by itself operate to invalidate a will, citing Re Belliss (1929) 141 LT 245. However, Mr Martin said that the statements in both cases were obiter. He submitted that there was no principled reason why a lifetime gift should be capable of being rescinded for mistake but a mistaken disposition of the same property by will should be unaffected by the same mistake.

He also prayed in aid Lord Neuberger’s remark in Marley v Rawlings [2014] UKSC 2; [2015] AC 129 (“Marley”) at [27-28], in relation to rectification for mistake. This was that “it has always been assumed that the courts had no such power to rectify a will” but that “[a]s at present advised, I would none the less have been minded to hold that it was, as a matter of common law, open to a judge to rectify a will in the same way as any other document: no convincing reason for the absence of such a power has been advanced …”. Mr Martin submitted that the same logic ought to apply to rescission for mistake.

Mr Learmonth responded bluntly that there was no such concept of a will being invalid by reason of a mere mistake and there never had been. In addition to the obiter remarks in Ball v Ball and Re Belliss, he relied on the decision of Fancourt J in Re Templeman [2020] EWHC 632 (Ch); [2020] WTLR 441 at [142] in which the learned judge explained Belliss as follows:

“[142] What is clear from this decision [in Belliss] is that the President found that Mrs Belliss was subject to - if not an insane delusion (in that she was not insane) - then an illusory belief of such a character as to negative testamentary capacity. She did not have the mental powers to enable her to recall and understand the true dealings between her and her daughters. This was not a case a mistaken belief that was capable of being corrected. It was a case of an illusory belief from which Mrs Belliss could not be shaken and which deprived her of reason. I therefore reject the suggestion that Re Belliss stands as authority for the proposition that a mere mistaken belief, which is the product of forgetfulness, is inimical to testamentary capacity. In my judgement, the President was not using the phrase 'illusory belief' as meaning 'mistaken belief', but as denoting a kind of fixed belief, similar in character as an insane delusion, which the testator does not have the mental powers to overcome. The decision has, so far as Counsel's and Mr Templeman's researches have established, never been followed for any wider proposition of law.”

Mr Learmonth also relied upon the observations in Theobald on Wills (20^th edition, 2025) at 4-055 that while a person may not know and approve all or part of a will because of a mistake, a mistake as to facts relevant to the testamentary dispositions will not by itself render a will invalid, although it may amount to a delusion sufficient to deprive the testator of capacity. Similarly the authors of Williams on Wills (11^th edition, 2021) state at [5.6]:

“Mistake. It is important to distinguish between different types of mistake. A mistake or mistaken belief on the part of the testator does not invalidate a will even if it caused him to include particular gifts or provisions in the will. Such a mistake may, however, be a basis for arguing that the will is invalid on other grounds, e.g. that the testator was of unsound mind or suffering from an insane delusion or that his mind was poisoned fraudulently. But where it is alleged that the testator did not know and approve of particular words or clauses in the will because these were included by mistake, there are three possible remedies available. First, the court of probate has always had power to omit (but not to add) words from probate and this jurisdiction will remain applicable to wills of testators who die before 1 January 1983. Second, in the case of testators who die on or after that date, the Administration of Justice Act 1982, s 20 has conferred additional power on the court (in specified circumstances) to rectify defective wills. Third, omissions or errors in wills can sometimes be cured by a court as a matter of construction.”

Mr Learmonth submitted that a notion of wills being invalidated by mistake would be totally at odds with the requirements for capacity and knowledge and approval, which explicitly do not require a testator to have good, or any, reasons for making a will, or to explain any change, or to take into account particular factors and leave others out of account. As to Mr Martin’s reliance on Lord Neuberger’s observations in Marley, he submitted that at [30] in that case, Lord Neuberger had said in terms that it would be wrong to hold that there was an inherent power to rectify when Parliament had legislated with a limited power of rectification. Mr Learmonth said the same reasoning applied to rescission: Parliament has had numerous opportunities to introduce any power of rescission, but has not done so, and in Marley, the point on rectification of wills in equity was both obiter and not argued.

Mr Learmonth also submitted that there are very good policy reasons for not permitting challenges to wills on the grounds that the testator was mistaken about some factual circumstance, in particular that wills only take effect at a future date, and that this would open the floodgates to claims.

Finally he submitted that even if there were such a power to “rescind” for mistake, then by analogy with the test for rescinding voluntary unilateral acts such as declarations of trust or appointments by trustees, it would only arise if the mistake were “as to the legal character or nature of the transaction itself, or as to some fact which was basic to the transaction”, applying Pitt v Holt. On this he and Mr Martin would therefore appear to be in agreement. However Mr Learmonth emphasised that minor errors, such as to the address of a property, or when and how Gary had come to own a particular property, or a difference in perception of an imbalance in “equality of treatment”, would come nowhere close to the high threshold for rescission in equity.

On all of these points, I accept the submissions of Mr Learmonth. I have concluded that the court has no separate, free-standing power to rescind a will on grounds of mistake. In summary, this is for the following reasons:

In this judgment I have not therefore gone on separately to consider whether the factual basis for a finding of mistake has been made out. However, it will be apparent from my findings below in relation to knowledge and approval and testamentary undue influence in relation to the 2011 Will, that I would have concluded that the facts necessary for such a finding of mistake clearly had not been made out.

At one stage Gary sought to make a broad claim in proprietary estoppel, that Alec and Jeanne had promised equality of disposition as between himself and Sandra, and Gary had relied on that promise such that it would be unconscionable to permit Jeanne to resile from it in her will. However, as Mr Martin made clear in his written closing submissions, the claim in proprietary estoppel is now limited to 21 Avenue Crescent.

As summarised by Lord Walker in Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776 (“Thorner”) at [29], there are three elements to the doctrine: (i) a representation or assurance made to the claimant; (ii) reliance upon it by the claimant; and (iii) detriment to the claimant in consequence of his reasonable reliance. In some circumstances acquiescence may be sufficient, but the conduct in standing in silence must serve as the necessary element of assurance. The representation and the claim must relate to identified property owned, or possibly about to be owned, by the representor – Thorner at [61].

This final requirement explains why Gary’s case based on an alleged promise of equal disposition could never have succeeded, and was properly dropped at trial. This must be so even though a property or portfolio of property which fluctuates in extent over time can count as identified property.

Detriment must be substantial although it need not necessarily constitute expenditure of money – see Gillett v Holt [2001] Ch 210 at 232D-E, where it was also said that this requirement should be approached as part of a broad inquiry as to whether repudiation of the assurance would be unconscionable in all the circumstances.

In the context of promises as to inheritance, Michael Green J summarised the relevant principles of proprietary estoppel in Maile v Maile [2025] EWHC 2494 (Ch) at [205] – [209] quoting in particular Lewison LJ in Davies v Davies [2016] EWCA Civ 463 at [38], the most pertinent principles being:

Reliance means that the promisee must show that he would not have acted as he did if the representation had not been made, and it must have been reasonable to have so acted: Maile at [222]. It follows that the relevant reliance cannot continue after the promise is known to have been withdrawn: Scott v Scott [2025] EWHC 2795 (Ch) (“Scott”) at [199].

The leading case on undue influence in relation to lifetime transactions is Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773 (“Etridge”). In the recent case of Nolan v Jude [2024] UKPC 22, the Privy Council had to apply the test for undue influence in the context of family gifts made using a power of attorney. At [22] the Privy Council adopted the summary of legal principles, as applied since Etridge, restated by Lords Briggs and Burrows in Nature Resorts Ltd v First Citizens Bank Ltd [2022] UKPC 10, [2022] 1 WLR 2788, at [10] – [13] as follows:

“10.

Putting to one side illegitimate threats (which are nowadays better viewed as falling within the doctrine of duress: see Times Travel (UK) Ltd v Pakistan International Airlines Corpn [2021] 3 WLR 727, paras 8-9 and 89-90) undue influence is concerned with a situation where, by reason of the relationship between them, one party (B) has such influence over the other (A) that A does not exercise a free judgment, independent of B, in relation to the making of a transaction between A and B (or, in a three-party situation, between A and a third party, C).

11.

Ever since Allcard v Skinner (1887) 36 Ch D 145, it has been commonplace to divide undue influence into two categories: actual and presumed. But in Etridge the House of Lords made clear that undue influence is a single concept. It does not have two different forms. The correct analysis of the two categories is that they refer to different ways of proving undue influence. Presumed undue influence refers to where the person alleging undue influence relies on an evidential presumption. Actual undue influence refers to where the person alleging undue influence relies on direct proof (of A’s conduct … which led to B not exercising a free and independent judgment).

12.

As Etridge also made clear, there are two requirements for establishing the (rebuttable) presumption of undue influence. First, there must be a relationship of influence. This may be established on the facts. But in respect of some relationships there is what is commonly referred to as an irrebuttable legal presumption (but is more appropriately referred to as a legal rule) that the relationship is one of influence (but note not undue influence). Examples of such relationships are doctor and patient (Mitchell v Homfray (1881) 8 QBD 587), spiritual adviser and follower (Allcard v Skinner), parent and young child (Lancashire Loans Ltd v Black [1934] 1 KB 380) and, of direct relevance to the facts of this case, solicitor and client (Wright v Carter [1903] 1 Ch 27). The second requirement is that the transaction must not be readily explicable on ordinary motives. The House of Lords preferred this test, which uses the words of Lindley LJ in Allcard v Skinner, to a test of whether the transaction was manifestly disadvantageous which had been put forward by Lord Scarman in National Westminster Bank plc v Morgan [1985] AC 686, 703-707. The underlying idea behind the test is that the nature and/or contents of the transaction must make one conclude, in the context of the relationship of influence, that, absent evidence to the contrary, undue influence has been exercised. …

13.

If those two requirements are satisfied, so that there is a presumption of undue influence, the burden of proof shifts and it is for the party seeking to uphold the transaction to rebut the presumption by showing that A was not acting under undue influence (i.e. that A exercised free and independent judgment) when entering into the transaction. Although neither necessary nor conclusive, the main method of rebuttal is to show that A obtained the fully informed and competent independent advice of a qualified person, most obviously a lawyer: see Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 and Etridge.”

In the case of presumed undue influence, there are therefore two pre-requisites which Gary will have to prove: (i) the existence of a relationship of trust and confidence, as a matter of fact; and (b) a transaction which “calls for an explanation”.

As to the relationship of trust and confidence, Lord Nicholls said in Etridge at [9]:

“In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired.”

Lord Nicholls continued at [11]:

“… The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited…”

However, as Sir William Blackburne observed at first instance in Hart v Burbidge [2013] EWHC 1628 (Ch) at [49], the influence must be “undue”:

“… It is not to be suggested that such everyday influences disable a person from freely exercising his or her will. The question only arises when the influences go beyond a point where the freedom of that person to act independently is compromised such that the court concludes that the transaction was not the act of a free agent…”

As to the relationship of trust and confidence, this does not simply mean the normal relationship of trust and affection between a mother and daughter (or indeed son-in-law) but specifically in relation to the management of their financial affairs – see Gladstone v White [2023] EWHC 329 (Ch) (“Gladstone”) at [503].

Whether such a relationship exists depends on an assessment of all the circumstances. Age, physical frailty and reduced cognitive stamina are factors which may make someone more susceptible to influence, as may bereavement – Gladstone at [511].

There are certain cases where the necessary relationship can be established by showing that the relationship was of a type which fell into a special class. One of these is LPA attorney and principal – Hackett v Crown Prosecution Service [2011] EWHC 1170 (Admin) at [54]. In the present case Mr Learmonth conceded that the necessary relationship of trust and confidence certainly existed once the LPA was registered, which was on 17 January 2012.

As to the second requirement, it must be shown that the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship – Etridge at [24]. When considering the transaction, the court must “look at it in its context and see what its general nature was and what it was trying to achieve for the parties” (Turkey v Awadh [2005] EWCA Civ 382 at [32], per Buxton LJ, and Snell’s Equity (35^th edition, 2025) at 8-029).

If Gary establishes these two pre-requisites, then a presumption of undue influence arises and the evidential burden shifts to Sandra and Philip to produce evidence which counters that inference – Etridge at [14]. They must then show that the gift or transaction was made free of such influence and “only after full, free and informed thought about it” - Kicks v Leigh [2014] EWHC (Ch); [2015] 4 All ER 329 (“Kicks”) at [72]. As Stephen Morris QC, sitting as a Deputy Judge of the High Court, continued in Kicks at [72]:

“… One of the ways in which the donee may commonly do this is by establishing that the donor had received advice from an independent person as to the nature and effect of the transaction. Whilst such advice is not always necessary nor indeed sufficient, its absence is a relevant factor: Etridge [2001] 4 All ER 449, [2002] 2 AC 773 (at [20]) per Lord Nicholls and Hammond v Osborn [2002] 2 P & CR D41 at [27], [28].”

A transaction which is tainted by undue influence is voidable rather than void.

The primary remedy for undue influence is rescission, although a court may alternatively order the payment of compensation. I consider the principles of ademption, and its effects, separately below.

Counsel were agreed that it is now settled that the test for mental capacity applicable to inter vivos or lifetime gifts is the common law test laid down in Re Beaney [1978] 1 WLR 770 and not the test for capacity under the Mental Capacity Act 2005 (“MCA 2005”) – see Kicks at [63] – [65]. This is primarily because the words in the MCA 2005 state that it is a test to be applied specifically to matters arising under that Act, which is prospective decision-making for living persons and the role of the Court of Protection, and not lifetime gifts. The Code relating to the MCA 2005 also says it does not apply to such gifts.

The Re Beaney test for capacity is set out at 773A-B and 774D-F of that case, and is as follows:

The legal burden of proof is on the party asserting incapacity. If they adduce evidence raising sufficient doubt from which incapacity can be inferred, then the evidential burden shifts to the other party – Kicks at [67].

As explained in Kicks at [27], quoting from Re Beaney at 773:

“‘[T]he question is whether the person concerned is capable of understanding what he does by executing the deed in question when its general purport has been fully explained to him.’ Thus the overall test is one of ability to understand, rather than actual understanding. If the maker of the gift does not in fact understand the transaction, in circumstances, where its general purport has not been fully explained, that does not establish lack of capacity. The test is whether he or she would have understood it, if the consequences had been fully explained.”

If a gift is ineffective for lack of capacity, Mr Martin submitted it is probably voidable rather than void. In Sutton v Sutton [2009] EWHC 2576 (Ch) Christopher Nugee QC, as he then was, concluded at [46] that there was real doubt on the issue, albeit persuasive authority that such a transaction was voidable only, but he ultimately declined to decide the point as he had not received full argument [49]. Mr Learmonth agreed that the consequence of lack of capacity would be to make the transaction voidable, not void. The position would therefore be the same as for undue influence.

Mr Learmonth also drew my attention to the decision in Singellos v Singellos [2010] EWHC 2535 (Ch); [2011] Ch 324, in which Andrew Simmonds QC, sitting as a Deputy Judge of the High Court, held that the rule in Parker v Felgate (1883) 8 PD 171 applied to an inter vivos gift. This is the rule that it is not necessary for a person still to have capacity when they execute a will so long as they had the requisite capacity when they gave instructions for it, and they can understand that they are executing a will for which they previously gave instructions, and have not changed their mind in the meantime.

In Singellos there was no dispute that the donor, who was terminally ill, had the necessary high degree of capacity to dispose of virtually all her assets on 15 April when she gave instructions for the drawing up of documents to implement a scheme to avoid IHT. However by 28 April when she signed the documents, two days before she died and when she was very unwell and on morphine, the judge held she no longer had such capacity, but did know she was signing documents to give effect to her earlier instructions. The judge accepted the argument that the rule in Parker v Felgate applied to the gift and upheld it as effective, at [166] – [169].

The claim against Sandra and Philip for breach of their duties as attorneys relates to the period from 17 January 2012, after the LPA was registered, until Jeanne’s death in April 2020. There is no dispute that Philip and Sandra acted as attorneys, using the LPA, throughout this period, although it is not the case that all transactions relating to Jeanne’s money or property after that date were necessarily carried out by one of them. Some transactions, including bank transactions but also the transfer of 21 Avenue Crescent, were undertaken by Jeanne herself in the earlier years in this period (I am not asked to make, and have not made, detailed findings as to which bank transactions were made by whom, save as expressly stated in this judgment).

It is also not disputed that during this period Philip and Sandra were in a fiduciary position vis-à-vis Jeanne and her assets, and in an analogous position to trustees. Their position is described in Lewin on Trusts (20th edition, 2020) at 8-018 as follows:

“In a similar position is a director of a company or other fiduciary with possession or control of the property for someone else. Such fiduciaries are not true trustees, because the property is not vested in them, but are in an analogous position, as they claim no personal interest in it, and are treated in many ways as if they were true trustees, including their accountability for abusing the trust and confidence reposed in them, and for the purpose of imposing proprietary and personal liability in equity in respect of unauthorised profits they make from their position or the property, or by reason of self dealing, or in respect of property transferred in breach of trust…”

There is a prohibition under s.12 MCA 2005 on an attorney under an LPA making gifts except (a) on customary occasions to persons (including themselves) who are related to or connected with the principal, or (b) to a charity to whom the principal made or might have been expected to make gifts, in either case so long as the value of the gift is not unreasonable having regard to all the circumstances and in particular the size of the principal’s estate.

If an attorney wishes to make a gift not permitted by s.12, they must apply to the Court of Protection under s.23(4) MCA 2005 for the gift to be authorised. In Public Guardian v C [2013] EWHC 2965 (COP), the Court emphasised at [43] that such an application must be made, and at [44] that attorneys should be aware of the law regarding their role and responsibilities. It said attorneys should at least be familiar with the “information you must read” on the LPA itself and with the MCA 2005 Code of Practice (“the Code”). Section 42(4)(a) of the MCA 2005 expressly stipulates that it is the duty of an attorney acting under an LPA to have regard to the Code.

Obligations on an attorney under an LPA are essentially the same as those of other fiduciaries, and they include the following, as set out in the Code:

I accept Mr Martin’s further submission that while it is always possible for a principal to authorise a fiduciary to benefit themselves, to do so the fiduciary would have to show that (a) the principal had the necessary mental capacity; (b) the principal did in fact give informed consent, and; (c) consent was not procured by undue influence. As to undue influence, Public Guardian v GB [2015] EWCOP 6 at [36] shows that there is a heavy burden on an attorney, and undue influence is very likely to be presumed where the gift is so substantial that it cannot be accounted for by ordinary motives; there was a relationship of trust and confidence; and no independent advice was given. A transaction made by an agent without authority is void rather than voidable – see Newey J (as he then was) in GHLM Trading Ltd v Maroo and others [2012] EWHC 61 (Ch) at [168] – [172].

The basic rule where a fiduciary has defaulted in their duties is that they must pay equitable compensation for the loss caused to the estate – Target Holdings v Redferns [1996] AC 421 at 434C-F. Common law rules as to remoteness and causation do not apply, but there must be some causal connection between the breach of duty and the loss, such that the loss would not have occurred but for the breach.

In respect of Jeanne’s bank accounts there is a dispute between the parties as to whether there would be any purpose in ordering the taking of an account or payment of compensation for breach of their duties as fiduciaries, because Sandra was entitled under both the 2008 Will and the 2011 Will to the monies standing to Jeanne’s credit with Halifax, Barclays, HSBC and NatWest. I deal with this issue below in my findings.

A legacy under a will is said to have been adeemed when the property which is the subject of the legacy has been disposed of, destroyed or is otherwise no longer available by the time of the testator’s death. The consequences, and indeed whether there has been an ademption at all, appear potentially to vary depending on whether the property was disposed of lawfully or unlawfully, whether it is still available and whether its value can still be traced into other property. There were a number of transactions in this case prior to Jeanne’s death concerning assets or properties which were the subject of specific legacies under her will. Sometimes they were gifted and in some cases they were sold to third parties, with the proceeds of sale generally then having been received into Jeanne’s bank account and spent.

In this section I set out the principles on ademption which can be gleaned from the authorities. Those principles do not directly cover all the issues which arise in this case. In particular, none of the authorities directly address the situation of a legatee under a will who is themselves responsible for undue influence or other misconduct which results in a gift, or transaction at an undervalue, to themselves or others. On this question there was a strong divergence between Mr Martin and Mr Learmonth as to the proper analysis and outcome.

I will start by considering the existing caselaw and the principles which can be drawn from those cases. Most of these cases were relied on by both counsel.

A convenient starting point is Banks v National Westminster Bank Plc [2005] EWHC 3479 (Ch) (“Banks”), a decision of HHJ Rich QC, sitting as a Deputy Judge of the High Court. Although argued on one side only, both counsel before me considered it to be clearly correct. Banks concerned a lawful sale by the claimant daughter, under an LPA, of a property owned by her mother. Under the mother’s will, the property was left to the daughter, but the residue to the daughter and her brother equally. Almost all of the proceeds of sale were still identifiable, invested in specific bonds [2]. The mother then died. The subject-matter of the devise had therefore ceased to be part of the mother’s estate as at the date of death. The issue was whether or not the sale had adeemed the legacy, and whether the daughter could claim all of the proceeds of sale as the identifiable product of the property, or whether they formed part of the residuary estate. The sale had undoubtedly been properly authorised, and was binding on the deceased. However because the mother had no longer had capacity, it had not been possible for her to make any different testamentary disposition after the sale took place [6].

After reviewing a number of the earlier authorities, Judge Rich concluded at [30] that the legacy was indeed adeemed, because the lawful sale had extinguished the subject-matter of the bequest made to and intended for the daughter, so that gift could not take effect, and the proceeds of sale fell into residue, to be divided equally with her brother.

One of the cases reviewed in Banks was Jenkins v Jones [1866] LR 2 EQ 323 (“Jenkins”), to which counsel before me also referred. In that case the testator had bequeathed to his son the farming stock in his possession when he died. The testator lost mental capacity and remained so until he died. During that period, the son and his mother gave up possession of the farm and sold the stock due to the father’s ill health, depositing the proceeds in a bank account. The issue was whether this conversion amounted to an ademption of the specific bequest (at 328). No criticism was made of the actions of the son and mother, but the sale was nevertheless invalid for lack of capacity. The Vice-Chancellor held at 329 that although the stock had ceased to exist, the proceeds in the bank account clearly represented the value of the subject-matter of the bequest, and the person who had changed the character of the chattels was the legatee to whom they had been bequeathed, acting without authority, not the testator. He concluded that in those circumstances the legacy was not adeemed, the conversion of the stock to monies having been “inevitable”. In other words, he treated the identifiable proceeds of sale as still being the subject-matter of the legacy.

In Banks, Judge Rich analysed the effect of Jenkins (and other cases) at [10] as being:

“…where a third party has extinguished the subject-matter of a specific devise without the authority of the testator, the proceeds of sale, if identifiable, should be treated as the subject of a specific devise which should take effect accordingly. The absence of authority as a matter of fact meant also that the testator is ignorant of what was happening, and indeed, in the two later cases, is also incompetent of managing his affairs. Where, however, the subject-matter has been extinguished by a person authorised under the statute so to act, his acts bind the testator and his estate unless the statute under which the action was taken otherwise provides – see In Re Palmer [1945] 1 Ch 8.”

One of the cases considered in Jenkins was Durrant v Friend 5 De G. & Sm. 343 (“Durrant”). As explained by the Vice-Chancellor, there the property which had been the subject of the specific bequest was insured, but both the testator and the property were lost at sea. It was held that the legacy was adeemed. However the judge there remarked obiter that if the property had remained in existence after the death of the testator and then been lost, then the policy of insurance would have been held in trust for the specific legatee, i.e. there would have been no ademption. The Vice-Chancellor said he did not doubt that decision, although he thought it a “strong” one.

A modern decision on which I heard argument was Hart v Burbidge [2013] EWHC 1628 (Ch) (“Hart ChD”), a decision of Sir William Blackburne which was affirmed by the Court of Appeal, [2014] EWCA Civ 992; [2014] WTLR 1361 (“Hart CA”). In that case, the testator owned two properties which were bequeathed to other family members under her last will, with the residue divided equally between her 3 children. Prior to her death, the testator sold both properties and used the proceeds of sale, together with £290,000 from her savings account, to buy a property in the names of the defendants, who were her daughter and son in law. The testator moved into that property with them, but shortly thereafter died. The claimants (who were the family members who would have inherited the properties, plus the testator’s two sons) alleged that the sales and use of the proceeds resulted from the defendants’ undue influence, and sought to set aside the transfers of the proceeds of sale and of the other funds used for the purchase.

The judge found undue influence established [132]. He also held that the effect of the sales of the two properties was to adeem the legacies [5]. The sales were to third parties, so there could be no question of setting aside or rescinding the sales to undo the effect of the undue influence [141]. The new property had been sold and a sum equal to the proceeds of sale of the two original properties repaid to the testator’s estate. The fact that the transactions had been procured by undue influence and the proceeds of sale could be traced did not therefore prevent the conclusion that there was an ademption. Instead the judge ordered that, as a remedy for undue influence, in addition to restoring to the estate the £290,000, sums should be paid to the family members in the amount they would have received after IHT if the properties had remained in the mother’s estate. Priority was given to ensuring all the claimants got what they would have received, over the daughter getting what she would have received.

Effectively, the judge fashioned a remedy for undue influence which gave the innocent beneficiaries what they would have received if there had been no ademption, at the expense of the “guilty” beneficiary. However, this was premised on the conclusion that there had been an ademption, because the sales to third parties could not be reversed.

The Court of Appeal affirmed at [3] in Hart CA that the effect of the property sales was to adeem the specific legacies. They affirmed the judge’s decision on undue influence and upheld the approach he took to remedy [68].

Mr Learmonth also drew my attention to the decision in Basan v Brandon (1836) 8 SIM. 169, 68 (“Basan”). In that case the testator made a specific bequest of £2,000 out of a total sum of £7,000 which was held by his English agents. The testator’s agent told the English agents to invest £5,000 of the £7,000, but the English agents mistakenly invested the whole £7,000. Later the testator also directed that the whole sum should be invested, but he died before that instruction was received and acted upon. The Vice-Chancellor held that (a) the unauthorised investment of the £2,000 in addition to the £5,000 did not alter the will; and (b) the later instruction was an unexecuted intention which was of no effect. He therefore held that the legacy was not adeemed, and the legatee was entitled to a pro rata proportion of the fund into which the £7,000 had been invested.

Drawing together all of these authorities, the following principles can in my view be extracted from them:

None of these cases concerned a guilty beneficiary who was relying on their own misconduct to argue that the transaction was ineffective and there had been no ademption, so they were still entitled to the property which was the subject of the legacy, or its proceeds. Mr Martin argues that that is what the Defendants are seeking to do in the present case.

Mr Martin further argued that where a transaction was voidable, due to the Defendants’ undue influence, misuse of the LPA or lack of capacity of Jeanne, the legacy was still adeemed and the court then has a discretion as to what order to make. He submitted that the Defendants are then seeking equitable relief, but they do not have clean hands. He said they should be denied relief which would put them in the same position as they would have been in if there had been no misconduct, because they would be seeking to derive an advantage from their own wrongful conduct (relying in Snell at 5-011). He submitted that the product of the ademption was the right of action against the Defendants for the return of the property or the proceeds of its sale, and this should be treated as falling into residue.

Mr Learmonth submitted that an unauthorised transaction did not adeem a specific bequest at all. Therefore where that has happened, the property or its proceeds should simply be treated as passing according to the terms of the will (in his submission, the 2011 Will). Where the transaction was unauthorised, the cause of action for remedying that wrong should anyway be regarded as to proceeds of the transaction. Alternatively he submitted that if there was an ademption in circumstances of lack of capacity, misuse of the LPA or undue influence, the court should strive to grant relief which put everyone back in a position which was as close as possible to that they would have been in under the will. Where a property or the contents of a bank account would have passed to Sandra or to Sandra and Philip under the will, the court should seek to achieve the same outcome, because this is what would keep truest to Jeanne’s intentions. He further submitted that it was wrong for Mr Martin to rely on the “clean hands” doctrine because the Defendants were not the ones making any claim; it was for Gary to seek relief and the question was, what form should any relief take (if he is entitled to any).

Mr Learmonth also submitted that Gary was pursuing the undue influence claims in his capacity as a derivative claimant, and claimed Gary therefore owed a fiduciary duty to administer the estate properly and could not seek to profit himself by seeking a remedy which profits himself rather than complying with the contents of the will. There were also IHT consequences relevant to the decision whether to pursue any such remedy.

Mr Martin rejected the contention that Gary owed any fiduciary duties in relation to how he pursued the derivative claim. He said the claim had been clearly pleaded as one for compensation for breach of duty, and Gary had been expressly granted permission to pursue it as a derivative claim on that basis. He rejected any suggestion that Gary could not litigate the claim as he wanted, but that Sandra and Philip could defend it however they wanted. He said the litigation machinery had been set up so that Gary and Sandra would litigate the dispute between them.

On this latter point, I accept the submissions of Mr Martin. Gary has been given permission to pursue a derivative claim, at his cost, in respect of the claims of undue influence and breach of an attorney’s duty, on the basis of the Particulars of Claim, which were fully pleaded. The intention and effect, in my view, was that Gary on the one hand and Sandra and Philip on the other should fight out all those claims against each other, without either side being in a fiduciary capacity insofar as how the litigation was conducted, they being the only active parties.

On the other wider points in issue in relation to ademption, my conclusions in principle are as follows:

The chronological narrative really begins in 2005, with the works to 1 Beaufort Close. While there are some disputes about earlier matters, they are mostly peripheral. However, there are some overarching points, mainly about Alec and the MacDougall & Savage business, which it is worth dealing with initially, as they are part of the context for what follows.

Probate was granted of Alec’s will on 9 June 2004, almost 2 years after his death.

I accept that while Alec was alive, he expressed a general aim and intention of “treating Gary and Sandra equally”, and that Jeanne supported him in doing so. This manifested itself in particular in (a) the terms of Alec and Jeanne’s 1993 wills; and (b) where a property was gifted to Gary or Sandra, making similar provision for the other, including by directing Gary to do so. There was some dispute as to how many of the properties Gary developed at this time were his, his father’s or MacDougall & Savage’s. The family nature of the business means there is a lack of clarity about this, but this is not necessary to resolve in order for me to make this finding about Alec’s manifested intentions.

I consider further that the formal transfers of 58, 60 and 62 Acacia Road to either Gary or Sandra, and their spouses, represented a working through of this earlier intention of Alec’s of equal treatment, and that all parties understood this at the time. I have reached this conclusion even though (a) Gary only transferred 62 to Sandra and Philip on 14 October 2008; and (b) the formal transfer by Jeanne, and registration of 58 and 60 to Gary and Anna did not happen until 10 September 2012. I find that this was just a delay in implementing Alec’s longstanding intentions. I accept Gary’s evidence on this point, which is consistent with the available contemporaneous correspondence about these particular properties (for example with solicitors, Redferns). There are several further properties not in issue which were gifted to Gary or Sandra (individually or with their spouses) prior to Alec’s death. I do not consider it necessary to “tot up” and compare the siblings’ exact positions prior to the disputed events, but have nevertheless concluded, on the basis of substantial undisputed evidence about earlier transactions, that while Alec was alive, he directed an outcome of approximate equality in property holdings.

However, one aspect where equality between the siblings was never sought or achieved was in relation to MacDougall & Savage. Sandra never had any involvement in the business. Any benefit she had was indirect and relatively minor (I accept that for a few years before and after Alec’s death, Gary arranged maintenance of Sandra’s rental properties through the business without charge). On the other hand, Gary was given his start in life through working in and then taking over this mature and successful business. Substantially through his own abilities, he was then able to continue that success. In this regard, everyone agrees that the family adhered to traditional gender roles, but consequently, any attempt to compare the siblings’ total benefits from their parents’ assets even before Alec’s death would be an exercise in comparing apples and pears.

Gary was given Alec’s share in MacDougall & Savage in 1990. George’s share was given to his nephew who then transferred it to Gary. Gary said he paid £50,000 “off the books” for George’s share, at George’s request, although it was transferred by a deed of gift. The relevant assets of the business were the then office premises and the goodwill as at 1990. The pure financial value of what Gary was initially given was relatively modest, but he used this valuable opportunity to build his own property empire.

Against that backdrop, there was and is ample scope for differences of opinion as to what “equality” between the siblings would mean. The Defendants claim that Jeanne was seeking to balance out Gary’s benefit from the business by giving all her assets to Sandra and Philip. Gary claims there is a stark inequality between him and Sandra which cannot be what Jeanne really wanted.

The truth is that these are narratives which each of the parties has been recounting for a long time to justify their positions. Both narratives are capable of sounding plausible and both provide important insights into the parties’ motives, beliefs and persuasion tactics. However I have concluded that neither story actually helps me with the legal analysis, beyond giving such insights.

GP notes record that by February 2003, Jeanne had started staying intermittently with Sandra. Sandra says, and I accept, that she suggested Jeanne move into 1 Beaufort Close, and that Jeanne was very keen on the idea. She also says that Jeanne said she would be willing to pay for an extension to 1 Beaufort Close, and Jeanne said she was going to sell 47 Beaufort Road, the former matrimonial home, which would provide funds. They agreed that the best option would be to build a basement flat. Subject to what I say below as to the exact source of the funds, I accept all of this, as it is inherently likely and not disputed in its essentials.

Throughout most of this litigation it has been assumed that Jeanne sold 47 Beaufort Road and then used the proceeds of sale to pay to build and fit out the basement flat. In fact, shortly before trial it became apparent that that property was not sold until 30 March 2007, raising £1.05M, whereas practical completion on the shell works to the basement occurred earlier, on 14 June 2006. Jeanne paid for those works, but from other funds she had, by cheques on her account. The final statement of account with the main contractor for those building works was for £293,946. I note that the contract for the building works, by the London Basement Company, was made with Philip and Sandra alone, and that correspondence from the contractor was all addressed to them only, even though Jeanne was paying, and would be living in the basement.

I gave permission to the parties to amend the Particulars of Claim and Defence to correct the position as to how the basement works were funded, but there is no dispute that they were all paid for by Jeanne.

This was followed by fitting out works, which it is agreed were carried out to a luxury standard, also paid for by Jeanne. Philip accepted in evidence that the total cost was “in the ballpark” of £500,000 to £660,000, although he said these were Jeanne’s finances. Gary’s evidence was that Jeanne had told him the total cost was about £660,000. I accept that the total cost was of this order of magnitude, the other £200,000 - £350,000 or so being the cost of the fitting out, although there is a dispute as to whether Jeanne’s money was also used to pay for works to the rest of 1 Beaufort Close. It is agreed that by the time of her 80^th birthday in July 2008, Jeanne was living in the completed basement flat.

As to the sale of 47 Beaufort Road, my conclusion is that Philip did not merely assist Jeanne with this, as the Defendants contend, but that he took control of and managed the whole transaction and that this was to an extent not characteristic of a son-in-law merely supporting his mother-in-law. I reach this conclusion for the following reasons:

Gary freely admitted in evidence that he knew at the time and supported the plan for the basement flat to be built for Jeanne and for her to pay for it. He said in evidence, “I did not object to it because it was for the comfort of my mother and it was a beautiful flat”, and he confirmed that he gave it his “go-ahead”. I accept that evidence.

As to whether Jeanne also paid for works to other parts of 1 Beaufort Close, which were occupied by Philip and Sandra, on balance I find that the extent to which this happened was modest and peripheral, and irrelevant for my purposes, although the available evidence is limited. My reasoning is as follows:

It is undisputed that at no stage did Jeanne take any legal or tax advice about whether she should have any interest in 1 Beaufort Close or what the tax consequences of this use of her funds might be. It is also obvious that she was not granted and there is no record of her acquiring any interest in that property.

Gary’s claim in respect of the basement works is based on alleged undue influence. The necessary elements are therefore: (a) a relationship of trust and confidence; (b) a transaction which calls for an explanation and (c) if these are established, whether the Defendants can rebut the presumption of undue influence. The submissions and my findings under these heads are as follows.

Sandra freely acknowledged in oral evidence that she left property and financial matters to Philip, as she had previously left them to Alec. This was consistent with all of the contemporaneous correspondence about financial and property transactions which I saw, which showed them being handled by Philip alone, not by Sandra. I find that Sandra vested trust and confidence in Philip at all material times such that, to the extent Jeanne vested trust and confidence in Sandra, she was effectively also vesting it in Philip.

The Defendants’ case was that Jeanne did not vest trust and confidence in Philip or Sandra, i.e. there was no “relationship of ascendancy”, until the LPA was registered in January 2012. In relation to the earlier period from 2005 until 2008, and so in relation to the 2008 transfers of Peacehaven and Argyle Road as well as the basement works, Mr Learmonth’s submissions were that there was no such relationship, on the basis that:

In relation to the medical evidence, I note that the full quotation from Professor Burns’ report reads as follows:

“In my opinion, Mrs MacDougall was vulnerable to influence, as described in paragraphs 12.1 to 12.3. It is hard to give a precise timeline as to how vulnerability developed and not possible to give an opinion as to her vulnerability on an exact date. Based on her cognitive impairment being a major factor in her vulnerability, in my opinion, I would say that Mrs MacDougall was not unduly vulnerable in 2008, would have begun to become vulnerable in 2012 (around the time of her diagnosis of dementia) and from about 2015 onwards would have become more vulnerable.”

Dr Series only really comments on Jeanne’s vulnerability to undue influence in the later period, from 2011. In their joint statement at para 2.4, the two experts say this about vulnerability to undue influence:

“We agree that the Deceased would have been vulnerable to undue influence, particularly after her dementia was diagnosed in 2012”.

However I interpret this statement as being of little or no relevance to the earlier period 2005 – 2008 with which I am concerned here.

Mr Martin submitted that the necessary relationship of trust and confidence with Philip and/or Sandra existed from at least 2005 onwards. In relation to the whole of the 2005 – 2008 period he submitted:

On this issue I prefer the submissions of Mr Martin. My conclusion is that certainly from 2005 onwards, Jeanne did vest such trust and confidence in Philip, and also insofar as relevant in Sandra, and that there was this “relationship of ascendancy”. I reach this conclusion for the following reasons:

My conclusion is that Jeanne continued to repose such trust and confidence in Philip and Sandra at all material times continually from 2005, and that as a matter of practical fact, Philip exercised a high level of control over Jeanne’s financial and property affairs. As Jeanne’s dementia developed, she then became increasingly vulnerable, as supported by the medical evidence. However, even before this was true, in my view this type of relationship of ascendancy had already arisen.

It is also in my view a feature of this case that Philip and Sandra did not properly distinguish Jeanne’s interests from their own in their own minds, seeing them as synonymous, essentially as soon as she was living with them. This only intensified the relationship of ascendancy which developed.

Mr Martin submitted that Jeanne paying at least £500,000 for the basement works from her funds, in circumstances where she received no interest in 1 Beaufort Close and had no right to continue living there, made this a transaction calling for an explanation. In particular he relied on the following:

Mr Learmonth submitted that this aspect of the claim did not get off the ground. He said:

I have not found this issue straightforward, because of the very large size of the gift and the fact Jeanne gained no interest or right to live in 1 Beaufort Close, and also sold her existing home. However, viewing all the evidence in the round, in the particular context of this family and the wealth they shared, and applying a touchstone of whether the transaction was “not readily explicable by the relationship of the parties or by reference to the normal motives by which people act” (Gladstone v White [2023] EWHC 329 (Ch) at [26(iv)]), I have concluded that this was not a “transaction calling for an explanation” in the Etridge sense. My reasons are as follows:

Accordingly, the presumption of undue influence does not in my view arise in relation to this transaction. This is not a case in which any independent advice was given which could have been relied upon to rebut such a presumption. However, as Mr Learmonth submitted, ultimately the decision for the court is whether, on the balance of probabilities and considering all of the evidence, the transaction was the product of unfair advantage having been taken, or was the donor’s unhampered choice. Even though I have concluded that Jeanne did already vest trust and confidence in Philip and Sandra at this time, my view is that Jeanne’s decision to use her funds to pay for a luxury basement flat at 1 Beaufort Close, where she could live with them and their children, was a free decision of hers which was not tainted in that way.

On 16 January 2006 Philip had written to Derek Brennan at Redferns, saying:

“… Mrs MacDougall would like to have everything concluded by the end of next week, Friday 27th. January. Outstanding matters are:

Probate

Change to will, leaving 46 Argyle Road W13 to Philip & Sandra

Shares in Winder bray Ltd to Philip & Sandra

Shares in Acton Mill Hill to Gary MacDougall

Transfer 62 Acacia Road to Sandra, declaration to Inland Revenue

Discretionary Trust will for Philip & Sandra…”

However, rather than these matters being followed through by Redferns, Mr Jordan was instructed. He believes Ms Carter of GKP referred Jeanne to him. The first communication is a letter from Philip to Mr Jordan dated 29 May 2007, in which Philip gave details about the Grandchildren’s Trust, referred to a wish to transfer 9 Stuart Road to one of the children or the Trust, and to IHT liabilities on transfers by Alec, concluding:

“Mrs. MacDougall wants to gift 46 Argyle Road W13 to Mr. & Mrs. Thomas, it was suggested that this would be left in Mr. MacDougalls’ will and a Deed of Variation would be needed but this was never done. How is it now best dealt with?

My wife and I and also Mrs MacDougall do not have any wills in place, are you able to help us with these?”

I note that in fact Jeanne had executed a will in 1993, so this was not accurate. Mr Jordan says he first met Jeanne, Sandra and Philip (together), at their home, in July 2007. There is then a letter to Mr Jordan dated 18 July 2007, signed by Philip but said to be from himself, Sandra and Jeanne, and enclosing signed terms of business from each. The letter says: “Further to our recent meeting we and Mrs. MacDougall, have decided that we would like to instruct you to deal with the outstanding Inheritance Tax matters, our Wills and other business we briefly touched on.”

As I have already noted, Mr Jordan did not have any real recollection of these matters beyond the correspondence, and since he kept no attendance notes, the only contemporaneous records are the letters.

On 3 August 2007, Mr Jordan wrote to Jeanne, saying, “As I believe you know, Philip kindly wrote to me to let me know that you would like to instruct me to deal with the outstanding inheritance tax (IHT) matters and your Will.” He went on to give some general advice about IHT and Capital Gains Tax (“CGT”) planning, noting that as matters stood, there would be considerable IHT liability in the event of her death.

He next wrote to Jeanne on 28 September 2007, saying:

“I am writing to enclose the first draft of your new Will. [No draft survives.]

As discussed when we met, you appoint Sandra and Gary as executors.

Chattels (clothes, jewellery, etc) are left to Sandra and the possible existence of a "Letter of Wishes" is flagged. This will allow you to change your mind about who is to get what without needing a new Will or Codicil.

Clause 4 would allow you to leave pecuniary (gifts of money) legacies to individuals you might name.

Clause 5 deals with the various properties as you suggested and, as discussed, you need to decide whether these gifts should be "free of" or "subject to" inheritance tax (IHT). Another consideration is that subject to capital gains tax considerations, you might gift one or more of these properties during your lifetime.

The remainder of your estate is divided equally between Sandra and Gary and should either of them die before you their children would take their share.

Part 2 contains administrative powers for your executors and the relevant definitions are contained in Part 3.

I imagine that we shall discuss the final terms of the Will when we next meet.”

There is then some correspondence between Jeanne and Mr Jordan concerning IHT charges on properties from Alec’s estate. This includes a typed letter from Jeanne dated 7 November 2007, listing 5 properties and said to enclose Land Registry transfers, which is one of the very few letters emanating from Jeanne herself. The IHT issues appear to have been resolved satisfactorily by November 2007, and on 4 December 2007 Mr Jordan wrote to Jeanne, saying he was enclosing a fee note in respect of this work on Alec’s estate and drafting all three of their wills. There is then a handwritten letter from Jeanne dated 5 December 2007, which appears to show she paid that bill, saying she “will be in touch after Xmas/ New Year holiday with further business.” Philip’s and Sandra’s wills appear to have been executed shortly afterwards.

On 6 February 2008, Mr Jordan wrote two letters to Jeanne. The first concerned concluding the IHT matters. The second is an important letter in connection with Peacehaven, in which he said, so far as relevant:

“THE PEACEHAVEN PROPERTY

When we last met we discussed the possibility of you gifting the Peacehaven property to Philip and Sandra.

I understand that you are obtaining indicative valuations for the property but you thought it was worth no more than £300,000 in its present condition.

The property is standing at a substantial capital gain as compared with the base cost in your hands (half of which would have been the value when your late husband died). Accordingly, an outright gift would leave you with a capital gains tax (CGT) liability.

In order to allow you to gift the property without incurring any immediate tax liabilities I suggested that you should transfer it to a trust for the benefit of Philip, Sandra and their children. Provided you could not benefit under the terms of the trust CGT “holdover” relief would be available and the trustees would take over your base cost. Although the capital gain could be triggered on a disposal by the trustees, if the intention is to keep the property within the family for the longer term this might not be an issue. Another advantage is that the trust would keep the value of the property outside Philip and Sandra’s inheritance tax (IHT) estates.

I understand that you would wish to make occasional use of the property and, as I mentioned when we met, a Revenue Tax Bulletin some years ago gave some examples of when the Revenue would regard the donor as “virtually” excluded from benefit including social visits, occasional returns to a house given away to baby sit or to visit a library there no more than four times a year or to stay for short periods of up to two weeks a year (or four if the donee is present) or to convalesce or while the donor’s own house is being redecorated. Accordingly, you could make a limited amount of use of the property without falling foul of the IHT “gifts with reservation of benefit” provisions. If you wanted to make more extensive use of the property then you would need to pay an open-market rent for your occupation.

I did enter the caveat that if you were to die prematurely there could be a disadvantage in as much as the gift would be on your IHT “clock” for seven years and it would not benefit from the usual CGT-free uplift on death. However, if you retain ownership it will definitely suffer IHT on death.

I look forward to hearing further from you when you have the valuations for the property and should just mention that we are exploring the possibilities of borrowing against your other investment properties.”

This letter would indicate that originally the proposal was simply for Jeanne to gift Peacehaven to Philip and Sandra, and that the reason it was ultimately transferred into a trust for the benefit of the Thomas family was because Mr Jordan suggested this approach.

I note that the evidence is also that Jeanne continued to pay for maintenance works to Peacehaven from her own funds, both before and after divesting herself of it.

From the correspondence it appears Mr Jordan met Jeanne, Philip and Sandra again on 5 June 2008 (there being reference to seeing “you all”). Two letters followed. The first, dated 9 June 2008 concerned a proposed gift of Jeanne’s shares in AMH, and the CGT and IHT consequences. The intended recipient is not specified but was ultimately Andrew. Gary’s evidence was that he knew nothing about this advice from Mr Jordan. The letter concludes:

“If you do decide to proceed with the gift [of shares] it should be made after the gift to trust of the Peacehaven property, as should the proposed gift of Argyle Road to Sandra and Phillip.

I shall be writing separately regarding the trust over Peacehaven and the latest version of your Will.”

It seems very likely therefore that the proposed gift of the shares, the proposed gift of Argyle Road, the proposed transfer to a trust of Peacehaven and Jeanne’s will were all discussed in the meeting on 5 June 2008.

The second letter was on 12 June 2008 and related to the proposed discretionary trust, to consist of Peacehaven and any property added subsequently. The first draft of the trust deed was said to be included, and the letter set out an explanation of each of the clauses. Among other things, Mr Jordan said:

“1 Settlor and trustees

You will see that you are described as the Settlor and the Trustees initially appointed are Sandra and Philip.

2

Beneficiaries

You will see that the beneficiaries of the trust, described as the Discretionary Beneficiaries in sub-clause are Sandra and her children and remoter issue and Philip and, as drafted, in due course the spouses of Sandra and Philip’s children…

…

8 Exclusion of settlor

I would additionally draw to your attention clause 14 which provides that neither you nor [not relevant]… may benefit under it. It is essential that no benefit should be provided to any such persons so as to ensure favourable tax treatment…

10 Tax

a.1

Inheritance tax

(a)

As I understand you have made no previous chargeable transfers for inheritance tax purposes and the value of the property to be settled on this occasion is within the inheritance tax nil rate band, no inheritance tax will be payable on it. However, should you die within seven years of making the gift, the existence of it could increase the rate of tax payable on the property in your estate on your death.

(b)

Assuming that you do not add any further property to the settlement, no inheritance tax will be payable on distributions of capital to beneficiaries within the first ten years of the settlement’s existence.

(c)

There will be a charge to tax on the tenth anniversary of the creation of the trust and on subsequent ten-year anniversaries, if the then value of the trust property (taken together with the value of any property distributed in the preceding ten years) exceeds the nil rate band as at the anniversary date. Broadly speaking, the effect of the current rules is that the balance of value in excess of the nil rate band will be taxable at a flat rate of 6%.

(d)

Tax will also be payable on distributions after a ten-year anniversary at a rate calculated by reference to the value of the trust property on the preceding ten-year anniversary.

(e)

As previously advised, the gift to the trust should precede the gift of Argyle Road and of the shares in the property company.

10.2

Income tax

(a)

The initial gift by you to the trustees will trigger no income tax.

… [not relevant]

(c)

In practical terms the only income is likely to be any rent paid by you for occupation of the property once it is in the trust.

10.3

Capital gains tax

(a)

Any gains inherent at the date of the gift in the property to be given to the trustees will be able to be held over for capital gains tax purposes. This means that the trustees will take over your base cost and no capital gains tax will arise until there is a subsequent sale by them.

…

11 Practical points in connection with exercise of trustees’ powers

It is important that the Trustees consider at regular intervals the manner in which they should exercise the very flexible powers conferred on them by the settlement.

…

Please let me know if you have any comments on the above and I will then arrange for the solicitor to prepare a signature copy of the deed for completion by you, Sandra and Philip.”

Mr Martin suggested that this was technical trust and tax advice, which did not properly address real world questions such as the use Jeanne might actually want to make of Peacehaven, given it was a family holiday home. In this context I note that Peacehaven had been bought by Alec and Jeanne in 1979. It had been substantially refurbished and rebuilt in the 1980’s, to a great extent by Gary, including building a swimming pool. It had regularly been used by all the extended family, and Jeanne stayed there often. The evidence from witnesses on Gary’s side, in particular Iain, was that over time, after Alec’s death, they were made to feel less welcome staying at the property, by Sandra and Philip. I accept this evidence as to the extensive works carried out by Gary in the early years (of which Iain said there were photos) and the good use of it which was made by the family. Given that Peacehaven was in fact transferred into a trust benefitting only the Thomas family in 2008, it also seems to me inherently likely that Sandra and Philip thereafter treated it as their own, which made other family members such as Iain uncomfortable.

On 11 July 2008 Mr Jordan wrote to Mr Harding at TWM Solicitors (“TWM”) to make arrangements for the trust to be drafted and carried through, saying:

“I have been advising Mrs MacDougall and her daughter Sandra and son-in-law Philip Thomas on various capital taxation matters over the last year.

Mrs MacDougall is a widow (Mr MacDougall died on 18 September 2002) and she owns a number of investment properties in the Ealing area.

In addition, she owns a property 7 Wellington Road, Peacehaven which has been recently valued at £299,950 and is standing at a gain as compared with its base cost.

Mrs MacDougall does not, at present, have anything on her "clock" of immediately chargeable transfers for inheritance tax purposes and my recommendation is that she should transfer the property to a trust for the benefit of Sandra, Philip and their children and remoter issue and claim CGT holdover relief. Mrs MacDougall knows that she would need to pay rent for anything more than de minimis occupation of the property. Mrs MacDougall's son Gary and his family are not to benefit from this property.

…I await final confirmation from Mrs MacDougall that she is content with the terms of the trust and I shall then ask you to prepare the trust and to transfer the property…”

One point relied on by Mr Martin was that Mr Jordan was acting for and advising both sides of the gift of Peacehaven into a trust to benefit Sandra and Philip and their family. This is apparent from the letter of instruction to TWM. It is also undisputed that TWM were only instructed to draft the trust and execute the transfer, not to provide any advice.

On 16 July 2008 Mr Jordan wrote again to Jeanne concerning Peacehaven, saying Philip had let him have the documents relating to the property, and he had passed them on to Mr Harding. In the same letter he also said:

“I believe you or Philip will let me have the Land Certificate for Argyle Road so that Mr Harding may deal with the transfer of that property as well.

Finally, your instructions were that your Will should include a gift of your various quoted company shares to Philip and it would be helpful if you were able to let me have photocopies of the various share certificates…”

This is one of the few references to the Argyle Road transfer in the contemporaneous correspondence.

The disclosed documents then include an email from Mr Jordan to Mr Harding dated 30 July 2008, saying:

“Philip called this afternoon to give the go-ahead re the trust so while I await the death certificate I am attaching the draft trust and covering letter.”

Mr Jordan was asked in cross examination, with reference to this correspondence, about being happy to take instructions from Philip that a gift from Jeanne should be made for his benefit. He replied, “I imagine at the time I thought he would have been passing on Jeanne's instructions”, but confirmed he had no way of knowing that that was the case.

On 29 August 2008 Mr Jordan sent Mr Harding further papers concerning Peacehaven, Argyle Road and various other properties, which he said had been provided by Philip. He said:

“My current understanding is that Mrs MacDougall wishes to gift 46 and 46A Argyle Road to Sandra and Philip after the transfer to the trust has taken place and I believe the other properties are held in an existing grandchildren's trust made by Mr & Mrs MacDougall. As yet I have no instructions regarding those other properties…”

On 9 September 2008, Mr Jordan wrote to Jeanne, Philip and Sandra enclosing the Trust Deed, TR1 and SDLT form which had been prepared by Mr Harding. His letter said that provided they were content that the Trust Deed met their wishes, it should be executed following the procedure outlined in the letter. No other advice was given to Jeanne or anyone else in relation to the transaction.

The TR1 for the transfer of Peacehaven from Jeanne to Philip and Sandra was signed on 25 September 2008 and registered on the 29^th.

It appears that on 9 October 2008 Mr Jordan sent paperwork for the transfer of Argyle Road, probably also to Jeanne, Philip and Sandra, because on 3 November 2008 he wrote acknowledging receipt of that paperwork back from them. The execution of that transfer was witnessed by Mr Clifford and the papers returned to Mr Jordan by post on 27 October 2008. Also in the letter of 3 November, Mr Jordan enclosed a draft of what would become Jeanne’s 2008 Will. The terms as explained in the letter are the same as in the executed will. Mr Jordan continued:

“I should be pleased if Mrs MacDougall would confirm that the Will meets her wishes or alternatively of any amendments required. I shall then let Mrs MacDougall have the engrossment together with instructions for execution; I could act as one witness if you would like me to call in but you would need to organise another non-family member to be the second witness.”

On 10 November 2008, Jeanne wrote to Mr Jordan saying “This is just to confirm that the Will meets with my approval”. This letter appears to have been typed and is signed by her, so I infer it was probably prepared by Jeanne herself.

On 12 November 2008 Mr Jordan wrote to Jeanne with the engrossment of her will with instructions for its execution. There is no evidence that he was present or went through it with her before it was executed. The 2008 Will was executed on 18 November 2008 without further involvement from him. There is a letter of 24 November 2008 from Mr Jordan acknowledging receipt of the executed will, which he said he was returning to her for safekeeping with a copy.

On 29 January 2009 Mr Harding wrote to Mr Jordan saying he had received the information about the value of Argyle Road and that property had now been transferred. He said he would hold the deeds for both that property and Peacehaven, and enclosed copies of the Land Registry entries and his bill.

On 8 May 2009 Mr Jordan wrote to Jeanne with details of the transfer of Peacehaven into the trust and the gift of Argyle Road, to be passed to the person who dealt with her tax return. Mr Rogers’ oral evidence was that he did not make the relevant claims because Jeanne did not give him the information. I accept that no claim was made through him.

I note that also in the summer of 2008, Gary’s affair was discovered by Anna, who told Sandra and Jeanne about it in August 2008. There is nothing in the sequence of events concerning Jeanne’s 2008 Will (or indeed the transfers of Peacehaven and Argyle Road) that suggests to me that this knowledge had any effect at all on Jeanne’s testamentary intentions or her other property transfers, which were well in train by that time.

Gary’s case is that the transfers of both Peacehaven and Argyle Road were the consequence of Philip’s, or Philip and Sandra’s, undue influence on Jeanne.

In terms of the necessary relationship of trust and confidence, I have already found that this existed, for the reasons set out in paragraphs 261 to 263 above.

It is notable that key steps, such as giving the go-ahead on drafting the trust deed, were taken by Philip and not by Jeanne herself.

Gary says he did not find about these transfers until sometime later, and that he did so from checking Land Registry records (which he was accustomed to doing, as a property developer). He says he saw works being carried out at Argyle Road which made him suspicious, and this caused him to check the records for both properties. He was not able to say exactly when this was, and it could have been 2011/12, but was no later.

Mr Martin submitted that the gifting of Peacehaven into a discretionary trust for the benefit only of the Thomas side of the family was a transaction which called for an explanation for the following reasons:

Mr Learmonth rejected the contention that this was a transaction which called for an explanation, submitting that:

My conclusion is that this transfer of Peacehaven into a discretionary trust for the benefit of the Thomas family was a transaction which called for an explanation, in an Etridge sense, for the following reasons:

Accordingly, in my view a presumption does arise that the Peacehaven transaction was the result of the undue influence of Philip and Sandra, predominantly Philip but including them both because Sandra left such decisions to him. The issue then arises whether they have rebutted that presumption.

Mr Martin submitted the presumption could not be rebutted because:

Mr Learmonth submits that if any presumption arises, then it is rebutted by reason of the following:

My conclusion is that Philip and Sandra have failed to rebut the presumption, and making a holistic assessment, my conclusion is that the Peacehaven transfer was the result of their undue influence. I accept the submissions of Mr Martin on this point. More particularly, my reasons are as follows:

Accordingly, I am quite convinced that the Peacehaven transfer to the Thomas family trust was the result of Philip and Sandra’s undue influence on Jeanne.

I accept Mr Martin’s submission that the appropriate remedy is rescission of the transfer of Peacehaven, since it remains in that trust.

Mr Martin submitted that the background to the Argyle Road gift was even murkier than Peacehaven, and that it was a transaction which called for an explanation because:

Mr Learmonth rejected the contention that this transaction called for any explanation. He relied on many of the same factors as for Peacehaven, but also the following:

My conclusion is that the Argyle Road gift is also a transaction calling for an explanation, for the following reasons:

Again, in my view a presumption therefore arises that the Argyle Road gift was the result of the undue influence of Philip and Sandra, so the issue arises of whether they have rebutted that presumption.

Mr Martin again submitted that they could not rebut that presumption. Many of his reasons were the same as for Peacehaven, but in addition:

Mr Learmonth submitted that insofar as this was necessary, the Defendants had rebutted the presumption, and he also emphasised that the issue of undue influence should be assessed holistically. Many of his submissions related to both Peacehaven and Argyle Road, and were as set out above. In addition:

My conclusion is that Philip and Sandra have failed to rebut the presumption in relation to the Argyle Road transaction either. All of my reasons set out at paragraph 307 above also apply here. In addition:

My conclusion is that the gift of Argyle Road was indeed the consequence of the undue influence of Philip and Sandra over Jeanne, and that it was an early stage of a pattern of such undue influence which strengthened and became more obvious over the next 12 years as Jeanne’s capacities weakened and her dependency increased.

In principle, the remedy will be rescission of the transfer of Argyle Road, but this will be subject to the effect of the grant of a long lease of the ground floor flat (46 Argyle Road) to Emma and her partner Jonathan Tween on 23 September 2016 for £250,000. The CoreProp evidence is that on 27 October 2008, that flat had a value of £450,000 and the first floor flat at 46A had a value of £300,000. 46 Argyle Road was sold by Emma and her partner to third parties on 26 February 2021 for £795,000, according to the Land Registry records. I will therefore hear submissions from the parties on how that remedy should be framed and whether and how any equitable compensation should be assessed.

A small number of the witnesses on Gary’s side say that Jeanne began to show difficulties with her cognitive abilities from 2010. At that point she was 81 years old, but was still working and driving. In October 2010, Jeanne had a parking accident in the business’s car park, which some witnesses relied on.

Gary says in his statement that from about 2010 there was a marked decline in Jeanne’s memory, and she started making mistakes at work from this time, including getting clients’ names wrong, forgetting to sign cheques, getting confused and mis-filing. He says that she was good at covering up her mistakes, for example would engage in conversation without knowing who she was talking to. He says she sometimes drove to the wrong office, but he is not specific about dates. He says she became visibly distressed during a reenactment of World War 2 child refugees in February 2010, seeming to be believe she was back in that time.

I also viewed Laura’s video of Jeanne talking about her wartime experiences, prepared for a university project, which dates from 2010. I bear in mind that it was significantly edited (the recording was over the course of an hour and the video was edited to about 10 minutes), but it is nevertheless a useful snapshot. Laura said the interview was not rehearsed and that most of the stories were ones she had heard before and were familiar to Jeanne, which I accept. In it Jeanne is well able to remember and talk at length about her wartime experiences, including describing many particular incidents. Laura said in evidence that the way Jeanne spoke in it was more formal than normal. Jeanne’s delivery comes across as a bit wooden, as Mr Martin contended, being slower and less animated than one might expect from such an interview, but Jeanne does not appear confused and certainly comes across as understanding what she is doing and why she is there. Of course, as the medical experts explained, longstanding memories of this kind are the least and last likely to be affected by a condition like Alzheimer’s, which tends first to affect the laying down of new memories.

Mr Orton says Jeanne’s health deteriorated “with things starting to change in around 2010”. His examples are not dated, except for a reference to her sometimes looking glazed as if she did not know who a person was, but this could have many explanations.

I have already said that I do not place any weight on Mr Rogers’ recollections of Jeanne, as he appears to have been significantly mixed up about dates in this regard.

Neither medical expert considers Jeanne would have been showing symptoms of dementia in 2010.

My assessment is that there is no good evidence that Jeanne’s capacities had started to decline in any relevant way in 2010. While she was probably starting to struggle a bit at work, it is unusual for an 81-year-old still to be working in an office, and I do not consider such difficulties to have been atypical of someone her age. I do accept that Jeanne’s relationship at work with Gary became more fractious from this time, most probably because she was becoming gradually less able, and I accept Emma’s evidence that Jeanne sometimes came home upset as a result. However at this point, I consider that her difficulties were simply characteristic of old age.

On 10 March 2011 Mr Jordan visited 1 Beaufort Close and had a meeting with Jeanne to discuss a new will with her. He says that this took place in the kitchen and that Philip and Sandra were present but withdrew when he discussed the will with Jeanne. He said in oral evidence that this was one of the few things about which he had a proper recollection. I accept this aspect of his evidence which I do consider to be inherently likely to be true.

The only record of the meeting is Mr Jordan’s letter the next day with the engrossment of her new will (the 2011 Will, the terms of which did not thereafter change), in which he said:

“WILL

It was good to see you again yesterday and I am writing as promised to enclose the engrossment of your new Will.

As compared with the 2008 version you now specifically gift your interests in all the listed properties to Sandra and Philip, otherwise the provisions are as before.

Provided you are content that the Will meets your current wishes it should be executed as follows: [he then set out the procedure for doing this].”

Mr Jordan’s evidence about this meeting was essentially his own inferences from the documents and what he believed he would have done. He could not recall who invited him, saying it could have been any of Jeanne, Philip or Sandra. There is no evidence of him being given any prior instructions by Jeanne as to the terms of the new will and no indication he brought any new draft will with him. He said in evidence that he probably brought a copy of the 2008 Will with him and the meeting progressed by him going through it with Jeanne to see what was to be changed. This was one aspect of Mr Jordan’s evidence where he wobbled significantly between saying he could recall it and saying he imagined this was what he would have done, but he could not say definitively that he did.

Philip accepted in cross examination that he would have telephoned Mr Jordan to ask him to prepare a new will for Jeanne, and agreed there was no evidence of Jeanne asking him to do this. He claimed Jeanne told him she wanted to make a new will and that he did not ask what had changed, because this was Jeanne’s business.

A significant curiosity about this meeting is that Philip gave late disclosure of an email he sent to himself dated 9 March 2011, i.e. the day before, which was in the following terms:

“Subject: Change will:

Change will:

I want to leave 21 Aveune [sic] Crescent W3 to Sandra & Philip and also 45 Berrymead Gardens W3

I would like Sandra & Philip to have power of attorney over my affairs should I no longer be able to manage my own affairs due to frailty or mental disability”

Philip said in cross examination that he has no recollection of how he came to write this email.

Mr Martin points out that Philip and Sandra said repeatedly in their witness statements (served before this email was disclosed) that they were not involved in the will making process and Jeanne gave her instructions to Mr Jordan in their absence. He submits that this is inconsistent with this email, which he says looks like a script prepared by Philip of what Jeanne should say. Mr Jordan said in evidence that he was fairly confident he had not seen this email before, and there is no evidence that it was given to him. He accepted that it accurately summarised the instructions he believed he got on 10 March 2011.

Mr Jordan said he had no concerns about Jeanne’s capacity. He said that if he had, then he would have followed the “golden rule” and proposed a medical assessment, but he did not understand that rule to mandate recommending such an assessment unless he had such concerns.

As already noted, the only two changes made as between the 2008 and 2011 Wills were that 21 Avenue Crescent and 45 Berrymead Gardens were now left to Philip and Sandra, with the consequence that no specific properties were left to Gary or his side of the family but four specific properties were left to Philip and Sandra.

Mr Jordan said explicitly, in response to one of my questions, that his understanding of his instructions was that he was just making these specific changes to her will, and his instructions were not to do anything broader. He then said, in cross examination, “Jeanne's instructions were that the specified properties should be left to Sandra and Philip.” Later he said, “… my recollection is that it was simply that change and, as I say, I very much imagine I would have had the 2008 Will with me.”

I accept that evidence. I find that Mr Jordan brought a copy of the 2008 Will to the meeting, that his approach was to go through the terms of that will with Jeanne and discuss what she wanted to change, and that he confirmed with her that she wanted to make those two changes to the bequests of these two properties. Given the lack of any other documents or record of instructions pre-dating this meeting, other than of course Philip’s 9 March email, I consider that this must have been how Mr Jordan took his instructions from Jeanne for this new will, because I cannot sensibly see how else he could have done it. This sequence of events means that at no point did Mr Jordan go through or read to Jeanne the final draft of the 2011 Will, because he simply sent it to Jeanne the next day under cover of his letter quoted above and did not visit again.

This still leaves the question how it was first communicated to Mr Jordan that Jeanne wanted to make a new will which made this change in respect of these two properties. The terms of Philip’s 9 March 2011 email to himself are notably in the first person, and I agree it reads more like a script prepared for Jeanne than simply a note of her instructions. I am very sceptical of Philip’s evidence that he remembers nothing about this email or how he came to write it, even now that he has re-read it. I consider he probably could say a lot more about how he came to write it if he wished to, and that his claim that he can remember nothing is self-serving.

Nor do I accept Philip’s evidence that this all started with Jeanne saying to him, effectively out of the blue, that she wanted to make a new will, let alone that he did not ask her what had changed because that was her business. This second assertion, which he made in oral evidence, is inconsistent with the 9 March email, which shows he knew exactly what her instructions were going to be. My conclusion is that Philip was being evasive in evidence around all the circumstances which led up to the 2011 Will being prepared, and that he was doing this because he wanted to minimise how much he was involved.

In my view it is most likely not only that Philip invited Mr Jordan to attend on 10 March, but also that he told him on the phone that the intended change to Jeanne’s will was to switch 21 Avenue Crescent and 45 Berrymead Gardens to be left to himself and Sandra. I reach this conclusion because of the lack of any recorded instructions at all prior to the meeting other than Philip’s own email to himself; because this is most consistent with Mr Jordan simply bringing the 2008 Will with him as a way of taking her instructions; and because it seems very unlikely that Jeanne also called Mr Jordan.

In that context, the 9 March 2011 email looks most likely to be a note for Philip of simple words he would use to remind Jeanne immediately before the meeting on 10 March of what she should say to Mr Jordan. This of course begs the question of the extent to which that script represented Jeanne’s wishes and the extent to which it set out Philip’s aims.

It was Mr Jordan’s evidence that he did not explain the rest of the will to Jeanne at the meeting. The relevant exchange was as follows:

This must be true. If Mr Jordan only had the 2008 Will with him, it seems very unlikely that he would have explained the terms of that old will to Jeanne, as opposed to just discussing with her what she wanted to change and the effects of those changes.

Sandra gave evidence that at around this time, though she was not sure if it was before or after Mr Jordan met Jeanne on 10 March, she had a conversation with her mother in which Jeanne said she had made or was making a new will leaving everything to her and Philip. She said she asked Jeanne if she was sure, that she was a smoker and could die before Jeanne, but Jeanne said she was sure. This was one aspect where Sandra’s evidence significantly failed to come up to proof with what was in her statement, being much more vague, and especially unclear as to timing. Philip says there was such a conversation but it was after Mr Jordan sent the 2011 Will back. My conclusion is that some kind of conversation between Jeanne and Sandra to the effect that Jeanne was leaving her estate to Sandra probably did happen in about March 2011, that its timing is unclear, but it is more likely to have happened after the meeting on 10 March. In the overall context, it is more likely to have been Jeanne telling Sandra afterwards. I am doubtful about the detail that Sandra asked Jeanne whether she was sure and Jeanne said yes, which sounds like a self-serving embellishment, and I do not accept that part.

On 14 March 2011 Jeanne executed the 2011 Will. Her signature to it was witnessed by the Cliffords. Mr Clifford could remember the occasion and I accept his evidence. He said there was no discussion about the will, and it was none of his business. His evidence was that the whole process took five minutes. He said he and his wife had young children at the time and did not spend much time away from them. He was unsure if Philip and Sandra were there too, but assumed they were, as they and Jeanne all lived together. There is no suggestion that the will was read to or indeed read by Jeanne immediately before she signed it when the Cliffords were there, and I find that this did not happen.

On 22 March 2011 Mr Jordan returned the executed will and a photocopy to Jeanne, under cover of a letter of that date.

On 29 June 2011 Mr Jordan met Jeanne, Philip and Sandra for the preparation of the LPA. It was completed incorrectly by Mr Jordan with the result that it was rejected by the Office of the Public Guardian (“OPG”) and needed to be re-signed by Philip, Sandra and Mr Jordan.

The meeting at which the re-signing of the LPA took place was on 10 November 2011, at 1 Beaufort Close, attended by Jeanne, Philip, Sandra and Mr Jordan. Sandra said it was probably arranged by Philip, and this seems the most likely. The LPA was resubmitted to the OPG on 15 November 2011 and accepted.

Jeanne’s handwritten November 2011 Letter, addressed to Gary and Sandra and explaining her 2011 Will, is also dated 10 November 2011, albeit the date has been added (at the beginning and end) in a different pen, though also apparently in her handwriting. It is on coloured letter paper, in a matching envelope addressed “To Gary and Sandra”.

The most obvious conclusion, and the one I reach, is that the November 2011 Letter was written by Jeanne in advance of that meeting and then shown to Mr Jordan at the meeting, and that he recommended adding the date, which she did. Mr Jordan must have taken it away and copied it, because he disclosed a certified copy dated 15 November 2011. It seems very likely that he then posted it back to Jeanne.

There is no clear evidence as to what happened to the November 2011 Letter between then and Jeanne’s death, since Philip, Sandra, Mr Tracey and Mr Jordan all deny having possession of it. Philip denies having any recollection of it until after Jeanne died. I accept Mr Martin’s submission that this is not credible, especially since Mr Tracey was able to send a copy of the letter to Gary shortly after Jeanne died. Mr Tracey says he would have been given it by Philip or Sandra and I agree that this is most likely to be correct, and that Philip and Sandra, and probably Philip, had possession of it in the meantime.

The November 2011 Letter is an important document, and I set it out in full:

“Dear Gary & Sandra 10^th November 2011

I have left my estate to Sandra and Philip because Dad left Gary the business and the income it provides. He also gave Gary 174 Avenue Road which he converted into three large flats. On the yard Gary built Launders Gate (five houses). Gary also received 81. Mill Hill Road which is three self contained flats and yard.

The present Freehold Premises at 140 Horn Lane is in your name, this is a shop with offices and a self contained flat above which will provide Gary with further income.

When Dad was alive he used the business to maintain yours and Sandra’s properties but since he died Sandra has had no help in maintaining them herself whereas you have been able to use the business.

It was always Dad’s intention to transfer properties to Sandra and Philip to make things more equal but sadly he died before he was able to do this.

I haven’t left anything to any of my grandchildren because they will all benefit from the Trust, you and Sandra will be able to pass on what you have to them when you think the time is right.

I am proud of you both and hope you will look after each other and all my grandchildren.

Love Mum

10^th November 2011.”

Mr Martin’s submissions in respect of this letter, so far as disputed, were that:

Mr Learmonth’s submissions were that:

I deal with my conclusions on the November 2011 Letter below together with my conclusions on the 2011 Will to which it relates.

There are two pieces of contemporaneous or near contemporaneous documentary evidence as to Jeanne’s capabilities and behaviour during 2011:

As to (ii) and (iii), my assessment is that in their oral evidence Emma and Laura were both understating Jeanne’s difficulties, as I have found they did throughout. My assessment is that this Messenger exchange shows that by October 2011, the whole Thomas family were aware that Jeanne had difficulties which were significant enough to be frustrating for others, that she could no longer be trusted to be fully independent and needed to be looked after by her relatives when she was out. I accept that to some extent Emma and Laura were just expressing irritation because they would have preferred to be with their friends (as they said in evidence), but this still begs the question of why it was felt to be necessary that they entertain and look after Jeanne to this extent.

On 17 January 2012 the LPA was registered with the OPG.

In June 2012 Jeanne went on a holiday with her family to Crete, during which it is recorded in the medical notes that Sandra said Jeanne had an episode of confusion and disorientation. Emma said she recalled an incident around this time when Jeanne asked if they were having a sleepover, which she thought was odd.

On 31 August 2012 Jeanne was seen by her GP due to memory loss symptoms. She was referred for tests for dementia, including blood tests and a memory assessment, and there are records of her scores of ACE-R 59/100, MMSE 23/30, mini mental state examination of 23/30 and Bristol Activities of Daily Living 2/60.

On 10 October 2012, Jeanne underwent an MRI scan, the report from which was:

“There are scattered deep and subcortical white matter hyperintensities in keeping with mild small vessel disease. There is mild to moderate diffuse volume loss. No space occupying lesion seen. No other significant lesion.

Conclusion: mild small vessel disease only. No other significant lesion”.

We reviewed the images on 26/10/12. There was mild generalised atrophy and ventriculomegaly, but moderate medial temporal lobe atrophy and temporal horn enlargement. There were also a few scattered lacunar infarcts in the deep grey matter.”

On 26 October 2012, a senior nurse practitioner diagnosed dementia due to Alzheimer’s disease, set out in a detailed letter. Jeanne was prescribed Donepezil 5 mg daily for dementia and advised to stop driving immediately. The letter includes the following description of Jeanne’s presenting complaint and history:

“Mrs MacDougall acknowledges that she may be having some memory problems… Sandra feels that her mother’s memory has declined in the past 18 months. Natural history is reported to be of 18 months duration with insidious onset and gradual decline without fluctuation reported. Her daughter reports that her mother was gradually becoming more forgetful but the whole family noticed a deterioration following a holiday to Crete in June 2012. She reported that her mother became more disorientated whilst on holiday not realising where she was and on one occasion swore at her daughter which was completely out of character.

Her daughter has noticed that her mother has become more repetitive, has word finding difficulties, is unable to retain information, forgets appointments, forgets peoples names and has difficulty learning new information (unable to use a computer; continues to use a typewriter). Mrs MacDougall continues to work in the family building business three days a week but is finding it more difficult to cope in the office and her work is now being streamlined to basic administration tasks. Her attention and concentration have decreased.

Behavioural and psychological symptoms include anxiety, disinhibition (the episode of swearing at her daughter on holiday; this has only happened on one occasion) and apathy…

No abnormal beliefs or hallucinations noted. Exhibited amnesia and executive dysfunction, aphasia and visuospatial apraxagnosia to a lesser degree. Self-care intact.

[The report then set out the results of the memory and other tests carried out].”

Sandra was inclined to resile from this account in her oral evidence, but this is most probably because of the passage of time and the effect of litigation. She eventually confirmed that she told the nurse she had started to notice a decline in Jeanne from about April 2011, but she denied it was any earlier than this.

I accept the account set out in this letter as being an accurate record of Sandra’s perception of Jeanne’s difficulties at that time. As a history taken shortly after the events concerned, events now more than 13 years ago, it is far more likely to be reliable than the much more recent witness evidence. I accept and find that Jeanne displayed symptoms of Alzheimer’s disease observable to a close relative in a gradually increasing way over about the 18 months prior to October 2012, i.e. going back to about April 2011.

By the end of 2012, the medical notes record further episodes of confusion.

On 14 December 2012 the meeting between Philip and Gary at the Double Tree Hilton hotel took place, attended by Mr Rogers and Mr Jordan, to discuss the termination of the Grandchildren’s Trust and division of the properties. I have made findings at paragraph 93 above at rejecting Philip’s evidence that Gary said anything on that occasion about not being left anything in Jeanne’s will.

In their joint statement, Professor Burns and Dr Series say the following about Jeanne’s mental capacity at the time she executed the 2011 Will:

“2.1

We agree that the Deceased suffered from dementia due to Alzheimer’s disease which the records indicate was diagnosed in 2012, but symptoms of which were reported to have been present since 2011.

2.2

We agree that dementia is a progressive condition so that her symptoms would have gradually worsened from 2011 until she died in 2020, although not necessarily in a linear way.

2.3

We agree that on the balance of probability the Deceased would have had capacity to execute the 2011 Will.”

In the summary in his report, Professor Burns states:

“2.4.

In my opinion and on the balance of probabilities, Mrs MacDougall:

• would have had testamentary capacity to execute the 2011 Will”.

At 13.9 he says, in relation to limb 4 of the Banks test of testamentary capacity:

“Although Mrs MacDougall had a disorder of mind, there is insufficient medical evidence to show that her impairment was severe enough to rob her of testamentary capacity...”

At paragraph 11 he agrees with Dr Series’ conclusion that Jeanne had testamentary capacity for the 2011 Will.

In his main report Dr Series says at 12.3.4:

“By the time she signed the 2011 will on 14.03.11, the Deceased had not yet been diagnosed with dementia, and there is no entry in the medical records prior to that date suggesting that she had cognitive problems of any kind. However, as noted above, by the time that she was assessed in the memory clinic in October 2012, it is reported that she had had memory problems for the past 18 months, suggesting that they may just have begun at about the time that she signed the 2011 will. Dementia is a progressive condition, and even 15 months later, on 31.08.12 her score on a test designed to assess whether there was sufficient cognitive impairment to merit referral for further investigation was still only just at a level indicating referral. This suggests to me that at the time she signed the 2011 Will impairments were very slight, and in my view unlikely to have undermined her testamentary capacity.”

Professor Burns agreed in cross examination that the pathology would have been present in Jeanne’s brain for some time before October 2012 and that symptoms in terms of memory problems would have been observable from some time in 2011 onwards.

When asked whether it was possible that Jeanne had had multiple impairments over the 18 months leading up to October 2012, Dr Series said it was possible but he had not seen evidence of it.

On the issue of whether Jeanne had testamentary capacity in relation to the 2011 Will, Mr Martin submitted:

On testamentary capacity, Mr Learmonth submitted:

The first question is whether the 2011 Will is duly executed and appears rational on its face, since then the court will presume capacity and the evidential burden passes from Philip and Sandra as propounders to Gary.

It is not clear to me that due execution has been formally conceded by Gary, but no submission was made to me that the 2011 Will was not duly executed. I find that it was, on the basis of the Cliffords’ evidence as to its execution, especially Mr Clifford’s.

Further, in my view this is clearly a will which is rational on its face, unsurprisingly so given it has been drafted by a professional. What it is intended to do is perfectly intelligible, even if its structure (which mirrored that of the 2008 Will) is unusual in disposing of all major assets by specific legacies.

According to Key, the evidential burden therefore passes to Gary to raise a real doubt about capacity. In my judgment, he has done this, for the following reasons:

Consequently, I consider the evidential burden does shift back to the Philip and Sandra to establish capacity nonetheless.

As to this, and considering all of the medical, expert and lay evidence in its totality, my conclusion is that Jeanne did have testamentary capacity in relation to the 2011 Will.

My reasons are as follows:

In my view the present case is not one where the fact that I have concluded Jeanne had testamentary capacity, and that the 2011 Will was duly executed, takes me swiftly and easily to an inference that knowledge and approval is established. Either I will have to follow the traditional two-stage test outlined above, with a switching evidential burden, or apply the holistic approach commended in Gill. Given the very extensive, interlocking evidence I have heard, I found it easier to adopt the Gill approach, but as will become apparent, this would alternatively be a case where “suspicious circumstances” have been raised by Gary sufficient to place the final burden of proof on Philip and Sandra. I have therefore approached this question as one where the burden of proof is on Philip and Sandra, as the propounders.

Mr Martin’s submissions on knowledge and approval were as follows:

Mr Learmonth’s submissions on knowledge and approval were that this was a pretty ordinary case. In particular:

This case is relatively unusual in that I am not being asked to consider the validity of the 2011 Will in isolation, but in a case where I have already found an established case of undue influence against Philip and Sandra in respect of two substantial lifetime gifts in 2008. Moreover, I have found that a pattern had begun, of transactions by Jeanne which favoured Philip and Sandra and their family over Gary and his family, starting unobtrusively but becoming increasingly up-front over time, a pattern which appears to me to have been much more driven by Philip and Sandra’s wishes and sense of entitlement than by Jeanne seeking to achieve equality between her children.

I am very mindful of the different legal tests which apply in the testamentary context, as compared to undue influence in relation to lifetime gifts, and the different policy considerations underlying those different tests, but it would be wrong to ignore this history in working through the facts.

As Mr Martin submitted, from Jeanne’s perspective there was no obvious reason for her moving away from the allocation of properties in the 2008 Will. In my view it is inherently unlikely that Jeanne simply decided in early 2011 that she wanted to remake her will to make it much less favourable to Gary, by switching the two properties left to his side of the family in the 2008 Will, to Philip and Sandra. Nothing had happened to cause such a change.

The explanation for Jeanne’s 2011 Will which Philip, Sandra and Mr Jordan repeatedly put forward is that Jeanne felt that Gary had “had enough”. This is also the tone of the November 2011 Letter. However, not only had that not changed between 2008 and 2011, but from Jeanne’s perspective, the fact she had gifted Peacehaven and Argyle Road to Philip and Sandra in 2008 might have been thought to have evened up the scales a bit.

There are errors and inaccuracies in the November 2011 Letter, but I do not place great store by them since they are for the most part either debatable points (such as that Gary had been given “all” of the business, rather than having bought part of it), or are understandable mistakes, such as mixing up 172 and 174 in the business address. However I do think that there is a “bias” in the errors, in that they tend to be misdescriptions against Gary.

Overall, what I find the most striking about this letter is its one-sidedness. It emphasises what Gary has received while making no reference to the many properties which had been gifted to Sandra and Philip. This is not to deny that Gary had been gifted properties by Alec and Jeanne, but this letter does not read like a weighing up of what each had received and then a conclusion as to what would approximate closest to equality. Apart from the last line, it actually reads more like the “it’s not fair!” entitled complaint of a sibling with which any parent will be familiar.

My conclusions as to the November 2011 Letter, and the assistance it gives me as to whether Jeanne knew and approved of the 2011 Will she had executed 8 months earlier, are that:

With these findings as to the November 2011 Letter in mind, my conclusions on knowledge and approval are as follows:

Accordingly, I find that Philip and Sandra, as the propounders of the 2011 Will have established the necessary knowledge and approval of the 2011 Will on the part of Jeanne.

I have reached this conclusion on a holistic consideration of all the evidence, but insofar as one might take the traditional approach, my conclusion would be that “suspicious circumstances” have been established by Gary, such that the evidential burden went back to Philip and Sandra, but that they have successfully discharged that burden. Which approach I take does not therefore affect the outcome.

Subject to considering the third head of challenge, testamentary undue influence, the 2011 Will is therefore in my view valid.

As Mr Martin says, this issue only arises if I find testamentary capacity and knowledge and approval established, as I have done. The burden of proof on this issue is on Gary, as the person alleging it.

On the alternative challenge to the 2011 Will of testamentary undue influence, Mr Martin’s submissions were as follows:

Mr Learmonth’s submissions on this issue were as follows:

My conclusions are as follows:

Accordingly, I reject the claim of testamentary undue influence in respect of the 2011 Will.

It follows that the court will pronounce in favour of the 2011 Will.

It is convenient to deal here with Gary’s claim of proprietary estoppel in relation to 21 Avenue Crescent. Mr Martin submits that it only arises if the 2011 Will is valid, because it was under that will that it was left by Jeanne to Philip and Sandra. As I have indicated, by the end of the trial, Mr Martin had clarified that this head of claim was only pursued in relation to that property.

Furthermore, I have found that Gary knew by 7 March 2013 at the latest that Jeanne was leaving 21 Avenue Crescent to Sandra and Philip in her will, so any alleged promise by Jeanne cannot be relied upon after that date (see Scott, referred to above at para. 191).

Mr Learmonth submits in his final written submissions that this claim operates independently of any will. I understand this to be because 21 Avenue Crescent was subsequently gifted by Jeanne to Philip and Sandra in 2015. Insofar as my conclusions on the proprietary estoppel claim affect the subsequent dealings with 21 Avenue Crescent, I will consider that later.

In his closing submissions, Mr Martin put Gary’s case on proprietary estoppel in the following way:

Mr Learmonth’s closing submissions on this issue, as limited to 21 Avenue Crescent, were as follows:

In my judgment, Gary’s claim to 21 Avenue Crescent fails for the following reasons, which essentially accept Mr Learmonth’s submissions:

Since the proprietary estoppel claim in respect of 21 Avenue Crescent fails on its merits, it is not a factor which it is necessary to consider in connection with the other challenges to the gift of 21 Avenue Crescent, in 2015.

On 7 March 2013, an altercation happened at 1 Beaufort Close between Gary, Sandra and Jeanne. I have set out at paragraph 46 above, in assessing Gary as a witness, briefly why I rejected his denial that this altercation happened, but I set out the full analysis here.

In her statement Sandra says Gary visited them on that day, and the conversation turned to something about Jeanne’s properties. Sandra says she became frustrated by Gary talking about properties she knew Jeanne had left to her and she said words to the effect, you might as well know Mum has left everything to me. She says Jeanne was present, and she added that this was what she wanted because Sandra and Philip had been taking care of her for the past 10 years. Sandra says Gary reacted explosively, shouting “When she’s dead I’ll take you to court”.

Emma says she walked in on the end of this exchange, and heard him say this, and that Sandra replied, “how can you say that when she is sat right there?” It was put to Emma in cross examination that she was only told about this afterwards, as Sandra said Emma was not in the room. Emma denied this, saying “I was there, so I know what happened.” She said she has spoken to Sandra about it because it was shocking, but she could recall it very well.

Philip says he came home to find Sandra and Jeanne upset, but missed Gary. He says Sandra told him what had happened and that he then telephoned Mr Tracey to tell him and ask his advice. Mr Tracey advised him that they should make an immediate note, sign and date it.

Mr Tracey says in his statement that he remembers a call from Philip in 2013. He remembers only that there had been an argument involving Gary, Sandra and Jeanne, and Gary had threatened court proceedings. He remembers asking Philip whether there was anything he could do, and suggesting Philip or Sandra write down what had been said, and sign and date the note so there would be a contemporaneous record of the altercation if proceedings were ever issued, and says that it appears Philip followed that advice. He was not challenged on this evidence in cross examination and I accept it.

A copy of the word processed, signed and dated note was in evidence. It read as follows:

“NOTE

On the 7th March 2013, between 5pm and 6pm a meeting took place at 1 Beaufort Close W5 3EE. Present were Mrs. Sandra Thomas, Mrs. Jeanne Mac Dougall and Mr. Gary Mac Dougall, Emma Thomas was in the adjoining room.

It is signed and dated by hand at the bottom by both Sandra and Jeanne.

I accept that note as an accurate record of what happened on 7 March 2013, because it was prepared most probably on the same day and has been signed and dated by both Jeanne and Sandra. It is corroborated by Mr Tracey’s unchallenged evidence.

I do not find it necessary to decide whether Emma was actually in the room, or was told about it afterwards and now remembers it as if she was there.

Consequently, I conclude that:

Very shortly afterwards, it appears Philip approached Mr Jordan about preparing a codicil to Jeanne’s 2011 Will replacing Gary as an executor with Philip. The exchange of correspondence and instructions appears to have been handled by Philip, and I so find.

Mr Martin submits that it is reasonable to infer that Philip and Mr Tracey discussed organising a codicil removing Gary as an executor. Philip says he could not have come up with this by himself, and this does seem the most likely source of the idea. On 8 March 2013 Philip made a partial scan of the 2011 Will, which would fit with this timeframe.

Mr Jordan wrote to Jeanne on 12 March 2013 enclosing a draft codicil. The letter says:

“I am now pleased to enclose the above Codicil appointing Philip as executor and removing Gary. Provided you are content that it meets your wishes it should be executed as follows”, [followed by instructions for execution].

On 14 March 2013 Philip emailed a scan of the draft codicil to Mr Tracey, asking “is this ok”. On 18 March 2013 Philip emailed Mr Jordan thanking him for the draft codicil and asking him to add a third clause confirming the terms of the 2011 Will. The obvious inference is that this was done on Mr Tracey’s advice. Mr Jordan emailed Philip on the same day saying: “It’s done and will be in either tonight’s or tomorrow’s post to Mrs M.”

On 19 March 2013 Mr Jordan wrote to Jeanne, saying he now enclosed the amended Codicil. He said that if it met her wishes, she should execute it following the procedure set out. He did not otherwise explain the amendment. On 25 March 2013 Philip emailed Mr Tracey attaching a scan of the revised draft, asking “Is this revised codicil okay?” It appears Mr Tracey confirmed that it was, although there is no record.

On 7 April 2013 Jeanne signed the codicil at a lunch, witnessed by Mr and Mrs Hill, the parents of Laura’s fiancé. Their evidence is that there was no discussion of its terms, and they do not suggest that it was read to or by Jeanne at that point. Mr Hill’s evidence in his statement is that the main provisions were covered by a piece of paper. I accept their evidence.

As to other events in 2013:

Mr Martin asked that I rule on the validity of the 2013 Codicil to ensure all relevant issues are resolved, even though it seems likely that issues about the appointment of executors will naturally follow from the resolution of the issues on the 2011 Will. Mr Learmonth submitted that this was not necessary. However, having heard all the relevant evidence, I propose to do so, mainly in case there are any knock-on effects from my other findings.

The experts’ joint statement says this in relation to the 2013 Codicil:

“3.1

We do not completely agree on whether Mrs MacDougall had capacity to make the Codicil in 2013. Professor Burns opined that she “could” have had capacity to make the Codicil, noting that it is up to the Court to make the final determination of the presence of capacity based on all the evidence before it.

3.2

Dr Series is of the view that on the balance of probabilities the medical records do not suggest that Mrs MacDougall was so impaired as to lack capacity to make the Codicil in 2013.”

Professor Burns says at 13.10 in his own report that:

“Mrs MacDougall had mild to moderate cognitive impairment due to Alzheimer’s disease when she signed the codicil. I think with that degree of cognitive impairment, I would have expected, more likely than not, she could have had the ability to understand the general nature of signing her codicil.”

Dr Series said the following in his main report, at 12.4.2:

“In my opinion by the time that the Codicil was signed, the Deceased’s dementia had clearly progressed, but was no worse than moderate in severity. It appears to me that the Codicil itself is relatively simple in its effect, and therefore the degree of cognitive function required to understand it is relatively small. On the balance of probability I think it more likely than not that the Deceased would have been able to understand the nature and effect of what she was signing at that time.”

Mr Martin’s main submission was that the 2011 Will was not valid, so the 2013 Codicil could not be either, but that is no longer applicable given my findings on the 2011 Will.

Otherwise, his submissions were:

Mr Learmonth’s submissions on the 2013 Codicil were:

In my view there is an air of unreality about Mr Martin’s submissions on the 2013 Codicil. It is obvious from the evidence that the change it effected, to replace Gary as an executor with Philip, was the consequence of the altercation with Gary on 7 March 2013. I have no doubt that this incident upset Jeanne and concerned her as to the future.

The obvious inference is that at the same time as Philip received the advice from Mr Tracey to make a contemporaneous note of the incident, or shortly afterwards, Mr Tracey also advised executing a codicil to the 2011 Will, removing Gary as an executor and replacing him with Philip. This would have been both because Gary was no longer a real beneficiary, and because leaving Gary in place was likely to result in extra difficulties when Jeanne died, given his threats to sue. The fact Philip made a scan of the will on 8 March 2013 supports this conclusion. Philip took charge of giving instructions to Mr Jordan, including asking him to amend it because the first draft omitted a standard clause confirming the terms of the 2011 Will. Although this was a continuation of the pattern of Philip managing and exercising control over Jeanne’s affairs, it is also likely to be in line with what she would have wanted him to do at that juncture.

As to the amendment, I accept Mr Learmonth’s submission that this was a standard clause for a codicil to include and would not have required either a separate explanation, or a further explanation to Jeanne of the whole of her original 2011 Will.

The medical experts agree that Jeanne had mild to moderate impairment at that time due to her dementia, but probably did have capacity to understand the terms of the 2013 Codicil, which were very simple. I accept that evidence.

Furthermore, given the incident on 7 March 2013, I consider it likely that someone, probably Philip, explained to Jeanne that as a result of Gary’s threats to sue after Jeanne died, Philip had arranged with Mr Jordan for Gary to be replaced by Philip as an executor under her 2011 Will, and a document had been prepared to do this. It would have been far easier and more natural just to give her that explanation when showing her the 2013 Codicil to be signed, than to give her no explanation, and I find that it is more likely than not that this happened.

Accordingly, my conclusions are:

I therefore find that the 2013 Codicil is valid.

The next transaction in time is the lifetime gift of 21 Avenue Crescent by Jeanne to Philip and Sandra on 29 April 2015. The run up to this began in 2014.

On 4 April 2014 Philip applied to the Council for planning permission to extend 21 Avenue Crescent, an application which misstated that he owned it. On 23 September 2014 he granted a lease of one of the flats at the property to a tenant, naming himself as the landlord.

On 9 October Mr Tracey wrote to Philip concerning the sale by Philip of two unrelated flats, adding “PS. I will be happy to see Jean and if you give me buzz, I will tie that up.”

On 3 November 2014, Philip, Sandra and Jeanne met Mr Tracey to discuss Jeanne gifting 21 Avenue Crescent to Philip and Sandra. Mr Tracey’s attendance note of that meeting records as follows:

“David engaged on 3rd November 2014 attending Jean McDougall and her daughter Sandra Thomas and son in law Lloyd Phillip in relation to her intended gift of 21 Avenue Crescent to her daughter and son in law by way of joint gift.

I asked if there was any consideration for the gift and she said just love and affection. I asked who would be entitled to the income of the property (which I was informed as a rental property - requiring refurbishment and she said they will be entitled to all of the rental income as she does not need it.

I was quite happy that Mrs McDougall knew exactly what she wanted to do and why and she was orientated in time and place.

Nevertheless I took a note of her GP's details in light of the fact that she advised me that she attends an Alzheimer's clinic.

Sandra and Phillip were with Mrs McDougall but did not involve themselves in my conversation with her.

I specifically asked her as to her son Garry's reaction to this transfer but she advised me that she had already gifted the property affectively in a previous Will which Garry knew all about albeit that will have now been changed [sic].

Engaged 35 minutes”

In his witness statement Mr Tracey says that he clarified the purpose of the meeting, i.e. to gift 21 Avenue Crescent to Philip and Sandra, in their presence, and then saw Jeanne alone. Sandra and Philip appear to believe they remained in the meeting.

It appears Redferns then wrote to Jeanne’s GP, because on 21 November 2014 Dr Pambakian replied to Mr Tracey as follows:

“Thank you for your recent letter regarding the above patient's intention to transfer property to her daughter and son in law in the context of her Alzheimer 's disease.

I note your reference to Mrs MacDougall being orientated in person, place or time and your impression that she understands the implications of what she is doing.

Mrs MacDougall was formally diagnosed with Alzheimer's dementia in 2012. In August 2012, her six item cognitive impairment test score was 10/28 indicating "significant cognitive impairment". In October 2013, her score was worse at 19/28.

She was seen in November 2014 by the memory clinic at which time she was deemed stable but with a Rowland Universal Dementia Assessment Scale score of 17/30 in which scores of less than 22 are indicative of cognitive impairment.

Of course the issue of mental capacity is alongside the diagnosis of dementia but not related in a linear fashion. Mrs Macdougall is perfectly capacitous to determine what she might like to drink or eat or how to spend her afternoon but that does not necessarily mean she is capacitous for weighty financial matters….

… after discussion with my colleagues. I am of the opinion that an independent assessment of Mrs Macdougall's mental capacity should be obtained prior to this important decision in her life.”

On 2 December 2014 Mr Tracey emailed Dr Mukherjee, on the recommendation of the GP practice, to instruct him to provide “an independent assessment of [Jeanne’s] mental capacity in respect of her ability to give sound instructions to implement a transfer of a freehold property that she owns to her daughter Sandra and her son in law Lloyd Philip Thomas.” As Mr Martin points out, that email instruction did not set out any legal test for capacity nor did it provide any factual background.

On 9 December 2014 Dr Mukherjee replied saying he had spoken with Dr Pambakian. He detailed his expertise and asked whether Jeanne had any other children or interested parties and whether a will was in place. Mr Tracey replied on 9 January 2015 that Jeanne had one other adult child, Gary. He did not mention the 2011 Will, or any will.

Dr Mukherjee met Jeanne to carry out the assessment on 9 February 2015. He produced an initial version of his report on 12 February 2015 (“the Report”). He then amended it after an exchange with Mr Tracey, producing a revised version dated 22 February 2015. For reasons I will explain, I consider and counsel agree that it is the original version which is more reliable and to which I refer.

Dr Mukherjee gave evidence about the circumstances of his preparation of the Report, and his conclusions. Understandably he had no separate recollection of the assessment and could only speak from reviewing the Report and as to his normal practice. The Report states that that its purpose was to assess whether Jeanne “… has the mental capacity to make a decision in relation to an instructions implementing a transfer of a freehold property to her daughter Sandra and son in law Llyod Philip Thomas [sic]”.

On the first page of the Report, after saying he had no previous knowledge of Jeanne, Dr Mukherjee described the circumstances of his assessment as follows:

“The assessment was carried out at the above address [1 Beaufort Close] on 9^th February, 2015 at 6 PM. I assessed Mrs Macdougall by herself. After the assessment I had a conversation with her daughter Sandra and her husband Llyod [sic] to clarify some factual information.”

After recording that Jeanne had been diagnosed as suffering from Dementia in 2012 and was currently on treatment, he recorded that:

“Her last assessment in November 2014 recorded her score as 17/30 in RUDAS (Rowland Cognitive Assessment Scale) which would indicate a moderate degree of cognitive impairment. Her daughter and son-in-law are her carers.”

He then said this in the Report about Jeanne’s presentation:

“She understood that I was a doctor and I came to assess her because her solicitor asked me to do so. As the interview progressed, she struggled to remember who I was and thought that I came for some office work but clearly understood who I was and the purpose of my assessment once I re-introduced myself. She was repetitive but consistent in her accounts.”

After recording that Jeanne said she had been living with Sandra and Philip since her husband died, that they had built her basement accommodation where she lived and that she was very happy there and was very well looked after, his Report continues:

“She got [a] bit mixed up between her children and grandchildren when she was trying to tell me about her family but eventually I clarified that her son is called Gary and her daughter is Sandra. She told me that after her husband died Gary got the family business and property. So, the residence where she used to live, she would like to give to Sandra and her husband Philip as a gift. When I asked her which property she is referring to, she said 22 Avenue gardens in Ealing (I later clarified that it is no 21). She also confirmed that Sandra has always been closer to her.

She told me that Gary is aware of this decision. When I asked her why she is excluding Gary from this, she again told me that Gary was given the family business and property and also Sandra and her family are the one who are looking after her all these years and she is very happy here. She said that the fact that she has survived all these years are likely to be down to them.

She clearly understood that once she makes the gift she would have no control over the property and her daughter and son-in-law would have complete control over it and they could make any decision in relation to that. She said that she is happy to do it and that she does not need that property anyway as this is now her home. She denied being under any duress in relation to this decision.

In my opinion, Mrs Macdougall clearly understood the purpose of the assessment and my role. She needed prompting to retain the details but I had no concern about her understanding of the details at any point of time in the assessment. She had clear reasons explaining her decision and that in my view demonstrate a decision making process where she is able to weigh in balance the pros and cons of her wish. She was clearly able to communicate her decision.

So, in my opinion, on balance of probabilities, she has fulfilled all criteria as per Mental Capacity Act, 2005 and she does have capacity to make decisions in relation to an instructions implementing a transfer of a freehold property to her daughter Sandra and son in law Llyod Philip Thomas.

Capacity is task specific and despite of her diagnosis of Dementia and significant cognitive impairment, my assessment clearly establishes her capacity in relation to this particular decision.” [emphasis added]

It is undisputed that Gary did not in fact know about this proposed transfer.

Clearly, the Report referred to the wrong property. The proposed gift was of 21 Avenue Crescent, not 22 Avenue Gardens which was the property where Jeanne and Alec had initially lived as a family and which had been left to Sandra under both the 2008 and 2011 Wills. It is also patently clear from the fact he says in brackets that he “later clarified that it is no 21”, that Dr Mukherjee thought that Jeanne had simply been mixed up about whether the number was 21 or 22, not that she might have been talking about a completely different property. He confirmed this in his oral evidence, saying:

“… I think I must have thought that this was just a mistake.

THE JUDGE: In the number?

A. Number 21 to 22. But I did not realise the complexity of the number of properties, but partly it must have been my fault as well that I got that address. I should have been more diligent in terms of exactly which address and things like that…”

And he said: “… looking at the report, I think my assumption was this was just a mistake of 21 and 22 and did not have any further implication than that. Now… I have to accept that that line is not fully true in retrospect, but at the time, this is my explanation why I wrote that, because my belief was that clearly, she meant to give the gift of property and that was probably a mistake just between 21 and 22.”

Since the “clarification” was made before Dr Mukherjee prepared the first draft of his Report, it must have been Philip or Sandra who told Dr Mukherjee, immediately after the assessment, that the correct address was “number 21”. Philip said in his evidence that he did not recall it, but this was possible.

Whoever Dr Mukherjee spoke to, whether it was Philip or Sandra, that person would have been very well aware of the difference between 21 Avenue Crescent and 22 Avenue Gardens, that they were different properties, and that the proposal was that Jeanne gift the former, not the latter. That person must therefore have realised that Jeanne had told Dr Mukherjee she wanted to gift the wrong property. Nevertheless, that person led Dr Mukherjee to believe that Jeanne had simply made a mistake about the number and not about the property to be transferred. It is possible that that person thought that Jeanne had simply named the wrong property while still meaning the correct one, rather than that she actually thought she was gifting 22 Avenue Gardens, but either way my inference is that that person played down the error and presented it to Dr Mukherjee as a simple error in the street number, most probably because they did not want to jeopardise the capacity assessment or the transfer of 21 Avenue Crescent.

However, quite apart from the reference to the wrong address, it is clear to me that Jeanne was indeed thinking about the wrong property, and was actually thinking about 22 Avenue Gardens (Mr Learmonth also accepts this is probably the case). This is because Dr Mukherjee records that she said she wanted to give Sandra and Philip “the residence where she used to live” and that “that she does not need that property anyway as this is now her home.” 22 Avenue Gardens was the property where she had lived, which had previously been her home and which she might think she no longer needed because she had a home with her daughter. 21 Avenue Crescent had only ever been rented out, and no doubt was also much less memorable to a person with dementia than a former home. After having the full position with the properties explained to him during his evidence, Dr Mukherjee agreed in oral evidence that Jeanne must have told him that she wanted to gift the property where she used to live.

The position was further muddied by what happened next. After receiving Dr Mukherjee’s draft Report, on 18 February 2015 Mr Tracey emailed him back, asking him to make amendments to his report, among other things saying the following:

“The second paragraph on page 3 is more troublesome in that Mrs Macdougall lived with her husband Alec in Beaufort Close [sic] at the time of his death and the property that you refer to number 22 Avenue Gardens in Ealing was a property they lived in soon after they married. Number 21 Avenue Gardens [sic] (the subject of the gift here) was a quite separate property (Mr and Mrs Macdougall owned them both).

In addition, I think it fairer to say that Gary got the family business and family business property and indeed that Sandra received some property too. From my conversations with Mrs Macdougall, it is the case that she wants to gift 21 Avenue Gardens [sic] to her daughter and son in law because the property is a rental property and she does not need the income and she wants to give it to them.”

It will be noted that Mr Tracey is still giving an incorrect address for the subject property, saying it is “21 Avenue Gardens”, by implication next door to number 22 (he also gets the address of Jeanne’s former home, which was in Beaufort Road, wrong) although he does explain there are two different properties, both of which she and Alec had owned.

On 22 March 2015, Dr Mukherjee emailed Mr Tracey a revised version of his report. He had deleted the phrase “the residence where she used to live”, amending that sentence so it now read: “So, she would like to give to Sandra and her husband Philip her property as a gift” [underlined words added]. He did not address any of the other issues raised by Mr Tracey.

On 31 March 2015 Mr Tracey wrote to Jeanne enclosing this amended version of his report, saying he was happy to proceed with the transfer of 21 Avenue Crescent. On 29 April 2015 Philip and Jeanne met Mr Tracey’s colleague, Anousha Kandiah, for Jeanne to sign the TR1, which she did, so this is the actual date on which the transfer took place. Ms Kandiah’s attendance note reads, as far as material:

“Anousha attending Mrs Macdougall who was bought into the office by Phillip Thomas. Going through the TR1 with Mrs Macdougall and asking her to check that all the details contained therein were correct. Mrs Macdougall accordingly confirming...”

The TR1 was subsequently dated 6 July 2015 (although the difference is not material). On the same day Ms Kandiah emailed Philip a drive-by valuation of 21 Avenue Crescent of £1,700,000 - £1,800,000. A valuation of £1.7M was recorded at HM Land Registry, although this was later changed to £850,000 on 18 August 2020, after Jeanne’s death.

On 5 October 2015, Mr Jordan sent an email note to himself, headed 21 Avenue Crescent, that: “In a recent call Philip told me that Mrs M had gifted the property to Philip & Sandra. A PET for IHT and a disposal for CGT.”

A CGT liability arose on this gift. This was only paid much later on 6 July 2017, when it was paid out of the proceeds of sale of 45 Berrymead Gardens, along with CGT on the later grant of the long lease of GFF 22AG to Laura and Henry. The total CGT paid on the transactions in relation to 21 Avenue Crescent and GFF 22AG was £292,051.54.

In her oral evidence Sandra denied that Philip had made all the arrangements for the transfer of 21 Avenue Crescent and Jeanne just did as she was told, and said, for the first time, (this not being in her Defence or witness statement):

Mr Martin submits that this apparently important conversation was not previously mentioned and does not accord with the documentary record. I accept that submission and reject Sandra’s evidence that there was such a conversation because: (a) it is an obviously self-serving statement; (b) it would have been an important conversation which one would have expected her to have mentioned before; (c) it is in reality far more likely that by this time in 2015, the initiative for this transfer came from Philip and/or Sandra, but that Sandra now wishes to deny this; and (d) this does not fit with the documentary record, including the first email which suggests the transaction began with a conversation between Philip and Mr Tracey, and the fact that the reference to the GP and then Dr Mukherjee for an assessment were because Mr Tracey considered this should be done.

I note that in his report, Dr Mukherjee referred to the test for capacity as being that under the MCA 2005. Mr Tracey had given him no directions in his email instructions as to the legal test to be applied. At that time, Kicks had only just been decided, saying that the Re Beaney test and not the MCA 2005 should apply to assessments of capacity for lifetime gifts. Prior to that, there had been a lack of clarity as to which test to apply, and it is not surprising that Dr Mukherjee was not then aware of the November 2014 ruling in Kicks. In his oral evidence, Dr Mukherjee said that today he would do an assessment by reference to both Re Beaney and the MCA 2005 (both of which he was clearly familiar with), but that at the time he must have done his assessment by reference to the MCA 2005 only, since he did not mention Re Beaney in the Report. Although he agreed that if he had been applying the latter test, he would have asked more questions, he said:

“.. In this assessment, I did ask her that, you know, established that she was giving something, wanted to know what is the reason she wants to give it, who she wants to give, why it is not to somebody else. So, if we think even in terms of testamentary capacity and the Re Beaney principles, some of them, even if the Re Beaney is not specifically referenced in my report, some of them definitely were covered in my assessment. I think obviously if I had all the information, then that would have made far more questions which I would agree, but I think the point I am trying to make is that some of the Re Beaney principles were still included and because it was early 2015, as you said, it was still kind of debated which was the gold standard, and that may be a reason I did not”

Mr Learmonth submits that even if Jeanne did make a mistake about which property she was envisaging giving, this does not mean that she lacked capacity and that Dr Mukherjee said as much. However, in my view the passage from Dr Mukherjee’s evidence on which he relies does not really support that submission. Dr Mukherjee said (in reference to Mr Tracey’s request that he amend his report):

“A. Jeanne did not mention anything about - in my report, there was no mention of anything about rental property or rental income. I think she just said that she wants to gift the property because she does not need that property any more, that now she is living with the daughter, she does not need that property any more.

MR MARTIN: So, did you have concerns at this point when these three points were raised that you had not assessed Jeanne on the correct basis?

A. I cannot remember whether I had a particular concern about that, but here, also, I mean, the 21, 22, same address, I am not sure that it raised that kind of concern for me because the wider perspective was not being given. I think I accept that what she did not, I think what is the most important bit to me in this, what she did not tell me is that the daughter got some properties, which she did not say at all in terms of explaining why she would choose to give that particular property to the daughter, my Lady.

Q. Looking at it now with the huge benefit of hindsight, it would have been a good idea to go back and see Jeanne again, would it not?

A. I would have agreed to that, my Lady.

THE JUDGE: Do you mean you would agree with that now or you would have agreed to do that at the time?

A. What I am saying is at the moment, I would agree.”

The first issue which arises in relation to this gift of 21 Avenue Crescent is whether Jeanne had mental capacity to make it.

On this issue, in their joint statement Professor Burns and Dr Series simply say:

“2.5

We agree that it is up to the Court to determine whether to accept the findings of Dr Mukherjee’s report.”

In his main report, Dr Series says:

“14.1.1

On the basis of the medical notes alone I think that she could have understand that she was giving away a property, but on balance I think it unlikely that she would have been able to consider this gift against other gifts already made…

14.1.4

If the Court finds that the MCA 2005 is indeed the correct test, and that the relevant information does not include knowledge of other gifts already made, then on balance I agree that she had capacity to make the gift. However, if the Court finds that following re Beaney, the test is that in Banks v Goodfellow, then in my understanding, the matters which she would need to consider are much wider, and would include her own circumstances, those of her children, previous gifts made to them, how they have behaved towards her over the years, the claims of other potential beneficiaries of her estate, and her own future need for financial support. I think that would require a much higher level of cognitive function and on balance I am doubtful that she would by then have had capacity to make that decision.”

Mr Martin’s submissions on mental capacity in relation to 21 Avenue Crescent were:

Mr Learmonth’s submissions on this issue were that:

The relevant test is as set out in Re Beaney. Therefore, the degree or extent of understanding required is relative to the particular transaction.

This was a gift of a very valuable asset (worth £1.25M), which potentially Jeanne might have needed in the future to provide capital or income, including for care needs, and which partly pre-empted her will in that it was one of the major gifts in her 2011 Will. However, it was not her only asset of value nor most of her estate. Therefore my assessment is that a fairly high degree of understanding was required, but not as high as for a will. However, given that it represented a substantial part of her property wealth, I do consider that she needed to be able to understand her own wider financial circumstances and potential future needs and how this property (its income and capital) fitted into that, and also to be able to assess the claims of other potential beneficiaries, in particular Gary, even if she did not need to be able to undertake the more comprehensive weighing up required for a will.

The legal burden of proof is on Gary, as the person alleging incapacity, but if he adduces evidence which raises sufficient doubts from which incapacity can be inferred, then the evidential burden shifts to Philip and Sandra - see Kicks at [67]. In my view Gary has adduced evidence raising such doubts, for the following reasons:

As to whether Philip and Sandra have discharged that evidential burden, my view is that they have not. In any event, viewing all the evidence holistically, my conclusion is that Jeanne did not have the mental capacity for this gift when her capacity was assessed by Dr Mukherjee in February 2015, for the following reasons, in addition to those in the previous paragraph:

Accordingly, my finding is that the gift of 21 Avenue Crescent to Philip and Sandra on 29 April 2015 is voidable for lack of capacity. That property is still owned by Philip and Sandra.

Given my findings on capacity, I will deal with his shortly. It is not disputed that by this stage a relationship of trust and confident existed between Jeanne on the one hand and Philip and Sandra on the other, especially as this was after the LPA had been registered.

Mr Martin submitted that:

Mr Learmonth’s submissions on this issue were:

On this issue, I accept the submissions of Mr Martin. In my view:

Accordingly insofar as the issue arises in a case where I have already found Jeanne had no capacity, I hold that in any event the gift is voidable for undue influence.

Under the 2011 Will, 21 Avenue Crescent was a property which was gifted to Philip and Sandra in any event. In circumstances where I have held that the gift is voidable for lack of capacity, or alternatively for undue influence, but the 2011 Will is valid, the issue arises as to whether and how this gift is affected by the principles of ademption.

I set out at paragraphs 233 to 236 above the general submissions made by Mr Martin and Mr Learmonth on ademption, and at 237 to 238 my conclusions on the points of principle. Those general submissions and conclusions should be treated as repeated here and in relation to each of the transactions where ademption is an issue.

As to how such principles should operate in relation to the gift of 21 Avenue Crescent, Mr Martin’s submissions were as follows:

Mr Learmonth’s submissions on ademption and 21 Avenue Crescent were:

The gift of 21 Avenue Crescent is voidable, for lack of capacity and insofar as it is not merely an alternative finding, undue influence. 21 Avenue Crescent is still owned by Philip and Sandra. No third party interests are involved in relation to it.

It is possible therefore to conclude that the gift was entirely ineffective and could just be returned to Jeanne’s estate, since there are no third party interests involved or affected.

My conclusion is that in those particular circumstances, there is no ademption at all. In reaching this conclusion I am following the decision in Jenkins. It seems to me that the decision in Hart CA that an ademption had occurred even though there had been undue influence, was implicitly if not explicitly based on the fact that third parties had bought the properties, so there was no question of returning them to the estate. Therefore all the various arguments related to allocation of the proceeds of sale and not to the properties themselves. It seems to me that Hart CA does not necessarily overrule Jenkins in circumstances such as pertain here, and I should proceed on the basis that it does not, especially as Jenkins does not appear to have been cited either to the judge or to the Court of Appeal.

My conclusion therefore is that this property would simply pass to Philip and Sandra, in accordance with the 2011 Will, if the gift is avoided at the election of the personal representatives (it being voidable). In those circumstances, i.e. if the gift is avoided and the property passes under the 2011 Will, then it would be subject to IHT (which according to the 2011 Will is paid on each legacy by the legatee, not from the residuary estate).

While I understand Mr Martin’s objection that Sandra and Philip appear to be benefitting from their own misconduct, I do not consider that that is what is happening in relation to this transaction. No equitable relief is being granted, the court is simply recognising that the gift was ineffective and voidable. In this respect the court is also respecting the express terms of Jeanne’s 2011 Will concerning 21 Avenue Crescent.

On 30 March 2016 Philip granted a long lease of the ground floor flat at 22 Avenue Gardens to Laura and Henry, for a premium of £400,000, using the LPA.

A mortgage valuation obtained by Laura and Henry at the time was in the sum of £525,000. CoreProp have valued this leasehold interest as at that date at £545,000.

Jeanne’s mental condition had clearly further deteriorated by this time, as compared to when Dr Mukherjee conducted his assessment. A letter from the senior nurse practitioner in November 2015 records a further decline in the Rowland score to 15/30, and records Sandra as reporting that Jeanne had deteriorated, being more disorientated, that she often did not recognise Sandra and that there was increased evidence of word finding difficulty. She had also started making rude gestures when irritated or under pressure.

On 16 December 2015, Dr Pambakian recorded that: “Her cognition has now deteriorated to the point where sometimes she does not recognise immediate family members and also struggles with finding the right words frequently”.

Nevertheless, Laura’s evidence was that the price of £400,000 was agreed with Philip and Jeanne. She said in oral evidence:

“MR MARTIN: Was the price agreed with your father?

A. The price was agreed, there was a conversation with my Gran, my dad was there, my mum may have been part of the conversation, but I cannot recall if she was. And £400,000 was what Henry and I could afford, we had managed to save about £40,000 by living at my parents to put towards a deposit to get a 10% deposit of the price and £400,000 is what we could afford.

Q. Just to be clear, your evidence is that you agreed the price with your father and your grandmother, is it? That is what you have just said.

A. So we had a conversation, my Gran wanted to give us the flat for free. And we said no, we wanted to buy it. Then a conversation with my Gran and my dad about, you know… what we could afford the property for which is why £400,000 was agreed, because that is what we could afford. But, as I said in my witness statement, my Gran wanted to give it us to for free.

Q. You said she wanted to give it to you for free?

A. Yes.

Q. In terms of agreeing the price of 400,000, which is something different, that was agreed with your father?

A.

That was agreed in a conversation which my Gran was part of and my dad was there… the conversation was with my dad and my Gran, my Gran was participating in that conversation.”

Henry’s evidence in his statement (he was not required to be called) was that the price of £400,000 was agreed with Philip bearing in mind their budget.

My factual findings about this transaction are that:

On 8 April 2016 Philip emailed Torkington House about Jeanne attending there for a holiday respite placement. However, on 21 April 2016 Jeanne moved permanently to Torkington House, given the deterioration in her condition. The care home fees appear to have started at about £5,000 per month.

The lease of GFF 22AG was subsequently sold by Laura and Henry to third parties on 23 October 2020, i.e. after Jeanne’s death.

There is no dispute that Philip breached his duties as an attorney in using the LPA to make a transfer at an undervalue to Laura and Henry in relation to the grant of the GFF 22AG long lease, this being admitted in Mr Learmonth’s skeleton.

Equally, I do not consider that Jeanne could have ratified this transaction, or did do so, as was faintly argued by Mr Learmonth, given the contemporaneous records as to Jeanne’s cognitive function and my findings as to her lack of participation or awareness.

There are therefore two aspects to the consequences of this transaction, although I will deal with them together because they are connected:

In relation to this particular transaction, Mr Martin made the further submissions on breach of duty and ademption:

Mr Learmonth made the following submissions in relation to this transaction:

This is not a straightforward issue and the authorities, especially on the ademption aspects are sparse. However, my conclusions in relation to the grant of the lease of GFF 22AG are as follows:

On 29 June 2017, 45 Berrymead Gardens was sold by Sandra and Philip to a third party for £900,000. Proceeds of sale of £554,957.97 were paid into Jeanne’s HSBC deposit account on 3 July 2017 and thereafter spent by Sandra and Philip (including on Laura and Emma’s weddings, which appear both to have been substantially paid for in the second half of 2017).

A CGT liability of £214,804.52 arose on that sale. As already noted, earlier CGT liabilities on the gift of 21 Avenue Crescent and the premium on GFF 22AG were also paid from those proceeds of sale.

In relation to this sale, Mr Martin submits:

Mr Learmonth submits in relation to this transaction:

My conclusions on this transaction are as follows:

Philip and Sandra admit exceeding the authority conferred on them by the LPA, over the whole the period from 2012 until 2020. This therefore included all of the period when Jeanne was in Torkington House and when she plainly did not have capacity.

I am not asked in this trial to go into the detail of the Bank Transactions made through Jeanne’s bank accounts, and I will not extend this already lengthy judgment by recounting them. Suffice it to say, the misuse of Jeanne’s bank accounts by Sandra and Philip was extensive and wholesale. I understand that the total of the sums spent through them was in excess of £1M, although I have made no attempt to total them up.

Jeanne’s accounts and her assets were simply used by Sandra and Philip as if they were their own, without any regard whatsoever for any fiduciary duties, or even familial obligations to Jeanne. Mr Martin submits that there was a pattern of properties being sold for cash (45 Berrymead Gardens being an example), the proceeds being paid into the accounts and then used not only for ordinary living expenses but also for more extravagant expenses, including cars, holidays, the two weddings, college fees for Sandra and Philip’s children, and many cash withdrawals, among other things. Although Philip denied in cross examination that there was such a pattern, I consider that such a pattern is the most obvious conclusion to be drawn from an overview of the bank statements, especially as the only other apparent source of income for Philip and Sandra was rent from their other properties.

To take just one example, on 12 February 2014, £125,000 was withdrawn from Jeanne’s Barclays account and paid to Philip and Sandra. When asked in cross examination what this large withdrawal related to, Philip said it was a gift from Jeanne, who just wanted to make it. On the same day, a banker’s draft of £50,000 was drawn on Jeanne’s Halifax account, the name of the recipient not being shown. Philip said he could not recall this and he did not know what this was.

I am unable to accept that Philip was being candid with the court about either of these transactions. I found his answers evasive and obviously self-serving and I am unconvinced by his evidence that Jeanne made this transfer herself as a gift to him and Sandra, this being a time when they could also have used the LPA, which in my view is the more likely explanation for this transfer, which was therefore made in breach of fiduciary duty by one or other of them (since it would have been a large gift). I consider it more likely than not that he and/or Sandra also received the £50,000 withdrawn on the same day, that he could have given a much fuller explanation for both these transfers if he had wanted to, and that the £50,000 withdrawal was probably also carried out by one of them using the LPA, in breach of fiduciary duty as being a large gift.

I am asked to deal with issues of principle only in relation to the misuse of monies in the bank accounts using the LPA. As I understand it, the transactions on Jeanne’s bank accounts were either carried out by Jeanne herself (at any rate at the earlier stages in the history), or were done by Sandra and/or Philip under the umbrella of the LPA. Save as set out expressly in this judgment, I do not make findings as to which, in respect of individual transactions: such determinations would form part of the taking of any account.

Mr Martin’s submissions in relation to the misuse of the bank accounts were as follows:

Mr Learmonth’s submissions as to the misuse of the bank accounts were as follows:

On the various issues which arise in relation to the misuse of the LPA, and in particular the use of the bank accounts, my conclusions on the questions of principle are:

In summary therefore, my conclusions on all of Gary’s claims, by transaction, are as follows:

There will be a hearing to give directions for the taking of the account and other issues of quantum, and to deal with other consequential matters and costs. I invite counsel to agree terms for an order for that hearing accordingly.